text:
    No. 10,934
    Orleans
    N. O. PUBLIC SERVICE, INC., v. LIND
    (April 15, 1929. Opinion and Decree.)
    (April 29, 1929. Rehearing Refused.)
    Dufour, Rosen and Kammer, of New Orleans, attorneys for New Orleans Public Service Inc. plaintiff, appellee.
    Hopkins and Talbot, of New Orleans, attorneys for William Lind, defendant, appellee.
    W. S. Lewis, of New Orleans, attorney for Moritz S. Sentón, defendant, appellant.
   JANVIER, J.

Plaintiff, a corporation engaged in the business, among other things of furnishing electric power, gas and electric power and light, sued William Lind for seven hundred sixty-seven and 75-100 dollars, the balance claimed to be due on bills rendered for furnishing gas and electricity to the ¡premises owned by defendant at 2238 and 2240 Chippewa street. Defendant denied the indebtedness, except to the extent of an item of $3.65, which he admitted might be due by him. In his answer he called in warranty his tenant, the Metalizing Works, Inc., alleging that the contracts for power and light had been made for the benefit of that concern and that the service had been rendered to and received by it and not by him. By supplement answer defendant called in warranty Moritz S. Sen-ton, Fred G. Veith, and the estate of Charles F. Plelmecke, alleging that Sen-ton, Veith, and Helmecke were the intended incorporators of the Metalizing Works, Inc., which • corporation had never come into existence, and that, since Veith, Sen-ton, and Helmecke had carried on the business for which the corporation was proposed to be organized, they became liable as commercial partners, and were therefore liable as such for the bills which form the basis of this suit. Judgment was rendered in favor of plaintiff against Lind for $762.09 and in favor of Lind against Veith, Sentón, and the estate of Helmecke solidarity, for a like amount. From this judgment Sentón and Veith have appealed.

The defense of Sentón and Veith is based on the contention that they did not know that business was being conducted by Helmecke under the name of the Metalizing Works, Inc., and as they knew that the incorporation of that concern had never been completed, they should not be held as partners in a venture which they did not know was being undertaken and which they neither authorized nor ratified.

In the case No. 10,700 of the docket of this court, entitled Lind vs. Sentón et al., 120 So. 535, decided February 25, 1929, the same question was presented between the same parties. Lind sued Sentón, Veith, and Helmecke for rent due on the property, alleging that they were liable to him as commercial partners because the corporation, the Metalizing Works, Inc., had never come into existence and since they had carried on business in its name. In that case we held the three individuals liable as commercial partners, being of the opinion that the work which they were conducting made them such under Civil Code, art. 2825, and since we were of the opinion that the business, which was being conducted primarily by Helmecke, was within the actual knowledge of Veith and the constructive knowledge of Sentón.

In the record presented to us now, there is some additional evidence, and, so far as Veith is concerned, this additional evidence leaves no doubt whatever that he actively participated in the affairs of the concern. This record contains additional letters signed for the concern by him, and we are more than ever convinced of his full and complete knowledge that business was being conducted.

In the present suit, through his counsel, Sentón concedes that if there is any liability it is solidary and that each can be held for the whole debt. He contends, however, that there is no liability, and that we were in error in our first opinion, and that the additional evidence presented here should convince us that Sentón had neither actual nor constructive knowledge of the work that was being carried on. There is no doubt that, as to Sentón, the situation is somewhat different, in that there is no evidence that he had actual knowledge; but there can be no doubt that he visited the plant on many occasions, and we do not think that he can now be heard to say that he did not see what was going on. Pie was seen there by Lind, who knew that his premises were leased to the Metalizing Works, Inc., and it was held out to him that Sentón was an incorporator and an officer of that concern. It is fair to assume that Lind knew that Sentón was a substantial man of affairs, and it may be presumed that his willingness to extend credit to the concern, and to allow his name to be used on contracts for the concern, resulted, to some extent at least, from this knowledge.

Because we are absolutely convinced of Senton’s good faith, and that he was victimized in this matter, we have searched the record most diligently to find evidence which would justify us in holding that Sentón, under the circumstances presented, was not charged with knowledge that business was being conducted, but can find nothing which changes our original view that he ought to have known what was going on.

Counsel for Sentón contends that the facts of this case do not justify a call in warranty for the reason that, as he alleges, there was no privity of contract between Lind and Sentón. In support of this argument he cites Hardy vs. Sheriff et al., 104 La. 136, 28 So. 936, in which the court found the facts pertinent to the present contention to be:

“The record discloses that the claim of opponent is founded upon a judicial mortgage that resulted from the rendition of a judgment in its favor against the -Sugar Company subsequent to its purchase of the property from Ermann & Cahn, and the registry of their vendor’s mortgage; and these proceedings were not commenced until after the lapse of more than a year after Pharr- purchased same.
“Opponent’s claim not having any existence when the sale was made, he was neither a party nor privy thereto, and was necessarily a third person to all intents and purposes; but his claim is, that having-acted on the faith of the public records which disclosed the warranty clause in its deed, and given the Sugar Company credit on that account, he is entitled to exercise its right of warranty against Ermann & Cahn, and Pharr, as transferree, of their vendor’s notes.”

And with reference to these facts, in its opinion the court said:

“The admitted facts show clearly that they knew nothing of it. And, as opponent alleges that in permitting the Sugar Company to contract its indebtedness in his favor he acted on the faith of the knowledge he obtained from the public records of the existence of Ermann & Cahn’s contract of warranty to the Sugar Company, it is clear there is no obligation of warranty in his favor.”

The case here, however, is entirely different. Lind made contracts for the benefit of Sentón, Helmecke, and Veith. They received the benefits of those contracts, and if they did not expressly authorize the contracts, they are bound to have realized that the power and light were being used and had to he paid for. We see no reason why they cannot be called in warranty. We therefore believe that since there can be no question that plaintiff is entitled to payment, and since the main defendant, Lind, received none of the benefits resulting from the use of the power and light, which he must pay for, and since all the benefits resulting therefrom were received by Sentón, Veith, and Helmecke, it should be paid for by them.

It is therefore ordered, adjudged, and decreed that the judgment appealed from he affirmed, at the cost of appellants.


source: Caselaw Access Project

author: JANVIER, J.

license: Public Domain

text:
    No. 11,793
    Orleans
    JOHNSON v. FOSTER
    (April 29, 1929. Opinion and Decree.)

      Warren M. Simon, of New Orleans, attorney for plaintiff, appellee.
    Hopkins and Talbot, of New Orleans, attorneys for defendants, appellants.
   JANVIER, J.

This is a suit for tbe return of money loaned. Plaintiff claims that a piece of property wbicb sbe owned in Slidell, La., had been sold for ber by a Mrs. Pick, who, as a result of tbe sale had come into tbe possession, as agent for plaintiff, of tbe proceeds, and that plaintiff’s sister, one of tbe defendants, knowing of tbe sale, asked for a loan of $100 and was told by plaintiff that sbe did not have tbe cash with ber but that sbe would arrange for Mrs. Pick to turn over, out of tbe said sum, tbe amount asked for.

Plaintiff also claims that at a later date sbe loaned ber sister an additional sum of $35. Sbe avers that this loan was made out of ber savings account and that tbe money was withdrawn from tbe bank for that special purpose.

Defendants deny that they borrowed anything from plaintiff, maintaining that there was never any necessity for them to borrow as they were always in comfortable circumstances whereas plaintiff was always destitute.

Tbe testimony is most conflicting and in tbe absence of tbe presumption of correctness wbicb attaches to tbe finding of the trial court a reading of it in cold type would not leave us convinced that there is a preponderance either way. There are some circumstances wbicb tend to corroborate plaintiff and some wbicb seem to lend color to tbe denial of defendants. Mrs. Pick at first denied that sbe turned over any money to defendants for account of plaintiff, but later sbe does not recall whether she did or not.

It seems to us that with regard to the loan of $35, plaintiff bad in ber possession evidence wbicb would have corroborated ber contention. In other words, sbe could have produced ber bank book showing tbe withdrawal of tbe amount mentioned. On tbe other band, as corroborating plaintiff, we find tbe testimony of several witnesses that tbe defendant Wanita Poster bad stated that sbe was going to return tbe money to ber sister.

All in all, we think that this is manifestly a proper case for tbe application of the principle that appellate courts will not reverse tbe findings of a trial court on questions of fact, unless they are manifestly erroneous.

It is therefore ordered, adjudged and decreed that tbe judgment appealed from be and it is affirmed, at tbe cost of appellants.


text:
    No. 11,816
    Orleans
    DEAMIER v. ORLEANS-KENNER TRACTION CO., INC., ET AL.
    (April 29, 1929. Opinion and Decree.)

      John J. Wingrave, of New Orleans, attorney for plaintiff, appellee.
    Milling) Godchaux, Saal and Milling, of New Orleans, attorneys for defendants, appellants.
   JANVIER, J.

This case and the case of Mrs. Rose Rabalais, widow of Pierre Perrage, vs. Orleans-Kenner Traction Co., Inc., et al., No. 11,817, of the docket of this Court, decided by us this day, April 29, 1929, grew out of the same accident. The cases were consolidated for convenience of argument.

For the reasons given by us in our decision of the Ferrage case, we are of the opinion that the Louisiana Railway & Navigation Co., alone is responsible for the accident.

As to the injuries sustained by plaintiff we find that they consisted of a dislocation of the right hip and a slight dislocation of the right knee with a sprain of the back and other bruises. . He was under the care of his physician for about fifteen or sixteen weeks. His doctor’s bill amounted to $125. His testimony as to the extent of his injuries does not impress us and we are quite convinced that they were entirely superficial and in no sense permanent. It seems to us that the amount allowed by the lower court is somewhat above previous awards for similar slight injuries. We are of the opinion that $750 for his physical injuries and loss of time and $125 to cover his expenses will be more nearly correct.

■It is therefore ordered, adjudged and decreed that the judgment appealed from be .amended by reducing the amount thereof to $875 and as thus amended affirmed.


author: WESTERPIELD, J.

text:
    No. 11,836
    Orleans
    JONES v. LANDRY
    (April 29, 1929. Opinion and Decree.)
    (May 27, 1929. Rehearing Refused.)

