text:
    No. 11,522
    Orleans
    LANPHIER v. D’ANTONI
    (January 13, 1930. Opinion and Decree.)
    (March 10, 1930. Rehearing Refused.) (May 5, 1930. Writ of Certiorari and Review Refused by Supreme Court.)

      Milner & Porteous, P. M. Milner, of New Orleans, attorneys for plaintiff, appellee.
    F. T. Doule and J. C. Henriques, of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

This suit grows out of an automobile accident which happened on Sunday evening, November 29, 1925, at about six o’clock p. m., at the intersection of St. Charles avenue and Arabella Street in the city of New Orleans. Plaintiff claims $15,000 as damages for physical injuries which she suffered as a result of the accident. She was awarded a judgment for $1,500, and defendant has appealed.

The evidence indicates that, at the time of the accident, the plaintiff, Mrs. Lanphier, was walking across St. Charles avenue on the uptown river side of the Arabella street intersection, and going toward the neutral ground; that defendant was driving down the avenue at a speed of about 20 miles an hour and struck Mrs. Lanphier just as she had reached the neutral ground. Mrs. Lanphier testified that at the time she started to cross the intersection defendant’s car was a full city block distant, or about two hundred feet. Defendant, who was driving his own car at the time, testified that he did not see Mrs. Lanphier until within five feet, or just before striking her. The trial judge concluded that defendant was at fault because of his failure to avoid the accident, the plaintiff being within his vision when there was ample time to stop his car before striking her, whether he saw her or not. In other words, the judge a quo held that the question of plaintiff’s negligence as the sole, or in the alternative, the contributing cause of the accident, the grounds upon which the case was defended was unimportant, since the last clear chance of avoiding the accident was with defendant. We are also of that opinion. See Gibbens v. N. O. Terminal Co., 159 La. 347, 105 So. 367.

Three of plaintiff’s ribs were fractured and there were brush burns and contusions on her body. She remained in the hospital for a period of about one month, suffering considerable pain. We believe the amount awarded her was insufficient and, in view of the fact that an increase has been asked for in the answer to the appeal, we have concluded to increase the award to $2,000.

For the reasons assigned the judgment appealed from is amended by increasing the amount awarded plaintiff from $1,500 to $2,000, and as thus amended it is affirmed.


source: Caselaw Access Project

author: HIGGINS, J. JANVIER, J.

license: Public Domain

text:
    No. 11,607
    Orleans
    POLIZZI ET AL. v. LOUISIANA RY. & NAV. CO.
    (January 13, 1930. Opinion and Decree.)
    (February 17, 1930, Rehearing Refused.)

      Hugh M. Wilkinson and Fred W. Oser, of New Orleans, attorneys for plaintiffs, appellees.
    Milling, Godehaux, Saal & Milling, of New Orleans, attorneys for defendants, appellants.
   HIGGINS, J.

This is a suit by Lawrence Polizzi and his wife, in behalf of themselves individually and also for the use and benefit of ^their minor son, age four years, for damages for personal injuries suffered by each of them, and for the value of a Ford automobile, clothing and doctor’s bills, as further damages suffered by Lawrence Polizzi.

The accident occurred on March 17, 1925, at 10:30 p. m. at the intersection of Broad and Poydras streets in the city of New Orleans when a box car of the defendant company struck plaintiff’s Ford sedan automobile, completely demolishing it and causing the alleged damages to plaintiffs.

The defendant denied liability and pleaded contributory negligence against all of the plaintiffs. The jury rendered a verdict in favor of Lawrence Polizzi in the sum of $2,350, Mrs. Polizzi, in the sum of $750, and Lawrence Polizzi, Jr., their minor son, in the sum of $1,500. Prom this verdict and judgment defendant has appealed.

The locus in quo where the accident occurred is as follows: Broad street is a street with a neutral ground in the center and paved on both sides and runs in a direction from uptown to downtown. Each of the paved sections is approximately 30 feet wide and the neutral ground between them about 60 feet wide. Traffic going downtown moves on the river side of Broad street and traffic going uptown moves on the lake side of this street. The Broad street bridge which crosses the New Basin canal is immediately in line with the wood side thoroughfare of Broad street and located on the uptown side of the railroad tracks.

The Illinois Central Railroad Company has 8 tracks along Poydras 'street running parallel with the New Basin canal and crossing Broad street at right angles. These 8 tracks are situated within the neutral ground of Poydras street. This railroad company maintains four traffic gates at the intersection of these two streets, two on the downtown side of the tracks and two on the uptown side of the tracks as a protection to automobile traffic moving on both sides of Broad street where the traffic is heavy. These gates were operated by a man stationed in a tower, which is situated in the neutral ground at the intersection of Poydras and Broad streets. The width of the Poydras street neutral ground, within which the eight Illinois Central Railroad Company’s tracks lay is approximately 91 feet. The traffic 'gates were located at sufficient distance on both sides of the eight tracks to protect vehicles from going upon the tracks when trains were approaching in either direction.

The defendant railroad owned and maintained a single track situated 57 feet from the eighth track of the I. C. Railroad Company towards the New Basin canal or upon the uptown side of the eight tracks. The track of -the defendant was outside of the I: C. Railroad Company’s traffic gates. The defendant did not maintáin any traffic gates with respect to its track and depended upon its train crew flagging traffic at this crossing.

At the time of the accident a train of the I. C. Railroad Company had passed, going in the direction of the river and upon the approach of its train the traffic gates of the I. C. Railroad Company were lowered by the man in the tower, and after this train passed the gates were raised.

The plaintiff was driving a Ford sedan with his wife seated in the front by his side and his little boy, age four years, seated in the rear. He was proceeding on the lake side of Broad street going uptown. As he came to the crossing in question, the I. C. Railroad Company’s gates were down as its train was passing and plaintiff stopped his car about the middle of the street.

Thereafter a car in which Mr. Robert Weigand and H. M. des Bordes were riding stopped to the right of plaintiff’s car and a car in which Mrs. Sol Wolff and Mrs. Jeannette Phillips were riding stopped to the left of plaintiff’s car. Both of these cars were to the rear of plaintiff’s car and going in the same direction as plaintiff. The car of Dr. Frederick Fenno, was also going in the same direction and was about 100 feet from the gates when they went up.

When the gates were lifted the first three cars started up with plaintiff’s car about 14 feet in the lead. Dr. Fenno’s ear followed about 60 feet to the rear. Plaintiff crossed all eight of the I. C. Railroad Company’s tracks and a space of 57 feet between the eighth track and the defendant’s track. When the front part of his car was near or upon the defendant’s track, it was struck by the front box car, one of 30 box cars, which were being pushed by defendant’s switch engine. The air was not coupled to the cars and the train depended on the braking facilities of the engine in order to stop. After the front of plaintiff’s machine became engaged with the end of the lead box car, it was dragged and shoved entirely across the neutral ground of Broad street and finally came to rest at a spot beyond Broad street, about 150 feet from where it was struck, a complete wreck. The other automobiles stopped in the space between the defendant’s and the I. C. Railroad Company’s tracks.

This switch train was composed of an engine and 30 cars and was proceeding on the defendant’s track from the lake towards the river. The train was in charge of a train crew consisting of the engineer and fireman and a switch foreman and two switchmen. The engine was on the extreme end of the “cut of cars” towards the woods.

It appears that plaintiff was going about ten miles per hour and the train was going about five miles per hour at the time of the accident.

Plaintiff contends that the defendant was solely at fault for the following reasons:

First: Because of the absence of any light on the box cars which came silently out of the darkness across the street, where there was heavy traffic;

Second: Because there was no signal or warning given of the approach of the train, and

Third: Because of the negligence of the defendant’s flagman in trying to simultaneously flag the two street crossings on Broad street.

Defendant contends that one of its switch, men, Glynn, was on the front ear with a white lantern and another one, Nolan, equipped with a red fusee and a white light flagged the crossing and gave plaintiffs adequate and proper warning of the approach of the train and that plaintiffs were solely at fault in causing the accident and in the alternative, their negligence in not seeing the train and not obeying the flagman’s signal to stop contributed to the accident.

The plaintiffs’ witnesses were Robert Weigand, H. M. des Bordes, Mrs. Sol Wolff and Mrs. Jeannette Phillips, who were in the two cars immediately following plaintiff’s car, and also themselves. They all testify that it was a dark night and that they did not see any light on the front box car; that no signal of the approach of the train was given, and that the switchman, Nolan, was over on the river side of Broad street and arrived too late to warn plaintiff of the train’s approach.

The train crew, except the fireman and Glynn, who died since the accident, and Dr. Fenno testified for defendant. Dr. Fenuo and Nolan testified that Nolan was at the lake side of Broad street and gave proper signal of the train’s approach. The switch-man, Glynn, died before the trial and Borrough, the switch foreman, says that upon receiving a “wash out” signal from Glynn he transmitted it to the engineer, who in turn testified he immediately applied the brakes and.reversed his engine in order to stop quickly. They say the train stopped in about 80 feet from the time the signal was given.

