text:
    No. 11,799
    Orleans
    THE STEVENS-DAVIS CO. v. LIBERTY INDUSTRIAL LIFE INS. CO., INC.
    (February 17, 1930. Opinion and Decree.)
    (March 10, 1930. Rehearing Refused.)

      Milling, Godchaux, Saal & Milling, of New Orleans, and Lawrence K. Benson, of Hammond, attorneys for plaintiff, appellee.
    F. B. Smith, of New Orleans, attorney for defendant, appellant.
   HIGGINS, J.

Plaintiff sued defendant for the sum of $319.50, the balance due on an alleged contract entered into between plaintiff and defendant. Defendant denied liability, and specially pleaded want of authority of its officer to sign the contract. There was judgment in favor of the plaintiff as prayed for, and the defendant has appealed.

The record shows that H. M. Roberts, a representative of plaintiff, during the month of July, 1926, called upon S. W. Green, president of the Liberty Industrial Life Insurance Company, with the view of obtaining a contract for the purchase of 52 weekly installments of “Vest Pocket' Logics,” articles and reading matter designed for the purpose of increasing the efficiency of salesmen in securing subscriptions for insurance policies. After considerable discussion and negotiation, as well as addresses made by the plaintiff’s representative to the agents and officers of the defendant company, a contract was entered into between plaintiff and defendant on July 31, 1926. The contract is signed by the Liberty Industrial Life Insurance Company by R. L. Johnson, manager. It appears that Johnson was not only the manager of the company, but also its general superintendent.

The booklets, etc., were sent to the defendant company, attention of Mr. Johnson, as per the contract. The Vest Pocket Logic System consisted of 52 weekly installments, and was neither returned nor tendered to the plaintiff by the defendant.

The plaintiff contends that the contract was entered into with the defendant company, and in the alternative that, if Johnson did not have authority to sign the contract, the contract was ratified and approved by the officers of the company by accepting and using the material and articles for its use and benefit.

The defendant contends that it was verbally agreed between Roberts, the representative of the plaintiff, and Johnson, the representative of the defendant, that Johnson was signing the contract, not for the benefit of the defendant company, but for the benefit of its agents, who would pay the sum of $6.50 per week for each of the 52 weekly installments, and that Johnson was without authority to sign the contract in behalf of the defendant company.

The evidence in support of plaintiff’s contention that Johnson was authorized to sign the contract as manager and general superintendent of the defendant company is impressive, but, without deciding this issue, it is sufficient to say that the record convinces us that Johnson’s action in signing the contract was ratified and approved by the defendant company. When the contract was signed, it was returned to the plaintiff’s home office, and on August 3, 1928, plaintiff wrote to the defendant acknowledging receipt of the contract, and assuring the defendant of its prompt execution. S. W. Green, president of the defendant company, admits receiving this letter, and that he did not answer the letter and protest that the articles were sold to the. agents of the defendant company and not to the company itself, or that Johnson was without authority to sign the contract on behalf of the defendant company.

Plaintiff wrote defendant a number of letters requesting payment, and on April 12, 1927, Johnson, as general superintendent of the defendant company, ■ wrote plaintiff as follows:

“The matter regarding the account of your Company will be taken up Thursday in the Board Meeting of the Liberty Industrial Life Insurance Company and I feel sure we will be able to mail you a check in full covering the amount due for services rendered.

“We shall endeavor to give you no further trouble in writing letters.”

The plaintiff shipped to the defendant company the articles that were called for under the terms of the contract, and the defendant at no time protested that Johnson was without authority to sign the contract, and that the contract was only with the agents of the defendant company. In fact, the articles and reading matter were used by the defendant company for its own benefit, and it is admitted that defendant made no effort to return or tender the return of the articles and the reading matter of the plaintiff.

In the case of Fred G. Jones & Co. vs. Sanford, 163 La. 799, 112 So. 726, 727, the court said:

“ * * * There is nothing here suggesting, even in the remotest, a lack of authority in the manager to accept the order. Where an agent exceeds his authority it is the duty of the principal to promptly disavow the agent’s authority to bind him, else the principal will be bound. As defendant, when knowledge of the manager’s acceptance came to him, failed to disavow the manager’s authority to bind him by the acceptance, he became bound thereby, and in the absence of such a disavowal, anything defendant may have added to the order, as accepted by his agent, was not binding on plaintiff, without its consent * *

In the case of Woods, Slayback & Co. vs. Rocchi, 32 La. Ann. 210, the court said:

“* * * The contract, as actually made by the broker on behalf of Rocchi, was brought to his' knowledge in ample time /for him to have prevented the delivery of nearly half the goods bought. He did not repudiate the contract made for him by his agent or his pretended agent, and in 'law he is presumed to have ratified it. Pitts v. Shubert, 11 La. 286, 30 Am. Dec. 718; Bonneau v. Poydras, 2 Rob. 1; Guimbillot vs. Abat, 6 Rob. 284.”

See, also, 14a Corpus Juris, p. 373, par. 2232; Da Ponte v. Ogden, 161 La. 378, 108 So. 777; Johnson v. Carrere, 45 La. Ann. 847, 13 So. 195; Blanchard vs. Patterson, 9 La. App. 706, 119 So. 902; Mouri vs. Manguno & Son, 3 La. App. 15.

The rule as to retention of benefits is announced in Succession of Gilmore, 154 La. 105, 97 So. 330, 331:

“An unauthorized contract of an agent is ratified by the principal, who, when notified of such contract, does not immediately repudiate it, but accepts the benefit arising under such contract. Ward v. Warfield, 3 La. Ann. 468; Flower vs. Downs, 6 La. Ann. 540; Szymanski v. Plassan, 20 La. Ann. 92, 96 Am. Dec. 382; Mangum v. Bell, 20 La. Ann. 215; R. C. C. art. 3010.”

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


source: Caselaw Access Project

author: HIGGINS, J.

license: Public Domain

text:
    No. 11,433
    Orleans
    DELHOMER ET AL. v. ST. JOHN THE BAPTIST PARISH SCHOOL BOARD ET AL.
    (February 17, 1930. Opinion and Decree.)
    (March 10, 1930. Rehearing Refused.)
    Robert J. Perkins, of New Orleans, attorney for plaintiffs, appellants.
    C. A. Buchler, of Gretna, attorney for defendants, appellees.
   HIGGINS, J.

Plaintiffs, as mother and father of their minor son, sued the St. John the Baptist Parish School Board and Clement Maurin & Sons, a commercial partnership composed of Henry C. Maurin and Clement Maurin, and said partners in solido, for damages for alleged personal injuries sustained by their minor son on January 18, 1924, and also for damages in favor of Mr. Delhomer for medical, hospital, and other expenses.

The school board filed an exception of no cause of action, which was sustained, and a motion for a new trial was filed which is still pending.

The defendant partnership and the partners thereof denied liability, and alleged that the child was injured through its own fault, and that defendants were free from negligence.

•On the merits there was judgment in favor of the defendant, Maurin & Sons and the partners composing the partnership, dismissing the suit, and plaintiffs have appealed.

The following facts in the case are undisputed:

Prior to and at the time of the accident the defendant, Maurin & Sons, had a written contract with the school board of the Parish of St. John the Baptist to transport children within a certain territory to and from school for a stated consideration. On January 18, 1924, Sidney Maurin was driving the truck, or school omnibus, owned and operated by Maurin & Sons under their contract with the school board. On this day Joseph Delhomer, Jr., the minor son of plaintiffs, age six years, was a passenger in the bus, coming home from the John L. Ory School which he attended. When the school bus reached that part of the public highway in front of Mrs. Lasseigne’s home, the driver of the truck opened the right front door, through which the passengers were admitted and discharged, for the purpose of leaving the child out of the truck. The child went out of the door, stood on the truck step, then descended to the ground where thereafter his left foot was severely injured by the right rear wheel of the truck. The truck then proceeded about 100 feet further down the road, and the driver for the first time learned from the other children in the-bus that the child had been injured, when they saw the child screaming and jumping in the road where he had alighted from the truck.

At the place where the accident happened the public graveled highway runs parallel with the levee of the Mississippi river which was on the right-hand side of the truck, and that the residence of Mrs. Lasseigne was on the left-hand side, and that there were two picket fences between the residence and the road. The truck was proceeding in the direction of New Orleans, or down the river, at the time the child was injured.

Plaintiffs contend that the defendant, Maurin & Sons, is a carrier of passengers and has violated its contract for safe carriage of the child as a passenger, that the specific cause of the accident was the failure of the driver to come to a stop at the time he attempted to discharge the child as a passenger, for at the time the driver, Sidney Maurin, opened the door of the truck for the child to get out, the truck was still rolling slowly, and that .the child fell while attempting to alight from the step of the truck to the road, and, after falling, that the right rear wheel of the truck passed over the child’s left foot, inflicting serious and permanent injury. Plaintiffs also complain that the judge, a quo, ruled out certain evidence offered in support of the allegations in plaintiffs’ petition, to the effect that the defendants knowingly • continued in their employment the chauffeur of the school bus after having been informed that he was a reckless driver and had injured other children; and also recklessly drove the truck over railroad crossings in close proximity to approaching trains.

The defendant, Maurin & Sons, contends that the child was not a passenger on the truck due to the fact that he resided outside of the territorial limits within which the defendants were obligated to carry passengers under their contract with the school board, and, second, that the child was solely at fault and the defendants free from any negligence.

A great many witnesses testified in the case and particularly a number of school children, who were passengers in the bus, but the evidence is conflicting as to just how the child came in contact with the right rear wheel of the truck. However, defendant established by a clear preponderance of the evidence that the truck stopped, the driver opened the door and the little boy went through the door, descended to the step and then to the ground without falling. Some of plaintiffs’ witnesses say that the child fell from the step of the truck but other witnesses' for the plaintiffs say that the child did not fall but was in a standing position when the right rear wheel of the bus ran over his foot.

