author: MOUTON, J.

text:
    No. 611
    First Circuit
    RICHARDSON ET AL. v. NEWMAN
    (March 5, 1930. Opinion and Decree.)
    Ott & Johnson, of Franklinton, attorneys for plaintiffs, appellees.
    Bascom D. Talley, of Bogalusa, attorney for defendant, appellant.
   MOUTON, J.

The caption of the petition herein gives the names of plaintiff and defendant; also has the following: “22nd Judicial District Court State of Louisiana Parish of Washington.” With the filing with I. Loyd Varnado, clerk of court. Then follows this address: “To the Honorable Prentiss B. Carter, Judge.”

Defendant excepted to the petition, contending that it is not properly addressed to a competent judge, as is required by article 171, C. P. The exception was overruled.

In support of the exception, counsel for defendant refers to Wadsworth vs. Harris, 1 Rob. 96, and other decisions, where it was held that, when a petition is by mistake addressed to a court different from that in which it is filed, the error will be fatal. It was so held in Wadsworth vs. Harris, 1 Rob. 96, reference being made therein to Watson vs. Pierce, 6 Mart. (N. S.) 416, in support of the ruling. In that case the petition was addressed to the district court of parish of West Feliciana, and was filed in the office of the clerk of East Baton Rouge. The Supreme Court held that the case was not' legally before the court of East Baton Rouge because it was addressed to a different tribunal.

The cases cited are not parallel to the instant case. Here the address to honorable Prentiss B. Carter evidently refers to the judge of the Twenty-Second Judicial District, Parish of Washington, as appears in the caption of the petition.

We are also referred by counsel for defendant to Lukis vs. Allen, 45 La. Ann. 1447, 14 So. 186, in support of the exception. In that case the court said that:

“Nothing in a petition not preceding the signature forms any part of it.”

Here the caption — which clearly gives the proper title of the court in which the petition was filed, and which is addressed to the honorable Prentiss B. Carter, Judge —precedes the signature to the petition, and should, we think, be considered as forming part of it. For the foregoing reasons, the exception was properly overruled.

Counsel also complains of the refusal of his application for a new trial. We do not find that in refusing the application there was any abuse by the lower court of the legal discretion vested in it by law.

MERITS

This suit is for the recovery of $795.41 by plaintiff for the electrical wiring of the Red Wood Hotel in Bogalusa, property of defendant, under a written contract entered into between the parties on October 23, 1928. v

The lower court rendered judgment for $745.41 in favor of plaintiff, being $50 less then the sum claimed, plaintiff having entered a remittitur for that amount.

The first complaint of defendant, on the merits, is that plaintiffs have not performed the work in a good workmanlike manner in accordance with the usual rules and standards for such work, as was by them alleged.

An inspection of their work was made by experienced, well-qualified electricians in November, 1928, who found that the work had been done in good workmanlike manner.

George Welman, an electrician in the service of the fire prevention bureau of this state, and a witness for defendant, was examined before a notary in New Orleans. He was asked by interrogatory to please explain the difference between a first class job and “the job these boys put in,” which referred to plaintiffs. His answer was that it was hardly possible to give a first class job without plans and specifications covering all details of construction. Welman was one of the electricians that had inspected the work in November, 1928, to which we have herein-above referred.

In addition to what he said as above men tioned, he says: “I think that Mr. Richardson did very well, considering that he had to lay out the work as he advanced.”

The proof is that plaintiffs, the Richard-sons, had no plans or specifications by which they were to be guided in prosecuting or completing the undertaking, and they therefore came up in performing their work to the standard required under their agreement.

In their contract plaintiffs obligated themselves to charge $4.50 per outlet in wiring the building. Counsel for defendant contends that the contract should have said “to the outlet” and not “per outlet.” Technically speaking, it would have been more correct to have used the words for which counsel contends.

In his attempt to emphasize the correctness of his contention, counsel asked Rogers, expert witness for plaintiffs, if, when the contract said “per outlet,” it did not mean down to the globe. The answer was that would be done, only when the owner of the building would be required to describe the building, which was not stipulated herein. The preponderance of the evidence shows that the work was performed in compliance with the term “per outlet” as provided for in the contract. These outlets, the evidence shows, were put in the building, and were properly charged for in accordance with price fixed in the agreement.

The defendant contends that a reduction of the amount claimed should be made for the work done by Shaw in correcting the defects in the work of the plaintiffs. The work performed by Shaw, we do not find, was done in remedying or correcting the work of the plaintiffs, and the deduction asked therefor will not be allowed.

Counsel for defendant contends that the charge of $51.70 . for extra work claimed by plaintiffs should be disallowed. This work was not covered by the contract, which plaintiffs explain was done by them to keep on good terms with defendant, who had refused to pay them for their services. The court allowed this claim, and we do not think it should be denied.

A further deduction is asked for the work performed by Piggott, who testifies that his services were rendered in correcting the work previously done so that the Great Southern Lumber Company would permit' the required connection with their plant. The testimony given by Piggou shows that there were defects in the original work which rendered his services necessary, and there is no contradictory evidence to justify a refusal for a reduction of the claim of plaintiffs on this score.

It appears, however, that it was permissible up to January, 1929, to install three black wires under the fire prevention ’bureau regulations. Plaintiffs had therefore the right, when they performed the work in October, 1928, to install three black wires in the building, from which it follows that defendant has no right to charge for the white wire put in the hotel by Piggott.

As we understand the account filed to show the materials put in by Piggott under his contract to correct the defects in the building, a charge of $17.01 is carried on the account for the white wire or wires furnished.

This amount must he deducted from the $289.29 amount paid by defendant to Piggott. This leaves a balance of $272.28 on that amount, which must be deducted from the sum decreed against defendant, and the judgment must be accordingly amended in that respect.

It is therefore ordered and decreed that the judgment be and is hereby amended by reducing it .to the sum of $473.13, and, as thus amended, it be affirmed, with cost.

LECHE, J., not participating.


source: Caselaw Access Project

author: WESTERFIELD, J. JANVIER, J.

license: Public Domain

text:
    No. 13,127
    Orleans
    UNION AUTOMOBILE INS. CO. v. COX
    (March 10, 1930. Opinion and Decree.)
    Milner & Porteous, of New Orleans, attorneys for plaintiff, appellee.
    Manning W. Heard, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

The plaintiff insurance company paid to the defendant A. S. Cox the sum of $100 “in full settlement of any claim’’ against it by reason of damage to defendant’s automobile caused by a fire which occurred on the 28th day of April, 1926. At the time of the settlement of the loss, and in the same instrument evidencing the settlement, Cox subrogated the plaintiff to any claim he might have against the Associated Motors, Inc., to the extent of $100, the car having been burned while in their possession. Thereafter suit was brought on the subrogation against the Associated Motors, Inc., which successfully defended upon the ground that the fire was occasioned by a fortuitous event, and upon the further ground that Cox had suffered no loss as a result of the fire. Whereupon plaintiff instituted this suit setting up its. unsuccessful efforts to recover on the subrogation, and alleging that the $100 had bean paid to Cox in error on the faith of false representations to the effect that he had actually expended this sum in repairs to his car made necessary as a result of the fire. The return of the $100 is prayed for plus $50 alleged to have been expended in court costs and attorney fees.

Defendant answered that the $100 paid him was by way. of compromise and settlement and that, as to the subrogation, he was not aware that he had executed it, being unfamiliar with the meaning of the word, and unaware that the instrument he signed contained any reference to it.

There was judgment below in plaintiff’s favor for $100, and defendant has appealed.

The record shows that Cox was the owner of a Lincoln automobile valued at the sum of $5,283.61; that the local agency for the Lincoln car was the Associated Motors, Inc. Desiring to have some adjustment made to his car Cox sent it around to the Lincoln Agency, and, while the car was in the possession of the agency, a fire occurred which resulted in damage to the automobile. The plaintiff, which had the car covered by a fire insurance policy, was immediately notified of the loss but, before any adjustment was made, an employee of the manufacturer gratuitously advised Cox that he had discovered a structural defect in his car for which the manufacturer acknowledged responsibility and desired to have corrected; that in remedying the defect it would be necessary to repaint the car and that Cox would be put to no expense. Cox accepted this rather unusual proposition and the car was sent from New Orleans to Shreveport, repaired, and returned to Cox. Thereafter, in an interview between Cox and the local agent of the plaintiff company, a settlement was made with Cox and $100, for which this suit is brought, paid him.

Mr. Ledbetter says that the money was paid upon the faith of a bill for $100 given ' him by Cox and represented to be the amount paid by him for repairs to the car made necessary by the fire. The bill which Cox is alleged to have presented to Led-better was never' produced, notwithstanding the fact that a delay of thirty days was asked for and granted by the lower court for the purpose of producing it. Cox denies giving Mr. Ledbetter the bill, and produced a bill of the Associated Motors, Inc., for $103.78. Mr. J. S. Cobb, manager of the Associated Motors, Inc., testified at first that all of this bill was for repairs having no connection with the fire, but subsequently admitted that an item of $62.03 for new fenders to replace fire damaged fenders was included. He also testified that an item of $10.25 was also due to the fire. He estimates the fire damage to Cox’s automobile at $250. Ledbetter, who had examined the car, says the loss did not exceed $25. Cox testified that he advised Ledbetter before the settlement was made that most of his damage was being taken care of by the manufacturer. Led-better denies, this statement. He also denies having had any knowledge of the estimate of $250, as the amount necessary to repair Cox’s car, but he says that if he had known of any such estimate he would have compromised the claim.

