author: DREW, J.

text:
    No. 3794
    Second Circuit
    MORGAN v. LEONE ET AL.
    (July 5, 1930. Opinion and Decree.)
    Byron A. Irwin, of Shreveport, attorney for plaintiff, appellant.
    R. A. Fraser and Boone & Boone, of Many, attorneys for defendants, appellees.
   DREW, J.

Plaintiff brought suit against Mrs. L. Leone and Mrs. Edan Leone Ferguson, alleging that he had acquired an oil and gas lease from said defendants on certain described eighty-four acres of land in Sabine parish, La.; that, in preparing the said lease, the property was wrongfully described, and prays for a correction of the said lease as to the description of the property leased.

Defendants filed an exception of no cause of action in connection with an answer in which they deny that any lease contract was ever entered into by defendants with plaintiff, and allege that no consideration was offered or paid by plaintiff, and pray that the demands of plaintiff be rejected and the pretended lease contract, as filed for record and recorded, be ordered canceled from the public records, and that the lis pendens filed for record by plaintiff also be ordered canceled.

The answer was filed by defendants on the morning of January 20, 1930, and, on the same day, in the absence of plaintiff and his attorney, the case was fixed for trial for the 23d of January, 1930.

The petition alleges that plaintiff is a resident of the state of Arkansas, and that his attorney is a resident of Shreveport, La.

It seems that on the following day, the 21st of January, 1930, counsel for defendants notified the attorney for the plaintiff of the fixing of the case for trial, and the latter immediately got in touch with an attorney in Many, Sabine parish, La., the parish in which the suit was filed, and re-guested said attorney to join him in the prosecution of the suit, and to apply for a continuance of the trial the next morning on the ground that the plaintiff did' not have sufficient time to locate his witnesses and have them present in court, and that later in the day the attorney in Many, La., notified the attorney for the plaintiff that he was associated with one of the counsel for defendants, and therefore could not join him in the suit, whereupon plaintiff’s attorney communicated with Mr. Ponder, an attorney of Many, La., who refused to join him in the suit for plaintiff hut, out of courtesy, agreed to file an application for continuance on the grounds above set forth, and, on the morning of January 23, 1930, Mr. Ponder did file a motion for continuance, alleging that counsel for plaintiff was not notified of the fixing of the case until the 21st of January, and had insufficient time to summon his witnesses and ■properly prepare his case for trial, and also alleging that one of plaintiff’s witnesses resides in the state of Texas and the other in the parish of Caddo, and that he intends to prove by them, and that they will swear to all the facts and matters alleged in plaintiff’s petition, and giving the names of the said witnesses.

The application was signed in the name .of the attorney for the plaintiff by William H. Ponder, and is certified to in the same manner.

There is no affidavit as to the truthfulness of the allegations of the application, either by the plaintiff or his attorney, or allegation that plaintiff cannot prove the same facts by other witnesses. Neither is it alleged that plaintiff has made any attempt to secure the presence of the witnesses in court, or to have their testimony taken. The allegation is that he has not had sufficient time to have summons for them issued and served upon them. Both witnesses are alleged'to be non-residents of the parish of Sabine, and one of them a nonresident of the state; and summons, though served on them, could not have been enforced unless they had voluntarily put themselves within the jurisdiction of the court.

We feel sure that, if the application had been in proper form, the lower court would have granted a continuance, as it should have done, and, while the record does not show it, we feel sure that the application was refused because it was not in the form reguired by law.

A litigant is entitled to a reasonable delay and opportunity to get his witnesses. Succession of Oliver, 1 La. App. 526; Succession of White, 45 La. Ann. 632, 12 So. 758; Neyland vs. Neyland, 8 La. Ann. 467.

But he must make the proper showing that he has used due diligence in trying to' get them, and his application must be sworn to. Code of Practice, art. 464.

The application for continuance was properly overruled.

Plaintiff and his attorney were absent when the case was called for trial, and the defendants proceeded to put on their testimony, after which the lower court rendered the following judgment:

“It is therefore ordered, adjudged andv decreed that defendants, Mrs. L. Leone and Mrs. Edna Leone Ferguson, do have and recover judgment against plaintiff, J. E. Morgan, rejecting his demands; and it is further ordered, adjudged and decreed that said defendants have judgment against plaintiff, J. E. Morgan, ordering the cancellation and erasure from the public records of Sabine parish, Louisiana, the instrument dated November 27, 1929, filed for record December 11, 1929, bearing recorder’s file number 38562 and also the notice of lis pendens of date December 7, 1929, and filed for record December 11, 1929, bearing recorder’s file number 38568, said instruments being hereby declared null and void and ordered cancelled and erased from said records. It is further ordered, adjudged and decreed that plaintiff pay all costs of this suit.
“Thus done and rendered in open court on January 23rd, 1930, and read aloud and signed in open court on this the 24th day of January, 1930.”

We think the judgment of the lower court is erroneous. There was no reconventional demand by defendants, and therefore the only judgment that could have been rendered by the lower court, in the absence of the plaintiff and his attorney, at the time of the trial, was one of nonsuit. Code of Practice, art. 536; McDonogh vs. Dutillet, 3 La. Ann. 660; Phillips vs. Cassidy & Powell, 36 La. Ann. 288; City of N. O. vs. Le Bourgeois, 50 La. Ann. 592, 23 So. 542; Miller vs. Miller, 156 La. 46, 100 So. 45.

In the ease of McDonogh vs. Dutillet, supra, the court said:

■ “Where a plaintiff,.in an action in which there is no reconventional demand, fails to appear on the day fixed for the trial, either in person or by attorney, to prosecute his suit, no final judgment can be rendered against him; the judgment should be one of nonsuit.” Code of Practice, arts. 491, 532, 536. Cited in Dunbar vs. Mansker, 4 La. Ann. 176; Davidson vs. Silliman’s Executors, 24 La. Ann. 227; Bourg vs. Gerding, 33 La. Ann. 1370; State ex rel. Henderson vs. McCrea, 40 La. Ann. 22, 3 So. 380; State ex rel. Gondran vs. Rost, 48 La. Ann. 458, 19 So. 256; City of New Orleans vs. Le Bourgeois, supra; Clement vs. Breaux, 115 La. 78, 38 So. 900.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be reversed, and that there be judgment in favor of defendants and against plaintiff rejecting his demands as of nonsuit.

Costs of appeal to be paid by defendants, appellees, and costs of the lower court to be paid by plaintiff, appellant.


source: Caselaw Access Project

license: Public Domain

text:
    No. 2588
    Second Circuit
    DODD v. HORAN (BEESON-MOORE STAVE COMPANY, Intervener)
    (July 5, 1930. Opinion and Decree.)

      R. A. Fraser, of Many, attorney for plaintiff, appellee.
    Boone & Boone, of Many, attorneys for intervener, appellant.
   DREW, J.

Plaintiff, who was employed as a bookkeeper by defendant, brought this suit claiming $350, balance due him as an employee of defendant, and provisionally seized a lot of staves, claiming a privilege on them for his salary. Beeson-Moore Stave Company intervened in the suit, claiming ownership , of the staves by purchase from defendant. The case was tried in the lower court, resulting in a judgment for plaintiff for the amount sued for and recognizing his privilege on said staves that were manufactured by defendant, and rejecting the demands of the intervener.

On appeal to this court the judgment of the lower court was reversed, in so far as plaintiff was concerned, the court holding that a bookkeeper did not come under the provisions of Act No. 23 of 1912, and that therefore plaintiff had no lien or privilege on the staves manufactured by defendant. 121 So. 323. An application for rehearing was made and a rehearing was denied. Dodd v. Horan, 12 La. App. 330, 122 So. 140.

This court did not either affirm or annul the judgment of the district court in so far as it rejected the intervener’s demands.

The case was finally lodged in the Supreme Court of this state under a writ of review, and the judgment of this court was affirmed. However, on application for rehearing, the Supreme Court remanded the case to .this court (Dodd v. Horan, 169 La, 884, 126 So. 225) with the following instructions :

“This case is ordered remanded to the Court of Appeal with instructions to decide, if the court has not already decided, whether the Beeson-Moore Stave Company, Intervener, bought the staves which were seized as the property of J. C. Horan; and the Court of Appeal is instructed further to affirm the judgment of the District Court in all respects if the Court of Appeal decides or has decided that the Beeson-Moore Stave Company did not buy the staves from Horan previous to the provisional seizure which was levied at the instance of the plaintiff, D. D. Dodd.”

Defendant, Horan, was operating a stave mill at Zwolle, La., and selling his output to the intervener. As he needed money to operate on, he would count the number of staves he, had manufactured and draw on the intervener for the value of same, less $10 per- thousand, and to each draft he would attach a bill of sale. There are nine such bills of sale in the record, and the testimony shows that they cover all the staves . manufactured by the defendant. The bills of sale attached to. the drafts read as follows:

“Know all men by these presents: That, I, J. C. Horan, of Zwolle, Louisiana, in and for the consideration of the price and sum of forty two and 50-100 dollars, cash in hand paid by Beeson Moore Stave Company, of Little Rock, Ark., the receipt of which is hereby acknowledged, have bargained, sold, granted, conveyed and delivered and by these presents do bargain, sell, grant, convey and deliver unto the said Beeson Moore Stave Company, their executors, administrators and assigns, the following described property, to-wit:
“21000 Pieces % inch by 34 inches Barrel Staves (White Oak) at $30.00 per M.
“8500 Pieces % inch by 34 inches Barrel Staves (Red Oak) at $25.00 per M.
“Situated at the old planing mill of the Sabine Lumber Company on the side track of K. C. S. Ry. in Zwolle, Louisiana.
“To have and to hold the same unto the said Beeson Moore Stave Company, their executors, administrators and assigns, for■ever.
''And I do, for myself, my. heirs, executors and administrators, covenant and agree to and with, said Beeson Moore Stave Company to warrant and defend the said described property unto the said Beeson Moore Stave Company, their executors, administrators and assigns, against all and every person or persons whatsoever.
“In witness whereof I have signed this presents in duplicate in the presence of H. J. Mitchell and T. Laroux, two competent witnesses, who as witnesses signed with me. Thus done and passed at Zwolle, Louisiana, on this the 11th day of April, 1925.
“J. C. Horan.
“Witnesses:
“H. J. Mitchell.
“T. Laroux.”