      A. T. Higgins, Solomon Goldman and Matthew A. Grace, of New Orleans, attorneys for plaintiff, appellant.
    John E. Pleury, of New Orleans, attorney for defendant, appellee.
   WESTERPIELD, J.

This is a suit for compensation for the loss of a hand. The defense is based upon Section 28 of Act 20 of 1914 (the compensation law) which denies recovery for injury caused by the employee’s intoxication at the time of the injury or by reason of the injured employee’s deliberate failure to use an adequate guard or protection against the accident, provided for him by his emfloyer. There was judgment for defendant and plaintiff has appealed.

The plaintiff, a young negro woman, was employed by the defendant to operate a moss ginning machine. Her duty was to feed moss to the machine which contained two steel rollers with brackets, or teeth, which enmeshed as the rollers revolved. While so engaged her hand was caught between the rollers and badly mangled, necessitating its removal.

As to' the defense of intoxication the burden of proof, under the terms of the compensation statute, rested upon the employer and our appreciation of the evidence is that he has failed to sustain that burden. There is some evidence to the effect' that the injured employee’s breath smelled of liquor or wine, and one witness testified that she acted like she was dizzy or sick, and after being pressed on cross-examination declared she was drunk. However, the evidence does not preponderate to that effect.

The alleged failure to use the protection afforded her by her employer, is based upon the charge that plaintiff fed the moss to the rollers from the. side, instead of from the front, where there is a board about thirty inches wide, called an apron, which, it is said, is intended to protect operators against getting their hands caught in the rollers. Perhaps this board affords some protection by keeping the body of the operator at a distance from the rollers, but it appears to us as very inadequate. The defendant testifies that he had warned plaintiff against the practice of feeding the moss from the side, but that she failed to obey instructions. Her failure to obey his orders should have resulted in her discharge and incidentally the saving of her hand, but mere disobedience to orders is not sufficient to defeat recovery by an employee, under this section of the law. See Parris vs. Louisiana Long Leaf Lumber Co., 148 La. 106. 86 So. 670, and Sears vs. Peytral, 151 La. 971, 92 So. 561.

We are of the opinion that plaintiff should recover. Under the statute she is entitled to 65 per cent of her wages for 150 weeks. She was not paid a salary but worked by the piece. The average pay she received, as figured by her employer on a basis of the last eight weeks she was employed, was $4.08 per week, but two of these weeks should not be counted, for in one instance she is credited with having earned 20 cents and in the other 70 cents, which would indicate that she worked hardly at all during those two weeks. On the basis of the other six weeks her average earning was $5.29 per week. 65 per cent of this amount would be $3.44. She is entitled .to compensation at the rate of $3.44 for 150 weeks. She was injured August 3, 1926, consequently the first installment should have been paid August 10, 1926.

For the reasons assigned the judgment appealed from is reversed and it is now ordered that there be judgment in favor of the plaintiff, Angeline Marcelan, and against the defendant, Robert D. Landry, in the sum of $3.44 per week for - 150 weeks, beginning August 10, 1926, with interest upon each installment thereof from its due date, at the rate of 5 per cent per annum and all costs.


author: WESTERFIELD, J.

text:
    No. 11,818
    Orleans
    RADIO SHOPPE, INC., v. THOMPSON
    (April 29, 1929. Opinion and Decree.)
    A. R. Christervich, and Beard and O’Keefe, of New Orleans, attorneys for p’.aintiff, appellee.
    Dart and Dart, and L. .C. Guidry, of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

This is a suit on a series of promissory notes aggregating 1103.50. The notes were given in part payment of the purchase price of a certain radio, sold by plaintiff and bought by defendant. The defense is a failure of consideration based upon the allegation that the radio did not operate satisfactorily.

There was judgment below for plaintiff, as prayed for, and defendant has appealed.

The evidence indicates that the radio was installed by the defendant who attached “aerial and leading wires.” We are convinced that, as thus installed, it did not function properly. Nevertheless, plaintiff displayed a willingness, at all times, to make proper repairs, finally offering to furnish an entirely new outfit, which was declined by defendant upon the ground that he desired a new box or casing as well as , the radio itself, and this, the plaintiff was unwilling to supply.

We agree with the trial judge in his finding that the defendant was not justified in rejecting the radio or imposing unreasonable demands upon plaintiff as a condition of its acceptance. The radio, which was sold, is shown to be recognized by the trade as a first-class instrument and there is testimony to the effect that all radios occasionally give trouble.

Under the circumstances and for the reasons assigned the judgment appealed from is affirmed.


text:
    No. 11,424
    Orleans
    SCALLAN v. CHECKER CAB CO., INC.
    (April 1, 1929. Opinion and Decree.)
    (April 15, 1929. Rehearing Refused.)
    Geo. Piazza, of New Orleans, attorney for plaintiff, appellee.
    P. L. Fourchy, of New Orleans, attorney for defendant, appellant.
   JANVIER, J.

Plaintiff claims to have been injured while a passenger in one of defendant’s taxicabs on the morning of May 29, 1927, at about 4:40 o’clock. He testifies that, as a result of the chauffeur’s negligence in driving at too rapid a rate of speed over the street car tracks at the intersection of Rampart and Ursuline Streets, he was projected from the rear seat so suddenly and violently that his head came into contact with the top of the cab and he received a scalp wound and injuries to his back. The injuries to his back, he claims, resulted from falling to the floor after his head struck the top of the cab.

If plaintiff’s story is true, and he was hurt while a passenger in the cab, there were no eye witnesses except plaintiff himself.

Defendant contends that while the cab was going down Rampart Street, plaintiff, noticing a Ford car, with several of his friends in it, passing the taxicab, hailed them to stop and take him along with them, and that he then called to the chauffeur of the taxicab to stop and let him out, so that he might continue his journey in the Ford, and that he was hurt as a result of falling while running from the taxicab to the Ford.

Three witnesses testify that they saw him fall while running from the taxicab to the Ford. A reading of the testimony of these witnesses fails to disclose any glaring irregularities or inconsistencies and we are unwilling to disbelieve and disregard it and accept the uncorroborated and highly improbable statement of plaintiff.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be annulled, avoided and reversed, and that there now be judgment in favor of defendant, dismissing plaintiff’s suit at his cost.


author: JONES, J.

text:
    No. 11,464
    Orleans
    IN RE LIQUIDATION OF THE UNION PLANTING AND MFG. CO.
    (April 1, 1929. Opinion and Decree.)
    (April 29, 1929. Rehearing Refused.)
    Chas. T. Wortham, of Thibodaux, attorney for liquidators, appellants.
    Henry L. Himel and Walter Lemann, of Donaldsonville, attorneys for Mrs. Waguespaclt, appellee.
   JONES, J.

In' this case 400 sacks of rice, which had been inventoried and advertised as seed rice, were adjudicated at foreclosure sale to Mrs. Aubert Waguespack, along with certain real estate. When the purchaser sequestered the rice shortly thereafter, the liquidators of the Union Planting & Manufacturing Company filed a rule against Mrs. Waguespack to show cause why she should not restore it to them as a movable.

The trial judge found that there were approximately 450 sacks of seed rice on hand and that it was all immovable by destination, and therefore passed with the plantation.

In this court the liquidators, while admitting that all the seed rice held by them for use on the Union Plantation should be considered immovable by destination under Article 468 of the Revised Civil Code, argue that 184 sacks of the rice should be held movable, because that amount was intended for planting on St. Mary Plantation, which was leased, but not owned by the original company.

The evidence shows the following:

Union, Tippecanoe and Bagatelle plantations, belonging to the Union Planting & Manufacturing Company, were operated by them under the general name of “Union Plantation.” This company also leased and operated the St. Mary Plantation along with the other three, apparently treating all four, for purposes of cultivation, as one plantation. When the planting company became involved, liquidators were appointed and the property of the Union Planting & Manufacturing Company was sold under foreclosure to Mrs. Aubert Waguespack.

Leonard Waguespack, the former president of the company, now one of its liquidators, testified on direct examination that there was on hand at the time of the sale approximately 450 bags of seed rice; that the liquidators intended to plant 325 acres in rice on Union and Tippecanoe Plantations, and on St. Mary Plantation 225 acres, and it is on this testimony that counsel contends- 225/550ths of 450 sacks, or 184 sacks of seed rice, should be considered movable.

On cross-examination this witness testified that he had intended to buy in the properties at foreclosure; that he had allowed all the rice to be inventoried as seed rice and that he did not know exactly the amount of rice then on hand, as some of the sacks contained rat holes and there was some wastage; that it was frequently necessary to sow seed rice more than once in order to get a stand and that he could not say exactly how much rice would be used for seed on these two plantations, as he could not tell how often they would have to replant, but 450 sacks would not be necessary for planting Tippecanoe and Union; that they had intended to sell some, of this rice and buy a better quality. But he entirely failed to explain why he waited from December 15th to March 1st without making any attempt to "sell it.

Haydel, manager of Union Plantation, one of the appraisers, testified that all the rice had been appraised as seed rice, in the presence of Leonard Waguespack, and with his approval.

Rome, the clerk of court, who made the inventory, testified that Leonard Waguespack, who was present at the time he made the inventory, then apparently considered all the rice as seed rice.

The above analysis shows that the exact amount of seed rice necessary for the two plantations operated by the Union Planting & Manufacturing Company is by no means certain. One fact stands out clearly: That Mr. Waguespack has entirely changed his mind since he failed to buy in the property at the foreclosure sale.

While the testimony is conflicting, we find no errors in the finding of fact by the trial judge.

For above reasons the judgment is affirmed.


author: WESTERFIEDD, J.

text:
    No. 11,009
    Orleans
    BENEZACH v. GLAUDI
    (May 27, 1929. Opinion and Decree.)
    Bond, Curtis, Hall and Poster, of New Orleans, attorneys for plaintiff, appellant.
    H. Kenner, of New Orleans, attorney for defendant, appellee.
   WESTERFIEDD, J.

Plaintiff sues defendant for $325, the purchase price of a second-hand Ford coupe which plaintiff bought from defendant. There was judgment for defendant and plaintiff has appealed.

On January 15, 1925, plaintiff bought a Ford coupe from the defendant. On December 24, 1925, the automobile was taken away from him by the police, who subsequently identified it as having been stolen from the Electron Engineering Company. The car was thereupon delivered to an insurance company which had compensated the Electron Engineering Company for its loss under a theft policy. The insurance company then sold the car back to plaintiff, the consideration not being disclosed in the record.