The testimony is, therefore, conflicting as to whether or not one of the switchmen was stationed on the front box car with a white light and the other switchman (flagman, Nolan) was stationed on the wood side of Broad street so as to warn the traffic proceeding uptown on Broad street.

The preponderance of the evidence convinces us that if Glynn was stationed on the front box car with a white lantern, he had placed himself in such a position that those approaching the track, in the direction in which plaintiff was coming were unable to see him; and that the switchman, Nolan, sent to flag the crossing, was on the river side of Broad street so as to protect the traffic going from uptown to downtown and when the traffic gates were raised he then attempted to hurry across the 60-foot neutral ground to the wood side of Broad street, so as to protect the traffic which was going uptown. We are satisfied that he arrived too late to warn plaintiff of the approach of the train. Had he arrived on the wood side of Broad street and waved the red fusee in the manner in which defendant’s witnesses testified, there is no doubt that plaintiff and his witnesses would have seen the flagman.

The defendant’s evidence shows that the lights on the bridge, some 500 feet away, were dim and, therefore, would not have been of any assistance to the plaintiff in seeing the box car approaching him from his right. We are satisfied that the crossing was not properly lighted. When the I. C. Railroad Company’s gates lifted, plaintiff had a right to assume that the way was clear and that he was free from danger from approaching trains. Not only had the first gate nearest plaintiff been raised but also the second gate after the eighth track. He did just what the other automobilists did, started across confident and believing. that the raising of the gates was a signal to cross as the danger was over because the train had passed.

It appears that the rails of the single track of the defendant are embedded in the asphalt of Broad street and that at nighttime it would be difficult to see them especially as this crossing is dark. It is quite apparent that the driver of an automobile would assume that all of the tracks were within the area protected by the traffic gates or if they were not within the protection of these gates, that there would he some adequate warning of the approach of trains out of the darkness^ We find that there was no adequate warning of the approach of the train given to plaintiff and that the plaintiff, was not at fault in not seeing the train approaching out of the darkness.

We do not find that plaintiffs were guilty of any negligence that contributed to the accident.

In the case of Cherry v. Louisiana and Arkansas Railroad Company, 121 La. 471, 46 So. 596, the court said:

“Where the distance across four railroad tracks is only 49 feet, a traveler about to cross the tracks exercises all due legal care and prudence if he, stops and looks and listens before venturing upon the first track. He is not required to repeat the precaution with each of the tracks in succession.”

See, also, Seelhorst v. Pontchartrain Railroad Co., 11 La. App. 586.

The evidence is conclusive that the crossing in question was a dangerous crossing and in reference to such a question the Supreme Court in the case of Eichorn v. Power Co., 112 La. 236, 36 So. 335, said:

“If a railroad company, in tlie manage- 1 ment of its traffic, causes unusual peril to travelers, it should meet such peril by corresponding precautions. So, where the crossing is especially dangerous on account of its locality or mode of construction, or because the view is restricted or the track is curved, it is the duty of the company to exercise such care and take such precautions as the dangerous nature of the crossing requires.”

See, also, Lampkins v. McCormick, 105 La. 422, 29 So. 952; Downing v. Morgan’s Co., 104 La. 508, 29 So. 207; Ortolano v. Morgan’s Co., 109 La. 902, 33 So. 914; Peart v. New Orleans-Kenner Transfer & Traction Co., 11 La. App. 11.

The flagman at a street crossing must station himself in such a position as to give proper and adequate warning to those who are about to cross the tracks of the approach of a train.

In the case of Whittaker v. Illinois Central, 148 La. 319, 86 So. 825, the court said:

“In an action against a railroad for injuries to plaintiff in collision between his buggy and a motorcar of the railroad at a street crossing, evidence held to show that the railroad’s flagman at the crossing was standing at or near his shanty on the corner, and did not see the motorcar until shortly before the collision, or did not see the buggy till it had reached a point where the warning which he gave was too late.”

See, also, Roby v. Kansas City Southern Railroad Company, 130 La. 880, 58 So. 696.

The learned counsel for the defendant has cited numerous authorities but we do not find them in point, because they are predicated upon the fact that the train was properly lighted or visible or that plaintiff could and should have seen the train and that due signal was given. As we have found from the evidence that these facts do not obtain in this case the cited cases have no application to the present one.

From a careful reading of the record we are satisfied that the verdict of the jury and the judgment of the lower court are correct.

As to the quantum of damages the jury rendered a verdict in favor of Lawrence Polizzi in the sum of $2,350, covering the cost of the automobile, clothing, doctor and hospital bills, loss of earnings and personal injuries and mental anguish. The expenses, property damage, and loss of earnings amounted to $1,270.30, leaving $1,179 to cover personal injuries. Plaintiff testified and he is corroborated by Dr. Danna that his left leg was badly hurt and swollen and that he had multiple bruises and contusions of his body which confined him to his home for a week and thereafter he limped for about three weeks. The evidence shows that the train dragged the Ford ear over a rough surface where there were protruding cross-ties, bricks, etc., and that plaintiff was thrown out of his car after being dragged a considerable distance. He suffered great mental anguish as a result of the injuries to his wife, son and himself. We are satisfied that his injuries were serious and painful and under the circumstances, we cannot say that the award of the jury is excessive.

The jury awarded Mrs. Polizzi $750 for personal injuries sustained. Mrs. Polizzi was likewise dragged along the roadway of the defendant company in the same manner as her husband and suffered contusions and bruises all over her body, and a cut over her right knee. She suffered severe pain for very nearly a month; and she had a lump over her heart which for a considerable period of time worried her but since has disappeared. It appears that her little boy was also dragged along the right of way of the company in the automobile which was completely demolished and the debris strewn all along the right of way and she suffered mental torture until she found him. She still complained from the nervous shock at the time of the trial. We do not feel that the amount awarded her by the jury is excessive.

The jury awarded Lawrence Polizzi, Jr., the sum of $1,500. Dr. Danna who treated plaintiff, his wife and his little boy at the Hotel Dieu, testified that the child had a lacerated wound of the eyelid and the bridge of his nose which necessitated it being sewed up; that he had a compound fracture of both bones of the left leg and that the bones stuck out through the flesh. That the fracture was about halfway between the knee and the ankle, and that the child also had bruises and contusions all over the body and that he treated the injuries for some two months. For these injuries the jury allowed the sum of $1,500 which we consider adequate.

For the reasons assigned the judgment appealed from is affirmed.

JANVIER, J.

I believe that the proximate cause of the accident was the unusually confusing situation which was created by defendant and that this placed upon defendant the duty of taking extraordinary precautions. This confusing situation also explains the failure of plaintiff to notice the approaching train which, under other circumstances, he should have done.

I, therefore, concur in the decree.


author: WESTERFIELD, J.

text:
    No. 11,634
    Orleans
    GAUVEREAU v. CHECKER CAB CO.
    (January 13, 1930. Opinion and Decree.)

      Wm. H. Talbot, of New Orleans, attorney for plaintiff, .appellant.
    Paul L. Fourchy, of New Orleans, attorney for defendant, appellee.
   WESTERFIELD, J.

Louis Gauvereau, an employee of the New Orleans Fire Department, brings this suit against the defendant alleging that the truck, on the running board of which he' was riding, was run into by a cab belonging to the defendant company at the intersection of Iberville and Burgundy streets of this city, with the result that he suffered injuries for which he claims damages. Defendant answered alleging that the injuries were caused solely by the negligence of plaintiff and disclaiming all responsibility in the premises. There was judgment below in defendant’s favor ■and plaintiff has appealed.

It appears that on the morning of January 10, 1927, at about 8:30, plaintiff requested the driver of a Ford truck to permit him to ride a, short distance and his request. having been granted, assumed a position on the running board of the truck. When the truck reached the corner of Iberville and Burgundy streets a collision occurred between a taxicab operated by the defendant corporation and the truck on which plaintiff was riding. At the time of the accident the cab was being driven out Iberville street in the direction of the river and the truck, on which plaintiff was riding, was going up Burgundy street in the'direction of Canal street. The plaintiff was on .the side of the truck facing the cab and. had intended to alight from the truck at the corner where the collision occurred.

The defendant contends that its cab did not strike plaintiff and alleges that his injuries were due to the fact that he jumped off of the truck just before the collision, lost his footing and fell, and, it is argued, in this court, that in any event' plaintiff in riding on the running board was guilty of a" violation of the city ordinance and, therefore, contributorily negligent. We are informed in argument that it was on this latter ground that the trial court was persuaded to dismiss plaintiff’s suit, however, we find nothing in the record indicating what the- reasons of the trial court were for its judgment.-- Nor do we find any plea of contributory negligence.

