author: JONES, J. WESTERFIELD, J.

text:
    No. 10,542
    Orleans
    BLAKE v. JEFFERSON-ST. CHARLES TRANSFER CO. ET AL.
    (November 14, 1927. Opinion and Decree.)
    (December 12, 1927. Rehearing Refused.)
    (January 20, 1928. Writ of Certiorari and Review denied by Supreme Court.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Appeal—Par. 625.
    When there is no manifest error in the judgment of the. lower court on a question of fact, it will be affirmed.
    2. Louisiana Digest — Automobiles—Par. 6a; Master and Servant — Par. 162, 166.
    When the president and general manager of a transfer company, who had been using an automobile of the company for his own pleasure the night before, injures a pedestrian while driving the automobile to the office and garage of the company from his residence, where he had garaged the car for the remaining hours of the night after returning from his pleasure trip, the transfer company is not liable.
    3.Louisiana Digest — Automobiles—Par. 9; —Death by Wrongful Act — Par. 17, 25.
    An award of nine thousand dollars to a major son and daughter as damages for the suffering and consequent death a month later of the father, a stove repairer aged sixty-three years, earning Twenty-five and 35-100 Dollars ©er ■ week will be reduced to seven thousand dollars where the plaintiffs were not dependent upon deceased.
    Appeal from Civil District Court, Div. “A.” Hon. H. C. Cage, Judge.
    Action by August J. Blake et al. against Jefferson-St. Charles Transfer Co., Inc., et. al.
    There was judgment for plaintiff and plaintiff and defendant Simon Hubig Co. appealed.
    Judgment amended and affirmed.
    Benjamin W. Kernan, and M. A. Wood-ruff, of New Orleans, attorneys for plaintiff, appellant.
    Gordon - Boswell, of New Orleans, attorney for Simon Hubig Co., appellant.
    P. M. Milner, of New Orleans, attorney for Maryland Casualty Co.
    Prowell, McBride & Ray, of New Orleans, attorneys for Jefferson-St. Charles Transfer Co. and Cyril O. Rousseau, Jr., defendant, appellee.
   JONES, J.

Plaintiffs, the major son and daughter of James P. Blake, bring suit against defendants for Thirty-eight thousand ($38,000.00) Dollars damages, for the fatal injuries sustained by their father on March 23, 1925, at the corner of Poydras and Carondelet Streets. The items of damage are:

For the destruction of the earning capacity of their father ____$13,000.00
For his pain and suffering ________ 10,000.00
For his anxiety during his illness concerning his condition ____________ 5,000.00
For the damages plaintiffs sustained by his death________________________ 10,000.00
$38,000.00

The suit is against Jefferson-St. Charles Transfer Co., Inc., through Cyril O. Rousseau, Receiver of Jefferson-St. Charles Transfer Co., Inc., Maryland Casualty Co., Simon 'Hubig Co., Inc., and Cyril O. Rousseau, individually, and is based on the negligent operation by Cyril O. Rousseau, as president and agent of Jefferson-St. Charles Transfer Co., Inc., of the Hudson car and by the employee of Simon Hubig Co., Inc., of a Ford truck belonging to Simon Hubig Co., Inc. The Maryland Casualty Co. is joined as defendant as insurer of the Jefferson-St. Charles Transfer Co., Inc., and is brought into the suit under the provisions of Act No. 253 of 1918, the Jefferson-St. Charles Transfer Co., Inc., being insolvent, and Cyril O. Rousseau, individually, is made defendant as the operator of the vehicle owned by Jefferson-St. Charles Transfer Co., Inc.

The negligence charged is that Rousseau drove the automobile of the Jefferson-St. Charles Transfer Co., Inc., down Carondelet Street at a dangerous rate of speed when it was wet and slippery, crossed Poydras Street, a busy thoroughfare, though he saw the truck of the Hubig Company had started across Carondelet Street; that the driver of the Hubig Company truck started to drive across Carondelet Street either without looking or without heeding what he saw; if he did look, and negligently attempted to cross in front of the Hudson which was coming on a slippery street at a fast rate, that both drivers violated the provisions of the traffic ordinance, and, as a result of the combined negligence of the two drivers, a collision resulted, and the Hudson automobile ran upon the sidewalk and crushed plaintiffs’ father against an iron post on the sidewalk of the lake side of Carondelet Street and Canal Street side of Poydras Street.

Hubig Company filed exceptions of no cause of action and of misjoinder of parties.

Maryland Casualty Company filed exceptions that the petition disclosed no legal cause of action and that Act No. 253 of 1918 was unconstitutional.

Rousseau, Receiver of Jefferson-St. Charles Transfer Co., Inc., filed exceptions of vagueness and no cause of action.

The exceptions were heard before Judge Skinner and overruled. After issue was joined, the case was transferred to Judge Cage for trial and the exceptions were again raised and argued at ' length and again overruled.

The Simon Hubig Pie Company, Inc., urges here earnestly its exception of no' cause of action.

This exception is based upon the allegation in the petition that its driver had started across Carondelet Street and that, the driver of the Hudson car saw the Ford truck “in ample time to have stopped and' avoided the collision,” but made no effort to stop. To sustain this contention, Hubig’s able attorney quotes the following words of this Court in Hirsh vs. Ashford, 5 La. App. 290:

“Where two automobiles approach each at a right angle on intersecting streets and one of thgm enters the intersection some time before the other, it is entitled to proceed, notwithstanding that the other car is traveling on a street giving it the right-of-way over the one from which the car first entering the intersection emerged.”

In that case no third party was concerned. It was a question solely between the two colliding cars, as to which was negligent and the court found from the evidence, that plaintiff during a heavy rain storm, coming at the rate of fifteen to eighteen miles per hour from the cemetery on Canal Street ran into defendant at Scott Street when he was nearly over the neutral ground.

In the case of Shields vs. Johnson & Son, et als., 132 La. 773, 61 So. 787, where plaintiff, a passenger in a taxicab of defendant Johnson was injured by a car of the New Orleans Railway & Light, sued both as joint tort feasors and exceptions of no cause of action and misjoinder were filed by Johnson. The Supreme Court held:

'■‘The doctrine of ‘The last clear chance’ cannot be invoked by joint tort-feasors against one another. It has been applied only in those cases where the injured party has been negligent in exposing himself to peril; and where such negligence on his part will not be regarded as the proximate cause of the injury if the wrongdoer either became aware of the peril in time to avoid the collision that caused the injury, or might have become aware of it had he exercised reasonable care to ascertain whether a peril which was to be anticipated did in fact exist. 38 Cyc. 456. But the rule has no application even between the injured party and the wrongdoer when the former contributes to it; there, negligence is concurrent at the very time that the accident occurs. The question is one for the jury as .to whether, notwithstanding negligence on the part of the person injured in getting into a position of peril, defendant’s servants could have avoided the injury with the exercise of reasonable care and diligence, and hence whether or not they were negligent in this respect. 29 Cyc. 530; 36 Cyc. 1631.”

In the case of David vs. Bessaret, 8714 Orl. App., this Court, where an innocent bystander was injured by an automobile alleged in petition to have been forced on the sidewalk, “because another car” rushed from across street at full speed into Bourbon Street in front of it in violation of a City Ordinance, overruled an exception of no cause of action filed by the owner of the cross town car.

Here the petition alleges that the driver of the Ford truck proceded across Carondelet Street when he saw or should have seen the Hudson approaching at a fast rate on a slippery street, all in violation of the City Traffic Ordinance.

Furthermore, under the recent decisions of our appellate courts amendments are favored where the “no cause of action” is based on insufficiency of allegation.

See James vs. New Orleans, 151 La. 480, 91 So. 846; Squthern Iron & Equipment Company vs. Cardwell Stove Company, 154 La. 109, 97 So. 332; Stone vs. Crescent Encampment Company, Orl. App. Dig. 131; Guera vs. Levy, Tess. Orl. App. 131.

For above reasons we conclude that the lower judges correctly overruled this exception.

Rousseau and Jefferson-St. Charles Transfer Co., Inc., answered denying that the damage claimed resulted from the negligence of either Rousseau or Jefferson-St. Charles Transfer Co., Inc., and placed the blame upon the driver of the auto truck of Hubig Co., Inc. They also set u,p the defense that at the time of the accident the automobile was not being used in the business of Jefferson-St. Charles Transfer Co., Inc., but was being used by" Rousseau for his own personal purposes.

Maryland Casualty Co. answered denying that Rousseau was negligent, and asserting that the driver of the auto truck of Hubig Co., Inc., was solely responsible for the damages claimed by plaintiffs.

It also tendered the defense that Act No. 253 of 1918 was unconstitutional, and, if the Act were constitutional, plaintiffs were entitled to an action against it solely within the terms of its policy, and that the policy covered the Jeferson-St. Charles Transfer Co., Inc., only when the automobile in question was being used for the business of said company. That, at the time of the accident, the automobile was not being used or driven and was not engaged in connection with, or in the business of said company, but was being driven by Rousseau on his own personal business after business hours.

On the issues thus tendered the case was heard by Judge Cage, who found that both Rousseau and the driver of the auto truck of Hubig Co. were negligent and that their combined negligence caused the injuries to and death of plaintiffs’ father. Judgment for Nine thousand ($9,000.00) Dollars was rendered against Rousseau and Simon Hubig Co., Inc., in solido, and the demand against Jefferson-St. Charles Transfer Co. and Maryland Casualty Co. was rejected on the ground that the Hudson car was not being used in the business of the company at the time of the accident.

Appeals were prosecuted by Hubig Co. from the judgment against it, and by plaintiffs from the judgment rejecting their demand against Jefferson-St. Charles Transfer Co., Inc., and Maryland Casualty Co.

Plaintiffs have filed here answers to the appeal of Hubig Co., asking that the judgment be increased by the sum of Five thousand ($5,000.00) Dollars, making the award Fourféen thousand ($14,000.00) Dollars.

Rousseau and Maryland Casualty Co. did not appeal nor answer the appeal.

Rousseau did not appeal from the judgment below either individually or as Receiver of the transfer company and the question of his negligence and consequent liability is not before us, but we must decide three questions:

(1) The negligence of the driver of the truck.

(2) Liability of the transfer company and the insurance company.

(3) Quantum of damages.

We will briefly digest the testimony of the four witnesses who saw the accident.

