author: WEBB, J.,

text:
    No. 3415
    Second Circuit
    JONES v. FROST LUMBER INDUSTRIES, INCORPORATED.
    (November 18, 1929. Opinion and Decree.)
    (December 31, 1929. Rehearing Refused.)
    Julius' T. Long, of Shreveport, attorney for plaintiff, appellant.
    Thorton, Gist & Richey, of Alexandria, attorneys for defendant, appellee.
   WEBB, J.,

Plaintiff filed this suit on February 28, 1928, against defendant, his former employer, to recover compensation for permanent total disability to do work of any reasonable character, alleged to have resulted from an accidental injury sustained by plaintiff on October 13th, 1927, while he was engaged in the scope of his employment with defendant.

He alleged in substance that, a heavy plank had fallen upon him injuring his left leg, ankle and foot, and puncturing or tearing the walls of his abdomen, causing a traumatic hernia; that soon after he was injured defendant became aware of the cause, time and extent of his injuries, and had him treated by physicians selected by it, and that defendant, as part of the hospital expenses it was liable to furnish him by law, let plaintiff have groceries to an amount not exceeding the value of one hundred seventy-six dollars, but that defendant had failed and refused to pay him any amount on or for his said injuries, except to furnish him with groceries and to have a physician attend him.

In answer, defendant admitted that plaintiff had sustained an injury of the leg, ankle and foot, but alleged that he had fully recovered from the injuries and had been paid compensation for the disability resulting therefrom, and otherwise denied plaintiffs allegations, especially denying that plaintiff had sustained ' a hernia.

The trial was begun on April 24th, 1928, and the case was held open for the introduction of evidence to be taken under deposition de bene esse, and the depositions having been taken and filed, the cause was submitted on June 28th, 1928, and plaintiffs demands being rejected, he appeals.

At the time of the accident, (plaintiff was assisting other workmen in loading logs on a wagon, which stood near a bridge, on which plaintiff was standing, and one of the logs fell upon the opposite side of the bridge from that on which plaintiff was standing, tilting the plank or planks on which he was standing and throwing him upward several feet, and when plaintiff fell, it is conceded that the plank or planks which had been tilted struck plaintiff on the leg, ankle and 'foot, causing minor injuries of the leg and foot, but severely injuring the ankle, for which plaintiff was treated by a physician who, we assume, was employed by the defendant to attend its employees, from which there was an apparent uneventful recovery, defendant paying compensation until January 24th, 1928, when physicians representing defendant after an examination of plaintiff’s leg, foot and ankle, concluded that he had recovered from such injuries. •

In support plaintiff claims that he had not recovered from the injuries of the ankle at the time that defendant ceased to pay compensation, and at the time of the trial, he testified that he suffered with pain in his ankle and that it was swollen at times, and that the functions of the ankle had been permanently impaired, causing sohae disability, and he also called a physician who had examined him a short time before the trial who stated that at that time plaintiff’s ankle was somewhat swollen, and that, there was some loss of the use of the ankle, but that he did not think it caused any serious disability. Defendant called the physician who examined plaintiff on January 24th, who said that the ankle had healed at that time, and that there was not any impairment of the ankle, and two other physicians were also called who examined plaintiff at the time of the trial, who said the ankle had been treated and that there was not anything indicating any impairment or loss of function of the ankle.

We are of the opinion that the preponderance of the evidence shows that plaintiff had recovered from the injury of the leg, foot and ankle, and that any disability resulting from such injuries had ceased to exist when defendant quit paying compensation; and that the only question relative to which there could be any doubt, is whether or not the plaintiff sustained a hernia at the time of the accident, for which compensation should be allowed under the provisions of the statute (Act No. 85 of 1926, p. 115, sec. 8, subsec. 1, par. (d), cl. 17), which reads as follows:

“Hernia is a disease which ordinarily develops gradually, being very rarely the result of an accident. Where there is real traumatic hernia resulting from the application of force directly to the abdominal wall, either puncturing or tearing the wall, compensation will be allowed. All other cases will be considered as of slow development and not compensable, being a disease rather than an accidental injury; unless conclusive proof is offered that the hernia was immediately caused by such sudden effort or severe strain, first, that the descent of the hernia immediately following the cause; second, that there was severe pain in the hernial region; third, that there was such prostration that the employee was compelled to cease work immediately; fourth, that the above facts were of such severity, that the same was noticed by the claimant and communicated to the employer within forty-eight hours after the occurrence of the hernia; fifth, that there was such physical distress that the attendance of a licensed physician was required within forty-eight hours after the occurrence of the hernia. In the case of hernia as above defined, the provisions of cause A and subdivision 5, of Section 8, paragraph 1, shall apply, until such time as the employee is able to resume some kind of work with the aid of a truss or other mechanical appliance. If the employee refuses to permit of an operation, the employer shall meet the requirements above specified, pay reasonable cost of .the truss or other appliance found necessary, and also pay compensation for 26 weeks after the accident; following which his obligation shall cease and terminate, unless death results from the hernia, in which case compensation shall be paid his dependents when and as provided under the other provisions of this act. However, if the employee shall elect to undergo an operation, by a physician selected by the employer, the employer shall meet all the expenses inci(dent to such operation and recovery, not in excess of $250.00, together with compensation as provided in clause (a) of the schedule of payments of this Section during the period of disability prior to and following the operation not to exceed 26 weeks if the operation is successful. If the employee refuses the services of the physician selected by the employer, preferring one of his own selection, the employer shall be released of obligations concerning medical expense due to the operation and recovery, but shall pay compensation during the prior and resulting periods of disability. If death results from the hernia or operation, the provisions of this act in other death cases shall apply.”

The hernia which plaintiff had was an inguinal hernia on the left side of the abdomen, and not easily discernible at the time he was examined on or about January, 1929, by physicians representing the defendant, and the same conditions existed at the time of the trial. However, plaintiff urges that it was traumatic and was sustained at the time of the accident. And it is suggested that, if the hernia was traumatic, the provisions of the statute are not applicable or, in other words, the suggestion is that the law provides for compensation for two classes of traumatic hernia; one, where the hernia results directly from the application of force to the abdominal wall, and the other, when it results from a sudden effort or strain, and that the requirements of the statute quoted are applicable only to the latter class.

There is not any authority cited in support of the position, and we do not know of any. We therefore presume that the suggestion is merely made as an introduction of the position urged by plaintiff that where the workman sustains an accident and injury which admittedly disabled him, such as wounds of the leg, ankle and foot, as in the present instance, of which the employer had notice, it is not essential for him to show compliance with requirements of the statute in order to recover compensation for a hernia which was sustained at the same time; or that, where it is shown that the workman also sustained a hernia at the time of the accident in which he sustained other injuries which disabled him, he should be relieved of showing compliance with the requirements, or be permitted to recover on showing substantial compliance, and in support of the position, plaintiff cites Racca v. Parkersburg Rig & Reel Co., 6 La. App. 532, and Crow v. Raymond Concrete Co., 11 La. App. 549; 123 So. Rep. 413.

We do not think either of the decisions supports the position. In Racca v. Parkersburg Rig & Reel Co., supra, where the only injury of which the workman complained was a hernia, the court under the facts presented relieved the workman of showing a strict compliance with the requirements, that a licensed physician was called to attend him within forty-eight hours after the occurrence of the hernia; and in Crow v. Raymond Concrete Company, where there was an injury of the eye and also an injury of the abdomen, which caused him to suffer pain in that region, it was held that the facts presented showed the descent of the hernia was immediate, although the workman did not know that he had sustained a hernia, and that the foreman of the employer having immediate knowledge that the workman had sustained an injury of the abdomen and had suffered severe pain in that region, the knowledge of the foreman of the facts was sufficient to visit notice upon the employer. But it was not held in either of the decisions that a recovery could be allowed for a hernia when the workman did not show compliance with the provisions of the statutes, and while it may be said that in the latter decision, a strict compliance with the statute was not required, or the workman was allowed to recover on showing a substantial compliance with the statute, the circumstances presented in that case were very different from those presented here.

In the present case, while the plaintiff states that he received a blow on his abdomen and that he suffered with severe pain in that region, he does not claim that he communicated such facts to the foreman, who it is claimed was in charge of the work, and the only circumstances from which it could be claimed that the employer had notice of the facts, is that the foreman witnessed the accident and that when he accompanied plaintiff to his house, (plaintiff had informed him that he was sick at the stomach, or nauseated, which the physicians state is one of the symptoms of hernia. But it is not suggested that nausea is a distinctive symptom of 'hernia, or that the foreman knew anything of the symptoms of hernia, or if plaintiff did sustain a blow on or injury of the abdomen, it is not shown that the foreman had any knowledge that he did, and conceding that the requirement of the statute should be literally construed and that proof of a substantial compliance should be sufficient, we do not think that the evidence established that the foreman had knowledge of the facts and . that there was thus a substantial compliance with the requirement that the facts should be communicated to the employer.

If the requirements of the statute are subject to construction, and the intent of the legislation may be sought in the purpose of the statute, it appears that the purpose of the statute was to provide that in order for compensation to be allowed for a hernia which, may have been sustained by a workman while engaged in his work, it is essential, not only for the workman to show that he sustained a blow on the abdomen, or strain, and that the hernia appeared or developed thereafter, but that he should establish that he suffered severe pains in the hernial region of such nature as to cause prostration and compel him to cease work and require the attendance of a physician; and conceding for the present that, plaintiff did sustain a blow on the abdomen or a strain and that he suffered with severe pains in the hernial region sufficient to have prostrated him, and to compel him to cease work, without regard to the injury of the ankle, we do not think the evidence shows that plaintiff complied with the statute by having a physician attend him.