There are nine such bills of sale in all, and all are worded the same, with the exception of the number of staves and amount.

Intervener offered in evidence the bills of sale and the canceled drafts which were attached to the bills of sale, in support of its contention that it had bought the staves from defendant. Defendant admits that he sold intervener the staves.

Plaintiff contends that as there was no actual delivery of the staves to intervener, no sale was perfected, and that intervener only advanced the money represented by the drafts for defendant to operate on. And the lower court so held. We cannot agree with the lower court on this point.

There was nothing uncertain about this transaction. The number and kind of staves were set out in the bill of sale, as well as the price of the staves and the location of the staves. The thing, the price, and the consent are all present in this transaction.

It is true that the oral testimony shows that whenever the intervener inspected the staves and found that they were up to the standard, he was to pay the defendant $10 per thousand more for them. However, upon inspection he found many culls and defective staves, and learned that he had overpaid the defendant in an amount of néarly $2,000. After culling the defective ones, intervener was short about 15,000 staves that he had bought and paid for.

This case does not fall under article 2458 of the Civil Code by reason of intervener holding back $10 per thousand of the price. There is nothing uncertain about the price, and the $10 per thousand was only for protection against shortage and defective staves. If on inspection by intervener the number of staves bought by it were there and came up to specifications, then the remainder of the price was due and fixed. There was nothing indefinite about it. The intervener purchased a specific number of staves for a certain and definite price, situated at the old planing mill of the Sabine Lumber Company on the side track of the Kansas City Southern Railway in Zwolle, La., - and paid for them. The staves purchased included all the staves that were later provisionally seized by the plaintiff.

It therefore follows that the former judgment of this court, reversing the lower court in so far as same recognized a lien and privilege on the staves seized in favor of plaintiff and setting aside the provisional seizure and releasing the staves, will have to be reinstated and the intervener recognized as the owner of the staves provisionally seized.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court, in so far as it rejected the demands' of the intervener, is reversed, and the intervener, Beeson-Moore Stave Company, is recognized to be the owner of the staves provisionally seized in .this Cáse. And in all other respects the former judgment of this court is reinstated.

Costs to be paid by the appellee, Dodd/


author: WESTERFIELD, J.

text:
    No. 13,100
    Orleans
    EICHHOLTZ v. YOCHIM ET AL.
    (July 1, 1930. Opinion and Decree.)
    Elias Bowsky, of New Orleans, attorney for plaintiff, appellant.
    Arthur B. Leopold, Henriques Duchamp & De La Houssaye, of New Orleans, attorneys for defendants, appellees.
   WESTERFIELD, J.

This is a suit against a real estate agent, -J. C. Yochim, and his employee, O. V. Cooper, for the return of $1,250 alleged to have been deposited with Cooper as part of the purchase price of certain property, the sale of which was not consummated.

The plaintiff, William B. Eichholtz, was the owner of a piece of real estate known as No. 2820 Monroe street, and Mrs. Ethel Guinle owned a piece of property known as 6320-22 Barrett street. Eichholtz agreed to sell his property to Mrs. Guinle for $7,-500 and Mrs. Guinle agreed to sell Eichholtz her property for $9,500. The sale from Eichholtz to Mrs. Guinle was consummated, but the sale from Mrs. Guinle to Eichholtz failed because of certain incumbrances affecting her title. Eichholtz, after paying a mortgage which rested upon his property, realized, from the sale to Mrs. Guinle, the sum of $2,291.12. The check for this amount he indorsed over to Cooper, who had handled the transaction involving the reciprocal sales. Cooper immediately issued his check to Eichholtz for $1,041.12, leaving in his hand $1,250 which was the subject of a written mandate from Eichholtz to Cooper, reading as follows:

“This letter will be your authority to use the $1,250.00 I am turning over to you in clearing up the title to the property, 6320-22 Barrett Street (Mrs. Guinle’s property) the balance, if any, after deducting your commission on the Monroe Street property to be turned over to Mrs. Guinle.
“(Signed) W. B. Eichholtz.”

The defendant Yochim denies all responsibility for the $1,250 given to his employee, Cooper, upon the ground that it was given without his knowledge, and that the subject of the mandate was not within the scope of his employe’s duties.

Cooper answered admitting receipt of the $1,250, and claiming that it was expended for the purpose for which it was given.

There was judgment below in favor of both defendants dismissing plaintiff’s suit, but upon application for a new trial the case was re-opened as to Cooper; the judgment as to Yochim, however, was allowed to stand. This appeal concerns only the propriety of the judgment in Yochim’s favor.

The sole question, therefore, is the responsibility of the defendant Yochim for the action of his employee in connection with the receipt of plaintiff’s money.

It is true that Cooper was employed by Yochim and. that he assisted in the negotiations which led up to the agreement for me exchange of the properties of Mrs. Guinle and the plaintiff Eichholtz, but his duties in connection - with that transaction (he was a salesman) could hardly be said to involve the disbursement for account of Eichholtz of $1,250 for the purpose of clearing up Mrs. Guinle’s title. The check which plaintiff received from the sale of his property to Mrs. Guinle was indorsed over to Cooper personally and not to his employer Yochim. It was placed in Cooper’s personal account and Cooper gave his personal check to Eichholtz for $1,041.12. The mandate in connection with the expenditure of the money was in Cooper’s name and was of a nature which could have been performed by any one.

All of the circumstances indicate that Eichholtz intended for Cooper personally to discharge the trust imposed upon him, and we are unable to find that Yochim was in any way involved, as a matter of fact, or of law, in the proper discharge of Cooper’s undertaking. A salesman would not ordinarily be expected to accept commissions of the sort committed to Cooper by Eichholtz, as they form no part of his duties, and his employer cannot be held responsible for proper execution of such undertakings engaged in without his knowledge or consent.

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


text:
    No. 13,337
    Orleans
    HEINE v. DICKS ET AL.
    (July 1, 1930. Opinion and Decree.)
    J. E. Palmer and George Piazza, of New Orleans, attorneys for plaintiff, appellee.
    Monroe & Lemann, Walter J. Suthon, Jr., of New Orleans, attorneys for defendants, appellants.
   WESTERFIELD, J.

This is a suit against a real estate broker, Arthur H. Dicks, and his surety, Globe Indemnity Company, for the return of a deposit in the sum of $225. There was judgment below in plaintiff’s 'favor as prayed for and defendant has appealed.

Miss Heine, plaintiff herein, under date of December 28, 1925, entered into a written agreement to purchase from Mrs. Erna Luderbaeh two certain lots of ground for the sum of $2,125 '‘net to owner. Taxes pro rated to date of act of sale. I agree to pay a commission of $100.00 over and above the sum mentioned above. Subject to Homestead Loan.” She deposited with Dicks the sum of $225 on account of the purchase price, and it is for this sum that this suit is brought.

Coincident with the confection of the agreement to purchase, and we take it, as an inducement to Miss Heine, Dicks, it is admitted, agreed that the lots which Miss Heine had contracted to purchase would be resold for her at a profit within forty-five days or prior to her having to take title thereto. ' Dicks failed to sell the property at a profit, and Miss Heine declined to go forward with the transaction. Mrs. Luderbaeh waived any claim to the deposit, and Dicks insisted upon the right' to deduct a commission of $100 before returning it to plaintiff.

The question before us is the right of the ■' defendant Dicks to retain the sum of $100 for his commission growing out of this. transaction. Plaintiff opposes his claim to the commission upon the ground that he' has not earned it, because of his failure to secure a purchaser for Miss Heine at a; profit without the necessity of her taking; title to the lots as he had agreed to do and' upon the further ground that the offer of, Miss Heine contained a potestative condi- ■ tion ‘‘subject to homestead loan,” and was, • therefore, invalid, and that Dicks was entitled to no commission for negotiating an. illegal agreement of purchase and sale.

We believe the first objection to the retention of a commission by defendant is sound. The facts are not disputed, and it is frankly conceded, that the defendant Dicks agreed to sell the property for the plaintiff at a profit. It appears, therefore, that Miss Heine was induced to enter into the agreement for the purchase of the property by the representations of her agent that she would make a certain and quick profit on the transaction, or before she was required to take title. Dicks failed to carry out this assurance and is not entitled to his commission, for he has not earned it, a part of the consideration being his agreement to make a profit for Miss Heine.

Thus far there is little contention between opposing counsel. Dicks’ right to the commission is but feebly asserted by counsel for the Globe Indemnity Company, who alone has appealed, Dicks himself having acquiesced in the judgment below by failing to appeal. But, it is said, whatever may be the situation as to Dicks, his surety, the bonding company, cannot be affected thereby because Dicks’ bond is statutory, having been provided for by Act No. 225 of 1918, and it is well settled that the liability on a statutory bond can be neither greater nor less than the statute decrees. King vs. Grevemberg & Son, Inc., 13 La. App. 162, 127 So. 642; Texas Co. vs. Mattison, 12 La. App. 186, 125 So. 147.

We recognize the principle referred to by counsel but we cannot follow him in his application. It is difficult to see why Dicks’ surety, statutory or otherwise, should be entitled to a credit of $100 which its principal, Dicks, cannot claim. If Dicks has not earned the commission, neither Dicks, his surety, nor any one else, is entitled to receive it, and to permit his surety to deduct that amount would, it seems to us, be entirely arbitrary. The obligation of the surety company, statutory though it oe, so far as this case is concerned, was and is the return of the money left with Dicks on deposit less any legitimate deduction, if .Dicks failed to do so.