Pizaro, a warehouse laborer swears he had come that morning from the Poydras Market on the uptown side of Poydras Street and was crossing Poydras Street “cat-a-cornered” just before he reached Carondelet; when about fifteen feet from downtown sidewalk of Poydras Street, he saw the collision; Hudson came down Carondelet, struck Ford on back wheel, then whirled around, cut into the post and crushed the old man who was standing by the post; rear end of pie truck had just crossed woods rail of car track; after accident truck was away out in middle of Poydras Street by the jewelry store which is on uptown lake corner, Hudson was going pretty fast, faster than the Ford, but he did not drive an automobile and could not estimate .its speed; street was paved and slippery; Hudson was straddling lake rail of street car track and Ford was on downtown side of Poydras; a big stout man was on back seat of Hudson and driver in front, he was too nervous to help and walked away down Carondelet Street with his grip immediately after the accident; Hudson car was standing on car tracks in Carondelet Street after collision and Rousseau drove the injured man away; he was about to get on the banquette, but the accident happened in front of him when he was twenty-two feet from sidewalk; that he knew nothing about distances; that both cars turned completely around after the accident when both were headed toward the river; he was not looking backward, but he saw the Hudson coming and saw it hit pie truck.

Sherman, car repairer for I. C. Railroad for ten years, swears he was standing with another gentleman on Prytania and Amelia that morning when Rousseau in Hudson picked them up; the other passenger got out at Howard Avenue and St. Charles, but he and Rousseau came on downtown leisurely and just béfore they reached Poydras, Ford came out at a rapid speed and Rousseau swerved out Poydras toward Baronne to avoid collision, but hit the Ford and jammed it up against the old man and the post; he went on to work; he paid no fare as ride was an accommodation; after the impact, Ford was facing telephone building on uptown lake corner of Poydras and Carondelet, with wheels against curb about fifteen feet from Carondelet street was damp, morning misty and Hudson skidded all around; Ford turned Hudson completely around with auto facing down Carondelet; Hudson was going at moderate speed, was riding in front seat on right side, but had no grip or bundle; Hudson was going eight or ten miles per hour; Hudson was half-way between car track and curb, when we reached Poydras Street; Ford when first seen was about fifteen feet from Carondelet on downtown side of Poydras, when we were five feet in Poydras Street and we were about the center of Poydras Street, when Ford crossed into Carondelet Street; Hudson was swerving toward Baronne Street before .impact and Ford struck Hudson from the rear, somewhere behind him; Hudson then made a complete turn and Ford a half turn; left fender of Hudson or running board jammed man against the post and this stopped the turning of the car; saw no other cars nearby; was very nervous and left at once; did not know whether Rousseau slowed up or not.

Rousseau, president and general manager and Receiver of Jefferson-St. Charles Transfer Company, testifies as follows: Was driving seven-passenger Hudson touring car downtown that morning from his residence, 3717 Prytania Street, picked up two gentlemen as a courtesy; Hudson was used only for emergency work in his bus and transfer business; was straddling back of town rail and coming ten or twelve miles per hour; could stop at that speed on a dry day in the length of the car, seventeen feet; although it was drizzling that morning aúd pavement was wet, he had fairly good tires and car would travel on that wet pavement twice the distance it would take to stop on a dry street; saw the Ford about eight or ten feet from Carondelet Street on the downtown river side of Poydras Street, just as Hudson entered Poydras Street; Ford was then coming twenty or twenty-two miles per hour; Ford slowed up when it reached the first car track and then headed toward the downtown woods corner when Hudson was about center of Poydras Street; he might possibly have turned out and avoided the accident, if Hudson had not turned and traveled sideways; that it was his experience in turning a car rapidly on a wet pavement that “the car would have more tendency to travel sideways than the way you directed it. A car has more power on the ground due to the wheels in the back doing the work”; an instant after Ford headed for the downtown corner it turned as if it intended to go down Carondelet Street; then the1 Ford skidded and the left rear corner swung around and struck right side of running board of Hudson ear near front door where dent is shown in picture; he tried to swerve to the lelt, but was knocked entirely around upon the sidewalk and Ford was then facing drug store on uptown river corner, his right hand rear curtain was up; Hudson is left hand drive; picked up his friend, Mr. Hodge, and the gentleman who was standing with him, Mr. Sherman; Jefferson-St. Charles Transfer Co. was insolvent at the time; picture marked Receiver No. 2 shows damages done by iron post on rear left running board of Hudson, pictures 1 and 3 of same seven show damage done by impact of Ford on right side of Hudson near the front; accident was caused by skidding of Ford; remembered he put on his brakes lightly, but putting on brakes on a wet pavement always makes car skid; had used the Hudson car the night before for his own pleasure, as his private car was in the repair shop; after he returned from his pleasure trip the night before he left Hudson in his private garage just across the street from his residence, and was driving it back to his place of business at 116 Marais Street when accident happened; regular office and large business garage was downtown, only single garage opposite residence. Hudson was not used the night before or that morning to carry passengers; telephone company could not give him a phone at his office and his residence phone, Uptown 2688, was listed both under the name of Jefferson-St. Charles Transfer Co. and under the name of C. O. Rousseau; no business was transacted at the residence, but the telephone was listed so people would know there was a bus line in New Orleans and his sister would give information about schedules which was “the only thing it was used for,” that his busses ran to Houma, Thibodau'x and other places and if there were too many passeners for them, the Hudson was pressed into service possibly about once a week; that he was never at home on Sundays or in business hours from 7 A. M., to 7 P. M.; that his men sometimes telephoned him there at night; that Hudson, when not in use for the company, stayed in garage of company at 116 Marais; that he reported accident to Mr. Thomas, representative o'f Maryland Casualty Co., which had a general liability policy covering injuries to passengers while riding in busses; Hudson was also covered when actually being used for business of the company; damage to top of Hudson was done by rear left corner of the covered Ford truck; that Hudson, was in gear but he threw it in neutral afterwards and did not remember whether he put his foot brake on hard or lightly; first thought Ford was going to cross Carondelet and then that he was going to turn down Carondelet and applied brake lightly to give him time to turn down and let the clutch out, thought he was making a wide turn and going down center of Carondelet Street; was not certain whether brake was on or not at time he was struck by Ford; was going downtown very slowly, because his boys did not come to office until 7 A. M., and he had plenty of time as it was then 6.30 A. M.; was not aware that the old rule of ten miles an hour on Carondelet Street from Julia to Poydras Street had been raised; did not know whether he skidded or not; that he had personally driven the Hudson to pick up overflow passengers, but could not have done so that day, as he had dismissed two of his drivers and was, therefore, scheduled to drive one of the busses; just above the sign in photograph No. 2 (offered by Hubig) a piece of moulding six or eight inches long off the covered Ford truck, which was stuck in the extra tire after, the accident had been turned over by him to the insurance man, Mr. Thomas.

Taillon, twenty-eight years old, driver of Ford, haviilg driven autos for twelve years and having driven for Hubig Pie Company three years before this accident without trouble, on that morning parked his car near the curb on lower side of Poydras Street in front of entrance to Griddle Restaurant, went in to get the order and then came out, got the pies from rear of car and delivered them; motor was stopped, but truck had a self-starter; “got in my truck and started and as I placed the car in second, I started across Oarondelet and saw this aittomobile coming 150 feet up Oarondelet and thought I had plenty of time to make it across and when the rear end of my truck got to the last rail of the back of town track, I was hit by this other car”; left rear wheel and fender of Ford was struck, but -could not tell what part of the other car struck it; was going in second gear, low speed, about five or eight miles per hour, when struck, his left rear wheel and fender were injured; it was a half-ton covered truck, with full load. On cross-examination when asked if he had looked to see if there were any automobiles coming down Oarondelet Street, after he got in his truck, he answered, “Yes, after I placed my car in second and started to move.” Truck was about ten feet long and front when he started was about even with Oarondelet property line; after he started, kept looking straight ahead and did not notice Hudson again until he was struck and made no effort to stop or turn; could not say whether a piece of moulding was torn off by accident; did not tell Officer Nolan he was in a hurry, thought Hudson was coming at legal rate when he first saw it 150 feet up Oarondelet Street, but could not judge its speed then; after collision thought speed must have been thirty to thirty-five miles per hour; could have stopped in two to four feet if he had looked; when he saw the car 150 feet away, he dismissed the car from his mind and never thought of it again; there were no other vehicles' about; knew Oarondelet was a right-of-way street; identifies statement voluntarily made by him at police station immediately after accident as correct and- complete.

In this statement he uses the following words “and crossing Oarondelet Street noticed a Hudson make automobile, bearing license No. 26119 coming down Oarondelet Street, between Poydras and Lafayette Streets, when this Hudson automobile struck left rear end of my truck and fender turning me around.”

It will be noted that he says here he saw the Hudson while “crossing Carondelet Street,” whereas, he said on the stand he saw the Hudson coming after he placed the car in second and started to move. There is important difference in the two statements.

The traffic ordinance introduced in evidence shows that Oarondelet is a one-way, right-of-way Street.

The testimony and the photographs introduced in evidence show' that the Hudson was damaged on the left running board under the rear" door, where it struck the post and on the right running board right under the hinges of the front door, presumably _ where it was hit by the Ford, also slightly on right side of top; the left rear hard rubber tire of the Ford truck was Knocked half off the rim and the left rear fender was dented and possibly a little piece of the wooden moulding on the upper body of the truck was broken. Neither car was damaged in front.

The evidence shows that Poydras Street is fifty feet wide; Carondelet Street forty feet; the sidewalks twelve feet and the distance from back of town street car rail to wood side Carondelet property line about twelve feet; the collision occurred on the lower side of Poydras just across the wood side rail.

If Hudson was 150 feet above Poydras when Ford entered Carondelet, then Hudson must have gone at least 190 feet while Ford was going 40 feet and if Ford was going five to eight miles per hour, then Hudson must have been going twenty-five to forty, a conclusion which seems to us unjustified by the evidence. Both Sherman and Rousseau say Hudson was going slowly and Taillon admits he could not estimate speed. Had the Hudson struck the Ford head-on while going at such a speed, the Ford would certainly have sustained greater damages. The evidence of Pizaro is too vague and contradictory for probative value.

We think that the injuries to the two cars show that the accident could not have happened as claimed by Taillon and rather tend to support the statement of both Rousseau and Sherman that the Hudson entered the intersection simultaneously with or a little before the Ford. As shown above, the probative value of Taillon’s testimony is weakened by the discrepancy in his two statements and we think the statement made at the police station immediately after the accident, that he did not see the Hudson until he was crossing Carondelet, more probable under all the circumstances.

