text:
    No. 3526
    Second Circuit
    WOODLEY & COLLINS v. SCHUSTER’S WHOLESALE GROCERY CO., INC.
    (November 18, 1929. Opinion and Decree.)
    (December 31, 1929. Rehearing Refused.)
    (March 31, 1930. Writ of Certiorari and Review Refused by Supreme Court.)

      Albert P. Garland, of Shreveport, attorney for plaintiffs, appellants.
    Barnette & Roberts, of Shreveport, attorneys for defendant, appellee.
   REYNOLDS, J.

An automobile owned by plaintiffs and driven by their employee, and traveling eastward on the ShreveportMinden highway, ran into the rear of a trailer attached to a motortruck owned by defendant and in charge of its employee and stopped on the right hand side of the road in the direction that it had been moving. Plaintiffs’ car was' rendered worthless by the collision, and they here sue defendant for $1,518, as the value of the automobile, with legal interest on the amount from the date of the accident, and for $8 a day from that date until the value of the car with interest thereon as aforesaid be paid. They allege that the collision was the result of defendant’s negligence, in that no tail light or other warning of the presence of the truck and attached trailer was attached to either and that this omission was in violation of the laws of the state of Louisiana and of -an ordinance of the police jury of Bossier parish.

í’he accident occurred at about 9 o’clock at night on May 15, 1928, about five miles east of the city of Shreveport.

The defendant denied the negligence alleged and averred that the truck and trailer were temporarily stopped on the extreme right-hand side of the road in the direction in which it had been moving to permit its servant to do some minor work on the motor of the truck, requiring only a few minutes time, and that while they were halted there the rear end of the trailer was run into by plaintiffs’ automobile; that plaintiffs’ automobile was moving at a dangerous, excessive, reckless, negligent, and unlawful speed; that the driver of it was not exercising any care or caution or keeping a proper lookout ->f condition of the road ahead of him; that he saw or should have seen the truck and trailer and could and should have avoided running into the trailer; that as plaintiffs’ automobile approached defendants’ truck and trailer another automobile, showing brilliant headlights, was close by approaching from the opposite direction; that if the driver of plaintiffs’ car did not or could not see the trailer, it was either because he was not keeping a lookout ahead or was temporarily blinded by these headlights; that if he was unable to see the trailer because of being so blinded, it was his duty to stop his cal- or at least reduce its speed until he was no longer blinded; that he neither stopped his car nor reduced its speed; and that the speed of plaintiffs’ car, the failure of its driver to observe the road ahead of it, and his failure to either stop or reduce the speed of his car when blinded by the headlights of the automobile approaching from the opposite direction, was negligence, and the sole cause of the collision.

And defendant further averred that its truck and trailer had been damaged to the extent of $57.15 in the collision, and it prayed judgment in reconvention against plaintiffs for this amount.

On these issues the case was tried, and there was judgment rejecting plaintiffs’ demands and dismissing their suit and also rejecting defendant’s demands in reconvention.

The plaintiffs appealed. The defendant did not appeal or answer the plaintiffs’ appeal.

OPINION

At the point where the collision occurred the road is straight for nearly half a mile and wide enough to permit plaintiffs’ automobile easily to have passed defendant’s truck and trailer on their left-hand side.

J. Y. Chandler, the driver of plaintiffs’ car, testified that there was no tail-ligi*! or other light on defendant’s trailer or truck, and that had there been he would have seen it in time to have avoided running into the trailer; that he was an experienced driver; and that the headlights of his automobile were showing properly.

“Q. About how fast were you traveling, Mr. Chandler, at thp time you ran • into this truck?

“A. I imagine between twenty and thirty miles an hour.

* * *

“Q. Mr. Chandler, I hand you document marked D-l, D-2 and D-3, and ask you to examine those and state whether or not it is the statement you gave of this accident?

“A. Yes, sir.

“Q. All right. It is also signed over here by Mr. J. E. Woodley, on each of the three pages; he witnessed your signature?

“A. Ye«.

“Q. And it is also signed by Mr. P. Nagele, Jr. They witnessed your signature when you signed ?

“A. Yes, sir.

“Q. I notice you say here: ‘That suddenly I saw a car coming towards me going west; it had its bright lights on and these blinded me. I did not apply my brakes when I was blinded. Just as this car passed me I saw in front of me a big truck. I immediately applied my brakes and cut my wheels to the left’; that is a fact. Mr. Chandler?

“A. No, sir; he wrote that to suit himself. I argued with him at the time he wrote it down. I didn’t want to sign it. He came out the next morning' after I was hurt. I told him I had rather not make a statement. He wrote it himself. When he brought up that ‘suddenly a car appeared with bright lights’ I argued with him on that. It didn’t suddenly appear. I saw that car away down the road. And Re said ‘well, all right; we ar.e going to fix it up all right; just go ahead and sign it.’

“Q. You did see this car with bright lights?

“A. Yes, every one of them; all had bright lights; it was no brighter than the rest.

“Q. This one that blinded you just before you hit the truck?

“A. Just ordinary lights; ordinary lights coming down the road; all bright lights.

“Q. But didn’t you meet this car just about the time, or just before you hit the truck?

“A. Yes; met the car about the time I hit the truck.

“Q. It had bright lights?

“A. Yes — but I saw the truck was there—

“Q. Those bright lights blinded you— you hit the truck?

“A. Did not blind me where I could not see at that particular moment.

“Q. If you go straight down the road with your headlights burning and there is a man in front of you, can you not see him?

“A. No.

“Q. Cannot see him at all?

“A. Not when meeting .headlights.

“Q. If there are no headlights to interfere you can see?

“A. Yes.

“Q. If there were no headlights to interfere with your vision at this time, could you have seen the truck?

“A. No.

“Q. Why?

. “A. He didn’t have a tail light on the truck.

“Q. If the truck had been parked along the road, no other lights, could you have seen it?

. “A. Yes.”

On cross-examination' the witness testified :

“Q. Did you make that statement?

“A. Not in those words: no, sir.

“Q. Did you use those words in substance? .

‘‘A. Well, at the time that he came out there to get that signed up, was the next morning after I was hurt, and really I was in no shape or condition to discuss anything.

“Q. I don’t care about that — did you say it or not?

“A. I didn’t say it all at once like that— I argued with him before , signing that; when he said ‘suddenly the bright lights appeared in front of me’, that was not right. I could see the lights all the way from the curve. He said it didn’t make any difference — just a little information he wanted to send into the office and. get a settlement and fix it up with. Mr. Woodley for his car.

“Q. The rest is all right?

“A. Well, yes, I guess it is.”

M. S. Wilson testified that he was driving the car with the bright headlights that approached from the east, and that at the time of the collision he was about 20 feet in front of defendant’s truck; that he witnessed the collision; and that he got out of his car on the spot and had a conversation about the accident with Mr. Chandler.

“Q. What did he say at that time?

• “A. I first asked him whether or not he was hurt, and he said not' seriously that he could' fell.

“Q. Then what did he say?

“A. He remarked about my lights blinding him.

“Q. What remark did he make?

“A. Said my lights blinded him. All the words that passed.”

Joe Walberg testified that he was driving defendant’s truck, and at the time of the collision had been stopped about ten minutes on the extreme right-hand side of the road and would have resumed his journey in four or five minutes longer; that the trailer had a tail-light and that the light was burning.

Harry Johns testified that he was a fellow employee of Walberg’s and was with him on the journey. He corroborated Walberg’s .testimony that the truck and trailer were on the extreme right-hand side of the road and that there was a light on the rear end of the trailer.

The evidence as to whether there was a light on the rear end of the trailer is conflicting, but if there was none that fact is not important, because we are of the opinion that the proximate cause of the accident was the failure of the driver of plaintiffs’ car to stop the car or reduce its speed when, he became blinded by the headlights of the automobile approaching from the opposite direction.

The case of Pepper vs. Walsworth, 6 La. App. 610, was in some respects similar to the one at bar. There plaintiff’s car was run into in the rear by defendant’s car going in the same direction. Plaintiff’s car was on the extreme right-hand side of the road. The collision took place at night and plaintiff’s car had no tail-light.

And this court said:

“The driver of an automobile has no right to assume that the road before him is open, and to proceed ahead without regard to the safety of those who may be therein. To proceed ahead when one is utterly blinded, as the driver of this car says he was, at a speed of twenty-five miles an hour, is the grossest kind of negligence. When a driver finds that he is unable to see the road ahead of him, for any reason whatever, whether blinded by bright lights, smoke, dust, fog or for any other reason, it is his duty to at least bring his car under such control that it can be stopped in a moment in case of emergency, and in extreme cases it is. his duty to stop. * * *

“The rule that a person driving an automobile at night, who finds himself blinded by the lights of an approaching car must slacken his speed and have -his car under such control that he could stop it immediately if necessary to avoid striking those rightfully in the road ahead of him, is sanctioned by the courts of last resort in every state of the Union where the question has been raised.”

See also Ward vs. Donahue, 8 La. App. 335; King vs. Emmons, 10 La. App. 204, 120 So. 648; Southall vs. Smith, 151 La. 967, 92 So. 402, 27 A. L. R. 1194.

While it is true that the failure to comply with the provisions of a statute regulating the use of motor vehicles on the highways is negligence, it is equally true that where such negligence alone is pleaded as creating a liability it must be shown that the negligence arising from the violation of the law was the proximate cause of the accident; and we are of the opinion that, considering the circumstances prevailing immediately before the collision, not the absence of a 'tail-light from defendant’s trailer, but the failure to stop or reduce the speed of plaintiffs’ car, was the proximate cause of the accident. .

As to defendant’s reconventional demand, inasmuch as it neither appealed nor answered plaintiffs’ appeal, that is not before us.

Under the law and the evidence the judgment appealed from is correct, and it is affirmed.


source: Caselaw Access Project

author: WESTERFIELD, J.

license: Public Domain

text:
    Nos. 11,600-11,601
    Orleans
    DENEKAMP v. HEISLER ET AL.
    (February 17, 1930. Opinion and Decree.)
    (March 10, 1930. Rehearing Refused.)
    (March 31, 1930. Writ of Certiorari and Review Refused by Supreme Court.)

