author: GLEASON, J.,

text:
    No. 10,977
    Orleans
    HOUPY v. M. L. & T. R. R. & S. S. CO.
    (January 21, 1929. Opinion and Decree.)
    (February 25, 1929. Rehearing Refused.)
    (March 26, 1929. Decree Supreme Court, Writ of Certiorari and Review Refused.)
    Suthon, Zengel and Daigle, of New Orleans, attorneys for plaintiff, appellee.
    Denegre, Leovy and Chaffe, of New Orleans, attorneys for defendant, appellant.
   STATEMENT OP THE CASE.

GLEASON, J.,

ad hoc. This is an action wherein Mrs. Myrtle Schulingkamp Houpy, dative tutrix of the minor children of John Louis Schulingkamp, seeks to recover from the defendant corporation the sum of $24,-500.00 for damages growing out of the death of the father resulting from his having been killed by a switched car of defendant corporation about 12:45 p. m. on March 26, 1926, on the second main line of the Public Belt Railroad of the City of New Orleans on the river front between Madison and St. Ann Streets. It is alleged that the car was switched by what is commonly known as being “kicked”, and that it was left unattended by a brakeman, ran down the plaintiff’s father, and that, had the car been attended by a brakeman, he could have prevented the accident.

The defendant alleges that the process of kicking a car for switching purposes in the location where the accident happened was a common practice adopted not only by defendant corporation but by all railroads; that the father of the plaintiff minors was a brakeman for a long period of time working for the Public Belt Railroad; that he was familiar with this practice, assumed the risk of his employment, and, in the alternative, if they were guilty of negligence, that the deceased was guilty of contributory negligence which precluded a recovery.

A jury was prayed for but waived, and the matter was tried before the district court,. Judgment was rendered for the benefit of each minor in the sum of $5,-000.00, and with recognition of the subrogation of the Public Belt Railroad to the sum of $1708.76, representing the amount of compensation paid the heirs of the deceased. Prom this judgment, defendant appealed.

OPINION.

The location where the accident happened is on the river front of the City of New Orleans between where St. Ann and Madison Streets, if prolonged across the river front and beyond Decatur Street, would extend. At this location, there is a series of twelve tracks, and the location between the prolongation of St. Peter Street and Governor Nicholls Street is used by the various railroads, including the Public Belt Railroad, for whom the father of the plaintiffs worked as a switchman, and the M. L. & T. R. R. & S. S. Co., as a railroad yard in which switching is done during the entire twenty-four hours of the day.

In the discussion of this case, we are concerned only with the tracks of the M. L. & T., the Public Belt and the two L. & N. tracks. The first M. L. & T. track, if taken at a prolongation of Madison Street, is nearer to the river and adjoining the two tracks of the Public Belt Railroad, which adjoin each other, and then follows the through tracks of the L. & N. Railroad, and then a number of tracks of the M. L. & T. Prom about midway of the prolongation of Madison and St. Ann Streets, a track of the M. L. & T. crosses over from its track nearest to the river on an angle towards downtown, and crosses into what is known as the “scale house” of said railroad, situated on the inner track and near the corner of the prolongation of St. Philip Street.

At the time of the accident, the switching crew of the M. L. & T. had moved a train of cars from the track nearest the river over across the Public Belt tracks and across the L. & N. tracks to the scale house, and were on their way back for the purpose of diverting one of the cars ahead of the engine to the inner or woods side track of the Public Belt. This is known as the exchange or delivery track whereat the M. L. & T. always delivers cars to be belted by the Public Belt Railroad.

The train to which Schulingkamp was assigned was the Public Belt switching or delivery train on the Public Belt track nearest to the river and adjoining the one upon which the car was switched. He had made, in conjunction with his crew, deliveries of certain cars below the point of Dumaine Street, and had returned with the engineer, he being then on the engine, to the cars which had remained on the Public Belt delivery track, for the purpose of coupling up the engine to the remaining cars and then proceeding downtown. At this juncture, the engine of the Public Belt Railroad was about fifty feet or more -on the uptown side of what is known as the “double slip switch.” That is a switch situated at the junction of the crossing between the M. L. & T. track, which runs on an angle, as we have aforedescribed, and the inner Belt track or hop-leg track, as it is called in railroad parlance. In order to execute the delivery of this car of pipe which caused the injury to the hop-leg Public Belt track, it was necessary to divert it at the double slip switch situated at the junction of the Public Belt and the M. L. & T. as aforedescribed. The process used on this day, and one which the testimony shows has been universally practiced, was to kick the car from the engine, have it take the switch as it reached the junction, which then diverted it from the M. L. & T. to the hop-leg or Public Belt delivery track. At this time, and at_ the time the Public Belt Railroad engine returned for the purpose of picking up its parked cars, the switchman of the M. L. & T. was approaching the switch for the purpose of throwing it preparatory to the deflection of the car. The foreman of the crew of the Public Belt Railroad engine (the crew in charge of Schulingkamp’s switching program) was standing between the L. & N. and the Public Belt tracks about fifty or sixty feet below the switch. He was looking in the direction of downtown, from which the switched car was coming, as he says, watching the car to be switched. The foreman of the other switching crew was standing opposite him between the L. & N. tracks watching these tracks, because they were through tracks, so as to be sure they were clear.

Roberts, the foreman of the Belt crew, testifies that he watched this car until it passed him, and that, as it passed him, as can readily be seen by the angle of the track, it hit the switch, was deflected to the Public Belt track to its ultimate destination, and, from the moment the car passed him, his vision was obscured, and he could not possibly see where Schulingkamp was. Therefore he was clearly not in a position to see where Schulingkamp was from the time the car was kicked until after Schulingkamp was killed.

The switchman who threw the switch for the M. L. & T. testified that he saw Schulingkamp pass on the engine just prior to his throwing the switch, and that Schulingkamp either saw him or should have seen him, as he was obviously going to throw the switch.

Under any circumstances, Schulingkamp had been a brakeman engaged in traffic in this yard for eight years or more and was thoroughly familiar with the processes used, and it was either clear to him, or should have been clear ,to him, that the maneuver being made could have had for its purpose only one object and that was to deflect the car onto the Public Belt Railroad.

While there is testimony going to show that, had the car not been deflected onto the Public Belt, it would have continued on the oblique line of the L. & N. until, deflected by a curve onto the straightaway of the M. L. & T., we do not consider this circumstance of special importance. The important fact is that Schulingkamp either knew or, from his experience, should have known that that car was likely to go on either track, and that he should have been on his guard to protect himself against its going on the Public Belt and to keep off the track.

Not a single one of the witnesses places the location of Schulingkamp, immediately preceding the accident, with any degree of certainty, except the engineer of the Belt train crew, who says that he looked up and saw Schulingkamp about, as he expressed it, to give him a signal, and at that time he had one foot on the Belt hop-leg track, but that the oncoming car was only about seven feet from him, and it was too late to do anything.

Roberts made one statement to the effect that, prior to the accident, he had seen Schulingkamp about midway of his tender with his arms folded and one foot on the hop-leg Belt track. Exactly how far ahead of the switching maneuver this was, or what relation it might have had to the time of the maneuver, is not in any sense clarified. It certainly could not have been immediately preceding the maneuver, because Roberts’ own testimony shows that it was impossible for him to have seen Schulingkamp at this particular juncture; so that, as far as this record shows, nobody knows where Schulingkamp was between the time the maneuver was executed and the time the car was within seven feet of him, when the engineer of his own switching crew saw him. Non constat that he backed into the track just at that 'moment. That he did so is rendered plausible by the testimony of Swanson, foreman of defendant’s switching crew, who said that he himself got very excited and that when he reached Schulingkamp, he asked “Johnny, how did this happen?” And Schulingkamp said, “All I remember that I coupled up my air hose and when I backed out the car hit me.”

One of the duties of Schulingkamp was to couple the air hose and then give the signal to go a,head. The parked cars picked up by the engine were all on the uptown side of the engine, and Schulingkamp had a clear view of all the tracks towards downtown, not only the track upon which the Public Belt train would proceed, but also the hop-leg track and the M. L. & T. tracks from which the car was switched.

There was some testimony intended to elicit the fact that, in order to give the signal to the engineer to go ahead, Schulingkamp had to get out on the other track. As a matter of fact, there was a brakeman on the rear of the train to give the necessary signals to Schulingkamp, and, as the Belt engine was going downtown, it was not necessary for him to get on the track at all, and, if he did, it was incumbent upon him, as an experienced brakeman familiar with the process of switching cars, to look and be sure before he got in the way of a possible oncoming car on a track universally used for switching purposes.

The only charge of negligence is that the defendant's car ran free, that is, unattended by a brakeman on top of the car. It is not charged that kicking cars is in itself negligence when kicked in the yard, but it is charged that the car should be attended by a brakeman who can either call out to a person in jeopardy or stop the car. There is nothing whatever in this record to indicate that, even .if a brakeman had been on the car, that he could have done either of those two things, as there is nothing to show the instant upon which Schulingkamp got into jeopardy.

There is not a word of evidence to show that Schulingkamp was in an imminently dangerous position at the time the maneuver was started, and, even if it were shown that he was standing on the adjoining track near his engine, this would not have indicated danger tó a switching crew, because of the fact that this is a common experience of everyday occurrence.

There was some testimony to show that this maneuver was a flying switch maneuver, in violation of the regulations of the railroad company itself, and considerable time was devoted to a discussion of cases dealing with flying switches. The flying switch prohibited by the railroad regulations is an entirely different maneuver. In the flying switch maneuver, the engine precedes the car, turns the car loose, accelerates its speed so as to cross the switch in time to permit the switch to be turned so ‘that, when the detached car reaches it, it can take the switch “on the fly”, so to speak, and be shunted onto another track. The particular danger of this maneuver is because of the likelihood of people walking in behind the engine. The testimony explains fully the distinction between these two maneuvers.