We have not been favored by an argument on behalf of the defendant and appellee, nor has any brief been filed in this Court; consequently we are not advised as to the authority relied upon in support of the judgment. The law in this State is very plain and to the effect that there is an implied warranty in all sales and that the evicted buyer has the right to claim, as against the seller, the restitution of the purchase price. R. C. C. 2506.

The judgment appealed from is erroneous and, for the reasons assigned, is reversed, and it is now ordered that there be judgment in favor of plaintiff, Edward P. Benezach, and against the defendant, B. J. Glaudi, in the full sum of $325, with interest thereon at the rate of five per cent per annum from judicial demand, and •all costs.


text:
    No. 11,900
    Orleans
    BURKE v. N. O. PUBLIC SERVICE, INC.
    (May 27, 1929. Opinion and Decree.)

      H. W. Robinson and F. B. Freeland, of New Orleans, attorneys for plaintiff, appellant.
    Ivy G. Kittredge, of New Orleans, attorney for defendant, appellee.
   WESTERFIELD, J.

Plaintiff alleges that she was injured by a fall caused by the negligence of defendant’s servants, in prematurely starting a street car, while she was in the act of alighting therefrom.

The defendant street railway company denies the negligence imputed to it, disclaiming all responsibility.

The trial court rendered judgment for defendant and dismissed plaintiff’s suit. Plaintiff has appealed.

Our consideration of the testimony has convinced us of the correctness of the judgment appealed from. There is some evidence in support of plaintiff’s position but the testimony preponderates to the effect that plaintiff fell after she had alighted from the street car and had walked some little distance towards her destination.

Under the circumstances, the judgment appealed from must be and it is hereby affirmed.


text:
    No. 11,869
    Orleans
    BAZILE v. J. F. LANDRY & CO., INC.
    (May 27, 1929. Opinion and Decree.)
    Milo B. Williams, of New Orleans, attorney for plaintiff, appellee.
    Milner and Portéous, of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

This case grows out of a collision between a Ford truck belonging to plaintiff, and a Dodge car belonging to defendant. The collision occurred about 7:30 P. M., December 23, 1927, on the Pointe-a-la-Hache roadway near English Turn, at a point where there is a curve in the road. Plaintiff claims $184.70 as damages to his truck, and the defendant reconvenes for $211.50, the amount of the damage, alleged to have been sustained by its Dodge car.

There was judgment below for plaintiff as prayed for and against defendant, dismissing its reconventional demand.

We find the facts to be as follows:

The Ford truck was proceeding towards Pointe-a-la-Hache, on the right, or proper, side of the roadway, at a moderate rate of speed, which as it approached the bend in the road was decreased. The Dodge automobile was being driven in a direction away from Pointe-a-la-Hache, and towards the city of New Orleans, on the left, or wrong, side of the road, at a rate of speed of about thirty-five miles per hour, without slowing its speed as it approached the turn. It follows from this finding of fact that the Dodge car was at fault, in that it was on the wrong side of the road and in failing to decrease its speed in the turn of the roadway.

It is argued, however, that the Ford truck was also to blame because, according to the evidence, the Dodge car was seen by the driver of the Ford truck at a time when the cars were sufficiently far apart to permit him to avoid the accident. In other words, defendant invokes' the doctrine of the last clear chance.

We are of the opinion that the doctrine is improperly invoked in this case. The fact that the driver of the Ford truck --aw the Dodge car at about 100 feet, as xs testified to, or at a greater distance, did not afford him an opportunity to avoid the accident. If it be suggested that le should have driven over to the left -sine of the road, in order to escape the Dodge car, the answer is that such maneuver would have been calculated to increase the danger of collision, since it must be assumed that the driver of the Dodge car would have sooner or later, ana in time to avoid the collision, taken his position on the proper side of the road. The driver of the Ford truck in seeing the Dodge car directly in his path, was justified in believing that he would pull, over to his right in time to avoid the accident. The Ford driver could not drive further to the right, without getting off the roadway and if he stopped his car, and the Dodge had maintained its position, as it did, the accident would have occurred just the same.

The amount of damages claimed doe^s not appear to be disputed, consequently the judgment appealed from is affirmed.


text:
    No. 11,849
    Orleans
    HEINE v. DICKS
    (May 27, 1929. Opinion and Decree.)

      George Piazza, of New Orleans, attorney for plaintiff, appellee.
    L. R. Hoover, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

Plaintiff sues defendant, a real estate agent, for $168.75, under the following circumstances:

Plaintiff entered into an agreement to buy certain lots belonging to Miss Esther R. Denekamp, and deposited with defendant on account of the purchase price $150. Without taking title to the lots the plaintiff contracted to sell them to one H. O. Lehman, who deposited with defendant for account of plaintiff, the sum of $225, making a total deposit resulting from both transactions of $375. Neither sale was consummated. Both Miss Denekamp and Mr. Lehman agreed in writing that plaintiff should have the balance remaining from each deposit after the payment of the commission due defendant. The commission on both transactions amounted to $206.25, leaving a balance in his hands of $168.75, the amount claimed in this suit.

On the argument of the case in this court, defendant’s counsel admitted that plaintiff was entitled to the balance of the Denekamp deposit remaining in defendant’s hands, but, contended that she was not entitled to the remainder of the Lehman deposit, for the reason that Lehman had subsequently repudiated his written instructions with reference to paying the deposit over to plaintiff and that the defendant was entitled to be protected as against any claim which Lehman might present.

We find in the record the following over the signature of Lehman:

“The said H. O. Lehman further agrees to release the firm of Arthur Dicks of all responsibility pertaining to the above and hereby autnorizes the said firm of Arthur Dicks to turn over to the said Miss Leah Heine, the deposit herein above mentioned and described.”

Lehman was not called as a witness and did not intervene in the suit.

We see no reason why the balance of the Lehman deposit as well as the Denekamp balance should not be delivered to the plaintiff. The trial court was of this opinion and rendered judgment accordingly. We see no error in its judgment and consequently it is, for the reasons assigned, affirmed.


text:
    No. 11,830
    Orleans
    L. KLEIN, INC., v. ESCARRA
    (May 27, 1929. Opinion and Decree.)

      Rittenberg and Rittenberg, of New Orleans, attorneys for plaintiff, appellee.
    Wm. W. Ogden, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

The plaintiff corporation is in the real estate business and brings this suit against defendant for a real estate commission in the sum of $175 and for attorney’s fees in the sum of $50. The claim is based upon the failure of defendant to comply with the terms of an offer of purchase of certain real estate and his resulting obligations to pay the agent’s commission, under the customary form of contract used by real estate agents in this community. The terms of the offer were “$4,375.00 cash. Homestead loan of $2,-900.00 with Homeseeker’s Homestead can be assumed by Purchaser.”

The defense is two-fold: First, that the “Homeseeker’s Homestead Association refused to allow, recognize, or take cognizance of the assumption of this loan by defendant herein, and that, therefore, said contract is of no binding effect whatever upon defendant.” Second, that “if the above terms of said contract are not' construed by the court as clearly conveying the thought so expressed, but that the clause in question only intends to' signify that this assumption of loan may be made by the purchaser, then in this event and in this contingency, the contract is null and void as containing a potestative condition.”

As to the first defense, to the effect that the homestead association refused to allow the assumption of the mortgage loan of $2,900, we observe that its consent was not necessary, and that it was powerless to prevent the defendant’s assumption of the mortgage. What defendant means to convey is that the homestead association refused to accept defendant’s obligation in lieu of that of the mortgagor by cancelling the existing mortgage and substituting therefor another executed by defendant as owner of the property. The homestead was not obliged to do this, nor is there anything in the contract which gives the defendant the right to insist upon it. We do not follow counsel in his characterization of this suggestion as “chaotic, absurd or unbusinesslike,” and we see no reason why an intending purchaser might not be willing to assume a mortgage held by a homestead as a part of the purchase price, which he obligates himself to pay for the property, even though the homestead refuses to release the former owner, his vendor.

As to the second defense, to the effect that the contract contains the potestative condition and is therefore void, (Titus vs. Cunningham et al., 7 La. App. 37, and Jacobs vs. Grasshoff, La. App. Advance Reports 32, page 68, 120 Sou. 417 (No. 3) of March 23, 1929), we believe it to be equally unfounded. An agreement to pay cash, with the qualification that a homestead loan can or may be assumed by the purchaser, gives the purchaser the option of paying all cash, or of assuming the existing mortgage indebtedness pro tanto. There is no condition involved in such an agreement, either • potestative or otherwise.

The trial court was of the opinion that the case was with plaintiff and rendered judgment as prayed for, and we are of opinion that its judgment was correct and, for the reasons herein assigned, it is affirmed.


text:
    No. 11,627
    Orleans
    DOUGLAS v. PETTIT
    (March 4, 1929. Opinion and Decree.)
    (April 1, 1929. Rehearing Refused.)
    (May 21, 1929. Writ of Certiorari and Review Refused by Supreme Court. )
    Paul W. Maloney, of New Orleans, attorney for plaintiff, appellee.
    Andrew M. Buchmann and Henry W. Robinson, of New Orleans, attorneys for defendant, appellant.
   JONES, J.

Plaintiff sues for $25,000 damages for amputation of her left arm, consequent upon blood poisoning alleged to have been caused by the cutting of her left arm in three places, when an upper window sash slipped from her hand and bounded upward with such violence that the glass was broken. She alleges that the defendant, owner of the house, although notified of the dangerous condition of the sash, “due both to the weights of the window being out of line and the fact that there was no putty or other protection to the glass,” failed to see that repairs were made.

Defendant denied alleged negligence and averred as follows:

(1) Plaintiff’s injuries were caused by her carelessness in slamming the sash with great force and striking the glass violently with her arm.

(2) That the house was in good condition at the time it was leased to William Gorman, plaintiff’s uncle and adopted father, and so remained during the entire lease; that the property had recently been examined by a competent carpenter, and the windows and weights were apparently in good condition at the time the plaintiff received her injuries.

Subsequently defendant filed an exception of no cause or right of action and prayed that the suit be dismissed.

The case was tried without a jury, and the court rendered judgment in favor of the plaintiff for $2,000.

Defendant appealed, and plaintiff has answered the appeal and asked for an increase.