      H. W. Kaiser, Thomas Tomeny and John H. Hammel, Jr., of New Orleans, attorneys for Miss Denekamp, plaintiff, appellee,
    M’Caleb & M’Caleb, of New Orleans, attorneys for John D. Nix, Jr., defendant, appellant.
    Theo. Cotonio, Jr., and Theo. Cotonio, of New Orleans, attorneys for Mr. and Mrs. William F. Heisler, defendants, appellants.
   WESTERFIELD, J.

Mrs. Josephine Heisler rented a building at the corner of St. Charles avenue and Antonine street, from John D. Nix, Jr., and began the operation of a boarding house or apartment hotel. The venture was unsuccessful, and trouble developed between Nix and Mrs. Heisler, which resulted in litigation. The litigation was compromised by the cancellation of the lease and a transfer of the household furnishings and fixtures to Nix. In the words of the agreement:

"John D. Nix, Jr., does pay unto Mr. and Mrs. William F. Heisler the sum of Six Thousand ($6000.00) Dollars, and in consideration thereof the said Mr. and Mrs. William F. Heisler, do hereby quit-claim and renounce in favor of the said John D. Nix, Jr., all their right, title and interest in and to the furniture, furnishings and fixtures purchased by them and now in the buildings at the corner of St. Charles Avenue and Antonine Street, upon which the said Mr. and Mrs. William F. Heisler represent they have paid Six Thousand ($6000.00) Dollars, and owe a balance of Nine Thousand ($9000.00) dollars, as per inventory annexed hereto. All other furniture, furnishings and fixtures owned by Mr. and Mrs. William F. Heisler to remain in said premises free of charge to the said John D. Nix, Jr., for at least two months from date hereof, and the said John D. Nix, Jr. will account to the said Mr. and Mrs. William F. Heisler for said furniture, etc., as per inventory, when requested upon the expiration of said sixty day period aforesaid.”

Among the items transferred to Nix by this agreement were a quantity of knives, forks, and spoons which had been purchased by Mrs. Heisler from Miss Esther R. Denekamp. Miss Denekamp had not been paid for her tableware and brought this suit against Mr. and Mrs. William F. Heisler and John D. Nix, Jr., her claim against Nix being based upon his failure to comply with Act No. 270 of 1926, the Bulk Sales Act. The plaintiff also asked for a recognition of her vendor’s lien upon the silverware.

.To the petition of plaintiff, each of the three defendants filed an exception of no cause of action. The exception filed on behalf of Mrs. Heisler was overruled and the other two exceptions maintained, whereupon Mrs. Heisler admitted the purchase of the silverware and set up the agreement with Nix, the effect of which, she claims, was the assumption by Nix of plaintiff’s claim. She called Nix in warranty. The case was tried by a jury which rendered a verdict in favor of plaintiff and against Mrs. Heisler in the amount prayed for, $1,522.50, upon which, judgment to that effect was subsequently rendered and Mrs. Heisler’s call in warranty dismissed. Plaintiff has appealed from the judgment dismissing her suit as against Nix and Heisler, and Mrs. Heisler has appealed from the judgment against hor in plaintiff’s favor and from the judgment in favor of Nix dismissing her call in warranty.

We will first consider the propriety of the judgment maintaining the exception of no cause of action as to William F. Heisler. This exception was directed to the allegation in plaintiff’s petition, to the effect that Mrs. Wm. F. Heisler conducted the boarding house business for the equipment of which the silverware was purchased “with her separate and paraphernal funds, that her said husband authorized her to conduct said business and assisted in the management thereof; that there was a community of acquets between said Mr. William F. Heisler and Mrs. William F. Heisler and that by reason thereof both Mi-, and Mrs. William F. Heisler are bound in solido.” Plaintiff based her right to proceed against both Mr. and Mrs. Heisler upon article 131 of the Civil Code reading as follows:

“If the wife is a public merchant, she may, without being empowered by her husband, obligate herself in anything relating to her trade; and, in such case, her husband is bound also, if there exists a community of property between them.

“She is considered as a public merchant, if she carries on a separate trade, but not if she retails only the merchandise belonging to the commerce carried on by her husband.”

The article relied on has no application, for the reason that, under the allegation of plaintiff’s petition, Mrs. Heisler was not engaged in business as a public merchant. Moussier vs. Gustine, 25 La. Ann. 36; Isaacson vs. Mentz, 33 La. Ann. 595; Fabacher vs. Rouprich, 2 La. App. 138. The exception of no cause of action on behalf of William F. Heisler was properly maintained.

As to John D. Nix, Jr., his exception of no cause of action is based upon the contention that the Bulk Sales Law has no application and that, since the agreement by which he acquired the silverware, sold by plaintiff, from Mrs. Heisler does not contain any assumption of Mrs. Heisler’s debt to Miss Denekamp, there can be no liability. The Bulk Sales Law requires the transferee to demand from the transferor a written sworn statement setting out the names of all creditors with their addresses, the amounts due them, etc., and that at least ten days before the completion of the transfer all creditors must be notified thereof. The penalty for the violation of this provision is to render the transferee liable for the debt. It is admitted that Nix did not comply with this law. The title.of the act states its purpose to be:

“To prescribe the form and to regulate the manner in which the transfer and sale in bulk out of the usual course of business of a stock of goods, wares, merchandise and fixtures, and transfers, * * *” etc.

Section 1 of the act prohibits the transfer in bulk of a stock of merchandise otherwise than provided by the act and sets forth the kind of merchandise embraced within the terms of the act as “the whole of a stock of merchandise, or merchandise and fixtures, or of all or of substantially all of the fixtures or equipment used or to be used in the display, manufacture, care or delivery of any goods, wares or merchandise including movable store and office fixtures, horses, wagons, automobile trucks and other vehicles or other goods or chattels of the business of the transferor shall be void as against the creditors of the transferor, unless made in conformity with the provisions of this Act.” The only possible basis for the application of the act relied on to the transaction set forth in the petition is the use of the words “or other goods or chattels of the business of the transferor.” But these words plainly relate to the goods or chattels of the same kind referred to in the detailed description. Defendant’s boarding house business cannot be considered, as merchandising within the meaning of the act. Swift vs. Tempelos, 178 N. C. 487, 101 S. E. 8, 7 A. L. R. 1581; Bowen vs. Quigley, 165 Mich. 337, 130 N.W. 690, 34 L.R.A. (N. S.) 218; Toxaway Hotel Co. vs. Smathers, 216 U. S. 439, 30 S. Ct. 263, 54 L. Ed. 558.

It is said that, whether the Bulk Sales Act applies or not, Nix should be kept in the case, because Miss Denekamp, the plaintiff, has asserted her vendor’s lien upon the silverware resold by Mrs. Heisler to Nix and in the possession of Nix. It is not pretended that Nix was obligated to pay plaintiff’s debt because of the agreement under which he acquired the silverware from Mrs. Heisler. As to the vendor’s lien it may be that Nix, the landlord, would have a lien superior in rank to that of Miss Denekamp, and we believe that this issue should be determined in another proceeding. The exception of no cause of action filed on behalf of Nix was properly maintained.

On the trial of the case it appears from the evidence that Mrs. Heisler lived with her husband, William F. Heisler; that she had been in the boarding house business with her husband, William P. Heisler; that her husband assisted her in the management of it, receiving the money collected by his wife and depositing same in his bank account. Mrs. Heisler testified that her boarding house ventures were conducted for the joint benefit of herself and her husband. It is, therefore, apparent that the boarding house business of Mrs. Heisler was a community venture, and that Miss Denekamp’s debt is a community debt, for which, under long-established jurisprudence, the wife cannot be held liable. But, it is said that under one of the several recent acts of the Legislature, Act No. 170 of 1912, as amended by Act No. 186 of 1920, the former jurisprudence has been modified. An examination of each of these acts reveals the fact that the enlargement upon the former capacity of women to contract for their own account relates only to their paraphernal interest, and to a situation where the wife conducts business on her own account and with her own paraphernal funds. See Standard Manufacturing Co. vs. Dupuis et al., 6 La. App. 476; Brooks-Mays & Co. vs. Riles et al., 125 So. 475.

It follows from what has been said that the judgment against Mrs. Heisler is erroneous and must be reversed.

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


author: HIGGINS, J.

text:
    No. 13,196
    Orleans
    LEPINARY v. VITRANO
    (December 16, 1929. Opinion and Decree.)
    (January 13, 1930. Rehearing Refused.)

      Marion G. Seeber and Jos. Rosenberg, of New Orleans, attorneys for plaintiff, appellee.
    Eraste Vidrine, of New Orleans, attorney for defendant, appellant.
   HIGGINS, J.

Plaintiff, as the father for the use and benefit of his minor son, seeks to recover $300 damages for personal injuries sustained by his son, as a-result of defendant’s automobile striking the boy, who was riding a bicycle across the intersection of Esplanade avenue and White street in the city of New Orleans, on the night of June 11, 1929. Defendant denied liability, and specially pleaded contributory negligence. There was judgment in favor of plaintiff for the sum of $100, and defendant has appealed. Plaintiff has answered the appeal asking that the judgment be increased to the sum of $300.

This case involves only issues , of fact.

The only witnesses to the accident were plaintiff’s son, colored, age 15 years, an errand boy employed by a drug store, and the defendant, an Italian, aged 47, who was a merchant in the city of New Orleans, the driver of the automobile.

The boy testified as follows:

“Q. Tell how the accident happened?

“A. I was coming out the intersection of White Street and Joseph Vitrano was coming out Broad, coming out De Soto Street, towards Bayou St. John. When I was making the curb, Mr. Vitrano struck me and I fell in the gutter and he picked me up. The front of the bike was lajing on the banquet, he struck my back wheel. He took me to the hospital.

“Q. Where did you cross the banquet?

“A. I came straight out White Street, like from Canal Street, going back.

“Q. You crossed De Soto Street at the intersection of White?

“A. Yes.”

The defendant testified as follows:

“Q. Will you tell us how the accident happened?

“A. I was driving out De Soto Street, crossing the intersection of Esplanade, going towards the Bayou St. John. As I neared White Street there was an inbound automobile coming from the direction of Broad Street, towards Esplanade Avenue; Itwas driving on the right, this party was coming on the left and this boy came from behind this automobile and I struck him. I didn’t know I struck him until I stopped and picked him up; he had no lights on his bicycle. He said his wrist hurt him and I took him to the Charity Hospital, and they laid him on the table and gave him an order, to come back the next day, but they couldn’t find anything the matter at that time, so I took him back in the automobile. I asked him if he wanted to go home — he seemed to be anxious about getting my name and address and he said he wanted to go back to the drugstore where the accident happened, and where he worked. I took him there and he continued on in his duties, and worked there until the drugstore closed, as I was informed, and I was also informed he made a delivery on the bicycle that same evening.”