Contributory negligence must he specially pleaded and proven. No such plea is made in this case and the city ordinance •upon which defendant relies is not' referred to' in his' answer. It is not sufficient to aver the negligence of plaintiff to be the sole cause of-the accident. Schwitzer v. Giangrosso, 10 La. App. 777.

Admitting arguendo the negligence of plaintiff and his violation of the city ordinance, to defeat his recovery it must appear that his negligence was the cause of the accident. Shick v. Jenevin, 145 La. 334, 82 So. 360; Manceaux v. Hunter, 148 La. 97, 86 So. 665.

Whether plaintiff jumped' or was knocked off of'the truck by the impact of the collision is unimportant, because we are satisfied from the evidence that if he' jumped it was at a time- when the collision was imminent and in an effort to avoid injury, consequently the result of his fall was due to the collision.

Our appreciation of the record is that the accident was due to the excessive speed of the driver of the cah, who was subsequently charged with reckless driving in the Criminal court and convicted and sentenced. There are various estimates of the speed of the cab by the witnesses who testified in this case, but all are agreed that it was going very- rapidly. Besides when the cab driver made a belated effort to check his speed, the cab skidded over the pavement, indicating that it was not under control.

Moreover the accident occurred at about 8:30 in the morning, in daylight and plaintiff was in full view of the driver of the cab, the truck having entered the intersection at a very slow pace, and having almost completed the crossing, when struck by the cab, the driver of which might easily have avoided the accident by the exercise of ordinary care. We are convinced. that defendant is liable.

Plaintiff suffered a fractured skull as a result of the accident, the effect of which -upon the sensory region of the brain was to destroy his sense of taste. He incurred an expense of $120.40 for hospital service and a doctor bill of $30, and was unable to work for more than two months. It is manifest that his injuries were serious. We will allow $3,500.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be and it is annulled, avoided, and reversed and that there now be judgment in favor of the plaintiff, Louis Gauvereau, against the defendant, Checker Cab Company, in the full sum of $3,500 with legal interest from judicial demand until paid.

JANVIER, J., takes no part.


author: HIGGINS, J.

text:
    No. 11,660
    Orleans
    NATIONAL CASUALTY CO. v. UNION INDEMNITY CO. ET AL.
    (January 13, 1930. Opinion and Decree.)
    (February 17, 1930. Rehearing Refused.)
    (March 10 1930. Writ of Certiorari and Review Refused by Supreme Court.)

      W. A. Porteous, Jr., of New Orleans, attorney for plaintiff, appellee.
    Manning W. Heard and 1^. W. Ogden, of New Orleans, attorneys for defendants, appellants.
   HIGGINS, J.

This is a suit in which plaintiff seeks to recover of defendant $2,000 under a fidelity bond, by which the defendant undertook tq indemnify plaintiff against less by reason of “any act of larceny or embezzlement directly or through connivance with others, committed, during the continuance of this bond” by J. P. Higgins, Jr., manager of plaintiff’s southern departirient.

Defendant denied liability upon the ground that Higgins had not been guilty of any act of embezzlement or larceny within tbe provisions of its bond and in the alternative that the plaintiff had not complied with the provisions of the bond in that it failed to give proper notice of the alleged defalcation of its employee, Higgins, and that proper audit of the books of account of its employee, Higgins, was not made at proper intervals as required by the provisions of the bond. There was judgment in favor of plaintiff and defendant has appealed.

We will consider the defenses in the above order.

The original petition alleged that the loss was the result of larceny or embezzlement of the plaintiff’s funds by the employee, Higgins, but in the supplemental petition, it was charged that the loss was the result of the act of larceny or embezzlement directly or through connivance with others by the employee, Higgins. Plaintiff, therefore, bore the burden of proving that it sustained a loss as a result of Higgins’ stealing or embezzling its funds, directly, or stealing or embezzling its funds through connivance with others.

The record shows that J. P. Higgins, Jr., and B. Simon Titus were the company’s original representatives under the name of Riggins-Titus Company, Inc. In 1923 the contract between the plaintiff and Higgins-Titus Company, Inc., was cancelled because plaintiff was not satisfied with the questionable actions. of Titus in the handling of the company’s business. The fact that the company did not care to have any further contractual relation with Titus was made known to Higgins. However, the company offered Higgins a contract individually, with the understanding that Titus was to have nothing to do with the company’s business. As Higgins was to handle the company’s funds it required him to give a bond. The bond sued upon was furnished by Higgins.

Higgins undertook the company’s business in accordance with his individual contract, but then accepted employment selling printer’s ink, which required him to travel a considerable bit, with the result that he was away from New Orleans a great part of the time. As Titus was familiar with the handling of the business of the plaintiff, Higgins entered into a written contract with Titus whereby Titus was to run the business for Higgins and credit him with one-half of the net earnings of the business. It appears that Higgins owed Titus certain money and that Higgins’ one-half of the earnings was to be credited against the amount that the said Higgins owed Titus. Higgins left a number of letterheads and drafts, signed in blank, with Titus which were replenished from time to time, with the result that Titus operated the business for very nearly two years without the plaintiff knowing that Titus was handling its affairs in the south-era district. In October, 1925, plaintiff became suspicious of the dealings of this agency and decided to investigate in order to determine if everything was in proper order.

Plaintiff wrote Higgins a letter telling him that they understood that he was not actively in charge of their business in the southern district but that Titus was handling it for him. Higgins answered this letter denying these facts.

Plaintiff then sent John P. Collins, its auditor, to New Orleans during the latter part of December, 1925, to make an audit and investigate the company’s affairs'which were being handled by Higgins. Collins found Titus in charge of the office and his investigation revealed the secret agreement and working arrangement for the handling of' the company’s business. The audit showed a shortage existed in the agency which amounted to $3312.72. This audit was begun on January 2, 1926, and completed on January 9, 1926. As soon as the shortage was revealed plaintiff notified the defendant bonding company.

It is not urged that Higgins committed any act of larceny. Plaintiff earnestly insists that Higgins directly or indirectly committed embezzlement. Embezzlement is defined as follows:

“Embezzlement is the fraudulent appropriation of property by a person to whom such” property “has been intrusted, or into whose hands it has lawfully come.” Moore v. United States, 160 U. S. 268, 16 Sup. Ct. 294, 40 L. Ed. 422; State v. Roubles, 43 La. Ann. 200, 9 So. 435, 26 Am. St. Rep. 179; Union Nat. Bank v. United States Fidelity & Guaranty Co., 143 La. 329, 78 So. 582. State v. Dudenhefer, 122 La. 288, 7 So. 614.

The evidence shows that the funds of the plaintiff were diverted by Titus, during Higgins’ absence and so far as the record indicates without his knowledge and consent. The fact that Higgins absented himself from his employment and made it possible for Titus to convert the funds of plaintiff to his own use, may reflect upon his business judgment and may convict him of neglect of his employer’s affairs, which would give rise to a civil action against Higgins for breach of his contract. There is no evidence tending to prove that Higgins, its employee, was guilty of larceny or embezzlement eithér singly or in conjunction or in conspiracy with others.

Higgins in retaining Titus against the advice and instructions of his employer was guilty of disobedience and when he wrote, denying that Titus was in his office, he was guilty of deception, but bad judgment, neglect, disobedience and deception do not singly or in combination, amount to larceny or embezzlement, nor can it be said that sucli derelictions of duty amount to a connivance with Titus in the commission of the crime of larceny or embezzlement.

We are referred to Delaware State Bank v. Cotten, 170 Pac. 992, where it was held that in order to recover on a surety bond indemnifying a bank against loss due to “fraud or dishonesty of its cashier amounting to embezzlement or larceny” it is unnecessary to establish .the fraud or dishonesty of the cashier to the extent necessary in a criminal prosecution. . This case is not apposite here for the reason that in the case at bar the bond sued on is not worded as broadly as in the cited case and for the further reason that there is no proof of any fraud or dishonesty on the part of Higgins.

To extend defendant’s liability to the point necessary for plaintiff to recover in this action, would be to interpolate clauses enlarging upon the express iiability in the bond and to re-write the contract between the parties.

The view we entertain on this point, makes it unnecessary to consider the alternative defenses.

For the reasons assigned the judgment appealed from is annulled, avoided and reversed and it is now ordered, adjudged, and decreed that there be judgment in favor of the defendant, Union Indemnity Company, dismissing plaintiff’s suit at its cost.


author: JANVIER, J.

text:
    No. 11,888
    Orleans
    PURSER v. HOLLANDER
    (January 13, 1930. Opinion and Decree.)
    (January 27, 1930. Rehearing Refused.)
    A. Morgan Brian, of New Orleans, attorney for plaintiff, appellee.
    Arthur B. Leopold, of New Orleans, attorney for defendant, appellant.
   JANVIER, J.