The conclusion we have reached on this point is determinative of the issue in the case and makes it unnecessary for us to consider the question of the effect of the clause “subject to homestead loan,’’ which appears in the contract, from the standpoint of its potestivity. We cannot, however, refrain from commenting upon the very excellent treatment of that question in the brief of counsel for appellant, who, with customary ability and thoroughness, has exhausted the subject.

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


author: ODOM, J.

text:
    No. 3302
    Second Circuit
    YOUNG v. SPATZIES HOT SHOP ET AL.
    (July 5, 1930. Opinion and Decree.)
    Lyons & Prentiss, of Shreveport, attorneys for plaintiff, appellee.
    Cook & Cook, of Shreveport, attorneys for defendants, appellants.
   ODOM, J.

Plaintiff brought the present suit against Spatzies Hot Shop, a commercial partnership, composed of Arthur K. Spatz and Francis Spatz, to recover the sum of $375.69 for repairs made to a certain commercial building in the city of Shreveport, which was owned, at the time the repairs were made, by James M. Huckaby and Mrs. Louella C. McCree. The suit was brought against the above-named commercial partnership and against the owners of the building, but it seems that the building passed out of the hands of .Mr. Huckaby and Mrs. McCree by foreclosure proceedings, and, for that reason, the latter dropped out of the suit.

Plaintiff alleged that he made a contract for the repairs with the members of the commercial partnership. The defense which they .make is that they were tenants .and did not contract for the repairs and never at any time agreed to pay for them.

There was judgment in the district court in favor of plaintiff and against the commercial partnership and its members in solido, and they have appealed.

The fact that plaintiff made the repairs to the building, and that the bill which he rendered is correct, is not disputed. The only question before the court is one of fact; to-wit: Did the defendants employ the plaintiff to do the work?

The testimony clearly shows that the members of the above partnership employed plaintiff to do the work and agreed to pay him. The plaintiff testified positively on this point, and the owners of the building, Mr. Huckaby and Mrs. McCree, corroborated his testimony. The two defendants, Arthur and Francis Spatz, both testified that they did not authorize the work and were in no sense responsible to plaintiff for the amount claimed. However, the testimony of Arthur Spatz, one of the commercial partners, taken as -a whole, indicates very strongly that he recognized the obligation of his firm to pay the price for the work. While he testified that his firm did not agree to pay the bill, yet, while on the witness stand in his own behalf, he was asked to relate all the circumstances in connection with the matter and stated that, after the work was done, plaintiff came to his place of business and presented the bill. He stated that at the time his brother, Francis Spatz, was in Little Rock, and that he told plaintiff he would have to telephone his brother at Little Rock about what should be done with reference, to the payment of the bill. Speaking of the plaintiff, Arthur Spatz said:

“Then later on he kept coming back about every other day for a week. I said, ‘Well, I haven’t got any money for that, Mr. Young.’ I said, T am needing all my money for this business here but I will call my brother tonight and get it settled,’ and he said all right.”

From this, it does not seem that he disputed the firm’s liability on the claim.

Counsel for defendants in their brief state that it appears that there was a conspiracy between plaintiff and the owners of the building to shift liability to these defendants, and, further, that the owners of the building had an interest in testifying that the members of the commercial firm' had not only employed plaintiff to do the work, but agreed to pay him. As to whether these witnesses or any others are unworthy of belief, we cannot say. The trial judge, before whom they testified, and who probably knew them personally, was in better position than we are to pass upon their veracity. He evidently considered plaintiff’s witnesses worthy of belief, otherwise he would not have rendered the .judgment he did. However, aside from the question of the veracity of the witnesses, we think that portion of defendants’ testimony above quoted clearly shows that they recognized, or at least did not originally dispute, liability.

Mrs. McCree testified that she at one time agreed with the Spatz brothers, or one of them, that she would pay a portion of the bill, amounting to something like $93, for the plumbing in the building, and counsel suggest that the partnership and its members should not be held for that item. But the testimony clearly shows that the partnership is liable to plaintiff for the entire amount of the bill, as they contracted to have the work done. If Mrs. McCree agreed with defendant that she would pay a portion of the bill, that is a matter to be settled between them. Plaintiff has nothing to do with that.

We find no error in the judgment, and it is accordingly affirmed, with costs in both-courts.


author: MOUTON, J.

text:
    No. 682
    First Circuit
    SIGREST v. FEDERAL INSURANCE CO.
    (June 30, 1930. Opinion and Decree.)
    Ott & Rich, of Bogalusa, attorneys for plaintiff, appellee.
    Harvey E. Ellis, of Covington, and Spencer, Gidiere, Phelps & Dunbar, of New Orleans, attorneys for defendant, appellant.
   MOUTON, J.

Household and personal effects belonging to plaintiff were destroyed in a fire which burned plaintiff’s home in Bogalusa, May 8, 1929. The articles thus destroyed were covered by a fire insurance policy issued to plaintiff by defendant company.

Plaintiff is suing for $400 face value of the policy also for 12 per cent damages on the loss, and attorney’s fees for which judgment was rendered in his favor. Defendant appeals.

Two defenses were set up by defendant company, first, that plaintiff had breached the safe flue warranty by building a cement or metal flue in the building in violation of the terms of the policy; and, second, because in violation of a warranty in the policy dynamite was kept or allowed on the premises at the time of the fire.

During the trial defendant company offered evidence tending to show that, plaintiff had purposely set fire to the dwelling in which the articles insured were at. the time of the fire. Upon objection made to the admissibility of such proof under defendant’s answer, the court permitted its introduction to test the credibility of the plaintiff as a witness. In that respect the testimony was admissible, but was not as a defense to avoid liability on the part of the defendant, as it had made no plea upon which such a contention could be based.

We shall therefore restrict ourselves in the consideration of this -case to a review of the pleas in avoidance of the contract of insurance for breach of warranties urged by defendant and hereinabove referred to.

The proof shows that, contrary to the warranties of the insurance policy, a cement or metal flue was installed in the building, and also that four or five sticks of dynamite had been kept on the premises. It may be that the materiality of the things warranted were of no consequence, but they were, however, made of intrinsic, importance by the agreement of the parties by which plaintiff would have been legally bound under the terms of the contract as these contracts were construed prior to Act No. 222 of 1928, p. 291.

That act has made a change in the rule of law which generally governed contracts of insurance in reference to the breach of warranties prior to the enactment of that statute, in which it is provided that no breach of warranty will avail the insurer to avoid liability “unless- such breach shall exist at the time of the loss and shall be siich a breach as would increase either the moral or physical hazard under the policy.”

•' It is proper to state here, without any comment, that the installation of the cement flue in the building or the keeping therein of- a few sticks of dynamite could have no effect on the moral hazard, of the policy; -and that we shall therefore limit our observations to the question as to whether there were any increase of the physical hazard referred to in the clause of the statute above quoted.

There is a conflict of views between counsel for plaintiff and defendant in reference to the burden of proof on the issue of the breach of warranty. The act says that the breach will not avail the insurer to avoid liability, unless it appears that it has increased the moral or physical hazard under the contract.

Defendant company pleads a breach of the warranties in bar of plaintiff’s recovery, and, in order to avoid liability, we think that it carried the burden to show that the breach had increased the physical hazard spoken of in the act. The defendant company has offered no evidence to prove that there had been any increased physical hazard which could have resulted from the erection of the cement or metal flue, or from the fact that the dynamite sticks were on the premises at the time of the fire. It was shown by plaintiff that the cement or metal flue installed in the 'building was as safe as any flue built with mortar and brick, and that there had been no increase in the physical hazard on that account. It was shown that plaintiff was working as a foreman for the city of Bogalusa, and that in the performance of his services as such had occasion quite frequently to use sticks of dynamite to blow up stumps, etc., for the municipality. The four or five sticks of dynamite which were found on the premises after the fire, it was shown, had been placed there some five or six years before. They had dried up considerably, and were harmless, as was established by the evidence, which furthermore shows that they were without caps, would not have burned if thrown in the fire, and could not have been exploded except perhaps by electric shock or vigorous hammering.

It was testified to by some witnesses that an explosion or explosions had been heard during the fire, but this explosion, or whatever it was, could not have been from the dynamite which was found around the premises after the dwelling had been partially burned down. Besides, it was shown by plaintiff that he had placed a few gun shells in a trunk which, the evidence shows, had some holes bored through it during the fire.

One of the witnesses said he had heard explosions which he thought were pistol shots. No doubt these shots were from the shells that plaintiff says he had concealed in the trunk as a protection to his children. In addition to the foregoing, it was shown that the room where the cement or metal flue had been built, and where the dynamite had been stored, was not burned, the fire having destroyed another part of the house.

Whether the burden of proof, to which we have referred, rested on plaintiff or defendant, the evidence shows that the installation of the flue or the keeping of the dynamite on the premises did not have the effect of increasing the physical hazard under the policy, and were certainly not the cause of the fire as the room in which they were had not been destroyed by the fire.

The proof shows that the effects destroyed were worth $400, face value of the policy, for which amount judgment was correctly rendered against defendant. Attorney’s fees for $100 were also decreed in favor of plaintiff.

Act No. 168 of 1908, p. 226, provides for the recovery of reasonable attorney’s fees for the collection of the loss in such cases. Counsel for defendant say that the court was in error in granting attorney’s fees in this case, as there was no proof in the record as to what would be reasonable attorney’s fees, and contend that it had been so held in Thompson vs. State Assurance Co., 160 La. 683, 107 So. 489.

. A full review was given to this question by Chief Justice O’Niell, organ of the court, in Hunt vs. Hill, 138 La. 583, 70 So. 522, 523. He cites in the opinion, first, the early case of Dorsey vs. His Creditors, 5 Mart. (N. S.) 399, where the court said:

“As the services to be thus compensated are rendered under the eye of the court, the taxation ought to be made on its own responsibility, which ought not to be shifted from the bench on the bar, as it appears to have been done in this case, in which the decision is made on the. opinion of attorneys that the charge is moderate, and but reasonable.”

