author: CAGE, Judge ad hoc.

text:
    No. 13,557
    Orleans
    JORDAN v. KATZ & BESTHOFF, LTD.
    (February 2, 1931. Opinion and Decree.)

      W. J. & H. W. Waguespack, of New Orleans, attorneys for plaintiff, appellant.
    Lemle, Moreno & Lemle, of New Orleans, attorneys for defendant, appellee.
   CAGE, Judge ad hoc.

This suit arises out of an automobile collision which took place at the intersection of Broadway and S. Claiborne avenue on June 14, 1928.

The plaintiff was driving a Nash sedan out Broadway towards the lake. The defendant’s delivery truck, driven by one Percy Eirman, was going down on the lake roadway of S. Claiborne avenue, and the collision occurred in the intersection of Broadway street with the lakeside roadway of S. Claiborne avenue near the center of this roadway.

It is contended that we should take judicial notice of the fact that in driving down on the lake roadway of S. Claiborne avenue, “against traffic,” the defendant’s truck was violating a city ordinance. But no city ordinance is pleaded, and, as therefore none could be proven, we cannot take judicial notice of the existence thereof, if, in truth, one such exists.

“As a district court cannot take judicial cognizance of city ordinances, it is clear that, where no violation of an ordinance is charged in a suit for damages as the basis of fault, the existence of an ordinance cannot be presumed.” Valenti et ux. v. Oster Bros. Carriage & Wagon Manufacturing Co. et al., 154 La. 991, 98 So. 553, 554.

The plaintiff himself is his sole witness to the accident. He swears, as do all the other witnesses, that an extremely hard rain was falling; that, when he reached the intersection of S. Claiborne avenue with Broadway, he brought his car to a full stop, then, having looked up the riverside roadway, and seeing no ears, and having looked down the lakeside roadway, and having seen no cars coming, he proceeded across, and had attained a speed of about fifteen miles per hour when, arriving in the lakeside roadway, he saw, for the first time, the Katz & Besthoff truck about 6 feet from him, that he swerved to the right in an attempt to avoid the collision, driving his car on the downtown sidewalk, of Broadway, and proceeded driving until he found an automobile roadway by which he could get off of the sidewalk and on to the paved street.

Percy Eirman, the chauffeur of defendant’s truck, swears that, when he approached the Broadway intersection, he saw the Nash sedan approximately a block towards the river, about at Sycamore street, that he stopped his truck, and then proceeded across, when he was struck by the Nash sedan.

The stories of the two men driving the two machines are diametrically opposite, and cannot be reconciled.

'The only other eyewitness to the collision was a man named Paul McGhee, who, at the time, was a chauffeur for the Yellow Cab Company, and who, at the time of the trial, was employed by the New Orleans Public Service, Inc., and is apparently a totally disinterested witness and evidently fair and seeking only to tell the truth as he saw it.

His testimony is that he was driving his cab, with a passenger in it, on Broadway on the upper roadway of that street, and that, when he reached the intersection of that street with S. Claiborne avenue, he saw the Katz & Besthoff truck going down the roadway towards Canal street, and he saw the Nash sedan coming in Broadway towards the lake. He testifies that' it was raining so hard as' to make it difficult or impossible to see an automobile more than .two blocks off; that the Katz & Besthoff truck was going at the rate of 30 to 35 miles an hour, and made no stop whatsoever; that the Nash sedan was going, perhaps a little slower, 28 to 30 miles an hour (these being approximations), and that it made no stop whatsoever, but came directly on, and the collision occurred as stated.

Accepting McGhee’s testimony as true, which we do, it is apparent that both parties were at fault, for it is surely fault for the driver of an automobile in a heavy rain, such as was then prevailing, with his windows up, to approach such an intersection, as that of Broadway and S. Claiborne avenue, at the speeds of these two machines. We therefore find as a fact that both drivers were at fault, and, as. the defendant had pleaded the fault of the plaintiff as contributory negligence .barring recovery, there can be no recovery, unless we are able to apply the 'doctrine of the last clear chance which has been invoked before us by counsel for the plaintiff.

Under our understanding of that doctrine, it has no application to this case. As we understand it, the doctrine can only apply where the fault of the plaintiff has become an accomplished fact, but where it has ceased activity, and where the commission of the fault has already placed him in a position of danger from which he is unable to extricate himself, and the predicament in which he has placed himself through his own fault was seen by the defendant, or should have been seen by him, in time to avoid the injury; but we understand that, where the fault of the plaintiff is a continuing fault, the doctrine cannot be successfully invoked.

In order that this doctrine should apply, the fault of the plaintiff must have been an accomplished fact, irrevocable and irremediable. It must have placed him in a position whefe he could only be saved from injury by the act of the defendant; and where the defendant could, and should, have seen his predicament in time to avoid injuring him, and fails so to do, the fault of the plaintiff is blotted out, and the fault of the defendant is considered as the. proximate cause of the injury. Indeed, it may, pro hac vice, be considered the sole cause.

In the case of Harrison v. Louisiana Western Railroad Co., 132 La. 761, 61 So. 782, 783, it was held:

“In the other two [cases] the person injured had lost the ability to get himself out of the danger, and, where this is the case, his negligence can no longer be said to) have been the proximate cause of the injury. In these two cases, the person injured lay unconscious upon the track with no chance whatever therefore of saving himself; and the engineer coming on with his train had the last clear chance of averting the accident. In the instant case the old man continued down to the last moment to have just as good, if not a better, chance than the engineer to avert the accident."'’

In the same volume, and on page 766 (61 So. 784), the court quotes, with approval:

“This so-called exception to the rule of contributory negligence (i. e., the doctrine of ‘last clear chance’) will not be extended to cases where the plaintiff’s own negligence extended up to and actually contributed to the injury. To warrant its application there must have been some new breach of duty on the part of the defendant subsequent to the plaintiff’s negligence.” (Italics ours.) A. & E. E. of L. Suppl. vol. 2, page 64, notes 4 and 5.

This case is referred to with approval, and .again the law is. stated with equal clarity in Castile v. O’Keefe, 138 La. 479, et seq., 70 So. 481.

As we find from the statement of facts above given that both parties were continuously negligent up to the. moment of impact, we can find no ground or justification for applying the doctrine.

The judgment of the lower court was for the defendant. We think it is correct, and it is affirmed.

WESTERFIELD, J., absent, takes no part.


source: Caselaw Access Project

author: JANVIER, J.

license: Public Domain

text:
    No. 13,359
    Orleans
    SWIFT & CO. v. VILLEMEUR ET AL.
    (January 19, 1931. Opinion and Decree.)
    (February 2, 1931. Rehearing Refused.)
    Frymire & Ramos, of New Orleans, attorneys for plaintiff, appellee.
    Theo. Cotonio, of New Orleans, attorney for defendants, appellants.
   JANVIER, J.

Ernest Villemeur seeks the rescission and annulment of a solidary judgment rendered in favor of Swift & Company against him and his father, Edward Villemeur, and asks that the recorder of mortgages he compelled to erase from the records of his office the judicial mortgage resulting from the inscription therein of the said judgment.

The ground on which the rescission of the judgment is sought is that at the time it was rendered the said Ernest Villemeur was an. unemancipated minor, and on that Question of fact there now seems to be no dispute.

The petition for rescission was not filed until nearly four years after Ernest Villemeur had attained his majority, and Swift & Company have set up, as a bar to this action, the prescription of one year applicable to many actions for nullity of judgment under Code of Practice, article 613.

However, it is evident that that article of the Code of Practice has no application to a suit by a minor for rescission of judgment rendered against him during minority, for such suits are treated of specially in article 615 of the Code of Practice, under which actions of this kind are permitted to be brought at any time within four years next succeeding the day on which majority is attained. Code Prac. art. 615 reads as follows:

“A judgment rendered against a minor may be rescinded if such minor show either that his cause has not been well defended, or that he has been aggrieved by such judgment.
“But that action shall be prescribed if four years have elapsed after the minor has arrived at the age of majority; nor can it be brought by the curator or the tutor during the minority of their ward; provided, that this article shall not be taken or construed to imply the nullity of a judgment where a minor has ■ been regularly represented in a suit according to law.”

Since such a suit for rescission will lie if the minor can show that the original suit against him was not “well defended,” it follows, we believe, that it will lie, where it appears that the original suit was not defended at all, as is the case here.

But we are of the opinion that we are unable to rescind or annul a judgment which has been paid by one of the solidary judgment debtors. It was rendered against the father and the son and was paid in full by the father, who handed the money to the son, who, in turn, delivered it to the judgment creditor.

We are of the opinion that the trial judge was correct in his view that the question presented was a moot one and that a judgment paid by one of the solidary judgment debtors cannot later be annulled.

The only other question presented is the right of Ernest Villemeur to have erased from the mortgage records the inscription of the judgment as against him. Of course, since the judgment should not have been rendered in the first instance against the minor, there was and is a duty on the judgment creditor to erase from the records the inscription which should not have been placed there, but, unfortunately for Villemeur, we are unable, on the petition as filed, to render judgment ordering the erasure of the inscription because, while it is true that he has prayed that the recorder of mortgages be ordered to effect the cancellation and erasure, that official has not been made a party defendant, and manifestly we are unable to render a judgment ordering something to be done by a party who has not been made defendant, and who has not been cited. Corpus Juris, vol. 15, p. 725. The fact that the recorder of mortgages in a matter of this kind is only nominally a party does not help the situation because, though only nominally a party, nevertheless he is a necessary party, and proper practice requires that, in a suit to erase an inscription in the mortgage office, whether by mandamus or by rule, the recorder of mortgages be made a party defendant. In Cappel v. Hundley, 168 La. 20, 121 So. 176, 177, the court said:

“A summary proceeding against the recorder of mortgages, either by mandamus or by rule to show cause, is the appropriate proceeding by which to compel the cancellation of a mortgage or other incumbrance that has been judicially ordered, or ought to be, canceled. Savage v. Holmes, 15 La. Ann. 334; State ex rel. Deblieux v. Recorder, 25 La. Ann. 61; Lanaux v. Recorder of Mortgages, 36 La. Ann. 974; State ex rel. Busha’s Heirs v. Register, 113 La. 98, 36 So. 900; State ex rel. Macheca v. Dunn, Recorder of Mortgages, 148 La. 473, 87 So. 241; State ex rel. Hurwitz et al. v. Recorder of Mortgages et al., 165 La. 334, 115 So. 582; State ex rel. Metropolitan Land Co. v. Recorder of Mortgages et al., 166 La. 271, 117 So. 145.”