Plaintiff states that after he arrived at his home, a (physician was called, but he admits that the physician did not examine his abdomen or treat him for any abdominal pains, and although he' states that he told the physician he was suffering with such pains, the phy: sician did not pay any • attention to him; and plaintiff’s wife also states that he had told the physician that he was suffering with such pains, yet the physician states that the plaintiff did not advise him of such^ pains. If plaintiff did suffer such pains, it is difficult to understand why he failed to insist on the physician examining him and treating him for such pains, as well as why the physician should have failed to examine plaintiff and make some attempt to relieve him. The circumstance, as related by plaintiff, was not only unusual but very improbable, and we do not think that a workman who calls a physician, but fails to inform him that he had sustained a hernia (which plaintiff states was at that time noticeable) or that he was suffering pain in the hernial region, shows a compliance with the provision of the statute.

However, aside from the failure of the plaintiff to show compliance with requirements (4) and (5) of the statute, the record suggests a very grave doubt as to whether he sustained a hernia at the time or as the result of the accident.

As stated, the hernia was a small inguinal hernia on the left side of the abdomen, and while plaintiff stated that he was struck by a ©lank at the time of the accident, and that, after he was removed by some of his fellow workmen from the immediate scene of the accident, that he noticed a blue place on his abdomen, the evidence shows that persons who witnessed the accident did not see any plank strike plaintiff’s abdomen, and it is not shown that any plank or ©lanks were on his body at the time his fellow workmen went to assist him, and the physicians stated that in order for a blow from a plank to have caused the hernia, it would have been necessary for the end of the plank to strike plaintiff in the groin, and the only physician called by plaintiff was of the opinion that the probable cause of the hernia was the sudden shock or strain when the plank or planks on which plaintiff was standing were tilted upward, and while all of the physicians state that if the hernia was a traumatic hernia, it would have been very tender and sore, yet a (physician to whom plaintiff claimed he showed the hernia on the 15th of October, states that there was not any tenderness in that region, and that the hernia did not appear to have been of recent origin, and he could have had the small hernia noticed by him without being disabled, and that he had also had an inguinal hernia on the right side. Plaintiff claimed that there was a lump in his groin when he arrived at his home a few hours after the accident, which he showed to his wife and two’ persons who called at his home on the afternoon of the date of the accident and that he had shown the lump to many of his acquaintances within a short time following the accident, yet he did not tell the physician who attended him immediately following the accident of the condition uhtil more than a month after the accident, although he had been in the physician’s office to have him examine his .ankle practically every day since the accident, nor did he inform the defendant or the foreman of the condition. And some time after the accident, and subsequent to the time plaintiff’s evidence shows he knew of the hernia, he was in the office of the physician, who was treating his ankle, and a report of the accident was made out by the physician in the presence and with the knowledge of plaintiff in which it was stated that the only injuries sustained by the plaintiff was of the ankle, and there are many other circumstances shown in the records which, even though considered in the most favorable light to plaintiff, show that he was at least very inattentive to questions asked him, and are difficult to reconcile with his claim ¡for compensation for the alleged hernia.

It is true that some óf the evidence was taken under commission, and that a number of witnesses whose statements corroborate in part the statements of plaintiff, did not appear before the trial court, and that the usual weight to be given to findings of fact of the trial court may not be as applicable as when all of the witnesses appear before the court; however,- the plaintiff did appear before the trial court, but considering the conflict in (plaintiff’s testimony and the evidence indicating that plaintiff did not sustain a traumatic hernia, and the fact that the plaintiff appears from his statement to have advised others of his condition after the period when he should have advised the defendant, whom he failed to advise, and that he discussed the matter with others before he advised the physician, who might have been of some assistance to him, shows that the plaintiff pursued a very unusual course from that which would have been taken by one having a just claim, and that the record does not present a case where it could be said that the finding of the trial court and judgment rejecting plaintiff’s claim is manifestly erroneous.

The judgment is affirmed.


source: Caselaw Access Project

author: REYNOLDS, J.

license: Public Domain

text:
    No. 3555
    Second Circuit
    BASS v. MEANS ET AL.
    (November 18, 1929. Opinion and Decree.)
    (December 31, 1929. Rehearing Refused.)

      Thatcher, Browne, Porteous & Myers, of Shreveport, attorneys for plaintiff, appellant.
    Foster, Hall, Smith & Barret, of Shreveport, attorneys for defendants, appellees.
   REYNOLDS, J.

Plaintiff, Mrs. Barnette C. Bass, by this action sought judgment against defendants, Mrs. J. T. Means, and her daughter, Miss Clifford Mary Means, a minor, for damages, for personal injuries sustained by her in being struck by an automobile owned by the former and operated by the latter; it being alleged that the daughter was operating the automobile under the supervision and direction of the mother and it was negligently operated and that the negligence was the sole cause of the accident. Defendants denied negligence and alleged that plaintiff was negligent and that her negligence was the sole cause of the accident.

On these issues the case was tried and there was judgment in favor of defendants and against plaintiff and the plaintiff appealed.

OPINION

The accident happened in the city of Shreveport, Louisiana, where Texas street crosses McNeil street, at about thirty minutes after one o’clock in the afternoon of April 2, 1927. Texas street runs approximately east and west and McNeil street approximately north and south. There is a traffic signal at the intersection with shifting lights of red, green and yellow. Plaintiff and two companions, Mr. C. L. Green and Miss Beulah McKay, arm in arm, she being on the left hand side, Mr. Green in the center and Miss McKay on his right hand side, were in the act of crossing McNeil street from the northeast corner to the northwest corner of the intersection, and defendants’ car, coming west on the north side of Texas street, was turning into McNeil street to go north, and struck plaintiff’s left foot and leg as far as the knee.

The view that we take of the case renders it unnecessary for us to consider the nature or extent of the injuries.

Plaintiff’s version of how the accident happened is as follows:

“Q. Just tell the court what happened?

“A. Well, as I stepped from the curb I turned my head to the left and glanced toward Texas street, and not seeing anything at all approaching, I started across the street, when I heard Miss McKay exclaim, and just as she spoke the car struck my foot and threw me not all the way to the pavement, because Mr. Green, who had me by the left elbow, 'slipped his hand under me, as I was falling, and partly supported my body.

* * *

“Q. Now the companions that were with you, did they start across the street at the same time that you did?

“A. Yes, sir.

“Q- Were there others crossing the street at the same time, Mrs. Bass?

“A. Yes, sir; there were quite a few people in front of me, and I was conscious of people being right along with me.

“Q. Mrs. Bass, what was the relative position of yourself with ' your companions, as you were going across?

“A. I was next to Texas street and Mr. Green was between Miss McKay and myself; in fact, 'he had me by the elbow as we crossed.

“Q. At the time that you were crossing McNeil street, at the intersection of Texas street, there were a good many people .crossing there with you, were there not?

“A. There were some in front of me and some along by the side of me and some behind me.

“Q. I asked you, Mrs. Bass, if you did not state, in the presence of Mrs. Means and these other parties that were there with her, that it was your fault? If you did not state that to those people when you got in the ear?

“A. No, sir, because I was going on the green light..

“Q. They were going on the green light too.

“A. They were making a right turn, or at least there at the corner, and I had the right to cross the street; I didn’t know she was coming.

“Q. I will ask you again if you did not state in the car, also before you got' in the car, in substance as follows: T know it was my fault; I was not looking; merely following the crowd.’

“A. Well, I think that if any question came up, at first it was as to whether I saw the car before it struck me, and my statement was that after I stepped from the curb that I • did not look and was well on the street and that I did not look to the left, I was following the crowd.

“Q. You did state that?

“A. Yes, sir; because I looked when I stepped off the curb and there was not anything at all to stop me and I went on with the crowd.”

Miss Beulah McKay testified that:

“Q. What were the relative positions of you three as you went across the street?

“A. Mrs. Bass was on the left, Mr. Green was in the center and I was on the right.

“Q. State, now, what occurred?

“A. We were walking abreast, almost; Mr. Green might have been a little to the rear; he held our arms, Mrs. Bass’ right arm and my left arm, and we started across together on the signal, when the car hit her.

“Q|. How far was the car from you at the time that you saw it first?

"A. It was just about to strike Mrs. Bass when I saw it approaching.

“Q. How many feet did you say that it was?

“A. I would not say; but it was right on her when I saw it; it was not any distance at all.

“Q. And you called to her?

“A. Yes, sir, as soon as I saw the car, but as I did the car struck her.

“Q. In what direction was the wheel flexed, as well as you remember?

“A. It seems to me it was flexed this way (witness illustrating) towards Mrs. Bass.”

Miss Clifford Mary Means testified that she was driving the car that struck the plaintiff, and that:

“Q. Will you state where you were coming from just before this accident occurred?

“A. We were going up Texas street into McNeil street and had stopped there for the red light a few seconds and waited for the green light to flash on, and I put the car in low gear and started forward to make a right hand turn there into McNeil street, and just as I started to turn I saw the people crossing the street and they all stopped, except this pedestrian and she stepped Tight in front of the right wheel of my car.

“Q. There was quite a crowd passing?

“A. Yes, sir.

“Q. Now, the rest of the people on each side of the car had stopped?

“A. Yes, sir.

“Q. How did your car hit her?

“A. I was on the left, and she just stepped in front of it.

“Q. Did it throw her down?

“A. No. sir.

“Q. Did your car run up on her and stop.

“A. No, sir; I stopped instantly.

“Q. Did you see her when she first stepped into the car?

“A. Yes, sir; just as she went to step in front of the car I pushed on the brakes.

“Q. She stepped into the car?

“A. Yes, sir.

“Q. Did you hear her say, after she got in the car, that she was merely following the crowd and that it was her fault?

“A. Yes, sir.

“Q. That it was her fault?

“A. Yes, sir.

“Q. Did you hear her say anything else?

“A. Mother asked her if she wanted us to take her to the saiiitarium, and she said that it was not necessary; to just take her around to the Independent Drug Store, where her husband worked.

“Q. Before you turned to make the turn, you looked toward the curb there at McNeil street to see where the peopie were?

“A. I was watching the people as I was turning, to see that I could get by, and I noticed that they stopped, all except this person.

“Q. I believe that you stated, in reply to Mr. Foster’s question, that the people stopped as you turned?

“A. Yes, sir.