The plaintiff founds his case on the assumption that it was the duty of the railroad company to use the best possible means in the maneuvering of its car for the protection of human life, and that the method of switching a car by the kicking process was not the best method; that it is inherently dangerous and that 'the better method is to kick the car with an attendant on the car in a ready position to avoid an accident such as the one in this case.

The answer thereto is that we are living in an age of machinery when speed of operation and economy are essential commercial elements, and, while no one has a right to wantonly disregard the rights of others, those who accept positions around machinery in railroad yards, where switching arrangements are constantly going on, and who are fully aware of the risks they take, assume same. In this complex civilization, life cannot exist, as we live it, without some human toll being paid as the price of progress and economy.

Cases of a nature similar to this have been before the courts before, and in all cases to which our attention has been directed, the courts jiave held that a maneuver such as this in a railroad yard, and in its relation to members of the crew, familiar with its processes, it is not negligence.

In Travis vs. Kansas City Southern Ry. Co., 121 La. 885, 46 So. 909, the Court said:

“The defendant railway has never lighted its switch-yards at Shreveport, Kansas City or elsewhere. The evidence shows that, among the prominent railroads of the country, some do and others do not light their yards with electricity. It is not shown that a majority of the railroads follow this practice, which, we are bound to know, is of comparatively recent date. Railroads which use appliances of a kind in common use are not guilty of negligence. The rule is that, where the employer does what is commonly and generally done by persons or corporations in the same general line of business, he is not guilty of actionable negligence. Elliott on Railroads, (2d Ed.) Sec. 1274; Towns vs. Railroad Co., 37 La. Ann. 634, 55 Am. Rep. 508. In operating an unlighted yard, the defendant was doing what railroads had done from the beginning, and what its experience of 10 years demonstrated could be done with comparative safety to its trainmen. During that long time, no like accident had happened, and its switchman had been able to see obstructions on the tracks in time to prevent collisions disastrous to life or limb. Doubtless a well-lighted yard is safer than a yard not lighted; but the railroad was not bound to employ the best possible means and appliances. Id. « « * Although Travis started to work in the evening and was killed next morning, he as an experienced switchman, who had worked in both lighted and unlighted yards, must have known the situation, and therefore assumed the risk.’’

And in Toledo, St. L. & W. R. Co. vs. Allen, 276 U. S. 165, the Court said:

“The members of the switching crew had a right to believe that he would keep out of the way of the shunted car. Aerkfetz vs. Humphreys, supra. In any event, plaintiff assumed the risk. He was familiar with the yard and the width of the space between the tracks and knew that cars were liable to be shunted without warning to him. The dangers were obvious and must have been fully known and appreciated by him. Boldt vs. Pennsylvania R. R. Co., supra, (245 U. S. 441, 38 S. Ct. 139, 62 L. Ed. 385); Ches. & Ohio Ry. vs. Nixon, supra, (271 U. S. 218, 46 S. Ct. 495, 70 L. Ed. 914); Randall vs. Baltimore & Ohio R. R. Co., supra, (109 U. S. 478, 3 S. Ct. 322, 27 L. Ed. 1003); Tuttle vs. Detroit, G. H. & Milwaukee Railway, supra, (122 U. S. 189, 7 S. Ct. 1166, 30 L. Ed. 1114). * * * There is nothing to sustain a finding that plaintiff was in any danger other than such as was usually incident to his employment, or that any member of the crew knew or had any reason to believe that he was oblivious of the situation. Illinois Central Railroad Co. vs. Ackerman, (C. C. A.) 144 Fed. 959, 962. In the absence of knowledge on their part that he was in a place where he was liable to be struck and oblivious of that danger, they were not required to vary the switching practice customarily followed in that yard or to warn or to take other steps to protect him. There is no evidence to sustain the allegation that the other employees saw, or negligently failed to discover, plaintiff in a ‘position of peril and oblivious thereof’.”

In Carlo vs. Bessemer & L. E. R. Co., 293 Pa. 343, 350, 143 Atlantic 5, the Court said (quoting from page 7):

“Appellee assumed the risk of dangers incident to his employment. He was of mature years, and had been employed for some time by this company. He knew generally of the duties devolving on brakemen. The switching movement was an ordinary one, with nothing unusual about it. The engine and car were moving at a reasonable rate of speed, but in every yard employees must be aware that cars and engines move in all directions at irregular intervals. It is one of the usual incidents of such places, and employees assume the risk of accidental hazards incident to such employment.”

It will do no good to discuss those cases dealing with the making of flying or kick switches over public streets, as the facts are different, the obligations to the pedestrian different, and the law applicable thereto not the same.

There was some testimony to show that at times, especially at the noon ho.ur, workmen from the river were in the habit of crossing the tracks of this particular yard. We do not see what bearing that can have on this case, as we are dealing with a switchman.

Plaintiff and appellee further contends that the speed of the kicked car, which was eight or ten miles an hour, was in excess of the five-mile limitation of speed on the river front fixed by a city ordinance. This ordinance was not pleaded, was objected to when offered, and the objection should have been sustained. It will, therefore, be disregarded, although we may say that the speed of the ear does not appear to have had anything to do with the accident in this case.

Testimony was had to show that Schulingkamp was a large man approximately 200 pounds in weight, presumably for the purpose of showing that the space within which he was obliged to protect himself was too restricted. The evidence shows that the space between the centers of the tracks and, therefore, between the sides of the cars on adjoining tracks, was ample for any man. Under any circumstances, Schulingkamp had been a brakeman using these tracks daily for eight years and was always able to protect himself within this space, so that it could not have been inadequate for the purpose. There is nothing whatever to show that the car kicked or the tender of the Belt train was of abnormal proportions insofar as its extensions 'are concerned.

Having found the defendant free from primary negligence, it is unnecessary to go into a discussion of the plea of contributory negligence as such.

The judgment of the district court is, therefore, annulled, avoided and reversed, and it is now ordered that plaintiff’s suit be dismissed at her cost in both courts.


source: Caselaw Access Project

author: JANVIER, J.

license: Public Domain

text:
    No. 10,582
    Orleans
    CARRICK v. N. O. PUB. SERVICE, INC.
    (February 25, 1929. Opinion and Decree.)
    H. W. Kaiser and Martin H. Manion, of New Orleans, attorneys for plaintiff, appellant.
    Ivy G. Kittredge, of New Orleans, attorney for defendant, appellee.
   JANVIER, J.

This is a suit by the mother of a small boy who was killed in a street railway accident. In the case of the father, decided by this court today (No. 10581) 120 So. 483, we held the defendant company was not liable.

For the reasons assigned in that case it is ordered, adjudged and decreed that the judgment appealed from be affirmed.


author: GLEASON, Judge

text:
    No. 11,109
    Orleans
    DAVIS v. HARRY B. LOEB PIANO CO., INC.
    (January 21, 1929. Opinion and Decree.)
    (February 25, 1929. Rehearing Refused.)
    Harold J. Winling, of New Orleans, attorney for plaintiff, appellee.
    Dufour, Rosen and Kammer of New Orleans, attorneys for defendant, appellant.
   STATEMENT OF THE CASE.

GLEASON, Judge

ad hoc. Plaintiff sues the Harry B. Loeb Piano Company, Inc., for damages alleged to have occurred to himself and to his minor child, Ruth Davis, as a result of her falling through a window in the residence of the plaintiff. It is charged in the petition that the defendant corporation had been engaged to install a radio in the residence of petitioner, and that, in the process of installation, the employee of defendant corporation removed a screen and in restoring said screen failed to fasten or secure same, and that subsequently plaintiff’s minor child, who was accustomed to play on the window and use the screen as a support, fell through the window by reason of the insecurity of the fastening of the screen, and, as a result thereof, that damages were suffered.

The defense is a general denial of the allegations of the plaintiff’s petition, and a special defense that the act of the employee, if true, was not the proximate cause of the injury, and that, therefore, no recovery could be had against the defendant corporation.

There was judgment for plaintiff, for the use and benefit of the minor, in the sum of $750.00 with interest, and further judgment for himself in the sum of $270.80. Prom this judgment the defendant appeals.

OPINION.

There is considerable confusion in the testimony and we are extremely doubtful that the plaintiff has fulfilled the burden of proof so as to show that the screen through, which the child fell was ever actually removed by the employee of defendant; but assuming arguendo that the screen was removed, and that in the replacement of the screen the employee had neglected and failed to fasten the thumb screws or otherwise attach the screen in the manner in which it had been previously secured, nevertheless the plaintiff is not entitled to recover, because there is no efficient causal connection between the act complained of and the injury to the child. There is no proof that the employee of defendant corporation was informed that the child made a habit of playing on the screen or that the screen was intended to and was used as a support for people leaning against the window. The nearest approach thereto is the evidence going to support the fact that the child was playing around the room at the time, the installation was had.

A screen is ordinarily used for the purpose of keeping out insects and not as a means of support. There was .no reason for the employee of defendant corporation to anticipate that the improper securing of the screen could cause injury to any one in the manner set forth in plaintiff’s petition. As a matter of fact, the injury to the child could not have occurred Sad it not been for the negligence of the parent in permitting the child to use the screen as a support, and no one is responsible for his negligence or that of his employees unless it can be shown that the act done or the omission complained of was one that was foreseen or could have been reasonably foreseen as a direct or probable consequence of the act of commission or omission.

To hold a person liable under the circumstances set forth in this case would be far-reaching in its effect, because anyone who made an installation of any kind would, by virtue thereof, become liable to third persons injured by coming in contact with or through the use or misuse of the particular installation, notwithstanding the damage could not be foreseen and notwithstanding it was caused by some supervening cause.

The law does not give a recovery unless the act complained of was one of negligence, and, in addition thereto, was the proximate cause of the accident. The law does not follow effects to their remote causes.

If there was any reason whatever for this employee to anticipate that this accident would or could occur in the manner set forth in this record, it has not been called to our attention, and it is certainly not one of those consequences which is likely to follow from the act complained of.