The judgment appealed from is affirmed, at the cost of appellant.

HIGGINS, J., takes no part.


text:
    No. 13,480
    Orleans
    MOSCHETTO v. ILLINOIS CENTRAL R. R. CO.
    (December 15, 1930. Opinion and Decree.)
    (January 5, 1931. Rehearing Refused.)
    (March 3, 1931. Writs of Certiorari and Review Refused by Supreme Court.)
    Chas. I. Denechaud, Ernest J. Robin, of New Orleans, attorneys for plaintiff, appellant.
    Lemle, Moreno & Lemle, of New Orleans, R. V. Fletcher, of Chicago, 111., Chas. N. Burch, of Memphis, Tenn., and Hunter C. Leake, of New Orleans, attorneys for defendant, appellee.
   JANVIER, J.

Plaintiff is the widow of Saverio Rióla, who; while crossing defendant’s tracks on Calliope street near the river front in New Orleans, was killed by a locomotive. The decedent had been engaged as a “water boy’’ in the hold of a ship of the United Fruit Company while a banana cargo was being unloaded. Shortly after midnight the discharge of the cargo was completed and decedent started on his way home. He walked along the river front from the unloading shed to Calliope street and then turned from the river and proceeded along Calliope street for a distance of a few hundred feet and was struck just as he was crossing one of the many tracks which intersect that street. In the petition it is charged that, as he approached the track, there was a locomotive standing still with its tender or rear end extending partially across Calliope street; that a switchman of defendant company was about one hundred yards down the track, across Calliope street; that this switchman signaled the engineer to proceed, and that the locomotive then suddenly started across the street, without signal or warning of any kind, and ran over and killed decedent.

The evidence shows, that the locomotive, with the tender or rear end in front, and attached to a string of box cars, had not been standing still, as alleged, but had been proceeding slowly towards the crossing from a point nearly six hundred feet away. In fact plaintiff made no effort to prove the allegations of her petition to the effect that the locomotive had been standing motionless and had started suddenly and without warning, but offered evidence tending to show that the headlight of the locomotive had not been burning, that the whistle was not blown, and that the bell was not rung.

Defendant contends that the electric headlight was burning; that, the automatic bell was ringing and that the whistle was being continually blown because of pedestrians who were walking near the track in the direction in which the locomotive was proceeding; that the speed of the train was less than six miles an hour and that decedent, who had been standing in a safe position alongside the track, suddenly attempted to rush across when there .was no longer sufficient time for him to do so.

The evidence overwhelmingly sustains defendant’s contention and amply justifies the finding of the trial judge in favor of defendant.

It is charged that it is negligence to operate a locomotive with the tender or rear end in front and also that, in such a locality, a flagman should be stationed to warn pedestrians.

The evidence convinces us that it is quite customary to operate switch engines in that manner, and that no additional danger attends such operation. See Ladner v. N. O. Terminal Co., 139 La. 262, 71 So. 503.

Nor does it appear that there was any necessity for a flagman at that crossing at that time of night. Although during the day that crossing is, no doubt, much frequented, the record shows that at night it is. isolated and is little used by traffic. Furthermore, neither the fact that the tender preceded the locomotive, nor the fact that there was no flagman present, in any way contributed to the unfortunate result, since it seems quite certain that decedent saw the train coming and at the last moment tried to hurry across in front of it. Under such circumstances we are unable to find that a flagman could have done anything to prevent the accident, and. the fact that the tender preceded the main portion of the locomotive made no difference whatever in the unfortunate result. The testimony of plaintiff’s witnesses as. to the ringing of the bell, the blowing of the whistle, and as to whether or not the headlight was burning, is most unsatisfactory, whereas the testimony of the witnesses for defendant — both those in the employ of the company and those disinterested outside witnesses who saw the occurrence — is most convincing. We find that there was no negligence in defendant company.

The judgment appealed from is affirmed.


text:
    No. 13,279
    Orleans
    ALMERICO v. LOUIS A. BILLA & CO. ET AL.
    (December 11, 1930. Opinion and Decree.)

      Upton & Barringer, of New Orleans, attorneys for plaintiff, appellant.
    Theo. Cotonio, of New Orleans, attorney for defendants, appellees,
   ON MOTION TO DISMISS

JANVIER, J.

Appellee moves' to dismiss the appeal on the following grounds:

■ (1) That the order granting the appeal was not obtained until more than ten days after the judgment was signed. -

(2) That the appeal was made returnable on November 18, 1929, and no transcript was filed on that day, but that on the day following the return day an application for an extension of time to file the transcript was made; that thus the application came too late.

(3) That the appeal was taken by petition and not by motion, and that therefore citation of appeal should have been served on appellee, that the citation was prayed for in the petition, and that the order granting the appeal ordered it to issue, but that the citation of appeal as prepared by the clerk was not served because appellant failed to pay for such service.

1. The judgment was signed on October 28, 1929. The order of appeal was signed on November 8, 1929. Treating October 29 as the first day after the judgment was signed, we find that NovemDer 8, was the 11th day. The order was. thus signed within the time limit provided in Act No. 128 of 1921 (Ex. Sess.), since, in a syllabus written by the court in Hendren v. Crescent City Seltzer & Mineral Water Co., Inc., 1 La. App. 25, we find the following:

“In counting the ten days for an appeal under said Act the Court must exclude Sundays and the tenth or last day, granting the appellant the whole of the eleventh day, after the rendition of the judgment.”

2. The application for extension of time to file the transcript did not come too late. It was made on the day after the return day as fixed in the order granting the appeal. Article 883 of the Code of Practice reads in part as follows:

“If the appellant has not filed in the Supreme Court, on the day appointed by the inferior judge, the record from the court below, and was prevented from doing so by anj event not under his control, he may either in person or by attorney apply to the court before the expiration of three days, after which the appellee may obtain a certificate from the clerk declaring that the record has not been filed, and may demand a further time to bring it up, which may be granted by the court if the event causing the delay be proved to its satisfaction. * * * ”

In interpreting this article and in passing on a contention identical with that now under consideration, the Supreme Court in Sammons v. New Orleans Railway & Light Co., 143 La. 731, 79 So. 320, 321, said:

“The contention of the appellee that the transcript was filed too late is based upon the appellant’s failure to apply to this court on or before the return day of the appeal, and, on proving to our satisfaction that she was prevented from filing the record in this court on the return day by an event not under her control, to demanH and obtain further time to bring it up. Appellee refers to the requirements of article 883 of the Code of Practice for obtaining, within three days after the return day of an appeal, further time to bring it up. Our interpretation of the article of the Code is; not that an appellant must make a formal demand to have the benefit of the three days grace, but that, if he requires further time, he must make the demand within the three days following the return day, and prove to the satisfaction of this court that he was prevented by an event not under his control from filing the record on the return day.”

The case of Filiberto v. Evans et al., 9 La. App. 104, 118 So. 844, 845, is not applicable here because in that case the question presented was whether three days of grace for the filing of a transcript were allowed after the granting of an extension. The court said:

“An extension of the return day does not carry with it days of grace.
“A second or subsequent .application for an extension must be made on or before the day to which the extension is made.”

3. The contention that the appeal was asked for by petition instead of by motion, and that therefore citation was necessary seems to be, disposed of by the decision of the Supreme Court in Frankel et al. v. Morse Timber Co., Limited, et al., 140 La. 448, 73 So. 263. There, as here, a petition for appeal was filed. Since it was filed at the same term of court as that at which the judgment appealed from had been rendered, it was treated as a motion for appeal and no citation issued. In overruling a motion to dismiss the appeal, the Supreme Court said:

“The minutes show that the appeal was granted on motion in open court. This motion was in writing, and the order granting the appeal was also in writing, and this order calls the said motion a ‘petition’; but what difference this can make we are at a loss to imagine. The appeal having been granted in open court at the same term of court, citation of appellees was not necessary.”

Here it is true that the citation was prayed for and it also seems to be true that the citation would have been served except for failure of appellant to pay the costs of such service. But the minutes of the court, which minutes were, by writ of certiorari, brought here and attached to the record, show that the appearance at which the appeal was asked for, whether we call it a petition or a motion, was made in open court and at the same term of court at which the judgment had been rendered. No citation was necessary, and the prayer for citation was mere surplusage.

The motion to dismiss, the appeal is overruled.


author: HIGGINS, J.

text:
    No. 13,491
    Orleans
    LOUQUE v. SORTINO ET AL.
    (December 15, 1930. Opinion and Decree.)
    (January 5, 1931. Rehearing Refused.)
    (March 3, 1931. Writs of Certiorari and Review Refused by Supreme Court.)
    James J. Landry, of New Orleans, attorney for plaintiff, appellee.
    Clarence J. Favret, of New Orleans, attorney for defendants, appellants.
   HIGGINS, J.