“Q. In other words, everything stopped, when you went to -turn?

“A. Yes, sir.

“Q. Those going toward your left, towards Baird’s store, stopped too?

“A. Yes, sir; all except this woman.

* # *

“Q. That collision, the impact, the blow, was not sufficient to do any more than to brush the calf of the leg, is that what you say?

“A. It did not even tear the hose; she had on flesh colored hose and they were all right.”

C. L. Green’s version of the accident was as follows:

“We stepped down from the curb together there, possibly I was in front 'of Mrs. Bass or along with her with my left hand — I was in the middle when we started across and Mrs. Bass was on my left, on the outside of the walk, and Miss McKay was on the right hand side, and I had each one of them by the elbow and we had gone a little more than one third across the street and turned the middle, and Miss McKay, I don’t remember which one, made an exclamation and I stepped back and a car turned around and the next thing it had Mrs. Bass’ foot under the car, and I had my arms under’ her shoulder’ and caught her elbows and kind of eased her down on her back, because the car had rolled up on her foot and had stopped; the car rolled up her leg to her knee and stopped and then rolled off; I think that it rolled off down the incline there; it seemed like that; and then I picked her up and asked her if she was hurt and she grabbed me by the lapel of the coat and buried her face in my breast and said she didn’t think she was; she didn’t cry out, and I asked her if she was hurt and she said she didn’t know if she was hurt or not; and then Mrs. Means, one of the ladies that were in the car, stepped up to us and asked Mrs. Bass if she wanted to be taken to the hospital and she said no, that she would much rather be taken around to the Independent Drug Store where her husband worked.

“Q. You didn’t see the car’coming?

“A. No, sir, I didn’t see it coming until it was on Mrs. Bass’ foot.

“Q. Did you hear it?

“A. No, sir; the first thing that I heard was Miss McKay’s exclamation.”

Mrs. Maude May Thurmond testified she was riding in defendant’s car at the. time of the accident and her testimony corroborates that of Miss Clifford Mary Means. She was asked:

“Q. Did you hear her (Mrs. Barnette C. Bass) make any statement either outside there or after she got in the car?

“A. Not on the outside, but heard her after she got into the car.

“Q. What did she say?

“A. I heard her say that she did not think it was our fault; that it was unavoidable; that she was simply following the crowd.”

Miss Catharine Thurmond testified that she was in the car with the defendants at the time of the accident and her testimony corroborates that of Miss Clifford Mary Means as to the manner in which the accident happened. And she was asked:

“Q. Did you hear her (Mrs. Barnette • C. Bass) say anything, after the accident, as to how it happened?

"A. When she got in the car, I heard her say that she was merely following the crowd — was not looking.”

Mrs. J. T. Means, one of the defendants and mother of her co-defendant Miss Clifford Mary Means, testified that she was in the car with her daughter at the time of the accident and corroborates her daughter’s version of how it happened. She was asked:

“Q. Tell the court what happened?

“A. I got out immediately and went to her (Mrs. Barnette C. Bass) and examined her to see if ; he had been injured in any way at all, and I was as sorry as could be; she told us that she didn’t want to be taken to the sanitarium, because when I asked her she said no, that it was not necessary, that she was not hurt, and I kept on telling her that I was sorry that the accident had occurred, and she said that she was not hurt and that the accident was unavoidable, that she was not watching where she was going, and that she was merely following the crowd, and she said that anyway she had always thought that pedestrians had the right of way.

“Q. She said that?

“A. Yes, sir; she said it a second time; she said it right there, then, and then another time, after she had gotten in our car.

“Q. What was it she said after she had gotten in the car?

“A. I asked Mrs. Bass if she wanted to be taken to the sanitarium, and she said: ‘No, I am all right; I was not watching where I was going, and I was merely following the crowd, and anyway I thought the pedestrians always had the right of way.’ ”

Counsel for plaintiff and counsel for defendants have presented us with interesting briefs in which the law and the evidence is ably discussed; but we do not find it necessary to review all the evidence or all the law, for the reason that the case turns upon issues of fact, "namely, whether defendants were guilty of negligence, and was their negligence the proximate cause of the accident, and, if so, whether plaintiff also was guilty of negligence, and, if so, whether her negligence contributed to cause the accident.

The testimony of the occupants of defendants’ automobile is positive to the effect that on reaching McNeil street the red signal light was showing and the automobile was stopped and that on the return of the green signal the automobile moved slowly and cautiously into McNeil street.

And the testimony clearly shows that plaintiff, walking across McNeil street, from its east side to its west side, arm in arm with two companions, looking neither to the right nor left, stepped in the way of the right front wheel of defendant’s ear. And the testimony to this effect is corroborated by the physical fact that it was the wheel and not the bumper or fender of defendants’ car that struck plaintiff. It is also corroborated by the fact that Miss McKay, though the farthest away from the car of the three was the first to see and hear it and that plaintiff, though nearest to it, was not aware of its presence until warned of it by Miss McKay.

“The rights of a pedestrian and an automobile driver at street intersection are equal and reciprocal, and each must use such caution, and prudence as the situation demands.” Roder vs. Legendre, 147 La. 295, 84 So. 787.

“Whether driver of automobile which struck pedestrian was negligent depends on whether he did what a reasonably prudent man would have done under the circumstances, or omitted to do what a reasonably cautious man would have done.” Ibid.

The green signal being on, the rights of plaintiff and the driver of the automobile at the crossing were equal and reciprocal; and the evidence shows that defendants’ car was being operated prudently and cau tiously.

Not only were defendants not guilty of negligence, but the evidence affirmatively shows that plaintiff was guilty of negligence, and that her negligence was the cause of the accident. That she was not using caution appears from the fact that, though nearest the automobile, her attention had to be called to its presence by one of her companions, farther from it than she wqs.

“Where a chauffeur saw plaintiff and her companions, and had his machine under control, and would have avoided striking plaintiff if it had been possible to do so, and she had placed herself in danger because of her contributory negligence, defendant was not liable for the resulting injury.” Braud vs. Taxa Cab Co., 129 La. 781, 56 So. 885. See, also, Collier vs. Frank Varino & Co., 153 La. 636, 96 So. 500; Itzkovitch vs. Schorling, 155 La. 423, 99 So. 353.

Plaintiff contends that she had the right of way over the crossing. This contention is not in accord with the law. Roder vs. Legendre, supra.

But, even if she had had the right of way, this would not have relieved her of the duty of looking to see if it was safe for her to continue attempting to cross the street after beginning to do so. Vance vs. Poree, 5 La. App. 109.

In Johnson vs. Item Co., Limited, 10 La. App. 671, 121 So. 369, the court said:

“Even when one has the right of way, he is not relieved from the necessity of looking into the direction from which others may be expected to approach, and where such care would, as in the case here, have prevented the accident, he who fails to look cannot recover, even though the other party was grossly at fault.”

Plaintiff also contends that defendants were negligent in not blowing a horn before turning into McNeil street. If this be conceded, it would not entitle plaintiff to recover in view of the fact that she herself was negligent in failing to look in the direction from which automobiles might be expected to come and in view of the further fact that, had she done so, the accident would not have happened. But, as stated above, it is our opinion that defendants were not at all at fault. The automobile approached and was turning into McNeil street at a slow speed in full view of many pedestrians also crossing McNeil street at the same time plaintiff and her companions were. These other pedestrians halted to let defendants’ automobile pass, but plaintiff, without looking to her right or left, kept on moving and stepped in front of the wheel of defendants’ car.

Several of defendants’ witnesses testified that immediately after the accident plaintiff conceded that it was caused solely by her own fault in following the crowd going in the direction she was going instead of looking in the direction from which automobiles might be expected to come, and, when asked if she had made such a declaration, plaintiff virtually admitted she had, for she said:

“Well, I think, that if any question came up, at first, it was as to whether I saw the car before it struck me, and my statement was that after I stepped from the curb that I did not look and was well on the street and that I did not look to the left, I was following the crowd.”

Lastly plaintiff urges that defendants are liable under the doctrine of the last clear chance. But we do not think defendants had the last clear chance to avoid the accident, for the reason that plaintiff stepped in front of defendants’ car when it was so close to her it could not he stopped before striking her. Plaintiff’s negligence continued down to the instant of the accident. The last clear chance doctrine has no application to a case like this.

“The last chance doctrine had no application to a railroad crossing accident where the negligence of both parties was concurrent and continuous down to the moment of the accident.” Young vs. La. Western Ry. Co., 153 La. 129, 95 So. 511.

There is some conflict between the testimony given by the plaintiff’s witnesses and that given by defendants’ witnesses; but the trial judge, who heard and saw the witnesses testify, accepted defendants’ witnesses’ version of the accident rather than that of plaintiff’s witnesses as correct, and we do also.

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


author: WEBB, J.

text:
    No. 3559
    Second Circuit
    LOUISIANA CENTRAL LBR. CO. v. BRIDGER
    (January 31, 1930. Opinion and Decree.)
    (January 31, 1930. Rehearing Refused.)

      Stubbs and Thompson of Monroe, attorneys for plaintiff, appellant.
    Wm. H. Mecom of Columbia, attorney for defendant, appellee.
   WEBB, J.

Plaintiff, Louisiana Central Lumber Company, a creditor of W. R. Aten on two distinct claims, one for $270.42 and the other for $428.94, instituted two suits against him to recover judgment on the respective claims.

The suit on the first claim was brought in the parish of La Salle, and judgment was rendered on default for the amount of the claim with interest and costs, and, under an alias writ of fi. fa. issued on the judgment and directed to the sheriff of Caldwell parish, there were seized four horses and a wagon, and on the date of the seizure under the fi. fa. plaintiff instituted suit against Aten in the parish of Caldwell on the second claim, and obtained an order of attachment under which the sheriff seized and attached six horses, one mule, three wagons, and a lot of tools. Following the seizure and while the suit on the second claim was pending, D. T. Haynes executed two bonds, with A. D. Bridger as surety in favor of the sheriff, and obtained the release of the property which had been seized by the sheriff under the writs, and subsequently, after judgment had been rendered in favor of plaintiff on the second claim, in which the writ of attachment was maintained, and a privilege resulting from the attachment recognized on the property seized, when the sheriff came to sell the property which had been seized under the fi. fa. and to execute the judgment rendered in the attachment proceedings, the property was not to be had, and after an outcry-calling upon Haynes, principal, and Bridger, the surety on the bonds, to produce the property, to which there was not any response, the sheriff declared the bonds forfeited.