The evidence shows that plaintiff, a woman of 31 years of age and 5 feet 5 inches in height, had been living with her stepfather and uncle, William Gorman, on the premises for a great many years, and had been living in the front room, in which this accident happened, for three years prior to the accident, during which time she had lowered this sash at least 60 times without noticing that anything was wrong. The building was an old one and was so constructed that the two windows fronting on the gallery could be used as doors when both sashes were raised, and there was an opening of 10 inches between the upper and lower sashes when the lower sash was down and the upper sash was raised as far as possible. On the afternoon of August 17, 1927, .about 4:30, during a violent rainstorm, plaintiff was pulling the upper sash down, and, before she had fastened the catch to hold it so that its bottom part should be even with the upper part of the lower sash, she says it slipped from her hand and bounded up with such violence that the pane, which consisted of one solid piece of glass, was broken by the impact, and when she heard the consequent noise she stepped back and threw up her left arm to protect her face, but in spite of her precautions her left arm was badly cut in three places—one on the outside of the arm about two inches above the elbow, another on the inside of the arm just over the center of the biceps, and the third on the outside of the arm about half the distance between the wrist and the elbow. She was taken immediately to the Mercy Hospital in this city, where her injured arm was bandaged by Dr. Leckert, who describes her injuries as follows:

• “She had three, a very large one on the back, posterior part, of the upper arm, I should judge about 4% or 5 inches in length; a smaller one about an inch; and a third one, where the glass went in, in the region of the outer part of the elbow.”

A piece of glass 4% inches in length was extracted from her arm about a week after the injury; it had been covered by muscle and was deep down in the forearm. This was not discovered at the time of the injury. It was only on packing the wound that it was discovered and taken out.

She developed gangrene of the hand, and amputation resulted.

Gorman, the stepfather of plaintiff and tenant of the house, testified that he could recall no complaint to the defendant about this particular window, and in this he was confirmed by his wife, Mrs. Gorman.

Andrew Williams, the carpenter who took the weights out of the window, testified that one weighed 15 pounds and the other 16; that he had put brads and a new sash cord in the window in the fall of 1926, but had not used putty because the owner said “it would take too much”; that the brads held the glass sufficiently tight while he was working, and that neither Mrs. Douglas nor Mrs. Gorman, when they saw him working on the window, had said anything about the weights.

Cassanova, a contractor, testified that, although he regarded a difference of one pound in the weights as serious, if the window had been used for 25 years without any complaint on this point he would say that it was pretty good for the purpose.

Burns, a witness for the defendant and a general contractor for the past 35 years specializing in frame buildings, testified that the sash which was produced in court weighed 10 pounds, and that the glass, a part of which was also produced in court, weighed 19% pounds, and that it would require about a pound and a half of putty, which would make the total weight of the upper sash 31 pounds exactly, equal to that of the weights; that a difference in weight of one pound under the circumstances would not make any difference; that the glass is held in the sash by glazier’s points and that putty is used to keep the rain and wind out; that he had examined the sash and found three glazier’s points on each side and two at the bottom. He could not tell about the top because the putty was still in place there. His testimony further shows that it would take ‘‘an awful slam” to break the glass. The frame was then produced in court, and it was admitted by counsel that the sash showed that there were three points on the bottom, four on the right, four on the left, and four on the top, and that they .were all glazier’s points and there were no brads. It was likewise agreed that the sash showed the following putty remaining: On the right side, 6 inches of putty, 3 inches from the top, none for 8 inches, then putty for 2 inches, none for 8% inches, then one inch of putty; none to the bottom. On the bottom there was only 2 inches of putty. On the left side none 4 inches from the top; then 24 inches of putty; then none to the bottom; on the top solid putty all the way across. Practically all the space bare of putty on the right side is clean and new, showing recent removal of putty, apparently. Where the putty is missing on the right side the exposed part of the frame is not weather-beaten, and the bottom appeared to be slightly weather-beaten.

On cross-examination Burns repeated that a difference of 1% or 2 pounds under the circumstances, between the weights, would have a tendency to make the window pull and stop, but it would not take much to start it again; that it would take a very severe blow to break a glass of the thickness shown in the pieces offered.

Scahill, a brother of defendant and her local agent, testified that no complaint had ever been made to him about this window, and in September’, 1926, Gorman had said that some of the windows needed new cords and asked to have them repaired, and he had hired Williams to do this; that Williams did not say anything about putty to him, as he had instructed Williams to overlook the building and put in good repair, Williams had worked there four or five days and had been paid ?17; that he and his sister’s family had lived in the property for 16 years, after which possession was taken by the Gormans, who had occupied the property ever since, and during the entire time had made no complaint about this window; that after repairs were made by Williams he had visited the property and was told by Mrs. Gorman that she was well pleased with the work the carpenter had done.

Defendant argues here that its exception of no cause of action should be sustained.

In Harris vs. Tennis, 149 La. 295, 88 So. 912, the court said:

“Plaintiff alleges that, owing to the rottenness of the window frame of the house leased by defendant to her husband, in which they lived, the appliance for holding up the sash gave way, that the sash fell upon her hand and crushed it, and she sues the defendant lessor in damages. She founds her action upon the following article of the Civil Code:
“ ‘Art. 2717. The expenses of the repairs, which unforeseen events or decay may render necessary, must be supported by the lessor, though such repairs be of the nature of those which are usually done by the lessee.’
“But the case falls under article 2716, which reads:
“ ‘The repairs, which must be made at the expense of the tenant, are those, which during the lease, it becomes necessary to make: * * *
“ ‘To windows, shutters, partitions, shop windows, locks and hinges, and everything of that kind, according to the custom of the place.’
“Inasmuch as' the person in default for failure to make the repair was plaintiff’s husband, she cannot recover of defendant. The trial court so held.
“Judgment affirmed, at appellant’s cost.”

The dissenting opinion of Judge Monroe in this case went thoroughly into the distinction between repairs due to decay and other repairs, with which the majority disagreed, showing that distinction was well-considered and overborne.

Although the above analysis of the evidence in this case seems to bring it within the purview of the doctrine laid down by the Supreme Court in the decision just quoted, and therefore to make the exception of no cause of action urged by the defendant of very great force, we prefer to pass over that point and decide the matter once for all on the merits.

" In the case of Brodtman vs. Finerty, 116 La. 1104, 41 So. 329, the Supreme Court said:

“The head of the family represents the family. If he, a tenant, is without a right of action because of his failure to make the repairs, although he had the right to make them, the members of the family occupying the dwelling are equally as concluded.”

Plaintiff has entirely failed to prove any faulty construction in the window. On the contrary, the evidence which she offered as to the difference in the weights ' would seem to show that this slight difference would tend to retard the motion of the upper sash rather than accelerate it. The fact that she had occupied the room for so many years, and that her adopted father and mother had lived there without complaint for a long time, confirms our conclusion as to the correct construction of the window. Furthermore, we are at a loss to understand how the cuts in plaintiff’s arms • could, have been caused by the falling glass if she was holding her arm over her eyes as she testifies.

For above reasons, the' judgment is reversed and the suit of plaintiff is dismissed, at her cost.


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    No. 11,081
    Orleans
    STEWART v. MACHIN
    (May 27, 1929. Opinion and Decree.)

      Louis E.. Jung, of New Orleans, attorney for plaintiff, appellant.
    Solomon S. Goldman, of New Orleans, attorney for defendant, appellee.
   JANVIER, J.

The legal question presented in this case is identical with that in the matter entitled Samuel B. Stewart vs. C. C. Clay, No. 11,080 of the docket of this court, which we on this day, to-wit: May 27, 1929, decided. The facts are also almost identical. The question involved is whether or not the Heatrola home heater sold by plaintiff to defendant complied with the warranties and promises made.

It is very evident that it did not do so. The testimony is convincing that the heater produced practically no heat at all. Plaintiff’s salesman admits .that he went to Miss Machin’s house and examined it to determine what type of heater she should have, and whether her house could be satisfactorily heated by the heatrola, so that it appears in this case, as it did in the Clay case, that defendant, in purchasing the heater, relied entirely on the recommendations and warranties of plaintiff and plaintiff’s salesman.

The only distinction between this case and the Clay case is that in Miss Ma-chin’s residence, it was contended that the flue was defective. It appears, however, that the flue was carefully examined by plaintiff’s employees before the heater was installed and they found nothing wrong therewith. It also appears that another stove was connected later to the same flue and that this other stove worked perfectly.

We are of the opinion, as we were in the case of Stewart vs. Clay, that extravagant warranties were given and that the 'heater did not comply therewith.

The trial judge rejected plaintiff’s demand and rendered judgment in favor of defendant, in reconvention, for $55, the amount which she had paid on the (purchase price of the heater. We think this judgment was correct and, for the reasons given in the matter of Stewart vs. Clay, above referred to, it is ordered, adjudged and decreed that the judgment appealed from be and it is affirmed, at the cost of appellant.


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    No. 11,657
    Orleans
    GLASER v. THE N. O. T. & M. RY. CO. ET AL.
    (March 4, 1929. Opinion and Decree.)
    (April 1, 1929. Rehearing Refused.)
    (May 21, 1929. Writ of Certiorari and Review Refused by Supreme Court.)

      Prowell, McBride and Ray, Welton P. Mouton, of New Orleans, attorneys for plaintiff, appellee.
    Lemle, Moreno and Lemle, of New Orleans, attorneys for Illinois Central R. Co., defendant, appellant.
    Wm. H. Talbot, of New Orleans, attorney for New Orleans T. & M. Ry. Co., defendant, appellant.
   JONES, J.

Plaintiff sues for $1,185 as damages to 47 head of mixed cattle, shipped by him on March 1, 1927, from Lottie, La., to C. H. Rice & Son, in New Orleans, over the lines of the New Orleans, Texas & Mexico Railway Company. He alleges that the cattle, which were in good condition, cost him $1,347, but when car reached New Orleans on March 3, 1927, 8 of the cattle had died in transit, and between that day and March 11, 1927, when cattle were sold, 19 more died, all the deaths being due to the delay and negligent handling of the car by the railroads in not feeding and watering them; the remaining cattle, 20 head, when sold, netted the sum of $161.45, which amount, deducted from the cost price, caused the above-stated loss.