He cites, among many other decisions, the cases reported in Randolph, Singleton & Broune vs. Carroll, 27 La. Ann. 467, and Succession of Rabasse, 51 La. Ann. 590, 25 So. 326, where the court says it reserves to itself the right of making a conscientious estimate of the services performed, but will fix the amount of attorney’s fees, without reference to the opinions of witnesses. In some of the cases the ruling of the court was not so sweeping and emphatic, but in most all of them it will be found that the court would not relinquish its authority as a question of law to fix its own estimate of the reasonableness of the attorney’s fees.

Reference was also made by the Chief Justice to the Dinkelspiel & Hart vs. Pons, 119 La. 236, 43 So. 1018, in which it was said that the court must exercise its own judgment, but will not be controlled by the expert testimony of lawyers. The court finally said in ‘the ease of Hunt vs. Hill, above referred to, that the testimony of lawyers was admissible, and was entitled to its consideration in determining the case, but it did not accept their estimate of the services as binding on the court.

Obviously, there are cases which are dependent for a proper solution on the expert testimony of lawyers as to the value of the services rendered. But, as in this case, where the services to be “compensated are rendered under the eye of the court,” as was said in Dorsey Vs. His Creditors, 5 Mart. (N. S.) 399, “the taxation ought to be made on its own responsibility.’’

In all cases, as we construe the decisions on this subject, the testimony of attorneys, as experts, is admissible, and, when admitted, may be taken as a guide by the court in assessing the attorney’s fees, but the court always retains its right of fixing the amount recoverable, “without reference to the opinions of witnesses,” as was held in Randolph, Singleton & Broune vs. Carroll, 27 La. Ann. 467; and which is a matter of law rather than one of fact when the services have been performed in the presence of the court, as was said in Succession of Rabasse, 51 La. Ann. 590, 25 So. 326.

In the case Thompson vs. State Assurance Co., 160 La. 683, upon which counsel for defendant rely, the claim on the policy was for $2,250 upon which the court rendered judgment against the company for $660. In commenting on that decision, the court, in Block vs. Detroit Fire & Marine Ins. Co., 7 La. App. page 25, said the ruling did not apply when the total amount claimed is recovered and all the attorney’s work was helpful and necessary to the result obtained.

In this case plaintiff recovered the total amount claimed upon which the fees of the attorneys were based, and, according to the ruling of the court in the 7 La. App. case, the fee granted was legal, though no evidence was introduced to fix the value.

It may be that the court in that case has made a proper solution of the issue for the reasons therein stated. With the additional views given by us, as hereinabove expressed, we are of the opinion that the amount for attorney’s fees fixed by the court in the instant case, without estimate by attorneys, was proper and legal.


author: WEBB, J.

text:
    No. 3395
    Second Circuit
    THE McCASKEY REGISTER COMPANY v. WIMBERLY
    (July 5, 1930. Opinion and Decree.)

      Parsons & Colvin, of Mansfield, attorneys for plaintiff, appellee.
    Craig, Bolin & Magee, of Mansfield, attorneys for defendant, appellant.
   WEBB, J.

Plaintiff, the McCaskey Register Company, brought this action against defendant, Guy Wimberly, to recover judgment for the amount of a promissory note, interest, and attorney’s fees, given in payment of certain office equipment ordered by defendant from plaintiff as shown by the note and a written order annexed to and made part of the petition.

Defendant admitted signing the note and order, but alleged that it was understood and agreed at the time the order was signed and the note given that plaintiff would deliver and install the equipment in defendant’s office, and that plaintiff would accept in part payment of the equipment a desk owned by defendant, and defendant appeals from a judgment rendered in favor of plaintiff for the amount of the note, interest, attorney’s fees, and all costs of suit.

On trial defendant, over and subject to the objection of plaintiff that parol evidence was inadmissible to alter, change, or vary the written contract, was permitted to state that at the time the order and note were signed there was an agreement with plaintiff’s representdtive that the equipment would be installed in defendant’s office, and that a desk belonging to defendant would be taken at $50 as a credit on the note, and defendant stated that after the equipment was shipped and delivered and he had notice that the shipment was at the railway freight office subject to his orders, he had written to plaintiff with relation to the shipment, but that he did not have a copy of the letter, and, over the objection of plaintiff, defendant was permitted to state the contents of the letter, and also to file in evidence the letter which he stated was received by, him in reply to his letter to plaintiff.

We gather from the argument of counsel for appellant that he was of opinion the court did not consider the evidence. The court did not render a written opinion, and we do not know Whether the evidence was considered or not. We presume, however, that the court did not consider the parol evidence, as there was not any allegation of fraud or error, and the written order and contract was complete, and the parol testimony tended to, show that there was a contemporaneous parol agreement in' conflict with the written agreement, and parol evidence was not admissible, and the objection of plaintiff should have been sustained. Hafner Mfg. Co. vs. Lieber, 127 La. 348, 53 So. 646; Seitz vs. Brewer’s Refrigerating Mach. Co., 141 U. S. 510, 12 S. Ct. 46, 35 L. Ed. 837.

We do not think, 'however, that the letter written by plaintiff to defendant was inadmissible, and, if the letter had shown that plaintiff acknowledged there had been a contemporaneous parol agreement made at the time the written order was signed, in conflict with the written agreement and promise to pay, or if the letter written by plaintiff to defendant, considered with the letter said to have béen written by defendant to plaintiff, had shown that such a contemporaneous agreement had been made, we do not think plaintiff could have enforced the written agreement. Defendant, however, did not rule plaintiff to produce the letter said to have been written by him to it; he merely stated that he had lost the copy of the letter, and was permitted, over the objection of plaintiff, to state the contents of the letter; his statement being, in substance, that he had written plaintiff that its representative had agreed to take a desk in part payment of, and to install the equipment, and that he requested plaintiff to send someone to install the equipment.

We are of the opinion that, in the absence of notice to produce the letter, parol evidence of its contents should not have been received (Merritt vs. Wright, 19 La. Ann. 91; Jones Evidence, vol. 2, sec. 218), and that plaintiff’s objection should have been sustained; but, even though the evidence be considered as establishing the . contents of the letter and construed with the letter to defendant by plaintiff, the evidence does not show that plaintiff acknowledged that there had been a contemporaneous agreement that a desk would be accepted in part payment of the note, or that the order was given or promise to pay made conditional on the equipment being installed in defendant’s office.

The written agreement is clear and unambiguous, and defendant could not-have misunderstood the obligation undertaken by him, or considered that plaintiff was under the written agreement obliged to receive the equipment from the carrier and place it in defendant’s office, and accept a desk in part payment of the note given for the price of the equipment.

The judgment appealed from is therefore affirmed.


author: WESTERFIELD, J. JANVIER, J.

text:
    No. 11,540
    Orleans
    BORDELON v. N. O. TERMINAL CO.
    (January 13, 1930. Opinion and Decree.)

      Samuel Moreau, of Marksville, and Fry-mire & Ramos, of New Orleans, attorneys for plaintiff, appellant.
    Monroe & Lemann and Walter J. Suthon, Jr., of New Orleans, attorneys for defendant, appellee.
   WESTERFIELD, J.

The widow and min- or children, dependents of William J. Young, deceased, bring this suit for compensation under Act 20 of 1914, as amended. The defendant answered denying liability on the ground that Young, at the time of his death, was employed by it in interstate commerce, and consequently plaintiffs’ claim, if any they have, is controlled by the Federal Employers’ Liability Act (45 USCA secs. 51-59). This defense prevailed below and plaintiffs have appealed.

The defendant corporation owns and operates a terminal station in the city of New Orleans, and, in conjunction therewith, maintains various tracks, yards, and other terminal facilities, which are used by several railroads engaged in both interstate and intrastate commerce. For the most part, defendant’s tracks are used by trains carrying passengers and freight in interstate traffic. Young was employed as a night watchman to guard the property of defendant. His duties were not unlike those , of any other watchman, to police defendant’s premises, guard the box cars and tracks and other property of defendant. On the night of January 16, 1927, at about 6 o’clock p. m., Young was discovered by the crew of a train entering the city over defendant’s tracks, in a dying condition. When found he was lying a few feet from the track, suffering from the effects of a gunshot wound, from which he died shortly after having been discovered. The character of Young’s employment at the moment of his injury, how he was shot, by whom, and when, is unknown.

It must be conceded that the defendant corporation was engaged in interstate commerce. Hamilton vs. L. R. & N. Co., 162 La. 841, 111 So. 184; Southern Pac. Terminal Co. vs. Interstate Commerce Commission, 219 U. S. 498, 31 S. Ct. 279, 55 L. Ed. 310; U. S. vs. Union Stock Yard & Transit Co. of Chicago, 226 U. S. 286, 33 S. Ct. 83, 57 L. Ed. 226. The tracks which the deceased, Young, was required to guard as a part of his duties, were instrumentalities of interstate commerce, though partly used in intrastate commerce. Pedersen vs. D. L. & W. Ry. Co., 229 U. S. 146, 33 S. Ct. 648, 57 L. Ed. 1125, Ann. Cas. 1914C, 153. If Young, at the time of his death, was engaged in guarding or policing the tracks of the defendant railroad, he was, when fatally wounded, engaged in the discharge of a duty so inseparably connected with interstate commerce as to form part of it. Shanks vs. D. L. & W. R. Co., 239 U. S. 556, 36 S. Ct. 188, 69 L. Ed. 436, L. R. A. 1916C, 797. The foregoing proposition of law cannot under the jurisprudence be the subject of reasonable controversy, as counsel for plaintiffs freely and frankly concede. It is contended, however, that since there is no proof in the record to indicate how Young met his death or what he was doing at the time, and since the character of his occupation was such as to partake of the nature of interstate and intrastate commerce and at times involving neither the one nor the other, and since the Federal Employers’ Liability Act applies only to “an employee suffering injury while he is employed by such carrier in such commerce,” there is nothing to show that Young was, at the time of his death, so employed. The burden of proving such employment, it is claimed, rests upon defendant. It is to be noted that a large percentage of the activities of the defendant railroad (95 per cent according to the evidence) were devoted to interstate commerce. It is fair to assume that the duties of the plaintiff Young were principally confined to guarding the tracks and other instrumentalities of the defendant company employed by it in such commerce. Erie R. Co. vs. Winfield, 244 U. S. 170, 37 S. Ct. 556, 61 L. Ed. 1057, Ann. Cas. 1918B, 662; Phila. & Reading Ry. Co. vs. Polk, 256 U. S. 332, 41 S. Ct. 518, 519, 65 L. Ed. 958. In the last-cited case we find the following:

“It would seem indisputable, therefore, if there be an assertion of the claim or remedy growing out of an occurrence in which there are constituents of interstate commerce the burden of explanation and avoidance is on him who asserts the claim or remedy, not on the railway company to which it is directed, and there is nothing in Osborne v. Gray, 241 U. S. 16, 36 S. Ct. 486, 60 L. Ed. 865, in opposition.’’