We, therefore, conclude that the decision of this Court in the case of Hirsch vs. Ashford is not applicablé, because the facts are different.

We agree with the Judge of the lower court that the driver of the Ford was negligent in violating the traffic ordinance by entering a right-of-way street without looking, listening and heeding oncoming cars, and, therefore the Hubig Co. is solidarily liable with the other negligent defendant, Rousseau.

On this point see the following decisions:

Norwich Union Indemnity Co. vs. Cohen, 1 La. App. 512; Uzzo vs. Torres, 3 La. App. 293; Welsch vs. Standard Oil Co., 3 La. App. 734; Kelly & Son vs. Yellow Cab Co., 5 La. App. 69; McCalmont vs. Sterkx, 5 La. App. 730; Gibbons vs. N. O. Terminal Co., 159 La. 347, 105 So. 367.

On the second point, namely the liability of transfer company and its receiver, the evidences show the following:

(1) Rousseau owns a Cadillac car of his own which he drives. It was in the shop being repaired.

(2) The Hudson car covered in the policy of insurance by rider owned by the Jeff erson-St. Charles' Transfer Co., Inc., is used only in “emergency cases” where a bus breaks down, etc. It was always stored on Marais Street where the busses were kept.

(3) On the evening of March 23, 1925, Rousseau took out this Hudson car for his personal use and a pleasure trip with his family.

(4) He owned or rented a garage for one car opposite his residence.

(5) On the' night in question he drove back to his home with his family and put the car in his garage.

(6) On his way downtown the next morning purely as a courtesy he picked up a friend and a stranger standing with him waiting for a street car. His friend got out at Howard Avenue and the stranger continued down Carondelet Street with Rousseau and was occupying the front seat at time of the accident.

(7) Rousseau had a telephone at his home both in his name and in the name of the transfer company and occasionally used it at night to call up his employees.

Attorney for plaintiff argues that this phone made his residence a second office and that his private use of the car stopped when he reached his house that night and that he was on the business of the company when he began his trip downtown the next morning.

After careful consideration, we concur in the conclusion of the trial Judge forcefully expressed as follows:

“There is, probably, no corporation President in this City who does not, from time to time, use his house telephone to direct some of the affairs of his concern. This cannot have the effect of making his home the ‘counting house,’ or, ‘domicile,’ or ‘place of business’ of his corporation.
“It is again urged that when Rousseau ‘gave a lift’ to his friend and ,the stranger; he was carrying passengers for his corporation, and that it mattered not that they were being carried free, nevertheless, the relation of passenger and common carrier existed between these two men and the Transfer Company.
“This proposition I do not consider sound.
“Rousseau had taken the Hudson car the evening before, from the Company’s garage, to use for his own pleasure. Having thus used it, it was his duty to return the car to the garage of the corporation on Marais street and this duty was personal to him.
“When this accident occurred he was in the performance of this duty, a duty personally owed by the individual, Rousseau.
“He was driving the car on his own account, for himself, and not for the Company.
“When he took up these two men to ‘give them a lift’ they thereby, became his guests, and not the ‘passengers’ of the Transfer Company.
“Had they been injured in the accident they would have had an action against Rousseau, but not against the Transfer Company.
“The corporation was under no obligation to transport Rousseau to and from his home to its office, nor from its office to his home.
“He was, in this respect, like Mr. Bouden, the President of the Whitney Bank.
“If driving from his home to the Bank in his own car he should cause damage, would any one conceive that the Bank was responsible for his tort?
“If, however, Mr. Bouden’s car had been out of commission and Mr. Bouden had taken a car belonging to his Bank and used it to drive to his home, and returning had caused damage, would the fact that the car belonged to the Bank make it (the Bank), liable for Mr. Bouden’s tort?
“It seems to me that the questions answer themselves.
“I am of opinion that neither the Transfer Company, nor its surety, can be held liable in this case.”

In the case of Black vs. Rock Island A. & L. R. Co., 125 La. 101, 51 So. 82, relied upon by plaintiff, where certain employees of defendant company borrowed a locomotive and negligently injured a pedestrian at a street crossing, the operative of the engine was held to have been under the circumstances the agent of the railroad company. In the case of Marullo vs. St. Pasteur, 144 La. 926, 81 So. 403, where an employee, who had borrowed defendant’s car for his own purposes, accidentally injured plaintiff’s child, the Supreme Court said:

“The president of a mercantile corporation, who lent his automobile to the company's employee for the employee’s own purposes, was not liable for damages caused by tbe employee, who was a competent driver.”

In distinguishing this case from the Black case, Judge Provosty says:

“This case (the Black case) could have a bearing upon the present case only if the borrower of defendant’s automobile could be held to have been the agent of defendant on the occasion in question, but nothing of that kind is pretended.”

The same distinction is made in Atkins vs. Points, 148 La. 958, 88 So. 231, where the Supreme Court held that an owner renting cars to chauffeurs for their own purposes at a. stipulated sum per day was not liable for damages caused by negligence of chauffeur in operating the hired car.

In Glass vs. Wise & McAlpin, 155 La. 481, 99 So. 409, the Supreme Court uses the following language:

• “There was plainly no departure — no temporary turning aside — from the master’s business to engage in a matter com cerning the chauffeur, and there could be no resumption of the master’s business because the errand- had not been completed. The chauffeur left the store with the truck, not to deliver groceries for defendant, but for the sole purpose of going to Turner’s for some meat for Volney Mitchell. He made no deliveries and did not purpose to deliver any groceries on the out-going trip. When he got to Turner’s and received the meat he started on his return, not to engage in his employer’s business, but to complete his own business for Yolney Mitchell — to deliver the latter’s meat.”

See also Rapier vs. Troxclair, 1 La. App. 763.

The fact that the president of a corporation, engaged in selling automobiles, was driving one of its cars to his home after business hours, and collided with a truck, injuring the plaintiff, was not enough to hold the corporation liable therefor.

Miller vs. National Auto Sales Co., 177 Ill. Ap. 367; Power vs. Arnold Eng. Co., 126 N. Y. Supp. 839; Mandle vs. Panama Pacific Int. Expo. Co., 174 Pac. 400; Gewanski vs. Ellsforth, 166 Wis, 250; Berry Law of Automobiles (4th Ed.), p. 1069.

Return by employee toward defendant’s garage with automobile, after persona! use by employee in attending funeral, held not a resumption of the defendant’s business, rendering defendant liable for injury to plaintiff struck by truck while same was being returned.

Fletcher vs. Meredith, 129 Atl. 795.

As to quantum of damages, plaintiffs are the major son and daughter of the deceased, who was sixty-three years old at the time of the accident, was a stove repairer for the N. O. Public Service at a salary of Twenty-five and 38-100 ($25.38) Dollars per week. He was a widower and resided with the plaintiffs, who cherished highly the affectionate and helpful companionship of their father, but they were not dependent upon him to any extent, although he contributed to the support of the household. Unquestionably his sufferings were horrible from March 3rd to April 28th, the day of his death. His leg, which was badly, crushed, had to be amputated at the hospital and he had to undergo another operation and take nourishment by injections in the arm and his remaining foot was terribly swollen.

The trial Judge allowed each of the plaintiffs Two thousand ($2,000.00) Dollars for the loss of companionship and affection and “wages of the father” and each of them Twenty-five hundred ($2,500.00) Dollars for the sufferings of the father and loss of earnings.

i As the only wages for which plaintiffs can recover are the four and one-half weeks of his illness, we think the first item too high and we think the amount allowed on this score should be reduced to Three thousand ($3,000.00) Dollars.

In the case of Cusimano vs. Spies, 153 La. 551, 96 So. 118, where the plaintiff suffered a fracture of the skull and was kept in the hospital ten days and was then taken home still suffering, but was able to attend to filing suit in a month’s time, the Supreme Court, after holding that the fracture of the skull was one of the most serious injuries which a man could suffer, allowed Three thousand ($3,000.00) Dollars for Bis suffering, although the evidence on this point was meagre.

Here plaintiff was in the hospital twenty days and the evidence shows his sufferings were great, although anaesthetics and opiates were used.

In the case of Southall vs. Smith, 151 La. 967, 92 So. 402, the Supreme Court awarded total damages of Seventy-five hundred ($7,500.00) Dollars, where plaintiff, a young man with a wife and seven children, earning One hundred and fifty ($150.00) Dollars per month, had to have his leg amputated and remained in the hospital forty-four days and at the time of the trial fifteen months after accident, he was still unable to do any work.

We think the amount allowed by the lower Judge on this score too high and that an award of Four thousand ($4,000.00) Dollars for the suffering of the deceased accords more closely the recent decisions of this Court and the Supreme Court.

Accordingly, the judgment of the lower court will be amended by reducing the amount of the judgment from Nine thousand ($9,000.00) Dollars to Seven thousand ($7,000.00) Dollars and as so amended the judgment is affirmed.

WESTERFIELD, J.

I cannot agree with the majority of the Court in absolving the Jefferson-St. Charles Transfer Co. from responsibility and in condemning the Hubig Pie Company. I therefore respectfully dissent.


source: Caselaw Access Project

author: WEBB, J.

license: Public Domain

text:
    No. 2552
    Second Circuit
    ALPHONSE BRENNER CO. v. WILLIAMS
    (May 22, 1928. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Chattel Mortgages— Par. 5; Registry — Par. 11.
    Where the preponderance of evidence shows that the mortgagee was instrumental in having the chattel mortgage withheld from the record, he cannot recover for the resulting loss.
    Appeal from the First Judicial District Court for the Parish of Caddo. Hon. T. F. Bell, Judge.
    Action by Alphonse Brenner Company, Inc., against S. O. Williams.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Cook & Cook, of Shreveport, attorneys for plaintiff, appellant.
    Barksdale, Bullock, Warren, Clark & Van Hook, of Shreveport, attorneys for defendant, appellee.
   WEBB, J.

The plaintiff, Alphonse Brenner Company, Inc., sold to John W. Butler, a deputy clerk of the defendant District Clerk and ex-officio Recorder of Caddo Parish, a bill of furniture, and to secure the balance of the purchase price Butler drafted a chattel mortgage and notes for the balance due which were signed by Butler before Y. G. Simmons, another deputy clerk.