Plaintiff then filed two suits against Bridger, surety on the respective bonds given to the sheriff by Haynes to obtain the release of the property, it being alleged that Haynes was a nonresident and absent from the state, and prayed for judgment against Bridger, surety, to enforce the bonds and for judgment against Bridger for the amount of the respective judgments held by it against Aten.

Bridger filed several exceptions which were overruled, and he then answered, pleading in effect a general denial and setting up several special defenses, among which was a plea that the property which had been seized and released to Haynes was not the property of Aten, but belonged to Haynes, and that the sheriff was not authorized to accept the bonds and release the property to ■ Haynes, and he prayed that plaintiff’s demands be rejected and for judgment decreeing the bonds to be null and void, and on the same date Haynes filed interventions in the suits, in which he alleged that the property which had been seized and released to him was not the property of Aten, but belonged to intervener, and he prayed that the demands of plaintiff be rejected, and that the bonds be canceled, and recognizing him as the owner of the property.

Defendant filed exceptions to the intervention, and then answered pleading in effect a general denial; The suits were consolidated for trial, and on trial judgment was rendered rejecting plaintiff’s demands in which the demands of the intervener were not mentioned, and plaintiff alone appealed from the judgments.

On the appeals being submitted here, counsel representing defendant Bridger and Haynes in the trial court filed a brief in behalf of both parties, and urged that the judgments should be amended and the respective bonds canceled, and that the intervener should be recognized as the owner of the property released to him. However, plaintiff did not make Haynes a party to the suits, and, when he appeared as intervener, plaintiff did not amend and ask for judgment against him, and it is not suggested that judgment could be rendered on the appeals in favor of plaintiff and against the intervener, and, as intervener did not appeal, we do not think that the judgments, in so far as the intervener’s right may be affected, can be reviewed; and our review of the judgments must be confined to the questions presented as between the plaintiff and defendant, surety on the bonds.

As stated, the bonds sought to be enforced were given for the release of property which had been seized under two distinct writs, and the defenses interposed to the suits were the same. It is certain that the sheriff acted upon his own initiation in accepting the bonds and releasing the property, and it is apparently conceded by appellant that, although the law provided a means by which Haynes might have obtained the release of the property seized under the writs of fi. fa. (articles 395 to 400, Code oif Practice; Act No. 109 of 1880), as well as that seized under the writ of attachment (articles 395 to 400, Code of Practice; Act No. 51 of 1876), the bonds cannot be considered as judicial bonds or enforced as such.

However, appellant contends that the bonds should be considered as conventional obligations and enforced as such, while appellees urge that the bonds were illegal, null, and void, and, in event they can be considered as conventional obligations, that the evidence failed to establish that they had been transferred by the sheriff to plaintiff, and it could not therefore enforce any obligation of the principal or surety on the bonds.

We do not deem it necessary to consider the questions as to whether or not plaintiff could sue to enforce the bonds if they could be considered as conventional obligations, as there was not any law authorizing the sheriff to accept the bonds and release the property, and, as he acted without any order of the court, the bonds cannot be construed as conventional obligations.

There are several cases in which it has been held that, where there is not any law authorizing the sheriff to accept a bond and release property which he has seized, the bond cannot be enforced (King v. Baker, 7 La. Ann. 570; Meyer & Bro. v. Johnson, 28 La. Ann. 244; also Urquhart v. Carvin, 25 La. Ann. 218), and we do not think the decisions cited by appellant (Slawson v. Ker, 29 La. Ann. 295, and Todd v. Gordy, 29 La. Ann. 498) are in conflict with the prior decisions, as in Slawson v. Ker the sheriff was acting rather as the agent of the parties than in his official capacity, and in Todd v. Gordy he was acting under the orders of the court.

In the present instance, the sheriff was acting in his official capacity and on his own initiation, without any order of the court, and, as his action was unauthorized either by law or an order of court, 'the bonds were invalid and cannot be enforced as evidencing conventional contracts; and the judgments appealed from are therefore affirmed.


text:
    No. 3652
    Second Circuit
    RUSTON MOTORS, INC., v. JACKSON
    (December 31, 1929. Opinion and Decree.)
    E. L. Walker of Ruston, attorney for plaintiff, appellee.
    J. W. Elder of Ruston, attorney for defendant, appellant.
   WEBB, J.

Plaintiff sold defendant an automobile at the price of $378, of which $178 was paid, and for the balance defendant gave a note payable in monthly installments of $25 cash, payments to begin on September 31, 1928, and to secure the payment of the note a chattel mortgage was given on the property, which in addition to the usual provisions, contained a stipulation that, in event of the nonpayment of any one of the installments at maturity, the entire balance due on the note should become due and payable, and providing that the mortgagee or holder of the note could proceed to collect the amount due either by judicial proceedings, or by taking possession of the automobile and selling same either at public or private sale, credit the amount received from the sale, less expenses, on the note

Defendant failed to pay the full amount of the installment due on October 31, and the installment due on November 31, and a representative of plaintiff called upon him with reference thereto; and, after some negotiations, the automobile was delivered to plaintiff’s representative, who had it hauled to plaintiff’s place of business where necessary repairs were made which cost $39.20 A short time thereafter plaintiff sold the automobile to a third person, and, following, defendant called at plaintiff’s place of business to obtain the automobile, and, being informed that plaintiff had sold it, defendant consulted with attorneys who advised plaintiff that defendant was aggrieved by its action in selling the automobile, and that he had been damaged in the sum of $225. About two days thereafter, plaintiff obtained the car from the third person to whom it had been delivered, and tendered it to defendant on condition that he pay the installments past due and the cost of repairs, which was refused by defendant.

Plaintiff then proceeded via executiva against defendant to collect the balance due on the note, which was, less the installments previously paid, $152, and had the automobile seized and advertised for sale; when defendant appeared and filed a plea in which he alleged that there were various irregularities affecting the validity of the order for the seizure of the property, and also alleged that plaintiff had by taking possession of the automobile and selling same to a third person released him from payment of the note, and that he had been damaged by plaintiff’s action in the sum of $225, being the total amount which defendant had paid on the purchase price of the car, and defendant prayed that a rule be issued against plaintiff and the sheriff ordering them to show cause why a temporary injunction should not be issued prohibiting further action under the foreclosure proceeding, and on hearing of the rule that the temporary injunction be issued, and defendant be awarded $25 attorney’s fees, and on final hearing that the injunction be maintained, and that defendant have judgment in reconvention against plaintiff in the sum of $225 damages.

An order was obtained for the issuance of the rule, and plaintiff accepted service; and, following, plaintiff excepted that the rule failed to state a cause of action, and that the demand of defendant to restrain the sale of the property was inconsistent and in conflict with the demand for damages, and that defendant should be ordered to elect whether he would proceed under the rule to obtain a writ of injunction, or on the claim for damages.

On trial of the exception the minutes show that counsel for defendant stated that defendant disclaimed ownership of the automobile and that the exception of no cause of action was then sustained and the temporary injunction refused. But the record does not show that any judgment was signed sustaining the exception of no cause of action, and, while both parties stated that defendant was ordered to elect whether he would proceed under the rule to obtain an injunction restraining the sale of the property or whether he would proceed on the claim for damages, and that defendant had elected to proceed on the claim for damages, the minutes do not show that such an order was entered.

The record, however, shows that, following the submission of the exception of plaintiff to the plea of defendant, the automobile was sold under the foreclosure proceedings for $100, from which there was deducted the cost of the proceedings, and the balance of $81.70 was credited on the writ leaving a balance due on the note of $80.40, and, following the sale of the property, plaintiff filed an answer to defendant’s demand for damages.

In the answer, plaintiff set out the facts hereinabove stated relative to the sale and mortgage and the failure of defendant to pay the installments due on the note, and the automobile having been delivered to its representative, and alleged that at the time the car was delivered to its representative it was agreed and understood that it would be taken to plaintiff’s place of business and repaired at defendant’s expense, and that defendant would call for the car on the following Saturday, when he would pay the installments due and cost of repairs, and, in event of defendant’s failure to do so, plaintiff could dispose of the car as it pleased. And that, acting under the agreement, plaintiff had taken possession of the car and had the repairs made, and, defendant failing to call for the car, it had sold same.

Plaintiff further alleged that it had the right to take possession of the car under the stipulation of the mortgage and to have the same repaired, and to sell it at private or public sale and after deducting the expense of repairs and of the sale, to credit the balance of the price on the note, and then to proceed against defendant personally for the balance which might be due. But that subsequent to the time defendant called for the car, it had obtained possession of it and had tendered it to defendant on condition that he pay the cost of repairs and the installments past due, and, defendant refusing to accept the tender, it had proceeded via executiva to foreclose, and the car had been seized and sold as above stated, leaving a balance due on the note, and the cost of repairs unpaid; and it prayed that defendant’s demand for damages be rejected, that it have judgment in reconvention against defendant for the amount of the note less the installments previously paid and subject to a credit of the net amount received under the foreclosure proceedings from the sale of the property and cost of repairs. On trial judgment was rendered rejecting defendant’s demand for damages and awarding plaintiff judgment as demanded, and defendant appeals.

In presenting the cause here, appellant urges that the court should not have ordered him to elect whether he would proceed under the rule to obtain a temporary injunction prohibiting the sale or on his claim for damages, and that the judgment should he reversed, and it should be held that defendant was wrongfully ordered to elect, and that the writ of injunction was wrongfully refused, and that defendant should have judgment in damages for the amount demanded, and plaintiff’s demands should be rejected.