The plaintiffs’ evidence is conflicting as to how the accident happened but the defendants’ evidence is overwhelmingly to the effect that the child safely descended to the ground. He was left out on the graveled public highway, where there was not anything that might cause him to fall.

The evidence is certain that the step of the truck protrudes eight inches further to the right side of the truck than the right rear wheel, so that if the child fell or jumped forward or backward from the step of the truck while it was moving, it would seem that he would have fallen clear of the right rear wheel.

The court is impressed with the testimony of Willie Melancon, Jr., a young man who was riding on the front seat on the left-hand side of the driver at the time of the accident. He was a friend of the driver and was riding with him on this occasion. His testimony is to the effect that the bus stopped, the 'driver opened the door and the child descended to the ground safely and said to the. driver “all right.'’ The child was then standing clear of the bus. The driver then closed the door and started the truck. When the truck was about 100 feet from where it stopped the children in the truck hollered that the little boy had been injured and the driver again stopped the truck and Melancon ran back and picked the boy up in his arms and carried him to his father at Mrs. Lasseigne’s residence. The driver of the truck who, also went to the child’s assistance, tells substantially the same story. It thus appears that the child either stepped towards the truck after descending to the ground safely or attempted to ride on the truck when it started causing him to come into contact with the right rear wheel.

One of the defendants’ witnesses, a young negro man, age 19 years, who was standing on the levee which was on the right-hand side of the truck, testified that the boy was in a standing position at the time the truck ran over his foot. This corroborates the testimony of Melancon and the driver that the boy safely descended to the ground without falling.

Conceding plaintiffs’ contention that the judge of the lower court should have permitted plaintiffs to introduce evidence in support of the allegations of the petition showing or tending to show that the driver of the truck on previous occasions had been guilty of careless or reckless driving, in driving over railroad crossings when the trains were approaching and of injuring another school child on a previous occasion, • and further conceding that the child was a passenger in the bus and that defendants were carriers of passengers, we fail to see how plaintiffs can recover because on the occasion in question the great preponderance of the evidence is to the effect that the defendants were free from fault. The driver of the truck properly and carefully discharged the child as a passenger and if the child after descending to the ground safely, stepped towards the truck as it started again or attempted to ride on the truck after it started, his injury resulted from his own negligence and the defendants are, therefore, not liable.

The district judge in a carefully prepared opinion found that the defendants were free from fault and that the child’s injury was the result of his own carelessness. A careful reading of the record fails to show that he was in error.

For the reasons assigned the judgment appealed from is affirmed.


text:
    No. 13,267
    Orleans
    HARVEY v. SEHRT
    (March 10, 1930. Opinion and Decree.)
    Woodville & Woodville, of New Orleans, attorneys for plaintiff, appellee.
    Louis E. Jung, of New Orleans, attorney for defendant, appellant.
   HIGGINS, J.

This is a suit by a real estate agent and broker to recover the sum of $196 alleged to have been earned as commission under a written contract dated October 3, 1928, and also 25 per cent additional as attorney’s fees as provided in the contract. Defendant admits the execution of the contract, but denies liability on the following grounds, to-wit:

■ First, that the contract had been canceled in accordance with its provisions at the time the sale was effected.

Second, that the plaintiff did not render any service in securing the purchaser, as the sale was consummated solely through the efforts of the defendant, the owner of the property.

Third, that the contract contained a potestative condition, and was therefore unenforceable.

There was judgment in favor of the plaintiff as prayed for, and defendant lia3 appealed.

The record shows that a written contract was entered into between plaintiff as a real estate agent and broker, and defendant as owner of the property, on October 3, 1928, whereby the property was listed for sale, defendant agreeing to pay 4 per cent commission and 25 per cent additional as attorney’s fees for collection of the commission. The contract is for an indefinite period of time, and contains these provisions:

“I give my agent sole control of same from date, and to put up signs; and further agree not to interfere with sale of said property during the term of this contract. I further bind myself to refer all applicants for the purchase of this property to my agent. I will notify my agent in writing and give him one hundred and eighty days notice if I desire this contract discontinued. If this property is sold within one hundred and eighty days after the termination of this contract to any person whom S. A. Harvey may have submitted the property directly or indirectly, while the contract was in force, the commission or difference in price shall be paid S. A. Harvey no matter by whom said sale is made.”

The record shows that the plaintiff advertised the property for sale in the newspapers in the city of New Orleans and placed a for sale sign on it and interviewed a number of prospects but was unable to secure a purchaser. On June 21, 1929, defendant in writing notified plaintiff that the contract was canceled in accordance with the provisions requiring written notice to discontinue the contract.

On July 18, 1929, defendant obtained a purchaser for the property and sold it to him. on July 31, 1929. The purchaser was secured solely by the defendant, and the plaintiff had never interviewed him as to the property.

It is to be noted that the contract provides that the agent was given sole control of the property from date of the contract until it was canceled, and the owner agreed to refer all applicants for purchase of the property to the agent during the term of the contract and not interfere with its sale. Now when the agent received the written notice in the form of a letter dated June 21, 1929, from the defendant, the contract was not canceled and revoked by virtue of this letter, but under the express terms of the contract continued in effect for 180 days thereafter. Within this period of time the defendant sold the property and thereby put it beyond his control and power to convey the property to any one whom the plaintiff, as agent, might have secured as a purchaser to buy it. He thereby interfered with plaintiff in selling the property. Under such circumstances, was it incumbent upon the plaintiff to make further efforts to secure a purchaser when the defendant had placed himself in a position where he would be unable to convey title to any purchaser whom the plaintiff might secure? We think not.

This court has held that a real estate broker who is given an exclusive right to sell property is entitled to a commission on the sale thereof, made by the principal independently and without the aid of the broker within the time specified in the contract of employment, where the agent has carried out his part of the contract in endeavoring to sell the property. Harvey vs. Hirsch, No. 7518 Orleans App. see Louisiana Southern Digest; Freeman vs. Diboll, 11 Orl. App. 199; Kostmayer vs. Landry, 12 Orl. App. 385.

The Supreme Court, in the case of Fowler vs. Phillips, 159 La. 668, 106 So. 26, 27, held that the contract between the owner and the real estate broker was a mandate, and therefore revocable at any time by the owner as principal, and that if the real estate agent in disobedience to a written notice revoking the mandate secured a purchaser within the time that the contract was still in force and effect, the prospective purchaser could not enforce specific performance of the contract. But in speaking of the right of the real estate agent to recover his commission the court said:

“* * * we pretermit also the question whether or not the defendants, by withdrawing their property from sale without 30 days’ written notice provided for in their contract with the real estate agents, thus making it impossible for said agents to effect a sale, did not thereby at once become liable to said agents for their commission (as to which see Rightor v. Aleman, 4 Rob. 45, and Tomlinson v. Allen (152 La. 41, 92 So. 727), supra, wherein this court said: ‘If the principal should refuse to conclude the sale and convey the property, the prospective purchaser cannot complain, though it well may be that the agent, as a result, may be entitled to his commission.’ See, also, R. C. C. art. 2040 (2035), as explained by Porter, J., in Walls v. Smith, 3 La. 499).’’

While the court did not decide the issue presented here, nevertheless the dicta is strong indication of what the Supreme Court would have done under circumstances as in the present case.

We do not believe that the provision in the contract to the effect that if the property were sold within 130 days after the termination of the contract, to any person to whom the real estate agent may have submitted the property while the contract was in force and effect, the commission would be due, can relieve the defendant of liability, because the period of time referred to by that provision is the 180 days after the termination of the contract. If the sale in question had taken place during that period and -the real estate broker had not quoted the property- directly or indirectly to the purchaser, then it is clear that the real estate agent could not recover any commission. However, that clause is not applicable in view of the fact that the contract was still in legal existence.

Counsel for defendant contends that the provision in the contract that the property would be sold “for the price and sum of Sixty-Five Hundred Dollars, Cash or Homestead Plan” is a potestative condition, and therefore the contract is unenforceable. The contract sued upon is a contract between the agent and the owner of the property, and not a contract between the owner and the prospective purchaser. If the agent had produced a purchaser who was ready, willing, and able to pay cash, or had produced a purchaser who was willing to pay a portion cash and the balance subject to a loan by a designated or named homestead, such a contract would have been valid and enforceable. Morrison vs. Mioton et al., 163 La. 1065, 113 So. 456.

For the reasons assigned, we are of the opinion that the judgment of' the lower court is correct, and it is therefore affirmed.


author: HIGGINS, J. WESTE'RFIELD, J. JANVIER, J.

text:
    No. 10,930
    Orleans
    CUSIMANO v. N. O. PUB. SERVICE, INC.
    (June 10, 1929. Opinion and Decree.)
    (October 21, 1929. Rehearing Refused.)
    (March 5, 1930. Opinion and Decree of Supreme Court on Writ of Certiorari and Review.)
    Scott E. Beer, of New Orleans, attorney for plaintiff, appellee.
    Ivy G. Kittredge, of New Orleans, attorney for defendant, appellant.
   HIGGINS, J.

This is a suit in damages for personal injuries by a passenger against the street railway company. The petition alleges that ¡plaintiff, while a passenger on defendant company’s street car, attempted to descend from the street car to the street after the car had stopped, but while alighting from the car, it prematurely started, throwing plaintiff into the street, causing painful and serious injury. The defendant admitted that plaintiff had been a passenger on the car and alleged that she was injured after alighting from the car, but denied that it was at fault, and especially alleged that her injuries were caused by her failure to observe the degree of care required by the circumstances then and there existing. There was judgment below for plaintiff for $3,000, and defendant has appealed.

The evidence shows that the street car stopped at the corner in the usual or customary place to discharge passengers and that the street was paved and without any obstructions which would tend to cause a person to fall. The evidence also shows that the plaintiff sustained painful and serious injuries.

The evidence is conflicting as to what caused plaintiff to fall. Plaintiff contends that the car moved or jerked at the time she was stepping from the platform to the step for the purpose of deseehding to the street. Defendant contends that the car had stopped and did not jerk or start, but that, after plaintiff had descended to the ground and made one or two steps, she slumped down as if she had suddenly become ill or weak.