Plaintiff sustained burns to his knees and, alleging that these burns were caused by chemicals used in the spraying of the beds of defendant’s hotel, seeks to recover therefor. After registering and being assigned to a room plaintiff retired at about 9:30 p. m. He alleges that at about 11 p. m., having dropped off to sleep he was suddenly awakened by a realization of the fact that one of his knees was burnt “almost to a crisp” and that the other also had sustained burns a little less serious. He proceeded to the Charity Hospital where his injuries were treated.

Defendant contends that the burns, such as they were, were not sustained by chemicals used in treating the beds but, in all probability, were the result of some accident or unforeseen event of which plaintiff had no knowledge and, in fact, not even within his premises.

There are many circumstances connected with plaintiff’s side of the case which tend to throw suspicion upon his statements. His patent exaggeration of his injuries shows a disposition which does not elicit the sympathy of the court. Nevertheless the whole record convinces us that the plaintiff did suffer some kind of hums to his knees and his own positive evidence that they were sustained while he was asleep in defendant’s hotel overcomes the theoretical defense of defendant, Hollander. That chemicals were used in the treatment of the beds is not denied but it is contended that the solution of camphor balls and gasoline could not cause the injuries complained of. It appears, however, that the spraying of the beds, though done only once a week, had taken place during the day on the night of which plaintiff received the burns.

Viewing the record' as a whole we have come to the conclusion that we would not be justified in reversing the findings of the trial court.

As to the quantum, it is manifest that plaintiff greatly exaggerated the injuries he sustained which, in fact, were of a very simple nature. It appears to us that the amount allowed, to-wit: $50, is ample compensation.

The judgment appealed from is therefore affirmed.


text:
    No. 11,640
    Orleans
    BOWIE LUMBER CO., LTD., v. YAZOO & MISS. VALLEY R. R. CO., ET AL.
    (January 13, 1930. Opinion and Decree.)
    (March 10, 1930. Rehearing Refused.)
    (May 5, 1930. Writ of Certiorari and Review Refused by Supreme Court.)

      Hopkins & Talbot, of New Orleans, attorneys for plaintiff, appellant.
    Lemle, Moreno & Lemle, of New- Orleans, attorneys for defendants, appellees.
   HIGGINS, J.

The Bowie Lumber Company, Limited, sued the Yazoo & Mississippi Valley Railroad and the Illinois Central Railroad in solido for $374.73, representing the value of fourteen head of cattle, and a refund of freight charges paid to the railroad companies for the handling of these cattle from Centerville, Mississippi, to Bowie, Louisiana, via New Orleans. The petition alleges that on March 30, 1926, plaintiff delivered to the defendants, public carriers, 169 head of cattle in good and sound condition, and that fourteen of the said cattle were killed in transit through the negligence of the defendant in the rough handling and switching of the three cars in which the cattle were loaded, and that the negligence of defendants was a violation of the terms of the contract as shown by the bills of lading.

Defendants admit the shipment and the loss of the fourteen cattle but deny any negligence on their part; that, under the terms of the contract of shipment, defendants were not to be liable except in case of negligence on their part proximately contributing to the damage and that the cattle in question were weak and scrub cattle of little value, and in no condition to be shipped, having been dipped in a strong solution of arsenic, which so weakened them that they were unable to stand the trip; and that the cattle died from inherent vices, for which defendants were not responsible.

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

Plaintiff contends, first, that the carrier bears the burden of proving that it was not only free from negligence in causing injury or death to the cattle shipped under the uniform livestock contract, but also that the particular cause of their injury or death was within the specified exceptions of liability stated in the contract; second, that the carrier has not shown itself to be free from negligence with reference to the loss of the fourteen head of cattle in question and the particular cause of their injury and death; and; third, that the carrier has failed to establish itself free of any fault or negligence with reference tq the injury and death of the two head which died en route from Baton Rouge to New Orleans.

Defendant contends that it bears the burden of proving by a preponderance of the evidence that it was free from fault or negligence in causing the injury and death of the cattle, but contends that the record shows that it has borne this burden successfully.

The two pertinent paragraphs of the uniform livestock contract prescribed by the Interstate Commerce Commission reads as follows:

“Sec. 1. (a) Except in the case of its negligence proximately contributing thereto, no carrier or party in possession of all or any of the live stock herein described shall be liable for any loss thereof or damage thereto or delay caused by the act of God, the public enemy, quarantine, the authority of law, the inherent vice, weakness or natural propensity of the animal, or the act or default of the shipper or owner, or the agent of either, or by riots, strikes, stoppage of labor or threatened violence.
“(b) Unless caused by the negligence of the carrier or its employees, no carrier shall be liable for or on account of any injury or death sustained by said live stock occasioned by any of the following causes: Overloading, crowding one upon another, escaping from cars, pens, or vessels, kicking or goring or otherwise injuring themselves or each other, suffocation, fright, or fire caused by the shipper or the shipper’s agent, heat or cold, changes in weather or delay caused by stress of weather or damage to or obstruction of track or other causes beyond the carrier’s control.”

Such limitations of liability or exemptions of liability have been held to be constitutional and valid. Chalona Co. v. American Ry. Express Co., 123 So. 147.

We will first inquire whether the carrier must not only prove itself free from fault in causing the damage, but also prove the particular cause of the damage. The .general statement of law on this subject may be found in 10 C. J. 379, paragraph !581:

‘“Live Stock (a) When Unattended by Shipper- — aa. View that Burden Rests on Carrier to Negative Negligence. According to the weight of authority, where it is shown that live stock not accompanied by the shipper was delivered to the carrier in good condition and that it was not delivered, or was received at destination in bad condition, the burden is on the carrier to show that the loss or injury was not the result of its negligence. In some decisions the rule is laid down even more broadly, it being stated that proof that live stock delivered to the carrier was lost or injured while in its possession throws on the carrier the burden of showing that the loss or injury was not due to its negligence. However, the carrier will be relieved from liability if it can show that it has provided all reasonable means of transportation, and has exercised that degree of care in transporting the property which the nature of the property requires. It need not go. further and make a specific explanation as to how the injury occurred.”

And it is again clearly stated in Elliott on Railroads, third edition, Vol. 4, at page 832:

“2334 (1548a) Burden of Proof as to Negligence. There is some conflict among the authorities as to the burden of proof in such cases; but the prevailing rule, where the owner or his agent does not go with the stock, is that when the animals are shown to have been delivered to the carrier in good condition, and to have been lost or injured on the way, the burden of proof then rests upon the carrier to show that the loss or injury was not caused by its own negligence. * * *”

In the case of Simms & Sons v. N. O. & N. E. R. Co., 122 La. 268, 47 So. 602, the Supreme Court, in construing a livestock contract and particularly a clause limiting the liability of the carrier except in case of negligence on its part, said:

“As the waiver covers all risks incidental to the transportation of a car load of mules, proof of the non-negligence of the carrier seems to us to be a sufficient defense. Under the waiver, the shipment was at the shipper’s risk, barring the negligence of the carrier.
“The precise cause of the injury is immaterial, if it did not result from the negligence of the carrier. Our learned brothers of the Court of Appeal did not consider the legal effect of the contractual waiver, which exempted the carrier from all damages not caused by the negligence of the company. This was error.”

The doctrine of the Simms case was re-affirmed in the case of McHenry Horse Exchange v. Illinois Central R. Co., 148 La. 49, 86 So. 649. This was also a case in which the plaintiff sued for damages for the loss of a mare which died in transit. The court, in disposing of the ease, said:

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

See also Collins v. T. & P. Ry., 11 La. App. 445, 123 So. 504; Glaser v. N. O. T. & M. Ry. Co., 10 La. App. 755, 120 So. 798; C. C. Arts. 2232, 2754.

We are therefore of the opinion that the law places on the carrier the burden of proving by a preponderance of the evidence that it was free from fault or negligence in causing the injury or death of the cattle, but not the precise cause of their injury or death.

We will next consider the question of whether or not the defendant carrier successfully bore the burden of proving by a preponderance of the evidence that the death of the cattle was not due to its fault.

The evidence shows the cattle were loaded in three cars at Centerville, Mississippi, on March 30, 1926. The train left about 8:00, p. m. and arrived at Baton Rouge about 10:00 p. m. the same day. An examination of the cattle at Baton Rouge revealed that nine cattle were dead and three were dying in car I. C. 30352. The cattle in the other two cars were without injury and apparently in good condition. These two cars were immediately sent to New Orleans and arrived on March 31, 1926, where one yearling and a cow were found dead in these two cars respectively. The remaining cattle in car I. C. 30352 were unloaded, fed and watered at Baton Rouge and sent to New Orleans the next day. Upon the arrival of the cattle in New Orleans they were all unloaded, fed and watered and the three cars then shipped from New Orleans to Bowie, Louisiana, and arrived there on April 1, 1926, in good condition. The cattle consisted of cows, calves and yearlings and were unattended either by a representative of the shipper or owner.