The doctrine of remote and proximate cause is difficult, if not impossible, of precise definition. It, however, is well established within definite bounds. In order to be a proximate cause, a cause must be either in itself or in connection with other causes, in direct and unbroken sequence, an efficient cause of an accident; but where the supervening cause, such as in this case, the permitting of the child to use the screen as a support, was in itself an efficient cause of the accident, the other cause then becomes the remote cause. As a matter of fact, it was not in operation at all at the time the negligence of the parents of the child came into being, but was only brought into operation as a remote cause because of the immediate and efficient cause of the child’s action in using the screen for a support.

In Milwaukee & St. Paul Ry. Co. vs. Kellog, 94 U. S. 469, 24 L. Ed. 256, Mr. Justice Strong, as the organ of the Court, said:

“The true rule is that what is the proximate cause of an injury is ordinarily a question for the jury. It is not a question of science or of legal knowledge. It is to be determined as a fact, in view of the circumstances of fact attending it. The primary cause may be the proximate cause of a disaster, though it may operate through successive instruments, as an article at the end of a chain may be moved by a force applied to the other end, that force being the proximate cause of the movement, or as in the oft-cited case of the squib thrown in the market-place. 2 Bl. Rep. 892. The question always is, Was there an unbroken connection between the wrongful act and the injury, a continuous operation? Did the facts constitute a continuous succession of events, so linked together as to make a natural whole, or was there some new and independent cause intervening between the wrong and the injury? It is admitted that the rule is difficult of application. But it is generally held that, in order to warrant a finding that negligence, or an act not amounting to wanton wrong, is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negligence or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances.”

And again, in Atchison, Topeka & Santa Fe Ry. Co. vs. Calhoun, 213 U. S., page 1, 29 S. Ct. 321, 53 L. Ed. 671, Mr. Justice Moody, as the organ of the Court, used the following language:

“Few questions have more frequently come before the courts than that whether a particular mischief was the result of a particular default. It would not be useful to examine the numerous decisions in which this question has received consideration, for no case exactly resembles another, and slight differences of fact may be of great importance. The rules of -law are reasonably well settled, however, difficult they may be of application to the varied affairs of life. In this case, undoubtedly the plaintiff’s injury was traceable to the original negligence, in the sense that it would not have occurred if the plaintiff had not been separated from his mother. Nevertheless, that negligence may not be the cause of the injury, in the meaning which the law attributes to the word ‘cause’ when used in this connection. The law, in its practical administration, in cases of this kind, regards only proximate or immediate and not remote causes, and, in ascertaining which is proximate and which remote, refuses to indulge in metaphysical niceties. Where, in the sequence of events between the original default and the final mischief, an entirely independent and unrelated cause intervenes, and is of itself sufficient to stand as the cause of the mischief, the second cause is ordinarily regarded as the proximate cause' and the others as the remote cause. Insurance Co. vs. Tweed, 7 Wall. 44, 52 (19 L. Ed. 65).”

In our judgment, the foregoing, expressions are as near to a clear and full exposition of the law of proximate cause as can be had, and an application of the reasoning set forth in those cases to the case at bar precludes a recovery on the part of the plaintiff.

The judgment of the district court is, therefore, annulled, avoided and reversed, and it is now ordered that plaintiff’s suit be dismissed at his cost in both courts.


text:
    No. 11,622
    Orleans
    SUCCESSION OF SOLIS
    (January 21, 1929. Opinion and Decree.)
    Morris B. Redmann, of New Orleans, attorney for Widow of Oliver Solis, administratrix.
    Oliver S. Livaudais, of New Orleans, attorney for Evorist Solis et al., opponent.
   STATEMENT OF THE CASE.

GLEASON, Judge

ad hoc. Oliver Solis died in the Parish of Plaquemines; his succession was duly opened and his widow qualified as administratrix. He left a separate estate and a community estate.

The separate estate consisted of immovable property and of certain movable property constituting stock in trade of a business which he owned at the time of marriage and which existed in substance at the time of death.

The community consisted of movable property.

A provisional account was filed by the administratrix, wherein she attempted to charge against the immovables of the separate estate of decedent the cost of the funeral, amounting to $281.00, as a debt chargeable against the separate estate of decedent, and in which she charged the cost of administration on an arbitrary pro rata basis.

The brother and sister of decedent, who inherited his separate estate, filed an opposition to the said account, in which they opposed the proration of the costs of administration, the charging of the funeral bill against the separate estate, and in which they prayed for an increase of the community by the allowance of $1124.00 as representing the amount of separate paraphernal property existing in kind at the time of decease.

There was judgment homologating the account so far as not opposed, and also a judgment finally homologating the account by adding to the total assets of the separate property of the deceased the general merchandise store shown to belong to said estate and which appears in the inventory herein filed at the sum of $1124.00, and by striking out that part of the said account wherein it attempts to charge the funeral bill of E. J. Mothe, undertaker and embalmer, for the $281.00 representing the funeral bill, as the separate debt of the deceased.

From this judgment, the administratrix appealed. Opponents did not appeal, but on December 12, 1928, they filed an answer to the appeal, wherein they pray that the judgment be amended by striking out from said account the charge against the separate estate of $225.00 representing alleged repairs made to the separate estate at the expense of the community.

OPINION.

The facts in this matter are all admitted. It has been decided too frequently and so much in consonance with the law of community rights that the charge for the funeral is a debt of the estate of decedent and not an obligation of the community, that we are disinclined to review the authorities thereon. This does not mean, however, that the obligation is chargeable against the separate estate of decedent as contra-distinguished from the property that might accrue to him from his net interest in the community.

The Succession of Pizzati, 141 La., page 645, 75 So. 498, when it refers to the amount being chargeable against the husband’s half of the community property, meant only to express its conclusion that it was not a charge against the community and did hot intend to decide that the separate estate of the husband was not chargeable with any portion of its cost.

The law is that this debt, being a debt of the husband, is chargeable against his entire estate, irrespective of whether separate or community, and the only question for decision is whether it is chargeable against the immovables or movables, and, if chargeable against the latter, in what proportion must the charge be made if the movables are inherited by separate heirs. That it is chargeable against the movables first is codal law, Articles 3254, 3275, Civil Code, and their application to cases similar to the one at bar has been the source of many adjudications. It is clear, therefore, that the immovables belonging to the separate estate are not chargeable with any part of the funeral cost, because of the fact that the aggregate of the movables not charged with any special privileges are sufficient to more than pay the charge.

Inasmuch, however, as some of the movables belong to the separate estate and some of the movables belong to what was formerly the community existing between the decedent and his surviving spouse, the question arises as to the proper allocation to be made between the contributions of those respective funds.

If the entire movables were inherited by the same parties, it would make no difference whatever, but it so happens in this case that the $1124.00 of movables constituting the separate property of decedent goes to his brother and sister as heirs, whereas the net amount of $2243.85 accruing from his interest in the community goes to his wife as heir of this particular property.

We are aware of no provision specifically determining the method of allocation in cases of this kind, and the reason therefor is no doubt the fact that the provision that the wife shall be the heir of the undisposed of portion of the decedent’s community interest was incorporated into the Code by amendment, and the necessity for making provision for such a contingency specifically was overlooked by the Legislature. We must, therefore, have recourse to Article 21 of the Revised Civil Code, and apply the rule of equity, which can mean only that this debt must be paid by the movables of the separate estate and the movables accruing from his interest in the community estate in the proportion which each of them bear to the aggregate of both.

In other words, the total movables, both separate and accruing from the community, are $3367.85. The total movables accruing from the community are $2243.85, and the total movables accruing from the separate estate are $1124.00, so that the community bears 224385/336785 and the separate estate 112400/336785; or substantially in the proportion of two-thirds and one-third.

This is arrived at in the following manner:

Total movables set forth in the inventory as belonging to the community, supplemented by the sum of $225.00 improvements to the separate estate, or a total of $5878.68; from which must be deducted the sum of $1124.00, which the judgment allows as the separate property of decedent, and the sums of $135.65 and $131.32 charged on the account and allowed as proper charges against the community, leaving the net value of the movables of the community $4487.71, of which the husband’s interest, one-half, amounts to $2243.85.

The judgment of the District Court is, therefore, erroneous in excluding the total of the funeral bill as a charge against the separate estate, and should be amended by apportioning it in accordance with the foregoing.

On the trial of the oppositibns, the following admission was made in an agreed statement of facts:

“It is admitted that prior to and at the time the deceased, Oliver Solis, was married to his surviving widow, now administratrix of this estate, he owned and operated a general merchandise store, which he continued to own and operate up to the time of his death, which store contained approximately the same value of stock as shown and appraised in the inventory of this estate, etc., at the sum of $1124.66.”

This document appears to us to be an unequivocal admission that this property is the separate property of decedent accruing to his heirs at law, the brother and sister, and, as the presumption that property found in the community estate is community property always yields to proof to the contrary, this proof is all that is required. The judgment, insofar as it allows said sum to the separate estate of the decedent, is correct.

Appellee filed an answer to the appeal on December 12, 1928. The case was fixed for and argument was had on the day following. Objection was made that the answer came too late, because, under the provisions of Article 890 of the Code of Practice, an answer to an appeal must be filed at least three days before the date of argument. The contention is made by appellee that, by the amendment of Act 108 of 1908, the answer may be filed at any time within three days of the actual sittings of the Court. Unlike the Courts of Appeal of the First and Second Circuits, this Court sits only in the Parish of Orleans, and its sittings are fixed by the Constitution, Article 7, Section 76, page 59, as beginning not later than the first Monday in October and ending not later than the 30th day of June in the year following.

In view of the foregoing, this proviso can have no application to this Court, except perhaps insofar as the case is fixed within the first three days of the sittings beginning in October are concerned, but, under any circumstances, it cannot possibly apply to the case at bar. The answer can, therefore, receive no consideration at our hands.