Plaintiff, a duly licensed real estate broker, brings this suit in behalf of the owner of a residence in this city to recover the sum of $335.61, for alleged damages to the premises against the three defendants, as tenants, in solido. The petition alleges that plaintiff, on February 23, 1928, rented a single, frame, seven-room residence to the defendants by verbal lease from month to month for the price and sum of $35 per month; that in the latter part of April, 1928, petitioner discovered that the defendants had erected three large vats and a complete distillery in the premises and had mutilated and destroyed the flooring, walls, and ceiling, in installing this equipment, the weight of which caused the foundation of the building to sink 14 inches on one side and 21 inches on the other; that the owner notified the defendants that they had to vacate as the property was rented for residential purposes and not for the manufacturing of liquor, and that they would have to pay for the damages; that thereupon the defendants promised to pay for the damages, and between April and July, 1928, paid $150 on account thereof; that during August, 1928, the place was raided by federal prohibition agents, and the equipment and material destroyed; that in addition to the actual damages, to the premises of $429.28, $52.50 is claimed by plaintiff because she was unable to rent the property to a prospective tenant for $35 per month for six weeks, the time required to make the repairs, as well as $3.83, for the excessive water bill she received on account of the large quantity of water used in the distillery, not contemplated by the lease, and that, after allowing credit of $150, the balance due amounts to $335.61, the amount of this suit.

The defendants, filed an exception of no cause of action which was referred to the merits, and then answered denying that there was any relation of landlord and tenant, and denying that they had operated a still in the premises and that they had caused any damage to it.

There was judgment in favor of the plaintiff as prayed for, and the defendants have appealed.

The record shows that a duly licensed real estate broker, for account of the plaintiff, as owner, rented the premises 2637 Conti street, a single, frame dwelling containing seven rooms, and a bath, to the agent of the defendants on February 23, 1928, for $35 per month. It was understood between the agent of the owner and the agent of the defendants, who gave a fictitious name, that the premises would be used for residential purposes. The three defendants took possession of the building and proceeded to erect and operate a distillery in the premises, mutilating the walls, ceilings, flooring, etc., in installing the three large vats and other equipment.

It appears that the plaintiff discovered the presence of the distillery because the building sunk some 14 inches on one side and some 21 inches on the other due to the great weight of the va!ts and machinery. She immediately notified the agent of the defendants that he would have to vacate the property and pay for the damages. This resulted in a conference between the defendants and the owner’s agent, whereby they agreed to pay for the damages, and thereaftér they paid the sum of $150 in installments on account thereof.

In August, 1928, federal prohibition agents raided the place and destroyed the distillery.

We fully agree with our brother below in his finding that the defendants were the real tenants and the parties who rented the property, through their agent. The negotiations were carried on in such a way as to conceal their identity, but, upon the discovery of the still by the owner’s agent, the defendants revealed their identity by calling upon the plaintiff and agreeing to pay for the damages-, and actually paying $150 on account thereof.

While the defendants in their answer simply deny that the relation of landlord and tenant existed between them, and that they had caused any damage to the premises, in this court they contend that, as the plaintiff knew, after the latter part of April, 1928, that the property was being used for illegal purposes and permitted the defendants to remain in possession and continue the operation of the still without reporting them to the federal prohibition department, she aligned herself in an unlawful enterprise, and therefore cannot recover. It is sufficient to say that we are convinced that the owner’s agent had no idea or intimation that the property was being rented for other than residential purposes, and, upon discovery of the still, verbally ordered the defendants to vacate and to pay for the damages. It further appears that the damages to the building had already been done before the plaintiff discovered the presence of the still. All of the substantial damage to the building was caused by the deliberate acts of the defendants in breaking the flooring, tearing out walls, ceilings, etc., in installing the vats and other equipment. Any damages to the premises, caused by the operation of the still and the prohibition agents who raided the place, appear to be inconsequential. Furthermore, the evidence shows that, shortly after notifying the defendants to vacate, the owner’s agent became quite ill and had to go to the hospital where she remained for some period of time. Under these circumstances the fact that the defendants remained in possession of the premises after the owner’s agent discovered their illegal business cannot affect plaintiff’s right to recover in this suit.

Defendants also complain as to the amount of the damages allowed by the judge a q,uo. The evidence of the plaintiff in proof of these losses is uncontradicted by the evidence of the defendants, and we therefore find that they were properly allowed.

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


text:
    No. 13,409
    Orleans
    BANNON v. PICOU
    (February 2, 1931. Opinion and Decree.)
    O’Connor & Bannon, of New Orleans, attorneys for plaintiff, appellant.
    Arthur B. Leopold and M. C. Sharff, of New Orleans, attorneys for defendant, appellee.
   JANVIER, J.

Plaintiff sues to recover the amount expended by him in repairing the damage sustained by his Buick automobile as the result of an interseetional collision with a Ford automobile owned and driven by defendant. He claims $109.95. Defendant denies liability, and, by reconventional demand, claims reimbursement in the sum of $295, alleging that this represents the amount of damage sustained by her Ford.

The court below rendered judgment in favor of defendant on the main demand and in favor of defendant and plaintiff in re-convention on the reconventional demand for the full amount prayed for. From that judgment, plaintiff has appealed.

The Buick, which was going in an uptown direction, was on the lake side driveway of Broad street and was crossing Canal street. The Ford was on the upper side driveway of Canal street, was proceeding towards the river and was crossing Broad street.

Plaintiff claims that he stopped his Buick before leaving the Canal street neutral ground and sounded his horn before proceeding across the upper side roadway of Canal street, and that, just as he started his car, he noticed the Ford approaching at a terrific speed; that he again stopped his Buick when it had proceeded only a few feet into the roadway, but that, while it was thus standing absolutely still, it was violently run into by the Ford, which then swung around as the result of its momentum, and that the Ford, having in some manner been put into reverse gear, backed across Broad street and came to rest against a building on the river side of that street.

Defendant maintains that she was driving on Canal street at a moderate speed, and that, when she reached Broad street, plaintiff, without stopping on the neutral ground, as he should have done in compliance with the provisions of ordinance No. 7490 C. C. S., section 7, article 1, proceeded into the roadway at a rapid speed and crashed into the side of her Ford.

As we have so often said, a motorist who is crossing a street like Canal street should, when he is on the neutral ground, bring his car to a stop, sound his horn, and afford to vehicles approaching on the driveway he intends to enter an opportunity to stop. See Williams v. Lenfant, page 515 herein, 131 So. 857, decided January 19, 1931. See, also, Dunbar v. Kaul, 12 La. App. 605, 126 So. 705; Breaux v. Cangelosi, 10 La. App. 765, 123 So. 151.

We are well convinced that the Buick did not stop before entering the upper roadway of Canal street, and there can be no doubt that the Buick crashed headlong into the Ford and not the Ford into the Buick. The verbal testimony clearly preponderates toward this view, and the photographs make any other conclusion impossible.

It is also very evident that, had the Buick stopped even momentarily while it was on the Canal street neutral ground, the Ford would have passed safely ahead of it, and no accident would have resulted.

Since, under the ordinance referred to, it was the duty of Bannon to stop on the neutral ground, Miss Pieou was justified in assuming that he would do so, and, she was, thus, not negligent in proceeding, since she realized that, if Bannon did stop, she could pass before he- could again start his car.

The fact that the Ford, after the accident, proceeded entirely across Broad.stree't, loses its significance when we realize that Miss Pieou, its driver, was temporarily rendered unconscious.

No good purpose can be served by the publication of a detailed analysis of the evidence. Suffice it to say that in o'ur opinion there is a clear preponderance in support of defendant’s contention.

The judgment appealed from is affirmed at the cost of appellant.

WESTERFIELD, J., absent and takes no part.

HUGH C. CAGE, Judge of Civil District Court, Parish of Orleans, and Judge ad hoc, participating.


author: McGREGOR, J.

text:
    No. 3957
    Second Circuit
    MARTIN v. GAMBURG
    (January 27, 1931. Opinion and Decree.)
    Isaac Wahlder, of Alexandria, attorney for plaintiff, appellant.
    Thornton, Gist & Richey, of Alexandria, attorneys for defendant, appellee.
   McGREGOR, J.

This case presents solely an issue of facts. The plaintiff, Thomas Martin, delivered to the defendant, Nathan Gamburg, one J. B. Sedberry feed mill, No. 3, during the month of May, 1929. It is admitted that this was not a sale. The plaintiff contends that the mill was left with the defendant for the purpose of letting him determine whether he would buy it, while the defendant claims that it was left with him to be sold by him on a commission basis of all over $200 for which it might be sold.

There is some question as to whether a hopper and some screens were delivered with the mill. The proof on this point appears to be evenly balanced, but we think it unnecessary to determine this question, as it is evident that it was not the absence of these parts that caused the sale of the mill by the defendant to fail. He claims that he would have sold the mill to one Speilman had it not been for this defect, but the evidence does not bear him out in this defense. Speilman used the mill several days and finally decided not to buy it, not because of the lack of parts, but because of the price being too high.

Defendant claims to have sold the mill first to one Kassed for $250, and that Kassed paid $50 down on the purchase price, which said sum he (Gamburg) passed on to the plaintiff. Kassed did not go on with the deal and is said to have demanded and received his money back after the defendant had passed it on to the plaintiff. It is significant at this point that there was no actual money passed between defendant and Kassed, but that it was simply a matter of adjustment of credits between them, as defendant was a junk dealer and Kassed did this kind of business with him. It was on October 26, 1929, when defendant paid the $50 to plaintiff in the form of a check. Plaintiff says that when that cheek was delivered, defendant wrote on the bottom of it that there was still due by bim the sum of $150, and that at that time it was definitely agreed that defendant had bought the mili. Defendanc denies this and eays that notning was said at the time that would indicate that he, himself, was buying the mill. We think the notation was made on the check, and defendant dues not deny having made it, though he says he does not remember it, but if he did make such a notation it was merely a memorandum to indicate that there was due to the plaintiff the sum of $150 more out of whatever the plaintiff might receive for the mill. Under the agreement which defendant claims was made, all money received from any sale of the mill by the defendant would he due to the plaintiff until as much as $200 had been collected and paid. So this notation within itself did not evidence a sale or corroborate the contention of the plaintiff.