The plaintiff, Walter Towles, a bystander, colored man and witness for plaintiff, and one Henry Wagner, a passenger on the car and a witness for the defendant, all testified that plaintiff fell off the step of the car into the street. The seriousness of her injuries corroborates them. The unobstructed paved street is a further corroborative fact that plaintiff did not fall while walking away from the car. The conductor, Orto Crochet and Louis Moustier, a- passenger on the car, as witnesses for the defendant, testified that plaintiff fell after actually descending to the street and while walking away from the car. The evidence convinces us that plaintiff fell from the step óf the car while alighting therefrom and not after she had actually descended into the street.

In the case of Hopkins vs. New Orleans Ry. & Light Co., 150 La. 61, 90 So. 512, 19 A.L.R. 1362, which was a suit by a passenger for damages for personal injuries sustained while alighting from a street car, the defendant contended that plaintiff had reached the ground and fell while attempting to walk away from the car. In disposing of this contention, the court said:

“There is nothing in the record to show that the condition of the ground on which she landed was such as was calculated to cause her to fall; while the reasons and circumstances which she details would appear, if true, to lead naturally to the result which she claims.”

On page 74 of the opinion (90 So. 517), after stating the severe injuries which plaintiff had received, the court further said:

“All of this strongly indicates that it is not at all probable that her physical condition resulted or could have resulted from a mere fall while on the ground, as testified to by defendant’s witnesses.”

On the question of what caused the accident, plaintiff and the witness Walter Towles testified that plaintiff was thrown from the car by its premature starting. They are contradicted by the witnesses Louis Moustier, passenger, and Orto Crochet, conductor, and John Fross, the motorman, who all testified that when once the car stopped it did not start until after plaintiff had been given first aid treatment and removed to the hospital. The evidence is therefore conflicting as to whether or not the premature starting of the car caused plaintiff to fall.

It is contended by the defendant that plaintiff, a white woman, age 30, of average height, weighing 268 pounds¡ fell because of her tremendous weight. The defendant’s own witnesses testified that she slowly walked from inside the ear, leisurely stepped on the back platform, and, according to their version, had actually descended into the street unaided and unassisted before she fell. The conductor, although on the platform, made no effort to assist her. It is therefore evident that, while the plaintiff was a woman of unusual weight, nevertheless she was able to walk without assistance. .

Plaintiff testified that she is a saleswoman and had to make house to house canvasses to sell the product that she handled and used the street cars daily, thus showing that she was able to get around reasonably well.

Defendant contends that, as plaintiff alleged specific act of negligence, i. e., premature starting of the car, as the cause of the accident, the burden of proof was upon plaintiff to prove the said allegation. The petition contains the general allegation of negligence, and therefore the specific allegation of negligence is to be treated as surplusage.

In the case of Frazier vs. South New Orleans Light & Traction Co., No. 8608 Orl. App. (see So. Rep. Dig.), this court said:

“The plaintiff in this case does allege general negligence on the part of the defendant. Inasmuch as under our jurisprudence that allegation was sufficient to entitle plaintiff to recover, we consider all the specific allegations of negligence as mere surplusage, and not essential to be proven by plaintiff. We do not favor the grafting of technicalities or the digging of pitfalls in our practice and jurisprudence. We (prefer to adopt the rule of fair practice laid down by Judge Provosty (in Lykiardopoulo v. New Orleans & C. R. Light & Power Co., 127 La. 309, 53 So. 575, Ann. Cas. 1912A, 976), in these words:

“ Where a plaintiff cannot be expected to have any information as to the cause of an accident, whereas defendant must be assumed to be fully informed, and where the accident is of the kind which ordinarily does not occur when due care has been exercised, plaintiff need not allege nor prove the particular acts of omission or commission from which the accident resulted; but the accident itself makes out a prima facie case, casting on defendant the burden to show absence of negligence, and this rule is of peculiar applicability in cases of boiler explosions.’ ”

The record does not disclose what caused the accident, and the defendant has not proven what caused the accident and who was at fault.

Plaintiff has (proven by a preponderance of evidence that she was a passenger on the car and she was injured while alighting at her destination by falling from the step of the car into the street and thereby established a prima facie case. The burden of going forward and proving that it was without fault and who and what caused the injury was on the defendant.

In the case of Le Blanc vs. Sweet, 107 La. 355, 31 So. 766, 90 Am. St. Rep. 303, Quoted with approval in Hopkins vs. New Orleans Ry. & Light Co., the Supreme Court said:

“The carrier ‘is bound to exercise the strictest diligence, in receiving a passenger, conveying him to his destination, and setting him down safely, that the means of conveyance employed and the circumstances of the case will permit. There is a broad difference, it may be remarked, between the obligation of a carrier to a passenger and his obligation to a third person complaining of a tort; the burden of proof in the latter case, save where otherwise provided by statute, resting upon the complainant to establish both the injury and the negligence which caused it; whereas, * * * it is sufficient * * * for the passenger suing on a contract for’ safe passage ‘to establish the contract and to show that he has not been safely set down at his destination,’ to throw the burden of explanation on the carrier. It is then for the carrier, and not the passenger, to show what negligence and whose prevented the fulfillment of the contractual obligation of the carrier. Le Blanc v. Daniel Sweet et al., 107 La. 355, 31 So. 766, 90 Am. St. Rep. 303; Am. & En. Enc. of Law (2d Ed.) vol. 5, p. 558; Lehman v. R. Co., 37 La. Ann. 707; Turner v. V. S. & P. R. Co., 37 La. Ann. 648, 55 Am. Rep. 514; Summers v. Crescent C. R. Co., 34 La. Ann. 145, 44 Am. Rep. 419; Peniston v. R. Co., 34 La. Ann. 777, 44 Am. Rep. 444; Julien v. The Wode Hampton, 27 La. Ann. 377; Patton v. Pickles, 50 La. Ann. 857, 24 So. 290; Moses v. R. Co., 39 La. Ann. 649, 2 So. 567, 4 Am. St. Rep. 231.”

This decision was cited with approval by this court in Rizzo vs. New Orleans Ry. & Light Co., 7 La. App. 686.

Counsel for defendant contends that the district court has misinterpreted the following portion of the above-cited authority:

“It is then for the carrier, and not the passenger, to show what negligence and whose prevented the„ fulfillment of the contractual obligation of the carrier.”

It is contended by counsel for defendant that this rule imposes liability without fault. We do not think this contention is tenable because the presumption of fault merely remains the truth of the case until it is refuted by the defendant’s evidence. The theory and policy of the law in putting the burden of proof upon the defendant carrier is predicated on the fact that the carrier is in a better position to know the facts and to ascertain and prove the cause of the accident than the passenger. To impose upon the defendant the burden of explaining the accident does not seem to be unreasonable.

Counsel for the defendant company, in an elaborate and carefuly prepared brief, has undertaken to show that the Supreme Court did not intend to go that far. It is contended that the presumption of -negligence on the part of the company only arises when the circumstances attending the injury are so unusual or of such a nature that it could not well have happened without the company being negligent; then, and only then, is the burden of going forward and producing evidence in order to escape liability, placed upon the company to show that its negligence did not cause the accident.

We do not so construe the language of the Sweet and Hopkins cases, supra. Until the Supreme Court overrules or modifies the rule cited in those cases, this court must follow it, as we did in the Rizzo vs. New Orleans Ry. & Light Co.

As to the quantum of damages, the record shows that plaintiff was injured on August 28, 1925; that she sustained a split lip, necessitating two stitches; lost four of her teeth; that her nose was bruised and lacerated; that the whole left side of her face was Sruised; that she also suffered contusions and bruises on her left side, knees and elbows, shoulders and head. The evidence shows that she had a small ventral hernia before the accident, which was very much enlarged as a result of the fall; that she was taken to the Charity Hospital and remained there 21 days; that she was under the care of her physician from September 20, 1925, to January 12 or 15, 1926, when she was taken to the Touro Infirmary, where she was operated on January 16th, on account of said enlarged hernia, and discharged on February 6, 1926.

The evidence shows that plaintiff was earning $60 a month and lost ten months’ time. She owed a doctor bill of $150, paid a hospital bill of $63, drug bill of $29.85, and ambulance charge of $6, making a total loss or damage amounting to $848.85.

The judge of the district court has allowed $3,000 to cover all of the damages and personal injuries. Under the circumstances we consider the amount not excessive, and therefore the judgment appealed from must be affirmed, at the cost of appellant.

WESTE'RFIELD, J.

(concurring). As I see it, this case cannot be distinguished in principle from that of Le Blanc vs. Sweet et al., 107 La. 355, 31 So. 766, 90 Am. St. Rep. 303, and Hopkins vs. New Orleans Ry. & Light Co., 150 La. 61, 90 So. 512, 19 A.L.R. 1362. Accepting the judicial utterances of our highest court in these two cases as ex cathedra, and not obiter dicta, and as thus establishing the jurisprudence of this state, this court in the case of Rizzo vs. New Orleans Ry. & Light Co., 7 La. App. 686, applied the principle of the cited cases in the determination of the issues presented there. A writ was applied for in the Rizzo case and refused. Without expressing an opinion as to the propriety of the jurisprudence established by these three cases, but without apologizing itherefor, I- deem it my duty as a member of an inferior tribunal to follow it.

In the case at bar the facts are strikingly similar with those considered by the Supreme Court in the Hopkins case. The defenses made here are almost identical with the defenses made there. The argument of counsel on behalf of this defendant is almost literally the same. It is impossible to recognize in this defense anything but a criticism of the doctrine of this jurisprudence. In fact, these cases are never cited in argument in this court without precipitating a verbal barrage in which the word “insurer,” used with crushing irony, issues like shrapnel from the exploding bombs. My position is like that of the participants in a certain renowned military exploit, who, though “stormed at with shot and shell,” yet “boldly they rode and well,” because, having heard the ■ voice of authority, it was “Theirs not to make reply, theirs not to reason why.”

