text:
    No. 3137
    Second Circuit
    COMMERCIAL CREDIT COMPANY, INC. v. GATLIN-McDONALD MOTOR COMPANY
    (December 21, 1927. Opinion and Decree)

      (Syllabus by the Court)
    1. Louisiana Digest — Bills and Notes— Par. 141, 142.
    The transferror of a promissory note without warranty warrants that all prior parties thereto had capacity to contract.
    Negotiable Instruments Law (Act No. 64 of 1904), Section 65, Subsection 3.
    2. Louisiana Digest — Indemnity — Par. 5; Estoppel — Par. 42, 46, 52.
    Where the transferee of a promissory note without warranty sues the maker who interposes the plea of minority and the transferee timely notifies the transferror in writing of such defense and invites his aid in defeating the plea and the transferror refuses or neglects to render any and judgment is rendered sustaining the defense, the transferror will be estopped to question the validity of the judgment when sued on his warranty by the transferee.
    Fidelity & Deposit Co. vs. Hardman, 132 La. 525, 61 South. 559.
    New Orleans G. N. R. Co. vs. Alcus, 159 La. 36, 105 South. 91.
    Appeal from the Third Judicial District Court of Louisiana, Parish of Jackson. Hon. S. D. Pearce, Judge.
    Action by Commercial Credit Company, Inc., against Gatlin-McDonald Motor Company.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    A. Leonard Allen, of Winnfield, attorney for plaintiff, appellant.
    William J. Hammon, of Jonesboro, attorney for defendant, appellee.
    STATEMENT OF THE CASE'
    The Gatlin-McDonald Motor Company, a commercial partnership composed of H. M. Gatlin and Wilbur C. McDonald, engaged in the sale of automobiles, sold to one H. A. Howell, on September 5, 1925, an automobile for the price of $141.00, taking in payment thereof his promissory note of that date for said sum, payable in nine monthly installments, eight for $15.85 each, due one a month for the next eight months thereafter, and one for $14.20, due nine months thereafter. The note stipulated payment of interest on each installment after maturity until paid at the rate of 8% per annum and that failure to pay any installment at maturity should mature all of the installments not then due. And to secure the payment of the note in principal and interest and, in case of suit to collect the same, the fees of the attorney who might be employed for that purpose, which fees were fixed at 25% of the amount then due, and also to secure the payment of court costs, the vendor retained a vendor’s privilege on the automobile and the purchaser granted it a mortgage thereon.
   REYNOLDS, J.

Thereafter the Gatlin-McDonald Motor Company sold and transferred the note and mortgage to the Commercial Credit Company, Inc.

The [purchaser of the automobile, H. A. Howell, paid the first maturing installment of the note and failing to pay any of the others, the Commercial Credit Company, Inc., brought suit against him on the note in the District Court of Winn Parish, where he lived, on May 14, 1926.

To this suit Howell, on June 7, 1926, filed an exception of want of capacity to contract at the time he executed and delivered the note, setting forth that he was then under the age af twenty-one years and did not reach that age until January 29, 1926.

Whereupon, the attorney for the Commercial Credit Company, Inc., under date of June 12, 1926, wrote the Gatlin-McDonald Motor Company, as follows:

“Few months ago you sold H. A. Howell a Ford, which, to be brief, ultimately got away somewhere. The Commercial Credit Company holds the paper and I filed suit against Howell and he has pleaded his alleged minority. The case has been set down for trial on this exception on June 21. Under the law, although you perhaps endorsed without recourse, yet . you did guarantee the capacity of the parties to sign, and if Howell escapes liability on his non-age, then unquestionably you can be held liable for the unpaid part. As a friend,, I. am therefore saying to you that this case will be tried on June 21, and if there is any effort you wish to put forth to hold Howell so that you ultimately will not be held, you may have the opportunity to do so. If the matter is not clear to you, I shall be glad to explain it fully if you will drop down here after Monday.”

Notwithstanding this notice, the GatlinMcDonald Motor Company did not help or offer to help defeat the plea of minority, and on June 22, 1926, the exception was tried and the plea of minority sustained and the suit dismissed at the plaintiff’s cost.

On June 26, 1926, plaintiff’s attorney wrote defendant and, after reciting the foregoing facts, called on defendant to make good plaintiff’s loss, pursuant to defendant’s warranty and on defendant’s failure to do so plaintiff brought this suit.

Plaintiff asks judgment against defendants Gatlin-McDonald Motor Company and H. M. Gatlin and Wilbur C. McDonald in solido for $141.00 with 8% per annum interest thereon from November 5, 1925, until paid, and 25% on the amount of principal and interest as attorney’s fees, and for the further sum of $13.75 court costs paid by it in its unsuccessful suit against H. A. Howell in the District Court of Winn .Parish; less a credit of $15.85 as of date October 5, 1925.

The defenses are:

. 1. That defendants sold the note to plaintiff without recourse and under an agreement whereby plaintiff was given twenty days in which to investigate the debt-paying character of the maker and return the note and receive back the price paid for it if it did not care to keep it and that inasmuch as plaintiff had not returned the note within that time defendants were released, from liability as warrantors thereon.

2. That defendants did not know whether or not the note had been paid.

3. That they are not concluded by the judgment of the District Court of Winn Parish sustaining Howell’s plea of want of capacity to execute the note in plaintiff’s suit against him for the reason that the judgment was not appealed from by plaintiff and therefore is not final.

4. That they were never legally notified of Howell’s defense to plaintiff’s suit against him and that had they been called in warranty or as witnesses in that suit by plaintiff they could and would have proved that Howell was twenty-one years of age when he executed and delivered the note and that plaintiff’s failure to notify them of the pendency of the suit released them from their obligation of warranty.

And in the alternative, should the court hold that Howell was a minor when he executed and delivered the note, they allege that for several years prior thereto he had been away from, home and supporting himself and had made other contracts and performed them, and given other notes and paid them, and that he bought the automobile to enable him to travel'greater distances in going to and from his work and that the purchase inured to'his benefit as a public worker and he was bound by the contract of purchase notwithstanding minority.

On these issues the case was tried and there was judgment rejecting plaintiff’s demand and dismissing its suit and plaintiff appealed.

OPINION

The first question for decision is whether defendants were released from liability in warranty under the agreement between plaintiff and them. This agreement reads as follows:

“I, we, hereby agree that if, after your payment of the amount stated hereon, for your purchase of the transaction covered by the papers herein, your subsequent investigations of the credit of the buyer are unsatisfactory to you, I, we, will repurchase the same and will honor your draft with such enclosure attached, for the amount you have paid for the same, provided you exercise this privilege within twenty days from the date of payment of this draft.”

We do not think this instrument had the effect claimed for it by defendants. In our opinion its purpose was to enlarge and not to contract the rights of plaintiff. It cannot reasonably be construed to mean that plaintiff thereby waived its right to reclaim the price paid for a note that was worthless ab initio not because of the maker’s debt-paying character but because of his want of capacity to execute and deliver it.

The next question for decision is whether the maker paid the note or not, and this is disposed of adversely to defendants by the testimony of the witness E. J. Hoffman and the witness E. L. Chesney, the former being the assistant treasurer and the latter the vice-president of the plaintiff, who testified, in answer to the questions:

(8) Has this H. A. Howell note, herein sued on, ever been paid to you by anybody?

(9) Is it now due and owing to your company, in the amount as sued on?

To which they made identical answers, as. follows:

To question (8), No.

To question (9), Yes.

The next question for determination is the admissibility in evidence of the record in suit No. 5665 on the docket of the Dis-' trict Court of Winn Parish, entitled Commercial Credit Company, Inc., versus H. A. Howell, and whether defendants are concluded thereby on the question of the minority of H. A. Howell at the time of the execution and delivery of the note. The record was admitted in evidence over the objection of defendants. If that record was properly admitted in evidence then defendants’ defenses that H. A. Howell was in fact of the age of majority when he made the note, then the other defenses set up by defendants cannot avail them anything.

We think the record was properly admitted and that defendants are concluded thereby on the question of Howell’s minority.

In Fidelity & Deposit Co. vs. Hardman, 132 La. 525, the syllabus, prepared by the court, reads as follows:

“Defendants were indemnitors of plaintiff as surety on a building contractor’s bond, and, when suit was instituted by a subcontractor on the bond, the defendants were called in warranty, but excepted to the call as premature, and the exception was sustained. Two of the defendants testified on the trial of the merits, and their counsel participated in the examination of witnesses. Judgment was rendered against the contractor and the surety and was affirmed on appeal by the latter. The surety paid the judgment and then sued the indemnitors. Held, that the indemnitors could have intervened in the suit and were concluded by the judgment.”

In the course of its opinion in that case the court said:

“It is well settled in other jurisdictions that:
“ ‘One who is notified of the pendency of an action and is given an opportunity to defend is concluded as to all questions determined therein which are material to a recovery against him, in an action of indemnity brought by the defendant in the original suit. 22 Cyc. 106.’
“In Washington Gas Co. vs. Dist. of Columbia, 161 U. S. 316, 16 Sup. Ct. 564, 40 L. Ed. 712, the court through White, J., said:
“ ‘As a deduction from the right to recover over, it is settled that, where one having such right is sued, the judgment rendered against him is conclusive upon the person liable, provided • notice be given to the latter, and full opportunity be afforded him to defend the action.’
“In the same opinion the court cited the Oceanic Steam Navigation Co. case, 144 N. Y. 663, 665, 39 N. E. 360, 361, in which the rule is thus stated:
“ ‘It is sufficient that the party against whom ultimate liability is claimed is fully and fairly informed of the claim, and that the action is pending, with full opportunity to defend or to participate in the defense". If he then neglects or refuses to make any defense he may have, the judgment will bind him in the same way and to the same extent as if he had been made a party to the record.’
“In Costa vs. Joachim, 104 La. 170, 28 South. 992, judgment was rendered against the master for damages for an injury caused by the negligence of his servant, and the master having paid the judgment, sued the servant to recover the amount so paid. The court held that the judgment, not attacked as fraudulent or shown to be erroneous, was binding on the employee. In that case the court cited Robbins vs. Chicago City, 4 Wall. 674, 18 L. Ed. 427, as follows:
“ ‘Persons notified of the pending of a suit in which they are directly interested must exercise reasonable diligence in protecting their interest, and, if instead of do? ing so, they wilfully shut their eyes to the means of knowledge which they know are at hand to enable them to act efficiently, they cannot subsequently be allowed to turn around and evade the consequences which their own conduct and negligence have superinduced.’ ”

Fidelity & Deposit Co. vs. Hardman, 132 La. 525, 61 South. 559, was cited with approval and quoted from by our Supreme Court in New Orleans Great Northern R. Co. vs. Alcus, 159 La. 36, 105 South. 91, from which we quote:

“Defendant company’s defense in this case comes too late. The damages and expense of attorney’s fees and costs for which plaintiff sues come clearly within the terms of the contract of indemnity. Defendant company was notified timely of the pendency of the action by Langston against plaintiff company in the Circuit Court of Lawrence County, Mississippi, and was given full and fair opportunity to defend the suit. Defendant company is therefore concluded as to all questions determined therein which are material to a recovery against it. Fidelity & Deposit Co. vs. Hardman, et al. 132 La. 525, 61 South. 559.”