It is, therefore, ordered, adjudged and decreed that the judgment homologating the provisional account of the administratrix be amended by pro-rating the charge of $281.00 funeral expense against the movables of the separate and community estate in accordance with the foregoing opinion, and that the judgment be otherwise affirmed, costs of appeal to be paid by appellee.


author: ELLIOTT, J.

text:
    No. 354
    First Circuit
    MANUEL AND WIFE v. YOUNG
    (December 4, 1928. Opinion and Decree.)
    (February 13, 1929. Rehearing Refused.)
    O. E. Guillory, of Ville Platte, attorney for plaintiffs, appellants.

      J. Hugo Dore, of Ville Platte, attorney for defendant, appellee.
   ELLIOTT, J.

Lance Manuel, minor son of Mayence Manuel and wife, was bitten by a dog belonging to Lucius Young. Mr. and Mrs. Manuel, father and mother of the minor, claim of said Young $700.00 in damages on said account. They allege that their son was bitten at a school which he was attending, and that the dog was reported to have been infected at the time with rabies. That their son and themselves, greatly alarmed as a result of the report about the condition of the dog, consulted a physician on account of the occurrence, and had their son undergo the Pasteur treatment. They further allege on information and belief, that said Young had been informed before the occurrence that his dog was apparently mad, and was notified to keep it away from the school. That said notice was not being heeded by said Young.

The amount claimed is made up of the charge of the physician for the Pasteur treatment, trips which the father and mother made with horse and buggy .taking their son to the doctor, loss of services of their son, charge for their work and care in nursing their son, claim for their son on account of his mental suffering and anguish due to his fear that he had been infected with rabies, physical suffering as a result of the Pasteur treatment, and because of the effect of said treatment on his nervous system.

The defendant denies that their son was bitten by his dog, and further denies that his dog was infected with rabies. He also alleges that his dog was a kind, gentle animal, had never bitten anyone, nor given occasion to suspect that it would. That the children at school, including their son, had played with, teased and nagged the dog, when it, in a playful mood and as the result of their playing, may have scratched him; but not to such an extent that medical attention was needed. That their son was at fault in playing with the dog, and contributed by his action to his own injury.

Plaintiffs’ demand was rejected and they have appealed.

The evidence shows that plaintiffs’ son was about ten years of age. That defendant lived near the school which their son attended, and that defendant’s children attended the same school. That the dog often followed defendant’s children to the school house. It sometimes first went to the house of John Young, father of defendant, who also lived near the school house, and went to the school house from there.

The District Judge, citing Laurent, Yol. 20, page *675, and Martinez vs. Bernhardt, 106 La. 368, 30 So. 901, 55 L. R. A. 671, took the position that defendant’s dog was in disposition, like the one in the case cited. That it was kindly and playfully disposed, not disposed to bite, and had never bitten anybody. That defendant had never known it to be otherwise, and was not aware that it was, at times, vicious. The case of Gillespi vs. Mr. and Mrs. George P. Blaise, 3 La. App. 59, is in line with and follows the authority cited. The lower court was also convinced that the dog was not mad.

In the above cited case, Martinez vs. Bernhardt, 106 La. 368, 30 So. 901, the evidence showed that the dog in question had never bitten anybody nor given evidence of a disposition to bite previous to the time when it bit the father of the plaintiffs in that case. In Gillespi vs. Mr. and Mrs. George P. Blaise, supra, the facts were similar to those established in the Martinez case.

We find the facts in this case to be different from what was shown in the Martinez and G-illespi cases. In this case the defendant testifies to the kindly, gentle and playful disposition of his dog, and that it had never bitten anybody, so far as he knew nor shown a disposition to do so. Two young lady school teachers at the school in question, testifying as to what they had observed, state that the dog appeared to them to be kindly and friendly disposed, that it had played with the children at ■ school and had never shown a disposition to bite them. Two of defendant’s neighbors also testified that according to their observation, the dog was of a playful, friendly disposition, not inclined to bite, and they too gave it a good name.

But this testimony cannot exonerate the defendant from liability under the law, Civil Code, Art. 2321, when the evidence shows that the dog was disposed at times to bite children, and that it had done so a number of times, and h^d bitten at least one before the occurrence in question. No effort was made to dispute the showing that the dog had done so, consequently the fact must be looked on as established.

The testimony as to the conduct of the dog is not to be regarded as conflicting, because its conduct was not observed by the witnesses who testify to the good disposition, at the times, when, according to the other witnesses, the dog could not have been otherwise than rough, disposed to bite children, and did so.

Article 2321 means that when a biting by a dog is established without any fault on the part of the party bitten, then the burden of proof is upon its owner to show that the biting was accidental and an unforeseen occurrence. The Court held that such was the rule in Delisle vs. Bourriague, 105 La. 77, 29 So. 731, 54 L. R. A. 420. In that case the Court held as follows, pages 83 and 84 (29 So. 734) :

“Article 2321 of the Civil Code * * * is founded upon the presumption that the fault is chargeable to.the owner of the animal that caused the damage, or to the person in whose use or under whose care it was at the time of the accident, and that presumption can be made to give way only in the presence of proof either of an unforeseen event, or by the imprudence of the one injured.”

The case of Bentz vs. Page, 115 La. 560, 39 So. 599, is in line with the one just cited. In this case, the Court held in line with the syllabus, that in order to bring a. case within the ruling of the Martinez case, it was necessary for the defendant to show that the animal had always been of a kind temper, had never attempted to bite anyone, and had never given occasion to suspect that it would bite; and failing to do so, the law presumes that the defendant was at fault in not confining the animal, which was a strange dog, to the premises. Damonte vs. Patton, 118 La. 530, 43 So. 153, 8 L. R. A. (N. S.) 209, 118 Am. St. Rep. 384, 10 Ann. Cas. 862; Serio vs. American Brewing Co., 141 La. 290, 74 So. 998, L. R. A. 1917E, 516, and Mercer vs. Marston, 3 La. App. 97, follow the Bentz case.

In the Serio vs. American Brewing Co. case, 141 La. 290, 74 So. 998, the owner was charged with knowledge of the dangerous disposition of the dog. In this case, as in those cited, there is no question of abandonment, but the defense is that the owner of the dog is not liable because it was kind and gentle, and the owner was not aware that it was disposed to, and had previously bitten anybody.

Ewel Young, principal of the school where the occurrence took place, remembered the time when the plaintiffs’ son was bitten. He further remembered receiving a complaint that morning from one of the school patrons about the conduct of the dog toward his children, with the request that he notify the owner of the dog to keep it away from the school. The school principal says that when defendant’s children went home at noon, he told them to tell their father that the dog was disturbing the children and to keep it at home, and that when defendant’s children came back to school after the noon hour, they brought to him their father’s answer, which was that if the dog was disturbing the children for them to take a stick and run it off. It was after this, and on the evening of this day, that plaintiffs’ son was bitten.

The complaint in question was made by Ferreol Guillory. Mr. Guillory says that his children complained to him that the dog disturbed them, and that they were afraid of it. He was uneasy when his 'children complained to him, because he had heard the report that the dog might be mad. The evidence shows that some days previous to the time in question, the dog had a fight with a cat. The fight occurred at the home of John Young, father of defendant, who, for some reason, thinking that the cat might be mad, killed the cat, upon which the report became current that the cat was mad and had bitten the dog, and that as a result the dog *was mad.

The evidence further shows that the dog went to the house of a neighbor named Granger a couple of days after the biting in question, and wliile there killed a duck. This neighbor had heard reports about the dog, and that it might have rabies, so he killed the dog.

The evidence shows that the physician who administered the Pasteur treatment to plaintiffs’ son, also gave the same treatment about the same time to another boy whose name was not stated, and who had been bitten by defendant’s dog about the same time, but whether before or after plaintiffs’ son, the evidence does not show. The evidence further shows that still another boy named Hardgrover was also bitten by defendant’s dog about the same time, but whether it occurred before or after plaintiffs’ son was bitten, does not appear. This boy did not take the treatment. Still another boy, named Yizinet, was bitten by defendant’s dog at the school house on the next day after plaintiffs’ son was bitten.. The Vizinet boy was called as a witness, and testified that he was bitten, and that another boy by the name of Guillory was bitten by defendant’s dog about a week before him. The Guillory boy was therefore bitten before plaintiffs’ son was attacked. The evidence shows that still another party named Thompson had a child treated for a dog bite, but it is not shown that defendants’ dog bit the Thompson child.

Defendant’s dog, however, was biting so many children about this time that no other conclusion can be reached than that his dog had, at times, a vicious disposition, and was disposed to and did bite children, and had bitten at least one, previous to biting the plaintiffs’ son.

Under such a showing defendant cannot be discharged from responsibility for the conduct of his dog, by simply testifying with others, that they were not aware that the dbg was disposed to bite, and had not bitten anybody until the occasion in question.

As was well stated in Serio vs. American Brewing Co., supra:

“Those who are vested with the corporate authority, are bound to know, that a dog so kept, with the knowledge and approval of the agent whom they placed in charge of the plant, is a dangerous animal, which threatens injury to innocent people, and the fact that they choose to close their eyes to that condition, is not a good defense to an action in damages by a person, who, without fault on his part, has been bitten by the dog.’’

There is some question as to the fact of the injury. There was no one present when plaintiffs’ son was bitten. The only evidence is what the boy himself says. According to him, while still on the school grounds in the evening after school, but after he had started home, the dog came up behind him and jumped on his back. He pushed it off with his hand, upon which the dog bit two fingers on his left hand and blood came from the bite. He further states that he did not know the dog was about, until it jumped on him. He denies that he had been playing with, teasing or nagging the dog at the- time. The testimony of plaintiffs’ son does not stand alone on that subject. It is supported by the evidence hereinabove enumerated, that the dog bit other children before, about the same time, and after biting plaintiffs’ son.