It is to be noted that defendant admits that he was driving to his right side in the direction of Bayou St. John, and that his attention was directed to an inbound automobile going down Esplanade street. He frankly admits that he did not see the boy and did not know that he had struck him until he stopped and picked the boy up.

The evidence convinces us that the boy on the bicycle entered the intersection first and had almost traversed the street, being partly on the sidewalk and partly on the street, as he stated, when defendant’s car struck the rear wheel of the bicycle, throwing the boy into the gutter and causing the injuries alleged. The bicycle, having entered the intersection first, had the right of way, and was entitled to proceed. Plick et al. vs. Tusa et al., 124 So. 678.

The fact that the defendant did not see the boy on the bicycle is not a defense. In the case of Gibbons vs. New Orleans Terminal Co. et al., 1 La. App. 371, the court held that it is not sufficient for the plaintiff to have looked and listened, hut he must have done so at the' opportune time and in an efficient manner.

We have carefully examined the record, and, as this case involves only issues of fact, we cannot say that the findings of the trial court were in error.

As to the quantum, the trial court allowed $100 for contusions, bruises, and for loss of time by the boy from his' employment amounting to four weeks at $6 per week, or $24. The plaintiff has asked that this amount be increased. The injuries to plaintiff were not serious, and, while painful, we believe the sum of $100, as awarded by the trial court, is adequate.

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


author: HIGGINS, J. JANVIER, J.

text:
    No. 13,161
    Orleans
    JACOBY v. GALLAHER
    (January 27, 1930. Opinion and Decree.)
    (February 17. 1930. Rehearing Refused.)
    (March 31, 1930. Writ of Certiorari and Review Refused by Supreme Court.)
    Borah, Himel & Block, of New Orleans, attorneys for plaintiffs, appellants.

      Gordon Boswell, of New Orleans, attorney for defendant, appellee.
   HIGGINS, J.

Plaintiffs, as mother and father, sued defendant for damages for the death of their 5 year old son Car-1, who was killed by an automobile owned and driven by defendant on federal highway No. 61, in Jefferson county, Mo., on July 3, 1927, at 10:30 o’clock a. m. Defendant denied liability on the ground that the child was 'solely at fault, and that defendant was free from any negligence. There was judgment in favor of defendant dismissing plaintiffs’ suit, and they have appealed.

The record shows that the defendant, aged 58 years, together with certain members of his family and two friends, were taking an automobile trip in his Hudson coach during his vacation. He was driving north on federal highway No. 61 in Jefferson county, Mo., on July 3, 1927, at 10:30 a. m., when he approached five boys, who were walking on the shoulder of the paved highway and going in the same direction. The highway was constructed of concrete, and is 18 feei wide, with a shoulder on each side made of chat and gravel, about 6 feet in width. This chat and gravel forms a hard surface, but there was some grass growing upon it. The highway' connects the towns of Barnhardt and Perverly, which are south of St. Louis. The accident occurred about equidistant between these two towns, which are about 5 miles apart. At intervals there were some residences along the road, and it appears that it was customary for pedestrians to walk upon the shoulder of the highway in this section.

Defendant testified that he was driving his Hudson coach on this highway, and that, when he came over the crest of a hill and started down grade, he noticed the boys walking on the left side of the highway on the shoulder "of the road, and going in the same direction in which he was proceeding; that the boys were about 75 yards off at the time he first saw them, and, observing that they were off of the concrete part of the highway and on the shoulder of the road, which he considered a place of safety, he did not pay particular attention to them thereafter until the very moment of the accident; that-'the deceased child had been walking along holding his 14 year old brother’s hand, about 2 feet- off the paved portion of the road, when suddenly, and without any warning, the child ran across the highway on an angle, running into the left front side of his car, and striking either the bumper or the fender, which threw him backward upon the road and caused a fracture of his skull, from which he later died; that at the time of the accident he was driving at about 30 or 35 miles an hour, and did not give any warning of his approach by sounding his horn; that, when he saw something dart out from the side of the road, which proved to be the child, he applied his brakes and swerved to the right in an attempt to avoid him, and the right wheels of his car ran off the paved portion of the road onto the graveled shoulder on the right side of it, and that he brought his car to a stop within a reasonable distance of about 30 feet; that the child was taken to a doctor for attention, which proved unavailing; and ' that from the time the child started across the highway until he was struck was just a second of time, and defendant did not have any opportunity of avoiding the accident.

The plaintiff’s witnesses fixed the speed of the automobile at the rate of about 40 or 45 miles an hour, and contradict the defendant’s evidence as to the distance within which he brought his automobile to a stop, but we believe that this case can be deeided on the testimony given by • the defendant.

The question before the court is' whether or not a motorist owes any duty to children, whom he sees walking along the side of a highway upon the part constructed as a shoulder to the highway, and who are proceeding in the same direction as the automobile and therefore approached from the rear, to give warning of the approach of his car and to place it under such control that,' should any of the children attempt to cross the highway, the automobile could be brought to a stop in time to avoid an accident.

The plaintiffs contend that the defendant was guilty of negligence in two respects: First, in failing to give any warning of the approach of his car to the boys; and, second, in failing to slacken his speed and place his car under proper control.

Defendant contends that the shoulder of the road was used by pedestrians in this section as a sidewalk, and that therefore he did not owe the boys the duty of signaling them of his approach, but had the right to assume that they would remain in a place of safety and would not suddenly da3h across the road in the path of the automobile, and that the speed of 30 to 35 miles was a reasonable and careful rate of speed under the circumstances, that the boy ran into the automobile, and that defendant did not have any opportunity of avoiding the accident.

The evidence convinces us that the shoulder of the road is a part of the highway and not a sidewalk intended for pedestrians, and that the place where the accident occurred is a rural and not an urban section. At the place where the accident occurred there is a privately owned entrance to Dyer’s residence, called “Dyer’s Lane,” and it appears that the child attempted to cross the road at the point where this lane intersects the highway. Defendant admits that he had a clear view of the boys for about 75 yards, and being satisfied that they were off the paved portion of the highway, that they were out of danger, and that he did not pay any more particular attention to them. He did not give the boys any warning of his approach by blowing his horn or any other signal. He admits that he did not make any attempt to put his brakes on or slacken the speed of his car until he saw the boy dart out from the side of the road, when he applied the brakes and pulled to the right, but too late to avoid striking the child.

We are of the opinion that the sole and proximate cause of the accident was the failure of the defendant to give the boys any signal of his approach, to slacken his speed, and to place his car under such proper control as to have been able to stop in order to avoid the accident. He failed to exercise the degree of care commensurate with the situation with which he was confronted.

When this case originally came before this court on an exception of no cause of action (Jacoby vs. Gallaher, 10 La. App. 43, 120 So. 888, 889), this court said:

“In the country the public roadway is shared by vehicles and pedestrians, and there is no impropriety, nor is there any negligence implied, in the practice of country residents walking along the side of the road. The highway is intended for their use as well as for the use of automobiles. Consequently, when a motorist observes pedestrians on the roadway, he must be careful not to injure them. It is his duty to give warning of his approach and to keep his automobile under control. This is true in the case of adults, but in the case of children extraordinary precaution is necessary.

“Greater care is required of one who is running an automobile where there are children in the roadway than is necessary in the case of. adults. Children are only required to exercise such care as may reasonably be expected of them. In other words, such as children of the same age ordinarily and reasonably exercise under like circumstances. See Elliott, Roads and Streets, vol. 2, p. 1545. * * *

“In the case at bar it was the defendant’s duty, on seeing the children in the road* way, to have sounded his horn and checked the speed of his car. The fact that the child broke away from his brother and ran across the path of the automobile was not the proximate cause of the accident, for, if warning had been given, the child would have been removed by his elder brothers to a place of safety, or at least would have been firmly held and prevented from running across the road when reaching the pathway leading to H. Chouteau Dyer’s Place. In any event, if defendant had slowed down and had his car under control he could have avoided the accident.

“The rule that motorists are held to unusual care, where children are concerned, applies also to adults, who, to the knowledge of the driver, possess some infirmity, such as deafness, or impaired sight, or who suffer from some temporary disability such as intoxication. The physical infirmity in one case, and the extreme youth in the other, affect the ability to sense impending danger and to exercise judgment, in the emergency by the selection of proper means and observing the necessary precaution to avoid an accident. ■

“We are of opinion that the petition in this case presents a cause of action and that the judge, a quo. erred in maintaining the exception of no cause of action.”

See, also, Abate et al. vs. Hirdes et al., 9 La. App. 688, 121 So. 775; Baquie vs. Meraux, 11 La. App. 368, 123 So. 338, 339. In the latter case the court said:

“When the driver of an automobile sees four pedestrians' walking along the highway in front of him, it is his duty to take extraordinary care to prevent injuring them, and he must take reasonable precautions to make certain that,the pedestrians are aware of his approach.”

•Counsel for defendant lias cited a number of decisions where children ran off the sidewalk, in a city directly in the path of an automobile. We do not consider these cases in point, because the sidewalk in a city cannot be likened to a highway in the country, where pedestrians and automobiles both use it.

We are therefore of the opinion that plaintiffs are entitled to recover.

As to the quantum of damages, it appears that the little boy was 5 years of age, healthy, playful, cheerful, and bright, and was just returning from Sunday school at the time of - the accident. He was knocked down and suffered a fractured skull, which rendered him unconscious, and he died without regaining consciousness. We are of the opinion that damages in the sum of $2,000 each for the mother and father, plus the funeral expenses of $131.25, would be adequate under the circumstances.