Some time thereafter it appears that Kassed refused to go on with the deal for the reason that he was buying it for resale and the party to whom he thought he could sell it decided not to take it on account of the absence of a hopper and some screens. In the course of time the defendant then found Speilman as a prospective purchaser. This was about two weeks after October 26, 1929, or some time in November. The defendant proposed to rent the mill to Speilman for a period of one year or until the next fall with the option of buying it at the expiration of that time at the price of $250, and with the privilege of applying on the purchase price whatever might be paid as rent. But Speilman kept the mill, only a short time and decided neither to rent it nor buy it. His reason for this was, not the lack of any parts, but the excessive price. The use of the mill by him was apparently satisfactory.. While it may be true that the defendant did make a proposition to rent this mill to Speilman, it is in evidence that soon after it was delivered defendant demanded of Speilman the immediate payment of the price or the return of the mill on the ground that Martin was crowding him and that he would either have to pay him or return the mill. This would indicate that the defendant was handling the mill for the account of the plaintiff. Plaintiff brings this suit for the balance of $150 due on the mill, and defendant answers, denying that he owes that sum or any other, -but, assuming the position of plaintiff in reconvention, sets up the claim that he had the mill for sale for the account of the plaintiff and demands the return of the $50, which he had paid him on October 26, 1929, and which he, himself, had been compelled to return to Kassed on account of the failure of the sale to' go through because of the lack of certain parts. In addition thereto ■ he asks judgment for $50 which he would have received as a profit if he had been successful in making the sale to Speilman, which he says was prevented by the failure of the plaintiff to furnish a hopper and certain screens.

The evidence in this case is very confusing and conflicting. It does not appear to us thaP the plaintiff has made out his case with any degree of certainty. The trial judge evidently found the same thing with reference to this testimony, and since he was present and heard all the parties and witnesses testify, we would not be justified in disturbing his finding. It is evident, therefore, that the plaintiff should return to defendant the $50 received from him, but under the circumstances we do not think that the plaintiff should be held for any damage on account of the failure of the defendant to sell the mill for the reasons alleged by him.

For the reasons assigned it is ordered, adjudged, and decreed that the judgment of the lower court be affirmed, the costs in both courts to be paid by the plaintiff.


text:
    No. 13,506
    Orleans
    WILLIAMS v. LENFANT
    (January 19, 1931. Opinion and Decree.)
    (February 2, 1931. Rehearing Refused.)
    (March 3, 1931. Writs of Certiorari and Review Refused by Surpreme Court.)
    Pomes & McCabe, of New Orleans, attorney for plaintiff, appellee.
    Claude L. Johnson, of New Orleans, attorney for defendant, appellant.
   JANVIER, J.

Plaintiff, while seated on the right front seat of the automobile of his brother-in-law, who was driving the car, received injuries as the result of a collision between that automobile, a Chevrolet, and another, a Packard, owned and occupied by defendant and driven either by defendant himself, or, at his invitation, by a young lady friend- of his. It is immaterial that, possibly, defendant’s friend may have been at the steering wheel, because defendant’s counsel admits that, under the circumstances, defendant would have been chargeable with any legal responsibility which might result from any negligent act of his friend in driving his car under his direction, and with him present.

The accident occurred at about 11 o’clock at night on the eve of January 1, 1928. The Chevrolet in which plaintiff and his brother-in-law were riding had proceeded a short distance down the river side of North Rampart street and had reached the corner of St. Louis street, when the driver thereof, desiring to go out St. Louis street, toward the lake, turned to his left and stopped for a few seconds on the neutral ground of North Rampart street. Defendant’s car was coming up the lake side of North Rampart street, and plaintiff contends that the driver thereof was negligent in approaching the intersection at a rapid rate of speed and in not according to the automobile in which plaintiff was riding the .right-of-way to which it was entitled under the law, and also that, if the driver of the Chevrolet was at fault, nevertheless that negligence is not attributable to plaintiff, who was riding with him as It's guest and who had nothing to do with the operation of the automobile.

Counsel for defendant contends that the driver of defendant’s car was not negligent in the particulars referred to, but that, if he was, plaintiff himself' was negligent in that he had every opportunity to see the approaching car and to warn the driver of the car in which he was riding and that, thus, his failure to warn the driver prevents his recovery.

The trial court rendered judgment in favor of plaintiff for $1,200 and the case is now before us on appeal from that judgment.

As to what occurred while the Chevrolet was standing on the neutral ground, there is no evidence except that adduced on behalf of plaintiff, so we will accept that as portraying the true facts. Plaintiff’s witnesses, himself, his brother-in-law and a pedestrian bearing the name Lopez, stated that, while the Chevrolet was standing on the neutral ground of North Rampart street, its horn was blown. Under these circumstances, under the provisions of Ordinance No. 7490 C. C. S., paragraphs “A,” “B,” and “D” of section 7, article 1, the Chevrolet was entitled to the right-of-way across the lake side of North Rampart street, and defendant’s car, which was approaching that driveway, should, have stopj ped and should have accorded to the Chevrolet that right to which it was entitled under the provisions of the ordinance to which we have referred. We are well convinced that defendant’s Packard was approaching at an exceedingly rapid rate of speed and also that we are not in error in reaching the conclusion that,. in this regard, there was negligence chargeable to defendant.

But, although the driver of defendant’s car was at fault in the ¡particular referred' to, it does not necessarily follow that that, negligence was the sole cause of the resulting collision, because the ordinance does not give to him who is crossing the absolute and. immediate right to proceed just because he has stopped on the neutral ground and has sounded his horn. His right to proceed does not come into existence until he has not only stopped and blown his horn, but has also afforded to those who may be on the driveway he wishes to enter sufficient time to stop their cars, for, under the provisions of the ordinance itse.lf, he may obtain the right to cross, "provided the vehicle shall come to a full stop, when about to leave the neutral ground and enter the roadway, shall signal with horn, and give opportunity for approaching vehicles in the roadway to come to a stop.” Dunbar v. Haul, 12 La. App. 605, 126 So. 705, 706; Breaux v. Cangelosi, 10 La. App. 765, 123 So. 151.

That defendant’s Packard was not afforded an opportunity to stop is very evident from the fact of the accident itself and also from the testimony of the driver of the Chevrolet, who states that he did not even see the Packard:

“Q. Did you look down Rampart street to see if there were any automobiles coming?
“A. I looked down and seen no car coming.
“Q. You saw no car coming?
“A.. No.
“Q. Was there any obstruction in the street to prevent you from seeing if there was a car coming?
“A. No, sir.
“Q. If there was a car coming down that street, you could have seen it if you looked?
“A. I looked.
“Q. And you didn’t see a car coming?
“A. No, sir.”

That the Packard car was there and was approaching him is, of course, mánifest from the subsequent collision and also from the testimony of plaintiff, who states that he saw the Packard when the Chevrolet was stopped on the neutral ground and when the Packard was still about a half block away:

“Q. When you say the car stopped in the neutral ground before attempting to cross Rampart street, did you then look down Rampart street?
“A. Yes, I looked.
“Q. You looked, did you?
“A. Yes.
“Q. You could see down that street plainly, couldn’t you?
“A. Sure.
“Q. Did you see any car coming?
“A. Saw it coming pretty near half a block, something like that.”

Since the car was coming with its lights shining, it is evident that Fey, the driver of the Chevrolet, did not, in reality, look, because he must have seen it had he looked, and thus we can easily account for his failure to afford the Packard sufficient time to come to a stop.

Thus Fey, the driver of the Chevrolet, was also negligent and, but for his negligence in driving into the roadway immediately in front of the approaching Packard, the accident would not have occurred.

Since, then, both drivers were at fault, neither could recover from the other had either sustained injuries or other loss, but the question becomes more involved when we recall that it is not the driver of the Chevrolet who is plaintiff, but Williams, his guest, who exercised no control over and had no power to direct him.

Under these circumstances, that the negligence of the driver is not to be imputed to the guest is no longer a debatable question. Churchill v. Texas & Pacific Ry. Co., 151 La. 726, 92 So. 314-315; Daull v. N. O. Ry. & Light Co., 147 La. 1012, 86 So. 477; Luke et ux. v. M. L. & T. R. R. & S. S. Co., 147 La. 30, 84 So. 483; Chopin v. Levy et al., 12 La. App. 567, 125 So. 142. But the contention of defendant is not that the negligence of Fey, the driver, is imputable to Williams, the guest passenger, but that Williams was guilty of independent negligence of his own in that he admits that he saw the Packard approaching at a very rapid speed and yet uttered no word of warning to Fey.

That there may be circumstances under which a guest passenger, who, though not affected by the negligence of the driver, is guilty of independent negligence of his own, is very evident and has been recognized by our courts, as well as by those of almost all other jurisdictions.

In Churchill v. Texas & Pacific Ry. Co., supra, the Supreme Court considered a case in which it was sought to prevent recovery by a guest passenger because of the negligence of his host. The court held that the negligence of the driver should not be imputed to the guest and that the guest could recover from the joint tort feasor, “unless the circumstances were such that the deceased could be charged with negligence of his own.”

In Chopin v. Levy et al., supra, we found that a guest passenger was not prevented by the negligence of her host from recovering from a joint tort-feasor, unless “the circumstances were such that she could be charged with independent negligence on her own part.” In Ruling Case Law, vol. 20, p. 159, is found the following:

“Of course, the occupant of a vehicle will not be permitted to recover where it appears that he, himself, was negligent, either in permitting the driver to encounter known dangers, or in failing to use his senses of sight and hearing to discover the perils of the highway.”