So far as I know, the principle of the cases alluded to has not been qualified, abated, or overruled by the only authority capable of doing so. An intermediate court should recognize that, “Where Mac Gregor sits is the head of the table.”

For these reasons, I concur in the majority opinion.

JANVIER, J.

(dissenting). My inability to concur in the opinion of my associates results from my unwillingness to accept as correct the interpretation placed by them upon the decision of the Supreme Court of Louisiana in the matter entitled Hopkins vs. New Orleans Ry. & Light Co., 150 La. 61, 90 So. 512, 19 A.L.R. 1362.

In the petition in the present case the only allegation of negligence was that the car had moved as plaintiff was alighting. The trial judge found against plaintiff on this point. In his opinion given on application for a new trial he said:

“On the whole, I find it to be a. fact that the car did not move as the plaintiff was alighting from it.

“Thus there is failure to prove the only allegation of negligence which is made by the petition.”

I have, carefully read the record and am quite convinced of the correctness of this finding of fact. I have no doubt whatever that plaintiff fell either while alighting or just after alighting, and solely and entirely as a result of her own awkwardness or carelessness or possible weakness resulting from illness, and that the car was not started too soon.

But, says the trial judge, although defendant has proven conclusively that the charge of negligence made by plaintiff is not sustained by the evidence, and although the defendant has proven conclusively that it was not negligent in any particular, it has failed to show what negligence and whose negligence caused the injury to plaintiff, and therefore defendant. is liable because the Supreme Court of this state, in the case of Hopkins vs. New Orleans Ry. & Light Co., supra, has held that, where a passenger is injured, the defendant, in order to avoid liability, must not only disprove negligence on its part, but must go much further and prove who and what was responsible. I cannot agree that such is the law of this state, nor that our Supreme Court intended in the Hopkins case to establish any such principle.

I can well understand that, where a passenger is injured under mysterious or unusual circumstances, the burden is on the carrier to explain just what happened; but I do not believe that the proper interpretation of the decision in the Hopkins case requires us to hold that no matter what the circumstances, no matter how open and apparent the happening may be, and no matter how, free from negligence the carrier may prove itself to be, the burden is on it to establish every detail with reference to what caused the injury.

I concede that it is logical to hold that, if a train is derailed and a passenger is injured, or if there is a collision and the passenger is injured, it is the duty of the carrier to explain away its own negligence and to show the true cause, because derailments and collisions are caused by circumstances over which the passenger has no control and of which he has no knowledge; but here we have an affirmative allegation that the cause of the accident was the sudden starting of the car and we have the finding of the trial court, in which I thoroughly concur, that the car did not start. Must the carrier go further and show that the plaintiff was injured because of a bilious attack or because one of her ankle's was weak; if so, then there is a burden placed on the carrier which, in my judgment, is most unreasonable, and which in the majority of instances it cannot possibly sustain.

In the Hopkins case the court found that the facts were .entirely with the plaintiff. Here the court finds that the facts are entirely with the defendant.

If the majority opinion in this case is correct, what becomes of the doctrine announced in Adkins vs. New Orleans Ry. & Light Co., 2 La. App. 130, which involved injuries to a passenger, and in the syllabus of which this court said:

“In a tort action, plaintiff must prove with reasonable certainty a specific act of negligence charged in his petition. * * *”

If the majority opinion here is correct and the decision in the Hopkins case is to be interpreted as my associates propose, how can we explain the decision of the Supreme Court in Veith vs. New Orleans Ry. & Light Co., 152 La. 47, 92 So. 730, in which it was claimed that the injuries resulted from the sudden starting of the car and in which the. court found that the car was not suddenly started? The passenger was very severely injured. No real explanation of the' injury was given, but the court felt that the defendant had satisfactorily disproved its own negligence.

I am convinced that the finding in the Hopkins case did not require the statement quoted from Le Blanc vs. Sweet, 107 La. 355, 31 So. 766, 90 Am. St. Rep. 303:

“It is then for the carrier, and not the passenger, to show what negligence and whose prevented the fulfillment of the contractual obligations of the carrier.”

A reading of many decisions of this court and of .our Supreme Court convinces me that such is not the law of this state and that, where the accident is open and apparent, and the passenger has every opporr tunity to see what is going on, and having seen, makes specific allegations of negligence, and the carrier disproves those allegations, the passenger cannot recover merely because the carrier has not gone further and proven what negligence and whose is responsible.

My associates cite Lykiardopoulo vs. New Orleans & C. R. Light & Power Co., 127 La. 309, 53 So. 575, Ann. Cas. 1912A, 976. In the opinion rendered by the Supreme Court in that case appears the following:

“In cases where the plaintiff cannot be expected to have any information as to the causes of the accident, whereas the defendant, on the contrary, must be assumed to be fully informed on the subject, and where the accident is of the kind which ordinarily do not occur when due care has been exercised, the rule of evidence is that the accident speaks for itself — res ipsa loquitur — that is to say, that a presumption of negligence arises from the fact itself of the accident. In such cases, the plaintiff not only need not allege the particular acts of omission or commission from which the accident has resulted, but need not even prove them. The accident itself makes out a prima facie case, and the burden is on defendant to show absence of negligence.”

That case sems to me to be most favorable to defendant’s contention and to support two propositions, first, that it is only in those cases in which the circumstances are mysterious or are peculiarly within the knowledge of defendant that there is a presumption of negligence and a shifting of the burden of proof, and, second, that even in such cases all that defendant need do to rebut this presumption and avoid liability is disprove its own negligence. It should not be required to go further and prove what and who caused ' the accident.

A carrier is not responsible to a passenger as an insurer. In certain cases his responsibility results not because he is an insurer, but because there is a prima facie presumption from the injury itself that the carrier is negligent. If he disproves this negligence, that is all that should be required of him. To require him to go further and prove the cause, when he has already proven that the cause is not his negligence, is, in my judgment, to require more than is justified by the law and by the jurisprudence of this state.

For these reasons I respectfully dissent.


author: WESTERFIELD, J.

text:
    No. 11,918
    Orleans
    SUCCESSION OF JONES
    (March 10, 1930. Opinion and Decree.)

      W. J. Hopper and Henry Huckabee, of New Orleans, attorneys for plaintiff, appellee.
    Chas. J. Mundy, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

Louise Williams, the widow of William Jones, deceased, opened his succession in the civil district court for the parish of Orleans and by judgment rendered November 15, 1928, caused herself to be put in possession of his entire estate, including a certain policy of insurance with the Grand United Order of Odd Fellows in the sum of $500. Subsequently, on November 30, 1928, Sadie Smith, alleging herself to be the beneficiary named in the insurance policy issued by the Grand United Order of Odd Fellows, of which Louise Williams had been put in possession, brought an action of nullity in which she asked that the judgment of October 17, 1928, in so far as it placed Louise Williams in possession of the policy of insurance, be decreed null and that she be recognized as entitled to the avails of that policy. The district court rendered judgment in favor of Susie Smith, as prayed for, and defendant has appealed.

The first question for our consideration involves the standing of Sadie Smith and her interest in the policy, because, if she can be said to be without interest to attack the judgment, its validity will not be inquired into. Sadie Smith is described in the policy as the godchild of the assured, William Jones. The legal right of Jones to designate his godchild is assailed. The charter and constitution of the Odd Fellows was admitted in evidence over the objection of counsel for Sadie Smith. His objection was based upon the ground that the named beneficiary had paid all the premiums on the policy and was entitled to receive its face value, no matter what the charter provided. Succession of Johnson, 115 La. 20, 38 So. 880, was cited as authority for this proposition. The case referred to is not in point for the reason that in that case there was a stipulation in the policy itself to the effect that the beneficiary should pay the premiums, and the court viewed the matter as a contract which the parties had made for themselves. Here there is no such stipulation, if, indeed, the charter could legally so provide. The constitution and charter were properly admitted. The constitution, in its preamble, declares the purpose of establishing a bureau of endowment to be:

“To Establish a Bureau of Endowment for the Benefit of Our Widows and Orphans of the Grand United Order of Odd Fellows Under the Jurisdiction of District Grand Lodge No. 21, Incorporated, of Louisiana.”

The charter contains the following:

“The objects and purposes for which this corporation is formed, are to give aid and assistance to its members in case of sickness and provide for their burial in case of death; also to provide relief for the widows and orphans of its deceased members, by endowment or otherwise, in accordance with the usages and discipline of the Grand United Order of Odd Fellows.”

Article 1. Section 1. “Upon satisfactory proof of the death of an Odd Fellow in good standing, who has complied with all'requirements of the Order and the provisions of these laws, a sum of money named in his certificate shall be paid to the heirs, legal representative or payee named in accordance with the laws as may hereafter be enacted by the District Grand Lodge, provided that the sum to be paid under said certificate is granted by and subject to the provisions hereinafter set forth.”

In 1929 the following amendment to the charter was adopted:

Article 2. “The objects and purposes for which this corporation is formed, are to give aid and assistance to its members in case of sickness and to provide for their burial in case of death; also to provide relief for the widows and orphans of its deceased members by endowment or otherwise, in accordance with the usages and discipline of the Grand United Order of Odd Fellows; provided, that the payment of endowment shall be confined to the following classes, wife, children, father, mother, a brother, sister and relative by blood to the fourth degree, or to a person or persons dependent upon the member.”

It will be observed that, in establishing the endowment bureau, the order emphasizes its purpose to be for the benefit of the widows and orphans of its members, and it is argued that, since Sadie Smith, was neither the one nor the other, but the godchild of a deceased member, the attempt to make her the beneficiary of the insurance must fail, because no provision for such beneficiary has been made in the organic law of the Odd Fellows; that the policy in favor of Sadie Smith was “ultra vires,” and that, therefore, she could acquire no rights under it.