Defendants in this case were timely notified by plaintiffs of the pendency of plaintiff’s suit against H. A. Howell in the District Court of Winn Parish and of Howell’s defense thereto and were given full and fair opportunity to establish their capacity to execute and deliver the note therein sued on, but elected not to avail themselves of it. Defendant H. M. Gatlin, asked about the letter from plaintiff’s attorney notifying defendants of the plaintiff’s suit against Howell and of his plea of minority therein copied above, testified:

“Q. You did receive such a letter?
“A. Yes, sir, but I didn’t pay any attention to it, because I didn’t figure it was to the best of my interest to go down there.”

The judgment appealed from is erroneous and must be reversed. It should have been in favor of the plaintiff.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and it is now ordered, adjudged, and decreed that plaintiff, Commercial Credit Company, Inc., do have of and recover from defendants, Gatlin-McDonald Motor Company and H. M. Gatlin and Wilbur C. McDonald in solido, judgment for the sum of one hundred and forty-one dollars with 8% per annum interest thereon from November 5, 1925, until paid, and the further sum of 25 per cent on the amount of principal and interest as attorney’s fees; less a credit of fifteen and 85/100 dollars as of date October 5, 1925. It is further ordered, adjudged and decreed that defendants pay the costs of this suit in both courts.


source: Caselaw Access Project

author: REYNOLDS, J.

license: Public Domain

text:
    No. 3123
    Second Circuit
    BROOKS v. BYRD & CLOPTON, ET AL.
    (December 21, 1927. Opinion and Decree)

      (Syllabus by the Oourt)

    1. Louisiana Digest — Concursus — Par. 3; Courts — Par. 128.
    The Court of Appeal is without jurisdiction of a concursus proceeding where the fund to be distributed at the time of the judgment of the District Court exceeded $2,000.00; and this notwithstanding that the claim of the only appellant is for a sum less than $2,000.00.
    Constitution, Article VII, Section 10.
    Greater N. O. Homestead Assn. vs. Levy, 11 O. App. 29.
    Appeal from the Third Judicial District Court of Louisiana, Parish of Jackson. Hon. S. D. Pearce, Judge.
    Action by F. O. Brooks against Byrd & Clopton, et al.
    There was judgment for plaintiff and defendant appealed.
    Case transferred to Supreme Court.
    E. E. Kidd; Moss & Moss, of Winnfield; attorneys for plaintiff, appellee.
    R. W. Oglesby, of Winnfield, attorney for defendant, appellant.
    STATEMENT OF THE CASE
    Byrd & Clopton, a partnership composed of W. L. Byrd and B. W. Clopton, contracted with the Parish of Jackson, and the Louisiana Highway Commission to build a public highway in that parish, and the Southern Surety Company became its surety for the faithful performance of the work.
   REYNOLDS, J.

Plaintiff, and various other persons, performed work or furnished material at the instance of the contractor that entered into the construction of the road, their claims aggregating $3,358.10, and they timely registered their claims therefor in the mortgage records of Jackson Parish; and their claims not being paid, plaintiff brought this suit against the contractors, the Parish of Jackson, the Louisiana Highway Commission, the Southern Surety Company and the other claimants to have the validity of the demands of the claimants adjudicated and the claims paid.

The Louisiana Highway Commission answered that it had in its possession the sum of $3,790.23 as the balance of contract price of the work done by Byrd & Clopton, and it was ordered to pay the amount into the registry of the court, and did so, and thereupon both it and the Parish of Jackson were dismissed from the suit.

The various defendants answered, setting forth their claims, that of appellant amounting to $212.50 with 8% per annum interest from January 2, 1926, and 15% on the amount of principal and interest as attorney’s fees.

There was a trial and judgment was rendered in favor of some of the claimants for amounts aggregating, exclusive of ■ interest, to. $1,822,28, and in favor of the clerk of the District Court for costs in the sum of $40.00, and ordering them paid out of the fund deposited by the Louisiana Highway Commission in the registry of the Court; and judgment was rendered against the Securities Sales Company of .Louisiana, Inc., and some other claimants, whose claims aggregated $330.75, exclusive of interest, disallowing their claims. Between the date of the rendition and the date of the signing of the judgment the claims of still other of the creditors were compromised and removed from the suit by agreement of parties. The Securities Sales Company of Louisiana, Inc., appealed.

OPINION

The sum to be distributed and the aggregate amount of the claims adjudicated by the judgment of the District Court was in excess of $2,000.00. The maximum jurisdiction of this court in such a case does not exceed $2,000.00. Therefore, this court is without jurisdiction of appellant’s appeal and the appeal must be transferred to the Supreme Court pursuant to Act No. 19 of 1912.

It is, therefore, ordered that this case be transferred to the Supreme Court and that the clerk of this court transmit the record in the case to the clerk of the District Court of Jackson Parish to the end that it may ■ be made up and deposited in the Supreme Court in accordance with the rules of that court and the law.


text:
    No. 3080
    Second Circuit
    SANDERS v. MONROE SAND & GRAVEL CO., INC.
    (December 21, 1927. Opinion and Decree.)

      (Syllabus by the Court)

    1. .Louisiana Digest — Evidence—Par. 56, 58.
    Where a person contracts to do a certain thing and fails to discharge his obligation, to escape liability the burden is on him to allege and prove a legal . excuse fop his failures.

      Scovell vs. Gill, 30 La. Ann. 1207.
    King vs. Masons’ F. A. Assn., 104 La. 763, 29 So. 332.
    2. Louisiana Digest — Appeal—Par. 625.
    The finding of fact of the trial court will not be disturbed unless manifestly erroneous.
    Southern Hat Co. vs. Schill, 3 La. App. 249.
    Appeal from the Fourth Judicial District Court of Louisiana, Parish of Ouachita. Hon. Percy Sandel, Judge.
    Action by J. W. Sanders against Monroe Sand & Gravel Co., Inc.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    McHenry, Montgomery, Lamkin & Lam-kin, of Monroe, attorneys for plaintiff, appellant.
    Hudson, Potts, Bernstein & Sholars, of Monroe, attorneys for defendant, appellee.
   REYNOLDS, J.

Plaintiff sued defendant to recover $1476.36 with legal interest from judicial demand. Defendant denied liability and filed a reconventional demand which, on motion, was stricken out. After the trial was closed in the District Court defendant asked that the case be reopened and it permitted to introduce further evidence, but its application was refused. There was judgment rejecting plaintiff’s demand and dismissing his suit, and he appealed. Defendant did not appeal but in this court sought to answer the appeal.

OPINION

Plaintiff and defendant entered into a contract whereby the latter turned over to the former a sand and gravel pit with its working equipment and the latter agreed, among other things, to mine and deliver to defendant, which agreed to accept and pay for specified minimum quantities of sand and gravel per month at specified prices during a given period of time, and that 40 cents per cubic yard should be paid either way as liquidated damages for all sand or gravel not delivered or accepted.

Plaintiff failed to deliver 1845.44 cubic yards of washed gravel, whereupon defendant debited his account with the stipulated penalty, or $738.18; but plaintiff, asserting that defendant was responsible for his default, refused to recognize the debit as just, and, in turn, debited defendant’s own account with a like amount as for a failure to accept that much gravel.

Thereupon plaintiff brought this suit.

Defendant did not appeal from the judgment but, in this court, after plaintiff had completed the presentation of his case and defendant had begun the presentation of its own, defendant sought, but was not permitted, to file an answer to the appeal asking that the ruling of the lower court in striking out its reconventional demand and refusing to reopen the case be reversed.

The answer to the appeal came too late.

Code of Practice, Articles 889, 890.

Wilkinson vs. Dubach Mill Co., 2 La. App. 249.

Plaintiff contends that defendant designated the place from which the gravel was to be taken and the manner of taking it and that it specifically instructed him, both verbally and in writing, not to do otherwise; that there was an overburden of dirt and a thinness in the stratum of gravel at the place designated; and also that defendant failed to furnish sufficient cars and orders to take up, and refused to furnish him with the necessary material and equipment to enable him to' mine and load, the minimum quantity of sand and gravel contracted to be delivered; that he called defendant’s attention to these conditions but that defendant nevertheless insisted that he continue to mine at the place and in the manner designated.

This contention is flatly contradicted by the testimony of defendant’s witnesses, and the written communication relied on by plaintiff corroborates them; showing that defendant did not command but only suggested what plaintiff should do.

The evidence shows that there was twice as much working equipment at plaintiff’s disposal as he was using and that the stratum of gravel was from ten to eleven feet thick.

So that plaintiff’s contention "that it was impossible for him, under the prevailing conditions, to mine and deliver the minimum quantity is a mere conclusion and not supported by the evidence.

We think the thickness of the stratum of gravel corroborates the testimony of defendant’s witnesses ■ that it was possible, for plaintiff to comply with his contract.

The burden was on plaintiff to establish by a preponderance of the evidence the facts claimed by him as excusing his default. The district judge who heard the witnesses testify and observed their demeanor on the witness stand evidently reached the conclusion that plaintiff had not discharged this burden. We cannot say that he manifestly erred.

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


author: WESTERFIELD, J.

text:
    No. 9976
    Orleans
    GRAFFAGNINI v. SHNAIDER
    (December 12, 1927. Opinion and Decree.)