The Louisiana Compensation Act, sec. 30, as amended by Act No. 244 of 1920, under which plaintiffs bring this suit, provides that the act shall not apply to an employer acting as a common carrier, while engaged in interstate and foreign commerce by railroad, but “if the injury or killing of an employee of a railroad occurs while the employer and employee are both engaged and employed at the time in an intrastate operation or movement and said movement or operation is not controlled or governed by the laws, rule of liability, or method of compensation which has been or may be, established by the Congress of the United States, then this Act shall govern.”

Under the circumstances it seems to us that the burden of proving plaintiffs’ case to be without the rule and within the exception mentioned in the state act rested upon the plaintiffs, and that, since there is neither allegation in the petition nor proof in the record to show that, at the time of Young’s injury, he was not engaged in a duty inseparably connected with the prosecution of defendant’s interstate business with which it was mainly engaged, then plaintiffs’ suit must fail.

The view we have taken of the case renders it unnecessary for us to consider the many appropriate decisions of the federal courts pressed upon our attention, which exhibit such refined distinctions as, upon occasion, to perplex the understanding when an effort is made to extract therefrom a rule, formula, or principle for our guidance in solving the intricate question of when the state and when the national authority begins and ends, as affecting the right of an injured employee to recover under circumstances similar to those presented in this case.

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

JANVIER, J.

(concurring.) This case presents two questions. First and most important is the question of the burden of proof: Is it the duty of plaintiff to prove that, at the time of decedent’s death, he was engaged in intrastate commerce and that thus the state compensation act is applicable; or, is it the duty of defendant to show that decedent was not engaged in intrastate commerce, was engaged in interstate commerce, and that thus the state compensation law cannot apply?

The second question presented is one of fact; that is if it be conceded that defendant must bear the burden of affirmatively proving that the decedent was engaged in interstate commerce has it met its obligations in that regard and has it proven by a preponderance of the evidence that he was so engaged?

I shall first consider the question of the burden of proof.

In general in the absence of any showing as to what are the duties of a particular employee it may be assumed that his duties are intrastate in character and that the state compensation laws apply. This results from the fact that normally all employees are theoretically engaged in intrastate commerce and that, even when working for interstate carriers, it is assumed that their normal classification as intrastate employees remains, unless the contrary be shown. In Erie R. Co. vs. Welsh, 242 U. S. 303, 37 S. Ct. 116, 118, 61 L. Ed. 319, the Supreme Court of the United States considered the question of whether or not an employee was engaged in interstate commerce. The particular employee had just completed the performance of certain interstate work and was on his way to the office to receive further orders. Had he reached the office, the orders he would have received would have sent him out on another interstate job. It was argued that he was thus engaged in interstate commerce. The court, however, said:

“Upon the strength of this it is argued that his act at the moment .of his injury partook of the nature of the work that, but for the accidental interruption, he would have been called upon to perform. In our opinion, this view is untenable. By the terms of the Employers’ Liability Act the true test is the nature of the work being done at the time of the injury, and the mere expectation that plaintiff would presently be called upon to perform a task in interstate commerce is not sufficient to bring the case within the act. Illinois Cent. R. Co. v. Behrens, 233 U. S. 473, 478, 34 S. Ct. 646, 58 L. Ed. 1051, 1055, Ann. Cas. 1914C, 163.”

It thus appears that, even though an employee may be engaged in interstate commerce, there always hovers over him, waiting to attach itself to Him, as soon as the opportunity offers, his normal character as an intrastate employee. This normal intrastate character attaches itself to him the moment the interstate occupation is definitely and completely terminated, but not until then, and remains until he again commences upon work necessary or incidental to interstate commerce. But the question which we are considering here is the classification of the laborer who is engaged, at the same time, in the performance of two different kinds of work — one interstate and one intrastate — and where it cannot be defi-' nitely said that, at the precise moment of sustaining the injury, he was engaged in one to the exclusion of the other. If, at the time of the injury, he is actually engaged at his work and that work includes both intrastate and interstate commerce, the inevitable conclusion results that he is an interstate employee engaged at that moment in interstate commerce, and the burden of proving the contrary rests upon that person who depends for recovery upon the application of the state laws, and who, therefore, in order to recover, must prove that the federal law has no application.

The Supreme Court of the United States, in two cases which I consider directly in point, has held that, under such circumstances, the plaintiff who seeks to recover under the state statute hears the burden of producing proof to show that the federal statutes do not apply. In Philadelphia & Reading Ry. Co. vs. Polk, 256 U. S. 332, 41 S. Ct. 518, 519, 65 L. Ed. 958, the decedent was killed as a result of being caught between two cars of a train. Some of the cars were interstate and some intrastate. The Supreme Court of the State of Pennsylvania affirmed an award made by the Workmen’s Compensation Board of the state and in doing so held the employee may have been engaged in performing services with reference to one of the intrastate cars, and that the burden of showing the contrary was upon the railroad company. The Supreme Court of the United States, in reversing the decision of the Supreme Court óf Pennsylvania, said:

“The referee did not find definitely as a fact that Polk was engaged in intrastate commerce at the time of his injury, but assumed that the fact might be so; therefore, regarded it as so, because in his * * * opinion the burden of proving the contrary; that is, that Polk ‘was actually engaged in work incident to interstate commerce,’ was upon the company and the company had ‘not met the burden required of it’ and further, that the company ‘offered no testimony whatever io show what'work John M. Polk was performing at the time he was injured. * * *’
“Besides, we cannot accede to the view that there is a presumption that duties performed on a train constituted of interstate and intrastate commerce were performed in the latter commerce. The presumption, indeed, might be the other way. It is to be remembered that it is the declaration of the cases that if there is an element of interstate commerce in a traffic or employment it determines the remedy of the employee. Second Employers’ Liability Cases, 223 U. S. 1, 32 S. Ct. 169, 56 L. Ed. 327, 38 L. R. A. (N. S.) 44; New York Central R. R. Co. vs. Winfield, 244 U. S. 147; 37 S. Ct. 546, 61 L. Ed. 1045, L. R. A. 1918C, 439, Ann. Cas. 1917D, 1139.”

In another case, Philadelphia & Reading R. Co. vs. Di Donato, 256 U. S. 327, 41 S. Ct. 516, 65 L. Ed. 955, the Supreme Court of the United States also reversed a judgment of the Supreme Court of Pennsylvania. Di Donato was killed while employed as watchman at a crossing over which both interstate and intrastate commerce passed. In reversing the State Compensation Board and the State Supreme Court, the Supreme Court of the United States held that the employee at the time was engaged in the furtherance of both intrastate and interstate commerce and that the burden of proving that his work at the instant of the accident was'limited to intrastate commerce was upon plaintiff.

Another very interesting case, which appears to me to be directly in point, is Prank O. Bauchspies vs. Central R. Co. of New Jersey, 287 Pa. 590, 135 A. 728, 729. The facts, as stated by the Supreme Court of Pennsylvania, were:

“Prank O. Bauchspies was employed by defendant railroad company as a maintenance man at one of its interlocking electric plants, located near a point where defendant’s tracks crossed at grade those of the Lehigh Valley Railroad Company. It was Bauchspies’ duty to take care of the switches and signals at this crossing, and of the batteries and other motive power equipment which operated them. While in the course of his employment, Bauchspies fell into the Lehigh river, close to the interlocking plant, and was drowned. * * * Interstate, .as well as intrastate, trains were operated over this crossing regularly by both railroads.”

In deciding that the burden of proof was on the plaintiff to show that at the time of the accident the deceased was not engaged in interstate commerce, the court said:

' “The work required by deceased’s duties was so closely related to interstate commerce as to be a part of it. Glunt v. Penna. R. R. Co., 249 Pa. 522, 524, 95 A. 109; Phila. & Reading Ry. Co. vs. Di Donato, 256 U. S. 327, 329, 330, 41 S. Ct. 516, 65 L. Ed. 955. The fact that the facility which deceased helped to maintain was used to further both kinds of commerce would not make it presumptively an instrument of intrastate, as against interstate, transportation; on the contrary, the presumption is rather the other way. Pedersen v. D. L. & W. R. Co., 229 U. S. 146, 152, 33 S. Ct. 648, 57 L. Ed. 1125, Ann. Cas. 1914C, 153. ‘If there is an element of interstate commerce in a- traffic or employment, it determines the remedy of the employee.’ P. & R. Ry. Co. v. Polk, 256 U. S. 332, 334, 41 S. Ct. 518, 519, 65 L. Ed. 958.
“True, there was no evidence as to just what Bauchspies was doing when he came to his death; but it was shown that his regular employment was of such a nature that, under Phila. & Reading Ry. Co. v. Di Donato, supra, 330, 331 (41 S. Ct. 516), it could not be split into separate acts of interstate and intrastate commerce. This cast on plaintiff the burden of taking the case out of the purview of the federal Employers’ Liability Act (U. S. Comp. St. secs. 8657-8665 (45 USCA secs. 51-59)), and of bringing it within the state Workmen’s Compensation Act by proof that the death did not occur in the course of employment in .interstate commerce.”