As stated, the record does not show that defendant was ordered to elect, nor does it appear that there was any judgment signed sustaining the exception of no cause of action, and, while the minutes show that the court refused to grant a temporary injunction, there was not any decree signed until long after the property had been sold under the foreclosure proceedings.

While the proceedings had in this matter appear to have been rather unusual and both parties to have taken rather inconsistent positions, we are of the opinion that the situation presented was primarily due to the fact that defendant improperly cumulated, with his action to restrain the sale of the property under the foreclosure proceedings, an action for damages, which was not connected with or alleged to have resulted from the alleged unauthorized and illegal seizure.

As we view the matter, the action to restrain the sale of the property was entirely separate and distinct from the action for damages, and, assuming that the court ordered defendant to elect, or that the effect of the ruling sustaining the exception of no cause of action was to strike out the demand of defendant to restrain the sale of the property under the foreclosure proceedings, the recourse of defendant was to obtain a writ of certiorari (Hofman-Olsen, Inc., v. Northern Lbr. Mfg. Co., 160 La. 839, 107 So. 539) or other appropriate remedy to prevent his demand for an injunction from being stricken from the record; and we are of the opinion that the appeal does not present the question as to whether or not the ruling ordering defendant to elect, or sustaining the exception of no cause of action, was correct, and that the only questions presented on the appeal are whether the evidence established that defendant was entitled to judgment for damages, and whether the plaintiff was entitled to judgment on the reconventional demand.

There was some conflict in the evidence as to what was the agreement under which plaintiff’s representative was permitted to take possession of the car; but, accepting defendant’s version of the agreement, it is certain that he did give his consent to plaintiff’s representative taking the car and having it repaired, and that he also agreed, if he did not call for the car and pay the installments past due and cost of repairs, plaintiff should have the right to dispose of the car, and his claim for damages appears to be based on the contention that plaintiff had sold the car pri or to the time agreed upon, thereby converting the property to its own use and releasing defendant of any obligation under the note and also releasing defendant from paying for the repair of the car.

The evidence does not show that it was understood in event of defendant failing to call for the car and pay the installments past due and cost of repairs, that plaintiff, by disposing of the car, would release defendant from any obligation under the note or from the payment for the repairs, and the only ground upon which it could be contended that defendant was released, and that he would be entitled to recover the amount which he had paid on the car, is that plaintiff had illegally converted the car to its own use.

Conceding that plaintiff did transfer the car to a third person prior to the time it was agreed he could do so, it is certain that, as between plaintiff and defendant, the title of the latter was not divested by such transfer, and, it further appearing that plaintiff was not acting in bad faith, but that, as soon as it learned that defendant cláimed it had acted contrary to the agreement, plaintiff had obtained the car and tendered it to defendant, we do not think defendant was at liberty to refuse the tender and take the position that plaintiff had converted the car to its own use, thereby releasing defendant from his obligations and rendering plaintiff liable in damages.

The act of mortgage stipulated that, in event of nonpayment of any installment, the mortgagee should have the right to take possession of the car and dispose of same at private or public sale without resorting to judicial proceedings, but appellant does not suggest that the price which may have been received by plaintiff at private sale should have been credited on the note, rather than the amount received under the foreclosure proceedings, and therefore the judgment allowing plaintiff to recover the balance due on the note after deducting the amount received at the foreclosure sale was erroneous.

Defendant having refused to accept the car and pay the installments due and the cost of repairs, admittedly made with his consent, plaintiff had the right to foreclose on the property, and, the price received being insufficient to pay the amount due plaintiff, there does not appear to be any reason why plaintiff should not have judgment for the balance due on the note after deducting the amount received under the foreclosure proceedings, as well as for the cost of repairs made with the consent and at the request of defendant.

The judgment is affirmed.


author: ODOM, J.

text:
    No. 3736
    Second Circuit
    PEOPLES BANK v. FIRST NAT’L BANK ET AL.
    (January 31, 1930. Opinion and Decree.)
    H. W. Ayres of Jonesboro, attorney for plaintiff, appellant.
    Moss and Moss of Winnfield, attorneys for defendant, appellee.
   ODOM, J.

The First National Bank of Winnfield, a judgment creditor of W. C. Anders, seized under a writ of fi. fa. nine and one-half tons of cotton seed as the property of Anders. The plaintiff bank, through its cashier, C. M. Wommack, made affidavit that it was the owner of the seized property and demanded that the sheriff release it. Whereupon the sheriff called upon the seizing creditor for an indemnity bond, as provided in Act 37 of 1882, p. 50 (R. S. N. 3579.), which bond was promptly furnished and the property was sold by the sheriff in due course, and the proceeds turned over to the seizing creditor.

The plaintiff bank then brought the present suit against the First National Bank of Winnfield, the seizing creditor, for said proceeds, alleging that it, and not Anders, was the owner of the cotton seed. The defendant bank answered denying that plaintiff was the owner of the seed, but alleged that the property belonged to its debtor, Anders.

The only question involved is that of the ownership of the cotton seed. The lower court found that the seed belonged to Anders and not to plaintiff, and rejected its demands, and it appealed.

The judgment of the lower court is amply supported by the testimony. The seed was purchased by Anders and by him stored in a warehouse at Dodson. In the purchase of the seed, Anders drew his checks on the plaintiff bank, which were paid. Some of the checks were signed by him in his personal capacity. He signed his son’s name to others, by him, as agent. His son was then in Shreveport at work. Asked why he drew the checks in his son’s name, Mr. Anders said that he had been adjudged a bankrupt and was advised that he could transact no business in his own name, and that it would be necessary for him to use his son’s name. Mr. Anders signed and left with Mr. Pyburn, a merchant at Dodson, a number of blank checks with instructions for Pyburn to purchase seed at such price as Anders named and to fill out the checks as to the name and amount in favor of the vendors of the seed. Mr. Pyburn understood that he was purchasing the seed for Anders.

Mr. Wommack, cashier of the plaintiff bank, testified that Anders was buying seed for the bank, that Anders was the bank’s agent, but admitted that the checks given in payment were drawn by Anders on his bank and were paid, which would indicate that they were drawn against Anders’ account. No explanation is made as to the bank’s rather strange and unusual departure from regular banking business to engage in that of buying cotton seed, nor why, if it had done so, Anders was not instructed to draft on the bank for funds with which to pay for the seed, instead of paying for them with his own checks. Anders, being a bankrupt, could not, for a portion of the time, use his own name and was driven to the necessity of using his son’s name. Under the circumstances, the natural and perfectly safe method for both the bank and Anders, if Anders had been the bank’s agent, would have been for Anders to draw drafts on the bank, instead of his checks in his own name and that of his son.

Aside from this, there is another reason why we cannot hold that Anders bought the seed for the bank. When the seed was seized Mr. Wommack, cashier of the plaintiff bank, made affidavit that the bank owned the seed. The statute is mandatory that such affidavit must set out specifically “all the facts on which his title or claim of ownership is based.” We quote from the affidavit as follows:

“That the Peoples Bank of which he is Cashier and is authorized to make this affidavit for which he appears herein, is the true, lawful and real bona fide owner of said cotton seed, having acquired said seed from W. C. Anders when the cotton was ginned and having paid a valuable consideration in cash for same.”

Mr. Wommack was called as a witness for plaintiff and testified, when asked how the bank acquired the seed, that the bank had purchased them, not from Anders, but through Anders as its agent. His testimony as a witness is wholly inconsistent with his affidavit.

Counsel for plaintiff-appellant, has made no appearance in this court to argue the case, nor has he filed brief, and we are therefore deprived of his views. Our reading of the record has convinced us, however, that the judge of the lower court made no error, and his judgment is accordingly affirmed with all costs in both courts.


text:
    No. 3553
    Second Circuit
    LAVIGNE (Hicks, Substituted Plaintiff) v. LOUISIANA RY. & NAV. CO.
    (November 18, 1929. Opinion and Decree.)
    (December 31, 1929. Rehearing Refused.)
    (January 30, 1930. Writ of Certiorari and Review Denied by Supreme Court.)
    Harry V. Booth and Hoye Grafton, of Shreveport, attorneys for plaintiff, appellant.
    Wise, Randolph, Rendall & Freyer, of Shreveport, attorneys for defendant, appellee.
   ON MOTION TO DISMISS APPEAL

ODOM, J.

The motion to dismiss the appeal was filed more than three days after the transcript was lodged here, and counsel for appellant urges the objection that the court should not entertain .the motion for that reason.

If the grounds of the motion to dismiss were that the record is incomplete or that there were informalities in the record or bond, counsel’s point would be well taken. But the motion is founded on want of legal right to appeal; where such grounds are set up, the motion may be filed at any time. Cockerham vs. Bosley, 52 La. Ann. 65, 26 So. 814; Mutual Life Ins. Co. vs. Houchims et al., 52 La. Ann. 1137, 27 So. 657; James vs. Fellowes et al., 23 La. Ann. 37.

Appellee moves to dismiss the appeal on the grounds that the issues involved were decided by this court on November 8, 1928, which judgment is long since final, and that the matter is now res adjudicata.

In a second motion to dismiss, filed at the same time, it is urged that the appeal should be dismissed “for the reason that the .question presented by the appeal has become a moot question by reason of a suit and cause of action having been finally disposed of by this court and certiorari refused by the Supreme Court.” See Lavigne v. Louisiana Ry. & Nav. Co., 9 La. App. 509, 121 So. 251.

The case was originally brought to this court on appeal by T. R. Hicks, who, upon his application, was substituted as plaintiff. The judgment rendered on that appeal, which became final nearly a year ago, and about two months before the present appeal was taken,, has unquestionably forclosed plaintiff’s rights against the appellee.

