author: CLAIBORNE, J.

text:
    No. 9167.
    Orleans Appeal.
    MANUEL BORNIO ET AL. v. OTTO BERGER ET AL., Appellants.
    (January 19, 1925, Opinion and Decree.)
    (February 2, 1925, Rehearing Refused.)
    (March 2, 1925, Decree of Supreme Court Writ of Certiorari and Review Granted.)
    (Reported in Supreme Court decisio'n, 158 La. 915, 105 South. 11.) ,

      (Syllabus by the Court.)

    1. Louisiana Digest, Prescription, Par. 20, 22, 35.
    In order to acquire immovables by the prescription of ten or thirty years corporeal possession as owner is essential.
    (Civil Code, Art. 3487 — Editor’s Note.)
    2. Louisiana Digest, Tenancy in Common and Joint Proprietorship, Par. 2, 3.
    One joint owner in possession of the whole cannot prescribe against his co-proprietors.
    3. Louisiana Digest, Donations, Par. 263.
    A universal legatee succeeds to the testator’s rights with all the defects and infirmities of the testator’s title.
    (Civil Code, Art. 1611 — Editor’s Note.)
    4. Louisiana Digest, Acts, Par. 22, 46.
    A counter letter is valid against all persons except creditors and purchasers-
    (Civil Code, Art. 2239 — Editor’s Note.)
    5. Louisiana Digest, Sales, Par. 207; Mortgages, Par. 37, 44.
    Neither a party to a contract nor his heirs can take advantage of the failure to record it.
    (Civil Code, Art. 3344 — Editor's Note.)
    6. Louisiana Digest, Appeal, Par. 512.
    Damages for &• frivolous appeal will not be allowed on other than money judgments.
    Appeal from Civil District Court,. Hon. E. K. Skinner, Judge.
    This is a partition suit. Judgment for plaintiffs. Defendants appealed.
    Judgment affirmed.
    R. A. Tichenor, R. Lyons, attorneys for plaintiff and appellee.
    Paul A. Sompayrac, attorney for ’defendant and appellant.
   CLAIBORNE, J.

This is a partition suit. In 189,2 Peter St. Amand and four others formed, an association to purchase certain lots of ground in the square bounded by Customhouse, Bienville, Dorgenois and Rocheblave Streets. They purchased the lots from Fergus Kernan by an act before R. E. Upton, Notary, dated May 30, 1892. To suit their own purposes the sale was made to Peter St. Amand alone. By a counter letter dated June 20, 1893, St. Amand acknowledged that the purchase was made for himself, Manuel Bornio, Sr., Manuel Bornio, Jr., Marcus K. Bitterman, and Thomas J. Raymond in the proportion of one-fifth each. They sold a part of said lots to the Rocheblave Market Company and to several others and the proceeds of sale were divided among all the co-proprietors. Of all those lots, there remains only a small portion, 'Which is now the object of this suit. .

Peter St. Amand died in 1897; his succession was opened and his widow was recognized as his universal legatee and as such put in possession of all his property.

Widow St. Amand died about the year 1917,' leaving as heirs Otto Berger and two grand-children, Charlotte and Peter Young.

Three of the original owners and others sue Otto Berger and others for a partition of the remaining lot.

Ott/o Berger denies that the plaintiffs have any title to the property, .and avers that he for one-half and Charlotte and Peter Young for one-fourth each are the only owners of the property for having inherited the same from their mother and grandmother, Widow Peter St. Amand. They plead the prescription of 5, 10, 20 and 30 years.

There was judgment in favor of the petitioners and defendant Berger has appealed.

In .this court the plaintiff has asked for damages for a frivolous appeal.

1st. We know of no law by which the ownership of immovables may be acquired by the prescription of five or twenty years. C. C. 3474-3475.

2nd. In order to acquire immovables by the prescription of ten or thirty years corporeal possession as owner is essential. C. C. 3487 (3453); Wilson vs. Marshall, 10 La. Ann. 327; Dodeman vs. Barrow, 11 La. Ann. 87; M. M. A. Lane vs. R. S. Cameron and Morris Kraft vs. M. F. Machen, 37 La. Ann. 250; Chamberlain vs. Abadie, 48 La. Ann. 587, 19 South. 574; Simon vs. Richard, 42 La. Ann. 841, 8 South. 629; Clemens vs. Meyer, 44 La. Ann. 390, 10 South. 797; Prescott vs. Payne, 44 La. Ann. 658, 11 South. 140; In re Lockhart, 109 La. 748, 33 South. 753; George vs. Cole, 109 La. 817, 33 South. 784; Ramos Lumber & Mfg. Co. vs. Sanders, 117 La. 616, 42 South. 158; Randolph vs. Laysard, 36 La. Ann. 405.