There is also some question as to whether plaintiffs’ son was bitten or merely scratched. We have the testimony of the boy that he was bitten on two fingers and that blood came from the bite. We also have the testimony of the father. He did not see the. wound until three or four days afterwards, when his son, hearing the report about the condition of the dog, became alarmed and told him and his mother about it. At the time the boy told him, the father says that the wound looked like a bite, and was on the finger of the left hand. He also says that he informed a physician of this fact. The physician says that when he examined che wound, which was the day after the boy had reported it to his father, that it looked to him like a light long scratch, and was on the forearm.

We accept the testimony of the father and son. It matters not whether it was on the finger or the arm. It could hardly be that any doctor would administer the Pasteur treatment unless it had looked probable to him that saliva from the mouth of the dog might have gone into the boy and entered the circulation. It was no doubt explained to the father and son that a scratch from the dog’s toe nails was harmless. Their alarm supports the boy’s statement that he was bitten to the extent that same produced blood.

The dog was killed and disposed of by Mr. Granger a couple of days after the occurrence in question without effort being made to find out if it was really infected with rabies or not. The evidence therefore does not establish that it was infected; still infection might have existed. The fact that hydrophobia has not developed in any of the others bitten, does not establish the non-infection. Plaintiffs’ petition and prayer justifies recovery for the biting and the damage resulting therefrom, even though the dog was not infected with rabies.

The father paid the doctor $40.00 for giving the Pasteur treatment. The plaintiffs made seven trips at a distance of six or seven miles with horse and buggy to take their son to the doctor while he was being treated. They claim on this account $21.00; this .item will also be allowed. The $25.00 claimed by them for nursing their son will be allowfed. Their son was greatly alarmed on account of the occurrence, and believed on one occasion that he was going mad. His fright and the treatment seriously affected him. We will allow $50.00 for their son on this account. The balance of plaintiffs’ demand is refused.

The judgment appealed from is contrary to the law and the evidence, and therefore erroneous. It is ordered that the judgment appealed from be annulled, avoided and set aside, and it is now ordered, adjudged and decreed that plaintiff, Mayence Manuel have judgment against defendant, Lucius Young, for one hundred thirty-six dollars, of which $86.00 is on account of their expenses as above stated, and $50.00 is for Lance Manuel, his minor son. That said sums draw legal interest from the date this judgment becomes final until paid.

That defendant pay the costs in both courts.

(Syllabus)

      (Syllabus)


text:
    No. 363
    First Circuit
    CAVANAUGH ET AL. v. YOUNGBLOOD ET AL.
    (January 9, 1929. Opinion and Decree.)
    (February 13, 1929. Rehearing Refused.)
    R. J. O’Neal, of Shreveport, and A. B. Cavanaugh, of Leesville, attorneys for plaintiffs,, appellees.
    S. I. Foster, of Leesville, attorney for defendants, Fertitta and Maceo, appellants.
    W. L. Ford, of Leesville, attorney for curator ad hoc, for Mrs. Theodosia Young-blood, absentee.
   ELLIOTT, J.

James M. Cavanaugh, Murphy J. Cavanaugh, A. B. Cavanaugh, Ida R. Wilcox nee Cavanaugh, Loren Hays, sole heir of Mrs. Ella Griffin, nee Cavanaugh, and R. E. Cavanaugh individually and as tutrix for Ida Mabel Leach, are, together with Mrs. Theodosia Youngblood, nee Cavanaugh, wife of W. T. Youngblood, the only descendants, sole and forced heirs of James Cavanaugh, deceased. The seven heirs, plaintiffs first named, have joined in attacking a donation inter vivos made by James Cavanaugh and Addie J. Cavanaugh, to Mrs. Theodosia Youngblood, covering Blocks 24 and 25, Cavanaugh Addition to the town of Leesville, on the ground that it infringes on their rights as forced heirs of their father, was beyond his disposable portion, and an infringement on their legitime. The Act bears date July 20, 1898. James Cavanaugh departed this life on April 30, 1918. This suit was filed in less than five years thereafter. Mrs. Addie Cavanaugh, widow in community of James Cavanaugh, was a party plaintiff to the suit as first brought, but she was eliminated from the case by a judgment previously rendered herein and is not a party to the present controversy.

Judgment was rendered in the lower court in favor of the plaintiffs and against the defendants, Mrs. Theodosia Young-blood and Joe, Rose, Frank and Mrs. Salvatoria Fertitta, individually and as tutrix, and Joe Maceo, holding that the donation in question exceeded their father’s disposable (portion, recognizing and fixing their interests in the property as forced heirs, etc.

The defendants have appealed. The plain-' tiffs appeared in this court and answered the appeal, praying that their legitime be fixed at a greater interest than was allowed in the lower court, but their answer cannot be acted on nor considered in the present appeal.

The defendants, Fertitta and Maceo, appellants, have filed in this court an exception, in which they set forth that the case was not put at issue between the plaintiffs and Mrs. Youngblood in the lower court. Plaintiffs’ suit is based on Articles of the Civil Code, 1502 et seq. and 1281 et seq. Mrs. Youngblood, donee, is therefore a necessary party and must be before the court; otherwise the discussion which the law provides for, cannot take place nor can the reduction be ordered. A judgment rendered without a previous joinder of issue between plaintiffs and Mrs. Youngblood is illegal and without force or effect. Succession of Todd, 165 La. 453, 115 So. 653. The joining of issue may be by answer or .exception. Code Practice, Article 357. If there be no issue by answer or exception then it must be joined by a judgment by default, as provided by Code Practice, Arts. 310 and 360. Without a joinder of issue there is no suit. Code Practice Arts. 99 and 359.

The petition and evidence show that Mrs. Youngblood is an absentee; not resident in this state. W. L. Ford, Esq., was appointed curator ad hoc for her, but it does not appear that he made any appearance in the case as such. Mrs. Young-blood did not make any and the minutes of the lower court do not show that judgment by default was entered or confirmed against him or her. Consequently we are constrained to hold that the exception filed by the defendants Fertitta and Maceo, etc., is well taken. The case was not put at issue between the plaintiffs and Mrs. Youngblood in the lower court; the judgment appealed from is therefore illegal, and must be set aside and the case remanded to the lower court to be again taken up and proceeded with as the law directs.

For these reasons the exception filed in this court by the defendants and appellants, Joe, Rose, Frank and Mrs. Salvatoria Fertitta, individually and as tutrix, and Jose Maceo, is sustained.

The judgment appealed from is annulled, avoided and. set aside. It is further ordered that the case be remanded to the lower court to be proceeded with in the manner and form prescribed by law.

Plaintiffs and appellees to (pay the cost of appeal and the cost incurred in the lower court after the case was set down for trial. The cost previously incurred to abide the final result of the case.


text:
    No 7637
    First Circuit
    THE ADLER EXPORT CO. v. EAGLE RICE & FEED MILLS, INC.
    (January 9, 1929. Opinion and Decree.)
    (February 13, 1929. Rehearing Refused.)
    D. M. Ellison and Chappuis & Chappuis, of Crowley, attorneys for plaintiff, appellant.
    W. J. Carmouche, of Crowley, attorney for defendant, appellant.
   ELLIOTT, J.

The Adler Export Company, of which Karl Adler is sole proprietor, shipped from .New Orleans a car of corn screenings under contract of sale to the Eagle Rice & Feed Mills, Inc., at Crowley, Louisiana. The shipment was composed of 560 bags, at the agreed price of $750.40, less $120.40 freight, making a net price of $630.00 due the shipper. The bill of lading allowed inspection at Crowley. The empty bags were to be returned to the shipper. The bill of lading bears date June 7, 1926, and the shipment reached Crowley June 9, 1926. The Railroad Company over whose line it was transported notified defendant by telephone of its arrival on the day it arrived. This notice was followed by a notice by postal card, addressed to the defendant and placed in the mail box at Crowley. The notice by postal card bears date June 10, 1926, but the agents of the railroad testify that it was written and mailed the previous day. The car was not placed on defendant’s sidetrack, opened and inspected, however, until June 15, 1926. When it was opened it was discovered that the screenings were hot; upon which defendant contended that they were not in good condition. Negotiations between plaintiff and defendant immediately ensued. The defendant agreed to accept the shipment if allowed 10 per cent off the price, and in addition, the bags. The plaintiff declined this offer. An officer of the defendant testifies that defendant then agreed to accept the screenings if allowed to keep the bags, but the plaintiff’s agent through whom the offers were made testifies that defendant did not make this last named offer. At any rate there was no agreement. The plaintiff caused the screenings to be sold at auction in order to minimize the loss. At this auction which was made by plaintiffs’ agent at Crowley, the plaintiff was the only bidder. He bid in the screenings at $25.00 and almost immediately thereafter re-sold them to the Lake Charles Feed Company for $560.00.

The plaintiff takes the position that the screenings were not injured at the time the defendant refused to receive them, and that its refusal was unjust and wrongful. That the resale of the screenings was necessary and was done in order to minimize the loss. That having pursued the proper course he is entitled to recover of the defendant the purchase price and all the loss and damages which he sustained as a result of defendant’s refusal to accept the shipment.

The defendant alleges and contends that the screenings were hot and in bad condition at the time of inspection, and justifies its refusal; but claims in the alternative, that if its action was erroneous, it should have credit for the proceeds for which the shipment was resold to the Lake Charles Feed Company.

The District Judge rendered judgment in favor of the plaintiff as ¡prayed for, except that defendant’s alternative prayer that it have credit for the proceeds received in the resale to the Lake Charles Peed Company, was allowed.

Both sides have appealed.