The conductor who was in charge of the train between Centerville and Baton Rouge testified that the trip between these two points was without accident, jolts, switching or stops. Neither the conductor in charge of the train from Baton Rouge to New Orleans, nor any members of the train crew, were produced as witnesses for the railroad company, and the movement of the two cars in which two cattle were found dead was unexplained.

The evidence is conflicting as to whether the cattle were in good condition and properly loaded at the time of shipment, but we find that the preponderance of the evidence shows that the cattle were in good condition when shipped and were properly loaded.

The evidence convinces us that the cattle were shipped in cars that were in good order and were handled within a reasonable tipie, the trip from Centerville, Mississippi, to Baton Rouge, Louisiana, taking about two hours. The conductor in charge of this train testified that the train was operated properly and he is corroborated by the fact that in the other two cars the cattle were uninjured and in good condition on their arrival in Baton Rouge. We are therefore of the opinion that the carrier has proved that it was free from fault insofar as the twelve head of cattle are concerned which were found dead upon their arrival at Baton Rouge.

As to the two cattle which were found dead in New Orleans, the defendant did not offer any evidence to show that the train was properly operated and that the company was free from fault in causing the injury and death of these two animals. Since the company failed to show that it was free from fault in causing injury or death to these two head, it is, therefore, responsible to the ¡plaintiff for the damage resulting from their death.

The evidence shows that these two animals were worth $25 each and that the freight amounted to $1.77 each, making a total of $53.54 for which plaintiff is entitled to judgment.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be and the same is hereby annulled, avoided and reversed, and that there now be judgment in favor of Bowie Lumber Company, Ltd., plaintiff herein, and against the Yazoo & Mississippi Valley Railroad Company and the Illinois Central Railroad Company, in solido, in the sum of $53.54, with legal interest from judicial demand until paid, defendants to pay all costs in both courts.


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    No. 11,644
    Orleans
    STEWART v. MUMME
    (January 13, 1930. Opinion and Decree.)

      Frank A. Miller and Solomon S. Goldman, of New Orleans, attorneys for defendants, appellees.
    L. Walter Cockfield, of New Orleans, attorney for plaintiff, appellant.
   WESTERFIELD, J.

Plaintiff brings this suit for $1,500, with interest and attorney’s fees, on a written contract dated September 3, 1926, entered into with the defendant, whereby plaintiff undertook to install a heating system in defendant’s home for the sum of $2,000, of which $500 was paid in casb. Defendant answered, averring that plaintiff had failed to perform his undertaking under the contract in that the heating system, as installed, would not function properly, and, by way of reconvention, prayed for a dissolution of the contract and for the return of the $500 paid.

The district court dismissed plaintiff’s demand and awarded judgment for defendants as prayed for. Plaintiff has appealed.

The contract sued on, among other stipulations, contained the following:

“That the equipment will heat the interior of the house to 70 degrees when the outside temperature is 30 degrees.
“Should the Seller then fail (after completing a test run) to make the plant meet the specifications herein (in the contract) contained, the Purchaser shall allow the Seller to remove the plant from his premises, and will accept refund of any money previously paid by him to Seller as full discharge to the Seller of any obligations herein contained.”

The record convinces us that the heating system which plaintiff had undertaken to install in the home of defendants did not heat. The boiler was too small, there was insufficient radiation, the piping was of improper size and of inadequate capacity, and the installation was unskillful. Two experts, one employed by plaintiff and another by defendants, testified, and both agree that the system was not what it should be. They differ, however, concerning the possibility of converting it into an efficient plant. Plaintiff’s expert estimated that the apparatus could be put in good order for about $120 and defendant’s expert testified that the system as installed was so radically defective that it was not susceptible of improvement at any reasonable expense.

Plaintiff contends that he was not afforded sufficient opportunity to correct the deficiencies in the system, which he insists he was at all times ready to remedy. It seems to us, however, that he had ample time and opportunity to put the plant in good order if it were possible. His efforts to do so and defendants’ efforts to have him do so resulted in acrimonious correspondence wherein he took the position that the heating plant was functioning properly, in accordance with his contract, and insisted upon the payment of the balance of the purchase price, he claiming to have made a test under suitable weather conditions with favorable results. But it was demonstrated that he was mistaken, both as to the weather conditions, and the temperature of the house during the test. Defendants were not obliged to permit plaintiff to indulge in a constant tinkering with the system in the hope that it might ultimately produce results. It is not necessary that the system should have proven to be utterly worthless. It is sufficient that it be “so inconvenient and imperfect that it must be supposed that the buyer would not have (purchased it had he known of the vice.” R. C. C. 2520. See also Bohannon v. Stewart, 4 La. App. 150; Hawley Down-Draft Furnace Co. v. Southern Chemical & Fertilizer Co., Ltd., 51 La. Ann. 915, 25 So. 470.

Under the express terms of the contract the plaintiff, under the circumstances, should remove the heating plant and return the cash payment.

We are of opinion that the judgment of the trial court is correct, and, for the reasons herein assigned, it is affirmed.


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    No. 11,880
    Orleans
    BROWN v. ST. BERNARD PARISH SCHOOL BOARD.
    (January 13, 1930. Opinion and Decree.)
    Olivier S. Livaudais, of New Orleans, attorney for plaintiff, appellant.
    L. H. Perez, of New Orleans, attorney for defendant, appellee.
   JANVIER, J.

Plaintiff sues for $1,125 claimed as salary she would have earned as auxiliary teacher for the school term 1927-1928, had the contract which she entered into with the St. Bernard Parish School Board, through • J. C. Blanchard, superintendent, not been cancelled by the school board because of alleged want of authority in Blanchard.

Defendant contends that Blanchard had no authority to represent it in executing the contract and, that, therefore, his actions were entirely without effect.

Under Act 100 of 1922 which, it is conceded, is the statute which is controlling here, contracts with teachers must be signed by the superintendent, as the representative of the parish school board, but under section 20 of that Act the selection of the teachers is made by the board from nominations sent in by the superintendent. In other words, the method is as follows: The superintendent makes his nominations to the board. The board then approves or disapproves the nomination. If it approves, the superintendent then executes contracts with the teachers selected. If it disapproves, two courses are open to it under the Act, either new nominations may be made by the superintendent or “a majority of the full membership of the board may elect teachers without the endorsement of the superintendent.”

On. July 2nd, 1927, the board met to act on the nominations made by the superintendent. On the list of nominations the name of Miss Georgiana W. Brown, plaintiff, appeared as the person recommended by the superintendent as one of the teachers for the St. Bernard Consolidated School. The board approved this list and thus authorized the superintendent to enter into contracts with the various parties named, among them plaintiff, she, as we have stated, having been assigned by the board to the particular school mentioned, to-wit: St. Bernard Consolidated School.

Miss Brown did not care to accept the position in that school but desired appointment as auxiliary teacher, a position which she had occupied for several years. On the list of nominations submitted by the superintendent to the board on July 2nd, there appeared no name as bearing the superintendent’s recommendation for the position of auxiliary teacher.

Upon Miss Brown’s refusal to accept a contract to teach in the school to which she was assigned by the board, the superintendent agreed to appoint her to her former position as auxiliary teacher, and sent her a contract for that position. In due course and within the time limit she signed and returned this contract and upon the opening of the school term, entered upon her duties as auxiliary teacher.

Shortly thereafter, she was notified that the board did not require her services as auxiliary teacher and that her alleged contract was cancelled.

The sole question presented is whether or not the superintendent had authority to enter into the contract.

Plaintiff’s counsel contends that since, for several years, the superintendent had entered into contracts with her, she was justified in assuming that he had th,at authority. In support of this contention counsel cites Berlin v. Cusaehs, Ltd., 114 La. 744, 38 So. 539, in which the court said:

“The authority of the subordinate agents of a corporation often depends upon the course of dealing which the company or its directors have sanctioned. It may be established sometimes without refexence to the official record of the proceedings of the board, by proof of the usages which the company has permitted to grow up in the business, and of the acquiescence of the board charged with the duty of supervising and controlling the company’s business. Parties dealing with the president of a corporation in the ' usual manner, and within the scope of the powers which ‘ the president has been accustomed to exercise . without the assent of the directors, and not ultra vires of the corporation, would be entitled to assume that he had been actually invested with those powers.”

That case does not appear applicable here, for, of course, a private corporation which by its conduct leads one to believe that an agent has authority is therefore estopped to deny that authority, but that rule does not apiply to a public body or board, the duties and powers of whose officers are fixed by law. Those who deal with such officers are bound to know the law with reference thereto. In State v. La. Cypress Lumber Co., 144 La. 559, 80 So. 722, the court said:

“The state is not estoipped by the unauthorized acts of officers whose powers are defined and limited by law.”