It is difficult to understand why Ledbetter would have paid Cox $100 if he believed his fire damage to have been no more than $25. His failure to produce the bill for $100 which he said Cox had presented to him, after having requested a delay of thirty days during the trial to produce it, does not add any force to his testimony. At any rate, plaintiff has failed to establish the fraud alleged and the evidence is to the effect that Cox did suffer a loss and actually paid out a sum fairly proportionate to the amount he received in settlement.

R. C. C. art. 3078 provides that:

"Transactions have, between the interested parties, a force equal to the authority of things adjudged. They cannot be attacked on account of any error in law or any lesion. But an error in calculation may always be corrected.’’

Our conclusion is that plaintiff has failed to make out its case.

For the reasons assigned, the judgment appealed from is reversed, and it is now ordered that there be judgment in favor of defendant dismissing plaintiff’s suit.

JANVIER, J.

(dissenting).

At the time Cox received from Union Automobile Ins. Co., the $100 in question, and executed the subrogation in favor of the insurance company and against Associated Motors, Inc., he, Cox, had already been paid in full either by Associated Motors, Inc., agents for the Ford Motor Company, or by the Ford Motor Company itself for any loss he had sustained. I say this because I cannot but feel that, when the Associated Motors, Inc., or the Ford Motor Company, or both, voluntarily, as it is said, repaired Cox’s automobile and repainted it, there must have been some realization of the fact that there was, to some extent, liability for the fire. At any rate, when the work was done by these companies and was accepted by Cox, he well knew that any subrogation which he might thereafter execute would have absolutely no value as against them. It is my belief that, when the Union Automobile Ins. Co. brought its suit against the Associated Motors, Inc., under the subrogation, there was no possibility of its recovering because the Associated Motors, Inc., having repaired Cox’s automobile, was no longer liable to him and therefore could no longer be liable to his subrogee. At the time the insurance company paid Cox, I am convinced that it had no knowledge that the subrogation which it took from Cox was absolutely worthless. It seems to me that the law applicable is well stated in Chickasaw County Farmers’ Mutual Fire Ins. Co. vs. Weller, 98 Iowa 731, 68 N. W. 443, in the' syllabus of which appears the following:

"Where insured property is destroyed by fire negligently set out by a railroad company, and the owner settles with the railroad company, and afterwards, without informing the insurance company of such fact, receives from the insurance company payment for the loss, the latter may recover from him the money so paid.”

I therefore respectfully dissent.


author: PER CURIAM.

text:
    No. 11,922
    Orleans
    DRAGO v. DORSEY
    (October 21, 1929. Opinion and Decree.)
    Guy J. D’Antonio, of New Orleans, attorney for plaintiff, appellee.
    P. L. Fourchy, of New Orleans, attorney for defendant, appellant.
   PER CURIAM.

The motion to dismiss the appeal is denied for the reasons assigned in the case of Wilson James vs. City of New Orleans, No. 11,883 of the docket of this court, this day decided.


author: JANVIER, J.

text:
    No. 11,870
    Orleans
    VARGAS v. BLUE SEAL BOTTLING WORKS, LTD.
    (March 10, 1930. Opinion and Decree.)
    O. S. Livaudais and Frank W. Hart, of New Orleans, attorneys for plaintiff, appellant.
    Lemle, Moreno & Lemle, of New Orleans, attorneys for defendant, appellee.
   JANVIER, J.

The facts of this case are soon stated and are not in dispute,- except in one regard, which, in view of the conclusion to which we have come, is of no importance, but to which we shall hereafter revert.

The suit is one sounding in damages for the loss of an eye. Plaintiff, Vargas, a resident of New Orleans, who was about to become interested in the selling of bottling machines, in company with William Burns, president of the Burns Bottling Works of Baltimore, and William T. Arrington, of Memphis, also interested in the sale of bottling machines, called at -the office of defendant, a beverage bottling compány, for the purpose of trying to sell to defendant company, through Mr. Baldenhofer, its president, a Burns bottling machine.

Mr. Baldenhofer advised the three visitors that only a short time prior thereto his company had purchased a bottling machine of another make, which machine was entirely satisfactory, and that therefore his company was not interested in the Burns machine.

Upon receiving this information, the visitors requested of Mr. Baldenhofer permission to remain and watch the other machine in operation; they, as manufacturers of competitive machines, being interested therein.

This permission was granted, and the three visitors, together with Mr. Baldenhofer, went into the bottling works proper, where Mr. Baldenhofer personally took charge of the operation of the bottling machine. Tbe three visitors stood about eight or ten feet away and had watched its operation about five or ten minutes, when one of the bottles, after passing through the filling and carbonating and capping part of the machine, exploded after it reached the assembling table. A piece of glass, which had formerly been a part of the bottle which exploded, entered the eyeball of Vargas and so badly damaged it that its removal was necessary.

The petition alleges no specific act of negligence on the part of defendant company, and we are urged to hold that no such allegation of fact was necessary under the circumstances, because of the application of the doctrine of “res ipsa loquitur.” This contention is, of course, based on the theory that the cause of the explosion was peculiarly within the knowledge of defendant’s officers or employees; that plaintiff could not be expected to have knowledge of such cause; that the mere happening of such an accident raised a presumption of negligence and placed upon defendant the duty of overcoming that presumption and disproving the presence of negligence on its part.

It is maintained, on behalf of the defendant, that the doctrine of “res ipsa loquitur” is not applicable to cases of this kind generally, and particularly is not applicable to this case because of the fact, that the three gentlemen in question, so far as the defendant knew, were thoroughly familiar with the operations of bottling machines in general, and that therefore Mr. Baldenhofer was justified in assuming that they were familiar with the fact that in bottling works it is Impossible to prevent explosions of this kind, which occur in spite of the utmost care in the selection of bottles and in the operation of the plant.

Our attention is called to a number of cases in which various courts have held that the doctrine of “res ipsa loquitur” is not applicable in cases of this kind. Plaintiff has also cited cases which his counsel argue are in point and which, they contend, sustain their view that the doctrine of “res ipsa loquitur” is applicable.

We do not find it necessary to decide whether the doctrine contended for should he applied here, because, even if it be conceded that the mefe happening of the accident raised a presumption of negligence in the defendant — and that is the only result that flows from the operation of the doctrine — the defendant here has, in our judgment, successfully borne the burden of proving that there was no negligence on its part.

The doctrine of “res ipsa loquitur” does not create liability. Its sole effect is to create a presumption or inference of negligence, which shifts the burden of proof. As was said by the Supreme Court of the United States in Sweeney vs. Erving, 228 U. S. 233, 33 S. Ct. 416, 418, 57 L. Ed. 815, Ann. Cas. 1914D, 905:

“In our opinion, res iipsa loquitur means that the facts of the occurrence warrant the inference of negligence, not that they compel such an inference; that they furnish circumstantial evidence of negligence where direct evidence of it may be lacking, but it is evidence to be weighed, not necessarily to be accepted as sufficient; that they call for explanation or rebuttal, not necessarily that they require it; that they make a case to be decided by the jury, not that they forestall the verdict. Res ipsa loquitur, where it applies, does not convert the defendant’s general issue into an affirmative defense. When all the evidence is in, the question for the jury is whether the preponderance is with the plaintiff. Such, we think, is the view generally taken of the matter in well-considered judicial opinions.”

In order to sustain the burden which is placed upon it by the doctrine referred to, a defendant must show that it neither did anything it should not have done, nor left undone anything it should have done; that it neglected no duty owed by it to plaintiff.

In considering what duty was owed to plaintiff, it is apparent that the degree of care due him depends on the status occupied by plaintiff at the time of the accident. Manifestly he was not a trespasser, since he was present with the knowledge and permission of defendant’s president. He was, then, either a licensee or an invitee.

He had come upon the premises for the purpose of trying to sell defendant a bottling machine, and thus his initial entry into the premises was, in some measure, for the benefit of both himself and defendant, and counsel for plaintiff cite the case of Plummer vs. Dill, 156 Mass. 426, 31 N.E. 128, 129, 32 Am. St. Rep. 463, and call our attention to the following, which appears therein:

“To come under an implied invitation as distinguished from a mere license, the visitor must come for a purpose connected with the business in which the occupant is engaged. * * *”

We think that the interpretation which plaintiff contends should be placed on the second word “come” would give it a much narrower meaning than was intended by the author of the opinion from which we have quoted, and that the word should more properly be taken to mean “come arid remain.” Surely the fact that at some time in the past a person might have come upon the property on business in which the owner was interested does not constitute him an invitee, so long as he remains, unless his remaining is also, to some extent, for the benefit of the owner.

So long as the mission upon which he entered had not terminated, he was an invitee, but, upon the termination of that mission, his status as an invitee remained only for such reasonable time as might be necessary to give him an opportunity to leave the premises. In the present case Vargas did not leave, but sought and obtained permission to remain for a purpose which appears to us to have been in no way in the interest or for the benefit of defendant. By no stretch of the imagination can it be said that his remaining in order to satisfy his own curiosity could benefit the defendant company.

The testimony of all of plaintiff’s witnesses shows thht, as testified to by Mr. Burns, when they asked Mr. Baldenhofer to allow them to remain to watch the machine in operation, “We were granted this permission.”

In order to create the status of invitee, there must be to some extent a mutuality of interest. In Corpus Juris, vol. 37, verbum “License,” p. 161, we find:

“A license implies permission or authority, and is more than mere sufferance, but it does not imply an invitation.”

In Walker et al. vs. Nona Mills Co., 151 La. 738, 92 So. 318, 319, Walker was employed by a third party, Harris, to cart away certain slabs from the pile near the sawmill of the defendant. In order to reach this pile, it was necessary that he cross under the log conveyor, and, while so doing, he was killed by a log which fell from the conveyor. The Supreme Court of Louisiana said:

“Plaintiff’s husband was at best a mere licensee. Defendant company was receiving no payment or other compensation from Harris for the permission which had been given him to take the slabs, and was deriving no profit or benefit therefrom.”