On application to the Supreme Court of the United States, that court refused to issue a writ of certiorari. 273 U. S. 763, 47 S. Ct. 476, 71 L. Ed. 880.

But, even if it be admitted that the burden of iproof is placed upon the railroad to show facts which make the federal statutes applicable, it appears to me that the railroad has borne that burden and has, by a preponderance of the evidence, shown such facts.

Here the facts were that Young, the decedent, was engaged as a watchman. His duties, as stated in the findings of the trial court, which findings of fact are conceded to be correct, were: “To guard the tracks against obstructions or thrown switches, to guard all freight cars on its tracks against spoliation and to keep hoboes, tramps and robbers off the passenger trains and freight trains coming into and going out of the terminal’s tracks, yards and stations.”

It must be assumed that, at the time Young met his death, he was engaged in the performance of his duties, because, if he were not so engaged, plaintiff would have no case, even under the state compensation act, for, even under that act no recovery is allowed in the case of one who has turned aside from his duties. Pierre vs. Barringer, 149' La. 71, 88 So. 691. We may then assume that he was performing his duties, which duties were threefold: First, to guard the tracks against obstructions and thrown switches; second, to guard freight cars against spoliation; and third, to keep hoboes and tramps off trains. The evidence shows that the trains, off which his duties required that he keep hoboes and tramps, were interstate and that the freight cars which he was to guard against spoliation contained both interstate and intrastate commerce. The tracks and switches which he was to guard were used by trains 90 per cent of which actually operated to and from points without the state and practically every one of which contained interstate shipments or passengers Therefore his duties partook of both natures, and thus, under the authorities we have cited, the assumption follows that he was engaged in interstate commerce, unless the contrary be affirmatively shown.

I cannot believe that he was performing services within classification 2 as set forth above, because the evidence shows that there were no freight cars which he was to guard within several hundred feet of the (place at which he was found; in other words, that he was several hundred feet beyond any freight cars. Therefore he could not have been proceeding from his shanty to the freight cars, since his shanty was on one side of them and he was found dead far on the other side. I think that this eliminates the possibility that he could be said to have been guarding freight cars at the time of the death, but even if he was at the. time guarding freight cars, the large majority of those in the yard were engaged in interstate commerce. So far as the duties under classification 3 are concerned, it seems to me that the possibility that he was performing these duties is also eliminated, because no train had (passed in or out over those tracks for several hours, and none was expected in or out for several hours more. But here again, even if he were performing services under classification 2, the trains he was guarding were almost exclusively interstate in character. The elimination of the possibility of his having been engaged in the performance of duties under classification 3 and under classification 2 brings us to the inevitable conclusion that, if he was engaged in his duties at all, he was engaged in performing those under classification 1; that is, he was guarding the tracks against obstructions and guarding the switches against tampering. If he was so engaged he was performing interstate services. A railroad track and a railroad switch are fixed instrumentalities used in both classes of commerce. Persons engaged in working on such fixed instrumentalities are, while so engaged, working in the furtherance of interstate commerce. Their classification does not change momentarily from one to. the other, as does the classification of the employee engaged in the handling of movable instrumentalities. As was said by the Supreme Court of the' United States in Pedersen vs. Delaware, Lackawanna & Western R. Co., 229 U. S. 146, 33 S. Ct. 648, 650, 57 L. Ed. 1125, Ann. Cas. 1914C, 153:

“True, a track or bridge may be used in both interstate and intrastate commerce, but when it is so used it is none the less an instrumentality of the former; nor does its double use prevent the employment of those who are engaged in its repair or in keeping it in suitable condition for use from being an employment in interstate commerce.”

An employee engaged in a switching crew may at times be engaged in intrastate commerce and at others in interstate commerce, to be determined by the particular kind of traffic being handled. But the Supreme Court of the United States has definitely and finally decided that an employee, who is engaged in working on a fixed instrumentality, such as a track or switch, or a bridge, which is used intermittently in both classes of commerce, is engaged in interstate commerce. In Southern Pacific Co. vs. Industrial Accident Commission, 174 Cal. 8, 161 P. 1139, 1140, L. R. A. 1917E, 262 (certiorari denied by U. S. Supreme Court in 244 U. S. 653, 37 S. Ct. 652, 61 L. Ed. 1373), the Supreme Court of California, in dealing with the case of a crossing watchman who was killed, said:

“There is, of course, no analogy between the case of one so engaged, and that of a trainman engaged in the operation of an exclusively intrastate train. The duties of the latter are solely with reference to the operation and safety of the particular train on which he is engaged, and he has no duty whatever to perform in regard to keeping any instrumentality of interstate commerce in condition for use. Such is the full scope of his employment, and it has no relation whatever to interstate commerce, close or otherwise. The duties of deceased, as we have seen, had to do directly with the keeping of ah instrumentality of interstate commerce in suitable condition for the use of such commerce. And exactly as in the case of one engaged in repairing such an instrumentality after injury thereto has occurred, who concededly is engaged in interstate commerce, it is immaterial whether or not any interstate traffic was immediately to he had over the same. The deceased was actually engaged at the moment of the accident in protecting that instrumentality from injury. His situation in this regard was, in view of the evidence, the same as it would have been if he had been one of a number of guards stationed along the line of railroad to prevent third persons from removing the rails or unlawfully placing obstructions on the track. Certainly their work would not be held to be unrelated to the safety of the track as a highway of interstate commerce.”

In another case, Erie R. R. Co. vs. Collins, 253 U. S. 77, 40 S. Ct. 450, 451, 64 L. Ed. 790, the Supreme Court of the United States said:

“It can hardly be contended that while plaintiff was engaged in the signal tower he was not engaged in interstate commerce, though he may have on occasion signaled the approach or departure of intrastate trains.”

In Hamilton vs. L. R. & N. Co., 162 La. 841, 111 So. 184, 185, the Supreme Court of Louisiana, in considering the classification into which should be placed the work of an employee engaged in repairing a side track, said:

“For the fact remains that the federal courts, within whose province the matter peculiarly lies, have uniformly held that repairing and maintaining an instrument of interstate commerce constitutes employment in such commerce, and that those engaged in actually repairing and maintaining such instrument, or even assisting therein, are employed in interstate commerce.”

In New York Central R. R. Co. vs. Porter, 249 U. S. 168, 39 S. Ct. 188, 63.L. Ed. 536, the Supreme Court of the United States considered the case of an employee killed while removing snow which had fallen between railroad tracks and the station platform, and in that case said:

“An employee of a railroad company killed by a train while removing snow on its premises from a space between a platform and a track used in interstate as well as intrastate commerce, held employed in interstate commerce; the resulting rights and liabilities were determinable by the Federal Employers’ Liability Act and the State Workmen’s Compensation Law was inapplicable.”

Again, in Industrial Commission vs. Davis, 259 U. S. 182, 42 S. Ct. 489, 491, 66 L. Ed. 888, the Supreme Court of the United States used the following general language :

“And there is a difference in the instru- . mentalities. In some, the tracks, bridges and roadbed and equipment in actual use, may be said to have' definite character and give it to those employed upon them.”

The conclusion is inevitable that one who performs services in connection with a 'fixed instrumentality, used indiscriminately in both classes of commerce, is at all times, while so working, engaged in interstate commerce.

To sum up the situation as I see it, that part of Young’s duties which required him to guard tracks and switches consisted exclusively of employment in interstate commerce. Pedersen vs.' Delaware, Lackwanna & Western R. R. Co., supra.

That part which required him to keep hoboes and tramps off moving traihs consisted of employment in interstate commerce. Philadelphia & Reading Ry. Co. vs. Di Donato, supra.

The third and sole remaining duty which he was called on to perform was the guarding of a freight terminal yard in which were located cars some of which were engaged in interstate and others of which were engaged in intrastate commerce. In guarding that yard which contained both classes of commerce, he was performing services interstate in character, and thus, in the absence of proof that, at the very instant of death, the work in which he was engaged was limited to intrastate commerce, exclusively, it must be presumed that his occupation was interstate. Bauchspies vs. Central R. Co. of New Jersey, supra; Phila. & Reading Ry. Co. vs. Di Donato, supra; Philadelphia & Reading Ry. Co. vs. Polk, supra.

Plaintiff cites as authority for the contention that a railroad watchman or detective is not necessarily engaged in interstate commerce only one decision of the Supreme Court of the United States. N. Y. Central R. R. Co. vs. White, 243 U. S. 188, 37 S. Ct. 247, 61 L. Ed. 667, L. R. A. 1917D, 1, Ann. Cas. 1917D, 629. But an examination of the facts of that case show that it is easily to be distinguished. The court found the facts to be:

“A night watchman in the employ of a railway company, injured while in the performance of his duty to guard tools and materials intended to be used in the construction of a new railway station and new tracks, was not then engaged in interstate commerce.”

In discussing the question, the court said:

“The admitted fact that the new station and tracks were designed for use, when finished, in interstate commerce, does not bring the case within the Federal act. The test is, ‘Was the employee at the time of the injury engaged in interstate transportation, or in work so closely related to it as to be practically a part of it?’ Shanks v. Delaware, L. & W. R. Co., 239 U. S. 556, 558, 60 L. Ed. 436, 438, L. R. A. 1918C, 797, 36 S. Ct. 188. Decedent’s work bore no direct relation to interstate transportation, and had to do solely with construction work, which is clearly distinguishable, as was pointed out in Pedersen v. Delaware, L. & W. R. Co., 229 U. S. 146, 152, 57 L. Ed. 1125, 1128, 33 S. Ct. 648, Ann. Cas. 1914C, 153, 3 N. C. C. A. 779. And see Chicago, B. & Q. R. Co. v. Harrington, 241 U. S. 177, 180, 60 L. Ed. 941, 942, 36 S. Ct. 517, 11 N. C. C. A. 992; Raymond v. Chicago, M. & St. P. R. Co., this day decided (243 U. S. 43, 61 L. Ed. 583, 37 S. Ct. 268).”