In the case of Richardson vs. District Grand Lodge No. 21, Grand United Order of Odd Fellows, 126 So. —, of this court, decided November 19, 1917, a case involving the same fraternal order, and where the facts were almost identical, ' it was held that “the insertion of the name of Mary Smith, a sister of the deceased member, as beneficiary in the policy issued to him by the Bureau of. Endowment, was unauthorized by the Charter, and therefore ultra vires and conferred no rights upon Mary Smith.” The following authorities were cited in that opinion, which for convenience, g,re reproduced here:

“Where the classes of persons to whom benefits may be paid are prescribed by statute or by the Society’s charter of incorporation, neither the Society nor1 a member, nor the two combined, can divert the fund from the classes prescribed; the Society has not power to issue a certificate payable to a person belonging to one of those classes, and the designation of a person thus ineligible as beneficiary is nugatory.”

“While the society may, through appropriate legislation, restrict the classes of persons to whom by statute or charter, benefits may be paid, it cannot enlarge them. Palmer v. Welch, 132 Ill. 141, 23 N. E. 412, 414; Grand Lodge A. O. U. W. v. Gandy, 63 N. J. Eq. 692, 53 A. 142; Di Messiah v. Gein, 10 Misc. Rep. 30, 30 N. Y. S. 824; Union Fraternal League v. Walton, 109 Ga. 9, 34 S. E. 317, 46 L. R. A. 424, 77 Am. St. Rep. 350; Wallace v. Madden, 168 Ill. 356, 48 N. E. 181; 28 Century Dig. 1933; Kentucky Masonic Mutual Life Ins. Co. v. Miller, 13 Bush (Ky.) 489; Supreme Council American Legion of Honor v. Perry, 140 Mass. 580, 5 N. E. 634; National Mutual Aid Ass’n v. Gonser, 43 Ohio St. 1, 1 N. E. 11; Masonic Ben. Ass’n v. Bunch, 109 Mo. 578, 19 S. W. 25; Supreme Lodge Knights of Honor v. Nairn, 60 Mich. 44, 26 N. W. 826; Daniels v. Pratt, 143 Mass. 216, 10 N. E. 166; Duvall v. Goodson, 79 Ky. 224; State v. Central Ohio Mutual Relief Ass’n, 29 Ohio St. 399; Niblack on Benefit Societies (2d Ed.) p. 41, 311; 2 Fletcher Cyc. Corporations, p. 1824 C 872; Cerny v. Jednota Cesky Dam, 146 Ill. App. 518; Norwegian Old Peoples’ Home Society v. Wilson, 176 Ill. 94, 52 N. E. 41; People ex rel. Peabody v. Chicago Gas Trust Co., 130 Ill. 268, 22 N. E. 798, 8 L. R. A. 497, 17 Am. St. Rep. 319; National Home Building & Loan Ass’n v. Home Savings Bank, 181 Ill. 35, 54 N. E. 619, 64 L. R. A. 399, 72 Am. St. Rep. 245; Best Brewing Co. v. Klassen, 185 Ill. 37, 57 N. E. 20, 50 L. R. A. 765, 76 Am. St. Rep. 26; Steele v. Fraternal Tribunes, 215 Ill. 190, 74 N. E. 121, 106 Am. St. Rep. 160; Caudell v. Woodward, 15 Ky. Law Rep. 63; 6 Am. Dig. 2106.” 29 Cyc. p. 108 — Mutual Benefit Insurance.

“The application of the funds of a beneficial society is controlled by its charter of incorporation or its articles of association and its constitution and by-laws, as well as by statute, and the association, its subordinate branches, or the members thereof, have no power to divert the funds from the purposes to which, under the laws of the order, they have been dedicated.” 7 C. J. p. 1086, sec. 40 — Beneficial Associations.

But it is said that Sadie Smith may recover under the amendment to the charter adopted in 1929, which provides “that the payment of endowment shall be confined to the following classes, wife, children, father, mother, brother, sister and relative by blood to the fourth degree, or to a person or persons dependent upon the member.” Sadie Smith is said to be a person dependent upon the deceased Jones, and therefore entitled to recover under this amendment. In view of the testimony in the record ánd the argument in this court to the effect that Sadie Smith paid all the premiums on this policy for fifteen years .prior to Jones’ death, and assisted in supporting him during that period when he was totally blind, it is difficult to understand how, under these circumstances, which make out a complete dependency on the 'part of Jones,' it can be argued that the reverse'is true and Sadie Smith the dependent. In the pleadings, Sadie Smith, referred to in the policy as -the godchild, is declared to be the illegitimate child- of Jones, who, for many years prior to his death, had been living apart from his wife, Louise Williaihs. Whether Sadie Smith be illegitimate or not is unimportant. 'She is certainly not dependent in any reasonable sense of the word.' The fact that she has been of great service to the deceased, and if, as she claims, she has paid the premiums for so many years, she may be a creditor of his succession, but whatever financial assistance she may have rendered Jones in his lifetime cannot support her claim as his beneficiary under the policy. Act No. 115 of 1906, as amended by Act No. 256 of 1912, which extends the list of beneficiaries which may be named by members of fraternal orders, has no application here, because the act makes no mention of godchildren as within the extension. As was said in the Richardsen case, supra:

“The object of the limitation of the ben•eficiaries by the above act was obviously to prevent corporations from, assuming the name and outward form of a mutual beneefit society with the privileges and exemptions accorded to such organizations by law, while in reality they were carrying on An ordinary business of insurance relieved from its burdens. It is evident that a person not named in the above section could acquire no rights as beneficiary in a death certificate. This is a state law governing all benefit corporations; in the present case the charter of the defendant corporation is the law which it has made for itself. One is as binding as the other. If it is the desire of the defendant Lodge to extend the scope of its possible beneficiaries to more persons than the “Widow and Orphans” designated in its charter, and to ■embrace some or all of the persons authorized by section 6, it must amend its charter in the manner provided by law. But until it has done so, the “Widow and Orphans” are the only possible legal and contractual beneficiaries.”

See, also, Carolina Chance vs. Grand Lodge, Knights of Pythias, etc., (125 So. 894).

It follows, from what has been said, that Sadie Smith, the plaintiff in the action of nullity, is without interest to attack the judgment complained of, since the avails of the insurance "policy which she claims cannot be paid to her under any circumstances.

For the reasons assigned, the judgment appealed from is reversed and it is now or^ dered that there be judgment in favor of the defendant, Louise Williams, widow of William Jones, dismissing the suit of said Sadie Smith at her cost.


text:
    No. 13,224
    Orleans
    FRANK DE LATOUR, INC., v. BOSCARENO
    (March 10, 1930. Opinion and Decree.)
    H. W. Kaiser and J. H. Hammel, Jr., of New Orleans, attorneys for plaintiff, appellant.
    Stanley McDermott, of New Orleans, attorney for defendant, appellee.
   HIGGINS, J.

This is a suit on an open account for goods and merchandise alleged to have been sold and delivered by plaintiff to the defendant. Defendant filed a general denial.

There was judgment in favor of defendant dismissing the suit, and plaintiff has appealed.

The record' shows that when the defendant was placed on the stand for the purpose of cross-examination, he admitted the amount sued for was correct; that the merchandise was sold azid delivered to him; and that the price was fair and reasonable. When defendant sought to introduce evidence tending to show payment of.the account, plaintiff objected on the ground that the answer was a general denial and a plea of payment, being a special defense, had to be specially pleaded in order that evidence could be introduced on such an issue. The trial court overruled the objection and permitted the evidence to be introduced. We believe that this was error. A plea of payment is a special defense and must be specially pleaded in order that evideuce tending to prove payment may be introduced. Times-Picayune Publishing Company vs. Jacobs, 13 La. App. 1, 126 So. 741, this day decided, and Weil v. Weil, 13 La. App. 8, 126 So. 742, this day decided.

For the reasons assigned the judgment appealed from is reversed, and it is now ordered, adjudged, and decreed that there be judgment in favor of Frank De Latour, Inc., plaintiff, and against Anthony Boscareno, defendant, in the full sum of $153.63, together with • legal interest from judicial demand until paid. Defendant and appellee to pay the costs of both courts.


text:
    No. 11,904
    Orleans
    LIBERTY LUMBER YARDS, INC., v. TABB
    (March 10, 1930. Opinion and Decree.)
    Benjamin Y. Wolf, of New Orleans, attorney for plaintiff, appellee.
    Clarence E. Favret, of New Orleans, attorney for defendant, appellant.
   HIGGINS, J.

Plaintiff entered suit against the defendant for the sum of $599.-79, alleged to represent $389.29 for building material sold and delivered to the defendant to be used in the construction of an addition .to his home and $210.50 cash advanced to one William Green, contractor, for labor performed in the construction of the improvement. Before the trial of the case, the claim for material was settled. The case was then tried on the merits with reference to the cash item only. There was judgment in favor of plaintiff for $210.50 with recognition and maintenance of plaintiff’s lien and privilege on the defendant’s property where the improvements were located. Defendant has appealed.

In his answer, defendant denied the correctness of the statement for the material furnished and also denied authorizing the plaintiff to advance the sum of $210.50 to the contractor, Green, for the payment of labor performed in constructing the improvements.

A careful reading of the record convinces us that defendant authorized plaintiff to advance this money to Green for the purpose of paying for the labor on the building, and that the work was performed and the benefits of the work, represented by the improvements, are in the possession of the defendant and being enjoyed by him.

Whether Green performed the work properly and utilized $210.50 for the payment of the laborers’ claims is a matter between the defendant and Green and not a defense in the present case. It was not the duty of the plaintiff to see that Green paid the laborers, and, if he failed to do so, it is a matter of accounting between the defendant and Green.

The lower court in its judgment recognized plaintiff’s claim for a lien and privilege on the property. The record shows that Green paid some, if not all, of the money for labor, but, assuming that all of the money was paid for labor performed on the building, nevertheless plaintiff would not have a lien and privilege on the improvements and property because the advance of the money was simply a loan by plaintiff to defendant. Plaintiff did not take any subrogation of the laborers’ claims, and is therefore not entitled to any lien on the property.