Another case which we consider in point is Foshee vs. Grant, 152 La. 303, 93 So. 102, 103. In that case plaintiff, with certain friends, entered the premises of defendant for the purpose of purchasing drinks. For their own convenience they went into one of the rooms of the defendant, not intended for, but sometimes used by, patrons, and which was not a part of the saloon proper. They were served with beer, and while in the room plaintiff received injuries. The court said:

“In these circumstances and under the facts stated, it is clear that the plaintiff could not be considered in law an invitee in the wareroom, but he selected the occasion and took the circuitous route of his own accord in the hope that he might get the bucket of beer for his crowd with the least possible delay.1' Having entered the wareroom without invitation, expressed or implied, the defendant owed the plaintiff no greater duty than to see that he was not wantonly or purposely' injured.”

We do not consider Riecke vs. Anheuser-Busch Brewing Association, 206 Mo. App. 246, 227 S.W. 631, as being applicable, because in the Riecke case the plaintiff was invited to make a tour of inspection' of the brewing plant and a guide was furnished for that purpose. Apparently this was one of the methods of advertisement adopted by defendant. It was thus in the interest of "the defendant that 'Visitors be shown over its plant. In Bennett vs. Railroad Co., 102 U. S. 577, 584, 26 L. Ed. 235, we find the following language:

“It is sometimes difficult to determine whether the circumstances make a case of invitation, in the technical sense of that word, as used in a large number of adjudged cases, or only a case of mere license. ‘The principle,’ says Mr. Campbell, in his treatise on Negligence, ‘appears to be that invitation is inferred where there is a common interest or mutual advantage, while a license is inferred where the object is the mere pleasure or benefit of the person using it.’ ”

See, also, Jonosky vs. Northern Pac. Ry. Co., 57 Mont. 63, 187 P. 1014.

We find, in Petree vs. Davison-Paxon-Stokes Co., 30 Ga. App. 490, 118 S.E. 697, 698, that the doctrine is expressed as follows :

“A licensee is a person who is neither a customer, nor a servant, nor a trespasser, .and does not stand in any contractual relation with the owner of the premises, and who is permitted expressly or impliedly to go thereon merely for his own interest, convenience, or gratification.”

The case of Bell vs. Houston & Southern Ry. Co., 132 La. 88, 60 So. 1029, 1030, 43 L.R.A. (N. S.) 740, does not appear to us to be apposite. There the person injured went to the station for the purpose of mailing a letter through a small slot in the side of the mail car. The court said:

“The sender or receiver of mail is the person to be -served or benefited under or by that contract, and he is therefore indirectly interested therein, or connected therewith. The sender of mail has the undoubted right to deposit letters in the places designated by the government for the reception of mailing matter; and, where the sender of mail goes to a mail car and deposits his mail with the clerk or officer placed in said car to receive mail, he is transacting business with the agent or agency * * * for the transmission of mail. In this instance, the defendants were the instrumentalities used by the government for conveying mail from one place to another; and they were obliged, under their contract with th'e government, not only to provide a mail car and carry the mail and mail clerks in charge of the mail, but also to give safe passage of ingress to and egress from their train and the mailing clerks stationed in the mail ear.”

For these reasons we are of the opinion that Vargas had lost his original status of invitee and remained upon the premises by the mere sufferance of Baldenhofer, and was therefore a licensee when he received his injuries.

The only duty o we’d'to a licensee by the owner of the premises is that he shall not wantonly or purposely injure him. He takes the premises as he finds them.

In Glaser vs. Rothschild, 221 Mo. 180, 120 S.W. 1, 2, 22 L.R.A. (N. S.) 1045, 17 Ann. Cas. 576, we find the following:

“The general rule is that the owner or occupier of premises lies under no duty to protect those from injury who go upon the premises as volunteers, or merely with his express or tacit permission, from motives of curiosity or private convenience, in no way connected with business or other relations with the owner or occupier. Hargreaves v. Deacon, 25 Mich. 5; Benson v. Baltimore Traction Co., 77 Md. 535, 26 A. 973, 20 L.R.A. 714, 39 Am. St. Rep. 436; B. & O., etc., R.R. Co. v. Slaughter, 167 Ind. 330, 79 N.E. 186, 7 L.R.A. (N.S.) 597, 119 Am. St. Rep. 503, and cases cited. See, also arguendo, O’Brien v. Steel Co., 100 Mo. 182, 13 S.W. 402, 18 Am. St. Rep. 536, and Glaser v. Rothschild, 106 Mo. App. 418, 80 S.W. 332; Kelly v. Benas, 217 Mo. 1, 116 S.W. 559 (20 L.R.A. (N.S.) 903). A bare licensee (barring wantonness, or some form of intentional wrong or active negligence by the owner or occupier) takes the premises as he finds them. * * * Mere permission, without more, involves ‘leave and license,’ but bestows no right to care. If A. gives B. leave to hunt mushrooms for his table in A.’s field, and B. fall into a ditch or uncovered pit, and is harmed, no duty was raised, no breach is made, and hence no action lies. As put by way of illustration in the books, suppose A. owns a sea view, a cliff, and gives B. permission to walk on the edge of the cliff for pleasure or air, it would be absurd to contend that such leave cast on A. the burden of fencing the cliff to keep B. fro.m falling off.”

Surely it cannot be said that the owner here failed in any duty it owed to Vargas as a licensee. There was no defect in the premises; there was no defect in the bottling machine; there was no negligence in its operation; the bottles were purchased from a reputable concern and were inspected before being put into use and again as they were passing through the bottling machine. The defendant complied with its full duty.

But, even if it be conceded that the status of Vargas was that of invitee,' we do not think that, under the facts as they appear , in the record, any liability could be fastened upon the defendant.

The only question of fact which is in « any way in controversy is whether or not the bottle in question fell over as the result of a defective bottom and broke as the result of the fall, or exploded as the result of an inherent latent defect.

The record shows that in the best regulated plants such explosions occur with considerable frequency, as the result of latent weakness in the bottles. In fact it is testified that it is impossible to manufacture bottles which will not contain latent, undicoverable defects, and that, for this reason, manufacturing plants allow an average of 2 per cent, in bottles of this character. This means that they realize that two in every one hundred bottles will contain such defects as cannot be discovered by examination or test. In view of this fact, we are not inclined to place much reliance on the statement of Arrington that he saw the bottle fall over, and that then the explosion occurred, because, in fact, if he saw the bottle fall, he would certainly have told Vargas about it before the suit was filed, and, if he had told Vargas, the petition would not have contained the allegation that the cause of the explosion was unknown, for it is evident that the cause, under those circumstances, would have been the falling of the bottle, and Vargas would have alleged that the bottle exploded as the result of the fall and that the fall was caused by negligence of the employees in failing to detect a defect. The owner of the premises is not the insurer of the safety even of the invitee. He is bound to take such precautions as lie within his power to prevent the injury, and the record convinces us that the defendant took such precautions in this instance.

The trial court was of the opinion that defendant was not liable, and in this view we concur.

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


author: WESTERPIELD, J.

text:
    No. 11,912
    Orleans
    CHARLES v. POER
    (March 10, 1930. Opinion and Decree.)
    Leo L. Dubourg and Dart & Dart, of New Orleans, attorneys for plaintiff, appellee.
    H. W. Kaiser, Thomas Tomeny and John H. Hammel, Jr., of New Orleans, attorneys for defendant, appellant.
   WESTERPIELD, J.

Plaintiff, an electrical contractor, brings this suit against the defendant for the sum of $340 alleging that $297 of that amount was due him under a written contract, and the remainder as compensation for extra work not provided for in the contract.

There was judgment below as prayed for, and defendant has appealed.

The defendant Poer, an experienced real estate dealer, requested the New Orleans Public Service, Inc., to send a representative to a building which he was constructing for his own account, and without a contractor or architect, in order that he might be supplied with an estimate of the cost of electrical wiring and fixtures, which he desired to Jiave installed in the. building. The public service company, in response to defendant’s request, sent two men to the premises, Heintz and Andry. Heintz represented the plaintiff Elliot M. Charles, and Andry was an employee of the public service company. Poer. informed Messrs. Heintz and Andry of the number and character of fixtures desired and their location in the premises, whereupon a form of contract was prepared which, omitting the fixtures to be . installed, reads as follows:

“E. M. Charles, Electrical Contractor

“Wiring, Repairing, Fixtures.

“1314 Tulane Avenue.

“New Orleans, La. 9-10 1927

“An agreement between N. O. P. S. Inc. and E. M. Charles to install the following electrical work in premises of Mr. W. L. Poer at 2611-13 St. James Street.

“List of electrical fixtures.

“The above to be installed for the sum of $297.00 to be paid immediately upon completion of the work and approval of the work installed by us is to be furnished by the City Electrician.

“Accepted W. L. Poer (Signed).”

This instrument bears no other signature than that of Mr. Poer, and it is Poer’s contention that it evidences a contract between himself and the public service. He insists that he did not know that Charles had anything to do wth it, but thought he was dealing with the public service, with which corporation he had had, satisfactory dealings in the past, and that if he had known that Charles was to. do the work, he would not have consented to have him do it. He also says that he signed this paper in blank, and that the substance of the contract with reference to the fixtures was, thereafter, inserted. He defends on other, grounds which need not be noticed at this time.