After filing the suit against the New Orleans, Texas & Mexico Railway Company plaintiff, having discovered that the Illinois Central Railroad Company and the New Orleans, Natalbany & Natchez Railway Company had participation in the shipment, filed a supplemental petition, making the latter two railroads parties defendant, and praying for solidary judgment against all three.

The railroads denied negligence and averred due care in handling the shipment. Both the New Orleans, Texas & Mexico Railway Company and the Illinois Central Railroad Company pleaded exemption of liability under the livestock contract from damages caused by disinfection of cattle, and averred that the cattle died as a result of dipping in an arsenic solution, for which they were not responsible.

The New Orleans, Natalbany & Natchez Railway averred that it received the car of cattle from the Illinois Central Railroad Company at Natalbany, and that it only moved the car 3 miles to a dipping vat at Woodhaven, where the cattle were unloaded and dipped under the direct supervision of the plaintiff; that it then hauled the cattle back to Natalbany, where their responsibility ceased.

The trial judge allowed plaintiff a solidary judgment for $1,185.55 against the New Orleans, Texas & Mexico Railway Company and the Illinois Central Railroad Company, and dismissed plaintiff’s suit against the New Orleans, Natalbany & Natchez Railway Company, from which judgment of dismissal plaintiff Hid not appeal.

The record shows the following:

The cattle were loaded at 4 p. m., March 1st, at Lottie, La., on the lines of the New Orleans, Texas & Mexico Railway, and were promptly moved by this railway to Baton Rouge, where the car was received by the Yazoo & Mississippi Valley Railroad Company, for account of the Baton Rouge, Hammond & Eastern Railway at 7:09 p. m., March 1st. The Baton Rouge, Hammond & Eastern moved the car out of Baton Rouge for Hammond at 10:55 p. m. on its first train. Ordinarily a shipment would go from Lottie to Baton Rouge, and thence direct to New Orleans over the lines of the Yazoo & Mississippi Valley Railroad, but these cattle were sent via Hammond, to be dipped, on instructions from plaintiff.

Plaintiff complains of 3-hour delay at Baton Rouge, but in view of the fact that this route was seldom used, and the cattle were shipped on the first train, we do not find that delay unreasonable. The shipment, which left Baton Rouge at 10:55 p. m., arrived at Hammond, 45 miles distant, at 12:45 a. m., March 2d, but did not leave there until 3 p. m. Here the first and perhaps only serious delay occurred, due to the fact that the agent of the New Orleans, Texas & Mexico at Lottie noted on the waybill that the car was to stop at Central Dipping Station, Hammond. This was an error, as the dipping station is not at Hammond, but at Woodhaven, La., on the lines of the New Orleans, Natalbany & Natchez Railway Company, 3 miles from Natalbany, the nearest point oii the Illinois Central Railroad. The car finally reached Natalbany at 3:15 and was there delivered to the New Orleans, Natalbany & Natchez Railway, fot transportation to Woodhaven, where the dipping vat was located. The ear reached the dipping vat at 4:20 p. m., and was there turned over to the plaintiff, Dr. Warren, the owner of the vat, and Dr. Ward, inspector of the Louisiana live stock sanitary board, and also agent of the United States Bureau of Animal Industry,' and one Bankston, who had been employed by plaintiff to assist in dipping the cattle.

These gentlemen, who had been requested by Glaser to be present, that the cattle might be quickly dipped, had no connection with the railroads.

At Natalbany one calf was found dead in the car, but the rest of the cattle were in fairly good condition, according to plaintiff’s own admission, except that they were tired from the trip. Though there was running water in the pen where the cattle were placed, all the witnesses say that they did not see them drink.

Dr. Ward testifies as follows: Cattle reached the vat about 4:30 p. m. He then told Glaser that it was dangerous to dip the cattle so late in the afternoon, as they would not have time to dry before shipping; but Glaser insisted on so doing, as he wished to get the cattle to New Orleans for the market of March 4th. Accordingly the cattle were dipped at once, and, after having remained in the shipping pen about an hour, they were reloaded, still wet with arsenic solution, and started- on their return journey to New Orleans; that cattle should be dipped in the morning, and they should be allowed 2% to 3 hours to dry out before loading; otherwise, they may absorb the arsenic solution, if they are packed in a car while wet.

Dr. Warren, owner of the vat, and Banks-ton, who was employed by Glaser to assist with the dipping, both confirm Dr. Ward as to what happened at 'the dipping vat, though Glaser denies it in part.

The car which left Woodhaven for Natalbany at 6:10 reached New Orleans on March 3d, at 10:45 a. m., having been stopped at Hammond 4y3 hours while waiting for a through train, and at Harahan 3 hours for orders from the Southern Railway official, with which railway the Illinois Central shares use of switch track to the stockyards.

The total distance covered by the cattle was 131 miles, and the time consumed was 26 hours.

When cattle arrived at the yards, one yearling was down and in dying condition, and 6 others were dead in the car. The yearling died before they could be unloaded, and 19 more died while in the stock pens of the consignee before the balance were sold on March 11th for $368.

Dr. Moore, a veterinarian of 30 years’ experience, who was requested by the Illinois Central Railroad to inspect the carcasses of the dead cattle, testified that he performed a post mortem on 7 of the cattle on March 3rd, about 3 or 4 hours after the arrival of the car, and that he found the cattle had died from arsenic poisoning; that later he performed another post mortem on 6 more of the cattle, and fouhd that they had died from the same cause; that in performing these post mortems he had removed the viscera from the cattle, and had subjected the viscera of two or three cows to a chemical test, which showed arsenic reactions, but that he had not conducted experiments on all 13, because the contents of the stomach of the others were in the same condition as those of the two actually tested; that arsenic ordinarily affects cattle in 12 to 54 hours, and that they absorb either by drinking the solution or through the skin, by being packed in the cars while damp.

Although plaintiff and another witness testify that these cattle had been fed on cottonseed meal for some time before they were shipped, and that they were in good condition when placed on the car, the evidence of all the railroad men and of all the stockyard men, who saw the cattle later on, is to the effect that they were very poor, and in very bad physical condition, and on this point the preponderance of the evidence is certainly with the defendant.

Plaintiff contends that the cattle should have been fed and watered while in the custody of the railroads, but the railroads contend that a 36-hour release was signed by shipper, and we think their- contention is sustained by the following evidence.

The waybill bears the printed notation, “Has 36-hour release been signed and filed at point of origin? (Yes or No),” followed by the typewritten word “Yes.” The freight bill introduced in evidence by plaintiff, in the record marked for identification “P 5,” bears the notation, “36-Hr. relse. signed A 983235 IC 2,” and nowhere in the record is there any denial that a 36-hour release was signed.

Plaintiff’s able attorney, both in his argument and brief, emphasizes the fact that this suit is brought in tort under article 2754 of the Civil Code, which provides that carriers are liable for damage unless they prove that such damage was caused by accidental or uncontrollable events, and he denies that the limitation 'in the live stock contract is controlling, on the ground that such limitation was granted without any consideration.

We do not think that it matters much whether the suit be considered one in tort or one on the live stock contract. The only effect of its being considered a tort action, under article 2754 of the Civil Code, is to place the burden of proof of due care on the railroad company, and the above analysis of the evidence shows conclusively that they have borne that burden in this case. In fact, the Supreme Court has held that this burden is sustained when the carrier shows that stock has been moved promptly, without any jolts or unusual rough handling. Simms & Son vs. N. O. & N. E. R. Co., 122 La. 268, 47 So. 602. We are convinced that the evidence shows that the proximate cause of the death of the cattle was arsenic poisoning, and that the unusual delay in handling the shipment was only a remote cause.

The limitation in the live stock contract, to the effect that the railroads would not be liable for injuries caused by dipping or disinfection, is valid. It is not the duty of common carriers in this state to take charge of the dipping of cattle, and such a duty is not imposed by article 2754 of the Code. When the railroad agreed to transport the cattle to Natalbany for dipping, there was a valid consideration for this limitation.

In the case of McHenry Horse Exchange vs. Illinois Central R. Co., 148 La. 49, 86 So. 649, where suit had been brought for the death of a horse, under article 2754 of the Civil Code, just as in this case, the Supreme Court, after ■ full consideration of all the authorities said:

“The contractual limitation entered into between the parties .relieved the railroad company from the loss of the death of live stock, unless the same was caused by negligence on the part of the railroad company, its agents, or employees.”

In the case of Memphis & C. Railroad Co. vs. Reeves, 10 Wall. (77 U. S.) 176, 19 L. Ed. 909, it was held that an unreasonable delay in transporting a shipment did not make the railroad liable, where the proximate cause of the damage to the goods was a flood of the Tennessee river, which could not have been foreseen.

The record convinces us that Glaser superintended the dipping of the cattle, and that it was on his instructions that the cattle were loaded into the car, while still wet with the arsenic solution. Had he ordered the cattle to be detained at Wood-haven until they were thoroughly dried out and properly fed and watered, then he would have fulfilled his full duty to minimize his damages. On this point the Supreme Court recently, in the case of Sheridan vs. N. O. G. N. R. R. Co., 9 La. App. 308, 119 So. 530, said:

“Whatever damage the plaintiff may have suffered is due to the fact that he did not avail himself of the opportunity to save himself or to minimize his threatened loss.”

This case seems to us particularly applicable here.

For above reasons, the judgment is reversed, and it is now ordered that plaintiff’s suit be dismissed, at bis cost in both courts.


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    No. 11,102
    Orleans
    POLLET v. ROBINSON LUMBER CO.
    (May 27, 1929. Opinion and Decree.)
    W. W. Wright, of New Orleans, attorney for plaintiff, appellant.
    Warren V. Miller, of New Orleans, attorney for defendant, appellee.
   JANVIER, J.

Plaintiff alleges that he received injuries while driving his Ford automobile along the Jefferson Highway, after dark, on January 5, 1927. In his petition he avers that he was operating his car at a moderate rate of speed, that the lights were burning, and that, desiring to pass another automobile which was proceeding along the highway in front of him, he sounded his horn and then pulled slightly to the left to go around the other car. He then -alleges that “as he attempted to straighten out on said road (he) discovered immediately in front of him a team of mules, harnessed but unhitched to any vehicle, one of which mules was being ridden and driven by a negro on the left hand side of said road in the direction of Baton Rouge, and at which point in said road said mules collided with petitioner’s automobile with the result that petitioner's auto or car was overturned.”