      (Syllabus'by the Court)

    1. Louisiana Digest — Evidence—Par. 215, 240.
    Where plaintiff sues on a verbal contract, alleging that defendant had agreed to buy the property occupied by him as a tenant and authorized him to have certain repairs made for the cost of which he sues, an objection to parole proof of his alleged agreement with defendant upon the ground that it would tend to contradict a written agreement between plaintiff and a third person, his landlord, was improperly maintained. The parole evidence rule only applies to writings between the parties.
    Appeal from Civil District Court, Division “D”. Hon. Porter Parker, Judge.
    Action by Jacob J. Graffagnini against Adolph Shnaider.
    There was judgment for defendant and plaintiff appealed.
    Case remanded.
    Paul W. Maloney, of New Orleans, attorney for plaintiff, appellant.
    H. W. Kaiser, L. A. Wulff, Jr., of New Orleans, attorneys for defendant, appellee.
   WESTERFIELD, J.

Plaintiff alleges that he is a tenant of the premises No. 2500 Iberville street and that he made a verbal contract with the defendant, Schnaider, who had agreed to buy the property whereby he caused certain repairs to be made to the property at an expense of $1516.04, which Schnaider agreed to pay him.

He prays for judgment for the sum named.

On the trial of the case, after plaintiff had testified to the verbal agreement sued on, an objection was made by counsel and maintained by the court, to further evidence tending to establish a verbal agreement, because it would tend to contradict a written document — a lease. As counsel puts it:

“I object to that. The lease speaks for itself. Now if Your Honor please at this time I want to interpose this objection: I object to any and all testimony that has gone before with reference to those repairs. The reason I didn't object to it before, I wanted to see how far these gentlemen would go, but I object to any and all testimony with reference to repairs, because it would go in contravention of a written document, and any verbal testimony is wholly immaterial and irrelevant. The written document is the lease by and between the parties hereto and made a part of this objection.”

Counsel is in error in referring to the lease as being “by and between the parties hereto”. The lease was between plaintiff as lessee and one F. O. Kroll as lessor, a fact which was subsequently recognized, but it is insisted that the objection was nevertheless proper. Kroll is not a party to the suit and was the owner of the property from whom the defendant expected to acquire it under his agreement of sale.

This ruling was clearly erroneous. The parol evidence rule, here invoked, applies only to writings between the parties.

The case must be remanded to admit the excluded testimony, and it is so ordered.


text:
    No. 3170
    Second Circuit
    BRANCH v. MISSOURI PACIFIC RAILROAD COMPANY
    (December 21, 1927. Opinion and Decree.)

      (Syllabus by the Court)

    ,1. Louisiana Digest — Railroads—Par. 63, 64.
    It is the duty of the driver of an automobile, before attempting to cross two or more parallel railroad tracks to stop, look and listen for moving trains, cars or locomotives before entering upon the first track and to continue to look and listen for them until he is over all of the tracks.
    Sullivan vs. Tremont & Gulf Ry. Co., 4 La. App. 358.
    Baltimore & Ohio R. R. Co. vs. Goodman, — U. S. —, (decided October 31, 1927, and not yet reported). Young vs. La. W. Ry. Co., 153 La. 129, 95 So. 511.
    Appeal from the Fifth Judicial District Court of Louisiana, Parish of Richland. Hon. John R. McIntosh, Judge.
    Action by T. B. Branch against Missouri Pacific Railroad Company..
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    George Wesley Smith; Warren Hunt, of Monroe, attorneys for plaintiff, appellant.
    Hudson, Potts, Bernstein & Sholars, of Monroe, attorneys for defendant, appellee.
    STATEMENT OF THE CASE
    Plaintiff sues defendant for $1900.00 with legal interest from judicial demand as damages alleged to have been sustained by him as the result of a collision between an automobile owned and being driven by him and a box car moving on defendant’s railroad at a public crossing in the town of Rayville, Louisiana. He claims $600.00 as the value of his automobile which, he avers, was damaged beyond repair, $300.00 for torment and anguish he says he suffered by fear of injury or death of himself or children who were in the automobile with him at the time, and $1000.00 as punitive damages.
   REYNOLDS, J.

He avers that he was driving west with three of his young children in a “Ford” automobile on Rosa street in the town of Rayville, Louisiana; that before crossing defendant’s, railroad tracks he brought his car to a stop at the regular “stop” sign and looked up and down the railroad tracks to ascertain whether or not he could then safely cross the tracks; that a box car was standing on the main track with its end nearest Rosa street three or four feet from the street and immediately north of the box car was a high pile of timber, and that the box car and pile of timber together with defendant’s freight depot screened his view up the track or northward for about five hundred yards, and that down the track, or southward, no moving cars were in sight. That at this point there is a main track and a spur track. That seeing no moving cars on the north or the south he proceeded carefully and slowly to cross the tracks, and that after crossing the main track and as he was about to cross the spur track a box car moving from the northerly in the southerly direction on defendant’s spur track and which he was prevented from seeing by the box car, pile of timber and freight depot struck his automobile and dragged it down the track for approximately seventy-five feet. That 'the box car had been “shunted” and was under no one’s control and there was no signal or device thereon to give warning of its approach and that there was no one stationed at the crossing to warn persons about to cross the tracks of impending danger.

Defendant denied negligence and alleged that the car had been “kicked” in the customary way and was in charge of a trainman who was on top and in control of it, and alleged that the accident was caused wholly and solely by plaintiff’s own carelessness and recklessness in failing to stop, look and listen for cars moving on its1 railroad tracks at a time and place and under circumstances where such precautions would have been effective; and that he failed to exercise any of the precautions required of him by law for his own protection and safety and that such omission was the sole and immediate cause of the accident.

Oh these issues the case was tried and there was judgment rejecting plaintiff’s demands and dismissing his suit and he appealed.

OPINION

In order to reach a correct decision in this case it is only necessary to consider plaintiff’s own testimony and the physical facts at the time and place of the accident.

He testified that he and three small boys were in a Ford automobile traveling west on Rosa street; that when ,he arrived within from twenty to thirty steps of defendant’s railroad track he stopped' the automobile and looked both up and down the tracks; that the track to the south was clear, but that north, immediately beyond the freight depot, were a locomotive and some box cars which seemed not to be moving, and also north of and just clear of the crossing a box car was standing; that thereupon he proceeded slowly to attempt to cross the tracks, and had gotten over the first or main track and was within about eight feet of the second or spur track when his attention was attracted to some one yelling to him to warn him (be ^as in danger, and that he then saw a box car moving southward toward him on the spur track at about eight miles an hour, whereupon, conceiving a collision to be inevitable, he attempted to turn his automobile to his left or parallel to the track, in the hopes that the oncoming box car would only strike at a glancing blow and knock or push his automobile away from the track, but that it seems he had gone further over on or was closer to the spur track than he had supposed, and his automobile was caught by the moving box car and dragged down the track a distance of seventy-five feet.

He further testified that he had been driving over the crossing in question four times a day for several months.

Further testifying, he said:

“Q. Now when did you first discover the moving box car?
* * * *
“A. I was in about I would say eight feet of it, going or coming west, coming down the grade; you see, when I drove up on the east side of the main line and come to a halt, !this box car that struck me was directly, must have been directly behind the car that was ‘spotted’ on the main line, and it being lower, it being on a lower track than the car (on the main line) was, (the car) that was on the main line hid the view of the (moving) car entirely; because I was lower, you see, than the car (on the main line) was * *
% * £
“Q. And the 'timbers, together with the box car, hid your view of how much of the spur track?
“A. Well, when I got in view of the timber the box car was not in my way then of seeing anything, but as my car came down over thé incline the top of my car hid the view, top view of the box car that struck me, see, and the timber hid the bottom view of it.
* * * *
“Q. Then, what did you hear?
“A. I heard a man hallooing and heard a man whistle.
“Q. You know where this man was?
“A. I did not. I could not see him.
* * % *
“Q. Mr. Branch, at what rate of speed did you say you were going,' from the time you stopped your car until you were hit — approximately?
* * * *
“A. Well, I was going — my car was in low gear and I wouldn’t say I was going over five or six miles an hour; as a rule, a Ford car won’t travel much faster than that in low gear.
“Q. Did you ever get out of low gear before you were hit?
“A. I never got out of low gear until I got on top of the track, then I turned my car in high gear when I turned down the incline.
“Q. Did your speed increase above six or eight miles an hour at any time, or-did you keep that up?
“A. Well, I suppose perhaps it did, because when you turn a Ford car into high gear it will pick up speed, especially if it is going down grade.
“Q. How fast do you think you were running at the time you were hit?
“A. Well, at the time I seen this car, my ear may have been rolling at seven or eight miles an hour, may have been rolling that fast.
* * if: *
“Q. Were you driving on the right-hand or the left-hand side of the road approaching that crossing?
“A. Well, I couldn’t say; there- was nothing else in my way; whether I was driving directly in the middle of the road or to the right of the road.
“Q. You were either one or the other?
“A. I was nearer, I suppose, the center of the road.
* * & *
“Q. There is a roadway, is there not, running between Cook’s spur and the main line?
“A. There are south of the highway?
“Q. Running south from the highway?
“A. Yes, sir.
* * * *
“Q. Then, if you were twenty feet east of the main line, the east rail of the main line, and the main line was five feet in width, and the west rail of the main line was twenty feet or twenty-five feet east of the east rail of Cook’s spur, that would make a distance of your Car from the east rail of Cook’s spur, of approximately forty-five feet, would it not?
“A. Yes, sir.
“Q. And you state you were traveling around between six and eight miles per hour most of that distance?
“A. Yes, sir.
* * * *
“Q. Then how do you account for the fact, Mr. Branch, that the freight ear moving, you say, approximately at the same speed, six or eight miles per hour?
“A. Best I could tell of.
“Q. * * * travel the distance immediately behind the spotted car which was only two feet from the crossing and got there at the same time that you traveled the distance of forty-five feet?
“A. Because we had something similar, the same distance to run.
* * * *
“Q. Would you mind locating on this map the approximate location of the box car, if you know,. that struck you, at the time you looked? Just mark it on there with a pencil.
“A. At the time I stopped my car?
“Q. Yes.
“A. At the time I stopped my car this box car must have been right in about this place. (Witness marks the spot XY.)
* * * *
“A. * * * This car struck me right here. (Witness indicates on the map by the letters EF.)
* * * *
“Q. Then if the car struck you at the point EP, when you got to the point ZZ if you had looked north is it not a fact the point ZZ, being four feet east of the ea.st rail of the main line, is it not a fact that you had a plain and Unobstructed view of the car approaching you?
“A. If I had looked.
“Q. If you had looked?
“A. Yes, but I had; I didn’t look, be cause I had already observed the view oi the track both ways.
“Q. And in observing that view yoi saw a box car standing on the main line behind which you couldn’t see?
*1*
“A. Yes, when I first come to my hall on the east side of the track why this bos car was standing there loose without any thing hold of it.
“Q. You could not see behind that car
“A. I couldn’t, no; I could not see be hind this car.
“Q. You never looked again after yoi started up?
“A. I never looked neither way onlj until this car that struck me came in mj sight; I had looked out ahead; I had tc look out ahead then for cars; I didn’t lool for box cars, because I didn’t think there .was anything in my way of that kind.
“Q. You didn’t notice the car tha struck you until someone, you heard some one hallooing, isn’t that what you testified'
“A. No, sir. I did.
“Q. Then, as a matter of fact, yoi didn’t look to the right or left after youi first stop until you heard someone yelling that attracted your attention?
“A. I did.
“Q. You kept your eyes straight ahead'
“A. I certainly did.
“Q. Notwithstanding the fact that yoi had seen a box car sitting on the mail line which made the crossing of the spui somewhat blind to you?
. “A. That is right.
“Q. Now, Mr. Branch, I will ask you t< state whether or not, even after getting on the main line, if you had looked to tin right, running at a speed of six to eigh miles an hour, whether or not you couh have then turned' to the left and avoidec striking the car?
“A. I could if I had had any idea then was anything of the kind I could hav< saved myself when I was ¡on top of th( track, but after I turned down this in clíne I could not save myself, because ! killed my motor as I was trying to pu on the brakes to stop. * * * I though my car was in neutral, throwed the brake; in, and it stopped my motor.
* * * *
“Q. Don’t you know, as a matter o fact, that if your ear was in neutral, tha nothing you could do with your brakes would have any effect on your motor?
“A. Well, I can’t say just how I handled my feet at that time, but I will say that my motor was killed when it was struck by this car.”
Thomas Jefferson Parker, one of the boys in the automobile with plaintiff, was asked:
“Q. Tell us, in your own way, how the accident came about?”