The record indicates that the New Orleans Public Service does not ordinarily undertake contracts for wiring but, that as an inducement for individuals to have t'lieir premises wired, and in order that they might become its customers for electrical current, it finances such contracts under what is called the “Club Plan.” The “Club Plan” contemplates the division of the cost into twelve monthly installments, which are added to the monthly bills of the customers for electrical current. That when this plan is adopted, the public service contracts with some local contractor for the «installation of the work, the plaintiff Charles being often engaged for that purpose. It was Poer’s original intention to have his property wired on, the club plan, but the estimate on that basis was something in excess of $300, which he considered too much and concluded to pay cash. Inasmuch as the public service does not undertake wiring on a cash basis, its agent, Andry, obtained a. letter from Mr. Poer which reads as follows:

“New Orleans, La. Dated 9-10-27

“New Orleans Public Service, Inc. Wiring Department.

“Gentlemen: Through Mr. G. V. Andry salesman in wiring department, I have decided to wire premises No. 2611-13 St. James Avenue, through Mr. E. M. Charles, Electrical contractor for cash, for the sum of $297.00 and not taking advantage of your Club Plan Offer.

“Yours very truly,

“(Signed) W. L. Poer, owner

“444-46 Audubon Bldg., address.”

When confronted with this letter on the witness stand, Mr. Poer admitted his signature but denied any knowledge of its contents.

The plaintiff Charles performed his obligation under the contract, though not altogether to the satisfaction of Mr. Poer, and demanded his compensation which, being refused, this suit followed.

Our conclusion is that the judgment of the trial court is correct. Whatever may have been the original intention of Mr. Poer as to his desire to contract with the public service, the facts developed by the record convince us that he intended to, and did contract with the plaintiff Charles. He signed the form of contract presented to him which clearly showed that Charles was to do the work, though for the public service, and he signed the letter, the effect of which was to supplant the public service as a party to the contract with Charles.

The other defenses which referred to the manner of the execution of the contract and the location of the fixtures are not insisted upon in this court, counsel stating in his argument that the only issue for our consideration being that of contract vel non.

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


author: WESTERFIELD, J.

text:
    No. 11,900
    Orleans
    FRANCIS v. SWIFT & COMPANY
    (March 10, 1930. Opinion and Decree.)
    Feitel & Feitel and N. H. Polmer, of New Orleans, attorneys for plaintiff, appellant.

      Chas. F. Fletchinger, of New Orleans, attorney for defendant, appellee.
   WESTERFIELD, J.

The plaintiff, a negro laborer, brings this suit under the Compensation Law (Act No. 20 of 1914, as amended), alleging that on February 25, 1928, he was engaged in sweeping oil from the bottom of an oil tank car of the defendant company; that due to the slippery condition of the bottom of the tank car, he fell and in some manner engaged his right leg in a series of coils into which live steam had been pumped; that before he could extricate his leg it was severely burned; that the defendant company paid-him $8.13 per week from the date of the accident until July 14, 1928, when further compensation was refused him; and that as a result of the burns which he received on his right ankle an injury has been caused to his nerve and muscle structure causing" him to be totally disabled from doing work of any reasonable character. He prays for judgment in the sum of $8.13 per week for 400 weeks subject to a credit of 18 weeks paid him by defendant.

Defendant answered admitting that plaintiff was burned on his right ankle as set forth in his petition, but avers that acting upon the advice given it by medical experts whom it employed, to the effect that plaintiff had entirely recovered from his injury, it declined to pay further compensation.

There was judgment for defendant dismissing plaintiff’s suit, and plaintiff has appealed.

We find it difficult from the record to determine just what ailment plaintiff claims to have been afflicted with. It is sometimes referred to as neuritis, sometimes as sciatica, and again as sciatic rheumatism, and at least on one occasion as a deferred sciatica pain. Perhaps all of these descriptive terms refer to the same thing, and perhaps they do not, but in any event it is fairly definite that the location of plaintiff’s malady is in his hip, and he contends that it results in a severe pain in his leg which interferes with his ability to walk.

Not one of the four or five medical experts, whose testimony appears in the record, appears very certain as to the reality of the pain of wnich the plaintiff complains; but, assuming his condition to be as serious as he contends, the evidence is overwhelmingly to the effect that sciatica, neuritis, etc., could not have been caused as a result of the burn on his right ankle. In the first place, an injury to the nerve in the region of the ankle cannot affect the sciatic nerve in the hip, since the doctors explain that nervous degeneration takes place from the nerve center and not to it; the anatomical construction of the nerves being such that impulses go from above downward. Nor is there any support in the record for the theory advanced by plaintiff’s counsel to the effect that the injury to plaintiff’s ankle served to awaken into activity a dormant disease which manifested itself in this case in the form of sciatica, as was the case ■ considered in Behan vs. John B. Honor Co., Ltd., 143 La. 348, 78 So. 589, where the court said:

“The proof goes no further, in support of the defense of this suit, than to show that the plaintiff might, and iperhaps would, at some time, have become disabled by the disease that was lurking in his system, even if the accident complained of had not happened. And that is not much more of a defense than to say that every man must some day come to the end of his worldly career, accident or no accident.”

See also Henderson vs. La. Power Co., 9 La. App. 475, 121 So. 217; Wilkinson vs. Dubach Mill Company, 2 La. App. 249.

In the case at bar, by the clear weight of the medical testimony, the burn to the plaintiff’s ankle could not create sciatica nor aggravate any pre-existing malady which may he said to have been lurking in his system so as to produce the effect complained of by plaintiff.

We are asked to disregard the medical testimony in the record, though it is admittedly given by men of the highest standing in their profession, and to consider only the fact that prior to the injury plaintiff had no sciatica and subsequently thereto he developed this trouble without any apparent reason. We are referred to the case of Hammons vs. Southern Carbon Co., 5 La. App. 189, in this connection. In that case we said:

“We find that the evidence thus establishes that the plaintiff was able to perform manual labor prior to and on the date of the accident and that following the accident he was unable to do manual labor, and that this condition of disability continued to the time of the trial, and we conclude these circumstances make out a prima facie right to recover.”

But a prima facie case must yield to proof of the contrary, and in the case at bar it has been demonstrated to our entire satisfaction that whatever malady affects the plaintiff, whether permanent or otherwise, it has nothing to do with the original accident, the burn to plaintiff’s ankle, and there can be no liability on defendant’s part except for the consequences of the injury received in the course of plaintiff’s employment. In cases of this kind we must to a great extent rely upon the testimony of medical experts.

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


author: JANyiER, J.

text:
    No. 11,671
    Orleans
    WEIS v. PAN-AMERICAN PETROLEUM CORPORATION
    (January 27, 1930. Opinion and Decree.)
    (February 17, 1930. Rehearing Granted. Quantum Only.)
    (March 31, 1930. Writ of Certiorari and Review Refused by Supreme Court.)

      McCaleb & McCaleb, of New Orleans, attorneys for plaintiff, appellee.
    Cobb & Jones and Herman M. Baginsky,. of New Orleans, attorneys for defendant, appellant.
   JANyiER, J.

Plaintiff claims from defendant $1,500, alleging that he was damaged to that extent by reason of the wrecking of his automobile by one Wegmann, the night attendant employed by defendant at its Lee Circle service station and garage. Shortly before midnight, Weis drove his car into defendant’s service station and garage and reguested that it be greased and oiled. In accordance with a custom which he had followed at the same garage many times previously, he left the car with the night attendant, telling him that he would call for it in the morning.

During the night the car was taken out of the garage by the attendant Wegmann for his own purposes, and, while it was being operated by him, it was very seriously damaged. Next day, when Weis called for the car, he was told by Mx. Carruth, manager of the various service stations of defendant: “I am sorry, but our man got drunk last night and took your car out and wrecked it.” Thereupon Mr. Weis, who, together with some of the employees of defendant company, went to the scene of the wreck and looked over the car, stated that he would have nothing to. do with the car, that it no longer belonged to him, and he refused to take charge of the wreckage.

Defendant contends that it is not liable because the employee, Wegmann, in taking the car out of the garage, was not acting within the scope of his employment, and because it (defendant), in employing Wegmann, had exercised due care in an effort to determine that he was a responsible, careful man. It thus appears that the contention of defendant is that, since Wegmann was employed to guard the car and to keep it in the garage, his act in taking it out was a departure from his duty to such an extent as to relieve the employer from liability for the results thereof. A case practically identical with this was decided by us on January 13, 1929, Gulf & Ship Island Railroad Co. vs. Sutter Motor Co. (No. 11645) 126 So. -, and in that case we held the garage owner 'liable. We frankly confess, however, that the question presented is not so free from doubt as it appeared to us when we rendered the decision referred to. The present case has been most ably argued, and while we are still of the opinion that, under the circumstances presented, the garage owner is liable, the authorities - cited in support of the contention of the defendant leave no room for doubt that the question is a very close one.

The authorities to which we refer, and which are most confidently relied on by defendant, are Sanderson vs. Collins, First King’s Bench Division, p. 628 (1904), and Firemen’s Fund Ins. Co. vs. Schreiber, 150 Wis. 42, 135 N. W. 507, 518, 45 L. R. A. (N. S.) 314, Ann. Cas. 1913E, 823 (1912). In the Sanderson case the facts were as follows:

"The defendant sent his carriage to be repaired by the plaintiff, who was a coach-builder. The plaintiff lent a carriage of his own to the defendant for use while the repairs were going on. The coachman of the defendant, without his knowledge, took the plaintiff’s carriage out for his own purposes, and while he was driving the carriage it was injured through his negligence. In an action to recover the cost of repairing it:

“Held, that as' the coachman at the time when the injury was done to the carriage was not acting in the course of his employment, the defendant was not liable.”