This petition was met by an exception of no cause of action, which the lower court correctly sustained.

Defendant was within his rights in driving his mules along the highway. No applicable law or municipal ordinance requires that mules not hitched to a vehicle shall be accompanied after dark by a light.

However, if it be held that to ride a mule along the highway without a light is negligence, even in the absence of a statute or an ordinance, still, under the jurisprudence of Louisiana, it is contributory negligence for a motorist to operate his car at such a speed, or in such a manner, that he cannot stop it within the distance illuminated by its lights. As this court said in Parlongue vs. Leon, 6 La. App. 18:

“One restriction on the speed of an automobile at night is that the chauffeur shall keep his car under such control and operate it at such speed only that he can stop his car and avoid an obstruction within the distance that the lights illuminate the highway.”

In the case from which we have just quoted, the facts were that plaintiff had stopped his car along the highway for the purpose of making repairs. There were no lights on it and it was run into by defendant’s car. In discussing the question of the proximate cause of the collision, the Court said:

“It is negligence to stop an automobile upon the highway after dark without headlights or back lights. But this negligence does not justify another automobile to run into it negligently, nor absolve it from responsibility if, by the use of ordinary care, the collision could have been avoided. The question whether the plaintiff had lights in front or the rear of his automobile at the time of the accident is asserted by plaintiff and denied by defendant. Assuming that the plaintiff had no lights at all, he can fail to recover only if defendant, in the absence of those lights, could no~t have avoided the collision by the exercise of proper care.”

We call attention to the fact that in the above case the word “not,” between the words “could” and “have,” does not appear in the printed reports. It does appear, however, in the original opinion rendered, and without the decision is not understandable.

Conceding, then, arguendo, that the driver of the mules was negligent in not having a light on them, the contributory negligence of plaintiff himself was the proximate cause of the collision, because, had he had his car under such control as would have permitted his stopping it within the distance illuminated by his lights, the accident could not have occurred.

. For these reasons, even if it be conceded that every allegation and every statement of fact in his petition is true, he could not recover, and no good purpose could be served by allowing the case to go to trial on the merits.

It is therefore ordered, adjudged and decreed that the judgment appealed from be and it is affirmed, at the cost of appellant.


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    No. 11,790
    Orleans
    CADILLAC SERVICE GARAGE v. SHUSHAN
    (May 27, 1929. Opinion and Decree.)

      Herman L. Mildo, of New Orleans, attorney' for plaintiff, appellant.
    H. W. Kaiser and John E. Hammel, Jr„ of New Orleans, attorneys for defendant, appellee.
   JANVIER, J.

Norbert Conzelman, doing business under the name of Cadillac Service Garage, sues defendant for $212.94, claimed as a balance due for overhauling defendant’s Cadillac automobile. . A contract was entered into under which the repairs were to be made, including the furnishing of new parts. The contract, except for the price thereof, was contained in two letters written by plaintiff to defendant, and which letters reads as follows:

“Jan. 23/28
“Mr. Abe Shushan «522 Canal St.
“Dear Sir:
“Inclose you will find copies estimates for your 63 Cadillac Sedan all estimate stating all operations for motor; chasses and upholstery, with all this work I will guarantee to be first class and have your car in a number one shape I find all these items mentioned in estimates necessary, unless you care to scratch off what you see fit.
“Yours truly
“Cadillac Service Garage “N. Conzelman 1427 Washington Ave.”
“Mr. Abe Shushan “522 Canal St “New Orleans.
“Dear Sir:
“This is to certify that I will garentee all work done by me on your 63 Sedan Cadillac, and to replace anything do to poor workmanship on my fault, with the understanding that chains and valves after one year is no claim, and that all work should be in first class shape for (2j years.
“N. Conzelman, “Cadillac Service Garage “1427 Washing Ave”

Plaintiff contends that the price agreed upon was $327.75, while defendant maintains that it was $305.15.

The parts were furnished and installed and the repair work was done. Immediately after defendant received his car from plaintiff, who had had it under repairs for about a month, it began to give trouble, and, for the next four months, defendant was constantly _ returning it to plaintiff and complaining about its poor condition and operation. On the total bill ,of $327.75 defendant had been allowed a credit of $14.81 and $100 cash paid on account. Plaintiff constantly attempted to repair the defects, but finally it became apparent that he could not do so and defendant traded his car in on account of the purchase price of a new one, which he bought from the Romain-Manford Cadillac Company. In making the trade the Romain-Manford Company went thoroughly over defendant’s car and advised him that it would cost $152.75 to put it in condition and they therefore deducted this amount from the trade-in allowance. Defendant thereupon attempted to settle with plaintiff on the following basis:

Contract Price__________________________________________$305.15

Allowance ....................................~$ 14.81

Credit -------------------------------------------- 100.00

Amount necessary to put car in condition -------------------------- 152.75

-- 267.56

Balance due ------------------------$ 37.5,9

This balance defendant deposited in the registry of the court and admitted his liability therefor:

Plaintiff contends that he was at all times ready and willing to put the ear into perfect condition, but that the defendant made it impossible for him to do so by reason of the fact that he traded the car in to another dealer.

We are of the opinion that defendant was well within his rights in disposing of the car. He had left it with the plaintiff for about a month and, during the following four months, had often turned it over to plaintiff to complete the repair work. He was not under obligation to leave it with him permanently. In view of the fact that the repairs were not satisfactorily made within a reasonable time, and that, as a result of the condition of the car, the value thereof was $152.75 less than it should have been, it seems to us that the defendant acted properly in making the deductions which he did. Had defendant made proper showing of tender of the balance due, we would feel justified in holding plaintiff liable for the costs, but this issue was not raised, and therefore, we think it proper merely to affirm the judgment.

It is therefore ordered, adjudged and decreed that the judgment appealed from be and it is affirmed, at the cost of appellant.


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    No. 11,730
    Orleans
    AETNA CASUALTY CO. v. LEE
    (April 29, 1929. Opinion and Decree.)
    (May 27, 1929. Rehearing Refused.)
    St. Clair Adams, Jr., of New Orleans, attorney for plaintiff, appellant.
    Marion Seeber, of New Orleans, attorney for defendant, appellee.
   JANVIER, J.

Plaintiff, an insurance company, issued a policy of collision insurance to one, Carl S. Kennedy. This policy provided that in the event of damages to Kennedy’s car by collision the company would pay to him the amount of such damage. When Kennedy’s automobile was damaged as a result of a collision with the automobile, owned, and driyen by defendant, plaintiff company paid to Kennedy the amount of his loss, $175, and, after being subrogated to all of Kennedy’s rights against Lee, filed this suit to recover from Lee, the amount which it had paid to Kennedy.

The accident occurred on the corner of Decatur Street and Esplanade Avenue. Kennedy’s car was being driven on the upper side of Esplanade Avenue towards the river. Defendant’s car was being driven up Decatur Street, across Esplanade Avenue, Kennedy contends that about a half block before he reached the intersection he saw Lee’s car on the other side of Esplanade Avenue, it having, at that time, not yet entered the other driveway, and, that he assumed that Lee would stop before entering the other driveway or, at least, slow up and then stop on the neutral ground before crossing the driveway on which his, Kennedy’s car, was approaching. He claims that he based this assumption on the fact that such action was required by the provisions of Ordinance No. 7490, being the Traffic Ordinance of New Orleans. He further states that when his car had reached the intersection and was about half way across, that Lee’s ear dashed across the neutral ground at a very fast rate of speed and crashed into the left rear portion of his car.

Lee claims, and his testimony is corroborated by his wife, who was riding with him, that he stopped, before crossing the lower side of Esplanade and that again, when he was on the neutral ground, he stopped and blew his horn and that he saw no vehicle except Kennedy’s car, which, at that time, was about a half block away and approaching at a speed of about 25 miles an hour. That he then slowly proceeded to cross the upper roadway of Esplanade Avenue on his way up Decatur Street. That when he was in the roadway and about half way across, noticing Kennedy coming at a very fast speed, he came to a dead stop but that Kennedy in an effort to dash around the front of his car, side-swiped him, the left side of Kennedy’s car striking the front of his car.

There seem to have been no other eye witnesses to the accident itself, but there were witnesses who came up almost immediately afterwards and who have thrown considerable light on the question of how the accident happened, by testifying as to the position in which the two cars were found after the occurrence. These witnesses were Wallace R. Cupsten, á traffic officer, and H. Sandrock, an employee of an automobile company, who happened to be passing a few minutes after the accident.

According to these witnesses, and their testimony is not contradicted, after the accident the Kennedy car, which it will be remembered had been proceeding along Esplanade Avenue, was found turned over on its side, on the uptown river corner sidewalk, with its front end facing towards the neutral ground of Esplanade Avenue and with its rear end partially in Decatur Street. The Lee car was facing up Decatur Street, slightly at an angle and the front was jammed into the left side of the Kennedy car.

It seems absolutely impossible that Lee’s story of the accident can be the correct one. Because if his car stopped in the roadway and was struck while stopped, we cannot understand how it was later on found with its front jammed against the left side of the Kennedy car, and partially in Decatur Street, nor can we understand how the Kennedy car, even conceding that it was attempting to curve around the front of the Lee car, could with its left side have side-swiped the Lee car and then pulled both of them near to tlie sidewalk into the position in which they were found. We think it manifest that Lee was greatly at fault and that he dashed headlong into the side of the Kennedy car as it was crossing the intersection.

We now come to the question of whether or not plaintiff can recover, even though Lee was, as we have stated, at fault. It is contended that Kennedy was negligent in that he admits he was driving at a speed of about 25 miles an hour, which, it is contended, was violative of art. 2, section 1, subsection “a” of the Traffic Ordinance,' referred to above. This article reads as follows:

“FIFTEEN-MILE ZONE. Within the area bounded by the River, Howard Avenue, North and South Rampart Streets and Esplanade Avenue, also around Lee Circle, Claiborne Circle and Desaix Circle, and all curves and circles in streets and thoroughfares not affected by Sub-Paragraph (2) Paragraph 2 of this Article. No vehicle shall be driven at a greater speed than fifteen (15) miles per hour, excepting on Camp Street, Carondelet Street, Magazine. Street, South Peters Street, St. Charles Street and Tchoupitoulas Street, where a maximum speed of twenty (20) miles an hour shall be permissible.”