The notes were transferred by plaintiff to Wiener-Hodges-Smith Company, Inc., and not being paid, the latter company, in preparing to issue executory process against Butler, ascertained that the chattel mortgage had not been recorded, and the furniture haying been placed in premises leased by Butler it was found that a lessor’s privilege amounting to one hundred eighty dollars had attached to the furniture and it became necessary for plaintiff to protect the notes, to pay off the lessor’s privilege, repurchase the notes and pay the cost of the action instituted by Wiener-Hodges-Smith Company, Inc., and plaintiff instituted this action to recover the amount so paid from the defendant Williams.

The defense set up by defendant was that plaintiff had requested V. G. Simmons, deputy clerk, before whom the mortgage was signed, not to record the same, and that plaintiff took the mortgage with him and did not return it, and on trial the defense set up was maintained, and judgment rendered rejecting plaintiff’s demands, from which it appeals.

The question presented is purely one of fact, and the testimony of V. G. Simmons and the representative of plaihtiff who handled the transaction, is directly in conflict, and the grounds upon which it is urged that the judgment is erroneous, is apparently that the burden of proof was upon defendant, and that he had not discharged it by a fair preponderance of the evidence.

The evidence shows, however, that the chattel mortgage was drafted in duplicate by Butler, and that one was retained by him and one was held by the deputy clerk and delivered by him to plaintiff, and the evidence clearly shows that the one retained by Butler was not to be filed.

The transaction was had a considerable time prior t'o the date of the trial, and the testimony of the parties was naturally not definite as to the details, but on behalf of the defendant there is the positive testimony of the deputy clerk who had charge of the transaction, who stated that plaintiff’s representative had requested him not to record the instrument, and affirmative evidence showing that the instrument, which whs the original and the one to be recorded, if any, had been delivered to the plaintiff together with the notes at the time plaintiff’s representative claimed to have accepted the mortgage, and the evidence not indicating that plaintiff could have expected that the instrument had been recorded prior to his acceptance, we think that the preponderance of the evidence supported the defense, although the representative of the plaintiff was positive in denial of the officer’s statement as to having requested that the instrument should not be recorded.

The plaintiff does not occupy the position of an innocent transferee of the notes where it was a party or instrumental in having the mortgage withheld from the record, and finding that the preponderance of the evidence shows that it was instrumental in having the mortgage withheld from the record, it cannot recover for the resulting loss, and the judgment appealed from is affirmed.


text:
    No. 2425
    Second Circuit
    MACK v. T. & P. RY. CO.
    (March 14, 1928. Opinion and Decree.)
    (May 22, 1928. Rehearing Refused.)

      (Syllabus by the Editor.)
    1. Louisiana Digest — Railroads—Par. 88, 89; Evidence — Par. 58, 59, 351.
    Where the preponderance of evidence shows that the brakes of the train had no.t been applied although the peril of the animal had been discovered when it was two hundred and seventy feet away, the engineer was negligent and the railroad did not discharge the burden of proof imposed on it by Act No. 70 of 1886.
    Appeal from the First Judicial District Court, Parish of Caddo. Hon. E. P. Mills, Judge.
    Action by Jim Mack against Texas and Pacific Railway Company.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Foster, Hall and Smith, of Shreveport, attorneys for plaintiff, appellee.
    Wise, Randolph, Rendall and Freyer, of Shreveport, attorneys for defendant, appellant.
   WEBB, J.

The defendant appeals from a judgment awarding plaintiff damages for the value of an animal killed by one of the trains operated by defendant, and it is urged that the judgment is erroneous in that the evidence establishes the animal came upon the track in such close proximity to the train it was impossible for the engineer to avoid the accident.

The law placed upon the defendant the burden of proving that it was not at fault (Act No. 70 of 1886; State vs. Foster, 106 La. 425, 31 So. 57; White vs. V. S. & P. R. R. Co., 2 La. App. 88; Nelms vs. L. R. & N. Ry. Co., 3 La. App. 428); and although it may be impossible for the engineer to stop or reduce the speed of the train and avoid striking an animal coming upon the track, this involves more or less a matter of speculation, dependent upon circumstances not wholly in the control of the engineer, and where the animal comes upon the track at such a distance in front of the train as would enable the engineer to apply the means under his control it is his duty to do so, 'having regard to the safety of the train.

The preponderance of the evidence in the present instance shows that after the peril of the animal had been discovered, the train traversed a distance of approximately two hundred and seventy feet, and that the brakes were not applied or the speed of the train reduced within such distance, and although the interval of time between the discovery of the peril of the animal and when it was hit by the train was short, accepting the statement of the train crew as to the speed of the train, we are of the opinion that the speed of the train could have been reduced within such distance and time, and this being the case, the defendant did not discharge the burden of proof placed upon it by the statute.

The judgment appealed from is therefore affirmed.


author: MOUTON, J.

text:
    No.-
    First Circuit
    VINCENT v. TECHE TRANSFER CO.
    (May 8, 1928: Opinion and Decree.)

      (Syllabus by the Editor)
    1. Louisiana Digest — Automobiles—Par. 4, 4(a), 7(c).
    Negligence cannot be imputed to the driver of an auto bus who after having been placed in a perilous position by the negligence of the driver of another car collides with a third car parked on the side of the road, in order to save human life. His act was not the proximate cause of the accident.
    Appeal from the Parish of Iberia. Hon. James Simon, Judge.
    Action by Pelicien Vincent against the Teche Transfer Company.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    J. E. Kibbe, of Abbeville, attorney for plaintiff, appellant.
    Burke and Smith, of New Iberia, attorneys for defendant, appellee.
   MOUTON, J.

Aymar David, a salesman for plaintiff, had parked a Ford car near a store on the right side of the public highway which runs between Iberia and Lafayette. A bus belonging to defendant company, driven by Latina, an employee of defendant, ran into the Ford car causing damages thereto, for the recovery of which this suit is brought. The demand was denied. Plaintiff appeals.

The bus was going westward from New Iberia to Lafayette, and collided with an auto belonging to Eddy Freeman near Burke Station, about five miles west of New Iberia. The bus wás traveling at about twenty or twenty-seven miles an hour, the usual speed at which these transfers travel on their regular daily trips between the two cities. There is a double railroad track at Burke Station that runs east and west on parallel lines with the public highway on which the bus was traveling. This highway is twenty-four feet wide. The distance between the railroad rails, and the highway is thirty-five feet, with an incline of about thirty inches drop.

The Freeman auto which was being driven by Mrs. Freeman was coming towards the highway in a road leading from the west. Mrs. Freeman was not a witness in the case so that we have hot the- benefit of her testimony. Her husband says he saw the buit when it was coming towards the crossing, yelled to his wife and said: “Oh, Lord, the transfer is coming.” Oppenheimer, a passenger on the bus says the Freeman car came shooting from the railroad, and “right down in front of us.”

It is evident that the Freeman car was coming at a lively clip and' that neither Mr. nor Mrs. Freeman saw the bus. There is nothing to indicate they could not have seen it if they had cast a glance in the direction from which it was coming. Freeman says he grabbed the wheel of his auto thinking he could help his wife, and to save his life. This statement was made in his original examination; and in rebuttal he said he could not put the brakes on. It is shown that with fairly good brakes a car can be stopped on the incline between the railroad track and the highway.

The bus was traveling on the right side of the highway, and was struck by the Freeman auto as it came down the grade from the railroad track. In order to avoid killing Freeman and his wife, Latina, the driver of the bus, says that after the transfer was struck by the Freeman car, he veered to the right and ran into plaintiff’s car which was parked on the right side of the highway; that he immediately applied the emergency brakes but without avail. It is true, the driver of the bus says, he saw the Freeman car about twenty-five feet before he reached the crossing, but had no idea that the auto would come down the highway in front of the transfer. The bus had the right-of-way, and the bus driver is not chargeable with negligence because he assumed that the Freeman car would stop before crossing the railroad tracks or making the grade to the highway. As soon as the bus driver realized the perilous situation that presented itself, he veered to the right for the laudable purpose of saving human life, and in so doing unavoidably caused the injury complained of. The bus driver was driving at a lawful speed on the right side of the highway, and was at no time negligent whén the collision occurred. It is true he ran the bus against the car of the plaintiff which was standing on the right side of the road,' and where it was properly parked; he cannot, however, be legally blamed because he thus collided with plaintiff’s car, as he had been compelléd to take that side of the highway by the Freemans who Had violated the laws of the road. Potter vs. Glassell, 146 La. 687, 83 So. 898. Even if he had made a mistake, in thus driving the bus, the situation was perilous, and his purpose being to save human life for which the law has the highest regard, negligence under such circumstances cannot be imputed to him. Peyton vs. T. & P. Ry. Co., 41 La. Ann. 681, 6 So. 690; Smith vs. Interurban Trans. Co., 5 La. App. 704.

The Freemans were negligent and at fault, not the bus driver. There was no act either of omission or commission of the bus driver that was the proximate cause of the damage and defendant company was properly absolved of liability. State vs. Williams, 49 La. Ann. 1148, 22 So. 759.


text:
    No.-
    First Circuit
    SARRETT v. GLOBE INDEMNITY COMPANY
    (April 11, 1928. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Appeal—Par. 521; Judgment — Par. 51.
    Where the evidence is meagre and insufficient, although it might be possible to obtain sufficient evidence to sustain plaintiff’s demand, judgment should be one of non-suit.
    Appeal from the Parish of East Baton Rouge. Hon. Carruth Jones, Judge.
    Action by Mrs. Estelle Sarrett and W. V. Sarrett against Globe Indemnity Company, * of Newark, N. J.
    There was judgment for defendant and plaintiff appealed.

      Judgment reversed and one of non-suit entered.
    Shelby Taylor and Cross & Moyse of Baton Rouge, attorneys for plaintiff, appellant.
    Taylor, Porter, Loret & Brooks, of Baton Rouge, attorneys for defendant, appellee.
   MOUTON, J.