And he said:

“A. Well, we came up the road; he stopped just before he got to the crossing; and the engine and all were standing still down at the north end of the depot, and it was one or maybe more, I don’t remember exactly how many cars there were, right at the crossing, and there was about one or two layers of heavy timbers between the switch and the main track and it hid the view from the box car; as we come over there was a brakeman running from the north end of the car southward to the brake beam; he whistled or either hallooed; it was a mighty shrill halloo; when he hallooed, right after he hallooed, I seen it was about four or maybe six feet from the car; I just had time to get out of the way of it without getting hurt badly; it bruised this leg a little; caused me to fall.
“Q. You jumped out of the car?
“A. I jumped from over the door.”

The testimony in the record makes it clear to us that if plaintiff had kept a proper lookout he would have seen the moving box car before he reached the east rail of the main track and had ample time and opportunity to avoid the accident. Indeed, even after getting upon the main track he still had time and opportunity to save the situation, for there was a road leading off from the crossing to the south between the main track and the spur track down which plaintiff might have turned and driven his automobile and been safe.

Plaintiff insists that under the authority of Hampton vs. L. & N. W. R. R. Co., 2 La. App. 171, it was not his duty to again stop or look or listen after having stopped and looked before entering upon the main track; but that case has no application here. All that that ease holds is that it is not necessary to stop between parallel tracks. It does not hold that in crossing parallel tracks it is not necessary to continue to look and listen for approaching cars as long as one is in danger of being struck by a moving car.

The trial judge, who heard and saw the witnesses testify, gave judgment for the defendant. His judgment is clearly right and it is therefore affirmed.


author: JONES, J.

text:
    No. 11,033
    Orleans
    BYE v. CERNIGLIA
    (November 28, 1927. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Appeal—Par. 625.
    The judgment of the lower court will be affirmed when the questions of fact are correctly decided by the lower court.
    Appeal from the First City Court. Hon. Val J. Stentz, Judge.
    Action by Harry Bye against George Cerniglia.
    There was judgment for. plaintiff and defendant appealed.
    Judgment affirmed.
    Gordon Boswell, of New Orleans, attorney for plaintiff, appellee.

      Jos. Lautenschlaeger, of New Orleans, attorney for defendant, appellant. '
   JONES, J.

This is a suit for three hundred dollars ($300.00), the cost of repairing plaintiff’s automobile, alleged to have been damaged by defendant’s negligent driving.

Defendant denies negligence and files a reconventional demand for one hundred eighty dollars ($180.00), amount alleged to have been paid by him for damage done to property on the sidewalk and in the neighboring yard by his automobile after collision with plaintiff’s car.

As only questions of fact are involved and both the evidence and attendant circumstances amply support the decision of the lower court for plaintiff, the judgment is affirmed.


author: ODOM, J.

text:
    No. 3161
    Second Circuit
    MARTIN v. JONESBORO DRUG CO., ET AL.
    (December 21, 1927. Opinion and Decree.)

      (Syllabus 6y the Oourt)

    1.Louisiana Digest — Negligence—Par. 3; Medicine — Par. 6.
    Section 7 of Act No. 66 of 1888 requires pharmacists, druggists or apothecaries to place a “poison” label on all packages containing medicines, drugs or chemicals which are in their nature poisonous to the human system or to animals, and as this statute is enacted for the protection of others, the failure of the pharmacist or druggist to so label such packages is negligence.
    2. Louisiana Digest — Negligence—Par. 38; Pleading — Par. 23.
    The fact that a medicine compound contains poisonous ingredients does not necessarily make the medicine itself a “poison” under the statute, so that an allegation that a medicine contains poisonous ingredients is not equivalent to an allegation that the medicine itself is a poison in the absence of an allegation that it contains those ingredients in such quantities as to make it such in fact.
    3. Louisiana Digest — Negligence—Par. 36, 38, 40; Pleading — .Par. 23.
    In a suit against a druggist for damages for the death of an infant resulting from its swallowing medicine dispensed by the druggist, where the only negligence charged against the druggist is that the medicine was sent out in a package not labeled “poison”, it must be affirmatively shown from the allegations of the petition that the alleged negligence had some causal relation or connection with the death and injury.
    4. Louisiana Digest — Negligence—Par. 3, 15; Medicine — Par. 6.
    Although the violation of a statute is negligence, which negligence may be made the basis for a suit for damages, yet there must be a causal- relation between such act of negligence and the injury to render the defendant liable, and such violation must be the proximate cause of the injury; and in this respect it must appear that compliance with the statute would have prevented the injury.
    5. Louisiana Digest — Negligence—Par. 36, 38; Pleading — Par. 62; Medicine — Par. 6.
    In suits for personal injuries grounded upon negligence of defendant, in order for plaintiff to recover it must be alleged and shown that defendant was guilty of negligence; and even though there is in the petition a specific allegation of negligence, on the part of defendant, if the petition as a whole shows that there was in fact no negligence, no cause of action is shown..

      Appeal from the Third Judicial District Court of Louisiana, Parish of Jackson. Hon. S. D. Pearce, Judge.
    Action by Emery A. Martin, et al., against Jonesborough Drug Co., Inc., et al.
    There was judgment for defendants and plaintiffs appealed.
    Judgment affirmed.
    Moss & Moss, of Winnfield, attorneys for plaintiffs, appellants.
    William J. Hammon, of Jonesboro, attorney for defendants, appellees.
   ODOM, J.

This suit is brought under Article 2315 of the Civil Code for damages resulting from the death of plaintiffs’ infant son caused by the child’s taking an alleged poisonous drug dispensed by defendants; the negligence charged against defendants being that they dispensed the drug without placing upon the package a label showing that it contained poison, as required by Section 7 of Act No. 66 of 1888.

An exception of no cause, of action was filed by defendants and sustained by the court. Hence this appeal.

OPINION

Plaintiffs allege that about September 18, 1925, Orbin Malone was at their home sick; that he applied to Dr. C. S. McDonald for treatment, who gave him a prescription, which was filled and the medicine dispensed by defendants and delivered to Malone; that said medicine consisted of pills which were placed in a paper box labeled “For Orbin Malone” with directions “One Pill Three Times a Day after Meals”; that the box containing the pills was not labeled with the word “Poison” and did not have printed thereon a “skull and cross hones” as required by law “to indicate and show said Orbin Malone or anyone else whose duty it was to take or give said medicine that same contained poison”; that said Malone carried the medicine to plaintiffs’ residence, where he was staying; “that the said pills contained both strichnine and arsenic in sufficient quantities to take human life, tall to the knowledge” of defendants; and “on or about September 21, 1926, Darwin Martin, the infant son of petitioners, then about eighteen months of age, and too young and pf such tender age to know that said pills were medicine and contained poison, and in some way unknown to petitioners got the box containing the pills from the place where said pills were being kept by Orbin Malone in the home of petitioners, took one of said pills containing strichnine and arsenic and swallowed it, which killed the said Darwin Martin”.

They further allege that they had seen the box containing the pills and had noticed that it was not labeled “Poison” and that they did not know and had nq reason to know that said pills contained poison and concluded that they were harm? less and “that said medicine was kept in a convenient place for Orbin Malone, and out ,of ''the way and reach of petitioners’ infant son and other, small children in the home and it was through no fault of petitioners or any inmate of said home that Darwin Martin got in possession of such, took the pill containing strichnine and arsenic which caused his untimely death; and, in paragraph 14 of the petition, it is set out that “the death of said Darwin Martin was caused by the gross carelessness, recklessness and purposeful violation of the laws of Louisiana by the Jonesboro Drug Company, Inc., and W. H. Eldred, failing, neglecting and refusing to label the box containing said pills with a skull and cross bones and with the word ‘Poison’ in large heavy lettering”.

We have carefully read plaintiffs’ long petition, containing four pages of single spaced typewritten matter, drawn with minutest detail, and we find that nowhere therein is it specifically alleged that the pills were poison, although it is alleged that the package should have been so labeled as to show that fact. But the petitioner iterates and reiterates that the pills were 'of a compound which contained poisonous ingredients, to-wit: strichnine and arsenic.

©n the contrary, the whole petition negatives the idea that they were poison, for it is alleged that they were prescribed by a physician for Malone who was directed to take three of them each day, and presumably he did take some of them, as he took them home some two or three days previous to the day on which the child swallowed one of them.