We have reached, our conclusion as to the amount of award in this matter by an examination of the jurisprudence established in the following cases: Sundmaker vs. Y. & M. V. R. Co., 106 La. 111, 30 So. 285; Ortolano vs. M. L. & T. R. & S. S. Co., 109 La. 904, 33 So. 914; Buechner vs. City of New Orleans, 112 La. 599, 36 So. 603, 66 L. R. A. 334, 104 Am. St. Rep. 455; Cherry vs. Louisiana & A. R. Co., 121 La. 471, 46 So. 596, 47 L. R. A. (N. S.) 505, 126 Am. St. Rep. 323; Roby vs. Kansas City S. Ry. Co., 130 La. 896, 58 So. 701; Sutton vs. Champagne, 141 La. 469, 75 So. 209; Albert vs. Munch, 141 La. 686 75 So. 513, L. R. A. 1918A, 240; Patton vs. Frost Lumber Co., 142 La. 117, 70 So. 580; Hebert vs. Baton Rouge Electric Co., 150 La. 961, 91 So. 406, 25 A. L. R. 245; Aymond vs. Western Union Tel. Co., 151 La. 188, 91 So. 671; Duffy vs. Hickey, 151 La. 274, 91 So. 733; Selser vs. Revol, 152 La. 447, 93 So. 675; Williams vs. Missouri Pacific Ry. Co., 155 La. 349, 99 So. 286; Smith vs. City of Baton Rouge, 166 La. 472, 117 So. 559; Frazier vs. La. & Northwest R. Co., 2 La. App. 177.

It is therefore ordered, adjudged, and decreed that the judgment of the district court be, and it is hereby, annulled, avoided, and reversed, and it is now ordered, adjudged, and decreed that there be judgment herein in favor of Mrs. Flora M. Jacoby, wife of Andy Jacoby and Andy Jacoby, plaintiffs, against the defendant, Robert H. Gallaher, in the full sum of $4,131.25, with legal interest from judicial demand until paid, in the proportion of $2,000 io the mother of the deceased and $2,131.25 to the father, and for all costs of court.

JANVIER, J.

(concurring). In my opinion recovery should be allowed in this case on account of the fact that the age of the young boy who was killed prevented his being charged with contributory negligence. The defendant, in my judgment, was in violation of the statute of Missouri in operating his ear at a sustained speed greater than was permitted by statute. He was also guilty of negligence in approaching from the rear persons immediately alongside the paved portion of the highway without giving any warning of his approach. If, however, under such circumstances, an adult is injured, I am of the opinion that he should not recover because of his contributory negligence in going upon the dangerous highway without looking out for his own safety. However, since the defendant was guilty of negligence, and since the deceased youth could not be guilty of contributory negligence because of his age, I believe that recovery should be allowed.

I therefore concur in the decree.


author: WESTERPIELD, J.

text:
    No. 11,776
    Orleans
    TRAUTH v. MOTHE
    (January 27, 1930. Opinion and Decree.)
    (March 10, 1930. Rehearing Refused.)
    (March 31, 1930. Writ of Certiorari and Review Refused by Supreme Court.)

      Hugh M. Wilkinson, A. Miles Coe and Fred W. O'ser, of New Orleans, attorneys for plaintiff, appellee.
    Bond, Curtis, Hall & Poster, of New Orleans, attorneys for defendant, appellant.
   WESTERPIELD, J.

Plaintiff, Trauth, brings this suit against the defendant, Mothe, for damages for personal injuries which he suffered as a result of a collision between his motorcycle and an automobile belonging to defendant and operated at the time of the accident by his 19-year-old daughter. There was Judgment below in favor of plaintiff in the sum of $1,678.50, and defendant has appealed.

Trauth, who, at the time of the accident, was employed by the highway department as a motorcycle traffic officer, was, on the 18th day of August, 1927, about at the hour of 4 o’clock, stationed on the west bank of the Mississippi river inspecting traffic near the Algiers Perry landing. A truck belonging to the police department of the city of New Orleans driven by an electrician employed by the city by the name of Pager, was observed by Trauth to bear no license tag, whereupon he mounted his motorcycle and pursued the Pager truck which turned west on Seguin street, overtaking the truck in the middle of the block between Alix and Eliza streets, and colliding with the Peerless automobile of defendant as he did so. The negligence imputed to the driver of defendant’s automobile consists in the charge that Miss Mothe moved obliquely across the path of traffic from the left-hand side to the right-hand side of the street.

In denying liability defendant placed all responsibility for the accident with plaintiff, averring that the speed of plaintiff’s motorcycle was excessive and that he was on the left or wrong side of the street, and that he was guilty of violation of that provision of the traffic ordinance prohibiting any vehicle from attempting “to pass two other vehicles which are driving abreast, or nearly abreast, except on avenues or boulevards sufficiently wide to carry three lines of traffic abreast.”

It appears that Miss Mothe was parked on the left-hand side of Seguin street and desired to cross over to the right-hand side. She was driving a Peerless roadster which was parked parallel with the left-hand curb. When she started to cross Seguin street, which is a two-way street, the traffic in sight was moving towards her and, according to her testimony, about 100 feet away. As she reached a point at about the middle of the street, which she had traversed obliquely, she narrowly escaped colliding with the Pager truck and was struck on the front bumper by plaintiff’s motorcycle, which had just emerged from the left side of the Pager truck. Miss Mothe placed the point of contact with the motorcycle of plaintiff as near the right-hand curb, and claims to have straightened out and assumed a course parallel with the right curb. In other words, she contends that she had successfully negotiated the traffic in the middle of the street and had assumed her proper position on the right-hand side of the roadway, when she was struck by the motorcycle which she states was running very fast. She estimates this speed at 40 miles an hour. But we believe Miss Mothe to be mistaken and find it difficult to account for the accident in that manner.

As to the speed of the motorcycle, which she puts at 40 miles an hour and plaintiff at one-half that figure, it happens that the motorcycle was equipped with an especially constructed speedometer which would register its maximum speed by means of a separate hand on the dial called the “Max hand.” This hand, which continues to (point to the maximum speed until the speedometer is readjusted, indicated, when examined after the accident, that plaintiff had not exceeded 20 miles per hour. It affords mute and convincing evidence that plaintiff’s speed was not immoderate.

As to the charge that plaintiff was on the left of the truck, and therefore negligent, he was passing the truck on its left side, where he should have been under the circumstances, a fact which counsel for defendant recognized during the argument of the case, and this charge of negligence is therefore no longer insisted upon.

But defendant’s counsel strenuously contends that the plaintiff was guilty of violating article 1, subdivision 3(d), of the Traffic Ordinance Number 7490 O. C. S., which we have quoted above. It will be remembered that the traffic ordinance prohibits vehicles from, attempting to pass two other Vehicles “which are driving abreast except on avenues or boulevards sufficiently wide to carry three lines of traffic abreast.” In this case one of the vehicles which the plaintiff attempted to pass was stationary, i. e., parked, and though the other, the Pager truck, had reached a point about abreast of it, it was not “driving abreast.” If a motorcycle can be said to be a vehicle within the meaning of the ordinance, and if Seguin street is neither an avenue nor a boulevard, we are of opinion that the words “two other vehicles which are driving abreast” does not apply where one of the vehicles is parked against the curb or otherwise, because the prohibition in the ordinance would make it exceedingly difficult for one vehicle to pass another in a residential neighborhood- in view of the well-known practice of owners of automobiles parking their cars in front of' their residences. We do not believe that such was the intent of the ordinance. However, independently of any express legal provision, one guilty of imprudence in passing another vehicle, under circumstances which would deter a prudent driver from doing so, may well be said to be negligent. In this case, however, we believe the sole cause of the accident was the action of Miss Mothe in driving obliquely across traffic, without making sure that there was sufficient time for her to do so. If, as she testifies, she was parked parallel with the left-hand curb of Seguin street and observed the traffic moving towards her about 100 feet distant, and if that traffic was moving at a rate of 20 miles per hour, and if her speed, after getting straightened out, was 15 miles per hour, the gap between her and the oncoming traffic was closing with such rapidity that it was impossible for her to negotiate the crossing. She admits that she gave no warning signal of any kind to indicate her intention to cross the street and she could not be seen by plaintiff because the Pager, truck was between him and her automobile obstructing his view.

It is probable that Miss Mothe, in concluding that she could effect the crossing in time, failed to consider the fact that she could not immediately cross at a right angle, as it was necessary for her to proceed forward and toward the traffic before assuming a rectangular course.

We, like the trial judge, are of the opinion that the accident was due entirely to the fault of Miss Mothe,* the driver of defendant’s automobile, and conclude that defendant is liable for plaintiff’s injuries.

As to the quantum there does not seem to be any dispute. It is not discussed and was not mentioned in argument.

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

JANVIER, J., took no part.


author: MOUTON, J.

text:
    No. 584
    First Circuit
    BREEDEN v. BREEDEN ET AL.
    (March 5, 1930. Opinion and Decree.)
    R. F. -Walker, of Baton Rouge, attorney for plaintiff, appellant.
    Cross & Moyse, of Baton Rouge, attorneys for defendants, appellees.
   MOUTON, J.

Plaintiff alleges that he bought 160 acres of land with his brother, Fenn A. Breeden, from their father, Rufus Breeden, for $1,500; that petitioner paid about the whole of the price with the possible exception of $200 that were expended by him for taxes and improvements on the property; that Fenn'A. Breeden admitted in the presence of others that he had no interest in the property, not having paid any part of the purchase price, that it was his intention to sign a deed to plaintiff if sent him, that it was forwarded to Fenn A. Breeden, but which was not signed and returned; that, instead of signing the deed, Fenn A. Breeden, on October 7, 1928, by a deed executed on that date, pretended to sell to Mrs. Gabriella Breeden what he therein termed his undivided interest in the property, the consideration of the sale being given in the words following-.

“A valuable consideration, which the said Fenn A. Breeden has heretofore received.”

The sale by Fenn A. Breeden to Mrs. Gabriella Breeden is then attacked as being illegal and fraudulent. This attack is followed by the allegations that Fenn A. Breeden is indebted to plaintiff for the full amount of his one-half interest according to the deed above mentioned; that the pretended seller and purchaser knew that Fenn A. Breeden had no rights or interest in the property; that the sale was without consideration and was a pure simulation which should be annulled and canceled, as it was the only property owned by Fenn A. Breeden in the jurisdiction of the court, and which was obligated to the payment of petitioner’s claim, same being for the purchase price of the property carrying a vendor’s lien and privilege.

The prayer of the petition is to have the sale of October 7, 1928, by Fenn A. Breeden to Mrs. Gabriella Breeden, declared a fraudulent simulation and canceled from the public records of the parish of East Baton Rouge. This is the only relief asked by petitioner.

The demand was dismissed on an exception of no cause of action.