George R. White, it is alleged by Mrs. Sarrett, plaintiff, entered into a contract with the Louisiana Highway Commission to build a highway in the Parish of East Baton Rouge, and furnished defendant bonding company as surety on his bond. She alleges that her husband, W. V. Sarrett, used her mules, plows and scrapers to build the highway; that no compensation was fixed for the use of her outfit, but that she is entitled to recover on a quantum meruit for the use of her property in constructing the roadway. She claims, as just compensation, the sum of $1,840.00, less $100.00 paid by White for the use so made of her property. The defendant company filed an exception of vagueness, contending it was impossible from the allegations of plaintiff to determine whether her cause of action was grounded on the claim that the outfit used was her separate property or belonged to the community, or that W. V. Sarrett was acting as her agent. The Court maintained the exception of vagueness, and plaintiff acting in compliance with its order amended her petition to conform therewith. Defendant filed its answer, and after the introduction of the evidence submitted the case on briefs to be filed. Thereafter, counsel for plaintiff filed a motion to re-open the case alleging that through inadvertence of her counsel, no proof was introduced to show that plaintiff, as owner, had the exclusive administration of the outfit described in her petition and that her husband in using said property in the construction of the highway, had in no way acted for himself, individually, or for the community, but that in handling the property was acting as her agent and representative.

The Court refused to re-open the case, and rendered judgment denying and rejecting the demand of Mrs. Sarrett, at her cost. From that judgment she has taken this appeal. The evidence is rather meagre in reference to the acquisition by Mrs. Sarrett of the mules, pjows and scrapers which she claims as her property; it is also quite uncertain and unsatisfactory in respect to the questions raised in the exceptions filed by defendant company, and is insufficient to show the number of days that the outfit claimed by plaintiff was used in the building of the road in question in order that the amount of liability of the defendant, if legally responsible to plaintiff, can be fixed with any degree of moral certainty. The nature of the proof is such, however, that we do not think the claim of the plaintiff should have been denied and rejected and her suit dismissed. The proper judgment should have been one of non-suit.

It is therefore ordered, adjudged and decreed that the judgment appealed from be avoided and reversed, and that the demand of the plaintiff be and is hereby dismissed as in case of non-suit at her cost in both courts.


author: ODOM, J.

text:
    No. 2475
    Second Circuit
    McClanahan v. Hodges
    (May 22, 1928. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Appeal—Par. 493, 598.
    Where appellant does not argue nor file brief in casei the lower court’s judgment being amply supported by the evidence, will • be affirmed.
    Appeal from the First Judicial District Court, Parish of Caddo. Hon. F. X. Ransdell, Judge.
    Action by F. C. McClanahan against I. P. Hodges.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    T. H. McEachern, of Homer, attorney for plaintiff, appellant.
    E. W. and P. N. Browne, of Shreveport, attorneys for defendant, appellee.
   ODOM, J.

Plaintiff brought this suit alleging that the defendant is indebted unto him in the sum of $195.75, being the balance due for certain building material sold to, and work done for the defendant.

The defendant, in answer, admitted that he had purchased a lot of roofing material from the plaintiff as the representative of the H. W. Johns-Manville Co. and had employed the plaintiff, McClanahan, to apply the roofing, and further alleged that the said McClanahan, as agent of the H. W. Johns-Manville Co., guaranteed the roof against all defects for a period of one year, and that shortly after the roofing was applied by McClanahan it rained, the roof leaked to such an extent that it materially damaged the residence, and that under his contract with the owner of the building he was compelled not only to repair the roof but repair the damage done to the building caused by the leak, all of which cost him the sum of $153.00, and he asked for judgment in reconvention against plaintiff for that amount.

There was judgment in the lower court in favor of the plaintiff for $195.75, the amount sued for, and judgment in favor of the reconvenor for the sum of $153.00, the amount claimed by him.

From this judgment the plaintiff, Mc-Clanahan, appealed.

OPINION

This case was regularly placed on our calendar for hearing and the parties duly notified, but the appellant did not appear to argue the case orally 'nor has he filed brief, and has therefore pointed out no error in the judgment rendered.

We have carefully read the testimony, and we find that the lower court’s judgment is amply supported by the evidence, and we find no error patent on the face of the record.

It is unnecessary to discuss the testimony in detail, for the reason, as stated, it supports the finding of the lower court.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from be affirmed with costs in both courts.


text:
    No. 2450
    Second Circuit
    HILL MOTOR CO. v. GARDNER, MEHAFFEY AND WIENER-HODGESSMITH, INC., INTERVENORS
    (March 14, 1928. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Chattel Mortgages— Par. 3.
    Intervenors in a suit with writ of sequestration, who claim a privilege by reason of chattel mortgage, cannot recover if they do not identify the property as that covered by the chattel mortgage.
    Appeal from the Eleventh Judicial District Court, Parish of Sabine. , Hon. Hal. A. Burgess, Judge.
    Action by Pleasant Hill Motor Company against L. E. Gardner.
    H. H. Mehaffey, and Wiener-Hodges-Smith, Inc., intervenors.
    There was judgment for plaintiff and intervenors appealed.
    Judgment affirmed.
    R. A. Fraser, of Many, attorney for plaintiff, appellee.
    B. B. Breazeale; John B. Files, of Shreveport, attorneys for intervenors, appellants.
   WEBB, J.

The plaintiff, Pleasant Hill Motor Company, filed suit against L. E. Gardner to recover judgment for five hundred twenty-five dollars for material and work in repairing four motor trucks, and for recognition of a chattel mortgage on one of the trucks, with interest and attorney’s fees, and alleging it had an artisan’s privilege on the trucks and under appropriate allegations it obtained a writ of sequestration, uhder which the trucks were seized.

H. H. Mehaffey and Wiener-Hodges-Smith, Inc., each filed interventions claiming a privilege and chattel mortgage on the trucks and praying that their privilege be recognized as superior to the asserted privilege of plaintiff, and plaintiff answered the interventions, pleading, in effect, a general denial.

Pending the trial of the interventions, judgment was rendered in favor of the Pleasant Hill Motor Company against the defendant for the amount claimed, recognizing the asserted privilege and mortgage, and sustaining tne writ of sequestration and ordering the property sold, and a fi. fa. was issued and the property sequestered seized and sold for an amount less than the plaintiff’s judgment, and the proceeds of the sale held by the sheriff under an agreement of the parties.

On trial of the interventions there was judgment rejecting the demands of the intervenors and ordering the sheriff to pay the proceeds of the sale to the plaintiff, from which judgment intervenors appeal.

The intervenors in their briefs suggest that the judgment is erroneous in failing to rank their asserted privileges as superior to that of the plaintiff; however, we do not deem it necessary to consider that issue, as on the trial of the interventions the intervenors did not offer any evidence by which the property sequestered and sold under the writ of fi. fa. could be identified as the property on which they asserted a privilege.

The judgment appealed from is therefore affirmed.


text:
    No. 2447
    Second Circuit
    W. P. BROWN & SONS LUMBER COMPANY, INC., v. EXCHANGE NATIONAL BANK
    (March 14, 1928. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Payment—Par. 28; Error and Mistake — Par. 16, 17.
    Where one pays through an error more than he owes, the one to whom he has paid it is obliged to return it.
    Appeal from the First Judicial District Court, Parish of Caddo. Hon. T. F. Bell, Judge.
    Action by W. P. Brown & Sons Lumber Company, Inc., against Exchange National Bank.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    L. Percy Garrot, of Shreveport, attorney for plaintiff, appellee.
    C. H. Lyons, of Shreveport, attorney for defendant, appellant.
   ODOM, J.

Plaintiff brings this suit to recover of defendant the sum of $931.35, which, it alleges, was paid in error.

The defendant bank admitted, in answer, that it had received said amount from plaintiff, but denied that said sum was paid through error, and set up that the amount, when received, was properly credited on plaintiff’s indebtedness to it.

There was judgment in the lower court for plaintiff as prayed for.

Defendant reconvened for $605.64, and the court allowed its claim for $350.54.

Defendant appealed.

OPINION.

The transaction out of which this controversy arose took place in 1923.

The plaintiff is a lumber dealer with its domicile in Louisville, Kentucky.

A. O. Davis was at that time and prior thereto engaged in the sawmill business at or near Shreveport, Louisiana.

Davis sold lumber to plaintiff in car lots. When a car was loaded with lumber it was shipped to plaintiff by rail. Davis made an invoice for each car shipped, showing the amount, grade and price of the lumber in each car, with a description and number of each car.

Davis had an arrangement with the defendant, Exchange National Bank, by which the bank was to extend him a line of credit, not exceeding $20,000.00. As collateral for such advances, he deposited or pledged to the defendant bank said invoices, which were sent by the bank to the plaintiff for acceptance. When the invoices were received from the bank, plaintiff accepted and returned them to it, and when the bill for the lumber was due, plaintiff remitted therefor to the bank direct and the bank, in turn, credited Davis’ account with the amount of the remittance and delivered to him the cancelled invoice and acceptance.

It seems, however, that not all the invoices for lumber sold by Davis to plaintiff were handled by the defendant bank, but that some of them were handled by the City Savings Bank & Trust Company of Shreveport under a similar arrangement with Davis.

On May 11, 1923, plaintiff remitted to the defendant bank by check the sum of $2,206.39 to pay for six cars of lumber' which it had received from Davis. At the time this remittance was made, plaintiff was under the erroneous impression that the defendant bank held its acceptances for each of the six cars of lumber which' the remittance was intended to cover; but it later developed that the City Savings Bank & Trust Company of Shreveport held plaintiff’s acceptance for three of the six cars of lumber, as follows: car “MR&BT, No. 2880, for $329.50; car “RI”, No. 87538, for $318.11, and car “Mo.P”, No. 7235, for $283.74, on a total amount of $931.35.

This is the amount which plaintiff sues to recover as paid through error.

Plaintiff’s remittance of $2,206.39 of date May 11, 1923, to defendant bank, was intended to cover the amount of the above invoices and acceptances, which plaintiff thought were held by. defendant, and also the following, which were in fact held by said bank: car “MK&T”, No. 75125, for $403.57; car “MK&T”, No. 38271, for $349.03, and car “Mo.P”, No. 80379, for $567.46; making a total for the cars of $2,251.41, which amount, it seems, was subject to a discount of $45.02, leaving the balance due for the six cars of $2,206.39, the amount remitted.

Some five months after this remittance was made, the City Savings Bank & Trust Company, not having received settlement for the three cars of lumber for which it held plaintiff’s acceptances, made demand on plaintiff for a settlement. It was then, and not until then, that plaintiff discovered that it had remitted to the defendant, Exchange National Bank, for three cars of lumber for which it held no acceptances.

As the City Savings Bank &• Trust Company of Shreveport held plaintiff’s acceptances for these three cars, amounting to $931.35, plaintiff paid to said bank that amount.

It is therefore clear that plaintiff has twice paid for these three cars of lumber, once to defendant and once to the City Savings Bank & Trust Company of Shreveport.