We are asked to hold that the fifteen-mile zone created by that article includes Esplanade Avenue and that, therefore, since Kennedy was on Esplanade Avenue, he was within the fifteen-mile zone and therefore, his speed of twenty-five miles was a violation of the ordinance. It seems to us that whether or npt Esplanade Avenue, being one of the boundaries mentioned should be included in or excluded from the zone is of no great importance because it does not appear to us that the speed at which the Kennedy car was being driven was a contributing factor to the accident. It should be remembered that his car was run into from the side by the Lee car and we do not believe that the fact that the Kennedy car was going 25 miles per hour instead of 15 had any causal connection with the subsequent happening.

So far as the amount of damage is concerned the evidence is very meagre but there is sufficient to substantiate the claim of plaintiff.

For the reasons assigned, the judgment appealed from is therefore, annulled, avoided and reversed and it is now ordered that there be judgment in favor of plaintiff and against defendant in the full sum of $175 with legal interest from judicial demand and for all costs.


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    No. 11,584
    Orleans
    BREAUX v. CANGELOSI
    (May 27, 1929. Opinion and Decree.)

      L. W. Cockfield, of New Orleans, attorney for plaintiff, appellant.
    Gordon Boswell, of New Orleans, attorney for defendant, appellee.
   JANVIER, J.

This _ case results from an automobile collision at the corner of Toledano Street and St. Charles Avenue, at about six o’clock in the evening on November 17, 1927.

Wlien plaintiff, driving up St. Charles Avenue, reached the corner of Toledano Street he turned to his left to cross the neutral ground and to enter Toledano Street on his way towards the river. Just after leaving the neutral ground his car was struck in the right side by an automobile driven by defendant. He brings this suit for damages sustained by his car and defendant, contending that the fault was entirely in the plaintiff, reconvenes for the damages to his car.

It is admitted that the amount claimed by each party is correct, but each contends that the other is liable. Plaintiff maintains that defendant was driving down St. Charles Avenue behind a car driven by Robert Verges and that when Verges stopped alongside the neutral ground to allow plaintiff to pass, defendant, instead of also stopping, dashed past the Verges car at a speed of 25 or 30 miles an hour and crashed into plaintiff’s car. Defendant, on the other hand, contends that plaintiff did not stop and did not blow his horn before leaving the neutral ground but, on the contrary, suddenly and without warning turned and crossed the neutral ground and emerged into the traffic which was going down St. Charles Avenue.

As is usual in automobile collision cases it is important to determine who had the right of way. The general Traffic Ordinance of the City of New Orleans is No. 7490, Commission Council Series. The particular portions of that ordinance which are applicable are paragraphs a, b, and d of Section 7 of Art. I.

Under these paragraphs vehicles on St. Charles Avenue are given the right of way over other vehicles crossing the neutral ground except that vehicles crossing the neutral ground may obtain the right of way by complying with the provisions and requirements of paragraph d, which reads as follows:

“(d) On streets and avenues having neutral grounds and carrying street car lines, vehicles crossing such neutral grounds shall have the right-of-way to complete the crossing of the roadway of such street or avenue under the following conditions:
“Provided the vehicle shall come to a full stop when about to leave the neutral ground and enter the roadway, shall signal with horn, and give opportunity for approaching vehicles in the roadway to come to a stop; it being the intention of this provision to require vehicles in said roadway to stop upon receiving reasonable warning in order that vehicles standing on the neutral ground shall be permitted to complete the crossing of or turning into the roadway.”

It is apparent then that plaintiff could have obtained the right of way over defendant’s car by stopping on the neutral ground and by blowing his horn and by giving the opportunity to stop to defendant and others who may have been approaching.

The evidence of plaintiff and of his witnesses show that he did not do this. He admits that he did not blow his horn. On this point he testifies as follows:

“Q. Did you blow your horn when you crossed the street?
“A. No, I did not.”

That he did not stop while on the neutral ground or before proceeding from the neutral ground across the roadway is testified to by his witness, Verges, who, in referring to plaintiff’s car, says:

“Q. Did the Chevrolet car stop?
“A. I did not see him exactly stop but he did slow down.”

We are convinced that the true facts are that when the Verges car reached the corner and stopped for plaintiff’s car to pass, defendant’s car was a few feet diagonally behind it, that is, a little more towards the center of the driveway and a little .farther from Toledano Street. The result was that the Verges car hid plaintiff’s car from defendant’s view.

It was to meet such a situation that section (d) of the ordinance to which we have referred was especially designed. Had plaintiff stopped as he should have done and had he blown his horn, defendant would then have been aware of his presence and of his intention to cross and it would have been defendant’s duty to stop.

Since plaintiff’s violation of the ordinance in the particulars above mentioned, and his attempt to take the right of way regardless of the ordinance, was -a contributing cause of the accident, he cannot recover.

Our attention is directed to several cases in which we have held that the right of way is not the right of preemption and that even if a vehicle has the right of way, nevertheless, another vehicle reaching the intersection a reasonable time in advance, may proceed. It is strenuously argued that the case of Vance vs. Poree, 5 La. App. 109, should be controlling here. In that case we said:

“Where 'two automobiles approach an intersection at a right angle, and one of them nearly complete the crossing before the" other arrives at the intersection, the one which almost traverses the intersecting street is entitled to proceed notwithstanding the fact that the other car had the right of way.”

We do not think this case nor the others referred to applicable because it seems to us the two vehicles reached the intersection at approximately the same time and because at the time of reaching the intersection the* one which did not have the right of way was screened from the view of the driver of the other.

In considering the reconventional demand, the fact that Verges stopped his car should, in our opinion, have warned defendant of impending danger and we believe that it was his duty to stop and not to dash past a stopped car, particularly as the stopped car prevented him from ascertaining just what the danger might be.

We feel, therefore, that defendant was also at fault and that had he been driving in a prudent manner the accident might have been avoided, in spite of the negligence of plaintiff. Therefore since defendant contributed to the result he cannot recover.

The trial judge felt as we do that both drivers were at fault. We think he was correct.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be and it is affirmed, at the cost of plaintiff and appellant.


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    No. 11,067
    Orleans
    DE LA VERGNE v. LEVY
    (May 27, 1929. Opinion and Decree.)
    Walter M. Barnett, Jr., and Chas. E. de la Vergne, of New Orleans, attorneys for plaintiff, appellant.
    Edward Rightor, Solomon S. Goldman, of New Orleans, attorneys for defendant, appellee.
   JANVIER, J.

This suit results from an automobile collision. Plaintiff was driving down Carondelet Street, a • little to the right of the center of the street. Defendant was driving out Bordeaux Street towards the lakq and intended to turn into Carondelet Street to go uptown. The two cars met almost in the center of the intersection.

Prom the nature of the damages sustained by the cars it is evident that the left front of the Levy car collided with the right front of the de la Vergne car. de la Vergne and his witnesses state that they had already crossed the center line of Bordeaux Street, when they were struck by Levy’s car, which entered the intersection at a very rapid rate of speed. In other words, they contend that they entered the intersection first and had preempted it.

The fact that it was the front portions of the two cars which came into contact with each other, and the further fact that de la Vergne was able to swerve his car so far to the left that, after the accident, it came to a stop on the upper curve of Bordeaux Street, impels us to believe that his car had not crossed the center line of Bordeaux Street and had not, in fact, preempted the intersection.

There was a high board fence on .the upper river corner of the intersection and this obstructed the view of both drivers.

Since the vehicles entered the intersection at so nearly the same instant that neither can be said to have preempted it, it would appear that that one which did not have the right of way cannot be said to have been free from fault. The right of way was with Levy, since he was approaching from de la Vergne’s right, and since the streets were of equal rank.

The traffic ordinance, C. C. No. 7490, art. 1, sec. 7, par. “c,” provides:

“On all other streets * * * all vehicles approaching intersecting streets from the left shall give right of why to vehicles approaching from the right.”

The testimony leads us to the view that in all probability, de la Yergne was under the mistaken impression, under which so many motorists labor, that Carondelet Street is a right of way street.

At all events, his failure to accord the right of way to the other car was at least a contributing cause to the accident and bars his recovery.

The speed of Levy’s car, as indicated by its progress after the accident, was in all probability excessive, but his negligence in this regard cannot render him liable to one who is himself at fault. We believe that the trial court was correct in dismissing this suit.

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


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    No. 10,979
    Orleans
    MATTERN v. PARQUTT
    (June 27, 1929. Opinion and Decree.)
    (June 10, 1929. Rehearing Refused.)
    Wm. Winans Wall, of New Orleans, attorney for plaintiff, appellee.
    Jose A. Morales, and Henry J. Rhodes, of New Orleans, attorneys for defendant, appellant.
   JANVIER, J.

Plaintiff, claiming to have bought Lots 21 and 22 in Square No. 2674, bounded by Poy, Duplessis, Manuel (or White) and Jumonville Streets, assessed in the name of defendant, at a tax sale by the State Tax Collector for the City of New Orleans on July 9, 1924, for the unpaid State taxes of 1923, filed this suit on November 8, 1926, praying that he be put in possession thereof by the civil Sheriff under Act 170 of 1898.

Defendant answered denying ownership of the property by plaintiff, and, as plaintiff in reconvention, averred that he was the' owner by recorded title and that the tax sale was null for want of legal notice.

There was judgment for plaintiff and defendant has appealed.

The only question is one of fact: whether notice of delinquency was ever given.

The record shows that defendant on January 7, 1919, purchased the above described property from Elia Pailet for $300 —$5 cash and balance on credit, to be paid at the rate of $1 per week; that in 1922 defendant built on the property .an fmmble shack in which he lived with his wife, said shack bearing No. 3815 Jumonville Street; payment of State taxes for 1923 was neglected and the property was sold to plaintiff in 1924; that a notice of delinquency in the name of Louis Parqutt was delivered in July, 1924, to Virginia Palmer at 3821 Jumonville Street by George Connolly, deputy tax collector.

Both defendant and his wife are old, ignorant negroes, who cannot read, and the evidence as to their distinction between tax receipts and notices of delinquency is by no means clear.