Plaintiff alleges in the beginning of his petition that he had paid the whole price for the land he had bought in conjunction with his brother, Fenn A. Breeden, which is followed by the allegation that the latter is indebted to him for $750, one-half of the purchase price; that Fenn A. Breeden had, in the presence of responsible parties, said he had no interest in the property and would sign a deed to that effect in favor of petitioner, but which, when forwarded to him, he did not sign and return. The only rational construction of the foregoing allegations which are given in substance hereinabove is that Fenn A. Breeden never had title to one-half of the property and was in debt to plaintiff for $750, being one-half of the price of sale for the tract of land that had been deeded to both purchasers from their father, Rufus K. Breeden. In the subsequent allegations, plaintiff attacks the sale made by Fenn A. Breeden to Mrs. Gabriella Breeden, October 7, 1928, as a fraudulent simulation, charging Mrs. Gabriella Breeden with knowledge that Breeden had no rights to the property, on account of which it is alleged that the sale should be avoided and canceled; and then, in connection with the foregoing, plaintiff avers:

“It being the only property owned by the said Fenn A. Breeden in the jurisdiction of the Court and being obligated for the payment of petitioner’s claim, same being the purchase price of said property and carrying a vendor’s lien and privilege, petitioner will be unable to collect from the said Fenn A. Breeden for debt and to save the tract of land from being placed beyond the reach of this Court.”

After reiterating the allegation that Fenn A. Breeden had never acquired any title or interest in the land, plaintiff alleges that what he transferred to Mrs. Gabriella Breeden was the only property he owned; that the sale should be annulled to subject the land to plaintiff’s claim.

We are therefore confronted in the petition with the conflicting, irreconcilable, and contradictory allegations that Fenn A. Breeden never acquired any rights or interest in the land which it is, however, alleged is the only property he owned within the jurisdiction of the court.

Giving to the petition the most liberal construction, plaintiff therefore appears from his allegations in the attitude of owner of the one-half in the land which had been conveyed by Rufus K. Breeden, or as the creditor of Fenn A. Breeden for the sum of $750, the half of the purchase price which plaintiff alleges he paid for the' portion of the price Penn A. Breeden had incurred. Plaintiff, however, in the prayer of his petition, is demanding only that the sale of Breeden to Mrs. Gabriella Breeden be declared a fraudulent conveyance, and that it be.canceled from the public records. There is no demand whatsoever for judgment in favor of ■ plaintiff against Penn A. Breeden for $750, or in .any amount, nor for the ownership of the one-half interest in the land which plaintiff, in one part of his petition, alleges was never acquired by Penn A. Breeden. Even if his allegations could be constrúed as asking for the recognition of his title to the half interest of Penn A. .Breeden, the proof of, this demand would •have to rest on his averment that Breeden ■had, in the presence of’ responsible persons, admitted he had no rights or title to the .and, and necessarily the proof to establish that fact would depend upon the admission of parol testimony.

Plaintiff, it is true, attacks the sale from Breeden to Mrs. Gabriella Breeden as a fraudulent transaction, and that under that averment parol evidence would be admissible to show fraud, if any existed. Parol evidence would be legal to establish the fraud, but not to show title to real estate. Barrett vs. Salter, 10 Rob. 434; Reimers vs. Hebert, 7 La. App. 56.

The allegations of plaintiff’s petition, which must be taken as true under the exception, are destructive of each other, but, even if considered as meaning that plaintiff is seeking redress either as a creditor of Penn A. Breeden, or for recognition of title to his one-half interest in the land, under the prayer of the petition— which is restricted ■ to a demand for the cancellation of the sale from Breeden to Mrs. Gabriella Breeden from the conveyance records of the parish of East Baton Rouge —plaintiff could not be granted the relief sought.

For the foregoing reasons, the suit was properly dismissed under the exception.

LECHE, X, not participating.


text:
    No. 11,759
    Orleans
    CULLEN THOMPSON MOTOR CO. v. SULLIVAN & PHILLIPS ET AL.
    (February 17, 1930. Opinion and Decree.)

      Prowell, McBride & Ray and Welton P. Mouton, of .New Orleans, attorneys for plaintiff, appellant.
    J. C. Henriques and Harry M. Mayo, Jr., of New Orleans, attorneys for defendants, appellees.
   WESTERFIELD, J.

The Cullen Thompson Motor Company of Denver, Colo., brings this suit against the commercial partnership of Sullivan & Phillips and the individual partners of said firm for the sum of $892.83, with interest and attorney’s fees. It is alleged in the petition that Sullivan & Phillips, a co-partnership domiciled in the city of New Orleans, purchased an automobile in that city that had been mortgaged to plaintiff in the state of Colorado, without having first obtained from the vendor an affidavit to the effect that the automobile was clear of incumbrances, and that therefore they are liable ■ for the sum claimed under the provisions of section 5 of Act No. 198 of 1918. Defendants filed an exception of no cause of action, which was maintained, and plaintiffs have appealed.

Defendant’s position is that section 5 of Act No. 198 of 1918 has been repealed by Act No. 193 of 1920, and that, though the act of 1920 has been subsequently repealed (Act No. 92 of 1920), the effect of that subsequent repeal did not revive the former law. In the alternative, it is claimed that the chattel mortgage law is a departure from the judicial policy of the state of Louisiana in relation to the hypothecation of movable property, except by pledge, and that the statute should be strictly construed, and, as so construed, its provisions do not apply to chattel mortgages executed outside of the state of Louisiana.

The title of Act 198 of 1918 reads as follows

“To provide for the obtaining of an affidavit by a resident of any parish from a non-resident of such parish in connection with the purchase of the movable property which may be mortgaged under this Act; to provide penalties for the violation by the mortgagor and other persons of the provisions of such mortgages and of this Act and penalties for frauds in connection therewith.”

Section 5 of the act, the section relied on here, reads:

“It shall be unlawful for a resident of any parish to purchase the movable property described in Section 1 from any nonresident of such parish, without first ob-.taining an affidavit from the non-resident that there is no mortgage on the property, nor any money due for the purchase ¡price thereof; and the purchaser who shall buy the above referred to movable property., without having obtained the said affidavit, shall be liable to the creditor for the debt secured by the property.”

Our attention is called to the fact' that the purpose of the act, as outlined in its title, is to penalize mortgagors and other persons who violate the “provisions of such mortgages ■ and of this act.” The argument is that the act was not intended to apply to any mortgages except those confected under the terms of the act itself.

In deciding the case in favor of defendants, the learned judge of the trial court gave the following reasons:

“Pretermitting a discussion as to whether the section of the act was repealed by the’ subsequent acts, providing for the method and manner in which automobiles may be sold, the Court is inclined to believe that the exception is well taken, for the reason that the act under which the liability is sought to be imposed deals with chattel mortgages covering particular characters and categories of property.

“This act in itself is a derogation of the general rule of law permitting people to dispose of their property without restriction and is subject to the rule of construction applicable to such laws, and is to be strictly interpreted.

“In addition, the statute is a criminal statute, and that in itself requires a strict interpretation of its provisions.

“It is apparent from a reading of the act that the act was intended to apply only to mortgages of the character and kind covered by the act itself, and to those confected under its provisions, and is not to be interpreted by construction to cover mortgages of all characters wherever confected, but is to be limited to those alone embraced in the act.

“Entertaining these views, it is my opinion that the mortgage confected in another State and, therefore, not confected under the provisions of this act is not within the intendment of the statute and is, therefore, not covered by that provision which imposes liability for the amount of the indebtedness due on the property, by a third person buying the property without first requiring an affidavit.

“The exception of no cause of action is, therefore, sustained and the suit dismissed.”

We are in accord with the views of our brother below, and, for the reasons which he has given, incorporated in this opinion, the judgment appealed from will be affirmed.


author: CAGE, J. ad hoc. HIGGINS, J.

text:
    No. 13,039
    Orleans
    ACOSTA v. BOARD OF COMMISSIONERS OF THE ORLEANS LEVEE DIST.
    (February 17, 1930. Opinion and Decree.)
    L. H. Perez, of New Orleans, attorney for plaintiff, appellant.
    J. Blanc Monroe, A. B. Hammond, Jas. G. Schillin & William Brewer, of New Orleans, attorneys for defendant, appellee.
   CAGE, J. ad hoc.

The plaintiff sues for commissions and profits that, as a merchant or storekeeper, he was deprived of by the Caernarvon Crevasse and his suit was dismissed by the district court on an exception of no cause of action.

From this judgment he prosecutes this appeal.

There is nothing to differentiate the law of this case, from that of Foret vs. Board of Commissioners of the Orleans Levee Board, No. 30063 of the docket of the Supreme Court, reported in Southern Reporter, Vol. 125, pp. 437, et seq., and Oliver vs. same defendant, No. 30,134 of the docket of the Supreme Court reported in same volume of the Southern Reporter at pages 441, et seq.

For the reasons, given by the Supreme Court in these two cases, we consider the judgment of the district court to be correct, and it is affirmed.

HIGGINS, J.

(concurring). This is a suit for loss or damage alleged to have been sustained as a result of the artificial crevasse at Caernarvon on April 29, 1927. Plaintiff brings this suit under the provisions of a constitutional amendment adopted in April, 1928, embodied in Act No. 2 of the extra session of the Louisiana Legislature of September, 1927. The petition alleges that the plaintiff, a resident of St. Bernard parish, has been a merchant for many years in that parish, and, up to the time of the crevasse on April 29, 1927, had been engaged in the general mercantile business and also selling oils for the Standard Oil Company on a commission; that, as a result of the crevasse, he was driven from his home and business, located in the inundated area, and that he sustained a net loss, for the months' of May, June, July, and August, 1927, of $1,331.68, estimated on the volume of business he did during the two preceding years. Defendant filed an exception of no cause or right of action, which was sustained by the trial court, and plaintiff’s suit was dismissed. From this judgment plaintiff has appealed.

The relevant portions of the constitutional amendment read as follows:

“Whereas * * * an artificial opening or break was made April 29th, 1927, in the Caernarvon Levee at or near Poydras Plantation in the Parish of St. Bernard, State ■of Louisiana, for the purpose of creating an outlet for the waters of the Mississippi '■River, so as to lower the stage of the ■ river at New Orleans and above and thereby relieve that City and its inhabitants from the menace of flood waters and prevent the loss of life and property damage, which would have resulted if said City of New Orleans had been overflowed by waters of said River.