It is unnecessary to again detail the facts and circumstances involved, as they are all set out in out former opinion. Suffice it to say that, after plaintiff’s case had been tried, but before judgment, T. R. Hicks presented an application to the district court setting up that he had purchased all the plaintiff’s right, title and interest in the suit, as per a notarial transfer signed by plaintiff, attached to and made part of his application, asking that he be substituted as iparty plaintiff with right to prosecute the suit to final conclusion. The district court promptly signed and entered the order making the substitution. The notarial act of transfer signed by plaintiff and made part of Hicks’ application recited a cash consideration of $358.82. Three days after Hicks was substituted as party plaintiff, the defendant tendered to him in open court that amount, with interest, and asked to be relieved, pursuant to the provisions of article 2652 of the Civil Code. The court rendered judgment as follows:

“It is ordered, adjudged and decreed that the motion of defendant to be released from further liability in this cause upon its tender made in Court, be sustained, and that the demands of the plaintiff, over and above the amount tendered by defendant, be rejected and this suit dismissed at (plaintiff’s costs.”

Hicks appealed from that judgment and it was affirmed, and, as already stated, the judgment is long since final. The defendant has therefore passed out of the case; it has been relieved of further liability by final judgment. Plaintiff therefore has nothing to gain by his present appeal. More than that, the judgment rendered on Hicks’ appeal is res adjudicata as to Lavigne, this appellant. Hicks was substituted as party plaintiff for Lavigne on October 11, 1927. Three days later, the defendant by written application setting out the facts, asked that it be released upon its tender of the amount stipulated as the cash consideration for the transfer. Hicks, through his attorney, Booth, filed what was termed an answer to the application, in which he set up that, whereas the notarial transfer recited a cash consideration, in truth, the consideration for the transfer was a debt, and asked that he be relieved from the effects thereof, under article 2654 of the Civil Code. On the following day, he filed a “supplemental answer” in which he alleged that said instrument was signed through error. The last pleading was filed on October 19th. Now, immediately following, Lavigne, the original plaintiff and present appellant, came into court, through Harry V. Booth, attorney, and filed what was styled a “supplemental petition,” asking that Hicks and defendant be ruled to show cause why the notarial instrument transferring the suit to Hicks should not be decreed null, because signed by him through error, both of law and fact; setting up substantially that during the progress of the suit, he was pursued by creditors who threatened to seize his interest in the suit, and that he was advised by his attorney, Booth, that, in order to defeat his creditors, he should shift this lawsuit over to Hicks, or, as he understood it, give Hicks a lien upon it, and that he signed the instrument with that end in view.

When Lavigne filed this pleading, Hicks had already been substituted as plaintiff, and was at that moment in court prosecuting it. But Lavigne did not ask that the order he set aside, nor did he ever do so. Defendant tendered an exception of no cause of action to Lavigne’s pleading, which was sustained hy the court, and the present appeal is from that ruling.

Now we have said that the judgment on Hicks’ appeal is res adjudicata as to Lavigne. We so 'hold, because it is too plain for argument that all through Lavigne and Hicks have worked together, hand in glove. In all the manipulations and dickerings over this suit from the day they got together, and through the advice of Booth, who represented both, and made the transfer to defeat Lavigne’s creditors and to favor Hicks, on through all the litigation down to final judgment •on Hicks’ appeal, and to the Supreme Court on application for a writ of review, they have fought a common cause; their interests are identical; they are parties inseparable. In interest, they are palpably one and the same. When Lavigne filed his pleading in court, it was “the hand of Esau but the voice of Jacob.” They have been led all through these proceedings by the same hand. Mr. Booth brought the suit for plaintiff and conducted the trial. He advised the transfer of the suit and wrote the transfer; he represented Hicks in his application to be substituted as party (plaintiff; he represented him in all his efforts to avoid the consequences of the notarial instrument; when he lost in the lower court, Booth appealed for him and represented him in this court and in his application to the Supreme Court for writs. He also represented Lavigne, as attorney, in filing this pleading; he represented Lavigne in taking this appeal; and he is before the court now (prosecuting the appeal. His name is signed to every paper filed in this court and in the court below, either °or Lavigne or Hicks. The instruments which they filed show a common interest. When the court ruled against Lavigne, he took no appeal, but ' his attorney, Booth, appealed for Hicks, and, after Hicks had finally lost, then Booth took this appeal for Lavigne.

The issues presented in this appeal are substantially the same as those presented in the Hicks appeal, and there is substantial identity of parties. Further pursuit hy Lavigne is precluded hy our former decree. Aiken v. Robinson, 108 La. 267, 32 So. 415; State v. American Sugar Ref. Co., 108 La. 603, 32 So. 965. See authorities La. Digest, vol. 4, pip. 369-371.

The motion to dismiss the appeal is sustained.

Appeal dismissed, at appellant’s costs.


text:
    No. 3506
    Second Circuit
    McQUISTON v. SHREVEPORT RYS. CO.
    (November 18, 1929. Opinion and Decree.)
    (March 10, 1930. Certiorari Refused by Supreme Court.)

      Barksdale, Bullock, Warren, Clark & Van Hook, of Shreveport, attorneys for plaintiff, appellee.
    Wise, Randolph, Rendall & Freyer, of Shreveport, attorneys for defendant, appellant.
   REYNOLDS, J.

Plaintiff, Ellis Mc-Quiston, sued the defendant, Shreveport Railways Company, for judgment in the amount of $8,103, as damages for personal injuries alleged to have been sustained by him in a collision between a motortr.uck on which he was riding and a street car owned and operated by defendant. And, by supplemental petition, he increased his demand to $18,103. He alleged that the motorman of the street car negligently drove it into the truck on which he was riding.

The defendant denied the negligence charged, averred that its motorman was without fault in the premises, and alleged that the sole cause of the collision was the negligence of the plaintiff and the driver of the truck on which he was riding, in that they failed to maintain a lookout for street cars approaching on the track before attempting to drive the truck across the track, and in driving it across the track in such close proximity to the street car for it to be impossible for the motorman to stop the car before striking the truck, and in crossing the street at a place other than an intersection of streets, in violation of an ordinance of the city of Shreveport. In the alternative it alleged that, if it was guilty of any negligence and such negligence contributed to cause the accident, plaintiff was negligent in that he failed to maintain a proper lookout for his own safety, was in a dangerous and careless position on the truck, and failed to observe the approach of the street car and to warn the driver of the truck thereof in time to enable him to avoid placing the truck in front of the street car, and that such negligence contributed to cause the accident.

On these issues the case was tried to a jury, prayed for by plaintiff, and a verdict having been returned in his favor and judgment entered in accordance therewith, defendant appealed.

OPINION

The " accident happened in the city of Shreveport, La., on Texas avenue, between Cotton and Crockett streets, at about 10 o’clock at night of June 23, 1927.

Texas avenue, at the place where the accident happened, runs practically north and south, and is 54 feet wide between the curbs. It has double street car tracks extending down its center, and between the outside rail and the curb on each side of the street there is a space 20 feet wide. These spaces constitute one-way roads on each side of the street.

Plaintiff was riding on a “Ford” truck which was being driven, by one Langford south on Texas avenue.

Defendant’s street car was moving north on Texas avenue on the east pair of rails.

When the truck on which plaintiff was riding had traversed about three-fifths of the distance between Crockett and Cotton streets and had reached a point approximately on a line with the place of business of Bauman Brake Service, which is situated on the east side of Texas avenue, the driver of the truck turned it to his left for the purpose of crossing the street car tracks and entering the warehouse of Bauman Brake Service, and as it was crossing the tracks it collided with the street car.

The record contains more than 500 pages of testimony, but the able briefs of counsel for plaintiff and counsel for defendant reduce the questions to be decided by us to three, namely:

1. Was the motorman on defendant’s car negligent?

2. Were plaintiff and the driver of the truck negligent?

3. Had the motorman on defendant’s car the last chance to avoid the accident, and did he fail to avail himself of it?

The plaintiff testified:

“Q. What part of the street was that truck running on?

“A. It was running on the outside rail on the side of the street.

“Q. How came it to be hit by the street car?

“A. Well, went there to make a left turn, left hand turn, and stopped on that side of the street and let some cars go by, car coming behind us and one coming in front of us, and we let them go by.

“Q. Then what did you do?

“A. Made a left hand turn. The driver held out his hand to make the turn.

“Q. Jus.t where was the. truck when t was hit?

“A. The front wheels were sitting on the outside of the left hand rail of the street car track coming' in. * * *

“Q. You mean the side over toward the ‘Bauman Service' Station’?

“A. Yes, sir. * * *

“Q. Now the ‘Ford’ truck had a cab on it?

“A. Yes, sir. * * *

“Q. You say your feet were hanging out?

“A. Yes, sir. * * *

“Q. About how fast were you all driving out Texas avenue, Mr. McQuiston?

“A. About fifteen miles an hour. * * *

“Q. Now, as he came to turn, in making that turn, did he turn straight across 'the street, or diagonally?

“A. We stopped before we made tbe turn.

“Q. But when be made tbe turn, how did he make it, straight across the street, ór at right angles, or a . little circular turn ?

“A. He continued out Texas avenue, and stopped, and then he made the turn.

■ “Q. Now, Mr. McQuiston, what part of the truck was it that struck the street car, do you know?

“A. The street car struck the truck right behind the front fender; hit the cab. * * *

“Q. That is just about where your legs were?

“A. Yes, sir. * * *

“Q. Where was the street car, when you first saw it, Mr. McQuiston?

“A. It was right at us.

“Q. You could see down that street— you say that you had been watching out for the street car?

“A. Yes, sir.

“Q. You were not depending on Mr. Langford’s observation but you were looking out for yourself?

“A. He looked when he stopped; looked both ways.

“Q. And you did too?

“A. Yes, sir, I looked both ways before he made the turn. I looked again and I did not see anything.

“Q. You looked for yourself to see if a street car was coming?

“A. Yes, sir.

”Q. Of course you knew that street cars come on that track?

“A. Yes, sir.

“Q. You knew that automobiles come along there?

“A. Yes, sir.

“Q. And you were watching out for your own protection?

“A. Yes, sir.

“Q. If you had seen a street car or an automobile or a truck coming past, you would have reminded Mr. Langford not to go on the track — would have warned him?

“A. Yes, sir.