An allegation that a medicine contains poisonous ingredients is not equivalent to an allegation that the medicine itself is poison, because it might contain those poisonous ingredients .in such small proportionate quantities that the medicine, when taken in prescribed doses, is harmless. There is nothing in the petition to indicate how much of either strichnine or arsenic there was in one of the pills. We are by no means satisfied from the allegations of the petition that the package should have had on it a poison label showing that it contained a poison.

It is a matter of common knowledge that many patent medicines which contain strichnine or arsenic or both are sold over the counters of druggists every day, without a prescription. It would hardly be contended that such medicines are poison and should be labeled with a skull and cross bones merely because they contain some poisonous ingredients.

Madden’s anti-malaria pills are sold in all drug stores in this section and are as staple as quinine. Each of these pills, according to the formula, is composed of strichnine % gram, iron 1 gram, aloes 1-6 gram, and arsenic acide 1-24 gram.

Bland’s pills contain, arsenic trioxide 1-40 gram, strichnine sulphate 1-60 gram, and “powdered bland” 5 grams.

We have in mind the well-known liquid tonic commonly called the “I. Q. S.” prescription, so named because its principal ingredients are iron, quinine and strichnine.

These pills and this tonic are not considered poisonous and are not in fact such. They are sold by druggists at retail in broken packages on which there is never a “Poison” label.

A reading of plaintiffs’ petition does not show, therefore, that the pharmacist who dispensed the pills to Malone should have placed on the package a “Poison” label, as it does not show that the pills were poison.

It therefore follows that as the only negligence charged in the petition against the defendants is that they dispensed the medicine without placing on the package a “Poison” label, the petition charges no negligence at all, and for that reason the plaintiffs’ suit falls.

It may be argued that inasmuch as plaintiffs have specifically alleged’ negligence they showed a cause of action on that point under the well-recognized rule that in considering whether a petition discloses 'a cause of action the allegations must be accepted as true. But there is another equally as well-recognized rule that the petition must be considered as a whole in deciding whether it shows a cause of action.

While plaintiffs alleged negligence, yet the petition, considered as a whole, shows that there was none.

But plaintiffs are out of court for another and perhaps a more obvious reason.

If it be conceded that the medicine dispensed by defendants was such a' “medicine, drug or chemical” as should have been labeled “Poison” under Section 7 oi. Act No. 66 of 1888, and that defendants’failure to so label the package was a, violation of the statute and negligence per se, it does not necessarily follow that defendants are liable in damages for the child’s death caused by swallowing the medicine.

Learned counsel, in brief, say:

“The death of Darwin Martin was caused by the defendants willfully and purposely violating the law of Louisiana, when they dispensed the medicine without labeling or marking it in the manner provided by law.”

If the allegations of the petition show that defendants’ negligence in failing to properly label the package had any causal relation or connection with the injury and death of the child, it sets out a cause of action on that point.

It is reasonably well settled and, for the purposes of this decision, it is conceded that the failure to comply with the provisions of a statute enacted for the safety and protection of others is negligence per se (29 Cyc. 436), but is equally as well settled that where such negligence alone is plead as a basis of the right of recovery in actions for damages, it must appear that there was a causal relation or connection between the negligence arising from the violation of the law and the injury and damage sustained.

In 29 Cyc. 437, it is stated that while in some cases it is held that while the violation of a statute or ordinance is not negligence per se, it is competent evidence and sufficient to justify a finding that such violation was negligence, and the text writer goes on:

“If, however, it is apparent that such violation could have had no influence in causing the injury then the jury have no right to consider it.”

And, on page 439 of the same volume, it is said:

“Although the violation of a statute is held to be negligence per se, there must be a causal relation between such act and the injury to render defendant liable, and such violation must be the proximate cause of the injury. And in this respect it must appear that compliance with the ordinance would have prevented the injury.”

Applying this last well-settled rule in the case at bar,-it is patent that there was no causal connection or relation between defendants’ negligence in failing to properly label the package and the injury to the child. It is apparent that the failure to properly label the package could have had no influence in causing the child to swallow the medicine.

It does not appear that defendants’ compliance with the statute would have prevented the injury. The child was an infant, eighteen months old, and therefore not able to read and could not have understood the meaning of a “poison” label if one had been on the package, and it so alleged.1

But counsel say in brief:

“If such information had been conveyed by the proper labeling of the medicine or package containing it, petitioners would have known at once that the medicine brought into the home by Orbin Malone was dangerous to human life and would have had sufficient warning to have caused them to use greater precautionary methods than they perhaps did exercise in keeping the package and medicine in the home.”
But, according to the specific allegations of the petition, the—
“medicine was kept in a convenient place for Orbin Malone, and out of way and reach of petitioners’ infant son and othér small children in the home.”

The medicine was prescribed by a physician for Malone who had a right to keep it and use it, and, as alleged, it was kept in a convenient place for him, hut out the way and reach of the child. What more could have been done for the protection of the child than was done? If there had been on the package a “poison” label, what more would or could have been done than was done; that is, to keep the medicine out of the way and reach of the child?v

It is therefore perfectly apparent from the petition that plaintiffs’ alleged negligence in failing to place on the package a proper label is not even remotely connected with the death of the child, and for that reason the petition sets out no cause of action.

The judgment is affirmed with costs.


author: JONES, J. JONES, J.

text:
    No. 11,027
    Orleans
    STATE EX REL. IMPASTATO v. CITY OF NEW ORLEANS
    (October 31, 1927. Opinion and Decree.)
    (November 14, 1927. Rehearing Refused.)

      {Syllabus hy the Court)

    1. Louisiana Digest — Mortgages—Par. 38, '43; Registry — Par. 11.
    The inscription of a paving bill in the mortgage records must be cancelled when the paving bill was recorded incorrectly and the present owner acquired the property on the faith of clean mortgage and city tax certificates.
    Appeal from Civil District Court, Division “A”. Hon. H. C. Cage, Judge.
    Action by State ex rel. Pietro Impástate against City of New Orleans.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Theo. Cotonio, of New Orleans, attorney for plaintiff, appellee.
    H. B. Curtis, of New Orleans, attorney for defendant, appellant.
   JONES, J.

This is a suit to cancel certain charges for paving, claimed to be due by relator’s property and to compel the City of New Orleans to accept fifty-six and 10-100 ($56.10) dollars in full satisfaction of all city taxes due on relator’s property.

The answer is a denial on information and belief, combined with a plea of estoppel on the ground that relator knew of the paving charge when he bought the property.

There was judgment for relator and defendant has appealed.

The evidence shows Walter P. Connolle was the owner of a piece of property on Chartres street in this city, and on May 18, 1925, sold same to relator. Some time before the sale Chartres street was paved and the bills were recorded prior to relator’s acquisition. The engineering department of the City of New Orleans in making up the statements of assessment in accordance with Section 48 of the city charter (Act 59 of 1912, as amended by Act 105 of 1921) spelled the owner’s name Walter P. Connell, and under this name the bills were recorded by the commissioner of public finances in the Mortgage Office. When plaintiff’s notary applied for a certificate in May, 1925, in the name of Walter P. Connolle, the inscription against Walter P. Connell was not shown thereon and the paving charge did not appear on the city tax certificate issued by the city at the time of relator’s acquisiiton.

The first of the ten paving installments had been paid in 1924 by Walter P. Connolle, then owner. In September, 1925, after his acquisition, relator paid the city taxes for that year, and at the same time paid the second paving installment.

As relator bought the property on clean mortgage and city tax certificates, his good faith must be presumed, and there is nothing in this record to rebut such a presumption.

As the assessment roll of the city for the years 1924 and 1925 shows the property on the records as belonging to Walter P. •Connolle, it was the error of the city in spelling the name, Walter Px Connell, which has caused this law suit. It was not the duty of the recorder of mortgages'xto report a mortgage in the name of “Connell” on a certificate in the name of “Connolle”.

The cost of paving is due upon completion of the paving and bears interest from the day the paving certificates are sold by the city. As the city had in its records a claim for paving against this property, and as these bills for paving are treated as taxes and are included in the tax bills of property owners, there should have been some showing of this claim on the city tax certificate.

As Section 19 of Article XIX of the Constitution of Louisiana adopted in 1921 provides that no mortgage shall affect third persons, unless recorded in the parish where the property is situated, and as this mortgage was not recorded, we agree with the lower judge in concluding that the mandamus should be made peremptory.

The same conclusion was reached by the presiding judge of this court in Faia vs. City of New Orleans, No. 9375 of this court, 104,719 of the First City Court.

The able attorney for the city argues that we should apply the doctrine of “idem Sonans”, because “Connolle” sounds like “Connell”, but even if we admit that the names might be pronouncel alike, a contingency by no means certain, we fail to see how the doctrine can be applied where all the names were written.

For above reasons the judgment is affirmed.

ON APPLICATION FOR REHEARING

JONES, J.

Defendant in its petition for rehearing in this case argues that the following language used in the opinion declared all paving assessments taxes:

“As the city had in its records a claim 'for paving against this property, and as these-bills for paving are treated as taxes and are"ineluded in the tax bills of property owners, there should have been some showing of this claim on the city tax certificate.”

It cites several decisions of the Supreme Court and other authorities to the effect that “Paving Assessments” are not always included in “Taxes”.

Defendant construes this statement far too broadly. We did not mean to say that all paving assessments were taxes and therefore must always be placed on city tax certificates, because there is no statute imposing any such duty on the city. We meant that the city might in this particular case have given notice to purchasers hy showing this paving charge on the tax certificate, although the paving bill had been recorded incorrectly..

With this explanation, rehearing is refused.


text:
    No. 11,023
    Orleans
    WISE-MILLER v. HUMPHREY
    (October 31, 1927. Opinion and Decree)

      (Syllabus by the Court)
    1. Louisiana Digest — Citation and Appearance — Par. 33.
    The presumption is that the officer's return correctly sets forth the facts as to service of citation.
    2. Louisiana Digest — Appeal—Par. 625.
    Only matters of fact are involved and the evidence abundantly sustains the judgment of the trial court.
    Appeal from First City Court, Div. “C”. Hon. W. V. Seeber, Judge.
    Action by Wise-Miller against Wm. W Humphrey.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    J. B. Freeland, of New Orleans, attorney for plaintiff, appellee.
    H. W. Kaiser; Thomas Tomeny, of New Orleans, attorneys for defendant, appellant.
   JONES, J.