We believe, however, that the Sanderson case can be distinguished from the one now before us on the ground, as was stated in the dissenting opinion in Firemen’s Fund Ins. Co. vs. Schreiber:

“It does not. appear that the coachman was charged with any duty of caring for or protecting the machine during the night. It appears that when the coach was put in for the night the coach house was locked and the key left with the master or kept in the hall of his house.”

In other words, since the coachman’s duties in connection with the particular coach in question had entirely terminated, it was not within the scope of his employment to watch it or to take care of it, and when he feloniously extracted the key from the master’s possession and by its use withdrew the coach from the coach house, by no stretch of the imagination can it be said that he was doing anything even remotely connected with his duties as a servant of the master. In the Firemen’s Fund Insurance Company case, to which we have referred, the facts were almost identical with those presented in the case before us. We believe, however, that one of the facts in that case will serve to distinguish it from the instant case, and that fact is that the garage attendant, one Flynn, had completed his day’s work and had left the garage, and thereafter returned and took out the automobile in question.

It is quite true that the Supreme Court of Wisconsin, in that case, stated that it made no difference whether the taking out of the car occurred during Flynn’s working hours, or after his term of employment was over, but, after so stating, the court said:

“* * * vve are inclined to hold that Flynn returned to the garage for the machine, for an unlawful purpose formed after he had substantially quit service for the day, and so his act was outside the scope of his employment, even from respondent’s viewpoint.”

At any rate, we find ourselves unable to accept as sound the reasoning in the majority opinion, and feel that the minority opinion more nearly sets forth our views and Is more in accord with logic.

In most of the cases cited in the majority opinion, the facts are clearly distinguishable. For instance, in nearly all of them it appears that the servant whose negligent or deliberate act caused the damage had stepped aside from the particular purpose for which he was employed, and was rendering services entirely dissociated from those he was employed to perform. We can well understand that a master who is a bailee is not responsible for the acts of liis servant where the servant performs a service in no way connected with the duties he is employed to perform. But here the duty the servant was employed to perform was to keep the automobile in the garage and see that it was not taken out improperly by any person. It is manifest that, in the performance of that duty, it was incumbent upon him to see that the machin-' was removed by no other person, and particularly was he under a duty not to remove it himself. In the majority opinion in the Firemen’s Fund case, we find the following:

“Little time need be spent with the contention of appellant that the scope of Flynn’s employment was confined to washing machines. He was the night-man at the garage. That is plain. One of the duties of night-men, evidently, is to wash machines. Necessarily, his duties required him to prevent unauthorized interference with machines, to open and close the place as necessary to accommodate customers in taking out or putting them up, and to assist if necessary. The difficulty was that he violated the very purpose of his employment, instead of acting within the scope of it, in committing the trespass. It is hard to conceive a more plain case of stepping completely aside from the scope of one’s employment, within the rule stated, than occurred in this case.”

It appears to us that the reasons given which we have just quoted are ample authority for a contrary holding, and we agree with the minority opinion, which, in discussing the language which we have just above quoted, states:

'“The opinion of the court seems to be grounded upon the proposition that the agent Flynn stepped aside from the scope of his duty in the circumstances causing the injury, and appears to ignore the proposition of law which makes the principal liable for the acts of the agent in violating the duty of the principal delegated to the agent to perform. An examination of the authorities will show that there is considerable confusion in the books as to when the principal may escape liability for the acts of the agent outside of- the scope of his duty, or, more accurately speaking, when the agent is outside the scope of his duty in the particular case. The confusion results from determining upon the facts of each case when the agent is and when he is not acting outside of the scope of his duty. In the case at bar, however, it would seem plain under the authorities heretofore cited, as well as numerous others which might be cited, that no serious question respecting the scope of Flynn’s duty arises in this case, because the defendant, being a bailee for hire, and bound under his contract to protect the machine, and having delegated that duty to Flynn, was liable for the breach of that duty by him.”

It seems to us clear that, since the bailee himself would have been responsible had he been personally in charge of the garage, and had he taken the car out himself and wrecked it, he cannot escape liability by showing that he delegated the duty of guarding the car to a servant and that the servant violated that duty. Many of the cases relied upon by defendant, and many cases cited in the two decisions to which we have referred, are instances in which it was held that the master was not liable to third persons who were injured by the servant unlawfully using the vehicle intrusted to the master by others. But those cases are based on the law of liability for tort, and not on the contractual liability of the bailee for hire.

In Corbett vs. Smeraldo, 91 N. J. Law, 29, 102 A. 889, the Supreme Court of New Jersey considered a case in which the facts were:

“An automobile was stored with the owner of a garage at an agreed price for care and .storage. The defendant’s night man in charge of the garage took the automobile out for his own purposes, and damaged it.”

The court said:

“We think this case does not involve the question of the master’s responsibility for the tortious acts of his servants. It involves rather the question of the master’s liability for breach of his own contract.”

In discussing the case of Firemen’s Fund Ins. Co. vs. Schreiber, supra, the New Jersey court said:

“We are referred to Firemen’s Fund Ins. Co. v. Schreiber, 150 Wis. 42, 135 N. W. 507, 45 L. R. A. (N. S.) 314, Ann. Cas. 1913E, 823, as holding a contrary view. The authority of that case is much shaken by the dissent of three out of seven judges, and by the fact that the lower court was reversed. Giving it, however, all the force that can legitimately be claimed, it is not in point. The case did not arise between bailor and bailee, and did not involve the terms of the contract. It was a suit by an insurance company against the bailee for the tort of his servant, and the defendant’s liability was necessarily dependent on the application of the rule of respondeat superior.”

In Vannatta vs. Tolliver, 82 Pa. Super. Ct. 546, the facts were: The plaintiff left his automobile with the defendant, a garage keeper, who agreed, for a consideration, to store and wash it. While the car was in defendant’s garage, it was taken therefrom without the knowledge or consent of the plaintiff or defendant, but with the consent of the defendant’s employee, the night man, who was in charge of the garage. The person who was permitted to take out the car caused it to collide with a truck and the car was damaged. The appellate court said:

“Starting with the premise that the defendant was bound to exercise reasonable and ordinary care, when he transferred this duty to his servant, he continued to be responsible for its proper exercise. A man cannot at the same time receive money which is to pay him for the performance of a duty and by shifting the responsibility to his servant, relieve himself from liability for a violation of the contract of bailment and the duties attending it. ‘The only ground upon which a master can avoid liability for unauthorized and willful acts of a servant is that they are not done in the course of the servant’s employment. When they are so done, the master is responsible for them. When not so done, yet if they directly cause a failure to perform a duty incumbent upon the master, he is responsible on that ground. Where the servant by his wrongful act deprives the plaintiff of the benefit of some act which it was the duty of the master to perform and performance of which is, in whole or in part, delegated to that servant, the master is responsible for the servant’s act, no matter how willful, malicious and unauthorized it may be,’ Sherman & Red-field, Law of Negligence, sections 150, 154, 6th Ed.”

In a very similar case, McLain vs. Automobile Company, 72 W. Va. 738, 79 S. E. 731, 732, 48 L. R. A. (N. S.) 561, Am. Cas. 1915D, 956, the Supreme Court of West Virginia used the following language:

“The garage keeper can not leave the garage solely in the hands of a servant and then say that his negligence in letting a car out is beyond the scope of his employment. That would leave the garage without anyone to protect cars; in itself it would be want of reasonable care.”

See Maynard vs. James, 109 Conn. 365, 146 A. 614.

In Wood on Master and Servant, sec. 321, p. 644, we find the following:

“When by contract, or by statute, the master is bound to do certain things, if he intrusts the performance of that duty to another, he becomes absolutely responsible for the manner in which the duty is performed, precisely the same as though he himself had performed it, and that without any reference to the question whether the servant was authorized to do the particular act; while, when the action sounds entirely in tort, lack of authority on the part of the servant avoids liability.” As was well said in Evans vs. Williams et al., 232 Ill. App. 439:

“The actual work of guarding the property may be delegated to an employee, and in the customary way of conducting many businesses this must be done during certain hours of the day, but the bailee is not thereby relieved from the personal obligation of his contract. An employee to whom such duty is delegated stands in the place of his employer and any negligence of this employee in protecting the property is the negligence of the employer, who can be made to respond in damages caused thereby. Any other rule would have a tendency to tempt a bailee to lessen his personal liability for damages by delegating to irresponsible servants the care of the property. This would be unjust to the bailor as increasing the risk to the property and decreasing his chances of obtaining adequate “ compensation for damages thereto. The primary and essential object of this contract of bailment was the safety of the automobile, and no rule of law should tend to diminish this by putting a premium on lack of personal attention.”

Whatever may be the rule in other states —and our examination of the many authorities, some of which we have referred to, leads us to the view that, in the majority of other jurisdictions, the bailee is liable in such cases as this — certain it is that in this state there are no authorities to the effect that the bailee is not liable for the intentional wrongful conversion by his servant of an article intrusted to the servant, and we therefore feel at liberty to follow the rule laid down by us in Gulf & Ship Island Railroad Co. vs. Sutter Motor Co., supra, and to again hold that the bailee is liable if the act of his servant grows out of his employment, and is an act which, if properly done, would have been within the scope of his employment.

Here, if the servant had properly guarded the car, not only against others, but against his own illegal acts, he would have been acting within the scope of his employment and the damage would not have occurred. Since it was his duty to guard the car, his failure to do so was a breach of a duty within the scope of his employment.

Defendant complains of the action of the district court in refusing to allow it to submit evidence tending to show that it had been careful in the selection of the night attendant. In view of the opinion which we have expressed, that the master is liable for the actions of the night attendant done in connection with the work which he was employed to do, it is immaterial whether or not the master had exercised proper care in selecting the servant, and it therefore appears that the ruling of the trial court was correct on this point.