The evidence shows that the car of screenings was started from New Orleans to Crowley on June 7th and reached there on June 9, 1926. The evidence is reasonably sure that the railroad company notified defendant that the car had arrived, on the day of its arrival; but it is not so clear that the railroad company further notified defendant on the same day by postal card. But if the notice by postal card was not sent out on the 9th it was sent on the next day, the 10th. There was timely notice over the phone and by postal card that the car had arrived.' The screenings left New Orleans on June 7th in good condition, but when the car was opened at Crowley on the 15th of June they were hot. This heat was no doubt due to the delay in opening the car.

We have resolved the dispute between the railroad company and the defendant, as to when the defendant requested the railroad company to place the car on its sidetrack, in favor of the plaintiff, and find that the delay in the matter of placing the car was due to defendant’s neglect to timely make a request of the railroad company that the car be spotted. The heat was therefore the result of defendant’s fault and negligent delay in having the car placed and in opening and inspecting it after its arrival in Crowley. The evidence further shows that the screenings, although hot when the car was opened, were not injured and should have been accepted. Defendants, having refused to accept, it was the duty of the plaintiff, under the law, to take proper steps to minimize the loss. The course he pursued was the proper one under our law and jurisprudence on the subject. Civil Code, Arts. 2549, et seq.; Gilley vs. Henry, 8 Mart. (O. S.) 402, 13 Am. Dec. 291; White vs. Kearney, 9 Rob. 495; White vs. Kearney, 2 La. Ann. 639; Judd Linseed and Sperm Oil Co. vs. Kearney, 14 La. Ann. 352; H. T. Cottam & Co. vs. Moises, 149 La. 305, 88 So. 916. These cases are cited in plaintiff’s brief, and in them others are cited to the same effect.

The shipment “subject to inspection,” left it open for acceptance. Plaintiff’s right to resell was brought about by dedefendant’s refusal to accept; and plaintiff having resold them for $560.00, we think the price received must bQ credited to the defendant, as was done in the lower court.

The defendant was properly charged with all the loss and damage sustained by the plaintiff. There is no dispute about these items; we therefore find no error in the judgment appealed from.

Judgment affirmed. Eagle Rice & Peed Mills, Inc., to pay all costs in both courts.


author: WESTERFIELD, J.

text:
    No. 10,655
    Orleans
    QUINN v. O’NEIL
    (March 18, 1929. Opinion and Decree.)
    James D. McGovern and Jose A. Morales, of New Orleans, attorneys for plaintiff, appellee.
    Daly & Hamlin, of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

This is an action for nullity of judgment, coupled with a suit for the cancellation of an agreement to sell certain real estate. There was judgment below in plaintiff’s favor, as prayed for, and defendant has appealed.

On September 27, 1925, James P. O’Neil entered into a contract with Prank P. Ouinn, whereby O’Neil agreed to sell and Quinn agreed to buy certain property for the price of $1,100.00.

The agreement stipulated that the act of sale was to be passed ‘‘within 45 days.” The forty-five days expired without the property having been transferred, and, on November 14, 1925, O’Neil notified Quinn that he had withdrawn the property from the market. On December 4, 1925, Quinn Drought suit against O’Neil for specific performance and O’Neil, failing to defend that suit, a judgment as prayed for was rendered against him, by default. Thi? suit followed. The judgment is attacked upon the ground that there was no citation.

O’Neil was served, according to the sheriff’s return, at his domicile, No. 1113 Marengo Street, by leaving the citation in the hands of his mother. This citation is said to be fatally defective for the reason that plaintiff resides at 734 Eleanor Street, and not at 1113 Marengo Street, where the domiciliary service was made.

Code of Practice, Art. 189, provides for two forms of service, personal and domiciliary. The domiciliary service “is made at the domicile when the copies of citation and petition are left at the usual place of domicile or residence of the defendant, if he be absent, by delivering them to a person apparently above the age of fourteen living in the house.” The Marengo Street residence is the home of plaintiff’s mother and sister and was at one time undoubtedly his domicile. The Eleanor Street residence is the home of plaintiff’s mother-in-law, the place where his wife and child admittedly reside.

There is considerable testimony in the record, some of which is confusing and inconsistent. For example, plaintiff himself is shown to have given the Marengo Street home on one occasion as his residence. However, the evidence preponderates to the effect that plaintiff lives in Eleanor Street, with his wife and family. There is no suggestion in the record of any marital separation, or estrangement; consequently, the normal and natural place of plaintiff’s abode would be with his wife and family, who live in the Eleanor Street home maintained by plaintiff’s mother-in-law.

It is clear to our mind that the service was not made at the domicile of plaintiff and is therefore void, and that the judgment based on such citation was properly decreed to be null and ol no effect.

As to the demand for rescission of the contract, it is opposed on the ground that plaintiff failed to put the defendant, Quinn, in default.

This defense cannot prevail. Quinn agreed to take title to the property within forty-five days and allowed that period to elapse without doing so. O’Neil notified him on November 14, 1925, two days after the expiration of the time mentioned in the contract, of this withdrawal of his property, thereby insisting upon and not waiving this provision. It is said that the title was not given to defendant’s counsel promptly, and that some delay was occasioned on that account, which should be credited against- the forty-five days. The record indicates that there was ample time, after the titles were delivered, in which the title might have been examined and the sale consummated. Besides, the act of sale by which plaintiff acquired, usually called the title, was not essential to the examination.

In Gaydan vs. Louisville, N., N. O., & T. Railroad Co., 39 La. Ann. 269, 1 So. 792, where a railroad company agreed to construct a railroad over a right of way within eighteen months, it was held that the failure to complete the road within that time did not prevent the railroad company from doing so later, because “by not insisting at the proper time on that right, and by permitting the grantees to perform their obligation after the delay had expired, grantor has lost the right to be heard to demand the dissolution.”

We are of opinion that the failure of Quinn to comply with his obligation to take the property within the forty-five days mentioned in the contract was availed of by O’Neil as a means of avoiding the contract for the sale of this property, which, for some reason, best known to himself, he no longer desired to execute, and that timely notice to that effect was promptly given Quinn, which, if any putting in mora was necessary, served such purpose.

The judgment appealed from is correct and it is, for the reasons herein assigned, affirmed.


text:
    No. 11,096
    Orleans
    BARRY v. GUIFFRIA
    (March 18, 1929. Opinion and. Decree.)
    Spencer, Gidiere, Phelps and Dunbar, of New Orleans, attorneys for plaintiff, appellee.
    Sam Schwing Kiblinger and Lloyd J. Cobb, of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

Plaintiff sues for a commission of $1,250.00, under an agreement whereby this sum was to be paid him, by the defendant in this suit, for securing for the defendant a loan of $25,-000.00, on certain real estate owned by him.

The contract between the parties is evidenced by a letter addressed to plaintiff by defendant in the following words:

“Mr. John L. Barry,
“New Orleans, La.
“Dear Sir:
“I have sold my tract of land in Jefferson parish, containing 52 acres, which is subdivided into 580 lots, and known as Ridgewood Park Sub-division, for the sum of $131,250.00, $25,000.00 cash and the balance of $101,250.00 to be paid in equal payments in one, two, three, four and five years.
“I desire the Act of Sale of this property to be passed before Titche, Kiam & Titche.
“I desire to borrow $25,000.00 for one year, at 7% interest, payable semi-annually, and hereby appoint you my Agent to secure for me said loan of $25,000.00. I will execute to parties making said loan my note for $25,000.00, due one year after date, at 7% interest, payable semi-annually, and in order to secure the payment of said loan of $25,000.00 I hereby agree to deliver to the party making said loan, to be held in trust the notes of $101,250.00 referred to above, and in addition agree to execute to said party, to be held in trust, the third mortgage of $25,000.00 on my property at 349 Baronne Street, known as the Catholic Woman’s Club.
“It is understood and agreed that the party making said loan will agree and execute release of lots sold in Subdivision upon payment of $175.00 in cash for each lot released. Subject as follows:
“It is understood, and agreed that I have the privilege of paying this loan, or any portion of it, at any time with the distinct understanding, however, that I am to pay a full year’s interest, at seven per cent on $25,000.00, irrespective of any amounts paid on the principal prior to maturity.
“In consideration of your securing for me said loan of $25,000.00, I hereby agree to pay you a commission of five per cent or $1,250.00, for your services, said amount to be paid to you at the time loan is closed.
“I further agree to furnish to the party making said loan, a title policy of the Union Title Guarantee Company for not less than $50,000, insuring title to said fifty-two acres.
“(Signed) A. GUIFFRIA.
“Witnesses:
“Mrs. L. Horn,
“John L. Barry,
“Signed in duplicate this 25th day of August, 1926.”

Plaintiff succeeded in negotiating the loan with Messrs. Kiam and Titche, as is evidenced by the following:

“August 27th, 1928.
“Mr. John L. Barry,
“New Orleans, La.
“Dear Sir:
“Mr. Kiam and myself have read the proposition on the reverse hereof and agree to lend MR. GUIFFRIA, your principal, the sum of $25,000.00, secured as outlined in your proposition. The act of Mortgage for the sum of $101,250.00 is to be prepared and passed by this office and we are likewise to examine the title to the said property and our offer is of course predicated upon our finding the title satisfactory.
“Yours very truly,
“VICTOR K. KIAM and “BERNARD TITCHE, JR.
“(Sgd.) by BERNARD TITCHE, JR.”

The defendant, Guiffria, declined to borrow the money, and refused to pay Barry, the plaintiff, his commission on the ground that his purchaser, the Southern Realty Company, had refused to take the property and comply with his agreement to purchase. His position, with respect to Barry’s commission, being that, since under the contract, it was to be paid “at the time the loan was closed,” the loan not having been closed, no commission was due.

Defendant argues that the words “closed, consummated, completed, effected and terminated” are synonymous, and that in providing that payment should be made when the loan was closed, it was intended that payment should not be made, if the loan was not closed. In other words, plaintiff’s commission was to be contingent upon the closing of the loan.