In other words, a new construction work does not become an instrumentality of interstate commerce until trains commence operating over it, or until actually put into use in the furtherance of interstate commerce.

“Employees assisting in the original construction of tracks, tunnels, bridges, buildings, telegraph lines, engines or cars which have ne^er been used as instrumentalities of interstate commerce, are not employed in interstate commerce within the meaning of the statute.” Roberts, Federal Liabilities of Carriers, vol. 2, p. 1461, sec. 761.
“The distinction between original construction work and the repair or maintenance of instrumentalities of transportation is important under the statute, as an employee engaged in the former must look to the laws of the state while, if employed in the latter, the federal act governs.” Roberts, Federal Liabilities of Carriers, supra, sec. 762.

The other cases involving watchmen and cited by plaintiff, none of which were decided by federal courts, are easily distinguishable.

However, in C. R. I. & P. Ry. Co. vs. Industrial Board of Illinois. 273 Ill. 528, 113 N. E. 80, L. R. A. 1916F, 540, we find a decision apparently directly in conflict with the findings of the Supreme Court of the United States in Phila. & Reading Ry. Co. vs. Di Donato and Phila. & Reading Ry. Co. ’vs. Polk, supra. The court there was dealing with the question of the burden of proof, and held that a watchman, whose duties reguried liim to guard a yard, in which freight cars containing both kinds of commerce were placed, was not necessarily engaged in interstate commerce, and that the duty of proving that he was so engaged was upon the party alleging it. As I have already shown, the Supreme Court of the United States held directly the contrary in the two cases mentioned.

The contention that defendant is not itself engaged in interstate commerce, because it does not actually operate trains, but merely owns the tracks and facilities used by others, was not strenuously urged and does not appear to be supported by authority. In Southern Pac. Terminal Co. vs. Interstate Commerce Commission, 219 U. S. 498, 31 S. Ct. 279, 286, 55 L. Ed. 310, the Supreme Court said:

“The control and operation of the Southern Pacific Company of the railroads and the terminal company have united them into a system of which all are necessary parts, the terminal company as well as the railroad companies. As said by the Interstate Commerce Commission, ‘the terminal company was organized to furnish terminal facilities for the system at the port of Galveston:’ and it is further said that ‘through shipments . on the railroad lines from and to points in different states of the Union pass and repass over the docks of the terminal company. It forms a link in this chain of transportation. It is necessary to complete the avenue through which move shipments over these lines owned by a single corporation.’ ”

To the same effect we find the following language in the case of United States vs. Brooklyn Eastern District Terminal, 249 U. S. 296, 39 S. Ct. 283, 285, 63 L. Ed. 613, 6 A. L. R. 527:

“The transportation performed by the railroads begins and ends at the Terminal. Its docks and warehouses are public freight stations of the railroads. These with its car floats, even if not under common ownership or management, are used as an integral part of each railroad line, like the stockyards in United States v. Union Stock Yard Co., 226 U. S. 286, 33 S. Ct. 83, 57 L. Ed. 226, and the wharfage facilities in Southern Pacific Terminal Co. v. Interstate Commerce Commission, 219 U. S. 498, 31 S.. Ct. 279, 55 L. Ed. 310. They are clearly unlike private plant facilities. Compare Tap Line cases, 234 U. S. 1, 25, 34 S. Ct. 741, 58 L. Ed. 1185. The services rendered by the Terminal are public in their nature; and of a kind ordinarily performed by a common carrier.”

And in a case directly in point here, United States vs. Atlanta Terminal Co. (C. C. A.) 260 P. 779 (certiorari denied by United States Supreme Court, 251 U. S. 559, 40 S. Ct. 219, 64 L. Ed. 414), the United States Circuit Court of Appeals for the Fifth Circuit held the Atlanta Terminal Company to be engaged in interstate commerce, though it merely owned the tracks and terminal facilities and did not itself operate trains.

Nor does the fact, that the line of railway of defendant company is situated entirely within the state of Louisiana, deprive it of its character as an instrumentality of interstate commerce. On this point the Supreme Court of the United States, in Interstate Commerce Commission vs. D. G. H. & M. Ry. Co., 167 U. S. 633, 17 S. Ct. 986, 988, 42 L. Ed. 308, said:

“The Detroit, Grand Haven & Milwaukee Railway Company is a corporation of the state of Michigan, and its road lies wholly within that state. In addition to its local business, it is engaged as a common carrier in interstate commerce, by arrangements made with connecting railroads.”

I am therefore well convinced that, at the time of the death of Young, both he and his employers were engaged in interstate commerce, and that hence the state compensation statutes are not applicable.

I therefore concur in the opinion and decree.


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    No. 13,308
    Orleans
    OLIVER H. VAN HORN CO., INC., v. CANAL STEEL WORKS, INC.
    (June 2, 1930. Opinion and Decree.)
    (July 1, 1930. Rehearing Refused.)
    Henry W. Robinson and Henry M. Robinson, of New Orleans, atorneys for plaintiff, appellee.
    Peitel & Peitel, of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

The question presented by this appeal involves the veracity of witnesses whose testimony is in sharp conflict. If the testimony of plaintiff’s witnesses is to be believed, plaintiff sold to defendant an eleqtric welder for $1,100 and is entitled to judgment for that amount. If defendant’s witnesses are to be credited, plaintiff did not sell the welding machine, but left it with defendant on probation and defendant is not obligated to pay for it.

The witnesses supporting plaintiff’s version of the transaction are about equal in number to those who maintain defendant’s position, and all are more or less interested in the litigation. The case is obviously one which must be determined by the weight of the finding of the trial court.

The judgment appealed from was in plaintiff’s favor, as prayed for, and, for the reasons herein assigned, it is affirmed.


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    No. 11,827
    Orleans
    FISSE v. TOYE BROS. AUTO & TAXICAB CO. ET AL.
    (April 21, 1930. Opinion and Decree.)
    (June 16, 1930. Rehearing Refused.)

      Weiss, Yarrut & Stich, of New Orleans, attorneys for plaintiff, appellee.
    John P. Sullivan and David Sessler, of New Orleans, attorneys for Toye Bros. Auto & Taxicab Co., defendants, appellants.
    Alex W. Swords, of New Orleans, attorney for Fred Roses.
   WESTERFIELD, J.

Plaintiff sues for damages for personal injuries sustained as a result of a collision between a taxicab and a Ford sedan, which happened on January 4, 1927, about 7:30 p. m., at the corner of North Claiborne avenue and Dumaine street in the city of New Orleans. She sued the owner of the taxicab and the driver of the Ford sedan, alleging that the accident was due to the concurrent negligence of the drivers of both vehicles.

The taxicab company defended upon the ground that the accident was solely due to ' the fault of its co-defendant, Fred Roses, the driver of the Ford sedan, and Fred Roses imputes all fault to the driver of the taxicab.

There was judgment below for $509 against both defendants, in solido, and both have appealed.

At the time of the accident, plaintiff was a passenger in the taxicab, which had been engaged by her for the purpose of transporting her father and sister from their residence, 2468 North Claiborne avenue, to the Hotel Dieu. It appears that plaintiff’s father, August Fisse, was afflicted with diabetes and had been ordered by his physician, Dr. Danna, to the Hotel Dieu for treatment. He was accompanied by his two daughters, the plaintiff, Miss Hortense-Fisse, and her sister, Ella, and all three-were in the taxicab at the time of the accident.

When the taxicab reached the intersection of Dumaine and Claiborne it collided with the Ford sedan driven by the defendant Roses, the point of contact being near the left rear wheel of the taxicab and the right front bumper of the Ford. So far as the Ford is concerned, it sustained little damages, only a broken bumper, but the effect on the taxicab was severe. The cab turned over on its side and then on its top, and came to 'rest in an inverted position, with the wheels where the top should have been.

The driver of the taxicab is said to have been negligent in that he violated the traffic regulations by failing to stop at the intersection of Dumaine and North Claiborne avenue in compliance with a traffic sign printed on the pavement in large letters reading “Stop,” and in the further respect that his speed was excessive and his car out of control. The Ford sedan admittedly entered the intersection on the river side of the roadway of Claiborne avenue, which is a wide street divided by a neutral ground, and crossed the neutral ground and proceeded into and across the lake side of the roadway, without having stopped on the neutral ground or blown its horn, in violation of article 1, section 7, of Traffic Ordinance No. 7490 C. C. S. Roses is also charged with having been guilty of excessive speed, in violation of article 2, paragraph 2, 7490 C. C. S.

As to the speed of the taxicab and its failure to observe the traffic sign, there is little contention and less doubt in our minds that the driver of this vehicle was at fault in this respect. The defendant taxicab company mainly relies upon its asserted right of way under section 7 of article 1 of the traffic law, which establishes a right of way in favor of vehicles traveling on boulevards and streets with car tracks over vehicles traveling on intersecting streets. Both Dumaine street and Claiborne avenue are right of way streets under the ordinance relied on, but, it is argued that, since the Ford sedan entered Claiborne avenue from the left, it should have given way to the taxicab which approached from the right. ■

“At intersections of right of way streets with one another, all vehicles approaching intersecting streets from the left shall give right of way to vehicles approaching from the right.” Subdivision “C,” Section 7, Article 1, 7490 C. C. S.

It is also said that Roses failed to comply with subdivision “D,” section 7, article 1, 7490 C. C. S., which provides:

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

In other words, the taxicab had the right of way and was justified in acting upon the assumption that the Ford sedan would respect its right of way and not otherwise violate the traffic law by entering the street from the neutral ground without coming to a full stop and blowing its horn. Middleton vs. Jordan, 10 La. App. 189, 120 So. 668; Brunson vs. Barnwell, 11 La. App. 663, 124 So. 564; Belden vs. Roberts, 3 La. App. 338.