And in support of the above statement, the following authorities are cited: Colorado & S. R. Co. v. Thomas, 33 Colo. 517, 81 P. 801, 70 L. R. A. 681, 3 Ann. Cas. 700; Miller v. Louisville Ry. Co., 128 Ind. 97, 27 N. E. 339, 25 Am. St. Rep. 416; Illinois Cent. R. Co. v. McLeod, 78 Miss. 334, 29 So. 76, 52 L. R. A. 954, 84 Am. St. Rep. 630; Brickell v. N. Y. Central R. R., 120 N. Y. 290, 24 N. E. 449, 17 Am. St. Rep. 648; Dean v. Penn. R. R., 129 Pa. 514, 18 A. 718, 6 L. R. A. 143, 15 Am. St. Rep. 733; Gulf R. R. v. Pendry, 87 Tex. 553, 29 S. W. 1038, 47 Am. St. Rep. 125.

In Corpus Juris, vol. 45, p. 1016, the rule is stated as follows:

“While negligence of the driver of a vehicle is not ordinarily imputed to an occupant, who neither has nor exercises the right to control the driver in the management of the vehicle, it is nevertheless, the duty of the occupant to exercise ordinary care to avoid injury. If he fails to exercise such care and his failure to do ’ so concurs with the actionable negligence of the defendant and contributes to the injury complained of as a proximate cause, he is guilty of contributory negligence. * * * Recovery is denied to the occupant in such cases because of his own negligence and not by virtue of the doctrine of imputed negligence.”

In addition to the cases to which we have already referred, several other Louisiana authorities support the view that, apart from the negligence of the driver, which, according to the relationship existing between the driver and the injured passenger, may or may not be imputed to the passenger, there may be independent negligence on the part of the occupant, which will bar recovery. For instance, in Toups v. Morgan’s L. & T. R. R. & S. S. Co., 4 La. App. 136, a husband and wife were in an automobile driven by the husband. This court found that the negligence of the husband should not be imputed to the wife, but said that both “were recklessly disregardful o.f the approaching train, and that their negligence in this respect precludes recovery as to either of them.” In Roberts v. Eason, 6 La. App. 703, 711, the court held that a wife could not recover from a joint tort-feasor for injuries sustained while riding in a car driven by her husband because she was guilty of independent negligence of her own in permitting her husband to trail too closely behind another car. In McQuiston v. Shreveport Rys. Co., 12 La. App. 277, 124 So. 706, 711, which is a case growing out of an injury sustained by plaintiff, who had been riding on a motor-truck driven by another person and which was in collision with a street car, in which case recovery from the street car company was refused, the court said that the cause of the collision was the “joint negligence of Langford, the driver of the truck on which plaintiff was riding, and plaintiff himself.”

In Leopold v. Texas & Pacific Ry., 144 La. 1000, 81 So. 602, 603, the facts were that a physician was riding with his son in an automobile driven by the son. They were struck at a railroad crossing, and recovery was denied the doctor because of his own independent negligence in not keeping a lookout and in not warning his son of the possible danger. The court said:

“These conditions placed upon both parties the duty qf exercising extreme care at this crcssing; and, inasmuch as Dr. Lecpold admits that he never locked any more after stopping until the train was almost upon him, we must conclude that he, too, was guilty of negligence.”

Later in the decision the court discussed a point peculiarly of interest here and held that the guest passenger, who was not driving the car, was better able to look out for approaching danger than was the driver himself. The court used the following language•

“He was not driving himself, so that he was compelled to have his attention on the car.”

In two cases from other jurisdictions, resembling closely the one at bar, we find the following:

(A guest passenger) “Who, when the auto was 30 ft. from the crossing, saw a car approaching 100 ft. away, but said nothing to the driver, who he knew did not see the approaching car, and did nothing whatever to avoid a collision, is guilty of contributory negligence as a matter of law.” Brothers v. North Coast Power Co., 127 Wash. 570, 221 P. 311.
“Where one riding on a wagon, driven by his co-employee, saw at the same time as the driver a street car approaching 75 feet away, and did or said nothing to prevent his fellow employee from driving in front of the car, was guilty of contributory negligence as a matter of law.” Kirschbaum v. Phila. Rapid Transit Co., 73 Pa. Super. Ct. 536.

We are, then, well assured that there are many conditions which, if they exist, place the duty of exercising care upon those who .are guest passengers.

It may we.ll be that one who is a guest passenger and who is thus not charged with the duty of operating the car is not called upon to maintain the constant, careful vigil which is required of the driver, and we can even imagine certain circumstances under which such a guest passenger is under no duty at all to look out for danger. But that is not the question which confronts us. The situation presented by the record does not raise the question of whether there is a duty to maintain a lookout for danger, but the question of the duty to warn and caution a driver about a danger which the guest sees and understands.

Here Williams saw the other car approaching at what he considered a dangerous rate of speed. Had it been approaching slowly, it may well be said that he was justified in assuming that it would accord to the car in which he was riding the right-of-way, but the speed itself indicated no such intention and showed plainly that a collision must occur, if the car in which he was riding proceeded into the roadway. They remained on the crossing a few seconds, and it was his duty, during this time, to make certain that the driver of his car saw and realized the impending danger. It is true, as we said in Alost v. J. Moock Wood & Drayage Co., Inc., 10 La. App. 57, 120 So. 791, 792, “experience tells us that back seat suggestions as to the handling of a car are disconcerting and irritating to the driver.” However, we find nothing therein inconsistent with the view that the guest passenger should call attention of the driver to dangers which are apparent to the guest and which he has the better opportunity to see. Such suggestions should be reasonably made and should, of course, not take the form of what is commonly known as “back seat driving” and should not be more insistent or vociferous than is warranted by the occasion and by the certainty of the existence of danger. In the case at bar the Packard was approaching from the side of the Chevrolet on which plaintiff was seated. He had the better opportunity to see it, and its speed should have indicated to him that disaster was imminent, and his warning would have been effective because Fey, the driver, did not see the Packard, and it thus cannot be said that there was no necessity for him to call attention to the danger. The slightest word would hav.e made certain that of which he was not sure; that the driver, Fey, saw the other car approaching.

Under the doctrine of the many cases to which we have referred, Williams was not justified in remaining silent and relying on his assumption that the driver saw the other car and appreciated the danger. The failure of Williams to exercise the slightest care prevents his recovery.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be and it is annulled, avoided, and reversed, and that this suit be dismissed, at the cost of plaintiff.

HIGGINS, J., takes no part.


author: DREW, J.

text:
    No. 3838
    Second Circuit
    PARROTT v. BABB
    (January 27, 1931. Opinion and Decree.)
    T. A. Carter, of Alexandria, attorney for plaintiff, appellant.
    Overton & Hunter, of Alexandria, attorneys for defendant, appellee.
   DREW, J.

Miss Sallie E. Parrott, a femme sole, sued Jim Babb for $1052.50, alleging that she had rented from H. B. Mosely a certain tract of land in Rapides parish, Louisiana, which is commonly known as the “Mosely Place”; that the place is located within the “no fence law” district of Rapides parish; that she intended to farm said land and had it broken up and planted in cotton, corn, sweet potatoes and other farm produce; and that about the middle of May defendant’s cattle, alleged to be outlaw cattle and which would break any kind of fence, proceeded to come in upon your petitioner’s crop and damage same. That again in June the cattle made another raid upon her crop, completely destroying it, and continued to run in her field thereafter. That the cattle complained of consisted of sixteen head. She further alleges that she had made repeated demands upon defendant to keep his cattle up. She alleges that the crop destroyed consisted of corn, to the value of $300; cotton, to the value of $50; sweet potatoes, to the value of $150; hay, $300; and cantaloupes, to the value of $20; also damage to fence, $25, and velvet bean crop, $100. Petitioner further alleges $60 damages in keeping up her own stock and $50 damage, by reason of calves from her thoroughbred cattle being mixed with the outlaw cattle of defendant. She alleges amicable demand and prays for judgment accordingly.

Defendant answered denying the allegations of plaintiff’s petition and alleged that (plaintiff wilfully and negligently permitted gaps in her (pasture fence and in her field fence, and permitted her own cattle, as well as the cattle of others, to roam through and depredate upon her field. He alleges that she could have repaired her fence at a very small cost; and pleads in the alternative contributory negligence based on the above allegations as a bar to her recovery; and assuming the position of plaintiff in reconvention, alleged that plaintiff caused the shooting and killing of one of his cattle and the poisoning of another, alleging the value to be $170; and prays for judgment in reconvention for said amount.

On these issues, the case was tried in the lower court, resulting in judgment for defendant, rejecting the demands of plaintiff, and from which judgment plaintiff has appealed.

Plaintiff’s suit was based mainly upon the supposition that the farm she was renting was protected by the “no fence ordinance” of the police jury of Rapides parish, and on trial she offered in evidence an ordinance of the police jury of Rapides parish purporting to be a “no fence law” ordinance. This offering was objected to by counsel for defendant upon the ground that the ordinance offered was not a “no fence law” ordinance, as well as upon the ground that its introduction was not admissible under the pleadings, there being no allegation of the adoption and promulgation of such an ordinance. The objection was sustained by the lower court and counsel for plaintiff reserved a bill and stated that he would attach a copy of the ordinance to the bill. No copy was attached and is not in. the record; therefore, there is nothing before this court to be ruled upon and the presumption is that the ruling of the district court is correct and that the ordinance was not such as is alleged in plaintiff’s petition.

There is no evidence in the record to support the allegation that the place rented by plaintiff was in the “no fence law” district of Rapides parish, and the right of plaintiff to recover will have to be determined by the law applicable to open range territory — that is, plaintiff must show that the land in question was enclosed by a fence that would keep out ordinary cattle. ♦

Plaintiff alleged that defendant’s cattle first depredated upon her crop about the middle of May, and again in June entered her place and totally destroyed her crop. When she testified in chief, she said that defendant’s cattle first depredated upon her crop either the last of May or the first of June and that they continued to come into her field and destroy her crop during the month of June; that she made an appointment with defendant to meet him on July 2nd for the purpose of discussing the matter of his cattle breaking into her enclosure; that defendant failed to keep the appointment and, finding it impossible to keep the cattle out, that she abandoned her crop in the month of July. She testified that at the time she abandoned the crop her corn was tasseling, the cantaloupes were turning, the cotton practically laid by and the velvet beans had been laid by — all of which is consistent with her testimony as to the time of year she abandoned the crop. Her testimony was fully corroborated by that of her employees who lived on the place and planted and worked the crop.