Our view that the defendant is liable-makes it necessary that we now consider the question of. the amount of damage caused to defendant.

The automobile new had cost $1,500, a little more than a year prior to the accident. It had run a little more than 10,000 miles. The original tires were on it. It had never been repaired, and was therefore probably in need of a more or less thorough overhauling. The trial court allowed plaintiff $1,200. In our judgment this is more than he is entitled to.

In these cases in which a used automobile is badly damaged, or in effect demolished, it is most difficult to arrive at a figure which will adequately compensate plaintiff without improperly and excessively burdening defendant.

In the first place, it is certain that plaintiff was not within his rights in abandoning his property and in refusing to have anything more to do with it. It was his duty to use all reasonable means to protect the wreckage and to minimize his loss. It is evident that his loss could be minimized by saving the wreckage, either to the end that it might be traded in on a new car, or to the end that it might be sold for salvage purposes, or possibly with a view of repairing it and putting it back into the condition in which it. was prior to the accident. The evidence leaves fis of the opinion that the automobile could have been put back into a condition very nearly resembling that in which it was prior to the occurrence, for not more than $534.75. It is true that some of the witnesses contend that a smaller sum would be sufficient to put it back into its prior condition, but we think that any doubt on this point should be resolved in favor of the plaintiff.

It should also be borne in mind, as was testified to by some of the witnesses, that a car so badly damaged as this was can never be put back into its prior condition. We therefore believe that the proper way to estimate the damage is to force plaintiff to take back his wrecked car and to award him a judgment for the amount which will undoubtedly cover the cost of making all repairs which are apparently necessary. In addition to this sum, we' believe that he should be allowed some amount to co: pensate him for the depreciated value of his car resulting from the fact that a car so badly damaged can never be put back into its exact prior condition. We think that a sum of $150 woiild about represent this additional depreciation. This means that plaintiff will recover $684.75, which he may or may not, at his option, expend in the repairing of his damaged car. If the wreckage is worth something between $100 and $200, as is testified to, the mathematical result will be that plaintiff will be the owner of wreckage valued at, say $150, and of $684.75 in cash, or $834.75, which, in view of the evidence as to the depreciation of automobiles after one year’s use, is certainly as much as the car could have been sold for had it not been wrecked.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be and it is amended by reducing the amount thereof to $684.75, and as thus amended it is affirmed. Appellee to pay costs of this appeal.

ON REHEARING

A careful review of the record convinces us that the amount awarded plaintiff in our former decree will not fully compensate him for his loss.

We have concluded that the items of $150, which we included as compensation for the depreciation suffered by reason of the fact that the automobile, even after all apparent damage has been repaired, will still not be as good as it was before the accident, should be increased to $350.

It is therefore ordered, adjudged and decreed that our former decree he amended so as to increase the amount therein awarded to $884.75, and, as thus amended, reinstated. Appellee to pay costs of appeal.


text:
    No. 10,716
    Orleans
    McLAIN v. N. O. PUBLIC SERVICE INC.
    (March 10, 1930. Opinion and Decree.)
    Jos. F. Deynoodt and Solomon S. Goldman, of New Orleans, attorneys for plaintiff, appellant.
    Ivy G. Kittredge, of' New Orleans, attorney for defendant, appellee.
   WESTERFIELD, J.

Plaintiff brings this suit under the Workmen’s Compensation Law (Act No. 20 of 1914, as amended), claiming to have received in the course of his employment an injury to his eyes as a consequence of being exposed to the intense glare of an electric welding machine, as a result of which, it is alleged, a catai’act developed in his left eye, destroying his sight and impairing the vision in his right eye. The trial judge, in dismissing plaintiff’s suit, gave the following reasons:

“Two questions are involved: First, did the plaintiff receive a flash in his eyes from the electric welding machine as he and his witnesses say, and if so was the cataract which subsequently developed in one of his eyes caused by this flash?

“On the first question the plaintiff testifies that on the night of the accident he had instructed the men in charge of the electric welder not to begin work on a cross-over until after he, the plaintiff, and. the workmen of his gang had finished putting a cross-over in position, and that while he was stooping over the rail instructing the workmen how to attach a fish-plate, the electric current was turned on and the electrode of the welder brought in contact with the rail causing an arc or flash, as he was at a distance variously stated from four to six feet away. He says he received the full force of the flash in one of his eyes, following which in the course of several weeks the cataract developed. He is corroborated in this statement by his workmen.

“On the other hand, the defendant’s witnesses testify that it would be impracticable, if not impossible, to do the work which the welder was required to do on the crossover after it was put in position in the tracks, and, as a matter of fact, it is testified by the defendant’s supervisor, the welder and the welder’s helper, that the work which was done on the cross-over was done while it was lying in between the tracks on the neutral ground in Canal Street before it was put in place and before plaintiff arrived on the scene.

“I am bound to say that these witnesses impressed me as being truthful, and certainly there was nothing in their behavior on the stand which would lead me to believe that a conspiracy of perjury existed among them. It is impossible to say, therefore, that the plaintiff by a preponderance of evidence has made out his case on this point. It is unnecessary, therefore, to consider the second point.

“Judgment for defendant.”

In criticizing the opinion of the trial judge, able counsel point to the. fact that three months elapsed between the taking of the testimony and the decision of the case, as having affected the court’s recollection of the testimony. Whether this be true, we cannot say, but, after reviewing the record of nearly five hundred pages, we are of opinion that his finding of fact, upon which his judgment is predicated, is correct.

We might add that, if we and our brother below are in error as to the first point, plaintiff could fare no better on the second •phase of the case, for the record has convinced us that exposure to the glare of the welding machine at the distance- which plaintiff claims he was from the machine, and under the circumstances obtaining, could not have produced .the cataract in his eyes.

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


author: HIGGINS, J.

text:
    No. 11,927
    Orleans
    BETZ-LEVY-MAIER, INC., v. BORNWASSER
    (March 24, 1930. Opinion and Decree.)

      Paul H. Maloney, of New Orleans, attorney for plaintiff, appellee.
    Rudolph O. Vorbuseh, of New Orleans, at- . torney for defendant, appellant. i
   HIGGINS, J.

.Plaintiff, a real estate broker, sties defendant for the sum of $480 ' commission and 25 per certt additional, as attorneys’ fees, alleged to have been earned under the provisions of a written contract between the parties dated January 4, 1928.

Defendant denied liability and alleged that the contract was voluntarily canceled on May 4 or 5, 1928, and that on May 11, 1928, he verbally agreed to sell the property to one Jacob Seelig who made an application to the homestead for a loan to finance the purchase on the same day and that the sale was effected on May 23, 1928, for the sum of $11,000. Defendant further pleaded that the contract was entered into with the commercial co-partnership of Betz & Maier and not with the plaintiff.

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

The pertinent part of the written contract ‘ reads as follows:

“I employ you or your successors, exclusively to sell same for $12,000.00 cash, or on the following terms: or for any other price, or terms hereafter agreed upon, and I agree to pay you or your successors, a commission at the regular rate of four per cent on the gross amount of any agreement to sell or exchange bearing on said •property made during the existence of this contract, or on the gross amount of any such agreement made within forty-five days after the expiration or termination of this contract, with anyone to whom said property has been quoted, during the term of this contract.

“I give you exclusive authority, to accept a non-interest bearing deposit of ten per cent of the sale price, when satisfactory offer to purchase said property is made, and to place said deposit in any bank you may select without responsibility on your part in case of failure to suspension of said bank pending settlement with me, ’ out of which deposit you may deduct’ your commission as above. In case of employment of counsel to enforce this contract, I will pay twenty-five per cent additional as attorney’s fees, also all costs.

“As you are to act upon the faith of this employment and contract, it is to remain in full force and effect for a period of six months.

“I agree to refer all applicants to you, and not to interfere in the sale of said property, during the term of this contract.”

The record shows that the plaintiff is the successor of Betz & Maier, and that a bona fide effort was made to sell the property by advertising it through the newspapers in the city of New Orleans. He produced a prospect in February, 1928, who was willing to pay the sum -of $11,000, but defendant insisted on $11,250, with the result that the negotiations were broken off.

On the issue as to what date the contract was canceled, the plaintiff’s evidence consisted of testimony of Mr. Maier, one of the officers ’ of the corporation, and Mrs. McCarthy, a stenographer, who state positively that the contract was marked canceled, and returned on May 12th, upon the representation of the defendant that he had decided hot to sell the property and was going to ’ make certain repairs which the tenants in the apartments requested in order -that their leases : might be renewed. These ■ witnesses' 'testified' that the defendant agreed- to' renew the contract to sell the property after the improvements were made. The only evidence produced by the defendant on this issue is his own testimony, and he frankly admits that he is not positive of the exact date that the contract was canceled and returned to him but believes it was on May 4th or 5th. He denies having made any misrepresentations in order to secure the cancellation of the contract, and that he had agreed to renew it.

We are of the opinion that the contract was marked canceled, and returned on May 12, 1928. The records of the homestead show that application .was made by the purchaser of the property on May 11, 1928, so that at the time defendant requested the return of his contract he was negotiating with the purchaser of the property to sell it to him. While the contract of sale between the defendant and the purchaser was verbal, nevertheless title was passed on May 23, 1928, and, therefore, while the contract was still in force and effect, provided its cancellation was illegally obtained.

The contract specifically provides that the defendant, as owner, would refer all applicants to purchase the property to the agent. Defendant failed to comply with this provision of the contract when he began the negotiations for the sale of the property on May 11, 1928. We are quite certain that if defendant had informed plaintiff that these negotiations were taking place that the plaintiff would not have canceled the contract and returned it to the defendant. We find that the contract was canceled through misrepresentation.