We are referred to Blanc vs. The New Orleans Improvement and Banking Company, 2 Robinson 63, where the plaintiff was not permitted to recover a commission for negotiating a loan which was to be paid when the loan “shall have been effected,” because the loan was never effected. Also to McWilliams vs. Lyons, 5 Órl. App. 231, where the plaintiff was denied recovery of his commission of 2%, due when act of sale has been completed, because “plaintiff cannot be considered as having effected the sale,” the purchaser refusing to carry out his agreement to purchase.

Other cases cited by defendant: Nutting & Company vs. Kennedy, 16 Ga. App. 569, 85 S. E. 767; Evans vs. Marr, (C. C. A.) 298 Fed. 288; Stanton vs. Carnahan, 15 Cal. App. 527, 115 Pacific 339; Morse vs. Conley, 83 N. J. Law, 416, 85 Atlantic 196, etc., are not in point.

In all of these cases, the contract stipulated that the commission was to be' payable only in the event of the consummation of the sale, or the sale,’upon which the commission was to be paid, was not consummated by reason of the refusal, or inability of the purchaser, or party represented by the agent, to go on with the transaction.

In the case at bar, Barry’s compensation is not dependent upon the consummation of the sale, which Guiffria had made of his property to Southern Realty Company, but, on the contrary, the contract in its opening paragraph announced, as a fact, that defendant’s property had been sold, and, that in the carrying out of the terms of the sale, defendant desired to borrow $25,000.00, for the obtaining of which loan, Barry, the plaintiff, it was agreed, was to receive a commission of 5%, or $1,250.00. Barry is in no sense responsible for the failure of defendant’s purchaser to take the property. He carried out his agreement and obtained the loan which defendant desired. If defendant’s purchaser breached the contract with defendant for the purchase of his property, the law 'provides a remedy, but it does not relieve defendant of his obligation to pay plaintiff for his services, under the contract, which plaintiff had performed.

The fact that the plaintiff was to be paid, when the loan was closed, merely refers to the time of payment, but does not impose a condition affecting plaintiff’s right to recovery. The reason the loan was not made, was not due to plaintiff’s inability to secure it, but because defendant refused to accept the loan. His refusal, it is true, was based upon his inability to compel the Southern Realty Company, his purchaser, to comply with its agreement to buy his property, a circumstance which doubtless made the loan undesirable. It Is said that defendant made every effort to persuade his purchaser to take the property, and we have no doubt of the sincerity of his efforts to accomplish that result. However, the fact remains,- that the fault lies with defendant, and not with plaintiff. The parties whom plaintiff had induced to loan the money, continued in their willingness to do so and their offer was not withdrawn. Barry did not undertake to sell defendant’s property but to find someone willing to loan him money, upon the terms stipulated in the contract. This he did, and more can not be required.

The case at bar is very similar, as to its facts, with that of Gurley & Parkinson vs. Julius Loeffler, 14 Orl. App. 424, where it was held ‘‘that a broker employed by a vendor to negotiate a sale or exchange of property is entitled to his commission when he has found a purchaser, although the sale is never consummated owing to the fault of the vendor.” Numerous authorities are cited and discussed in this case, which we do not consider necessary to review.

The trial court rendered judgment for plaintiff as prayed for and we are of the opinion that the judgment is correct.

For the reasons assigned the judgment appealed from is affirmed.


author: PER CURIAM.

text:
    No. 11,809
    Orleans
    GENTILLY DEVELOPMENT CO. v. CARBAJAL
    (March 4, 1929. Opinion and Decree.)
    See, also, Gentilly Dev. Co. vs. Carbajal, 166 La. 905, 118 So. 78.
    Monroe and Lemann, of New Orleans, attorneys for plaintiff, appellee.
    Frank P. Krieger and Delvaille H. Theard, of New Orleans, attorneys for defendant, appellant.
   PER CURIAM.

The alternative writ of prohibition heretofore issued in this cause is recalled and relator’s petition dismissed upon the authority of Gentilly Development Company, Inc., vs. Mrs. Henrietta S. Carbajal, No. 29,758 of the docket of the Supreme Court, 121 So. —, decided Monday, February 25, 1929.


author: JONES, J.

text:
    No. 10,732
    Orleans
    PUMILIA v. JOHNSTONE
    (March 18, 1929. Opinion and Decree.)
    Frymire and Ramos, of New Orleans, attorneys for plaintiff, appellant.
    A. T. Higgins, of New Orleans, attorney for defendant, appellee.
   JONES, J.

Plaintiff sues for $595.00,* seven months’ rent of an apartment at No. 4507 S. Derbigny Street, at the rate of $85.00 per month. He attaches to his petition the lease, which was in standard form, beginning January 12, 1925, and ending September 30, 1926, and the seven unpaid rent notes. He alleges that defendant abandoned the premises on February 20, 1926, and that he was actually moving out his furniture when this suit was filed. A writ of provisional seizure was issued, but the furniture, which had been seized by the sheriff, was later bonded.

Defendant answered, admitting the lease, but averring that there had been installed in the building a Go-Ro water heater, which was connected with a flue built in the wall; that on various occasions in November and December, 1925, and in January, 1926, two cooks, a guest, his mother-in-law, his baby and his wife had been made ill by carbon monoxide fumes from the Go-Ro heater; that on each occasion he notified plaintiff through his rent collector; that a representative from the Go-Ro company was called in, who reported the heater in good condition, but that the vent to carry off the gas and smoke was a mere sham, or pretense; that the gas, instead of going through the vent, returned into the kitchen, and, when the windows were closed, any occupant of the kitchen would, be overcome; that this bad .vent was due to the faulty construction of the building, and that he had been forced to abandon the apartment by the 'poisonous fumes.

On May 4th, Calvin Flemming, father-in-law of defendant, intervened, claiming ownership of a part of the seized furniture, but his intervention was dismissed.

After trial there was judgment for defendant, dismissing the suit, and plaintiff has appealed.

Plaintiff offered the lease and rent notes and rested.

Mrs. Johnstone, wife of defendant, testified substantially as follows:

That she was a graduate physician and that in November, 1925, her cook had fainted in the kitchen; at first she thought it was a heart attack and had no idea it was carbon monoxide; that later a new cook was attacked in the same manner and that a visitor had to leave the kitchen because she was made ill; that her niece and mother were also made sick and that on Christmas Day she was made so ill that she had to go to bed after dinner and remain there for. a week; that these'various illnesses were caused by the carbon monoxide gases issuing from the Go-Ro heater; that this gas was particularly bad when someone turned on a faucet to get hot water; that she had tried to report this defect at the office of Deano, the real estate agent representing plaintiff, but had not been able to find him in and that she had told the rent collector that she would have to move unless the defect was remedied; that at the same time she had complained of several other small defects which had not been improved; that she had the- Go-Ro representatives up there two or three times but they did not remedy the defect; that she could not close the two windows in the kitchen because no one could stay in the room then; that she herself had not been in the apartment frequently during 1925, as she was living in the country, but that the apartment had been occupied from time to time.

Albert Flemming and Steve Wildey, witnesses for defendant, who had made a more or less casual examination, then testified as to the construction of the flue, but over the objection of plaintiff’s attorney on the ground that this testimony was not admissible under the answer, which had averred that the flue was bad and not the heater.

We do not find it necessary to analyze the evidence of these witnesses, as the construction of the flue was later thoroughly explained by Goreaux, after a careful inspection. However, we note here that Wildey, later on in the trial, when he was put on the stand in rebuttal, testified that the flue was straight and went to the roof without obstruction, although he had testified differently on his first examination.

Plaintiff testified positively that he had never heard any complaints about the flue or the Go-Ro heater; that the flue could have been easily removed without tearing down the wall.

Pelletier, a witness for plaintiff, testified that the vent had been placed there by Go-Ro himself and that it had nothing to do with the proper supply of oxygen, as it was intended to take away the burnt gases; that he was both an attorney and a building superintendent, and that he had built six of these apartment houses at one time, four of them being in that immediate neighborhood—three on one side of the street and one on the opposite side, in which he lived; that in. these houses all of the vents were constructed in the same way and all connected with Go-Ro heaters in exactly the same way under the instruction of Goreaux; that he had never heard any complaints about them; that he had probably placed, in different buildings, a hundred heaters of this kind, which gave satisfaction.

Goreaux, the inventor and manufacturer of the Go-Ro Water. Heater, testified that he had turned out 250 heaters a month for the past eight or nine years and that he had made a thorough inspection of the flue and heater in this apartment with Pellet-tier and a tinsmith just fifteen days before the trial; that the flue had been installed as he directed; that the entire length of the whole vent structure was five feet and that the vent was amply sufficient to remove the gas fumes, if any; that there was an exactly similar heater downstairs in the lower apartment with the same kind of flue, in good order, giving entire satisfaction; that on the 'day of Ills inspection he had tested the flue and the heater by burning a newspaper in the heater, as he could not light the gas because some of the pipes in the building had been disconnected and left open; that he found no such stains or discolorations, as usually are left by imperfect work on the part of water heater or flue; that the invention and testing of water heaters, and the burning and combustion o'f' fuel had been his business for the past twenty-five years after he had made a special study of the subject; that $5.00 would cover the cost of putting in a new pipe four feet long, with a couple of elbows; that the kitchen contained two windows and two doors and that he had found the vent perfectly straight, without any obstructions, and that it gave a good draft; that the vent pipe was insulated with asbestos paper; that there was a circular pipe leading off from the water heatgr up to the wall about five inches in diameter; that this circular pipe goes through the wall into a rectangular 5% by 2-inch pipe, amply large to carry off all gases and create a strong draft.