In the First City Court, on September 29th, 1925, Wise-Miller, real estate brokers, filed suit against Wm. W. Humphrey, for a commission of One hundred and twenty ($120.00) Dollars, alleged to be due on a contract to sell certain property for him. On October 8th, 1925, judgment was rendered against defendant, by default. On March 12th, 1927, defendant filed a petition, in the same proceedings, to annul the said judgment, on the grounds that the court was without jurisdiction, because he was not domiciled in New Orleans. The suit to annul was tried on April 22nd, 1927. There was judgment dismissing defendant’s suit. The case is now before us on appeal from that judgment.

The Constable’s return on the citation in the original suit shows that service was made on October 1st, 1925, on defendant’s wife at 4162 Canal street, by dropping citation at her feet when she refused to accept it. The return on the notice of judgment shows it was served on October 22nd, 1925 on the landlady at the same premises 4162 Canal street, by dropping the paper at her feet when she refused to accept it. Defendant claims that he was not living at that address at the time, but had moved to Gulfport, Mississippi. The validity of these services is the only question in the case — SOLELY. A QUESTION OF FACT.

Only the defendant testified on his side. Three witnesses testified for the plaintiff.

The defendant’s testimony is contradictory on several important particulars and is by no means convincing on the other points.

Plaintiff produced the two deputy constables who served the papers and made the returns. F. E. Knight, who was no longer a deputy constable, testified that he served the citation, as stated in his return. He went to the address 4162 Canal street, and saw Mrs. Humphrey (defendant’s wife) who refused to take the citation, whereupon he threw it at her feet. Pie particularly remembered this case because of the circumstances of the refusal, and the fact that he had had similar experiences at the address.

It would have been easy for defendant’s wife to contradict this witness, if in fact he had not served her, but she went over the lake the afternoon before and did not return.

W. Lorent, deputy constable, testified that he had served the notice of judgment, as appeared in the return; that he remembered the circumstances because he went to the house a second time, and then had to throw the paper at the feet of the lady who refused to accept it.

The defendant argues at length in his brief filed herein, that the testimony of these two constables is unreliable, because they testified to having served defendant at the same address previously and the docket books of the First City Court for the year 1925, namely 43, 44 and 45, show no other suits against him.

These books, though offered below, are not produced in this court. Furthermore, the papers served may not have been original citations, but subpoenas, garnishments, or other papers for which defendant’s name would not appear on the docket or in the indices.

Mr. Walter Hamlin, attorney at law, who filed the original suit for Wise-Miller, testified that ¡prior to filing the suit, he wrote two letters to defendant at the disputed address, 4162 Canal street. That he received no reply or response, and- his letters, bearing his return address on the envelopes, were never returned. The defendant testified that he “did not remember” whether or not he received those letters.

In his brief and argument, plaintiff, Humphrey, asks for a new trial, but in his petition to annul, he merely asks for annulment of default judgment without averring that he has any defense to the original suit. Such relief cannot be granted.

In De St. Romes vs. Carondelet Canal Co., 20 La. Ann. 331, the Supreme Court said, “The presumption is that the officer’s return correctly sets forth the facts”.

The vague and contradictory testimony of defendant would not suffice to rebut such a presumption, if the positive testimony of the constables were lacking.

For above reasons the judgment is affirmed at appellant’s costs.


text:
    No. 9975
    Orleans
    PSAYLA v. BARBIER
    (November 14, 1927. Opinion and Decree)

      (Syllabus by the Court)

    1. Louisiana Digest — Appeal—Par. 625.
    The finding of the trial court on matters of fact will be affirmed where not manifestly erroneous.
    Appeal from Civil District Court, Div. “E”. Hon. William H. Byrnes, Jr., Judge.
    Action by Dr, Joseph Psayla against Louis F. Barbier.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Wm. McL. Fayssoux, of New Orleans, attorney for plaintiff, appellee.

      Paul B. Chasez; Merrick & Schwartz, of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

This is a suit by a dentist for professional services rendered defendant and his wife.

Defendant avers that the services were incompetent, and the charges excessive. The lower court found for plaintiff, but allowed a credit of $70.00 as against the amount sued for ($340,000), rendering judgment for $270.00.

The defense, as made here, that professional men are incompetent and charge excessive fees is always difficult to establish. See Bayon vs. DeTroit, No. 9400 Orl. App. In this case the evidence does not approximate proof and the court a qua, very properly recognized that fact.

As to the allowance of $70.00, which was based upon the fact that some bridge work which the plaintiff- undertook to do for defendant’s wife was incomplete when their relation as dentist and patient was suddenly ended by defendant’s refusal to return to plaintiff’s office, we can not say that the trial court was in error.

The judgment appealed from is affirmed.


text:
    No. 10,990
    Orleans
    CASSIDY v. KENNEDY CLEANING CO., INC.
    (October 31, 1927. Opinion and Decree.)

      (Syllabus by the Court)
    1. Louisiana Digest — Damages — Par. 69, 107.
    Where the evidence shows that a coat had shrunk and the color had been changed by the cleaning company, unauthorized by the owner of the coat, the obligation of the cleaning company is to replace the damaged garment.
    Appeal from Division “C”, First City Court. Hon. Wm. Y. Seeber, Judge.
    Action by J. M. Cassidy against Kennedy Cleaning Co., Inc.
    There was judgment for plaintiff dismissing reconventional demand and defendant appealed.
    Judgment affirmed.
    S. G. Roos, of New Orleans, attorney for plaintiff, appellee.
    Wm. MeL. Fayssoux, of New Orleans, attorney for defendant, appellant.
   JONES, J.

This is a suit for one hundred and seventy-five ($175.00) dollars, itemized as follows:

Probable price of a new coat____________$125.00

Damages for loss of old coat during six months ______________________________________ 50.00

$175.00

Plaintiff alleges that his wife sent, about June 5th, 1926, a brown coat for which she had paid seventy-four and 95-100 ($74.95) dollars to the defendant to be cleaned; that a few days later defendant returned the coat dyed black, unfit for use; that a new coat to replace the brown article will cost one hundred and twenty-five ($125.00) dollars; that she had suffered fifty ($50.00) dollars damage from loss of her coat. This suit was filed January 14th, 1927.

Defendant answers admitting receipt of coat to be cleaned, but denying any indebtedness. Further, in answering, defendant averred that the coat had been sent for cleaning on May 26th, 1926; that said coat was cleaned and delivered about June 4th, 1926, to plaintiff, who returned coat to defendant for advice, as certain parts of the coat had faded under the trimmings and attachments; that defendant advised dyeing coat black and accordingly it did so; that later the coat dyed black was refused again; thereupon defendant dyed coat brown, the original color, but plaintiff again refused to accept it. Defendant reconvenes for seven ($7.00) dollars, two and 50-100 ($2.50) dollars for cleaning coat and four and 50-100 ($4.50) dollars for dyeing it.

There was below judgment for plaintiff for fifty ($50.00) dollars and all costs and defendant’s reconventional demand was dismissed.

Defendant has appealed.

Plaintiff’s testimony substantially confirms the allegations of petition with the further explanation that she had bought between Christmas, 1926, and New Year, 1927, a new coat at a sale for practically the same price as the brown coat, but totally unlike the former. She stated that she had bought the brown coat in November or December, 1926, and had used it all that winter, but it was in excellent condition when delivered to defendant’s boy June 5th by her at her residence; that she opened the box as soon as coat was returned and told defendant’s boy that they had dyed the coat black and that she would not accept it, as the coat was no longer satisfactory; that she again refused the coat when it was subsequently returned dyed brown, and had never had the coat since.

When the coat was produced by defendant at the trial, she stated that the dyeing had caused the coat to shrink about three inches in length and that it was too small across the hips and that it was not the same color as it was when sent to defendant and that she had tried vainly nine times to see or discuss the matter with Mr. Kennedy.

Defendant’s driver testified that he had received the coat from Mrs. Cassidy to be cleaned; that when he returned the cleaned coat, she refused to accept it on account of fading in places and that she, on his recommendation, had ordered the coat dyed black, but that it had been dyed brown by defendant of its own volition in an effort to restore the original color, when she refused to accept it dyed black.

Two other witnesses for defendant, Messrs. Edward Kennedy and W. A. Kennedy, one the foreman and inspector of garments, and the other the manager of the defendant company, knew nothing personally of the instructions given the driver, but they testified as to cleaning and dyeing the garment. The foreman testified that the condition of the coat generally speaking was better at time of trial than when first delivered and that it was the same color. The latter said the coat was a shade darker in color, but the dyeing job was good. The inspector on cross-examination said they received garments in their place numbering six or seven hundred one day and one thousand another day.

As the testimony with reference to fitting is not denied, we must take it as true, and as the preponderance of evidence is against defendant on the restoration of original color, we conclude that plaintiff’s wife was justified in refusing the coat after it was dyed brown.

Furthermore, defendant weakens his position when he admits that the second dyeing was done on his own initiative, for if he had carried out plaintiff’s instructions and had efficiently dyed the coat black, we can see no reason why he should have done anything further. We therefore conclude with the trial judge that plaintiff is entitled to judgment.

Defendant contends that the quantum of fifty ($50.00) dollars cannot be logically explained, but in this we do not agree with him, for this court said in Bianchi vs. Mussachi, 1 La. App. 294:

“The law makes no provision for deduction of old for new. The defendant’s obligation is to replace all the parts of the car he had damaged.”

For above reasons the judgment is affirmed.


text:
    No. 10,026
    Orleans
    McWILLIAMS v. RITCHIE
    (December 12, 1927. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Evidence—Par. 221, 256; Error and Mistake — Par. 16.
    Where a written contract plainly states the obligations assumed by the obligor of a contract, contemporaneous parol remarks can not be proven under an allegation of error.
    2. Louisiana Digest — Error and Mistake— Par. 2, 8.
    Under R. C. C. 1841 the error which vitiates a contract must be of its nature.
    Appeal from the Civil District Court for the Parish of Orleans. " Hon. Porter Parker, Judge.
    Action by Rozell Williams against Hugh Ritchie.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    F. Rivers Richardson, of New Orleans, attorney for plaintiff, appellee.
    E. M. Stafford, Daniel Wendling, of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

This is a suit by a real estate agent for a commission. From a judgment as prayed for defendant appeals.