In the case of Central Lumber Co., Inc., vs. Schroeder, 164 La. 759, 114 So. 644, 646, the court said:

“The judgment will have to be amended in two respects. One of these is that it includes items amounting to $465, consisting of money advanced by plaintiff to defendant, to enable her to pay labor, for which the judgment awards a privilege as furnish-er of material. While plaintiff is entitled to judgment against defendant for that amount, yet it is not entitled to a privilege as furnisher of material for that sum. The statute grants that privilege to those furnishing material, machinery, or fixtures for the construction of buildings and other works, and not to those advancing money for such purposes.”

It is therefore ordered, adjudged, and decreed that the judgment of ■ the district court be amended by striking out of the decree that portion which recognizes and maintains the lien and privilege of plaintiff on the property of defendant, and, as thus amended, affirmed; appellee, to pay the costs of appeal.


author: JANVIER, J.

text:
    No. 11,743
    Orleans
    SCOTT v. CHECKER CAB CO., INC.
    (February 17, 1930. Opinion and Decree.)
    (March 10, 1930. Rehearing Refused.)

      Johnston Armstrong, of New Orleans, attorney for plaintiff, appellee.
    P. L. Fourchy, of New Orleans, attorney for defendant, appellant.
   JANVIER, J.

Plaintiff, a colored man, while standing on the sidewalk of Rampart street in this city, was struck by a taxicab of defendant company which had skidded from its position near the center of the street across the sidewalk and into the show windows of a nearby store.

The injuries plaintiff received were' painful and temporarily severe, but, except for a scar on the face, were not permanent. Manifestly,, plaintiff was in no way to blame, since he was standing on the sidewalk near the show cases, did not see the taxicab coming, and did nothing which in any way contributed to the unfortunate result.

In defense, counsel for the taxicab company contends that the evidence shows that the street was slippery as the result of the dropping of clay and mud from trucks which were removing debris from certain excavation work going on nearby, and that a pedestrian stepped suddenly in front of the taxicab, which was being operated carefully and at a moderate speed, making a sudden application of the brakes necessary, with the disastrous result above set forth.

We agree with the district judge that it is difficult to believe that the speed of the taxicab was moderate, in view of the fact that it skidded from its position some ten or twelve feet from the sidewalk, across that intervening space, mounted the curb, which was eight or ten inches high, continued across a rather broad sidewalk, and, after traversing that distance and overcoming the obstacle of the curb, still retained sufficient momentum to practically demolish two show cases built of marble, wood and glass. The police officer who investigated the accident described the damage to the show cases as- follows:

“A. Well, I say the two show cases completely demolished, about five or six feet 'long from the front to the rear, knocked out completely, even to the posts that held the doors; two show cases demolished.

“Q. They started at the property line and the entrance to the store was set in?

“A. About five or six feet; not exactly.

“Q. Were both show cases broken?

“A. Both of them.

“Q. Did you see any damage that had been done to the door?

“A. It was knocked off; left a clear opening there.”

But, if the speed was moderate, it is very evident that the chauffeur was not driving sufficiently cautiously, because, if the street was dangerously slippery, he should have taken unusual precaution, and should have operated his cab with such care as the unusual condition required. The mere happening of such an accident is very strong proof of negligence, to overcome which would require more convincing testimony than was given here. The doctrine of “res ipsa loquitur” applies to a situation of this, kind.

We have no hesitation in finding that defendant is liable.

As to the quantum, the evidence shows that for a period estimated at from four to twelve months plaintiff was prevented from working, and that he will retain a scar on his face for the balance of his life. We did not view the disfigurement as did the trial judge, who, we feel, was far better able than are we to determine the amount to which plaintiff is entitled. The award of $1,000 is not manifestly erroneous.

The judgment appealed from is affirmed.


text:
    No. 13,147
    Orleans
    JOSEPH v. HIGGINS LUMBER CO.
    (February 17, 1930. Opinion and Decree.)
    E. S. Spiro, of New Orleans, attorney for plaintiff, appellee.
    Lemle, Moreno & Lemle, of New Orleans, attorneys for defendant, appellant.
   JANVIER, J.

Adam Joseph, a colored laborer employed by Higgins Lumber Company, was injured on January 20, 1928, in the course of his employment. The injuries were severe, consisting of a compound comminuted fracture of the lower third of the tibia of the left leg.

First-aid treatment was given at the Charity Hospital, and later, on the same day, Joseph was removed to the FlintGoodridge Hospital, where he remained, under the care of defendant’s surgeons, until November 26, 1928. On that day he was told that he had completely recovered, from his injuries, hut, as he insisted that he still suffered severely, he was instructed to report back to the surgeons from time to time, until February 13, 1929, on which day he was discharged as cured.

On November 26, 1928, the surgeons were of the opinion that he was cured, but, as he complained 'of pain, they advised that he allow them to keep him under observation, which they did until February 13, 1929, on which day they, having come to the conclusion that Joseph was malingering, refused further treatment.

Thereupon Joseph consulted an attorney, Mr. Sneed, who sent him to Dr. Gessner for examination. , Since the condition of the plaintiff at the time he was discharged by defendant’s surgeons and at the present time is the sole question involved, it may be well to note at this point that Dr. Gessner, in testifying as to his condition at the time of the examination by him, said:

“ * * * I found complete union of the fragments with no motion in either direction, either anterior-posteriorly or laterally. The motion of his foot was somewhat limited. My opinion at the time was that he ought to lay aside the brace and crutch and walk with a stick. My opinion was that if he laid aside his braces and crutch and walked with a stick, in a couple weeks his leg would be entirely satisfactory, would be in good condition.”

Mr. Sneed, upon receiving this report, went no further with the matter, and thereupon Joseph employed his present attorney.

Of course, the question of the physical condition of the plaintiff at the time he was discharged by defendant’s surgeons, and at the present time, or, rather, at the time of the trial in the court below, is one which we can determine only by reference to the testimony of the surgeons and of the physician who examined the injured man, and who testified in the court below. There is no doubt whatever that, with the sole exception of one physician, who was placed on the stand by plaintiff, and with the further exception of Dr. Denegre Martin, an eminent surgeon who was appointed by the district judge to make an ex parte examination, and to whose testimony we will later refer, the doctors are of the opinion that .he was completely cured when discharged on February 13, 1929, except that, as a result of long disuse, the leg was so stiff that plaintiff would suffer pain for some two or three weeks after returning to work.

The physician who testified for plaintiff admitted that he was not a surgeon, and had not even caused X-ray photographs of the leg to be taken.

Dr. Denegre Martin, the surgeon to whom we have referred, in his written report states:

“These cases are often cured by pressure, such as allowing the patient to walk on the affected limb. In this case, however, I believe other means will have to be resorted to, — either drilling or grafting, — neither of which could have been undertaken much earlier. If, however, nothing were done, the man could, with a brace, resume his former occupation with little or no discomfort, and possibly get a delayed union. I believe this a little uncertain after this lapse of time and especially as the separation of the fragments show the intervention of soft tissue.

“The pain of which he now complains ) about the ankle, is, in my opinion, due to disuse and will disappear as motion is restored. In his present condition, he may or may not, in his opinion, be able to resume .work, sufficient cause being present to substantiate his complaints. If an operation is resorted to, and I would recommend ,it, it would mean continued disability of from three to six months. If operation is refused he should be discharged as cured with slight disability.”

Dr. Martin’s report we consider as, in the main, corroborative of the testimony of the surgeons, and we are well satisfied that Joseph, if he was not completely cured when discharged, was suffering under only slight disability.

The evidence indicates that the trial court was correct in fixing $9.10 as 65 per cent of the average weekly wage. If Joseph had lost the entire leg, he would have been entitled under subparagraph 8 of paragraph (d), subsection 1, of section 8 of Act 85 of 1926, to 65 per cent of his weekly wages for 175 weeks. This subparagraph reads as follows:

“For the loss of a leg, sixty-five per centum of wages during one hundred seventy-five weeks.”

Under subparagraph 14 of paragraph (d) of the same section, “a permanent total loss of the use of a member is equivalent to the amputation of the member.” It further appears, in subparagraph 15 of paragraph (d) of the same section, that “in all eases involving a permanent partial loss of the use of function of the member mentioned hereinabove, compensation shall bear such proportion to the amounts named herein for the total loss of such member as the disability to, such member bears to the total loss of the member. * * * ”

These subparagraphs have been interpreted by the Supreme Court of Louisiana in James vs. Spence & Goldstein, 161 La. 1108, 109 So. 917, and it is now -certain that, where a member, such as a leg, sustains only a partial loss of its functions, the injured party is entitled to compensation fixed by determining what proportion of the loss of function of that member .has been sustained. In Wolf vs. Louisiana Milk Products Co., 8 La. App. 657, the Court of Appeal for the First Circuit, on rehearing, said:

“Defendant contends that as plaintiff’s injury involves the loss of the use of but one member, his leg, that he can not under the language quoted from sub-section (d), be allowed a longer compensation than is provided for, had his leg been amputated, and that the allowance of compensation for the period provided for under subsection (b), is not in harmony with the decision of the Supreme Court in the case above cited. We find that a lack of harmony does exist between the decisions of this Court and that of the Supreme Court, as to the period of compensation to which the plaintiff is entitled and we, therefore, place our decision in line with that of the Supreme Court. The . compensation to which plaintiff is entitled under the law is that fixed by Act 216 of 1924.

“Our former opinion and decree, and the judgment appealed from, are therefore amended and corrected, and plaintiff’s compensation is now fixed at 65 per cent of his weekly wage of $18.74 for a period of two hundred weeks instead of as originally ordered. The period of payment to commence July 10, 1926, and be credited with twenty-six weeks following said time of commence-: ment, and as thus amended and corrected 'our original opinion and decree herein is reinstated and made the final judgment of this Court.”