It is clear also that the defendant bank held "no acceptances for these three cars of lumber.

There was propounded to the defendant bank the following interrogatory:

“At the time of the remittance involved in this case, did you hold assignments covering the claim of A. O. Davis against the plaintiff for the purchase price of the cars of lumber numbered MR&BT 2080, RI 87538, and MOP 7235?”

And the defendant answered:

“Defendant is. unable to answer ‘yes’ or ‘no’ to this question, for the reason it handled a great number of such matters for A. O. Davis and does not have any record of the same by which it could ascertain whether or not it had the particular assignment covering the lumber shipped in the cars described herein; however, it does not believe that it had an assignment covering these particular cars.”

Not holding acceptances for these cars of lumber, the defendant received from plaintiff and appropriated $931.35 which was not intended for it, and plaintiff contends that it should be allowed to recover that amount as paid through error.

Plaintiff’s error in making this payment was this: its bookkeeper was instructed to remit for six cars of lumber purchased from Davis. He took from the files six acceptances. He saw that the one on top was due the defendant bank and, without going through the batch, he assumed that the others were due that bank also. He made out the check to cover the amount for all six. The check was forwarded to the defendant bank. But it happened that defendant bank did not hold plaintiff’s acceptances for all six cars, three of the acceptances which the remittance covered being held by the City Savings Bank & Trust Company of Shreveport.

When the defendant bank had its attention called to the fact that plaintiff’s remittance of May 11, 1923, amounting to $2,206.35 covered three cars of lumber amounting to $931.35, for which it held no acceptances, and was asked to return that amount to plaintiff, defendant wrote plaintiff se.veral letters, all of the same tenor, to this effect, as stated in its letter of November 12, 1923.

“You seem to labor under the impression that we do not have invoices against you to the amount of the draft you sent us. This is not correct. We do have invoices against you that exhausted very near the whole draft, and therefore, I cannot see' what difference it would be to you, for if we paid the City Savings Bank & Trust Co. for the three loads in question, you would be owing us for invoices that were paid out of the remittance, as Mr. Davis tells us that the invoices that we held at that time were genuine, and that you owed us for the invoices that were charged out."

The record shows beyond question that at the time said remittance of May 11, 1923, was made by plaintiff, the defendant did hold plaintiff’s acceptances for more than the amount of the remittance, and assuming that plaintiff got credit for the remittance on acceptances which it owed defendant, the bank’s position was well founded, in equity, at least, for, as stated by the defendant, what difference would it make to plaintiff whether it paid what was due defendant out of that remittance or paid liter.

The bank’s position, from an equitable standpoint, at least, would be good if, as a matter of fact, the defendant bank had given plaintiff credit for the remittance on other acceptances which it held against plaintiff. But that is not true.

We have spent considerable time and labor checking and rechecking all the figures submitted by both sides and as a result find that plaintiff and the defendant by remittances, aside from the one of May 11, 1923, for each and every car of lumber for which defendant held plaintiff’s acceptances, except three, and those three were paid out of the remittance of May 11, 1923. That remittance covered six cars, three held by defendant and three by the City Savings Bank & Trust Company of Shreveport.

In other words, plaintiff has paid to defendant $931.35 more than it ever owed defendant on acceptances.

Plaintiff’s testimony shows, and it is not disputed, that it purchased, in all, twenty-eight cars of lumber from A. O. Davis, for which the defendant bank held its acceptances. The initials and number of each car are given together with the amount due for each. It filed in evidence remittance sheets showing specifically the payment it made for each car and the date of payment.

The total of all its remittances to defendant bank, including the one of May 11, 1923, for $2',206.35, is $931.35 more than it was due for all the twenty-eight cars for which defendant held acceptances.

•Defendant’s position, therefore, that plaintiff’s remittance of May 11, 1923, was used to pay invoices due by plaintiff which were not otherwise paid, is not borne out by the facts. Defendant’s testimony, when the figures are checked, does not help its case.

The following interrogatory was propounded by plaintiff to the defendant bank:

“What assignments, if any, were held by the Exchange National Bank, said assignments covering claim of A. O. Davis against plaintiff, for lumber sold at the time that the remittance involved in this case was .made, giving a description of said assignments, and the amount of each assignment?”

The bank answered:

Car Number Amount
MK&T 75125 $403.57
MK&T 84528 345:12
MK&T 38271 349.03
M.P. 80379 567.46
L&N 96075 300.66
S.P. 233669 569.92
NYC 50054 436.77
T&P 14118 398.53
S.P. 17457 499.64
W.P. 16865 410.59
NYC 201016 419.08
AT&SF 42418 350.97

and invoices in following amounts, car numbers not being shown:

$415.18
316.71
324.35
385.22
322.08

According to the remittance sheets filed by plaintiff, the first, third and fourth cars above mentioned, were paid for out of the remittance of May 11, 1923. The total for these three cars is $1320.06. There were certain deductions made; the net amount taken from the remittance of $2,206.39 leaves the amount of $931.35 which is involved in this suit.

The second of the above cars was paid for April 27th, the fifth, May 18th, the sixth, June 9th, the seventh, June 4th, the eighth, June 27th, the ninth, June 27th, the tenth, June 27th, the eleventh, June 16th, and the twelfth, June 27th.

Of the last five invoices, the bank said it had no car numbers. By checking the records, we find that these were cars M&StL 19290, Southern Í50351, CB&Q 112081, C&NW 124084, I&GN 5209.

These latter cars were paid for by plaintiff as follows: The first on June 27th, the second on July 3rd, the third on July 7th, the fourth on July 19th, and the fifth on August 1st.

It is thus shown that the identical cars for which defendant held plaintiff’s acceptances at the time of the remittance of May 11, 1923, and which defendant claims were paid out of the remittance of that date, were in fact paid for by plaintiff by other remittances.

The remittance sheets show that all these amounts were sent to the defendant bank.

Having reached the above conclusion, it is not necessary to discuss the other points raised by counsel.

The amount which plaintiff seeks to recover was paid to defendant through error, and defendant is obliged to return it.

There is no dispute as to tjie amount the lower court allowed defendant on its re-conventional demand.

The judgment appealed from is affirmed with costs.


text:
    No. 2871
    Second Circuit
    COLLINS v. LIFE AND CASUALTY INSURANCE COMPANY
    (May 22, 1928. Opinion and Decree.)

      (Syllabus by the Editor.)
    1. Louisiana Digest — Insurance—Par. 33, 35, 123, 140.
    Insurance policy providing protection for injuries received in accidents from the wrecking of a horse drawn vehicle or motor driven car or by being thrown therefrom does not cover injuries and death resulting from being shot while riding on a horse.
    Appeal from the First Judicial District Court, Parish of Caddo. Hon. E. P. Mills, Judge.
    Action by Lizzie Collins against Life and Casualty Insurance Company.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Edward Barnet, of Shreveport, attorney for plaintiff, appellant.
    L. C. Butler, of Shreveport, attorney for defendant; appellee.
   WEBB, J.

-The plaintiff, Lizzie Collins, as the beneficiary under an accident insurance policy written by the defendant, Life and Casualty Insurance Company of Tennessee, insuring her husband, Jack Collins, filed this suit to recover the amount of the policy for the death of her husband, which is alleged to have occurred by accident, it being alleged that her husband was shot and killed while riding a horse, and she appeals from a judgment sustaining an exception of no cause of action and dismissing her suit.

The policy sued upon provides that the defendant insured Jack Collins against the result of bodily injuries effected solely by external, violent and accidental means, strictly in the manner stated, subject to all the provisions and limitations, which are stated as follows:

“If the insured be struck or knocked down or run over while walking or standing on a public highway by a vehicle propelled by steam, cable * * * power, excluding injuries sustained while on a railroad right of way in violation of any statute or of any regulation of the railroad company.
“Or if the insured shall, by the wrecking of any railroad passenger car or passenger steamship or steamboat, in or on which such insured is travelling as a fare-paying passenger; or, by the wrecking of any public omnibus, street railway car, taxicab, or automobile stage, which is being driven or operated, at the time of such wrecking, by a licensed driver plying for public hire, and in which such insured is travelling as a fare-paying passenger; or by the wrecking of any private horse-drawn vehicle, or motor-driven car in which insured is riding or driving, or, by being accidentally thrown from such vehicle or car, * *

And the plaintiff contends that her husband, having been shot and killed while riding on a horse, from which, presumably, he fell, that the defendant is liable.

It is very clear from the above provisions of the policy that the insured was not protected from accidents generally and that the liability of the insurer was restricted to injuries received in the accidents which might occur to the insured as expressed in the policy (Laporte vs. North American Insurance Co., 161 La. 933, 109 So. 767), and we do not think that under the allegations the insured, who was shot to death while riding on a horse, could be said to have been within the protection of the policy which provides for injuries received in accidents from the wrecking of a horse-drawn vehicle or by being thrown therefrom.

The judgment appealed from is therefore affirmed.


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    No. 3213
    Second Circuit
    PICKENS v. HARRIS
    (May 22, 1928. Opinion and Decree.)

      (Syllabus by the Editor.)
    1. Louisiana Digest — Courts—Par. 9, 19, 128.
    The .test of jurisdiction of an appellate court, in so far as the amount involved is concerned, is the amount or value remaining in contest when the case is finaliy submitted for decision' in the court of original jurisdiction.
    Appeal from the Third Judicial District Court, Parish of Union. Hon. S. D. Pearce, Judge.
    Action by J. C. Pickens against W. H. Harris.
    There was judgment for plaintiff and defendant appealed.
    Case transferred to Supreme Court according to Act No. 19 of 1912.
    H. C. Fields, of Farmerville, attorney for plaintiff, appellee.
    S. L. Digby, of Farmerville, attorney for defendant, appellant.
   ODOM, J.

Plaintiff brought suit to recover of defendant the sum of $3,218.00.

Defendant answered denying liability, and asked that plaintiff’s demands be rejected in toto.

The case was tried in the District Court and judgment for $1,020.00 was rendered for plaintiff, and defendant appealed. '

The test of jurisdiction of an appellate court, in so far as the amount involved is concerned, is. the amount or value remaining in contest when the case is finally submitted for decision in the court of original jurisdiction.

Crowell-Spencer Lumber Co. vs. Lynch, 157 La. 21, 101 South. 797.