“And, whereas, it is proper that just compensation should be made for the losses sustained by individuals, firms or corporations within the inundated area, as a result of the waters from said artificial break; * * *

“Be it enacted by the Legislature:

“Section 1. That the Board of Levee Commissioners of the Orleans Levee District be and it is hereby authorized and directed out of the funds hereinafter provided for to pay (a) just compensation for losses sustained by individuals, firms or corporations within the affected area, as the result of the encroachment of said waters; and interest thereon at 5% from April 29th, 1927 to date of payment, etc.”

Plaintiff contends that the alleged losses sustained by him were the direct result of the encroachment of the flood waters, and, as he is a resident of St. Bernard parish, and the flood waters inundated his home and place of business for four months, he is entitled to recover, particularly under section 1 of the constitutional amendment.

•Defendant contends that the alleged loss is damnum absque injuria, or mere consequential damage, and that plaintiff is therefore not entitled to recover.

The question before the court involves an interpretation of the language of section 1 of the constitutional amendment, supra.

In the case of Foret vs. Board of Levee Commissioners of Orleans Levee District (No. 30063 of its docket) 125 So. 437, 440, decided December 2, 1929, the Supreme Court held that the plaintiff, as general manager for the St. Bernard Motor Co., Inc., was not entitled to recover loss of salary for eight months, amounting to $2,625, as a result of the crevasse flooding his employer’s place of business, which necessitated its discontinuance during that period. The court goes fully into the history of the amendment and in its interpretation of the provisions of it said:

“In view of the foregoing, we think that damages should not be allowed, where they would not be by virtue of the exercise of . the expropriation laws, or where even a tort-feasor would not have to respond, unless there be a clear expression of the lawmaker, allowing damages beyond that measure. This view is reinforced by the fact that defendant, the Orleans levee district, did not create the opening in the levee, and that, as observed by counsel for defendant, the sole liability of the district for the results of the crevasse is the liability voluntarily assumed for it by the Legislature and people of the state, when they passed and adopted the constitutional amendment cited above. The view, stated above, is further reinforced by the principle applied in Ward v. Board of Levee Commissioners, 152 La. 158, 92 So. 769, reading, to quote from the syllabus: ‘Where a right of action .against a public body exists only by virtue of a special statutory grant, such right of action is limited strictly to the provisions of the statute.’ The constitutional amendment, granting the right of action against defendant, so far ;as it is here pertinent, reads: ‘That the [Board of Levee Commissioners of the Orleans Levee District be and it is hereby authorized and directed, out of the funds hereinafter provided for, to pay (a) just compensation for losses sustained by individuals, firms or corporations within the effected area as the result of .the incroachment of said waters * * In using these words, the constitutional amendment conveys the idea that just compensation is directed to be paid for damages to what is encroached on by the waters, that is, physical property. This, it may be observed, is in accordance with the Governor’s proclamation, in declaring that ‘the damage to property resulting from this :‘act will be paid.’ The constitutional amendment does not include within its terms such' consequential damages as those occasioned by the temporary, diseontinuance of one’s salary, due to the fact that the corporation, paying the salary, had to discontinue business temporarily on account of the flood.’’

See, also, Oliver & Co. vs. Board of Commissioners of Orleans Levee District (No. 30134 of the Supreme Court docket) 125 So. 441, decided December 2, 1929.

In McMahon & Perrin vs. R. Co., 141 La. Ann. 830, 6 So. 640, 641, the court said:

“Prior to the constitution of 1879 the organic law of this state, like that of all the states of this Union, simply provided that ‘private property shall not be taken for public purposes without adequate compensation,’ etc. Under this rule, in absence of other special provisions, a taking of the property was a condition precedent to liability, and the measure of compensation due was the value of the property taken. Mere consequential damage to property, when the property itself was not taken, was not recoverable, and much less any damages resulting to individual owners, in the way of discomfort, inconvenience, 'loss of business, and the like. All such injuries, inasmuch as they resulted only from the exercise hy another of his legal right, were damna absque injuria.”

See, also, La. Ry. & Nav. Co. vs. Xavier Realty Co., 115 La. 337, 39 So. 1; L. R. & N. Co. vs. Jones, 113 La. 29, 36 So. 877; Manning vs. City of Shreveport, 119 La. 1055, 44 So. 882, 13 L. R. A. (N. S.) 452; Helmer vs. Colorado South., etc., R. Co., 122 La. 143, 47 So. 443; L. R. & N. Co. vs. Sarpy, 125 La. 391, 51 So. 433.

In Opelousas, etc., Ry. Co. vs. St. Landry Cotton Oil Co., 121 La. 799, 46 So. 810, 811, the court said:

“In cases of this kind mere consequential injuries resulting from inconvenience, loss of business and the like are not recoverable. The measure of recoverable damage is the actual diminution in the value of the property for sale or rental. McMahon & Perrin v. Railroad Co., 41 La. Ann. 827, 6 So. 640.”

Counsel for plaintiff contends that the eases of Oliver & Co. vs. Board of Com’rs of Orleans Levee Dist., and Foret vs. Board of Levee Commissioners of Orleans Levee District, supra, are not controlling in this case because plaintiff is a resident of the parish of St. Bernard, and his home and place of business were within the inundated area, whereas, in the above case, the plaintiff was a resident of New Orleans and did not own the business, but was only employed. There are these differences in the facts, but we do not consider that they are sufficient to distinguish this case from the Oliver & Co. and Foret cases. The legal principles of damnum absque injuria and consequential damages are equally applicable here.

For these reasons I concur.


author: JANVIER, J.

text:
    No. 11,850
    Orleans
    HORTMAN-SALMEN CO., INC., v. NAQUIN ET AL.
    (February 17, 1930. Opinion and Decree.)

      See, also, 11 La. App. 619, 124 So. 546.
    Edrington & Carmouche and Emile A. Carmouche, of New Orleans, attorneys for plaintiff, appellee.
    John B. Fisher, of New Orleans, attorney for defendants, appellants.
   JANVIER, J.

Defendant Naquin, a contractor, undertook the repair and reconstruction of certain premises, in this city, belonging to Felix Famularo.

No written contract was entered into, and no bond was required of the contractor.

Lumber and building material to the extent of $1,148.87 was purchased by Naquin from the Hortman-Salmen Co., Inc., and was used in the said repair and reconstruction work.

When the work was nearly completed, Famularo, apparently becoming fearful that the purchases made from the Hortman-Salmen Company might not be paid for by Na-quin,- upon the occasion of the making of a payment of $1,000 to Naquin, accompanied the said contractor to the office of the Hortman Company to make certain that $700 of the amount he had just paid to Naquin would be applied on the account due by Naquin to the Hortman Company for the purchases made for Famularo’s work. On this visit Famularo and Naquin were accompanied by Alfred Bonneval, nephew of Famularo.

It is not disputed that the $700 in question was paid by Naquin to the Hortman Company, but, as Naquin was indebted to that company for other purchases previously made for other jobs, the payment was not applied as a credit against the material bought for the Famularo work, but, instead, was imputed by the Hortman Company to the older accounts due by Naquin.

The question presented is whether the payment was properly imputed to the older accounts. The district court held that the payment had been correctly imputed and gave Famularo no credit therefor, and from that judgment Famularo has appealed.

The evidence shows that the total amount of the bill as originally rendered, to-wit, $1,148.87, was correct, and there is no contention that Famularo, as owner, is hot liable for any unpaid balance thereof, (Act 298 of 1926) but it is argued that the $700 payment should have been credited on this account and that the balance, to-wit, $443.87, represents the full extent of Famularo’s liability.

Where the rights of third parties are not involved payments made by a debtor to his creditor may be imputed by agreement, and, in the absence of agreement, the imputation shall be made in accordance with the provisions of article 2166 of the Civil Code.

But, where the imputation in accordance with the article in question would prejudice the rights of third person's, this artiele has no application. In Griffin vs. His Creditors, 6 Rob. 216, the Supreme Court said:

“We are referred to the rules laid down in the Code for the imputation of payments, when two debts are of the same nature, and equally onerous. * * * These r.ules, which are to govern in the settlement of accounts between a debtor and his creditor, cannot clearly be enforced to the prejudice of third persons.”

This doctrine was approved in Burbank vs. Buhler, 108 La. 39, 32 So. 201, 205, in which we find the following:

“Persons are much more free to act in their dealings with each other when their own interests alone are to be affected than they are when the interests of persons other than themselves will be made to suffer.”

Since, then, the codal provision to which we have referred cannot be taken advantage of to the prejudice of the rights of third persons, it becomes necessary to determine just what are the rights of a third person in a situation such as existed here.

In Roca vs. Caruso, 7 Orl. App. 451, this court said:

“A furnisher of building materials, who knowingly receives from a contractor money earned under one contract, cannot impute such payment to any other account, even though older, as long as the debt incurred in connection with such contract remains unpaid.”

In Jordy Bros. vs. Judlin, 9 Orl. App. 43, fearful that the doctrine of the Roca case might, by reason of certain dicta which appeared therein, be extended beyond the limits intended, this court said:

“The ruling in Roca v. Caruso, 7 (Orl.) Court of Appeal, 451, is not to be extended beyond those eases where the furnisher of materials knows the origin of the funds paid to him by the contractor and has received no instructions to impute the payment to any particular account.”

In Grand Lodge Ben. Knights of America vs. Murphy Construction Co., 152 La. 123, 92 So. 757, 758, the Supreme Court approved the doctrine of the cases to which we have referred and said:

“In general, therefore, the debtor may impute his payments as he pleases, and cannot be controlled therein by a surety (Robson & Allen v. McKoin, 18 La. Ann. 544), although that rule may be subject to some exception, as where the payment,, to the knowledge of the creditor, is derived from a source such that it would be a fraud for the creditor to consent with.the debtor that the money be diverted and applied otherwise than as the debtor had expressly or impliedly agreed with his sureties. See, for instance, Merchants’ Ins. Co. v. Herber, 68 Minn. 420, 71 N. W. 624; First Nat. Bank of Elizabeth City v. Scott. 123 N. C. 538, 31 S. E. 819, and Burbank v. Buhler, 108 La. 39, 32 So. 201. See, also, Panama Sash & Door Co. v. U. S. Fid. & Guar. Co., 12 Orl. App. 15, 20; Lamson v. Beard, 94 F. 30, 42, 36 C. C. A. 56, 45 L. R. A. 822; Merchants’ Loan & Trust Co. v. Lamson, 90 Ill. App. 18; First Nat. Bank v. Gilbert & Clay, 123 La. 845, 49 So. 593, 25 L. R. A. (N. S.) 631, 131 Am. St. Rep. 382; State v. Jahraus, 117 La. 286, 41 So. 575, 116 Am. St. Rep. 208; also Conservative Homestead v. Pollock, No. 7430, Orleans Court of Appeals, and 30 Cyc. 1251.”