Defendant, in answer to this proposition, proved by a number of witnesses that at the time plaintiff testified that the cattle made the first raid in the last of May or the first of June, the fencing around her place was down, with gaps in same, trees falling across part of it, and that it afforded no protection against the invasion of her crop by- cattle. He also testified that rplaintiff’s own cattle were often seen in her crop, due to the fact that there were gaps in the field fence. In fact defendant’s testimony conclusively shows that in the latter part of May and the first of June plaintiff’s crop was not protected by a fence sufficient to keep out the ordinary run of cattle.

After defendant . had closed his case, plaintiff in rebuttal took the stand and testified as follows:

“Q. There has been much said about the condition of your crop in June and July, and much, said about your fence. I .will ask you when you abandoned your crop?
“A. In May, because the cattle began breaking in there and we couldn’t keep them out. We tried to keep them out and couldn’t.
“Q. What time in May?
“A. About the tenth of May.
“Q. After tne abandonment of your crop, did you make any effort to keep your fences up?
“A. Not the field fence, no.
“Q. Then after these cattle tore the fence down, after that time, you left it down?
“A. Certainly did, the field fence.
“Q. You heard these various witnesses testifying about the latter part of May and the first of June?
“A. Yes, sir.
“Q. You had already abandoned your crop at that time?
“A. Yes, sir, I certainly had, about the 15th of May. * * *”

Plaintiff then placed upon the stand Mrs. Duplissy, her employee, who was living on the place and who testified that they abandoned the crop not later than the 15th of May. Then C. T. Tubre, another of her employees, testified that they abandoned the crop about the loth of May and no attempt was made to keep the fence up after that.

The testimony of plaintiff and her chief witnesses in rebuttal is directly in conflict with their testimony in chief and is offered after the defendant by his testimony and that of his witnesses had completely destroyed the case plaintiff nad made out in chief. There is no attempt made by plaintiff to explain this conflict or why, in putting on her case in chief, and in her pleadings, she had alleged and sworn that the cattle of defendant first entered her crop the latter part of May or the first of June and that she abandoned her crop in July, and then in rebuttal testify that she had abandoned her crop not later than the 15th of May. The two lines of testimony are irreconcilable, and for the court to say which is correct would be only to hazard a guess. It would be extremely dangerous for any court to render judgment on testimony so contradictory as this. However, the court could assume that either or both of her statements as to the time are correct and then could not render judgment for plaintiff. If her testimony in chief is correct, it has been clearly shown by a preponderance of evidence that in the latter part of May or the first of June, her land was not properly enclosed by a fence; that in several places, trees had fallen across it, and at other places there were gaps sufficient for any kind of cattle to walk in unmolested. And if she abandoned her crop not later than May 15th, there is no testimony in the record to show the yalue of the crop at that time. She has utterly failed to show the cost of making the crop or even an estimate of what it would have cost to have matured the crop, and no item of damage as alleged is fixed with any degree of certainty such as would justify a court in rendering a judgment for her.

The evidence clearly shows that plaintiff cultivated a hay meadow of from fifteen to twenty acres, consisting of alfalfa and grass mixed, and possibly a like amount in corn, cotton, sweet potatoes and cantaloupes. The stand of cotton, corn and beans in the corn was very poor. There were only a few rows of cantaloupes and about one acre of cotton. It is very doubtful from the testimony that if the crop had been cultivated until it matured, that it would have paid the cost of cultivation. However, we cannot guess at what it would have made or what it would have cost to make it without some evidence in the record to govern. In this record, we have not that evidence.

Plaintiff strenuously contends that there is one item of damage of $50 that is proven without contradiction- — that is, the item for the half-breed calves. The evidence shows beyond doubt that plaintiff’s cattle ranged outside of her enclosure, on the bayou and in the edge of the swamp, where defendant’s cattle were raised and that there was nothing to prevent her cattle from running with those of defendant.

It was incumbent upon plaintiff to show that her place was within the “no fence law” district or to show that her place was enclosed with a fence that would keep out the ordinary run of cattle. She has failed in both instances.

We are sure that the theory of plaintiff’s case was that her land was located, in the “no fence law” district and when she failed to prove this, she then attempted to show that the place was properly enclosed.

The lower court found that she had failed in this respect and we see no error in his decision. It is therefore ordered, adjudged and decreed that the judgment of the lower court be affirmed, with all costs.


author: WEBB, J.

text:
    No. 3890
    Second Circuit
    CAPPEL v. PIERSON
    (January 27, 1931. Opinion and Decree.)
    J. C. Cappel and F. B. Cappel, of Alexandria, attorneys for plaintiff, appellant.
    Overton & Hunter, of Alexandria, attorneys for defendant, appellee.
   WEBB, J.

In this action plaintiff, Mrs. Marvin Cappel, individually and as natural tutrix of Marvin and Samuel Cappel, issue of her marriage with Dr. Marvin Cappel, seeks to obtain judgment against defendant, Dr. Clarence Pierson, superintendent of the insane asylum, known as the Central Louisiana State Hospital, for damages resulting from the death of Dr. Cappel, on November 9, 1929, who was killed by E. B. Smith, who had been an inmate of the asylum.

Plaintiff in addition to the facts, above stated, alleged in substance that said E. B. Smith had been adjudged insane on January 29, 1929, and committed to the hospital of which defendant was superintendent, from which he had escaped on March 16, 1929, and to which he was returned on November 8, 1929; that defendant had released said Smith on the morning of November 9, 1929, and that he, Smith, had killed Dr. Cappel on the afternoon of the same day; that a lunacy commission had found E. B. Smith was insane at the time he killed Dr. Cappel, and that he was not responsible for his actions, and that he was ordered to be confined in the ward of the Central Louisiana Hospital, allotted to the criminal insane.

Plaintiff further alleged that when Smith was returned to the hospital on the night of November 8, 1929, he was violently insane, and was placed in charge of two or more attendants who had great trouble in quieting and subduing him, and that defendant knew, or should have known of the condition of Smith.

Plaintiff also alleged that defendant in violation of his duties as superintendent of the hospital, and with wilful and criminal disregard of the rights, life and liberties of his fellow citizens, deliberately and maliciously permitted said E. B. Smith to have his liberty, when he knew that Smith was suffering with paranoia, which is recognized as an incurable mental disease, causing the sufferer to be extremely dangerous, with a persistent desire to take human life, and that the death of Dr. Marvin Cappel was due to the fault and negligence of defendant.

Defendant excepted that the petition failed to state a cause or right of action, which was sustained, and judgment rendered dismissing plaintiff’s suit, from which she appeals.

In presenting the cause here it was stated in substance that the exception was based on the following contentions:

(1) That plaintiff failed to allege any facts showing that defendant was negligent;

(2) That the petition stated a cause of action against E. B. Smith, and in the absence of any allegations that defendant conspired with Smith, or was in any manner directly connected with the act of Smith in killing Dr. Cappel, defendant could not be held liable for any damages sustained by plaintiff resulting from the death;

(3) That the charge of negligence against defendant being that he as superintendent of the asylum had released Smith when he knew .Smith was insane, shows that defendant was acting within the line of his duties as the representative of the State, in releasing Smith and that defendant could not be held guilty of negligence, and liable for any damages resulting from the act of Smith after he had been released, or that the act of defendant in releasing Smith was not the proximate cause of the death of Dr. Cappel.

Considering the third contention, it is conceded that defendant had discretionary authority to release the inmates of the asylum under parole, and that so long as defendant exercised his discretionary authority in good faith, he could not be held guilty of negligence; but it is contended that when the inmate who has been released from the asylum commits an act which causes damages, it is permissible to show that the superintendent had not exercised his discretion in good faith, or that he acted maliciously and without regard for the safety of the public.

There cannot be any doubt that defendant, through the board of administrators of the hospital was the representative of the state in conducting an institution established and maintained by the state, and that in releasing persons confined in the institution was vested with discretionary authority, or powers of a quasi-judicial nature, and defendant having exercised his authority in releasing E. B. Smith, one of the inmates of the institution; defendant’s good faith cannot be questioned in an action for damages resulting from the act of E. B. Smith, even under a charge that defendant acted • maliciously, or without regard to the rights or safety of the public (Spading v. Bilas, 161 U. S. 483, 16 S. Ct. 631, 40 L. Ed. 780: Sweeney v. Young, 82 N. H. 159, 131 A. 155, 42 A. L. R. 757).

However, if plaintiff can hold ■ defendant liable for negligence in the discharge of a duty owing by him to the public, which resulted in damages to her (see McMullin v. Board of Commissioners, 18 Colo. App. 117, 70 P. 449, and authorities), there is not any statute providing that the state hoard of administrators, or persons in control of hospitals for the insane, shall he answerable for the acts of persons who may be confined in such institutions, or who may have been released therefrom. „■ (

It is therefore apparent that the right of plaintiff, if any, to recover judgment against defendant for damages resulting from the act of E. B. Smith, must be based on the general law, or. the provisions of articles 2315 and 2316, Civil Code (Baudry Lacantinerie, vol. 15, No. 2910), in which it is essential that the negligence charged must be shown to have been the proximate cause of the injury or damage, and we are of the opinion that, even though defendant was guilty of negligence in releasing E. B. Smith, it cannot- be said that such negligence, or the fact that E. B. Smith was released, was the proximate cause of the death of Dr. Cappel.