“Q. But you saw none?

“A. I did not see any. * * *

“Q. Here is what I mean. After Mr. Langford started the truck up, started moving across the street, how quickly could that truck have been stopped, that is, while he was moving along there, by putting on the emergency brake, within what distance could it have been stopped? A foot, or six feet?

“A. It could have been stopped at once.

“Q. Almost instantly?

“A. Yes, sir.

“Q. It would not have gone six inches?

“A. No, sir.

“Q. Now, Mr. McQuiston, looking down Texas avenue in the direction in which you had been going, after this automobile passed you coming towards town, there was nothing in the way of you out there to keep you from seeing up Texas avenue? „

“A. No, sir; not that I seen.

“Q. Then why didn’t you see the street car as it was coming down there?

“A. Because I did not see it.”

At another place in his testimony he said:

“Q. Mr. McQuiston, when that truck came to a stop, as you have testified, which way were you facing?

“A. I was facing south.

"Q. Did you see the street car when you stopped?

“A. No, sir, I did not.

“Q. Was there one in sight?

“A. No, sir.

“Q. When did you first know that the street car was running down on you, and that it was about to strike the car, Mr. McQuiston?

“A. It was after we had gotten across on the track. I looked and seen that the street car was about to hit the truck.

“Q. Was that the first time that you saw it?

“A. Yes, sir. * * *

“Q. Was there anything in Mr. Lang-ford’s way, between him and the street car, as the truck turned to go across the street?

"A. No, sir.”

Charles Langford, the driver of the Por'd truck, testified:

“Q. In making that turn, what was done? What was done on the truck just before you started to turn?

“A. I held out my hand and stopped before I turned, and there was a car coming behind me and blew the whistle and I waited for him to go by, and in the meantime some were coming this ■ way on the other side of the street; and they got clear of the street and I started across. * * *

“Q. You stopped still?

“A. Yes, sir. * * *

“Q. And as you made your left turn and started into that vacant lot, what, if anything, obstructed the car there or prevented you from seeing down the street?

“A. There was not anything when I first started across, but I got to the angle, the. ‘Big Boy’ (meaning the street car) was on there. * * *

“Q. Did you get across to the vacant lot?

“A. No, sir; just about the time I got half way across the track, the street car hit me back of the cab. * * *

“Q. Did you see any headlight on the street car as it approached you and hit the truck?

“A. No, sir.

“Q. I thought you said that you did not see the street car?

“A. I did not see it until it hit us.

“Q. Did you have headlights on your truck?

“A. Yes, sir.

“Q. Were they burning?

“A. I suppose so; they were burning when we left the garage. * * *

“Q. While you were in that position, could you look forward and see what was coming?

“A. Yes, sir; I looked forward.

“Q. You could see up there?

“A. Yes, sir.

“Q. He (meaning plaintiff) was looking forward too?

“A. Yes, sir.

“Q. He did not at any time warn you that the street car was coming, or tell you to stop?

“A. No, sir; undoubtedly he didn’t see it until it hit us.

“Q. You didn’t actually see it until it actually struck you?

“A. No, sir; it had done hit us before I knew it was coming. * * *

“Q. If you did not see the street car until it hit you, you don’t know whether it had a headlight or not, do you, Mr. Langford?

“A. No sir.”

Section 9 of Ordinance No. 4 of the year 1915 of the city of Shreveport was introduced in evidence, and provides:

“Vehicles crossing from one side of the street to the other, shall do so by turning to the left so as to head in the same direction as the traffic on that side of the street toward which the crossing is made, and shall only turn at intersections.” (Bold type ours.)

It appears, then, that an effort was made, by the driver of the truck, with plaintiff’s knowledge and consent, to turn the truck at a right angle and drive it across the double street car tracks between street intersections in violation of an ordinance of the city and that in the attempt the truck was negligently driven in the path of a moving street car and struck by it.

The evidence shows that from the point where plaintiff says the truck was at the time it turned to cross the street car tracks, the driver of the truck and himself had an unobstructed view of the car track in the direction from which the ear came for more than 400 feet.

There is an irreconcilable difference between the testimony of the plaintiff and that of the driver of the truck as to the speed of the truck when it was crossing the tracks.

Plaintiff testified:

“Q. Now, you — now, after you made the stop and started across the street, you were traveling very slowly, were you not?

“A. Yes, sir; was just barely creeping along.

“Q. Just barely moving?

“A. Yes, sir.”

Langford, the driver of the truck, testified:

“Q. Do you know how fast your car was running at the time, as regards the street car, when the street car hit it at that time?

“A. No, sir; but not very fast; six or seven miles an hour; not very fast; pretty fast in low gear, probably nine or ten miles an hour.”

Inasmuch as neither plaintiff nor the driver of the truck saw the street car before the instant of the collision, although both of them had an unobstructed view of the street for over 400 feet in the direction from which the street car came, it is manifest that neither of them could have been keeping a lookout for vehicles likely to get in the path of the moving truck and that both of them were negligent.

“One who attempts to drive a wagon across a street railway track in front of an approaching street car, that could and should, with reasonable care, be seen and heard approaching, is guilty of negligence, and is not entitled to damages for injuries received from a collision with the street car.” McShane v. N. O. Ry. & Lt. Co., 137 La. 830, 69 So. 268; Marston v. Shreveport Traction Co., 140 La. 18, 72 So. 794.

“Neither occupant of the vehicle can recover when it is shown that the proximate cause of the accident was the failure of both to have seen what each of them should have seen.” Toups v. Morgan’s L. & T. R. R. & S. S. Co., 4 La. App. 136. Bradley v. Mo. Pac. R. R. Co., (C. C. A.) 288 F. 484. Noble v. C. M. & St. P. Ry. Co. (C. C. A.) 298 F. 381.

Whether the motorman on the street car had or had not the last chance to avoid the collision turns on the distance the truck was from the street car when the former began to move across the tracks.

Neither plaintiff nor the driver of the truck, Langford, could have any estimate of this distance, for the reason that neither of them saw the street car before the moment of the. collision.

Plaintiff’s witness Travis fixed this distance at 75 feet, and later fixed it at 150 feet, and still later at 195 feet.

These changes of opinion destroy, in our judgment, whatever of value the testimony of this witness on this point might otherwise have.

H. T. Prudhomme, a witness for defendant testified:

“Q. What would you say, respecting the speed of that truck, Mr. Prudhomme, as compared to the speed that . the street car was making?

“A. Well, the truck was coming along, I would imagine at a rate of twenty miles an hour, or even a little bit more, when it pulled out in front of the street car he seemed to pick up some speed, trying to beat it across.

“Q. Did the truck stop or check its speed before going on the track on which the street car was traveling, Mr. Prudhomme?

“A. It headed towards me, coming across at a terrific rate of speed, trying to get across the. street in front of the street car.

“Q. Did he stop before coming over?

“A. No, sir. * * *

“Q. Mr. Prudhomme, the point is, the automobile truck had gotten across, or partly across, or was going across, when the street car hit it?

“A. The automobile got hit, the front wheels were across the rail.”

Mrs. Ira Gillespie, a witness for defendant, testified:

“Q. When the truck turned to go across the track, about how far, would you say, the street car was from it, Mrs. Gillespie?

“A. The distance, I presume, from here over to the jury box.”

G. N. Rosomond. a witness for defendant, testified that he was the motorman on the street car that collided with the truck on which plaintiff was riding, and that at the time of the accident the headlight and' interior lights of the car were burning, and that the speed of the car just before the accident was about 10 miles an hour.

“Q. Now, about where were you, when you first saw that truck that you after-wards collided with?

“A. Well, I was about fifteen feet in front of it, ten or fifteen feet. The first I knew, he cut in ahead of me. Of course I saw some traffic coming up the street meeting me on the right hand side, the -proper side of the street. * * *

“Q. Where was it, when it first distinguished itself, first attracted your attention?

“A. It cut out of the line of traffic and headed in front of the street car.

“Q. Which direction did it cut?

“A. It cut to the left, going out Texas avenue.

“Q. Cut, traveling to the left?

“A. Yes, sir.

“Q. How far was the street car from it when he did that?

“A. Ten or fifteen feet.

“Q. What did you do?

“A. I immediately set the brakes and what we call showered down on the gong; I guess you all understand that.

“Q. Rang the gong violently?

“A. Yes, sir.

“Q. Did your brakes take effect?

“A. They did. * * *

“Q. When he started across the track, in front of your car, was there anything that you could have done towards trying to stop that you did not do?

“A. No, sir.

“Q. Was it possible to stop before striking the truck?

“A. No, sir.”

O. C. Beasley testified that he was the conductor on the street car that collided with the truck, and that the first intimation he had that a dangerous situation existed was the rigid application of the air brakes to the wheels of the car by the motorman, and that when this happened he loked out to ascertain the cause of the trouble, he saw the truck and it appeared to him to be about six feet in front of the car.

Mrs. Lois Whitt, a witness for defendant, testified that she was standing on the sidewalk near the scene of the collision when it occurred, and that she heard both the whistle and the bell on the street car, that she saw the truck approaching the scene of the accident, and that just before it started to turn across the street it slowed up.

“Q- Was he going slower, as fast, or faster than the street car was going, as he came around and started to make the turn to go over the tracks?

“A. He was going faster. * * *

“Q. About how far was the truck from the street ear, when he first started to turn to the left in the truck?

“A. About fifteen feet, I should imagine. * * *

“Q. Where was the street car, when the driver of the truck began to turn to the left, out of line of the traffic?

“A. That is what I mean; about fifteen feet.”

J. L. Mathews, a witness for defendant testified that he was standing near the place of the accident, and:

”Q. Mr. Mathews, as you were standing there, did you see the street car before the accident?

“A. Well, I seen two street cars, one going out on the out track and one coming in on the in-bound track; and there were some cars going out, the most of the traffic, as well as I remember, there were three men in a car, two inside and a man on the outside standing on the footboard or looking down, laying down on the man inside, where the accident happened. He was on the line the street car was on, according to my judgment twelve feet, ten or twelve feet, when he made a turn short, in the middle of the block, and, of course, the street car ran into him; no chance to stop. * * *

“Q. What lights did you see?