The amount remaining in contest when the case was finally submitted for decision in the court of original jurisdiction was $3,218.00, far in excess of our maximum jurisdiction, and. as the case is not one for damages for “physical injuries or for the death of a person, or for other damages .sustained by such person or his heirs or legal representatives, arising out of the same circumstances,” we have no jurisdiction.

The case should go to the Supreme Court.

It is therefore ordered that the case be transferred to the Supreme Court in accordance with Act No. 19 of 1912.


text:
    No. 3218
    Second Circuit
    KIMBALL v. YOUNG
    (May 22, 1928. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Prescription—Par. 96, 107, 168, 178.
    “The execution of a, due-bill for a debt on open account is a written acknowledgment which converts it from a debt on open account, prescriptible by three years, into an ordinary money obligation, prescriptible by ten years only.”
    Appeal from the First Judicial District Court, Parish of Caddo. Hon. Robert Roberts, Judge.
    Action by John L. Kimball against George Young.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    James L. Dormon, of Shreveport, attorney for plaintiff, appellee.
    Malcolm W. Feist, of Shreveport, attorney for defendant, appellant.
   WEBB, J.

The plaintiff instituted this action on a written instrument in which defendant acknowledged that he was indebted unto plaintiff in the sum of one hundred seventy-five dollars alleged to have been a balance due for medical services.

The defendant pleaded the prescription of three years, under Article 3538, C. C., which being overruled, he filed an answer pleading, in effect, the general denial, and on trial judgment was rendered in favor of the plaintiff as prayed for, and defendant appeals.

The evidence conclusively establishes the amount of the indebtedness, and the only ground urged for the reversal of the judgment is that the court erred in refusing to sustain the plea of ¡prescription of three years.

The instrument sued upon is in the form of a .“due-bill” but it is shown by the pleadings and the evidence to have been given for a balance due on account, and counsel contends that the instrument is merely a written acknowledgment of an account, or balance due thereon, and governed by the prescription of three years.

While there has been conflict of opinion as to the prescription where evidence is offered showing a written acknowledgment of an account, we think that the question is settled in Harman vs. Stringfellow, 151 La. 253, 91 So. 726, in which the court said:

“The execution of a note for a debt on open account is a written acknowledgment which converts, it from a debt on open account, prescriptible by three years, into an ordinary money obligation, prescriptible by ten years only.”

The judgment appealed from is therefore affirmed.


text:
    No. 2642
    Second Circuit
    WARD v. DONAHUE
    (March 14, 1928. Opinion and Decree.)
    (May 22, 1928. Rehearing Refused.)

      (Syllabus by the Editor.)
    1. Louisiana Digest — Automobiles—Par. 4.
    It is gross negligence for the driver of an automobile to run his machine on a city street when the mist, rain, and blinding headlights of another car made it so that he could not see.
    2. Louisiana Digest — Automobiles—Par. 7.
    One who walks on the street near the curb because of the lack of sidewalks is not guilty of contributory negligence if he is hit by an automobile merely because of his being on the street. Pedestrians have the same right to the use of public streets as motorists.
    3. Louisiana Digest — Automobiles—Par. 9; Damages — Par. 103, 104, 105.
    Three Thousand dollars considered sufficient quantum of damages for injury to head and both legs broken causing severe pain and suffering necessitating his remaining 'four months and eight days in hospital and permanent injuries to legs making it necessary to walk on crutches.
    Appeal from the First Judicial District Court, Parish of Caddo. Hon. T. F. Bell, Judge.
    Action by “Samuel M. Ward against Patrick P. Donahue.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    Julius T. Long, o.f Shreveport, attorney for plaintiff, appellant.
    Robert G. Chandler and M. A. Taylor, of Shreveport, attorneys for defendant, appellee.
   ODOM, J.

Plaintiff brings suit to recover damages for personal injuries resulting from his being knocked down on a public street in the City of Shreveport by an automobile owned and driven by the defendant.

Plaintiff’s demands were rejected and he has appealed.

THE FACTS.

At about 7 o’clock p. m., on December 30, 1924, the plaintiff was walking in an easterly direction on a paved street in the City of Shreveport, near the curb on the right-hand side. It was dark and misting rain. Defendant was travelling in the same dirction in his automobile. He ran his car against plaintiff from the rear, knocked him down and crippled him.

Plaintiff says that while walking along the street he occasionally looked back to see if cars were approaching him; he did not see defendant’s car, nor did he see the reflection of its. lights on the street; he says he was walking in the street because there were no sidewalks on either side; that he was struck at a point on the street where there was a large street light on the opposite side and that the street was well lighted.

Plaintiff’s testimony that the street was well lighted there is corroborated by that of O. H. Long who was in his car trailing defendant’s about fifty feet behind at the time of the accident. Plaintiff, it seems, was almost under this street light when I struck.

The testimony makes it clear that the only sidewalk along the street there was that in front of the Leonard residence on the opposite side and it was only one hundred feet long.

The testimony is to the effect that the street is about fifty feet wide.

Defendant’s testimony as to how the accident happened, is as follows:

“On my way to Schumpert Sanitarium with my wife, driving about 10 to 12 miles per hour. The weather was very heavy, rainy and nasty; almost impossible to drive at all. Another car was approaching with very bright lights at the time of the accident. Mr. Ward was struck by the right front light of the car. I did not see him at all until I got out'to see what was struck and picked him up.”

Defendant’s wife, who was in the car with him, gave this account of the accident:

“On our way to Schumpert Sanitarium, my husband was driving about 10 to 12 miles per hour. It was very rainy and nasty, and almost impossible to see ahead. A car was approaching us with very bright lights, blinding us so that we could not see at all. I did not see Mr. Ward until after we stopped the car. We were a little to the right of the center of the road, when Mr. Ward was struck by the right hand front light of the car.”

Counsel for defendant say that defendant was guilty of no negligence. If that be true, plaintiff’s case must fall, for there can be no recovery in cases like this where there is no fault.

But on the question of negligence defendant is condemned by words out of his own mouth. Plaintiff was in the open street ahead of him and he did not see- him because—

“* * * the weather was very heavy, rainy and nasty; almost impossible to drive at all. Another car was approaching with very bright lights.”

His wife goes further, and says—

“* * * a car was approaching us with very bright lights, blinding us so that we could not see at all.”

In other words, defendant was proceeding along the street blindly when he ran on plaintiff.

That is gross negligence. An automobile is a dangerous instrumentality at best, and those who operate, them on public streets must be held to the strictest precautions. They must always look ahead to see that the way is open. They have no right to assume that the way is open.

In Southall vs. Smith, 151 La. 967, 92 South. 402, the court said, with reference to the duty of those who operate automobiles on public highways:

“He has no right to assume that the road is clear, but under all circumstances and at all times he must be vigilant and must anticipate and expect the presence of others.”

2 R. C. L., 1184.

1 R. C. L., supp. 722.

4 R. C. L., supp. 146.

5 R. G. L., supp. 133.

It being his duty to look ahead always and -having no right to assume that the street or road is clear, it follows necessarily that when the driver finds himself so blinded, from whatever cause, that he cannot see in front of him, he assumes the risk of injuring those who may be in the street.

It has been held repeatedly that the driver of an automobile in proceeding along a city street when he is blinded by the lights of an other car or blinded by fog, smoke or dust, or when the windshield is so covered with rain water that his view ahead is obstructed, is guilty of negligence, and that it is his duty to look around the end of the windshield if that is the only way in. which he can proceed in safety, and in extreme cases to stop.

4 R. C. L., supp. 145.

Woodhead vs. Wilkinson, 185 Pac. 85.

10 A. L. R. 291, and cases cited in note beginning on page 294.

Schwalen vs. Fuller & Co., 180 Pac. 592.

10 A. L. R. 296, and cases cited in note beginning on page 299.

Mathers vs. Batsford, 97 South. 282, 32 A. L. R. 881, and notes on page 887.

Hatzakarzian vs. Rucker-Fuller Desk Co., 239 Pac. 709, 41 A. L. R. 1027, and notes on page 1040.

Cyclopaedia of Automobile Law, Blashfield, vol. 1, ¡page 354, section 18.

Our conclusion is, and we hold, that the defendant was guilty of gross negligence.

But counsel for defendant contend that plaintiff was guilty of such contributory negligence as to bar recovery, which contributory negligence consisted, first, of walking in the street when he should have been on the sidewalk, and second, in walking on a much travelled street on a rainy, misty night.

We dispose of these pleas in the order named.

It is well settled, as counsel argue, that

“Where there are two avenues of travel, one safe and the other dangerous, the person who selects the more dangerous is guilty of negligence and assumes the risk.”

Bollinger vs. Railway Co., 47 La. Ann. 722, 17 So. 253.

Burbank vs. Railroad Co., 42 La. Ann. 1156, 8 So. 580.

Johnson vs. Railroad Co., 27 La. Ann. 53.

Settoon vs. Railway Co., 48 La. Ann. 807, 19 So. 759.

Provost vs. Railway Co., 52 La. Ann. 1894, 28 So. 305.

Walker vs. Nona Mills Co., 151 La. 738, 92 So. 318.

If the facts were that there was another place for plaintiff to travel, counsel’s point would be well taken. But there was no other place. There were no sidewalks along the street at that time, except one in front of the Leonard residence on the opposite side of the street, and that was only one hundred feet long.

If plaintiff had attempted to take advantage of that short walk it would have been necessary for him to cross the street and thereby subject himself to added danger. Property adjacent to Claiborne Avenue was not built up at that time, and according to the City Engineer the sidewalks were not laid, except in front of Leonard’s, until 1926, long after the accident.

On the second point, counsel, in brief, say:

“We take it that a reasonable man would not w.alk in the street on a much travelled thoroughfare on a misty night. Any reasonable man knows the difficulty of seeing through glass with a mist on it, and when a reasonable man knows this the plaintiff is presumed to have known.”

The effect of that argument is that plaintiff, a pedestrian, should not have been on the street at all. Streets of cities, and other public highways, are not built exclusively for vehicular traffic. Pedestrians have a right to use them.

In 13 R. C. L. section 242, page 292, we find the law stated as follows:

“Pedestrians have the right to use a public street at any time of day or night, although it is not improved and railroad tracks are laid in it. They have a legal right to travel in a street car, or to cross it at any point, and the mere fact that one does so, does not render him guilty of contributory negligence as a matter of law.”
“The drivers of automobiles or other vehicles must share the streets with pedestrians.”