On cross-examination he testified as follows:

He was no longer connected with the Go-Ro heater; he had never been a college student, but that he had taken correspondence courses and was familiar with the subject both from a technical and mechanical standpoint; that carbon monoxide gas was lighter than air and would tend to rise to the ceiling instead of settling on the floor; that the flue extended one foot one inch above the top of the roof and the circular pipe leading from the heater projected into the rectangular pipe in the wall substantially a quarter-inch; that the rectangular pipe was 5 by 2% inches and it had ample capacity to take off the fumes from this four-gallon heater; that on the day of his inspection he had put his hand inside the flue, had gone on top of the roof and examined every part of the flue except about six inches; that carbon monoxide would have a tendency to discolor the heater and the ceilings and that the flames coming out of the heater would discolor the vent pipes, but he had found no evidences of any such discoloration; that the canopy placed over the gas-stove and heater would aid in carrying away noxious gases and cooking odors, if any were formed and that, in his opinion, no illness would be caused by the heater or by the flue; if all doors and windows were closed and no air admitted in the room the heater would not operate at its best; that it would be like closing the damper on a stove, thus causing some carbon monoxide to be given off; that the flame in the heater might be a perfect blue flame and still a small percentage of carbon monoxide might be given off, and possibly some carbon dioxide too; that all heaters show about five per cent incomplete combustion. On page 57 he testified in part as follows:

“A. Well, they might have gotten sick from many causes. They may have become overcome by heat; they may have a congestion from the outside but not from carbon Monoxide.
“Q. If all of these conditions were there, it would show conclusively that the heater was not working properly.
“A. Not necessarily; it would probably be that the gas was not working properly. If the gas is not connected to a flue, as in a gas stove, the carbon monoxide escapes from an oven and the chances of toxic poison are greater from a gas stove than from a heater with a flue.
“Q. What effect does the high pressure on gases have, with reference to a Go-Ro water heater giving off a greater or a lesser quantity of carbon monoxide?
“A. Well, if the pressure is abnormal, you will have too much gas for the capacity to inspire atmosphere air, and the result would be incomplete combustion and therefore result in carbon monoxide. The chances of high pressure in a heater is very remote.
“Q. And very remote with low pressure also?
“A. That has the opposite effect; it would have too much inspiration for the Bunsen burners. I may say that all through this house there are gas appliances, such as radiators and heaters burning, and all of them has a tendency to take the oxygen out of the air and the whole atmosphere' is being deposited with a more or less percentage of carbon monoxide; and, in this case, that may have affected the occupants of that house.’’

He had spent one and a half hours at the building and that, in his opinion, the vent pipe was adequate and was operating properly, as it was installed in the usual way to prevent any down draft.

Pellettier, the building expert, when recalled to the stand, confirmed Goreaux as to the inspection of the premises and the testing of the heater. He said that once, shortly after defendant moved into the building, he had gone there with him and that defendant had then complained of the narrowness of the driveway and said “he was going to take a sledge hammer and break the damn thing off,” but that he had not complained of the heater, or of the flue; that he then noticed that the gas radiator in the sitting room had been removed and that an otpen gas heater had been substituted; that he had built six apartment houses and that all contained heaters and vents exactly like this one and that they had been installed by the same plumber and the same tinsmith and that there had never been any complaints; that he was living in a similar building just across the street and that he had a tenant for one and a half years in his upstairs apartment, which, contained a heater and flue just like this one, but he had never had any complaint.

Giroir, a tinsmith, who testified that he had built twelve such vents, but had heard of no complaints, confirmed Goreaux and Pellettier as to their inspection and said he saw smoke rising out of the roof when the newspaper was burned; that the flue, which was solid metal pipe, could easily be pulled out and another installed at a cost of five or six dollars, as there was ample 'room in the wall to take out the pipe, the vent or flue being only 2% by 5 inches, while there was a space inside 8 by 2% inches; that in order to remove this flue you would simply have to cut off three rivets, remove the cap from the roof, pull out the metal pipe and put in a new one.

Caillouet, the plumber who installed this water heater and ten others, in all these apartments, confirmed Goreaux, Pellettier and Giroir as to the inspection and testing of the heater. He said that he had installed altogether about two hundred of these heaters and had had no complaints and that a new flue or vent could be put in for six or seven dollars, by running the pipe straight up to the roof.

Plaintiff, when recalled, confirmed the other four as to the inspection.

He said that a new vent could easily be installed by running a new pipe up to the roof and that it would not look quite so well, but would not cost more than five dollars; that he had a telephone at his residence and in his office, but had had no complaint from defendant of any sort.

Douglas Flemming, a witness for defendant, testified on rebuttal that when you turned on the heater the flame roared, and if you stayed in the kitchen you would get sick from the carbon monoxide; that incomplete combustion of any fuel containing carbon always produced carbon monoxide in larger or smaller quantities, depending on the kind of fuel and various other conditions; that he had been present in the house when others were made sick; that the two windows in the kitchen occupied practically all one wall and covered at least twelve square feet; that the kitchen contained a four-burner gas stove and that the windows were always open when people were in the kitchen.

Calvin Flemming, the father-in-law who had claimed a part of the furniture, testified that he had advised his daughter to move because the flue was defective.

Mrs. Alma Flemming testified that she had been taken sick twice in the kitchen while she was helping with the cooking; that once she was made sick in five minutes, although the windows were open and the gas stove was not burning; that at another time she was made sick in ten minutes; that at both times only the small pilot light was burning; that she did not know much about the heater or the flue, as she visited there rarely a few days at a time.

The above analysis of the evidence shows that the defendants, in their attempted proof, go further than the allegations of the answer. In the answer they had stated that whoever happened to be in the kitchen would be overcome' by the gas when the windows were closed, but in their testimony they say that these persons were made ill, even with the two windows and the two doors open, and one witness even goes so far as to say that she was made ill while only the pilot light was burning, although defendant’s wife had stated that the gas fumes were not bad, except when a hot water faucet was turned on.

It will be further noted that defendant had been leasing the building, at the time they attempted to abandon it, thirteen months and eight days, and that they had never communicated directly with the landlord, although he had a telephone at his office and home.

It seems to us that the testimony of the expert, Goreaux, should be given great weight, as the heater and flue had been installed under his instruction and he had made a thorough inspection and examination of the heater and of the flue itself just before the trial.

His testimony is far more probable than that of the defendant’s wife and his other witnesses under all the circumstances. As the heater could easily have been turned off it seems highly improbable that so many people would have been made ill. In a small kitchen with two windows and two doors open, such a result would be well nigh impossible.

Furthermore, the evidence shows that the kitchen contained a four-burner gas stove, which was used constantly to prepare meals, and some gas might have escaped from that.

We do not find it necessary to pass upon plaintiff’s objection to the evidence, or upon the legal points made by him as to insufficiency of notice and notice to unauthorized persons, because a careful examination of the facts convinces us that the defendant has failed to prove his special defense and that the abandonment of the premises when repairs could have been made for so small an amount, was unjustifiable.

The appellate courts of this State have always held that the law does not favor the abrogation of leases. Riccobono vs. Kearney, 7 La. App. 738; Denman & Co. vs. Lopez & Co., 12 La. Ann. 823; Glaser vs. Cahill, 9 La. App. 388; 120 So. 730.

Forfeiture of leases is not encouraged by the Courts and will be enforced only when the right thereto is clear beyond a doubt both of fact and law. Rosenthal vs. Prutsman, No. 1728, unreported Tess. Orl. App. Dig. 103. (See So. Rep. Dig.)

In Hyman vs. Hibernia Bank, 144 La. 1085, 81 So. 718, the Court said:

“Again it has been held that the abandonment by the lessee of the leased premises has the effect of maturing the whole amount of the rent under the lease.”

For the above reasons the judgment is reversed and it is now ordered, adjudged and decreed that there be judgment in favor of plaintiff Anthony M. Pumilia, and against the defendant, Dr. R. W. Johnstone, in the sum of five hundred and ninety-five dollars ($595.00), with interest at eight per cent (8%) from February 25, 1925, and with ten per cent (10%) attorney’s fees on' principal and interest, and all costs, and recognition of plaintiff’s lien and privilege on the property provisionally seized herein.


author: WESTERFIELD,. J.

text:
    No. 11,338
    Orleans
    SMYTHE v. YOUNG
    (February 11, 1929. Opinion and Decree.)
    (March 4, 1929. Rehearing Refused.)
    (See Young vs. Smythe, 6 La. App. 52.)
    Lemle, Moreno and Lemle, of New Orleans, attorneys for plaintiff, appellant.
    Charles S. Young, of New Orleans, attorney for defendant, appellee.
   WESTERFIELD,. J.

A collision occurred between an automobile owned and driven by Edgar H. Smytlie and an automobile owned and driven by Charles S. Young. Young brought a suit in the First City Court for the City of New Orleans and Smythe in the Civil District Court for the Parish of Orleans. In each suit the damages sued for were alleged to be the result of negligence on the part of the defendant in the operation of his automobile. The suit of Young vs. Smythe reached this court on appeal and was decided by us April 11, 1927. (See Young vs. Smythe, 6. La. App. 52.) We held in that case that the collision was due to the fault of Young and reversed a judgment of the First City Court awarding him damages. We did not discuss the conduct of Smythe with a view of . determining his negligence, since there was no demand' in re-convention, but in holding that Young was to blame for the accident, we inferentially held that Smythe was not, a fact recognized by the judge, a quo. Subsequently this case (Smythe vs. Young) was reached in. the Civil District Court, and was tried, admittedly upon practically the same evidence as in the former case between the same parties, and resulted in a judgment in favor of plaintiff in this case.

Adhering to our former opinion to the effect that Young was to blame for the accident, and that Smythe was not negligent, the judgment must be reversed.

Smythe sues for damages to his automobile in the sum of $154.80, which have been proven. He sues for personal injuries and damage to his clothing and personal effects, which latter item of damage he places at $75.00. He was not permanently injured. On the whole we have concluded to allow him $750.00.

For the reasons assigned the judgment appealed from is reversed and it is now ordered that there be judgment in favor of plaintiff, Edgar H. Smythe, and against the defendant, Charles S. Young, in the sum of seven hundred, and fifty dollai's ($750.00), with legal interest thereon from judicial demand until paid, and for all costs.