The correct rule, then, is that, 'if the creditor in such a ease as is presented here has knowledge, actual or constructive, that the funds given him by his debtor were derived from a particular source, the payment in question cannot be imputed in accordance with the article of the code, nor by agreement between debtor and creditor, if such imputation would be prejudicial to the interest of the third person from whom the funds were obtáined.

Here the funds came from Famularo, and to impute the payment thereof to other accounts than that for which Famularo was liable was manifestly prejudicial to his interests.

Therefore, the only question left for determination is whether the creditor had knowledge of the source of the funds, and if not, whether the circumstances were such that the creditor, to-wit, the Hortman Company, can, under the circumstances which surrounded the acceptance by it of the payment in question, be charged with constructive knowledge as to the source of the funds.

It is denied that there was actual knowledge.

When the payment was made by Naquin he was accompanied to the office of the Hortman Company by Famularo and his nephew, and when De Blanc, an employee of that company, questioned the advisibility of his receiving $700 in large bills because of the possibility of its being counterfeit, he was told that there was no danger on that score, as the money had just been withdrawn from the bank on a check of Famularo. It is true that De Blanc stated that he knew nothing about Na-quin’s various accounts, and that Mr. Sander, another employee, was familiar with those accounts, but this fact indicates that Sander had considerable familiarity with the various accounts due by Naquin, and that De Blanc himself knew that Naquin had various accounts and must have known of the large amount due on the Famularo job, and that Sander knew of it, is conceded by him in his statement that he knew of the contract between Famularo and Naquin. Surely, since De Blanc was told that the money had come from Famularo, even if he himself did not know that there was on the books of the company an abcount covering sales for the Famularo job, the mere mention by him to Sander of Mr. Famularo’s name would have put Sander on notice that Famularo had an interest in the transaction, and such notice would have prevented the imputation of the payment in such manner as to prejudice Famularo’s rights.

The testimony shows that the Hortman Company maintained on its books a separate account for each job of each contractor, and, from this, it follows that Naquin had a separate account for the Famularo job. The ’ fact that Famularo went with Naquin to make the payment should have indicated to De Blanc that there was something unusual or extraordinary about the payment. In fact, the very purpose of Famularo’s visit was to see that the money was paid to the Hortman Company. Not being familiar with the fact that Naquin had various accounts on the books of the company, Famularo believed that all that the law required him to do was to see that the money which he gave to Naquin went to the creditor.

We think that, under the circumstances, to-wit: That there was an account on the books which Sander knew covered the Famularo job and that De Blanc was told that the money in question had come from Famularo, the Hortman-Salmen Company could not impute the payment otherwise than for the benefit of Famularo.

We find in the record the statement of Mrs. Famularo that, after the payment was made, she became worried about the fact that neither she nor her husband had any receipt from the Hortman Company for the $700 paid and that she, therefore, called on Mr. Sander and asked him for a receipt and that he told her: “You should not he worried about that, Mr. Naquin is an honest man and you should not worry about the bill»”

We do not find that Mr. Sander denied this conversation with Mrs. Famularo. If he did make the statement which we have quoted above, he made it after the payment had been imputed to other accounts than Famularo’s and, he therefore knew, when he made the statement, that the Famularo money had not gone to their credit. This fact rather confirms us in our view that Sander knew, or ought to have known, that the funds in question came from Famularo and that the imputation to other accounts did not result from that high degree of good faith which is necessary to permit a creditor of one party to enrich himself at the expense of an innocent third party.

In Madison Lumber Co. vs. Bachemin et als., 9 La. App. 382, 120 So. 508, we dealt with a situation very similar to that presented here, but there we were unable to find any fact sufficient to charge the creditor with knowledge as to the source of the funds. Here we think there are sufficient facts.

It is, therefore, ordered, adjudged, and decreed, that the . judgment appealed from be amended by reducing the amount thereof to $448.87, with legal interest from judicial demand, together with the sum of $1.50 cost of recording lien, and as thus amended, affirmed.


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    No. 11,645
    Orleans
    GULF & SHIP ISLAND R. R. CO. v. SUTTER MOTOR CO.
    (January 13, 1930. Opinion and Decree.)

      Lemle, Moreno & Lemle, of' New Orleans, attorneys for plaintiff, appellee.
    R. 0. Vorbusch, of New Orleans, attorney for defendant, appellant.
   JANVIER, J.

Defendant, Samuel E. Sutter, using the trade-name Sutter Motor Company, operates a public garage.

Plaintiff owned a Nash automobile which it assigned to one of its employees for use in his work, and which was stored over night in defendant’s garage.

During the night and without the knowledge of defendant it was taken out of the garage by one of defendant’s employees, who was in charge of the garage for the night, and, while it was being operated by that employee, Schayer, for his own purposes, it was seriously damaged as a result of his negligence.

Plaintiff attempts through this suit to recover the cost of making the repairs which he claims were necessitated by the accident.

Defendant resists payment on the theory that the employee, in taking out the car for his own purposes, was not acting within the scope of his employment and that therefore he' (Sutter) is not liable for the damages resulting to plaintiff’s car from the unauthorized act of the employee. In support of this contention several authorities are cited, notably Tinker vs. Hirst, 162 La. 209, 110 So. 324.

But that case and the others referred to are authority solely for the proposition that a master is not liable to third persons for the results of the negligent act of his employee, unless the act was done> by the employee while acting within the scope of his employment. That doctrine, while manifestly sound, is plainly not applicable here, because we are not concerned with the question of the liability ex delicto of the master for the acts of his servant which result in injuries to third persons, but solely with the determination of what is the contractual liability of a bailee for hire.

The evidence shows that, when the car was left in defendant’s garage, it was in good condition and that the next day it was found in the garage in a much damaged condition. This fact alone placed upon the garageman, as bailee for hire, the burden of proving that the cause of the damage was neither his negligence nor the negligence of his employee. Scott vs. Sample, 148 La. 627, 87 So. 478; Turnbull vs. Automobile Service Co., Orleans App. 8156, unreported (See Louisiana and Southern Digest), decided January 30, 1922.

In Hartford Fire Insurance Co. vs. Doll, 5 La. App. 226, the Court of Appeal for the Second Circuit said:

"A bailee for hire is not an insurer of the chattel left in his hands. But he is required to use due and ordinary care in the protection of the article and is bound to restore it when the bailment is at an end.

“It is contended by defendant that he assumed no special obligation to protect and restore this car, but we think he did. The printed receipt or coupon evidences that fact. But even if he did not, he is still liable under the general law of bailment in which there is an implied obligation on the part of the bailee to keep and return the property; and unless it is shown that the property was lost without negligence on his part, he is liable for its value.”

With reference to the stipulation in the claim check that the garage would not be responsible for fire or theft, it appears to us that defendant is in no way benefited under the facts of this case by that stipulation. In the first place, we doubt seriously whether such a provision, not called to the attention of the owner of the automo b'ile, would be binding. Lula May Lawes vs. N. O. Transfer Co., No. 11491, of this court, decided June 10, 1929, 11 La. App. 170, 123 So. 144. In the second place it appears to us that no theft, as is usually understood, was committed. In order to constitute theft it must be shown that the person who unlawfully removed the property intended permanently to deprive the owner of it, and this was plainly not the case here. Miller vs. Newark Fire Ins. Co., 125 So. 150, decided by us December 16, 1929; Van Vechten vs. American Eagle Fire Ins. Co., 239 N. Y. 303, 146 N. E. 432, 38 A. L. R. 1115. Furthermore, it appears unreasonable to so interpret the contract as to hold that the bailee may relieve himself of liability resulting from a theft committed by his own employee.

We experience no difficulty in reaching the conclusion that defendant is liable for such damage as plaintiff sustained.

We are, however, much concerned with the question of determining the actual amount of damage suffered by the automobile. The pictures which we find in the record show that the rear fenders of the ear were in no way damaged, yet the bill introduced contains charges for two new rear. fenders. The bill also includes charges for a horn and for a new tube connecting the headlights, although both these articles appear to have been in no way injured. Many other items appearing in the bill seem to cover parts which, by no stretch of the imagination, can be said to have been affected in any way by the accident. The charge for 116 hours of labor at $1.50 per hour is not readily understood, in view of the fact that the photographs do not show a condition of damage requiring anything like that amount of labor.

Defendant testified that the repairs could have been made' for about one-third of the amount charged. It is true that the contradictory evidence offered by defendant is very meager, and we hesitate to disturb a finding of a trial court on such testimony, and it is ateo true that there is some controversy over our right to consider the photographs, as, technically, they may not have been fully identified. Nevertheless, we feel that these photographs, which were produced by plaintiff, show the true condition of the car after the accident, and we are also convinced that, even without .their assistance, there is grave doubt as to the correctness of the charges made.

Rather than attempt, on such meager evidence, to determine what amount should have been allowed, we prefer to remand the case to the court a qua to the end that that court may hear such additional evidence as may be produced with regard to the amount of damage sustained and the actual cost of making repairs.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be reversed in so far as it fixes the quantum, and that in all other respects it be affirmed; and it is further ordered that this cause be remanded to the district court to be heard only .upon the issue above stated, the costs of appeal to be paid by the defendant and those of the lower court to await the final judgment in the case.


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    No. 11,620
    Orleans
    LARROUX v. LARROUX’S HEIRS ET AL.
    (January 13, 1930. Opinion and Decree.)
    Emile Pomes, of New Orleans,' attorney for plaintiff, appellee.
    M. C. Scharff, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

In this proceeding a judgment of partition was rendered ordering certain real property to be sold at public -auction and Ben Matthews, a real estate agent in the city of New Orleans, was appointed as auctioneer for the purpose of selling the property described in' the petition. When the property was first adjudicated it was discovered that an error had been made in connection with a family meeting concerning the interest of certain minors in the property ordered sold and the sale under that adjudication did not take place. The property was advertised a second time and again adjudicated, and it was again discovered that an error had been made, this time by the auctioneer, in connection with the advertisement of the property. The property was put up a third time and, no irregularities appearing, the sale was consummated. Matthews, the auctioneer with whom a deposit had been made by the purchaser, withheld an amount sufficient to cover his charges as fixed by statute on two of the three adjudications, the first and last, no commission being claimed on the other adjudication because he considered that the sale had failed of consummation because of his fault. Whereupon plaintiff, proceeding by rule, alleged that but one commission was due, and asked that Matthews be compelled to return the excess as an improper charge. The rule was made absolute, and Matthews was ordered to return to plaintiff in rule the sum of $357.50. Matthews has appealed.