In addition to the constructive knowledge that is assumed by law to exist in those persons dealing with public boards, it is highly probable that Miss Brown had actual knowledge of the fact that the superintendent had not been authorized to employ her as auxiliary teacher. The contract that was sent her referred to the fact that the superintendent was authorized under resolution of the board of July 2, 1927, and a mere glance at that resolution would have shown that no such authority was contained therein. Furthermore, the letter of the superintendent to Miss Brown, dated August 27, 1927, in which he enclosed the contract in question, indicated that there was something wrong with the situation and that he had been waiting up to that time apparently for the particular authority that he desired to appoint Miss Brown, tq that special position.

Plaintiff cites Picou v. St. Bernard Parish School Board, No. 8600 of the docket of this court, decided April 7, 1924, in which the teacher had ’ been appointed by the board and was later removed by the board without cause. It is apparent that that case has no application here because manifestly if the board itself acted in making the appointment, the same board could not remove without just cause.

In Gauthier v. School Board, 5‘ La. App. 570, this court dealt with a situation identical with that presented here. A teacher was approved by a board and assigned to a designated school. He did not want to teach in that school, and, therefore, requested the superintendent to. assign him to another. Whether the superintendent actually sent him the contract for that school is not conclusively shown, but this court held that it was not necessary to determine whether the contract had, in fact, been executed because whether it had or not, it would have been ineffective, since the superintendent had no authority to appoint any one tc any other position than that specified by the board. In that case this court said:

“It is thus seen that the law is mandatory to the effect that the Parish School .Board shall select teachers from nominations made by the parish superintendent, and we do not believe that this duty can be delegated to the parish superintendent.
“If this official did send the purported contract signed by him to plaintiff herein (a . fact upon which the proof is by no means conclusive) and if plaintiff did sign and return the document, it can have no legal significance, because it is violative of Section 20 of the School Law.”

It is true that in that case it appears that the • teacher did not have the necessary certificate for the position to which the superintendent appointee! him, whereas here the young lady was amply qualified for the position, as is evidenced by the fact that she had satisfactorily filled it for several years, but to permit the superintendent to enter into contracts different from those approved by the board, would be to allow him to substitute his will for that of the hoard, which is contrary to the contemplation of the statute.

The fact that on April 7, 1927, the board had adopted a resolution to the effect:

“RESOLVED, That, the Parish Superintendent, be, and he is hereby empowered to re-employ teachers whom he may wish to retain in the service for the 1927-28 school session, and to employ such other qualified teachers as he may need to fill such vacancies as may exist prior to the meeting of the Board when the list of teachers will be submitted.”

is of no importance so far as Miss Brown is concerned, as the superintendent took no action under that resolution but waited until the July meeting, at which meeting a specific resolution was adopted with reference to Miss Brown and which designated her to the other position and not to the one mentioned in the contract in question.

What may have been the real reason for the action of the board it is not within our province to investigate. That they had the right to refuse to appoint her to the position of auxiliary teacher and that they did so refuse is all that is necessary for us to determine. It is regrettable that the young lady was deprived of the opportunity of securing another position for the school year in question, but we are powerless to remedy the situation, which resulted from her dealing with the superintendent in regard to a matter, with reference to which, he was. not authorized to contract.

We feel that the action of the trial court in dismissing Miss Brown’s suit is correct.

The judgment appealed from is, therefore, affirmed.


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    No. 13,116
    Orleans
    WILSON v. LAGASSE
    (January 13, 1930. Opinion and Decree.)
    (January 27, 1930. Rehearing Refused.)

      Calm & Calm, of New Orleans, attorneys for plaintiff, appellee.
    Paul W. Maloney, of New Orleans, attorney for defendant, appellant.
   JANVIER, J.

Plaintiff obtained by default judgment for $300 on a draft which had been accepted by defendant. The draft was for more than $300, but, in order to give the First City court jurisdiction, plaintiff remitted so much of the claim as was in excess of the jurisdictional limit of that court.

Appellant suggests that the judge erred in rendering judgment for the following reasons:

(1) That, prior to the time it was rendered, there had been filed by his counsel a motion that plaintiff be required to furnish a' bond for costs;

(2) That in the record there is no evidence sufficient to sustain the judgment.

In considering the first contention we find that, at the time the judgment was rendered, defendant had not obtained from the judge an order requiring plaintiff to furnish bond for costs. It is true that, on the day prior to that on which the judgment was rendered, there had been filed with the clerk of court a motion suggesting that such bond should be executed and filed, but this motion was never handed to the judge, nor was it signed by him.

Under Act 136 of 1880 an order of the judge is required fixing the amount of the bond. It was defendant’s duty to see that such order was signed. His failure to .obtain it deprives his motion of any effect.

With regard to the second contention, we find in the record a note of evidence which shows that:

“Counsel for plaintiff offers in evidence the petition, citation with the return thereon showing due service June 1st, 1929, in person and trade acceptance or draft drawn by petitioner on the defendant on February 14th, 1929, and the signature of the defendant thereon, dated February 14th, 1929, and the entire record, as well as the notation of the docket clerk showing, no answer filed.”

We also find on the judgment itself the following notation: “Note in evidence.”

We presume that the word “note” refers to the draft or trade acceptance, which forms the basis of this suit.

Counsel for defendant contends that we should not consider the note of evidence, because it was never filed. We cannot determine from the record whether the note of evidence was in fact filed, but inasmuch as the record, as it appears before us, was produced by appellant, and inasmuch as the note appears in that record, it seems to us that a rather strong presumption exists that it was actually filed. However, if it was not, the notation on the judgment to the effect that the note was filed in evidence appears to us to be sufficient to warrant the rendering of the judgment in the first instance (Kearney & Co. v. Robt. Fenner & Co., 14 Ann. 870) and justifies the affirmance of that judgment.

The judgment appealed from is therefore affirmed.


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    No. 11,897
    Orleans
    FRANZ v. SHUSHAN
    (January 13, 1930. Opinion and Decree.)
    (January 27, 1930. Rehearing Refused.)
    Eraste Vidrine, of New Orleans, attorney for plaintiff, appellant.
    Edward Rightor, Solomon S. Goldman, of New Orleans, attorneys for defendant, appellee.
   JANVIER, J.

This' suit is the result of an intersectional collision between a Cadillac automobile owned and driven by defendant, Shushan, and a Ford coupe belonging to and operated by plaintiff, Franz. The accident occurred at about six o’clock in the evening of May 16, 1928, on the river side intersection of Claiborne avenue and Clio street. Shushan was driving down Claiborne and Franz was proceeding out Clio street in the direction of the lake. Franz received minor personal injuries and his automobile sustained rather severe damage. The trial court came to the conclusion that Franz himself was responsible for the accident and rendered judgment dismissing his suit.

Claiborne avenue is a boulevard and Clio street at that point is “a street with a street car track.” Therefore, under our interpretation of the ordinance, C. C. S. 7490, neither of the streets in question can be said to be a right of way street, having superior rights over the other since, under paragraph 7 of article 1 of the ordinance, it is provided “vehicles traveling on the following streets have the right of way approaching on intersecting streets, namely * * * all boulevards. All streets with street car tracks.” But we find in the ordinance in subparagraph (c) of paragraph 7 above referred to, the following:

“On all other streets, and 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.”

We also find in subparagraph (f) the following:

“Vehicles approaching from the right shall have right-of-way as illustrated above.”

It appears, therefore, that the framers of the ordinance intended that on all streets of equal rank, such as boulevards and streets having street car tracks, the general provision that vehicles approaching from the right shall have the right-of-way should apply. But even if Franz’ automobile was entitled to the right-of-way, that fact would not absolve its driver from the duty of exercising care, nor would it entitle him to dash into the intersection at an unreasonable speed. The evidence leaves us rather well satisfied that these two vehicles entered the intersection at about the same time, and at very nearly the same speed. The exact point of the impact was very near the downtown lake corner of the intersection, showing that, although the Franz car had almost crossed the river side of the roadway of Claiborne avenue, the Shushan car had also almost crossed the driveway of Clio street. It is true that the fact that the front end of the Shushan car hit the side of the Franz car shows that the Franz car had more nearly completed the crossing than had the Shushan car, but as they were both traveling at a speed of probably between 20 and 25 miles an hour, a distance of 4 or 5 feet was traversed in an infinitesimal fraction of time. The two young ladies who were riding with Franz testified that, so far as they 'could recollect, he did not slacken his speed as. he approached Claiborne avenue.

He himself was well convinced that he had the right-of-way and thus thought that he was entitled to proceed, regardless of the large car which was bearing down upon him from his left.

He admits that he saw the Cadillac, but contends that he thought he had time to cross. If it was approaching at the great speed claimed by him he should have stopped to let it pass, because, even if he was entitled to the right-of-way, that would not have justified his action in emerging from a position of security into one of very apparent danger.