“* * * defendants could not, by the exercise of ordinary care and caution, have anticipated, foreseen, or expected that the death of the plaintiff’s intestate would follow as the natural result of their act in discharging Rader from the hospital. Their erroneous or mistaken opinion or judgment that Lonnie Rader was sane, or insane, that his being at large would not be injurious to him or dangerous to the community, or that there were other sufficient reasons why he should be discharged, and their act in discharging him, did not cause her death. It may be that, if they had kept Rader confined in the State Hospital, he might not have killed her; but it is equally true that if he had never been horn, or had never become insane, he would not have killed her. The discharge of Rader, his absence from the hospital, his presence in Catawba county, and his presence at church on the day of the homicide, was a mere condition which accompanied, but did not cause, the injury. * * *" Bollinger v. Rader et al., 151 N. C. 383, 66 S. E. 314, 134 Am. St. Rep. 999.

We are of the opinion that defendant being vested with discretionary authority or powers of a quasi judicial nature in releasing inmates of the institution, his good faith in releasing E. B. Smith cannot be questioned, but, if so, that his negligence in releasing E. B. Smith was not the proximate cause of the death of Dr. Cappel; and it is unnecessary to consider either of the other grounds on which the exception was stated to have been based.

The judgment is affirmed, at -appellant’s cost.


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    No. 3955
    Second Circuit
    ALEXANDRIA BANK & TRUST CO. v. STANLEY
    (January 27, 1931. Opinion and Decree.)

      White, Holloman & White, of Alexandria, attorneys for plaintiff, appellee.
    K. Hundley, of Alexandria, attorney for defendant, appéllant.
   DREW, J.

On December 1, 1922, John R. Stanley, a married man, executed by authentic act to the Alexandria Bank & Trust Company a mortgage importing confession of judgment and carrying the pact de non alienando in the sum of $4500 on a lot of ground on Monroe street in the" city of Alexandria, with a residence thereon. On September 7, 1929, said mortgage had been reduced to $3200, plus interest and attorney’s fees, and in said act of mortgage the wife of John R. Stanley waived her homestead.

On February 25, 1929, Mrs. Stanley, the wife of John R. Stanley, died, leaving as the only property in her estate, all of which was community property, the immovable property included in the above mentioned mortgage and movable property consisting of household goods and an automobile. On August 29, 1929, John R. Stanley applied to be appointed as administrator of his late wife’s succession. An inventory was taken at that time which showed the only property of the succession to be the property included in the mortgage and household goods of the value of $50.

On September 7, 1929, the Alexandria Bank & Trust Company filed foreclosure proceedings against John R. Stanley on the above described mortgage note, a writ of executory process was issued and after due proceedings, the property was advertised for sale on October 26, 1929.

On October 25, .1929, John R. Stanley, as administrator of the succession of his deceased wife, Mrs. Stella M. Stanley, filed an intervention and third opposition, setting out that the only community property at her death was that shown by the inventory. He set out that there were certain privileged debts, itemized as follows:

Dr. M. H. Foster, services last illness ....................................................$205.00
Dr. J. I. Peters, services last illness 35.00
Hixson Brothers, funeral expenses, bal........................................................197.50
Campbell Drug Store, drugs last illness ...... 70.00
Due for stone at grave of decedent 35.00
Adrion’s Drug Store, drugs last illness ■ ............_...................................... 8.50

alleging that in addition to the above privileged debts, there might be presented to him others, as well as the cost of the administration. He alleged that the privileged debts above set forth prime and outrank in law the mortgage of the plaintiff on the property and assets of the decedent; that the movable property of the succession being of inconsequential value and at most not more than the sum of $50 in value; that the said real property is liable and should be subjected to the payment of the said privileged debts. He alleges by estimate that the sum of $1250 is necessary to pay all of the privileged debts of the succession, including the cost of court, and prays that ' an order issue ordering the sheriff of Rapides parish, Louisiana, to hold in his hands subject to the further order of the court the sum of $1250 out of the sale of the property under foreclosure. He further prays for judgment in his favor ordering the said sheriff, after hearing had, to deliver to him as administrator the said amount of $1250, to be administered by him as administrator of said succession for the payment of the privileged debts, particularly those set out in the petition of intervention and third opposition.

The sale took place and the property was purchased by the Alexandria Bank <& Trust Company for the sum of $2700, $500 less than the principal amount due the bank under said mortgage note, not including interest and attorney’s fees. The bank filed an exception of no cause of action, alleging that its mortgage contained the pact de non alienando and that it had a right to enforce its mortgage note by sale of the property, without regard to the succession proceedings and without being forced to pay the costs of the estate, and that there was no right to throw these costs on a mortgage creditor; that if these creditors had any right they should have intervened directly and not by way of trying to force the bank to pay the costs of administration, as well as the amounts of their bills. This exception of no cause of action was referred to the merits by agreement of counsel on both sides.

The bank answered denying that the realty on which it held its mortgage and the household effects, which had been appraised at $50, were the sole property of the succession or of the surviving husband; it denied the correctness of (he inventory and denied that the intervener or the persons .claiming the privilege had exhausted the movables of the succession or the other property liable for its debts. It alleged that the estate owned considerable other property and that these creditors were bound to exhaust such movables before receiving payment out of the product of the immovables mortgaged r.o the bank; that they allowed the movable estate to be dissipated and were estopped by laches to try to recover their debts out of the mortgaged realty. It further pleaded against John R. Stanley, in the event he claimed any amount as commission, compensation and set-off because the bank held against him a judgment for $250. The bank further alleged that there was an automobile which had not been inventoried and that there was no right to compel the bank to contribute to the payment of the debts sued on until all of the other property not mortgaged had been exhausted.

The bank further contended that Hixson Brothers, the undertaker, had already been paid $200 and had no further privilege because of the insolvency of the estate.

On these issues, the case vas' tried m the lower court, resulting in judgment rejecting the demands of the intervener and third opponent, and ordering the sheriff to deliver to the said bank the $1250 which he had been ordered to hold in his hands.

The exception of no cause of action is before us on an answer to the appeal by the said bank. There is some authority on which to base the said exception and it is not wholly without merit. However, we prefer to dispose of this case on the merits.

On trial of the case, third opponent only offered testimony, as to the bill of Dr. Poster, Hixson Brothers, and the Campbell Drug Store. There was no proof of any other privileged claims whatsoever. The bill of Hixson Brothers, the undertaker, identified and offered in evidence, showed that on March 4th, a few days after the death of Mrs. Stanley, that they had been paid $200. The allegations of intervener’s petition, together with the evidence adduced on the trial of the case, clearly show that the succession is insolvent. In an insolvent estate, the court could not allow any more than $200 for burial expenses.

Revised Civil Code, arts. 3193 and 3194; Succession of Hearing, 28 La. Ann. 149.

Therefore, any claim of Hixson Brothers exceeding the amount of $200 which they had received, could not be allowed and is not .a privilege against the succession. The two remaining bills, being Dr. Poster’s for services rendered during the last illness, $229, and the Campbell Drug Store, for that (part of its bill for medicine furnished during the last illness which, as shown by the testimony, is $52.55, making a total of $281.55, are the only privileged claims proved by intervener and third opponent.

The record shows that Mr. Stanley’s house was a two-story, eight-room house, with four furnished bedrooms upstairs, with a reception room, parlor, dining-room, kitchen, hallway and porch downstairs, also with a bathroom; that the. house was well furnished, although the furniture was not new; that there was a new radio, refrigerator, with a Prigidaire engine in it, and an automobile owned by intervener at the time of the death of his wife; there was shown to have been a great number of books in the house, rugs on the floor, a swing, and other porch furniture, dishes, cut glass, kitchen' utensils, and in fact all the furniture and fixtures one would ordinarily find in the 'home of a man of moderate means. There is also testimony in the record that intervener owned railroad stock to the value of $500.

The testimony as to the value of hi3 movable property is very conflicting. One witness, the mayor of Alexandria, placed the value of it as high as $2,000; several other witnesses placed the value of the household furniture at $500; and defendant’s witnesses, which consisted of dealers in second-hand furniture who had purchased or attempted to purchase part of the household goods, placed the value of it at an insignificant figure. Two different lots of the household furniture were sold to a dealer in second-hand furniture for the price of $198.75. This did not include all the furniture nor the dishes, books, cooking utensils, radio, rugs, ' or automobile. It is admitted that at the time intervener was appointed administrator that 'there was still $50 worth of furniture left in the house. What became of the automobile, radio, and other furniture and fixtures, not included in the $198.75 sale, is not explained. Possibly the only person who could have explained the disposition made of same and the price received for it was the intervener and third opponent himself, who was not present at the trial and did not testify in the case. The automobile has not been accounted for, neither has the piano nor the railroad stock, and under the testimony the court is safe in saying that the movable property belonging to the estate was far in excess of the privileged ’debts, either alleged or proved in this case. The administration of the estate was not applied for until more than six months after the death of Mrs. Stanley. These privileged creditors made no attempt to have an administrator appointed or in any way to secure their debts, and through their neglect and remissness, they lost their recourse on a fund specially appropriated by law to the payment of their claims and which was more than sufficient for such purpose, and they cannot now be permitted to recoup their loss at the expense of the creditor holding a special mortgage on the immovables of the succession.

Succession of Finnegan, 135 La. 473, 65 So. 614; Bauman v. Armbruster, 129 La. 191, 55 So. 760.

A privileged creditor of a succession seeking to hold mortgaged property for his debt must first exhaust the movables. The claim of privilege on the immovables is predicated on the insufficiency of the movables to satisfy their debt and the burden of showing that they could not have obtained payment out of the movables of the succession is upon those claiming the privilege. In this case, they have failed to meet that burden; and to the contrary, it has been shown that they stood by without taking any action and allowed the movable property, which was more than sufficient to satisfy their claim, to be almost entirely dissipated, and the judgment of the lower court rejecting the demands of intervener and third opponent is, in our opinion, correct.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be affirmed, with all costs.