“Possession is one of the essential elements of the ten years’ prescription, and where the evidence does not show that either the defendants or the authors of their title were in possession for ten years prior to the filing of the suit, this prescription cannot avail them.” Castera’s Heirs vs. New Orleans Land Co., 125 La. 877, 51 South. 1021.

There is no testimony whatever showing possession of that lot in Otto Berger or in his mother, Widow St. Amand. On the contrary, Manuel Bornio, Jr., swears that he was the manager of all that property for the association; that he built upon the particular lot in question for account of all the co-proprietors; that he collected rent from the improvements and distributed them among the several co-proprietors during the life of St. Amand and up to the filing of this suit.

But even had Widow St. Amand possession of the properties it was only as joint owner for one-fifth which she inherited from her husband.

One joint owner in possession holds, not as owner of the whole, but only of a fraction, and therefore cannot prescribe for the whole against his co-proprietors. Simon vs. Richard, 42 La. Ann. 842-846, 8 South. 629; Liles vs. Pitts, 145 La. 651-660, 82 South. 735.

Peter St. Amand owned only one-fifth, and he could donate to his wife no more.

“It is .fully settled that a universal legatee succeeds to the testator’s rights with their defects, suooeclit in vitia et virtutes, and is charged with his author’s defects, infirmities and bad faith.” Griffon vs. Blanc, 12 La. Ann. 5; Ripoll vs. Morina, 12 Rob. 553; C. C. 3493; Spences vs. Lewis, 39 La. Ann. 316, 1 South. 671; Stewart vs. Newton, 12 La. Ann. 622.

It was not necessary to record the counter letter as far as Widow St. Amand was concerned.

C. C. 2239 (2236): “Counter letters can have no effect against creditors, or bona fide purchasers; they are valid as to all others.”

Widow St. Amand was neither a creditor nor a purchaser.

A recordation is to protect a third person.

A party to a contract cannot take advantage of the failure to record it.

Art. C. C. 3344 (3316) reads as follows:

“Consequently neither the contracting parties nor their heirs, nor those who were witnesses to the Act by which the mortgage was stipulated, can take advantage of the non-inscription of the mortgage.”

Registry is not -necessary as between the parties. A. C. Roberts vs. Hyde & Mackie, 15 La. Ann. 51; Thompson vs. Comeau, 23 La. Ann. 555.

The title and heirship of plaintiffs is established.

But the law will not allow damages for “frivolous appeal except in an appeal from a money judgment.” C. P. 907; Mayer vs. Melancon, No. 7950 Ct. App.; Girouard vs. Broussard, 28 La. Ann. 626; Arrowsmith vs. Rappelge, 19 La. Ann. 327; Long vs. Robinson, 13 La. Ann. 465; McRae vs. His Creditors, 14 La. Ann. 229; Succession of Lavergne, 129 La. 120, 55 South. 734.

It is therefore ordered that the judgment' be affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    No. 8795.
    Orleans Appeal.
    CHAMPION SHOE MACHINE CO. v. ANTONIO CULMONE, Appellant.
    (January 19, 1925, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest, Sales, Par. 239.
    When a purchaser of machinery has used it for more than a year before offering to return it to the seller, and has paid several of the notes furnished by him for the purchase price with full knowledge of the defects of the machinery, .he must be held to have accepted the machinery, and is therefore bound to pay for it.
    ^Civil Code, Art. 2534 — Editor’s Note.)
    Appeal from Civil District Court, Hon. Percy Saint, Judge.
    .This is a suit on sixteen promissory notes. Judgment for plaintiff. Defendant appealed.
    Judgment affirmed.
    Dart, Kernan & Dart, L. L. Dubourg, attorneys for plaintiff and appellee:'
    Samuel Wolf, Mark M. Boatner, attorneys for defendant and appellant.
   CLAIBORNE, J.

This is a suit on sixteen promissory notes.

By an act dated December 1, 1917, the plaintiff sold to the defendant one Champion second-hand Ideal Stitcher for the price of $350, in part payment of which he paid $40 cash, and for the balance $310 he furnished his thirty-one promissory notes for Ten Dollars each, payable on the first of each ensuing month. The defendant paid fifteen of said notes and defaulted on the remaining sixteen for which plaintiffs claim judgment.