The failure of defendant Shushan to produce as a witness the young lady who was riding with him, of course, raises the presumption that her testimony would not have been helpful to his cause, but that presumption is not sufficient to outweigh the positive testimony of the several eyewitnesses, which testimony convinces us that the parties were about equally to blame.

We see no reason to disbelieve the witness Carver, as plaintiff’s counsel contends we should. His testimony is corroborated by the other witnesses and does not contain any such glaring inconsistencies as would warrant our rejecting it.

At any rate questions affecting the credibility of witnesses are more properly determined by the trial court,' and we will not disturb its findings of fact where we see no manifest error.

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


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    No. 13,125
    Orleans
    SCHLESINGER v. FOOTE
    (January 13, 1930. Opinion and Decree.)
    Legier, McEnerny & Waguespack, of New Orleans, attorneys for plainiiff, appellee.
    William H. Talbot, of New Orleans, attorney for defendant, appellant.
   HIGGINS, J.

Plaintiff sues defendant for the sum of $181.10, the alleged damage to his Hupmobile sedan, as a result of a collision between the plaintiff’s and defendant’s automobiles, about 12:30 p. m., December 13, 192'8, at the intersection of Maple and Lowerline streets in the city of New Orleans. Defendant denied liability and pleaded contributory negligence. There was judgment in favor of the plaintiff for the amount prayed for and defendant has appealed.

Lowerline street is paved and runs from the lake to the river. Maple street is also paved and runs from uptown to downtown. Both streets are approximately 25 feet in width. At the intersection, Lower-line runs straight, but Maple street curves towards the lake, as you come from uptown toward downtown. As a result of this curve towards the left or lake side, as you face downtown the uptown lake curbing and sidewalk extend much farther towards the river than the downtown lake curbing and sidewalk; and- the river, downtown curbing and sidewalk extend farther towards the lake than the uptown river curbing and sidewalk. A car, therefore, going from uptown in the direction of downtown, on Maple street, would have to turn to its left at the intersection of Lowerline in order to negotiate the curve at this point.

The-defendant was driving a 1924 Packard touring car from uptown in the direction of downtown, on Maple street. There were sitting with him in the front seat two young ladies. One of these ladies testified in the case, hut, as she was in conversation at the time of the accident with the other young lady, her sister, she was unable to throw very much light on how the accident occurred. The sister did not testify as she is alleged to have been seriously injured and was in Colorado at the time' the case was tried.

The plaintiff’s Hupmobile sedan was being driven by his wife from the lake in the direction of the river and she was alone. As these automobiles approached the intersection, a collision between them ensued in about the center of the intersection. The right front portion of the plaintiff’s car struck the left side of the defendant’s car where the left front fender joined the running board, and at the point where the left front door is located. The Packard car ran upon the downtown river sidewalk and came to rest on an angle of 45 degrees upon a guy wire, with its front facing up and the rear bumpers and wheels resting on the ground, as if the ear were climbing the wire. The Hupmobile came to rest at the curb on the downtown lake side of the intersection!, ' facing in the direction of the lake.

Plaintiff contends that his car .was being operated at a lawful and moderate rate of speed and had entered the intersection first, and, therefore, was entitled to proceed under the city traffic ordinance; and that defendant’s car, coming at an estimated and unlawful rate of speed of 35 or 40 miles an hour, dashed across the path of his car,' and that, in order to avoid the accident, his wife applied the brakes and attempted to turn the car to the left, with the result that the right front part of the Hupmobile struck the left front part of the Packard car, and that defendant operated his car recklessly on account of drinking whiskey.

The defendant contends that he approached the intersection at about 25 miles an hour and was in the intersection first, and that, as his car entered the intersection first, he had the right to proceed, and secondly, that as his car approached from the right side of plaintiff’s car, he was entitled to the right-of-way under the city traffic ordinance; and that he was not under the influence of liquor.

Plaintiff’s witnesses were his wife, the driver of the Hupmobile, John Jackson, who lived on the uptown river corner of the intersection and who came to the scene immediately after the accident on account of hearing the crash, and two policemen. Defendant’s witnesses were two friends, who saw him after the accident, and one of the young lady guests and himself.

The evidence is conflicting as to the rate of speed of defendant’s car, but from the physical facts in the case we are convinced that the defendant’s car was being operated at an excessive rate of speed. The Packard car not only crossed the intersection, but ran over the sidewalk curbing, crushing the right front wheel, and ran up the guy wire of a telephone pole. The rear wheels imbedded themselves in the mud on the sidewalk on account of the fact that the propelling power of the car is in the rear wheels.

We are of the opinion that the plaintiff’s car was being operated at a moderate rate of speed, because, after striking the defendant’s car, it turned to the left and stopped at the downtown lake side of Ma-pie street, practically in the intersection. We are further borne out in this conclusion by the small amount of damage which was done to the defendant’s car by the impact. The photograph's introduced in evidence show that the left front fender, at the point where it joins the running board, was bent and crushed, the wooden running board was practically demolished and a dent was placed in the left front door. The evidence shows that it was the right front part .of (plaintiff’s car that struck the defendant’s car at this point.

The defendant argues that the plaintiff struck his car head-on at a fast rate of speed, but the extent of the damages to the defendant’s car and the fact that it was not forced out of its path, but continued straight on its course, indicates very forcefully to us that plaintiff’s car was going at a moderate rate of speed and struck the defendant’s car a glancing blow.

The defendant testified that he did not make any attempt to apply his brakes, but continued straight on his course in an effort to get across before plaintiff’s car struck him.. Plaintiff’s wife testified that she entered the intersection first and that when she saw the speeding automobile of defendant she attempted to stop, and realizing that if she continued on her course that the defendant’s car would strike her before she got across,- aipplied her brakes and attempted to turn to her left, down Maple street, at which time the right front part of her machine struck the defendant’s car. This explains why defendant’s car was • struck on the left front side.

It appears that plaintiff’s wife had been at a bridge party and was returning home at the time of the accident. Defendant had called at the home of a young lady friend and spent the evening there, and some time after 11 o’clock decided to take a ride. He admits that he stopped at a restaurant about a block and a half from the scene of the accident, where - he had one drink of whiskey with ginger ale. The police, in examining his automobile, found one empty whiskey bottle and another one that had a Houston (Texas) prescription on it in which there remained a small quantity of whiskey. There were also two glasses in the rear of defendant’s car. The two officers and Mr. Jackson testified that the odor of whiskey on defendant’s breath was very pronounced. Defendant denies being intoxicated and offers the testimony of two witnesses, who saw him' after the accident, and they testify that he was not under the influence of liquor.

The record convinces us that the accident was due solely to the defendant’s fault, first, in operating his car at an excessive rate of speed, and second, because defendant operated his car in a careless and reckless manner as a 'result of the effect of -drinking whiskpy.

Counsel for the defendant contends that; under the traffic ordinance of the city of New Orleans, an automobile approaching from the right at or approximately at the same time another automobile is about to enter the intersection, has the right-of-way and that his client’s car .had actually entered the intersection first, as shown by-the damage to his car. However, the evidence does not conyince us that the defendant’s car entered the intersection first, and we account for the fact that (plaintiff’s car struck defendant’s on the left front side because the driver of the Hupmobile attempted to stop and turn to the right, whereas defendant admits that he made no attempt to stop, but continued on his course. The difference in the rates of speed of the two cars further explains this fact.

Section. 1 of Article II, paragraph 3, of the traffic ordinance of the city of New Orleans fixes the speed limit at 20 miles an hour. This ordinance provides:

“RECKLESS DRIVING: Nothing in the foregoing sections, including the right of way section, shall be so construed as to mean that vehicles shall not, at all times, be driven with due regard to the rights and safety of others in the public streets, or that the speed may at any time be greater than is safe and proper under the conditions then obtaining.”

In the case of Bagert v. Maestri et al., 11 La. App. (unreported), No. 11,489 of this court, decided November 13, 1928, this court said:

“The fact that one of two colliding automobiles enjoys the right-of-way under the provisions of a municipal ordinance will not excuse dangerous and reckless speed on the part of the driver of the car having the right-of-way.
“The right-of-way is not a right of preemption, and automobiles using the right-of-way must be operated with due regard for the rights of ^others to use the public streets. The streets of the City of New Orleans are not speedways or race courses.”

and in the case of Vance vs. Poree, 5 La. Apip. 109, it was said:

“The right-of-way established by municipal ordinance, in favor of vehicles using certain streets, is not an exclusive privilege, and it must bé exercised with due regard to the right of other vehicles to use the intersecting street.”

' There is not any question as to the quantum.

The judge a quo rendered judgment for plaintiff for the amount claimed and after a careful reading of the record we cannot say he is in error.