Since Dr. Martin has stated that the disability of the leg is slight, no injustice will be done to plaintiff if we assume that that disability does not exceed 50 per cent. Joseph is therefore entitled to weekly payments of 50 per cent of $9.10 for 175 we<\ks, less, of course, the amount which he has already been paid by defendant. It appears that the hospital and surgeons’ bills, at least to the maximum provided in the act, have been paid by defendant, so that there is no further liability on this score: We feel that the costs in both courts should be paid by defendant.

The district court rendered judgment for plaintiff for 65 per cent of his wages, or $9.10 per week for 400 weeks. We think it was in error.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be amended so as to read as follows:

It is ordered, adjudged, and decreed that plaintiff do have and recover judgment against defendant in the sum of $4.55 per week for 175 weeks, commencing on January 20, 1928, with 5 per cent interest on all overdue payments, subject to credit of amount already paid; defendant to pay all costs of both courts.


text:
    No. 13,324
    Orleans
    LANDRY v. CHECKER CAB CO., INC.
    (February 11, 1930. Opinion and Decree.)
    P. L. Fourchy, of New Orleans, attorney for relator.
    Elias Bowsky, of New Orleans, attorney for respondent judge.
   WESTERFIELD, J.

This is a proceeding by mandamus s.eeking to compel. Honorable Wm. H. Byrnes, Jr., judge of the civil district court for .the parish of Orleans, to grant to relator a suspensive appeal from a judgment rendered by him December 3rd, 1929, and signed December 9th, 1929.

The respondent judge justifies his refusal to sign an order of suspensive appeal on the ground that the relator has no appeal-able interest in the judgment, from which he seeks to appeal.

- The plaintiffs, Mr. and Mrs. A. H. Landry, obtained a judgment against the Checker Cab Company in the civil district court for the parish of Orleans, in the sum of $1,890, which judgment, on appeal to this court, was • affirmed. In’execution of the judgment so obtained a writ of fi. fa. was issued and certain property belonging to the Checker Cab Company was seized, and sold, and the- sum of $1,520 realized as the proceeds thereof was placed in the registry of the civil district court.

The president of the Checker Cab Company, Mr. Jos. M. Bistes, claiming to have a superior right to the proceeds which had been thus deposited in the civil district court, took a rule for the purpose of having his alleged prior right recognized. Bistes was unsuccessful, the rule which he took being dismissed. Prom this judgment he prosecuted a suspensive appeal.

Thereafter plaintiffs took a rule against the Checker Cab Company to show cause why the sum of $178.75 expended by them in costs, in connection with the execution of the writ of fi. fa., should not be duly taxed as costs. To this rule several parties were made defendants, including Jos. M. Bistes-. The rule was made absolute, and Bistes alone sought to obtain an order for a suspensive appeal. It is this order which the respondent judge declined to grant.

It seems to us that our brother below was in error, as Bistes would appear to be interested in the disbursement of the deposit in the hands of the court. He was before the court claiming the entire fund, and, though he had not succeeded in impressing the court with the validity of his claim, he had not acquiesced in its judgment, but, on the contrary, had persisted in his contention by taking a suspensive appeal.

Assuming, arguendo, that the costs expended by plaintiffs in the execution of theirfi. fa., or some of them, were improperly allowed, Bistes would profit thereby should it be determined that his claim for the entire deposit was well founded. Moreover plaintiffs in rule evidently considered that Bistes had an interest since they made him a party to the rule.

It is therefore ordered that the alternative writ of mandamus heretofore issued be made peremptory, and, accordingly, that the respondent judge of the civil district court be directed to grant to relator the appeal herein prayed for on his complying with the requirements of law. The costs of this proceeding to be paid by the plaintiffs, Mr. and Mrs. A. H. Landry.


text:
    No. 13,270
    Orleans
    WOLFF CO. v. PIERCE
    (March 24, 1930. Opinion and Decree.)
    Beard & O’Keefe and Chester A. Peyronnin, of New Orleans, attorneys for plaintiff, appellant.
    R. Ewing, of New Orleans, attorney for defendant, appellee.
   WESTERFIELD, J.

This is a suit growing out of an intersectional collision of two vehicles. The owner of each of the automobiles claims from the other the amount of damages sustained by his car. In holding that neither plaintiff nor defendant could recover, the trial judge evidently reached the conclusion that the drivers of both vehicles were at fault.

After reading the record, we are unable to say that the court a qua erred in its finding, and, for that reason, the judgment appealed from is affirmed.


text:
    No. 11,876
    Orleans
    DUNBAR v. KAUL
    (March 10, 1930. Opinion and Decree.)
    Dymond & Levy and Geo. C. Schoenberger, • Jr., of New Orleans, attorneys for plaintiff, appellee.
    Spearing & Mabry and fm. H. McClendon, Jr., of New Orleans, attorneys for defendant, appellant.
   JANVIER, J.

This suit grows out of an automobile collision at the corner of Carrollton avenue and Fontainebleau drive in the late afternoon of April 9, 1927, while it was yet daylight.

When Dunbar, driving in Carrollton avenue towards the river, reached the intersection of Fontainebleau drive, he desired to turn to his left across the neutral ground so that after crossing the lower driveway of Carrollton avenue he might enter Fontainebleau drive and proceed to his home.

He states that as he reached the crossing he saw a horse and wagon on the car tracks stopped; that he brought his automobile to a stop and beckoned to the driver of the horse to cross; that after the wagon had crossed he started his automobile, turned to his- left, and was proceeding across the lower driveway when he was violently run into by defendant’s truck driven by an employee, Thomas Dunn; and that his car was severely damaged.

Defendant contends that plaintiff did not stop before proceeding to cross the lower roadway; that he gave no signal of his intention to cross and that when he entered the roadway the truck was already so near it could not be stopped in time to avoid the accident; and that the speed of the truck was moderate. Dunn, the driver' of the truck, fixes its speed at exactly twenty-three miles per hour. The other witnesses differ in their estimates of its speed, some claiming that it was as great as forty miles per hour.

The traffic ordinance applicable to a situation of this kind is No. 7490, C. C. S., and the pertinent provisions thereof are contained in paragraphs A, B and D, of section 7 of article I.

As we said in Breaux vs. Cangelosi, 10 La. App. 765, 123 So. 151, 152:

“Under these paragraphs vehicles on St. Charles avenue are given the right of way over other vehicles crossing the neutral ground, except that vehicles crossing the neutral- ground may obtain the right of way by complying with the provisions and requirements of paragraph d, which reads as follows:

“‘(d) On streets and avenues having neutral grounds and carrying street car lines, vehicles crossing such neutral grounds shall have right of way to complete the crossing of the roadway of such street or avenue under the following conditions:

“Provided the vehicle shall come to a full stop when about to leave the neutral ground and enter the roadway, shall signal with horn, and give opportunity for approaching vehicles in the roadway to come to a stop; it being the intention of this provision to require vehicles in said roadway to stop upon receiving reasonable warning in order that vehicles standing on the neutral ground shall be permitted to Complete the crossing of or turning into the roadway.’ ”

Plaintiff then could have obtained the right of way by stopping before entering the lower driveway and by blowing his horn and by giving to defendant’s truck an opportunity to stop. Breaux vs. Cangelosi, supra. That he did not do this is made certain by the evidence. But, argues his counsel, in spite of his failure in this regard, he may nevertheless recover because áfter his negligence, as above set forth, had lost its active effect, and he was in a position of danger, defendant’s truck still had the last clear chance to avoid the accident.

It is true that the truck driver was also guilty of violating the traffic ordinance in that he was exceeding the speed limit. We have shown that he admits a speed limit of twenty-three miles per hour, whereas the ordinance (article 5) permits to trucks of the size of the one in question a maximum speed of twenty miles, per hour. We have often said, even if one vehicle has the right of way over another, this does not permit the one .having the right of way to totally disregard the rights of the other or to monopolize a public street. Vance vs. Poree, 5 La. App. 109. In spite of the fact that here the truck had the right of way because of plaintiff’s failure to stop or blow his horn before entering the intersection, we would not hesitate to affirm the judgment in plaintiff’s favor if we felt that nevertheless the truck could have avoided striking plaintiff’s car.

• But we1 do not believe that the accident could have been avoided by the truck because its speed was so great that when plaintiff’s car entered the intersection directly in its path there was no possible way for its driver to bring it to a stop. The truck driver, Dunn, in operating it at such a high rate of speed was guilty of negligence in entering the intersection without first complying with the legal requirements. The situation is very similar to that which was passed upon by the Court of Appeal for the First Circuit in Heath vs. Baudin, 11 La. App. 40, 122 So. 726, in which that court said:

“The evidence shows that Baudin, driving at a moderate speed, slowed down. and looked up Winona street, with his ear under control, before entering the intersection, and saw Heath coming on at a rapid speed about, say, 20 feet from the intersection. Heath was not far enough to make it safe for him to enter on the crossing. Baudin was in a place of safety at the time he saw the danger from Heath, and could and should have stopped where he was and let Heath pass, notwithstanding the fact that he reached the intersection first. He did not do that, but entered the intersection and started across in the face of a known danger, due to the near and apparently reckless approach of Heath.”

We think both drivers were at fault, and that the fault of each contributed to the result, and therefore, since plaintiff’s negligence had causal connection. with the accident, he cannot recover, and the judgment in his favor is erroneous.

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

Judgment reversed; suit dismissed.


author: WEBB, J.

text:
    No. 3724
    Second Circuit
    DOLL & SMITH v. BOYETT
    (January 31, 1930. Opinion and Decree.)
    (March 24, 1930. Rehearing Refused.)
    Moss & Moss, of Winnfield, attorneys for plaintiff, appellant.
    A. Leonard Allen, of Winnfield, attorney for defendant, appellee.
   WEBB, J.

Defendant ordered from plaintiff 52 advertising cuts to be used by him in advertising his business, for which he agreed to pay $104.

The cuts were shipped to and received by defendant, who used several of them, but he returned all of them, with the exception of one, to plaintiff and refused to pay any part of the price which he had agreed to pay, and plaintiff instituted this suit to recover the amount stipulated to be paid.