The defendant admitted that he made said notes according to the aboye act but denied that he owed them for the following reason:

That at the time of making said contract, plaintiff’s agent, Misuraco, agreed that the “plaintiffs would obtain and furnish to defendant an appropriate label such as are issued by the Underwriters Laboratories to evidence the approval by said Laboratories of the said machine”; that without such approval the users of plaintiffs’ machine are unable to obtain fire insurance at all or only at increased rates of premiums; that plaintiffs have failed, notwithstanding frequent demands, to- procure such approval and label; that plaintiffs repeatedly promised to procure said label; that relying upon said promise the defendant paid the $40 and the fifteen notes falling due on January 1, 1918, up to and including the note due March 1, 1919; that he would not have paid these notes without these promises; defendant now tenders the machine to plaintiff, and prays for judgment in reconvention against the plaintiff for $190.

There was judgment in favor of plaintiffs and defendant has appealed.

The plaintiffs offered in evidence the’ contract and the 16 notes sued on.

• It was admitted that the “Underwriters Laboratories” mentioned in the answer is the Bureau maintained by Fire Underwriters for the purpose of inspecting machines with regard to the fire hazard resulting from their use.

The defendant testified that he did not know either how to read or write nor does Misuraca; plaintiffs’ agent, who sold him the machine; he had the machine connect-ed with electric wires • after it came into his shop; the Fire Prevention Bureau made' him disconnect; then he connected with the meter; the same Bureau would not give him a certificate because the machine did not have a label; he never got a certificate frpm that Bureau clearing the ma-. chine; they would not. give it to him because there was no label on the machine; all they gave him was a temporary inspection; the plaintiffs sent Mr. Stewart to fix the machine; Stewart fixed it, but he still had trouble with it; never received a-certificate from the Louisiana Fire Prevention Bureau approving the machine, he is sure; the electric wires were all right, but on account of the machine he could not get it; he could use the machine,, but' if there was any fire in the house he could, not get any insurance on account of the machine; he had a fire policy all the time he had the machine; it was never can-celled; he paid $190 and he owes $160.

In rebuttal, George Wellmann testified. He says that since 1918 he has been Chief’ Electrical Inspector for the Louisiana Fire Prevention Bureau; he has charge of giving certificates and approving machines of. the sort sold to defendant. He says:

“We make inspections on application. I don’t' remember who filed the application .for this particular inspection. We went' up there and found quite a number of electrical defects. Some of them applied to this particular machine. . The machine was not constructed according to the re-, quirements of-the National Electrical Code which are the rules we use in the State. of Louisiana for making electrical inspections. We also noticed that the machine was not listed by the Underwriters Laboratories as approved. 1-Ie sent a report of the defects to the defendants. These defects were remedied sometime afterwards. Within a few months he. got an application from S. B. Stewart, electrical contractor, to make all the necessary corrections to the defects on the stitching machine, and the heater and controller device that controls the heat. He went up with Stewart himself and pointed out to him what was necessary to bring the machine up to standard, and Stewart went, ahead and corrected the defects and got approval from the Louisiana Fire Prevention on the machine, but they could not issue an approval on the wiring because there were some defects in the permanent wiring in defendant’s house, that had no connection with the machine; the plaintiffs submitted the machine to the Underwriters Laboratories for examination and they approved this type of machine; he sent a letter of approval to that effect to Stewart; these letters are kept for two years in a building like the defendant’s; he produces a copy of a certificate issued by the Louisiana Fire Prevention Bureau dated September 9, 1921, good for two years; it was the renewal of a former two years’ certificate; the fact that the machine did not have the Underwriters Laboratories’ label upon it would not prevent the Louisiana Fire Prevention Bureau from issuing a certificate if, on inspection, it thought that the equipment was in such a condition as to be approved; at the time he issued his certificates in this case the machine did not have the label of the Laboratories upon it; at that time there was nothing on the machine which would forfeit the insurance or require a higher premium.”

In a letter addressed by the agent of the. Underwriters Laboratories to the plaintiff he very wisely says;

“The acceptance of devices installed in their territory is in the hands of the Louisiana Fire Prevention Bureau.”