It appears that plaintiff signed a contract appointing defendant his exclusive agent for six months for the sale of a certain piece of property owned by him.

The property was sold by plaintiff within the six months and under the plain terms of the contract the commission is due. But, defendant claims, that when he signed the contract and handed it to an employee of plaintiff, the plaintiff being engaged with another customer, it was understood that this employee, a young woman, would change the six months mentioned in the contract to sixty days. When evidence was tendered in support of this averment, it was excluded, upon objection of counsel that it contravened the parol evidence rule. This ruling of the court is said to be improper upon the ground that error is in effect charged, and, therefore, the principle invoked by defendant’s counsel does not apply.

We believe that the ruling complained of was correct. Defendant’s objection to the contract is neither error of fact, nor of law. He admits that he signed the contract with the six months term. The error which vitiates a contract must affect the nature of the contract. R. O. C. 1841.

“Where the written contract plainly states the obligations assumed, the obligor can not set up error on these points caused by contemporaneous parol remarks. 37 La. Ann. 553; Presscott vs. Cooper, 22 La. Ann. 14; Watson vs. Planters Bank, 6th N. S. 496.” Merrick’s Code, Third Edition.

The judgment appealed from must be affirmed.


text:
    No. 11,191
    Orleans
    RICHARDSON v. HENDERSON SUGAR REFINERY CO.
    (December 12, 1927. Opinion and Decree.)

      (Syllabtis by the Court)
    1. Louisiana Digest — Appeal—Par. 518, 520, 535.
    Where a suspensive appeal has been dismissed because appellant knowingly filed an incomplete transcript and failed thereafter to complete the transcript within an extension of time granted by the court for that purpose and failed to ask for a further extension of time, his appeal will be considered abandoned and a devolutive appeal, though prosecuted within the year, must be dismissed.
    Appeal from Civil District Court, Division “E”. Hon. Wm. H. Byrnes, Judge.
    Action by Edward Richardson against Henderson Sugar Refinery Company.
    There was judgment for defendant and plaintiff appealed.
    Appeal dismissed.
    Stanley McDermott, of New Orleans, attorney for plaintiff, appellant.
    John May and W. H. Norman, of New Orleans, attorneys for defendant, appellee.
   ON MOTION TO DISMISS DEVOLUTIVE APPEAL

WESTERFIELD, J.

Appellee moves to dismiss this devolutive appeal upon the ground that a second appeal, though within a year from the signing of the judgment, can not be prosecuted when appellant abandons his first appeal which was suspensive.

The first appeal alluded to was dismissed by this court because appellant knowingly filed an incomplete transcript, and failed to complete same within the extension of time granted by the court, and failed to ask for a further extension of time. See this title, Richardson vs. Henderson Sugar Ref. Co., 5 La. App. 663.

The issue presented by this motion involves the construction of Art. 594, C. P., which reads:

“ART. 594. NO WITHDRAWAL OF APPEAL EXCEPT BY CONSENT — RENEWAL OF APPEAL. From the moment when the citation of appeal is served on the appellee, the appellant can not withdraw his appeal; and whether the appellee obtain the rejection of the appeal by producing the record from the court below, or prosecute execution on the judgment appealed from, on the certificate of the clerk that the record has not been brought up by the appellant, the appeal shall be considered as abandoned, and the appellant shall not be afterward allowed to renew it.”

The jurisprudence is overwhelming to the effect that under circumstances prevailing here the appeal must be considered abandoned. Ducournan vs. Lenstone, 4th La. Ann. 30; Collins vs. Monlicou, 9 La. Ann. 39; Laussade vs. Maury, 31 La. Ann. 858.

In Girod vs. Monroe Brick Co., 127 La. 328, 53 So. 582, the court said:

“Defendant (appellee) moves to dismiss the appeal herein on the ground that a previous appeal from the same judgment, having been dismissed because appellant failed to lodge the transcript in this court within the delay allowed by law, no subsequent appeal can. be allowed. The facts being as stated (Girod vs. Monroe Brick Co., 126 La. 300, 52 South. 550) the motion must be sustained.
“When an appeal is dismissed for failure of the appellant to file the transcript in time, it is considered abandoned and cannot afterwards be renewed. Brooks, et al., vs. Smith, et al., 120 La. 454, 45 So. 388, and authorities there cited.”

The appeal must be and it is hereby dismissed.


author: CLAIBORNE, J.

text:
    No. 10,555
    Orleans
    CROFT v. SOUTHERN HARDWOOD LUMBER CO., ET AL.
    (November 28, 1927. Opinion and Decree.)

      (Syllabus by the Court)
    1. Louisiana Digest — Damages—Par. 62, 66; Automobiles — Par. 9.
    The measure of damages which a plaintiff may recover against a defendant who has injured his automobile in a collision is the cost of having his car made as good as it was before the accident.
    2. Louisiana Digest — Automobiles—Par. 9; Damages — Par. 62, 66.
    For the temporary deprivation of its use plaintiff is entitled to recover the rental value of his car during the time required to make the repairs by the exercise of proper diligence.
    3. Louisiana Digest — Automobiles—Par. 9; Damages — Par. 62, 66.
    He is not entitled to speculative profits he might have made if he had not been deprived of his car.
    4. Louisiana Digest — Automobiles—Par. 9.
    A plaintiff whose car is damaged by the defendant is not bound to permit the repairs to be made by defendant or by a mechanic selected by him.
    Appeal from Twenty-fouijth Judicial District Court for the Parish of Jefferson. Hon. L. Robert Rivarde, Judge.
    Action by Edward S. Croft against Southern Hardwood Lumber Co., et al.
    There was judgment for plaintiff and defendant appealed.
    Judgment amended and affirmed.
    Charles J. Larkin, Jr., of New Orleans, attorney for plaintiff, appellee.
    J. C. Querens, of New Orleans, attorney for defendant, appellant.
   CLAIBORNE, J.

Plaintiff’s claim is for damages to his automobile.

He alleges that on March 3rd, 1925, at 2:15 P. M., he had parked his Ford car near the right-hand curbing of the Metairie Cemetery Road and that while so parked it was run into from the rear by a Ford truck belonging to the defendant and operated by Arthur Williams employed by the defendants as their chauffeur; that plaintiff’s car was damaged to the extent of $82.60, according to a detailed statement attached as part of the petition; that the said car was laid- up for repairs for eight days from March 4th to 15th, that plaintiff is a traveling salesman which requires some kind of transportation; that the only transportation he had was his Ford, and that by his deprivation of the “use of it” he estimates that he suffered on an average loss of $8 per day or a total of $64'. He claims $146, and prays that the defendant partnership and the two members thereof be cited and condemned in solido.

The defendants filed a general denial.

There was judgment for plaintiff and defendants have appealed.

The case comes up on an agreed statement of facts.

The defendant admitted running into plaintiff’s car.

Plaintiff offered in evidence the hill of the Jarreau Motors Company for $47.35 for materials and $35.25 for labor for repairing plaintiff’s car. He testified that the loss of the use of his car caused him a damage on an average of $8 per day.

The defendants’ defenses are:

1st. That the plaintiff’s car was parked upon a part of the road upon which was the following sign erected by the Department of Public Saféty of New Orleans:

“Parking prohibited in this block.”

The violation of this prohibition was no justification for defendant’s illegal act. They are still liable for the damage done by them unless they proved that they could not have avoided it by the exercise of reasonable care. The chauffeur made no such proof. McChanahan vs. Vicksburg S. & P. Ry. Co., 111 La. 781, 35 So. 902; Blackburn vs. L. R. & N. Co., 80 So. 708; Berry S. 386.

2nd. They examined the damage done to plaintiff’s car and estimated it at $35 and offered to repair the damage themselves or to have it done by competent mechanics. This, plaintiff refused.

The plaintiff was not bound to submit to either proposition. He had a right to make the repairs himself or to have them made by mechanics of his own choice.

The correctness of the bill of $82.60 is sufficiently established. There is no evidence to impeach any single item.

But the claim of $8 per day for loss of profits is not shown. In the first place there is no evidence that eight days were required to make the repairs.

The plaintiff was an itinerant country vendor of brooms and brushes. There is no proof that before the accident his earnings were $8 a day. He did not hire another auto.

His alleged profits were speculative and problematical. These the law does not grant. Gobet vs. Municipality No. 1, 11 La. Ann. 300; Bergen vs. City of New Orleans, 35 La. Ann. 523; Louisiana & N. O. Ice Co. vs. Parker, 42 La. Ann. 669, 7 So. 898; Hafner Mfg. Co. vs. Lieber Lbr. & Shingle Co., 127 La. 348, 53 So. 646; 139 U. S. 199; 2 La. Dig. 481, No. 4; Huddy, Sec. 722, note 37; 723, note 44; Sec. 717; p. 951, note 50.

The plaintiff, however, is entitled to have his car made as good as it was before the accident. 158 La. 46.

For the temporary deprivation of its use plaintiff is entitled to recover the rental value of his car during the time required to make the repairs by the exercise of proper diligence. Reisz vs. Kansas City Southern R. Co., 148 La. 930, 88 So. 120; Sherwood vs. American Ry. Express Co., 158 La. 43, 103 So. 436; Huddy, Sec. 722-723.

There is no evidence of the rental value, none that plaintiff hired another car, and none as to the time consumed to make the repairs.

It is therefore ordered that the judgment herein be amended by reducing the amount allowed to the plaintiff from one hundred and forty-six and 60-100 dollars to eighty-two and 60-100 dollars, and as thus amended that the judgment be affirmed; the defendants to pay costs in both courts.

Judgment amended and affirmed.


text:
    No. 9808
    Orleans
    DURIEU v. NEW ORLEANS PUBLIC SERVICE, INC.
    (November 14, 1927. Opinion and Decree.)

      (Syllabus by the Court)
    1. Louisiana Digest — Carriers of Passengers and Goods — Par. 38, 43.
    Carriers must provide reasonably safe : landing places in discharging passengers. But the fact that the surface of the pavement is uneven and there are cracks in the pavement does not in itself establish the carrier’s negligence.
    Appeal from Civil District Court, Division “C”. Hon. E. K. Skinner, Judge.
    Action by Mrs. Emile Durieu against •New Orleans Public Service Inc.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Quintero & Quintero, of New Orleans, attorneys for plaintiff, appellant.
    ..Dart & Dart, of New Orleans, attorneys for defendant, appellee.
   WESTERFIELD, J.