For the reasons assigned the judgment appealed from is affirmed.


author: PER CURIAM.

text:
    No. 13,211
    Orleans
    EMERY & NORTON, INC., v. BALLARD ET AL.
    (January 13, 1930. Opinion and Decree.)
    William H. McClendon, Jr., .of New Orleans, attorney for plaintiff, appellee.
    Daly & Hamlin, of New Orleans, attorney for defendant, appellant.
   PER CURIAM.

In this matter it was^ conceded at the bar of this court by counsel representing all parties in interest that the appeal herein taken was frivolous. The appellee has asked for damages for frivolous appeal.

It is, therefore, ordered that the judgment appealed from be affirmed and it is further ordered that the appellee be allowed 10 per cent of the amount of the judgment appealed from as damages for frivolous appeal.


text:
    No. 13,158
    Orleans
    MIDDLETON v. SEITHER
    (January 13, 1930. Opinion and Decree.)
    Charles J. Larkin, Jr., of New Orleans, attorney for plaintiff, appellee.
    St. Clair Adams and St. Clair Adams, Jr., of New Orleans, attorneys for defendant, appellant.
   JANVIER, J.

Plaintiff, Middleton, was driving his automobile on Metairie road alongside Metairie cemetery and a few hundred feet from the New Basin shell road, when he was run into by an automo•bile owned and driven by defendant Seither. The damages sustained by plaintiff’s car amounted to $297.55, and for this amount he brings suit.

It is conceded that plaintiff was in no way at fault himself, as his car was on the correct side of the road, was being operated at a moderate rate of speed, and as there was nothing which he could do to avoid the accident. Defendant, however, contends that he is not liable and bases this contention on his claim that the accident resulted solely from the effects of'a collision between his car and the car of the third party, one Dudek, and which first collision was caused solely by the negligence of Dudek.

The evidence shows that defendant’s car was proceeding in the direction opposite that in which plaintiff’s car was going, when suddenly and without warning, the car . of Dudek which, was ■ going in the direction in which Mr. Middleton’s car was going, bumped into the Seither car and scraped along its side. Almost immediately afterwards the Seither ear turned sharply to its left, crossed the small, intervening space between it and the Middleton car and crashed into the front of the Middleton car and into the curb alongside the roadway.

Seither claims that as a result of the collision with the Dudek car he lost control of his own machine, having been bumped from his position in the seat and that, in an effort to regain control, his foot pressed upon the accelerator instead of the brake.

Mr. Middleton’s testimony falls far short of showing that Seither was in any way to blame. He concedes that the proximate cause of the first collision was the negligence of Dudek and that Seither was in no way to blame therefore. Unless then it appears that after the first collision Seither could have regained control of his machine and that an ordinarily prudent person and a reasonably careful driver could have done so, Seither is not liable.

Plaintiff’s actions at the time of the accident and thereafter indicated rather convincingly that it was his opinion that Dudek was responsible for both collisions and apparently it was only when he discovered that Dudek, being a non-resident and difficult to locate, could not be sued that he determined to make an effort to secure reimbursement from Seither.

With Seither, in his car, was an uncle by marriage, an old man about , 81 years of age, who, according to him, was very feeble. It is argued, that the fact that Seither did not produce this uncle as a witness creates the - presumption that the testimony of the uncle would have been adverse to him. We think, considering ‘the age of the old gentleman and his physical condition, that the rule which is' ordinarily applicable should not be allowed to work too great a hardship on Seither, particularly as the other evidence is quite sufficient to convince us that Seither was blameless.

. It is true that only , questions of fact are involved but we are unable to see in the record any evidence which justifies a holding that Seither was at fault. On the contrary his own testimony and the physical facts with reference to distances, etc., convince us that the second accident resulted entirely from the ' first and that since Seither was not responsible for the first he is not liable as a result of the second.

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


text:
    No. 13,172
    Orleans
    J. RABINOWITZ CO. v. HANDELMAN BROS.
    (January 13, 1930. Opinion and Decree.)
    Herman L. Midlo, of New Orleans, attorney for plaintiff, appellee.
    ■Sol Weiss and Gerald Netter, of New Orleans, attorneys for defendants, appellants.
   JANVIER, J.

Plaintiff company sues defendants on an open account for $262.23, the purchase price of certain clothing, dry goods and merchandise. No defense was made, defendant’s counsel stating: “We admit delivery of the goods itemized in the invoices, the subject of this case.”

It is very evident that the judgment appealed from should be affirmed, and, as we find in the record an answer to the appeal in which it is asked that we award damages for frivolous appeal, we believe that this prayer should be granted, though the fact that the defendants have gone into bankruptcy makes it more than doubtful if such an award will bear fruit.

It is therefore ordered, adjudged and decreed that the judgment appealed from be and it is amended by allowing plaintiff 10 per cent damages for frivolous appeal, and as so amended it is affirmed.


author: WEBB, J.

text:
    No. 3558
    Second Circuit
    VALLEY SECURITIES CO., INC., v. SCRUGGS ET AL.
    (May 8, 1929. Opinion and Decree.)
    E. P. .Norman, of-Rayville, attorney for plaintiff, appellant.
    Warren Hunt, of Rayville, attorney for defendants, appellees.
   WEBB, J.

Plaintiff, Valley Securities Company, Inc., holder and owner of a note which had been acquired by it for a valuable • consideration- -and - before maturity, brought this action against the - drawer, J. B. Scruggs, and the- indorser, Auto Sales & Service Company, a commercial partnership, and the individuals composing the partnership, to recover judgment for the amount of the note, interest, and - attorney’s fees, subject to certain admitted credits, and it appeals from a judgment rejecting its demands as in- ease of non-suit.

The note represented a part of the purchase price of an automobile sold by the Auto Sales & Service Company to Scruggs which was secured by a chattel mortgage on the automobile, which was destroyed by fire while in the possession of the purchaser, and the defense interposed by the defendants, drawer and indorser, was, in substance, that, following a custom, the price of the automobile had been fixed so as to include an amount for carrying or service charges, which included the cost of insurance to be procured by the holder of the note for protection against loss by fire of the security or the mortgaged property, and that plaintiff accepted the transfer with knowledge of the custom, and defendants had been led to believe that the automobile had been insured and had not procured insurance to protect themselves against loss, and plaintiff having failed to have the property insured should not be permitted to recover, and defendants prayed for judgment accordingly.

Parol evidence was introduced, without objection, in support of the defense, which established that it is customary, where automobiles are sold on credit, for an amount to be added to the price to cover so-called service charges, and that the custom was followed by the Auto Sales & Service Company in making the sale to Scruggs, and also that in former transactions between the Auto Sales & Service Company and plaintiff the latter had procured insurance on the property mortgaged, but it is not stated that plaintiff had, in this instance, agreed to have the mortgaged property insured at the time the note was transferred to it, but, on the other hand, it appears that there was some correspondence between the Auto Sales & Service Company and plaintiff subsequent to the transfer of the note, relative to insuring the property, but it does not appear that plaintiff agreed to have the property insured.

Whatever may have been the agreement between Scruggs and the Auto Sales & Service Company, relative to the latter having the automobile insured, plaintiff was not a party to the agreement, and it not being shown 'that, as between the Auto Sales & Service Company and plaintiff, there was an agreement that the latter would have the automobile insured for the protection of the Auto Sales & Service Company or of plaintiff, as its interest might appear, and the act of mortgage stipulating that the mortgagor should keep the automobile insured, loss payable to the mortgagee, or its indorsee, the fact that plaintiff may have procured insurance for the protection of the Auto Sales & Service Company in other transactions is not, we think, sufficient to show that plaintiff was obligated to procure insurance for the protection of the indorser in the present case. , ....

The obligation of the defendants on the face of the note was unconditional, and any parol modification of the agreement should have been alleged and proven with a degree of certainty wholly lacking in the present instance.

The judgment appealed from is therefore avoided and set aside, and it is now ordered, adjudged, and decreed that plaintiff, Valley Securities Company, Inc., do have and recover judgment against defendants J. B. Scruggs, Auto Sales & Service Company, and R. B. Cutler and C. C. Cutler, in solido, in the sum of $390, with 8 per cent per annum interest on $39 thereof from November 1, 1927, until paid, and like interest on $39 thereof from December 1, 1927, until paid, and like interest on $39 thereof from January 1, 1928, until paid, and like interest on $39 thereof from February 1, 1928, until paid, and like interest on $39 thereof from March 1, 1928, until paid, and like interest on $39 thereof from April 1, 1928, until paid, and like interest on $39 thereof from May 1, 1928, until rpaid, and like interest on $39 thereof from June 1, 1928, until paid, and like interest on $39 thereof from July 1, 1928, until paid, and like interest on $39 thereof from August 1, 1928, until paid, and 15 per cent thereon as attorney’s fees, and all costs of suit.