This court held in the case of Harvey vs. Sehrt, 126 So. 568, decided March 10th, 1930, that:

“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 v. Hirsch, No. 7518 Orleans App., see Louisiana and Southern Digest; Freeman v. Diboll, 11 Orl. App. 199; Kostmayer v. Landry, 12 Orl. App. 385.”

As only issues of fact are involved and the judge a quo decided these issues in favor of the plaintiff a careful reading of the record fails to convince us that there is any manifest error.

■ The contract contains the express stipulation that the defendant would pay Betz & Maier as real estate brokers or rheir successors a commission of 4 per cent. The evidence shows that the plaintiff is the successor of Betz & Maier and, therefore, has the right to bring this suit.

There is one slight error in the judgment, the judgment of the lower court allowed interest from May 11, 1928, whereas the act of sale did not take place until May 23, 1928, and the interest should begin from that date, the commission being due from that date as no deposit was made by the purchaser. Succession of Kerry vs. Freed Realty Co., 6 La. App. 437; Page vs. Russell, 7 La. App. 129; C. C. arts. 1940, 2922, and 2924.

It is therefore ordered, adjudged, and decreed that the- judgment appealed 'from be and it is amended by allowing legal interest at the rate of 5 per cent from May 23, 1928, until paid and as thus amended is affirmed. Appellant to pay all costs.


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    No. 11,932
    Orleans
    ITTMAN ET AL. v. KRACKE & FLANDERS COMPANY
    (March 24, 1930. Opinion and Decree.)
    Monroe & Lemann, Jas. Wilkinson and Walter J. Suthon, Jr., of New Orleans, attorneys for plaintiffs, appellees.

      A. J. Peters, of New Orleans, attorney for defendant, appellant.
   HIGGINS, J.

This is a rule by a receiver against a mortgage creditor to recover certain taxes paid by the receiver on a piece of real estate upon which the mortgage creditor held a conventional mortgage. The defendant in rule denied liability, -and alleges that the receiver should have paid the taxes from certain rents realized from the real estate. There was judgment making the rule absolute, and the defendant has appealed.

The record shows that the receiver was appointed on September 26, 1923. The receiver paid the state and city taxes for the year of 1923 on January 31, 1924, with subrogation, out of the general funds of the receivership by order of court, on certain real estate belonging to the company that was in the hands of the receiver. Defendant in rule held a mortgage for $24,000 on this property. In February, 1924, the receiver obtained an order for the sale of the mortgaged property on the terms of cash, the purchaser to assume the taxes of 1924. Defendant in rule, mortgage creditor, became the adjudicatee of the property for a price less than his conventional mortgage, and claimed the right to retain in his hands the amount of the purchase price, on the ground that he was a .mortgage and preferred creditor. The receiver contended that the defendant in rule, as a mortgage creditor, should pay the taxes of 1923, to which the receiver was subrogated, and defendant in rule refused to do so. In appropriate proceedings the district court held that the mortgage creditor should pay these taxes to the receiver, and the judgment was affirmed by this court with a reservation. See A. C. Ittman et al. vs. Kracke & Flanders Co., 1 La. App. 761. The reservation in this decree of affirmance is stated by this court in the following language:

“Flanders alleges that the Receiver collected rents from the mortgaged property .and that they should be applied to the payment of these taxes.

“There is no evidence of any rent having been collected by the Receiver from the mortgaged premises. The right of B. A. Flanders to establish the same and to claim them, if legally entitled to the same, will be reserved.

“It is therefore ordered that the judgment appealed from be affirmed, reserving the right of B. A. Flanders in a future proceeding to establish what rents were collected by the Receiver herein from the properties mortgaged to him, and to claim them if legally entitled to the same.”

The receiver filed the present rule against the mortgage creditor to show cause why the taxes should not be paid, and the defendant in rule contends that the receiver collected sufficient rent from the real estate before the adjudication with which to pay these taxes for the year of 1923. The rule was tried upon admissions, where it appears that the amount of rent collected by the receiver before the adjudication was sufficient to pay the taxes, and that the state and city taxes became delinquent on January 26 and 28, 1924, respectively, and were paid on January 3Í, 1924, under an order of court by the receiver, with subrogation. It was also admitted that the receiver occupied a portion of the property in operating the company’s business as a going concern.

Therefore the only question at issue in the present proceedings is whether the defendant in rule, as a mortgage creditor, had any right to require the receiver to pay the taxes from the rent collected from the mortgaged premises. To determine this issue, it is necessary to inquire if .the mortgage creditor had any lien or privilege upon the rents collected from the mortgaged premises. •

In order to establish a lien and privilege upon the rental income from the mortgaged property, the defendant in rule must be able to invoke some pertinent and applicable codal or statutory provision creating such a lien or privilege.

“The property of the debtor is the common pledge of his creditors, and the proceeds of its sale must be distributed among them ratably, unless there exists among the creditors some lawful causes of preference.” Article 3183, R. C. C.

“Lawful causes of preference ' are privilege and mortgages.” Article 3184, R. C. C.

“Privilege can be claimed only for those debts to which it is expressly granted in this Code.” Article 3185, R. C. C.

In the case of Young vs. Teutonia Bank & Trust Co., 134 La. 879, 64 So. 806, 810, the Supreme Court, said:

“There is in this state/ no such thing as an equitable lien on money, movables, or other property. With us a lien or privilege is stricti juris, and must be expressly created by law.”

Defendant in rule cannot claim any lien or privilege upon the rents by virtue of his mortgage, since the mortgage operates only on the immovable. C. C. art. 3281. Rent derived from real estate is classified as movable property. Article 474, R. C. C. It appears that it is permissible for a creditor to acquire a lien upon the revenues of immovable property by procuring a right of antichresis from the debtor. C. C. art. 3176 et seq. The record does not show any such security contract in the present case. That is the only legal method by which the defendant in rule could have acquired the lien which he now asserts upon the rents.

But, says counsel for defendant in rule, as the receiver continued to occupy a certain portion of the real estate where he continued to operate the company’s business as a going concern, and the state and city taxes for the year 1923 became delinquent on January 26 and .28, 1928, respectively, it was the obligation of the receiver to pay them, because going into the hands of the receiver did not absolve the company from liability to promptly pay its taxes. The fallacy of this contention lies in the fact that it assumes that there is personal liability upon the company, or its receiver, to pay the taxes. Under the provisions of Act 170 of 1898, the owner of real estate is not personally responsible for the payment of taxes. Section 33 of that act creates a lien and privilege in favor of the state only upon the immovable property upon which the tax is assessed. See, also, Succession of Finegan, 135 La. 475, 65 So. 614; Succession of Sussman, 168 La. 350, 122 So. 62.

Defendant in rule had the right to foreclose his mortgage at any time, in spite of the appointment of a receiver for the mortgage debtor. Act 25 of 1902; Carre Co. vs. International Car Co., 128 La. 664, 55 So. 9; Succession of Finegan, supra; Succession of Sussman, supra. By taking such action, the mortgage creditor could have acquired a lien upon the rental income of the mortgaged property from the date of its seizure by the sheriff in the foreclosure proceedings. C. C. art. 466; C. P. art. 656. The mortgage creditor did not foreclose the mortgage, and therefore has no lien or privilege upon the revenues of the mortgaged property.

As the mortgage creditor has failed to show that he is entitled to a lien and privilege upon the rentals of the mortgaged property, under any codal or statutory provision, his defense must fall, particularly in view of our familiar doctrine that all rights of preference are stricti juris.

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


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    No. 11,937
    Orleans
    BUNOL v. BUNOL
    (March 24, 1930. Opinion and Decree.)

      Spearing & Mabry, of New Orleans, attorneys for plaintiff, appellant.
    Delvaille H. Theard, of New Orleans, attorney for defendant, appellee.
   JANVIER, J.

Plaintiff is the widow of a soldier who, on January 6, 1918, died of meningitis while in camp at Alexandria, La. Defendant is the mother of the deceased soldier.

The body is at the present time interred in the family tomb of deceased’s mother. His widow, plaintiff, having finally saved or otherwise secured sufficient funds to purchase a burial plot and to erect a tomb thereon, desires, through this proceeding, to force the mother to permit the removal of the remains to the newly erected tomb.

Defendant, through an exception of no cause of action, secured a dismissal of the suit, and the widow is now before us on appeal from that judgment.

An exception of no cause of action necessarily admits the truth of the allegations of the petition, and we must therefore consider those allegations in an endeavor to determine whether, assuming that all that plaintiff says is true, she is entitled under the law to the relief she seeks. She alleges that she is the widow of the deceased; that he died in camp; “that at the time the Health Authorities of New Orleans refused to allow the body to be taken to petitioner’s home due to the cause of death of petitioner’s husband and ordered same to be buried direct from the railroad station; that at the time petitioner did not own a tomb or lot and under the circumstances above recited was unable to make arrangements for temporary interment by providing for the rental of a vault; that at the time petitioner not owning a tomb, she consented to have the body interred in the tomb of defendant, situated on lots 79 and 80 of section 90, situated in Metairie Cemetery wherein the body is at present, but such interment was intended by petitioner to be temporary and not permanent; that this interment was never intended by petitioner to be permanent, but merely a temporary disposition of the body until she made provisions for its permanent interment;’’ that she was financially unable to arrange for a tomb of her own for several' years, but finally did so and that, in October, 1924, the tomb was completed; that she thereupon sought the permission of the defendant to remove the remains and that such permission was refused; “that petitioner is unable to visit the present tomb in peace as frequently she comes in contact with the family and Mrs. Leontine Barrere Bunol whose manner is such as to clearly indicate that petitioner’s presence is not desired, which manner forces her to depart from the tomb, on one occasion petitioner so departing waited until Mrs. Leontine Barrere Bunol and her family had left the tomb and then petitioner returned that she might be there in peace, only to again be disturbed by the said Mrs. Leontine Barrere Bunol and her family by their returning a second time; that the said Mrs. Leontine Barrere Bunol, also, brought suit against petitioner relative to the rights of petitioner in the estate of her said deceased husband which shows the hostile attitude of the said defendant to petitioner; that due to these unfriendly actions and the hostile attitude of Mrs. Leontine Barrere Bunol to petitioner and the fact that petitioner practically from the time of her husband’s death has saved from her small means sufficient to pay for a lot and the erection of a tomb thereon that she might place therein her deceased husband’s remains and due to the fact that if her deceased husband’s remains are not placed in the tomb provided by her, that she upon her death will not be buried with him, your petitioner is entitled to the possession of the remains of her said deceased husband. That said Mrs. Leontine Barrere Bunol is the owner and exercises full control over the tomb in which petitioner’s deceased husband was interred.”