The date when the notice of delinquency reached Parqutt is disputed. The agent of plaintiff testifies that defendant showed him the notice when he called at the place some time in September, 1923, before the year for redemption had expired. Even if this statement be admitted as correct, it by no means proves that defendant was notified ten days before the sale, as required by law.

Defendant swears that he did not receive the notice until after the adjudication had taken place. In this statement defendant is confirmed by his wife. Both jSwear that they never heard of Virginia Palmer and they knew no such number as 3821 Jumonville Street. Although the credibility of defendant’s wife is somewhat diminished by her statement that she did not know how many houses there were in the block on which she had lived since 1922, the record convinces us that (plaintiff has failed to prove proper notice, and judgment must therefore be reversed.

“Notice is sacramental.” Tensas vs. Sholars, 105 La. 357, 29 So. 908.

“The presumption of validity yields to denial by owner of receipt of' the notice.” In Re Nylka, 8 Orleans App. 151; In Re Lafferranderie, 114 La. 6, 37 So. 990.

“Notice served on a friend of the tax-debtor who in turn hands it to the latter is not sufficient.” Fos vs. Nylka, 11 Orleans App. 68.

However, under the Louisiana Constitution of 1921, Article X, Sec. 11, a judgment annulling a tax sale can have no effect until the price paid at the tax sale and all taxes and costs are refunded with interest at the rate of 10 per cent on the amount of the price and all taxes from date of demand.

It is ordered, adjudged and decreed that the sale made by Peter J. McGoey, the State Tax Collector for the City of New Orleans, on October 19, 1924, to Charles Mattern, of Lots Nos. 21 and 22 in the Square No. 2647, bounded by Foy, Duplessis, Manuel (or White) and Jumonville Streets, for the unpaid taxes of 192'3, be declared null and void and of no effect.

It is further ordered, adjudged and decreed that the inscription of this tax sale in Book 382, Folio 432, of the Conveyance Records of Orleans Parish be cancelled and annulled by the Register of Conveyances.

It is further ordered that all costs of this proceeding in both courts be paid by defendant, Louis Parqutt.

It is further ordered that this judgment shall not be executed until the defendant, Louis Parqutt, has paid to plaintiff,, Charles Mattern, the amount paid by him for the property at the tax sale, and all taxes paid by Mattern on this property, with interest at the rate of 10 per cent per annum on all items.


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    No. 11,557
    Orleans
    RENAUD v. MASON
    (May 27, 1929. Opinion and Decree.)
    E. V. Provensal, of New Orleans, attorney for plaintiff, appellee.
    Weiss, Yarrut and Stich, of New . Orleans, attorneys for defendant, appellant.
   JANVIER, J.

Plaintiff sues defendant for $500, on a promissory note.

Defendant resists payment on the ground that the note was given to represent the purchase price of a used Frigidaire, or automatic icebox, and that the understanding at the time the note was given, was that certain defects, which defendant alleges, existed in the Frigidaire, were to be repaired and that it was to be put in first class condition.

Six months or so prior to the execution of the note, defendant had called at the place of business of plaintiff for the purpose of discussing automatic ice boxes, which he contemplated installing in certain apartment houses, for which his firm were architects, and, in the course of the discussion, it developed that there was a used Frigidaire in the possession of plaintiff, which the parties thought might suit the personal needs of defendant. This Frigidaire was delivered to defendant and was used by him for about six months, without serious complaint.

Defendant contends that there was no understanding that this machine was to be paid for and that there was particularly no understanding as to any price but that it was being tried out by him. Plaintiff contends that it was agreed that the machine was to be purchased for the sum of $500 and that it was only when plaintiff failed to pay this sum and demand was made for payment, that defendant discovered the alleged defects in it. When defendant refused to pay, plaintiff brought suit for $500, as, the purchase price.

The day before this first suit was to be tried in the district court, the parties reached an agreement under which the note, which forms the basis of the present suit, was issued. This note was secured by chattel mortgage bearing on the Frigidaire. The first suit was thereupon dismissed.

When the note herein sued on became due and was not paid, this suit was instituted. The questions for determination are whether or not the Frigidaire is defective and whether or not plaintiff promised to repair the defects. The evidence is, of course, conflicting, but the trial court determined the questions in favor of plaintiff. We find no apparent error in this decision, particularly in view of the fact that the note and chattel mortgage were given after the filing of the first suit in which these defenses were set up. It appears to us that if the defense to that suit and the defense here were well founded and if, in fact, there had been any serious defects in the Frigidaire, defendant should not have executed the note and chattel mortgage, without, at the same time, entering into some written agreement or stipulation, as to the repair of the alleged defects.

At any rate the evidence being conflicting and there being no manifest error in the decision of the lower court it should be affirmed.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be and it is affirmed at the cost of appellant.


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    No. 11,490
    Orleans
    BREVARD v. N. O. TRANSFER CO., INC.
    (April 29, 1929. Opinion and Decree.)
    (May 27, 1929. Rehearing Refused.)

      Sam S. Kiblinger and Wm. F. Conker-ton, of New Orleans, attorneys for plaintiff, appellee.
    , Chas. I. Denechaud and Ernest J. Robin, of New Orleans, attorneys for defendant, appellant.
   JONES, J.

This is a suit for $12,850 damages for loss of an eye and other personal injuries caused by a collision between a Ford coupe, in which plaintiff was riding as a guest, and a passenger bus of defendant, at the intersection of Iberville and Chartres Streets, this city, about 7:30 p. m. on January 15, 1927.

Plaintiff alleges that the Ford, which was going out Iberville Street toward the river, slowed up and almost came to a complete stop when it reached Chartres Street and that the driver, after he had looked up Chartres toward Canal Street, without seeing any approaching vehicle, started across the street and had almost crossed the intersection when the Ford was negligently struck by defendant’s bus, which was coming down Chartres Street from Canal at a fast speed, without paying attention to vehicles in the crossing; that all four corners are closely built up, both streets are, narrow and filled with traffic, that the Ford was knocked by the bus up against a post on the downtown river corner with such violence that the two rear wheels were smashed, the body bent and windshield broken; that the flying glass cut plaintiff’s right eyebrow and eye so badly that the vision of the eye was completely destroyed and her face permanently scarred.

Defendant answered, denying all the allegations of plaintiff’s petition, and averring that the injuries were caused by the negligence of her host, the driver of the Ford, and by her own negligence.

There was judgment below for $3000 and the defendant has appealed.

Only questions nf fact are involved.

The clear and straightforward testimony of the three occupants of the Ford coupe confirms substantially all the allegations of the petition, except that as to the permanent scar. Their testimony as to the position of the Ford car after the accident is confirmed by a disinterested witness, who carried plaintiff to the Charity Hospital immediately after the accident.

Defendant’s chauffeur, Gavin, a man sixty-one years old, who had been driving in this city for many years, was the only witness for the defendant as to the facts of the accident. He says that plaintiff, who was sitting on the uptown side of the Ford coupe, necessarily obstructed her host’s view, but this contention is positively denied by the three occupants of the car, all of who swear that plaintiff was sitting With her back resting against the rear of the seat. This contention seems to have been based on the fact that defendant considered that the seat of a Ford coupe, 1924 model, which is only thirty-eight inches long, would be too narrow for three people of medium size, but he has failed to sustain his contention in this instance, as the preponderance of evidence is clearly against him. Gavin confirms the statement of the three occupants of the car to the effect that the Ford had nearly crossed Chartres Street when it was struck, but he denies that the Ford was jammed up against the post after the accident.

The record shows that the Ford was struck on the right rear fender, a fact which tends to show that it had nearly completed the crossing, as Gavin testified that he was driving down Chartres Street, close to the right hand curb.

Defendant contends that their driver had the right of way under the traffic ordinance and that plaintiff’s driver was negligent in entering the intersection without coming to a complete stop, and without making certain that there was no car near the intersection. Even if these last contentions were true—and we do not find that they are sustained by the record— the negligence of her host could not be attributed to plaintiff under repeated decisions of the appellate courts- of this state. Furthermore, the record entirely fails to show any negligence on her part.

The above analysis shows that the preponderance of the evidence supports the conclusion of the trial judge.

The fact that the traffic ordinance gives a right of way to a vehicle approaching on the right does not mean that such vehicle thereby preempts the intersection. On the contrary, this court has repeatedly held that this provision is controlling only when the two vehicles reach the intersection at about the same time. When the car approaching from the left enters the intersection first, and has nearly completed the crossing, it is entitled to proceed. Griffin vs. Chalmette, etc., 8 La. App. 146; Vance vs. Poree, 5 La. App. 109.

This court said in Flick vs. N. O. Item, 6 La. App. 864:

“In an intersection collision, between a Ford automobile and a motor truck, where the front end of the Ford strikes the rear end of the truck, a presumption of negligence on the part of the Ford driver arises.’’

The record shows that plaintiff, who was a married woman thirty years old, at the time of the accident, has lost the sight of her right eye, but, up to the date of the trial, the surgeon had not found it necessary to remove it. Prior to the accident she had always been in good health and had earned a small weekly compensation as a seamstress, but since the accident she has not been able to do such work. The record does not show that she had any permanezzt disfigizrizzg scar.

In the case of Claussen vs. Cumberland Telephone & Tel. Co., 126 La. 1087, 53 So. 357, the Supreme Court allowed $7,500 to a young man 24 years old who had lost his eye.

In Johnson vs. Pickering Land & Timber Co., 132 La. 425, 61 So. 514, the Supreme Court awarded $6000 for the loss of an eye to a minor employee of the defendant company.

In Starnes vs. Pine Woods Lumber Co., 122 La. 284, 47 So. 607, a young man eighteen years old, was allowed $6000 for the loss of his eye.

In the case of Tessier et al. vs. Stewart, No. 11,777 of the docket of this Coui’t, decided April 15, 1927, this Court allowed $12,000 to a young girl ziine years old, whose eye had to be removed and whose face had beezi permazzently scarred.

Considering all the circumstances of this case, we think that a judgment of $6000 would be more consistent with the decisions of' the appellate courts of this state, as there is no permanent scar and, up to the date of the trial, the eye has not been removed. ‘

It is therefore ordered, adjudged, and decreed that the judgment appealed from be amended by increasing the amount awarded plaintiff from three thousand dollars ($3000) to six thousand dollars ($6,-000), with legal interest thereon from Januaz’y 15, 1927, until paid, and for all costs, and as thus amended, affirmed.