The sole purpose of the Underwriters’ label was to facilitate the obtaining of fire insurance. It is evident by the testimony reproduced above that the defendant was enabled to obtain insurance, and that he was insured at all times without any increased premium.

On the trial of the case the defendant found fault with the machine. For fifteen months that he had been using this machine and making monthly payments on account, and writing letters through his lawyers to the plaintiffs, it does not appear that he ever complained to any one of anything else besides the want of the label. When he filed his answer to resist payment of the notes he failed to say a word about any defect in the machine. It was only at the time of the trial of the case on May 9, 1922, nearly five years after he acquired the machine that he uttered any complaint against it. We must conclude that there is not greater merit in that complaint than in the one concerning the label. So thought the judge of the trial court. At any rate, it was too late after he had used it so long to demand a rescission of the sale for that reason. In the case of Templeman vs. Fairbanks, 129 La. 983, the court said on p. 1004:

“It is an undisputed fact that the plaintiff used the machinery for more than a year before offering to return it to the defendant. It is an undisputed fact that plaintiff paid several notes given for installments of the purchase price with full knowledge of many of the defects complained of in his petition. Plaintiff, therefore, must be held to have accepted the machinery.”


author: BELL, J.

text:
    No. 9177.
    Orleans Appeal.
    STATE EX REL. JOHN LIUZZA v. ALPHA P. SIMS ET AL.
    (January 19, 1925, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Landlord and Tenant Par. 7, 9.
    A lease of real estate may be made either by written or verbal contract, but if in the latter form, it is not susceptible of registry or recordation.
    2. Louisiana Digest — Mandamus—Par. 23 48, 78, 87.
    Mandamus will lie to compel the cancellation of an affidavit in which the existence of a verbal lease is alleged. Affiant, as well as the registrar of conveyances, causing the illegal registration of such a document, are proper parties defendant to such proceedings.
    3. Louisiana Digest — Mandamus—Par. 2.
    Where pleadings amply show that the law affords no relief by ordinary means, and where justice requires that some remedy should exist for redressing a wrong or abuse of whatever nature, mandamus, above all other summary procedure, is the proper remedy.
    4. Louisiana Digest — Appeal—Par. 18.
    Where relator reserves in his pleadings a right to sue for damages arising from illegal acts of respondent, an appellate court is not justified in disposing of the matters involved on appeal as moot issues, claimed by respondent to have become such since date of appeal.
    Appeal from Civil District Court for the Parish of Orleans, Division “D”, Hon. Porter Parker, Judge.
    This is a mandamus suit to compel the cancellation of an affidavit of a verbal lease illegally registered by the lessor.
    There was judgment for plaintiff ordering the cancellation and defendant has appealed.
    Judgment affirmed.
    John R> Upton, Wm. A. Porteous, Wm. W. Ogden, attorneys for plaintiff and appellee.
    John R. Loomis, MeCloskey & Benedict, Jno. Wagner, attorneys for defendant and appellant.
   BELL, J.

This is an application for a writ of mandamus, on the relation of John Liuzza, against the Register of Conveyances and Alpha P. Simms, to have cancelled and erased from the records of the Conveyance Office of the Parish of Orleans the inscription of an alleged verbal lease, which defendant, Alpha P. Simms, claims he entered into with relator regarding part of the building (now demolished) and formerly known as the Southland Hotel, No. 348 Carondelet Street, in the City of New Orleans. Relator charges that the recorded affidavit is false and untrue, and was made for the purpose of obstructing and hindering relator from effecting a sale of property, particularly the real estate on which the old buildings were situated..

The petition further recites that there is no warrant or authority in law for the registering of an affidavit purporting to show a verbal lease, and that the property described in said petition is entirely unaffected by such an affidavit, and that, therefore, its inscription in the Conveyance Office should be cancelled and annulled.

To this petition, defendant filed exceptions of no right or cause of action; that defendant, Alpha P. Simms, is entitled to be impieaded in a direct action; that mandamus does not lie, • except to enforce the performance of a purely ministerial act, and, finally, that there is a misjoinder of parties. Piling, contemporaneously with his exceptions, his answer on the merits, as required by law, defendant, Simms, reaffirmed under oath the allegations made in his affidavit and admitted by him to have been recorded. The other defendant, the Registrar of Conveyances, answered by admitting the recordation of the affidavit, and, for lack of information, denied all other allegations of relator’s petition.