It is conceded that, upon the death of a husband or wife, the surviving spouse has a right superior to any next of kin to select the burial place. In Ruling Case Law the principle is stated as follows:

“It is generally conceded that on the death of a husband or wife, the primary and paramount right to possession of the body, and to control the burial or other legal disposition thereof, is in the surviving spouse, and not in the next of kin.” 8 R. C. L., Dead Body, II, 5.

But it is argued that, where the surviving spouse has once given consent to the interment in a certain spot, or tomb, then, as stated by Baudry-Lacantinerie (2d Ed.) Successions, vol. 2, No. 2127, p. 613:

“The designation (of place of burial), once made, is final; and the person who has made the choice cannot change the place of burial against the will of the other relatives.”

The law seems to be well settled ■ that, whereas the surviving spouse is vested with the initial right of the selection of the place of sepulture of the deceased, the right to require subsequent removal of the remains does not exist, unless such removal is made necessary by unusual circumstances. As it is expressed by Fuzier-Herman, Repertoire de Droit Francais, verbo “Inhumation et Sepulture,” vol. 24, p. 242, No. 93:

“Granting that on principle the husband has the privilege of controlling the mortal remains of his wife, and of determining where they shall rest, if the deceased has expressed no preference in that regard, the right is not absolute, and do.es not justify the husband in exacting after the first interment, that the remains of his wife should be transferred to a new tomb, unless the removal is made necessary by meritorious considerations of a paramount character.”

Fuzier-Herman cites with approval the following from Kiggen’s case, Tribunal of the Seine, August 4, 1858, Sirey for 1859, vol. 2, p. 165:

“It has been adjudged that, once the burial has taken place in a suitable location, with the consent of the surviving husband, he has no legal right to demand the disinterment of the remains of his spouse, against the wishes of the members of the family (especially, of the decedent’s father and mother) to remove them to another location.”

In Pandectes Francaises, Repertoire, verbo “Inhumation,” vol. 36, No. 173, p. 115, we find:

“When a person has been interred in a suitable place, with the consent of the surviving spouse, the latter cannot, against the wishes of the family, cause the remains to be disinterred.”

But, in all the authorities, and throughout the citations from the commentators, we find the doctrine that the right of the surviving spouse to remove the remains from the place of the first interment is only denied if there has been consent to the selection of the place of initial interment, and if there is no paramount necessity for removal. With reference to the right to remove- to a permanent resting place, unless the surviving spouse has consented to the location of the initial spot, we find, in Ruling Case Law, “Dead Bodies,” vol. 8, p. 692:

“If a man consents to the burial of the body of his deceased wife in the lot of another, he cannot after burial, enter on the lot and remove the body.”

- And in Corpus Juris, “Dead Bodies,” vol. 17, p. 1141, sec. 10, appears the following:

“Ordinarily, the surviving spouse of a deceased married person, who has consented to the burial of the deceased in a certain place, cannot afterward remove the remains against the will of the next of kin. * * *”

See, also, Cyc., “Dead Bodies,” vol. 13, p. 271, where it is said:

“Where the interment takes place by the consent, express or implied, of those most nearly interested, it is regarded in law as a final sepulture, and the courts will not, as a rule, allow a disinterment against the will of those who have the right to object.”

It appears, then, that plaintiff should not be deprived of the right to remove the remains of her husband to the tomb erected by her, unless she consented to the selection of the tomb owned by his mother, as the place of final sepulture.

We do not think that the allegations of the petition show that such consent as plaintiff gave to the interment was freely given, or that she intended or understood that the interment in.that tomb was more than temporary.

All the circumstances surrounding the giving of consent should be considered in determining whether it was freely given.

If the allegations of the petition be true —and we must so assume — she was not permitted, even momentarily, to bring her husband’s remains into her home and to have them to herself for even an instant, and she was a young widow, too poor “to make arrangements for temporary interment by providing for the rental of a vault.” Under these conditions and in this heartrending dilemma it was only natural that, when the family tomb was offered to her, she gratefully accepted the offer as the only way of escaping the terrifying thought of burying her husband in a pauper’s grave. Can it now be said that, because she did not at that time bargain with her mother-in-law and stipulate for the retention of the right to later remove the remains of her dead husband, she, by her failure, lost that right? At any rate, we are unable to say it.

The allegations show that at all times she felt that the burial place was only temporary, and that the removal would be effected as soon as financial conditions made it possible.

We do not intend in any sense to hold that the defendant used undue influence in securing from plaintiff such consent as was given by her, but merely that she was in no condition to realize that such consent as she did give might forever prevent her securing for interment in her own tomb the remains of her husband. If her consent, once given, could not have been withdrawn, she should have thought carefully over the possible effect of allowing her husband’s remains to be interred in the family tomb of her mother-in-law. As Publius Syrus, a famous Roman thinker, puts it:

“Deliberandum est diu quod statuendum est semel.” (That should be considered long which can be decided but once.)

But she was overwhelmed by her grief and was incapable of rational, calculating thought. We are told by Seneca, another Roman philosopher:

“Levis est dolor qui capere consilium potest.” (Light is the grief which is able to take counsel.)

But, in addition to our belief that the consent was not freely given and that she at no time intended to agree that the interment should he permanent, we feel that there ÍS another reason why the exception of no cause of action should have been overruled, and that is, that cases, of this kind, above all others, should be fully and completely tried, because no one of them is like any other one. Each contains facts entirely different from those involved in all others. As is said in Ruling Case Law, vol. 8, pp. 691 and 692:

“But there is no universal rule governing the right of removal. Each case must be considered in equity on its own merits. * * * Thus a surviving spouse may be permitted to remove the body of the deceased husband or wife under proper circumstances, as where the wife’s original interment was understood to be only temporary, or where from family hostility * * * the widow could not be buried beside the husband.”

The evidence, if permitted to be introduced, may show a most imperative need for the removal of the remains to the home built especially for them, and even defendant admits that removal is justified where there is an overpowering necessity therefor. If defendant and her blood relatives interfere with plaintiff in her freely visiting at the tomb of. her husband, this in itself creates a grave necessity for the removal requested. A loving wife, whose hopes of future earthly joy are dashed upon the rocks of mortality, should not be deprived of such melancholy happiness as she may be able to derive from the indulgence of her grief in retrospective contemplation, and if she feels that, as the immortal Thomas Hood puts it, “a little weeping would ease my heart,” she should not be . sacrilegiously disturbed in her sad rites. It is true, as La Fontaine tells us: “The miserable should be sacred.”

We feel that no harm can come to any one from a full investigation of the situation which is presented, and that a trial on the merits should be allowed, because it appears to us that there are sufficient allegations in the petition to permit of the introduction of proof, which proof, if available, will warrant a judgment for plaintiff.

The judgment appealed from is therefore annulled, avoided, and reversed, and the matter is remanded to the district court for further proceedings according to law, and not inconsistent with the views herein expressed.


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    No. 11,858
    Orleans
    BERRYHILL v. BURGLASS
    (March 10, 1930. Opinion and Decree.)

      Edward Rightor, Solomon S. Goldman and Edwin J. Prinz, of New Orleans, attorneys for defendant, appellee.
    Chas. J. Mundy, of New Orleans, attorney for plaintiff appellant.
   WESTERFIELD, J.

Plaintiff purchased some household furniture from the defendant, Burglass, and agreed to pay for same in installments. She defaulted in her payments and the property was sequestered, released, and then sequestered again. The last time the property was seized it was placed by the sheriff in the warehouse of the defendant. Plaintiff subsequently paid the balance due on the furniture and the seizure was released. When she endeavored to repossess it, she claimed that the articles tendered her by defendant were not the same as those which she had purchased. She refused to accept them and brought this suit for $465, the purchase price of the furniture.

The trial court denied plaintiff’s right to recover the amount sued for and ordered defendant to deliver -to plaintiff the furniture which he had tendered. From this judgment (plaintiff has appealed.

The record indicates that there is some doubt as to whether the furniture tendered by Burglass is in every respect identical with that which he had obtained possession of under the writ of sequestration. It is doubtless true that some of the articles are not the same, but we are convinced that it is equally true that, where there has been any substitution, the substituted articles were of equal value and of the same kind and character as those which they replaced. The trial judge took the trouble to visit plaintiff’s warehouse and view the furniture; consequently his judgment on this disputed question of fact is entitled to great respect.

The contention of counsel that his client was entitled to have the identical property returned to her, and not similar property of the same value, is not well-founded. The same contention was made in Mulligan vs. Yallee et al., 31 La. Ann. 375, where the court held it to be unsound.

For the reasons assigned the judgment appealed from is affirmed.