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    No. 3895
    Second Circuit
    BOUTTE v. R. L. ROLAND & SON ET AL.
    (January 27, 1931. Opinion and Decree.)

      Hakenyos, Provosty & Staples, of Alexandria, attorneys, for plaintiff, appellant.
    White, Holloman & White, of Alexandria, attorneys for defendants, appellees.
   DREW, J.

Plaintiff, a journeyman bricklayer, sued for compensation under the Workmen’s Compensation Law of Louisiana (Act No. 20 of 1914, as amended), alleging total disability, and asks for judgment for the maximum amount allowed under the said law for a period not to exceed four hundred weeks. He makes defendants in the case R. L. Roland & Son, a co-partnership composed of Robert L. Roland and Robert L. Roland, Jr., and the Georgia Casualty Company, the insurer of Roland & Son. He alleges that on the 22d day of January, 1930, defendants Roland & Son, through their duly authorized foreman and agent, Jerry Taylor, employed your petitioner to work as a brick mason on the Lawtell school building at the rate of $12 per day for five and one-half days per week, and agreed to furnish transportation to and from the job; that on the morning of the 23 d of January, 1930, the said Jerry Taylor called for petitioner in his automobile at petitioner’s home in New Iberia, La., to transport petitioner, according to his contract and agreement, to the Lawtell schoolhouse in St. Landry parish; that petitioner entered said automobile with his tools under the direction and care of the said Taylor; that the said foreman then proceeded in his automobile towards Lawtell at the rate of forty-five miles an hour, and that, upon reaching Broussard, La. — it being the shortest route 1 — the right front tire of said automobile blew out, causing the automobile to wreck and violently throw petitioner to the ground. He alleges that at the time of said accident he was performing services arising out of his employment with the contractor and while in the course of his employer’s trade and business; that he suffered a fracture of his right arm above the wrist and a fracture of one rib. He alleges that he is entitled to the sum of 65 per cent of his wages during the period of his disability, not to exceed four hundred weeks.

He furthei alleges his indebtedness to physicians and for hospital expenses and medicines in the sum of $67.40, and prays for judgment accordingly.

After the filing of the suit, the testimony of the foreman, Jerry Taylor, was taken out of court, and, after taking the said testimony, petitioner amended his original petition alleging that Jerry Taylor, the foreman, was also interested in the business of building the schoolhouse at Law-tell and therefore a partner in the enterprise, and made Jerry Taylor a party defendant in the suit.

■ Defendants answered denying the allegations of plaintiff’s petition and specially denying that Jerry Taylor, the foreman, had agreed to furnish transportation to and from the place of work or that he had any authority to so agree. On these issues the case was tried in the lower court, resulting in judgment rejecting the demands of plaintiff, and from this judgment plaintiff has appealed.

The plaintiff lived at New Iberia, La., and the defendants Roland & Son had a school building contract at Lawtell, La., some fifty miles from New Iberia. Jerry Taylor was a bricklayer foreman for Roland & Son on the Lawtell job, and Taylor also lived at New Iberia and was a friend of plaintiff. Taylor was also foreman on another job at Reserve, La., with which Roland & Son had no connection, and plaintiff worked under Taylor on the Reserve job. They completed the job at Reserve and Taylor drove plaintiff to New Iberia, where they both lived. Upon reaching New Iberia, Taylor told plaintiff that he wanted to put him to work the next day on the Lawtell school job. Plaintiff relates the conversation which took place between him and Taylor in regard to the Lawtell job in his testimony as. follows:

“Q. How was this, agreement entered into?
“A. I had been 'working for him over at Reserve and I was to take my tools out and he says, ‘Leave them in here.’
“Q. In what?
“A. In his car, and he says, ‘I want to take you to Lawtell and put you to work there’, and I says, ‘All right.’ I thought he was going to send me to Mississippi with his daddy.” . "

Taylor relates the same conversation in the following manner:

“Q. Please describe the agreement, if any, that took place between you and Boutte prior to January 23, that is, the night before the day of the accident.
“A. I told him he could come to Lawtell, and he could go to work.
‘‘Q. Did you tell him you would come to get him in the morning?
“A. He asked me in what car we would go in, mine or his. I said we would go in mine as his tools were already in my car. So we used my car the next day, and I passed by to get him.”

On cross-examination, plaintiff was- asked if Taylor was not taking him to Lawtell as a matter of accommodation, to which he replied: “I don’t know' anything about that.”

Plaintiff testified that, on some of the jobs on which he had worked for Taylor, away from New Iberia, he sometimes rode to work with Taylor and sometimes went in his own car or rode with other workmen, and nowhere in his testimony .does he say that his contract with Taylor to work on the Lawtell job included as. part of his compensation the duty of Taylor or of defendants, Roland & Son, to transport him to or from his work.

Taylor was bricklayer foreman for Roland & Son, with full authority to hire and fire the brick masons. When Roland & Son bid on a job, they estimated separately the cost of labor in laying the brick, and the compensation paid Taylor as foreman was $1.50 an hour, plus $1 a day extra as foreman, and, provided the cost of laying the brick was less than the estimate made by Roland & Son, they gave Taylor as a bonus one-half the amount saved by him less than their estimate. There is no dispute as to the compensation to be received by Taylor as foreman for Roland & Son, and plaintiff alleges and contends that such an arrangement constituted Taylor a co-partner of defendants Roland^ & Son. However, we cannot agree with this, contention. Partnership is a contract dependent for its creation upon the consent of the parties. Revised Civil Code, art. 2805. And in the case of Collom v. Bruning, 49 La. Ann. 1257, 22 So. 744, 747, the Supreme Court of this state said:

“Consent shown by one person, who has furnished the capital by which certain operations are carried on, that another, who has employed his time, his skill, and his services for their success, should receive one-half of the profits to be derived from the same, is perfectly consistent with the fact that the latter person stands towards the former as. a mere employee.”

The same principle was enunciated in Halliday v. Bridewell, 36 La. Ann. 238, and in Leonard v. Sparks, 109 La. 543, 33 So. 594, and in McWilliams v. Elder, 52 La. Ann. 995, 27 So. 352. Therefore Taylor was not a co-partner with the defendants Roland & Son, nor was he interested in the enterprise, other than as an employee.

The burden of proof is on plaintiff in a suit under the Employers’ Liability Act to prove that the injury was received while performing services arising out of or incidental to his employment in the course of his employment. Dimes v. Lassiter & Co., 7 La. App. 16, and Goree v. Atlantic Oil Producing Company, 2 La. App. 558.

In this case, we do not think the plaintiff has met that burden. The testimony shows that Roland & Son had not authorized Taylor to make any contract of employment wherein he was required to transport the employees to and from their work and they had no knowledge that plaintiff had been employed at all by Taylor. Plaintiff was not on the pay roll of Roland & Son and had never at any time been on their pay roll. The car in which Taylor and plaintiff were riding was not the property of defendants Roland & Son, but belonged to Taylor, and he and plaintiff are shown to have been the best of friends, and, when he picked plaintiff up to carry him to Lawtell, it was purely a matter of accommodation between friends, and therefore the accident which caused the injury to plaintiff did not arise out of or in the course of plaintiff’s employment, nor was it incident thereto.

The accident occurred approximately forty miles from the place where plaintiff was to go to work, and it cannot be said from the situation of the place of the accident that there was any causal connection between it and the risks or hazard incident to the place of employment, as was the case in Jones v. Louisiana Central Lumber Company, 2 La. App. 260; Gasea v. Texas Pipe Line Company, 2 La. App. 483; Prevost v. Gheens Realty Company, 151 La. 508, 92 So. 38; or LeBlanc v. Ohio Oil Company, 7 La. App. 721.

The general rule is that an injury to an employee on the public highway in going to or returning from the place of employment does not arise in the course or out of the employment. However, there are exceptions to the general rule. See LeBlanc v. Ohio Oil Company, supra; Cudahy Packing Company v. Parramore, 263 U. S. 418, 44 S. Ct. 153, 68 L. Ed. 366, 30 A. L. R. 532; Jones v. Louisiana Central Lumber Company, supra; Prevost v. Gheens Realty Company, supra; and Arthur C. Nesbitt v. Twin City Forge & Foundry Company, 145 Minn. 286, 177 N. W. 131, 10 A. L. R. 165.

While the place of accident was upon the public highway and the accident was directly attributable to a risk which was common to all persons using the highway, these facts do not necessarily preclude recovery provided it can be said that the employment' resulted in exposing plaintiff to risk beyond that to which the public was subjected, or that it can be said tbe accident occurred on the employer’s own premises. In this, case, the employment did not result in exposing plaintiff to a risk beyond that which the public was subjected, and it did not occur on the premises of the employer. The relation the place of the accident bears to the premises where the person is employed must be taken into consideration. Had defendant, through its duly authorized agent, contracted with plaintiff to transport him to and from his work and the accident had occurred while he was. being thus transported, it could be said that the accident arose in the course of the employment. But, as the evidence does not show any such contract, we do not think that because the plaintiff had on different occasions on other jobs in which the defendants were not interested, ridden to work with the present foreman of plaintiff at the foreman’s request, it could be held to be a tacit agreement to transport the plaintiff to and from his work by the defendants herein.

This case is very similar to the cases of Bass v. Shreveport-Eldorado Pipe Line Company, 4 La. App. 107, and Nugent v. Lee Lumber Company, 4 La. App. 371, with the exception that in the two cited cases plaintiffs were riding from work to their home in vehicles owned by the defendant, and in the present case plaintiff was riding to work in a vehicle noi, owned by the defendant, but by defendant’s foreman, without the knowledge or consent of defendant. The reasons assigned in the Bass and Nugent cases are applicable here. The plaintiff has failed to make out his case, and the judgment of the lower court rejecting his demands is correct.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be affirmed, with all costs.