In defense of the action defendant alleged that in addition to cuts plaintiff had agreed to furnish defendant from time to time special reading matter to be used with the cuts, which they had failed to furnish, and had violated the contract, and, in the alternative, defendant alleged, in substance, that he signed the agreement in error, induced by fraudulent representations, and further that the cuts were not of any value.

On trial judgment was rendered in favor of plaintiff in the sum of $10.15, and plaintiff appeals.

The contract was in writing, and it does not stipulate that plaintiff would furnish defendant with reading matter to be used with the cuts, and admittedly defendant did not request that plaintiff should furnish any other advertising material than the cuts, and there was not any evidence tending to show that defendant had signed the order and contract in error, or that plaintiff had made any fraudulent representations, and while there was evidence tending to show that defendant might have procured similar cuts for a less price, it clearly appears that the real reason of his refusal to comply with his contract was that he concluded that the use of the cuts would not be worth as much as he had agreed to pay.

While it was not shown that plaintiff had any copyright or patent covering the cuts, the value of the use of the cuts cannot, we think, be fixed with reference to what might have been the cost of manufacturing them, and the obligation of defendant fixed on such basis, rather than upon the contract and agreement which he signed.

It is therefore ordered that the judgment appealed from be amended, and the amount of the judgment increased to $104, and as thus amended, the judgment is affirmed; defendant to pay all cost.


author: ODOM, J.

text:
    No. 3733
    Second Circuit
    PEARCE v. NATIONAL LIFE & ACCIDENT INS. CO. ET AL.
    (January 31, 1930. Opinion and Decree.)
    (March 24, 1930. Rehearing Refused.)

      Edward Barnett, of Shreveport, attorney for plaintiff, appellant.
    Wilkinson, Lewis, Wilkinson & Burford and Mabry & Carstarphen, of Shreveport, attorneys for defendants, appellees.
   ODOM, J.

On February 1, 1929, the National Life & Accident Insurance Company, of Nashville, Tenn., issued its usual policy of insurance on the life of James Collin Pearce for $2,000, in which Mrs. Emma Jane Pearce, mother of the insured, was named beneficiary. The provisions of the policy pertinent to the issues involved in this suit are as follows:

“(1) Beneficiary. — Emma Jane Pearce, mother of said employee. If there be no beneficiary living at the death of said employee the amount of insurance shall be paid to the executors, administrators or assigns of said employee.

“(2) (The beneficiary may be changed in accordance with t,he terms of the policy by said employee at any time while the insurance on his or her life is in force by notifying the company. Such change shall take effect when due acknowledgment thereof is furnished by the company to such person insured and all rights of his or her former beneficiary .or beneficiaries shall thereupon cease.)”

James Collin Pearce, the insured (called employee in the policy), died intestate on July 10, 1929, on which date his mother, Mrs. Emma Jane Pearce, the beneficiary under the policy, was living.

The present suit was brought by Mrs. Ida May Pearce, the surviving spouse of deceased, who was living in community with her husband at the time of his death. She brought the suit on behalf of herself and her two minor children, issue of the marriage and the sole heirs of deceased. She alleges that the policy was issued during her marriage with deceased and during the community which existed between them, and that at the time of the death of her husband the policy of insurance was in full force and effect; that she and her children are entitled to the proceeds and avails of said policy, which belong to the community; that the designation of the mother of deceased as beneficiary under the policy was illegal, null, void, and of no effect, being a gratuitous donation inter vivos, not made in due legal form, not accepted by the donee, and being a divestiture by deceased of all his property.

She prayed that' she have judgment in favor of herself and minor children against both the insurance company and Mrs. Pearce, the beneficiary, “decreeing the pretended designation of beneficiary in said policy to be null, void, and of no effect,” and judgment . against the insurance company “for the sum of two thousand dollars with legal interest from judicial demand.”

Plaintiff does not allege that her husband, the insured, exercised his right to change the beneficiary named in the policy, and the petition affirmatively shows that the beneficiary named therein was living at the death of the insured.

Mrs. Pearce, the beneficiary, and the insurance company, filed exceptions of no cause and no right of action, which were sustained by the lower court, and plaintiff appealed.

OPINION

1. Plaintiff alleged, and counsel now contends, that the naming by the insured of Mrs. Emma Jane Pearce, his mother, as beneficiary under the policy, was null, void, and of no effect, as he had living at that time, a wife and minor children dependent upon him for support. But counsel cites no authority in support of his contention that the insured could not legally insure his life in favor of his mother, or any one else, even though he had a living wife and min- or children dependent upon him for support.

The authorities which we have found are all against plaintiff’s contentions.

“A person may, in good faith and without fraud, collusion or an intent to enter into a wagering contract, lawfully take out a policy of insurance on his own life and make the benefit payable to whomsoever he pleases, either himself or his estate or a third person, regardless of whether or not the latter has an insurable interest; insured has an unlimited insurable interest in his own life which is sufficient to support the policy; and except in some jurisdictions the transaction is not contrary to statute or public policy.” 37 Corpus Juris, 389, sec. 53, and numerous authorities there cited.

In the case of Succession of Hearing, 26 La. Ann. 326, our Supreme Court said:

‘‘A man may take out a policy of insurance on his life in the name of any one, or having taken it out in his own name, he may, with the consent of the assurers, transfer it to whom he pleases.”

This holding was approved in the case of Stuart vs. Sutcliffe et al., 46 La. Ann. 240, 247, 14 So. 912, 915, where the court, after quoting the above passage from the 26th Louisiana Annual case, said:

“We are in accord with that opinion.”

The holding was again affirmed in the case of New York Life Insurance Co. vs. Murtagh et al., 137 La. 760, 69 So. 165, where the court cited with approval cases from other jurisdictions.

2. It is contended that the naming of Mrs. Emma Jane Pearce, mother of insured, as beneficiary under the policy, was a donation to her by the insured. The settled jurisprudence of this state is against this contention. In the very recent case of Sherwood vs. New York Life Insurance Co., 166 La. 829, 118 So. 35, 37, where the identical point was at issue, the court said:

“The issues above presented under the exceptions of no cause of action are by no means res nova in this state. It is the settled jurisprudence of this court that life insurance ¡policies are neither donations inter vivos nor mortis causa, and that the provisions of the Civil Code relative to donations and collation will not be applied to such policies.”

3. In the policy of insurance here involved, the insured reserved the right to change the beneficiary at any time while the insurance was in force, and counsel contends that under this reservation the beneficiary never had .any vested right therein. That is unquestionably true, as is shown by the following authorities: 37 Corpus Juris,'page 43, sec. 142; Dorsett vs. Thomas, Bank Examiner et als., 152 La. 60, 92 So. 734; Pollock vs. Pollock, 164 La. 1077, 115 So. 275.

Many other decisions to this'effect might be cited, not only by our own courts, but by courts of other jurisdictions. But because that is true is no reason why it should be held that in this case the proceeds of the policy on the life of the insured should be paid to his estate, instead of to his mother who was named beneficiary.

It has been repeatedly held that “a contract of insurance, like every other contract, is the law between the parties, and every stipulation therein must he construed as written.” Dorsett vs. Thomas, supra.

This contract of insurance names Mrs. Emma Jane Pearce, mother of the insured, as beneficiary. So long as the insured lived, the beneficiary had no vested right in the policy, because the insured reserved the right to name another. But the right to change the beneficiary was never exercised by the insured, and therefore the mother was the beneficiary under the policy when the insured died, and, while she had acquired no vested rights under the policy before, her rights thereunder became vested, fixed, the moment the insured died. This, it seems to us, is too plain for argument.

In the case of Dorsett vs. Thomas, supra, where a similar point was involved, the court said:

“Of course, if Lacomhe (the insured) had died before the First National Bank went out of existence, that bank would eo instanti have acquired a vested right in the policies, would have been entitled to recover the face value of the same.”

And the court further said:

“It is an universally accepted principle in all jurisprudence that in any life insurance policy where the right is reserved to the insured to change his beneficiary, such as is stipulated in these policies, no beneficiary can acquire a vested right until after the happening of the condition on which they were issued; that is, after the death of the insured.”

In the case of New York Life Insurance Co. vs. Murtagh, 137 La. 760, 69 So. 165, 167, the court said:

“The rights of the beneficiary were fixed at the death of the insured, and could not he affected by any subsequent acts of the insurance company, or the personal representatives of the deceased.” See Douglass vs. Life Assur. Soc., 150 La. 519, 90 So. 834.

, “The proceeds of a life insurance policy in which a third person is named beneficiary belong exclusively to such beneficiary as an individual; they are not the property of the heirs of insured, are not subject to administration, and can not properly he claimed or received by the administrator or other legal representative of insured ..as assets of his estate.” 37 Corpus Juris, 566, sec. 323; Succession of Emonot, 109 La. 359, 33 So. 368; Succession of Le Blanc, 142 La. 27, 76 So. 223, L. R. A. 1917F, 1137.

The proceeds of a life insurance policy in favor of a third party form no part of the estate of the insured at his death. In the very recent case of Sherwood vs. New York Life Insurance Co., 166 La. 829, 118 So. 35, 37, the court said:

“It is well settled also that the proceeds of such policies form no part of the estate of the deceased and inure to the beneficiary directly and by the sole terms of the policy itself.” Vinson vs. Vinson, 105 La. 30, 29 So. 701; Succession of Roder, 121 La. 694, 46 So. 697, 15 Ann. Cas. 526; Sevier vs. Douglas, 44 La. Ann. 611, 10 So. 804.

The contract of insurance, the policy, in this case provided that, “if there be no beneficiary living at the death of said employee (insured), the amount of insurance shall he paid to the executors, administrators or assigns of said employee.” The beneficiary named in the policy was living when the insured died, and it follows necessarily that the proceeds thereof must be paid to her.

The judgment appealed from is correct, and is accordingly affirmed, with costs in both courts.