This far we are in accord with the defendant taxicab company, and we find as a fact that the Ford sedan violated the traffic ordinance in both particulars and we also find that its disregard of the traffic ordinance was a contributing factor in the a'ccident.

Resuming the consideration of the argument of counsel for the taxicab company, w;e will next consider the question of the taxicab’s excessive speed. 'We have heretofore remarked our conviction that the driver of the taxicab was guilty in this regard, but it is said that the speed of the cab was not a contributing cause of the collision, citing Hudson vs. Jackson Brewing Company, 4 La. App. 549; Belden vs. Roberts, 3 La. App. 338; Smith vs. Interurban Transportation Company, 5 La. App. 704, and Teissier vs. Stewart, 11 La. App. 164, 121 So. 777. The cases cited are not in point for the reason that in the case at bar the speed of tbe taxicab was a contributing cause of the accident. The driver of the cab had been cautioned by its occupants once or twice before he reached the scene of the accident about the rapidity with which he was driving, and he was admonished by the plaintiff in this case that her father was sick and being taken to a hospital. Notwithstanding these protests, he continued to drive very rapidly and crossed the intersection heedless of the traffic sign. If he had been going a little slower, and had stopped at the intersection, we are convinced that no accident would have occurred. The effect upon the taxicab of the slight blow which it must have received from the Ford sedan, which struck it near its rear wheel, is most persuasive of extraordinary speed, as- we cannot understand why it should have been turned upside down by such a light contact unless its rapidity of movement was such that the least lateral force was sufficient to affect its equilibrium and disturb its center of gravity.

Our conclusion is that both defendants were guilty of negligence and each a contributing factor and proximate cause of the accident.

As to the quantum, the plaintiff, a young woman employed as a clerk in a department store, lost eight weeks’ wages. She was paid $10 a week and commissions, which increased her income to about $17 per week. She lost some personal effects of small value, her dress and stockings were ruined, and she received a number of bruises and suffered from. shock to her nervous system. She incurred a bill of $50 for medical services. The trial judge allowed $500, which we believe to be reasonable.

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


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    No. 12,055
    Orleans
    QUINTANO v. IBOS
    (May 5, 1930. Opinion and Decree.)
    (June 2, 1930. Rehearing Refused.)
    Writ of Certiorari and Review Refused by Supreme Court.)

      John D. Miller, of New Orleans, attorney for plaintiff, appellant.
    Cobb & Jones, Herman M. Baginsky, of New Orleans, attorneys for defendant, ' appellee.
   WESTERFIELD, J.

This suit results from a collision between an automobile and a pedestrian, which occurred August 15, 1928, about 6:00 p. m., at the intersection of Esplanade avenue and Royal street in the city of New Orleans. Esplanade avenue is a wide street with two roadways separated by a neutral ground. At the time of the accident Jos. M. Quintano, now deceased, the husband of the plaintiff in this case, was crossing from the neutral ground to the lower lake side of Esplanade avenue and Royal street. As he walked across the roadway a large street car was going up Royal street and crossing the same intersection in an opposite direction, and in a manner to obscure Quintano’s view of traffic on the other or river side of the street car. When Quintano reached a point about the center .of the roadway the street car had passed him on its way uptown, and then, for the first time, he had a clear view of the vehicular traffic which had been halted to permit of the passing of the street car. The automobile, driven by Frederick Glaeser, which had been stopped with other vehicles, immediately started behind the passing street car and suddenly confronted Quintano. In an effort to avoid collision with this automobile, and. with some uncertainty of movement and indecision, it appears that Quintano started backward, and that the driver of the automobile, relying upon the assumption that Quintano would continue forward, turned his car toward the neutral ground and ran into Quintano who, in an unsuccessful effort to save himself, grasped the radiator. His hold was insecure, he was knocked down and rolled over, and seriously injured. He died the next day. His widow brings this suit for damages.

There was judgment in favor of defendants dismissing plaintiff’s suit, and she has appealed.

The driver of the automobile, Frederick Glaeser, was a minor under the tutelage of his mother, Mrs. Dorothy Wagner Ibos, whose first husband, Glaeser, had died, and who had thereafter married Jos. B. Ibos, who had been appointed co-tutor. Both Joseph B. Ibos and his wife are sought to be held in solido for damages caused by the minor, Frederick Glaeser, under the authority of C. C. art. 2318, which provides that:

“The father, or after his decease, the mother, are responsible for the damage occasioned by their minor or unemancipated children, residing with them, or placed by them under the care of other persons, reserving to them recourse against those persons.
“The same responsibility attaches to the tutors of minors.”

It is objected on behalf of Jos. B. Ibos that this provision of the Code does not apply to a stepfather who had been confirmed as co-tutor in a case like the present one, where the mother of the minor is living and has qualified as his tutor. It will be observed that the codal article makes no exception in favor of co-tutors, and its language is broad enough to in-elude them. We are pointed to no authority which has construed this article in the manner contended for by defendant, and our own impression is that it should not be so construed.

On the merits, the position of defendant’s counsel is that the unfortunate accident which caused Quintano’s death was due entirely to his own fault, in that he attempted to cross the roadway at a time when his vision of the traffic, which he should have known was waiting to cross in his direction, was obstructed, and that after the obstruction was removed by the passing of the street car his “unusual conduct in stepping, turning towards the advancing automobile, stepping backward towards the neutral ground of the street and then facing completely the advancing automobile” was the immediate cause of the collision.

Glaeser, the driver of the automobile, it is said, could not be expected to foresee such extraordinary conduct on Quintano’s part and he, therefore, cannot be charged with responsibility for the accident.

We first observe that there is no plea of contributory negligence in the record. 'Whether Quintano should have waited until the traffic behind the street car had cleared the intersection, before committing himself to the roadway is, from our point of view, unnecessary to consider in view of the absence of any plea of contributory negligence. On the other hand, Glaeser, with reckless haste, darted from behind the rear of the passing street car and in front of another automobile which was following the street car intending to cross Esplanade avenue in the direction in which the street car was going. It is said that Glaeser must have been going very slowly because he had been stopped to permit of the passing of the street car but, without discussing or attempting to determine from the record his exact speed, we find it excessive, because when confronted with the emergency, which the presence of Quintano immediately in his path presented, he does not appear to have had the automobile under control, otherwise he would have been able to stop, as it was his duty to do when the confusion of Quintano was apparent by the uncertainty of his backward and forward movements. Blashfield Ency. of Automobiles, vol. 1, p. 601; Berry on Automobiles (6th Ed.) vol. 1, p. 334; Johnson vs. Bisso Ferry Co. et al., 13 La. App. 159, 127 So. 661, decided April 7, 1930.

A case rather closely in point was considered in Carroll vs. New Orleans Ry. & Light Co., 125 La. 898, 51 So. 1029, where the court held that a motormau had reason to believe that persons might be attempting to cross a street directly behind a wagon which had just passed by, and that he was negligent in driving his street car across before making certain that the roadway was clear.

In Stone vs. Baton Rouge Yellow Cab Co., 124 So. 778, a case decided by the Court of Appeal for the First Circuit, it was held that the driver of a taxicab who ran into a pedestrian at a street crossing was negligent because he failed to exercise ordinary care in keeping a lookout for pedestrians, where he had every reason to expect them to be.

In Griffith vs. Slaybaugh, 58 App. D. C. 237, 29 F. (2d) 437, it was held that a chauffeur was negligent in driving his automobile without proper regard of the rights of pedestrians at intersections. The court saying that the “duty and' responsibility imposed on drivers of automobiles is measured by the possibilities of dangers attending their use on public highways; automobile being a vehicle of great weight, speed, and power, in contact with which the pedestrian is helpless.”

See, also, American Dye Works vs. Baker, 210 Ky. 508, 276 S. W. 133; Parznik vs. Central Abattoir, 284 Pa. 393, 131 A. 372; Bellinger vs. Hughes, 31 Cal. App. 464, 160 P. 838.

Our conclusion is that the driver of the automobile was negligent in emerging from behind the passing street car without any assurance that the intersection was clear of pedestrian traffic, and in the further respect that his speed was excessive under the circumstances, and finally, if we are mistaken as to his speed, and his car was under control, when he observed the presence of Quintano, he failed to take advantage of the last clear chance of avoiding the accident by bringing his car to a stop, instead of attempting to anticipate the movements of Quintano, who was confused, perplexed, and frightened by the sudden and menacing appearance of the automobile immediately before him. Navailles vs. Diehlmann, 124 La. 421, 50 So. 449, 134 Am. St. Rep. 508.

As to the quantum, the deceased, at the time of his death, was 67 years of age and earning $100 per month as a shoe clerk. We believe an allowance of $4,000 to be proper under the circumstances.

For the reasons assigned it is ordered, adjudged, and decreed that the judgment appealed from be, and it is, annulled, avoided, and reversed, and it is now ordered that there be judgment in favor of Mrs. Joseph M. Quintano, plaintiff herein, and against Mr. and Mrs. Joseph B. Ibos, defendants, in the sum of $4,000, with legal interest thereon from judicial demand until paid.


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    No. 13,350
    Orleans
    BOREY v. DI GEORGE
    (June 16, 1930. Opinion and Decree.)
    (July 1, 1930. Rehearing Refused.)
    Denechaud & Robin, of New Orleans, attorneys for plaintiff, appellee.
    Harry M. Mayo, Jr., of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

This case grows out of a collision between motor vehicles. ■ The trial court resolved the conflicting testimony as to the responsibility for the accident in plaintiff’s favor, and awarded him judgment in the sum of $216.55.

We believe that the conclusions of the court on the question of liability are, correct, but find that one item of damage claimed is not proven to our satisfaction. Twenty-five dollars, which was allowed as damage to certain flowers which were contained in plaintiff’s truck at the time of the accident (plaintiff being a florist), must be deducted because not • established by the testimony.

For the reasons assigned, the judgment appealed from will be amended by reducing the amount awarded plaintiff from $216.55 to $191.55, and, as thus amended, affirmed. Plaintiff to pay costs of appeal.