The question presented is whether or not Matthews was entitled to charge a commission upon the first -adjudication, there being no doubt and no dispute concerning his right to charge a commission on the last adjudication, which resulted in the sale of the property.

Act 58 of 1922, which amends and re-enacts section 160 of the Revised Statutes, as amended by Act 130 of 1914, fixes the compensation of auctioneers in judicial sales of real property on a sliding scale, and it is not contended that the charge made in this instance exceeded the amount authorized by that act, assuming the right in the auctioneer to charge two commissions. The act allows a commission “of two and one-half per centum (2%%) on the amount of each adjudication made by him; and on sales of succession property in which minors have an interest, property belonging to minors (or in which they have an interest) and on property surrendered by insolvents made pursuant to an order or decree of any court of the state, a commission on each adjudication,” etc. It is contended that the words “each adjudication” as used in the act means each time the property is cried for sale and adjudicated to the highest bidder, whether a sale results or not. We do not believe this to have been the purpose of the Legislature, and are of opinion that but one commission is due, and that when an actual sale has been consummated. See Girardey vs. Stone, 24 La. Ann. 286, and State vs. Girardey, 34 La. Ann. 621.

For the reasons assigned the judgment appealed from is affirmed.


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    No. 11,675
    Orleans
    COMMERCIAL SECURITIES CO., LTD., v. SMITH ET AL.
    (January 27, 1930. Opinion and Decree.)
    (February 17, 1930. Rehearing Refused.)
    (March 31, 1930. Writ of Certiorari and Review Refused by Supreme Court.)

      Wm. Winans Wall, of New Orleans, attorney for plaintiff, appellant.
    H. W. Kaiser, Thos. Tomeny, John H. Hammel, Jr., of New Orleans, attorneys for defendants, appellees, Mrs. Louis Sal-linger.
   HIGGINS, J.

Plaintiff brings this proceeding to quiet a tax title under the provisions of Act 101 of 1898, “after more than three years have elapsed from the recordation of the tax deed.” There was judgment in favor of defendant, dismissing plaintiff’s suit, and plaintiff has appealed.

The petition alléges that plaintiff is the owner of lots Nos. 11 and 12 in square 108 bounded by Mouton," Ridgley, Iberville, and Milne streets, in the second district of .the city of New Orleans; that the said property was adjudicated to one Jos. A. Blum by Edward T. Drum, deputy commissioner of public finances of the treasury division of the city of New Orleans, in accordance with Act 119 of 1882 and Act- 170 of- 1898, for- delinquent city taxes for the year 1923, when assessed in the name of Mrs. Louis Sallinger; that the adjudication was made at public sale on September 8, 1924; that on October 17, 1924, Edward T. Drum, in his official capacity, executed an act of sale of the property to Blum before a notary, and the act was duly- recorded in the conveyance office at New Orleans on October 18, 1924; that Jos. A. Blum sold the property to plaintiff on April 8, 1926, by notarial act, which was duly recorded in the conveyance office in New ' Orleans; that Mrs. Louis Sallinger purchased the property from the New Orleans Land Company by notarial act dated December 3, 1913, which was duly recorded in the conveyance office in New Orleans; that the plaintiff has had actual physical possession of the said property for more than 3 years, and its tax titles thereto have been quieted and confirmed by prescription of 3 years, as provided in the Constitution of this state; and that plaintiff is -entitled to judgment quieting and confirming its titles, in pursuance to the provisions of Act 101 of 1898.

Defendant denied the allegations of plaintiff’s petition, averring that she has been in actual corporeal possession of the property from the time of its purchase by her; that, if the property was sold at any time for taxes, the defendant received no notice of delinquent tax or tax sale; that the defendant has been a resident of New Orleans for about 40 years, is well known, and that her husband’s name is listed in the City Directory, so that her address was available for service of notice of delinquent tax or tax sale; that she had no knowledge of any sale until the present suit was filed against her; and that 'she paid the state taxes for 1923, and both the state and city taxes for the years of 1924, 1925, 1926, and 1927, respectively.

The record shows that these are vacant lots, located in the subdivision known as “Lakeview,” and that they are not inclosed by any fence. The plaintiff’s evidence as to possession consists of their representative Mr. Yeith’s statement that he had paid to have the grass cut on the lots on one occasion and that he had placed on the lot a “For Sale” sign. However, we do not think it necessary to con-, sider this evidence in deciding the case, as Act 101 of 1898 does not require the tax purchaser to take possession of the property.

The defendant and her husband testified that they frequently passed the lots in their automobile on their way to the residence of her sister in “Lakeview,” about four blocks away, and on several occasions actually walked upon them; that on a number of occasions, about three or four times per year, they had the grass cut and paid a colored man for doing so; that they had purchased the lots with a view of erecting a residence on them, and were merely waiting until they were able to do so; that they never saw any “For Sale” signs on the property on the occasions of their visits, and they continuously paid both state and city taxes on the property since 1913, through 1927, with the exception of the city tax for 1923, and that they did not receive any notice of delinquency of the tax or the tax sale, although they were well known in New Orleans, and their name and address were readilj available; that they did not receive any notice of the tax sale until this suit was filed. They are corroborated in their testimony that they had the grass cut by another witness.

The issue presented - for decision is whether or not the defendant was in possession of the property after the tax sale in such a way as to defeat the prescription or peremption of 3 years claimed by the plaintiff.

We believe the case of Levenberg vs. Shanks, 165 La. 421, 115 So. 641, 642, is controlling in the present case. There the plaintiff brought suit to quiet a tax title to lots located in the Second district in the city of New Orleans, and one of the defenses urged against the 3-year prescription was possession by defendant of the property after the tax sale. The evidence produced by the defendant in support of this defense was to the effect that defendant’s warrantor employed a surveyor to survey the tract of land and to subdivide it into lots and blocks and to make a plat of the same; that several years thereafter a Mr. Wirth, superintendent for the warrantor, occupied a portion of the tract of land as a home and lived there for many years; that the warrantor sold some of the platted lots out of the subdivision to various parties, including 'the defendant, who acquired the lots some 8 or 9 months after the tax sale, which was made some 18 years after the tract had been subdivided; that, during the 3 years in which prescription was run-, ning, the defendant made no attack on the tax sale and permitted, the. property to remain idle and vacant.

The court held:

“In our view, the first question that should be considered is whether the peremption of three years, pleaded by plaintiffs, has any application- to this case. This peremption is established by section 11 of article 10 of the Constitution of 1921. The section, so far • as is pertinent, reads • as follows; '

“ ‘No sale of property for. taxes shall be set ■ aside for any cause, except on proof of payment of the taxes for which the property was sold prior to the date of the sale, unless the proceeding to annul is i¿stituted within six months from service of notice of sale, which notice shall not be served until the time of redemption shall have expired and within three years from the date of the recórdation of the tax deed, if no notice is given. * * *’

“It is obvious from this section, if • the peremption established by it is applicable to the facts of this case, that it bars every defense urged against the quieting of the tax title, save that of prior payment of the taxes for which the property was sold. But the peremption established by that section does not accrue when the owner, at the time of the tax sale, remains in possession of the property. His continuing in possession, notwithstanding the sale, is a continuous protest against the sale. This was so held under similar provisions in the Constitutions of 1898 (article 233) and 1913 (article 233), and the ruling is equally applicable under the provision contained in the present Constitution. Carey v. Cagney, 109 La. 77, 33 So. 89; Gauthreaux v. Theriot, 121 La. 872, 46 So. 892, 126 Am. St. Rep. 328; Charbonnet v. State Realty Co., Limited, 155 La. 1044, 99 So. 865; Fellman’s Heirs v. Interstate Land Co., 163 La. 529, 112 So. 405. -However, the possession here referred to is not the civil possession that springs from a title deed,' nor the constructive possession that may follow when actual corporeal possession ceases. The possession here referred to, as said in Carey v. Cagney, supra, and as in effect held in Tensas Delta Land Co. v. Anders, 158 La. 94, 103 So. 522, is the corporeal detention of the property. No other possession than actual corporeal possession is sufficient to operate as a continuing protest against the tax title, and thereby prevent the peremption from accruing.”

See, also, Tensas Delta Land Co. v. Anders, 158 La. 94, 103 So. 522.

Counsel for defendant complains that his client has exercised her right of possession of the lots as far as it was possible for an owner of vacant lots to do so, while plaintiff has stood by idly and permitted defendant to pay the taxes on the property for the years of 1924, 1925, 1926, and 1927, and cut the grass on them during this period, without plaintiff exercising any right of possession, and after the 3-year period of (peremption, now seeks to take advantage of the defendant. This may be so, and the loss may fall heavily upon the defendant, but under the circumstances we are powerless to give the defendant any relief. It must be borne in mind that defendant knew she had to pay city and state taxes, as she had paid them from 1913 to 1922. Under the law she had one year within which to redeem the property after the tax sale. She could have protected herself against any irregularity in the tax sale, i. e., failure to give her notice of the tax delinquency by taking actual corporeal possession of the property after the tax sale, but she failed to do so.

As the defendant’s evidence in this case shows that the defendant was not in actual corporeal possession of the lots after the tax sale, as prescribed by law, and did not attack the tax sale during the 3 years during which prescription was running, the ¡peremption of 3 years pleaded accrued, and must be sustained as to all the defenses made by defendant on the tax title.

For the reasons assigned, it is ordered, adjudged, and decreed that the judgment of the district court be and it is annulled, avoided, and reversed, and it is now ordered that there be judgment herein in favor of the Commercial Security Company, Limited, plaintiff, and against the defendant, Mrs. Matilda Badeau, wife of Louis Sallinger, defendant herein, confirming and quieting plaintiff's title to the following described property, and recognizing it as the sole owner thereof, to-wit: Two certain lots of ground situated in the Second district of the city of New Orleans, designated as lots 11 and 12 of square 108, bounded by Mouton, Ridgley, Iberville, and Milne streets, and measuring each 25 feet front on Milne street by 129 feet in depth. It is further ordered that appellee pay all costs.