“A. I seen, the headlight on the head end of the car above the bumper.

“Q. Could you see the lights inside the car?

“A. I did, before the accident. * * *

“Q. When he made the turn to go towards the track, on which the street car was coming, about how far was the street car away at that time?

“A. Well, looked to me like he was not paying any mind to the street car.

“Q. My question was, when he made the turn, to turn to the left, to go on the track, how far away was the street car at that time?

“A. The street car, in my estimation was not over twelve or fifteen feet, I will say not over twenty feet, from where the truck was when it went to turn.”

W. J. Coe, a witness for defendant, testified that he was on the sidewalk near the place of the accident when it occurred, and:

“Q. Now, how far back did you see that truck, before he made the turn, as he was going straight out, when you first took notice of it?

“A. Well, I could not say just exactly how far he was when he made the turn; I would judge from the distance, estimate the distance from where I was standing, it was somewhere near fifteen or eighteen feet in front of the car when he turned to the left; I could have varied a little ways, and I could not say, because I was just estimating it; may have been less.

“Q. Did the truck stop before starting across the track?

“A. No, sir.

"Q. How do you know that?

“A. Because I was looking at it. * * *

“Q. After the truck cut across the track, what happened?

“A. Well, there was some one jumped from the truck and ran off, and the street car hit the truck just after it reached the rail, the front wheels, and turned it over on its left side. * * *

“Q. When the truck was struck by the street car, what, if anything, did you see about the speed or the movement of the street car at that particular time; or how far did the street car go, after it struck the truck?

“A. The street car was almost at a standstill when it struck the truck. What attracted my attention so, just before the truck was going along there, and what called my attention was, the car going along there donging the bell now and then and all at once he started ringing like a fire wagon was coming up, and that called my attention, and about that time the crash, they came together.

“Q. What did the truck do, when you first heard this alarm of the gong?

“A. It just started cutting across to the left, across the track.

“Q. At that time, the street' car was how far from the truck?

“A. I judge not over eighteen feet.”

G. H. Thompson, a witness for defendant, testified that he was in an automobile immediately behind the car in which plaintiff was riding, and that he was driving in the same direction that the truck was going, and:

“Q. Where was the truck, with reference to the car that you were driving?

“A. The truck was in front of me; in front of my car; between my car and the street car; in fact, both meeting the street car some time before the accident occurred. * * *

“Q. Did you hear the street car coming down the street before the accident?

“A. I heard the ringing of the bell or gong.

“Q. Could you tell about where it was when it sounded the gong or bell?

“A. If my memory serves ' me right, it was immediately before the accident.

“Q. About how fast was the truck going out Texas avenue before it changed its course?

“A. My speedometer registered fifteen miles an hour, and the truck was ahead of me; in fact, the truck passed me.

“Q. After it passed you, was there anything to interrupt your view of the truck from then until the street car struck him? Was there anything to keep you from seeing the truck after it passed you until he was struck?

“A. No, sir.

“Q. Did you see him when he made the left hand turn and started across the street car track?

“A. I did.

“Q. Did be stop before he started across tbe track?

“A. He did not.

“Q. How soon after be started to make tbe turn, was it tbat tbe street car struck tbe truck?

“A. Almost immediately.

“Q. Did you see tbe street car as it came down tbe street before tbe accident, see tbe way it was running?

“A. Yes, sir.

“Q. Did you see tbe lights of tbe car?

“A. Yes, sir.

“Q. Was it lighted?

“A. Yes, sir.

“Q. Did you see the headlight on the street car?

“A. Yes, sir.

“Q. Was it lighted?

"A. Yes, sir; it was burning.

“Q. How close ahead of you did be cut over?

“A. Well, you might say tbat be was right, pretty close to me, as I bad to set the brakes on my car to keep from striking him, be turned so abruptly.”

Tbe testimony of these witnesses makes it clear tbat tbe motorman on the street car was deprived of any opportunity to stop bis car before striking tbe truck by reason of tbe truck on which plaintiff was riding being driven in front of tbe street car too close for tbe latter to be stopped in time to prevent tbe accident, and tbat defendant was not liable under tbe doctrine of tbe last clear chance.

Tbe doctrine of tbe last clear chance has no application where tbe negligence of both parties is concurrent and continuous down to tbe moment of tbe accident. Young v. Railroad Co., 153 La. 132, 95 So. 511, 512.

“Even though driver of truck was driving at excessive speed and did not give signal of his approach, contributory negligence of one waiting for street car, in suddenly stepping in front of tbe truck, held tbe proximate cause of bis death, as driver was deprived of last clear chance of preventing tbe collision.” Collier v. Frank Varino & Co., 153 La. 636, 96 So. 500.

Tbe record very clearly shows that the motorman on defendant’s street car was not negligent at all, and tbat, on tbe contrary, tbe sole cause of the collision and consequent injury of plaintiff was tbe joint negligence of Langford, tbe driver of tbe truck on which plaintiff was riding, and plaintiff himself.

It is therefore ordered, adjudged, and decreed tbat tbe judgment appealed from be annulled, avoided, and reversed, and it is now ordered, adjudged, and decreed tbat plaintiff’s demands be rejected and his suit dismissed at bis cost.


text:
    No. 3618
    Second Circuit
    DANCIGER v. REED ET AL.
    (December 31, 1929. Opinion and Decree.)
    (January 31, 1930. Rehearing Refused.)
    (March 10, 1930. Writ of Certiorari and Review Refused by Supreme Court.)

      J. W. Elder, of Ruston, attorney for plaintiff, appellant.
    S. L. Digby, of Parmerville, attorney for defendants, appellees.
   REYNOLDS, J.

Plaintiff sues for judgment against the defendants in solido for $600 with legal interest thereon from April 21, 1924. He alleges:

That Shelly Wills Reed is the widow and her codefendants Walter Reed, A. Reed, Willie Reed, and Mattie Ollie Reed, the sole heirs, of L. W. Reed, deceased, and had unconditionally accepted his succession, and therefore were liable to him in solido in warranty instead of L. W. Reed for said sum and interest, for this, that, on April 21, 1924, he purchased from L. W. Reed, for the price of $1,000 cash, an oil and gas lease of, and also one-half of the minerals on and under, the S% of SW% and NE% of SW% of section 12, townshi© 20 north of range e east in Union parish, La., as per deed recorded in book 55 at page 7 of the conveyance records of said parish on April 25, 1924; and that on February 29, 1924, he purchased from L. W. Reed an oil and gas lease on the same land and also on the NWM of SWÜ of the same section, township, and range, for the price of $800, as per act recorded March 28, 192'4, in Book 54 at page 389 of said records. That he was to have thirty days in which to examine the title. That he discovered that L. W. Reed had already sold the oil, gas, and minerals under the last-described 40 acres; and that thereupon he and Reed entered into the contract of April 21, 1924, above described, and that on March 26, 1924, L. W. Reed sold an oil and gas lease on the Sy2 of SW% and NE% of SW% of the said section, township, and range to W. C. Feazel, and that the lease was recorded on the same day.

That one Thomas C. Wittmer, as the assignee of W. C. Feazel, obtained a judgment against him, Joseph Danciger, in suit No. 7984 on the docket of the district court of Union parish entitled Thomas C. Wittmer vs. Joseph Danciger, annulling the deed and lease made to him as aforesaid by L. W. Reed, but that he had no notice of the suit, and no appearance was made therein for him.

That by reason of the sale by L. W. Reed to W. C. Feazel of an oil and gas lease on the land on April 21, 1924, L. W. Reed had no title to transfer to him, and he acquired none under the transfers from Reed to him, and that the consideration he paid Reed for the transfers had failed.

That there was no agreement between himself and Reed fixing the respective values of the lease and of the sale from Reed to himself, but that he had agreed to pay Reed $800 for an oil and gas lease on the entire SW% of the section, township, and range named, and that Reed had actually received from Feazel $1,200 in cash for the lease, and that the portion of the price he paid Reed on April 21, 1924, was at least $600 for the lease.

The defendants admitted that they were the widow and heirs, respectively, of L. W. Reed, and that they had unconditionally accepted his succession, hut denied that they were liable in any amount in warranty to plaintiff.

On these, issues the case was tried, and there was judgment dismissing plaintiff’s suit as in case of nonsuit, and he appealed.

OPINION

In his reasons for judgment, our learned brother of the district court reviewed the evidence pertaining to the dealings between plaintiff and L. W. Reed, deceased, and the law applicable thereto, but in our opinion, in order to reach a correct decision of the issues, it is only necessary for us to consider the oil lease and the mineral sale of April 21, 1924, on which plaintiff bases his claim in warranty against the defendants. In that lease of oil and gas and sale of minerals for the price of $1,050, it is not stated how much of the price is for the oil and gas lease or how much is for the sale of the minerals, and there is no evidence in the record tending to show what part of the total price was given for the lease or for the sale. Plaintiff contends that how much was paid for the lease and how much for the sale appears from the transfer of February 29, 1924, and that this should be taken as the basis of the sale of April 21, 1924. We cannot accept this view of the matter. The relative value of an oil lease as compared with a sale of minerals may change overnight for any one of several reasons. A sale of minerals follows the land into the hands of whoever may become the owner of it, and may last for ten years from its date.

There being no evidence in the record as to what part of the $1,050 in the transfer of April 21, 1924, represents the consideration for the oil lease or what part of it represents the sale of the minerals, and plaintiff’s claim in warranty being founded on this transfer, there is no evidence in the record on which we could found a judgment as to what amount plaintiff is entitled to recover from defendants, inasmuch as plaintiff does not complain of any loss in connection with the purchase of the minerals, but only that he has been deprived of his rights under the oil lease. Nabors Oil & Gas Co. vs. La. Oil Rfg. Co., 151 La. 361, 91 So. 765.

We find no error in the judgment appealed from, and accordingly it is affirmed.