2 R. C. L., section 21, page 1186.

“A pedestrian has the same right to the use of public streets and highways as a vehicle of any kind, and the motorist must use reasonable care to avoid injuring him.”

28 Cyc., page 28-H.

“Foot passengers and drivers of vehicles have equal rights on the streets and both are bound to exercise commensurate care to avoid injury.”

28 Cyc., page 912-h.

Counsel cite the case of Mequet vs. Algiers Mfg. Co., 147 La. 364, in support of their argument that plaintiff entered and used the street at his own peril.

The case does not support the argument. The court said:

“On those portions of the highways, known to be used by such vehicles. between the points provided for the passage of pedestrians, the latter, in attempting to cross, do so in large measure at their peril." (Italics ours.)

The case at bar is not one where the pedestrian attempted to cross the street between crossings provided for him. He was walking along the street, over on the the right hand side, near the curb, and was run into from the rear. The street is fifty feet wide and there was ample room.

The following quotation from the Mequet case, supra, is interesting and appropriate here:

“The frequent occurrence of collisions and accidents argue most forcefully for a rigid enforcement of all traffic regulations intended' to prevent such occurrences. Otherwise, the individual who, through choice or necessity, adopts the original mode of locomotion provided by nature, must ‘take his life and limb in his own hands’.”

Plaintiff was not guilty of contributory negligence jn making use of the street as a foot-path; nor do we think that he was guilty of negligence otherwise.

It folloys that he is entitled to recover.

He sustained a severe injury to his head and both bones of one of his legs were broken between the knee and ankle. He was rendered unconscious and remained in a sanitarium four months and eight days. He was then taken to his home where he remained in bed for six weeks. At the time of the trial he could walk only with the aid of crutches, and Dr. Herold says he is permanently injured.

His medical and hospital expenses amounted to $553.50. We think an award of $3000.00 for pain, suffering and injuries is proper.

For the 'reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from be reversed and avoided, and it is now ordered, adjudged and decree that the plaintiff, Samuel M. Ward, have judgment against and recover from the defendant, Patrick P. Donahue, in the full sum and amount of three thousand, five hundred, fifty-three and 50-100 ($3553.50) dollars, with five per cent per annum interest from the date of the judgment in the lower court, and all costs.


text:
    No. 2495
    Second Circuit
    ROACH v. CITY OF SHREVEPORT
    (May 22, 1928. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Municipalities — Par. 19, 244, 251.
    A municipality is not liable for damages resulting from tbe negligence of its officers in the exercise of purely governmental functions.
    2. Louisiana Digest — Municipalities — Par. 19, 244, 251.
    The impounding and selling of an automobile left ten days without having been claimed by the owner on the streets of a city in accordance with a city ordinance is a governmental function for which the city is not liable in damages.
    Appeal from the First Judicial District Court, Parish of Caddo. Hon. E. P. Mills, Judge.
    Action by J. E. Roach against the City of Shreveport.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed
    Herndon and Herndon, of Shreveport, attorneys for plaintiff, appellant.
    B. F. Roberts, City Attorney of Shreveport, for defendant, appellee.
   ODOM, J.

Ordinance No. 31 of the City of Shreveport, adopted in 1922, provides that it shall be unlawful for any person to leave, unattended, on any of the streets of the city, an automobile for one week or more, and that if any person should leave an automobile, unattended, in the street for a week or more the same shall be taken into the possession of the city and placed in the city barns, subject to inspection by any one who may claim the same, and that any person claiming the property and proving ownership thereof may take it into possession by paying to the city $3.00 for each day it has been impounded; and that in eases where automobiles have been so impounded for a period of ten days without having been claimed by the owner, the Commissioner of Streets and Parks shall advertise and sell the same.

Plaintiff brings this suit against the city for the value of his automobile, and alleges that—

“* * * the officers, agents or employees of said City of Shreveport, La., took possession of said automobile at its location on Laurel street, acting under ordinance No. 31 of 1922 of the City of Shreveport, Louisiana, hereto annexed and made a part hereof, and took it to the police station in said city, all without the knowledge or consent of your petitioner.”

And that—

“* * * thereafter the City of Shreveport, acting under authority of said ordinance No. 31 of 1922, of the said City of Shreveport, Louisiana, and after being duly notified in writing not to sell said automobile, the said City of Shreveport sold said automobile in its then condition on Saturday, June 14, 1924, for an alleged consideration of fifty-two dollars and fifty cents ($52.50), thus putting it beyond the control of said city to return his automobile to him in the condition - it received it.”

According to plaintiff’s allegations, the automobile was left on Laurel Street by a person to whom he had entrusted it, was taken and impounded by the city officers on April 31st and finally sold on June 14th, approximately six weeks after being impounded; and while he alleges that he notified the city authorities in writing not to sell the car, he does not allege that he or any one for him offered to pay the costs due the city under the terms of the ordinance for impounding and keeping the car.

Without answering to the merits, the city excepted and asked that the suit be dismissed on the ground that no cause of action is disclosed by the petition.

The exception was sustained and plaintiff appealed.

OPINION.

This is an action in tort. Counsel for appellant say in brief:

“There is no doubt that a municipality is not liable for the acts of its agents who act ultra vires its corporate powers.
“The officers in this case were acting under city ordinance No. 31 of 1922, and the city has ratified their' action as set forth in paragraphs five, six, seven, eight and nine of plaintiff’s petition.”

Plaintiff has not attacked the validity of the city ordinance under which it is said the officers acted in impounding and selling his automobile, and in the absence of such attack we assume that it is conceded that the city acted within the scope of its powers in adopting the ordinance.

“Municipalities exercise two-fold functions — the one governmental or public and the other municipal or private.”

The municipality of the City of Shreveport, in the adoption of Ordinance No. 31 of 1922, directing its officers to clear the streets of the city of abandoned automobiles, was exercising a purely governmental function.

It is alleged that the officers and agents of the city “in this case were acting under” said ordinance. They were therefore exercising for the city a governmental function.

In the recent case of Howard vs. City of New Orleans, 159 La. 443, 105 South, 443, the court said:

“This court has recognized for some years that a'municipality is not responsible for damages committed by its agents and appointees, while such agents and appointees are exercising for it governmental functions.”

In the case of West Monroe Mfg. Co. vs. Town of West Monroe, 146 La. 641, 83 South. 881, after stating that municipal corporations exercise two-fold functions, the one governmental or public and the other municipal or private, the court said:

“For damages occasioned while in the performance of the first they are exempt from liability.”

The court, in the case of Hall vs. City of Shreveport, 157 La. 589, 12 South. 680, announced the same rule, and said, with reference to the city’s liability in cases of this kind:

“In its public character, as the agent of the state, it becomes the representative of sovereignty, and is not answerable for the nonfeasance or malfeasance of its public agents.”

It isj alleged that the officers, as agent of the city, acted under and by virtue of said ordinance. Their acts in taking possession of the abandoned automobile and subsequently selling it were therefore legal. They were clothed with full authority to do what it is alleged they did. They therefore committed no tort, no wrong. The city and its officers are protected by an ordinance the legality of which is not attacked.

It is alleged, however, that certain parts of the car were removed from it while it was in possession of the city, through the fault and negligence of the officers. But plaintiff is not suing for damage to the car; he is asking for the value thereof as it stood when the city took charge of it under the ordinance. But if he were asking for damages to the car, he could not recover, because the city is not liable for damages resulting from the negligence of its officers in the exercise of purely governmental functions.

The judgment appealed from is affirmed with costs.


text:
    No. 2580
    Second Circuit
    SALTER v. McLAREN, ET AL.
    (May 22, 1928. Opinion and Decree.)

      (Syllabus Tyy the Editor)
    1. Louisiana Digest — Marriage—Par. 179.
    Under Civil Code Art. 2398 the wife cannot bind herself conjointly with her husband for debts of the community.
    Appeal from the Tenth Judicial District Court, Parish of Natchitoches. Hon. John P. Stephens, Judge.
    Action by James P. Salter against Albert McLáren, et al.
    I'here was judgment for plaintiff against Albert McLaren and for defendant Mrs. Julmar McLaren. Plaintiff appealed.
    Judgment affirmed.
    James W. Jones, Jr., of Natchitoches, attorney for plaintiff, appellant.
    M. L. Dismukes, of Natchitoches, attorney for defendant, appellee.
   ODOM, J.

On December 14, 1922, the defendant, Albert McLaren and his wife, Mrs. Julmar McLaren, executed their promissory note for $250.82 made payable to Salter & Simpson, due ten months after date, said note bearing 8 per cent interest from date until paid with 10 per cent attorney’s fees in case the note should be placed in the hands of an attorney for collection.

The note went into the hands of the plaintiff, Salter, and he brings this suit against both the husband and the wife for the full amount of the note with interest and attorney’s fees, less a credit of $12.70 paid on December 27, 1923.

The defendant, Albert McLaren, the husband, made no appearance, and there was judgment against him by default.

The wife, Mrs. Julmar McLaren, resisted plaintiff’s demands, on the ground that the note was given for a community debt, for which she was not bound.

Plaintiff’s demands against the wife were rejected by the lower court and he appealed.

OPINION

The wife cannot bind herself conjointly with her husband for debts of the community.

Civil Code, Article 2398.

Counsel for appellant, in brief, says:

“That is a well settled principle of law and if the facts supported this principle the judgment of the lower court would be correct,”

but, he says:

“it was a debt created before she married Albert McLaren.”

The record discloses that the debt evidenced by the note sued on was created during the existence of the community between Albert McLaren and his wife. The note was given for the balance due on an open account for goods and merchandise sold to defendants after their marriage. The account is in the record, and shows that the goods were charged to “Mrs. A. McLaren.” The first item on the account was charged on December 3, 1920, and is for “cloth coat & pants, $22.50.” The last item was charged on August 27, 1921.

The case was tried in November, 1925, and the testimony shows that the defendants had been married seven years at that time.

Appellant’s contention that the debt was created previous to the marriage is not borne out by the record.

It seems that Mrs. McLaren was a widow before she married McLaren. She had probably purchased goods on account from plaintiff’s firm before her marriage to McLaren, which accounts for the fact that these goods were charged to her instead of to her husband. But the account for which the 'note was given does not include any balance brought down from an old account against her. The goods were all purchased during the existence of the community.

The defendant Albert McLaren did not appeal from the judgment rendered against him, nor does he ask that it be amended.

Judgment affirmed, with costs.