The plaintiff sues for damages for physical injuries alleged to have been caused by a fall while alighting from a street car, operated by the defendant company, due to a hole in the pavement.

There is no question of the defendant’s responsibility under the allegations of the petition. That carriers must provide a reasonably safe landing place in discharging passengers is beyond controversy. The sole question is whether the plaintiff’s allegations have been established by the evidence.

The neutral ground on Canal street, the locus in quo, is proven to have been for a considerable period of time under repair. The surface was in spots uneven and there were cracks. The weight of the evidence, however, is to the effect that there was no particular hazard in walking over the pavement which was in constant use by the defendant’s passengers. The only testimony tending to prove that there was a hole was given by plaintiff herself who states.that it was six inches deep. Another witness, a disinterested witness, gives the depth of the spot called a hole as one-half inch and its length one foot. We are unable to find from the evidence in the record that the pavement at the point where plaintiff alighted was unsafe, particularly since the judge, a quo, found for the defendant. We think this case well within the familiar rule concerning the finding of facts by the trial court.

The judgment appealed from is affirmed.


text:
    No. 10,740
    Orleans
    STATE EX REL. RUSSELL v. CITY OF NEW ORLEANS
    (October 31, 1927. Opinion and Decree.)
    (The motion to dismiss in this case is in Advance Reports No. 13, page 114.)
    For syllabus see Bahn et al. vs. City of New Orleans, 163 La. 777, 112 So. 718. See also 5 La. App. 114.

      Appeal from First City Court, Division “B”. Hon. Val J. Stentz, Judge.
    Action by State ex rel. Thomas A. Russell against City of New Orleans.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed.
    E. M. Heath, H. A. Moise, E. W. Brodtman, of New Orleans, attorneys for plaintiff, appellee.
    Joseph Carroll, F. P. Burns, of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

The issue presented by this appeal has been determined adversely to appellee in the case of Bahns et al. vs. City of New Orleans, 163 La. 777, 112 So. 718; State ex rel. Russell vs. New Orleans. (See also 5 La. App. 114.)

The judgment appealed from is reversed and it is now ordered that there be judgment in defendant’s favor dismissing the plaintiff’s suit.


text:
    No. 11,011
    Orleans
    COLLINS PIANO CO., INC. v. COSPELICH
    (October 31, 1927. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Appeal—Par. 480.
    No days of grace are allowed for filing a transcript of appeal beyond the date fixed in the order for an extension of the return day.
    2. Louisiana Digest — Appeal—Par. 484, 520.
    The court must notice of its own motion the failure to file the transcript in time and must dismiss the appeal.
    Appeal from First City Court. Hon. W. A. Bahns, Judge.
    Action by Collins Piano Co., Inc., against Mrs. N. Cospelich.
    There was judgment for defendant and plaintiff appealed.
    Appéal dismissed.
    E. E. Willis, of New Orleans, attorney for plaintiff, appellee.
    Chas. A. Danna, of New Orleans, attorney for defendant, appellant.
   CLAIBORNE, J.

On motion to dismiss. Judgment was rendered in this case on April 18th, 1927, in favor of defendant. On April 21st the plaintiff obtained an order for an appeal returnable to this court on April 30th, 1927.

On April 29th, 1927, this court extended the return day for filing the transcript to May 30th, 1927;

On May 25th, 1927, this court granted a second extension for filing the transcript to June 15th, 1927;

On June 17th, 1927, the appellant filed the transcript in this court.

On June 27th, 1927, the defendant "and appellee filed a motion for the dismissal of the appeal on the ground that the appellant failed to file the transcript on or before the last extended return day, namely June 15th, 1927.

The appellant has not favored us with a brief, but has submitted the case on the record.

The jurisprudence is that no days of grace are allowed for filing a transcript of appeal beyond the date fixed in the order for an extension of the return day. State ex rel. Richard vs. Judge, 28 La. Ann. 901; Succession of Quin, 37 La. Ann. 391; Hoven vs. Hoven, 43 La. Ann. 1170, 10 So. 294; Archer vs. Gonsoulin, 46 La. Ann. 144, 15 So. 49; Hudson vs. Garrett, 47 La. Ann. 1534, 18 So. 510; Thibodeaux vs. Cayard, 52 La. Ann. 1374, 27 So. 737; Mutual Loan Assn vs. Baptist Church, 48 La. Ann. 1458, 21 So. 24; O’Reilly vs. Buckner, 5 La. App. 661.

The motion may be filed at any time. Hudson vs. Garrett, 47 La. Ann. 1534, 18 So. 510; Mutual Loan Assn. vs. Baptist Church, 48 La. Ann. 1458, 21 So. 24.

The court must dismiss the appeal on its' own motion. Gigand vs. City of New Orleans, 52 La. Ann. 1261, 27 So. 794; O’Reilly vs. Buckner, 5 La. App. 662, an order for further extension granted after the last day of the extended return day is invalid and may be recalled. Mutual Loan Assn. vs. Baptist Church, 48 La. Ann. 1458, 21 So. 24; Succession of Kuntz, 33 La. Ann. 30; World’s Indus. & C. C. Expo. vs. Crescent City R. Co., 38 La. Ann. 905; Thibodeaux vs. Cayard, 52 La. Ann. 1374, 27 So. 737; Sterling vs. Sterling, 34 La. Ann. 1030; O’Reilly vs. Buckner, 5 La. App. 662.

It is therefore ordered that the appeal herein be dismissed.


text:
    No. 11,008
    Orleans
    ROSEN v. SEGRETTO
    (October 31, 1927. Opinion and Decree.)
    (November 14, 1927. Rehearing Refused.)

      (Syllabus by the Court)
    1. Louisiana Digest — Evidence—Par. 343, 349.
    Courts are not disposed to emphasize the effect of an indictment and arrest upon the credibility of a witness, because the fact of arrest and indictment is not inconsistent with innocence. Nevertheless, where plaintiff charges his employee with embezzlement, it is sufficient to indicate confusion in an account between plaintiff and his employee, without necessarily involving moral turpitude. Consequently when defendant, sued on an open account, claims to have discharged a part of his admitted indebtedness to plaintiff, by arrangement with plaintiff’s employee, and his claim is denied by such employee, and not otherwise repudiated, it will prevail against the denial of the accused employee.
    Appeal from First City Court. Hon. Val J. Stentz, Judge.
    Action by Frank Rosen against Joseph Segretto.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed.
    L. A. Maloney, of New Orleans, attorney for plaintiff, appellee.
    J. C. McGee, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

This is a suit for $209.00 as a balance due, together with interest and attorney’s fees, on a contract of sale of three rings. The contract sued on bears date of March 30th, 1926, and relates to 1 Dinner Ring — Chex—$125.00, 1 Onyx Ring $25.00, 1 Dinner Ring— Cvex — $100.00, a total of $250.00, of which $10.00 was acknowledged to have been paid as a “deposit” and the remainder it is stipulated is to be paid in weekly installments of $5.00 each.

Defendant admits his signature to the contract but claims to have returned the two dinner rings and to have retained the onyx ring for which he says he overpaid by sixteen dollars in tbe mistaken belief that tbe purchase price was $45.00 instead of $25.00 as stated in the contract. He reconvenes and claims $16.00.

Plaintiff was represented in the transaction by a salesman by the name of Solomon Walters. Walters denies that the dinner rings were returned and when confronted with a receipt by counsel for two diamond rings at $250.00 dated 3/30/26, the day of the signing of the contract, admits the receipt to be in his handwriting but explains that it refers to other rings and not the ones mentioned in the contract. He is somewhat confused about the receipt, for he stated several times that there were originally three rings returned and not two as mentioned in the receipt. On the other hand, the defendant bought under the contract two dinner rings of a total value of $225.00 and not $250.00, the amount mentioned in the receipt signed by Walters. Neither Walters nor the defendant explains this discrepancy to our satisfaction. It i's admitted that whatever defendant retained of his original purchase, forty-one dollars was paid on account. It is argued that defendant would hardly pay forty-one dollars if he owed only $25.00. Ordinarily this would be most convincing, but the manner in which this money was collected, two or three dollars at irregular intervals, might mislead a simple Italian, such as defendant is shown to be, and, moreover, he claims to have been under the impression that he owed $45.00 and not $25.00.

In the final analysis the issue is one of veracity between plaintiff’s agent, Solomon Walters, and the defendant, Segretto.

The record contains evidence which we think reflects upon Walters’ credibility to such an extent as to turn the scales heavily against him.

It is proved by his own admission that he left the state shortly after this transaction and was forcibly returned following a charge of embezzlement lodged against him by his employer, plaintiff herein. The alleged embezzlement referring to certain jewelry belonging to his employer aggregating in value, according to his statement, about $460.00. We would not be understood as emphasizing the effect of a criminal charge upon the credibility of a witness, for as pointed out by Doster, C. J., in State vs. Greenburg, 59 Kan. 404, and cited by Mr. Wigmore in his great work on Evidence, Vol. 2, Sec. 982:

“An arrest is nothing more than an accusation of crime or other act of turpitude. That it is made in the form of a. forcible restraint of a person based upon a sworn complaint makes it for purposes of disgrace or discredit, no stronger evidence of the truths of the accusation than an oral statement by the accuser would be. No one would contend that a witness could be asked whether another person had not orally accused him of crime. Why should the rule be different when the accusation has been written and sworn to? It is but an accusation in each case. Why should it be different when the sworn accusation is followed by an arrest. The arrest is but a reassertion of the accusation in another form.”

But in this case the plaintiff himself makes the accusation against his salesman upon whose testimony he relies for recovery. It is at least evidence of confusion in the account between plaintiff and his employee and to that extent involves the credibility of his testimony regardless of the implication of turpitude. Furthermore, the answers of the witness, Walters, are not such as might be expected from an innocent and honorable man unjustly accused of such moral obloquy as is involved in the charge of embezzlement. We hope we do this witness no injustice in saying that his evidence can not be relied upon in support of the judgment appealed from.

For the reasons assigned the judgment appealed from is reversed and it is now ordered that plaintiff’s demand be rejected at his cost.

It is further ordered that defendant have judgment against plaintiff in reconvention in the sum of sixteen dollars, plaintiff to pay costs of appeal and defendant of the lower court.