The foregoing exceptions were overruled. Defendant, Alpha P. . Simms, offered no proof, and judgment on the merits was rendered in favor of relator, and the inscription of the affidavit was ordered- cancelled. From this judgment, defendant, Alpha P. Simms, has appealed suspensively to this court.

The recorded affidavit is set out iri relator’s petition as follows:

“State of Louisiana,
“Parish of Orleans.
“Before me, the undersigned authority, personally came and appeared:
MR. ALPHA P. SIMMS,
,who, being duly sworn swears:
“That'he is occupying the premises known as the' Southland Hotel, 348 Carondelet Street, being the three upper floors, the office on the ground floor, the Barber Shop, Linen Room, Fruit Stand, Root Beer Stand and Lunch Stand; that he has occupied these premises'‘under a lease at One Hundred and Fifty ($150.00) Dollars per month,- payable on the first day of each and every month, in. advance.
“That he has occupied the premises for a number of years under those terms and that John Liuzza is the owner of said premises, which is situated at the corner of Carondelet and Perdido Streets, in square bounded by St. Charles and Union Streets; that-in the'later part' of December, 1922, John Liuzza, the owner, had agreed verbally with affiant that he would remain in said premises until the first of October, 1923, at the same rental of $150.00 per month.
“That relying upon said verbal lease af-' fiant has gone to considerable expense in refitting' the place, according to Liuzza’s instructions,. painting and remodelling, repairing roof and other repairs, and that affiant desires .to record this in the Conveyance Office as notice of the verbal lease with the ' said ' John Liuzza, owner, at $150.00 per month, payable in advance, and ending ■ October -1, 1923.
“(Sgd.) A. P. Simms.
“Sworn to and subscribed before me this ■31st day of March, 1923.
“(Sgd.) Jno. Wagner,
“Not. Pub.”

The issue of fact' as to whether there was such a verbal lease as above narrated, is, under our view of this case, wholly immaterial and need not be here determined. The all-important issues involved in this litigation are purely questions of law and may be stated as follows:

I. DOES THE LAW AUTHORIZE A YERBAL LEASE?

Article 2683 of the Revised Civil Code of 1870 provides, without qualification, that “leases may be either by written or verbal contract”. Article 2653 of the Code of 1825 (in identical verbiage as R. C. C. Art. 2683) was amended by Act 42 of 1865 to read as follows:

“Leases may be made either by written or verbal contract, but no lease of real estate shall be proved by parol.”

It is plain from the language found in the last clause of the above-quoted Act, that legislative pronouncement was thereby made against all verbal leases of real estate, for it is impossible to conceive the existence of a verbal contract of lease which could not be verbally provable. Not being-provable, it was not enforceable even between the contracting parties, and, therefore, non-existent.

Prompt awakening to the absurdity of such legislation was evidenced by the enactment of Act 9 of 1866, repealing in toto Act 42 of 1865, and reviving Article 2653 in its original verbiage, as found in the Code of 1825 and as perpetuated later in the Code' of 1870.

It is, therefore, beyond peradyenture that the substantive law, as expressed by the compilers and revisers of the Civil Code,— despite the temporary and ill-advised enactment, found in Act 42 of 1865, — has always sanctioned verbal leases of any corporeal thing, movable or immovable, excepting those which cannot be used without being destroyed by their very use (R. C. C., Art. 2678.)

II. IS A VERBAL LEASE OR ANT OTHER VERBAL CONTRACT LEGALLY OR PHYSICALLY SUSCEPTIBLE OP RECORDATION?

Public recordation of rights arising from contracts or judgments of whatsoever nature, has, as its single and legal objective, the notification of such rights to third persons not parties to the original transactions or proceedings in which such contractural or judicial obligations have arisen. It is the method prescribed by law in which that thing or right, granted by covenant or decree, shall be preserved against or notified to the world on- behalf of those directly concerned. But it is only by some muniment of title or some written instrument or act, whereby that which is agreed or decreed can he manifested ' or expressed for purposes of recordation.

The following Articles of the Revised Civil Code are pertinent:

“Art. 2266. All sales, contracts and judgments affecting immovable property, which shall not be so recorded, shall be utterly null and void, except between the parties thereto. The- recording may be made at any time, but shall only affect third persons from the time of the recording. The recording shall have effect from the time when the act is deposited in the proper office, and endorsed by the proper officer.”
“Art. 2683 (2653). Leases may be made either by written or verbal contract.”
“Art. 2733 (2704). If the lessor sells the thing leased, the purchaser cannot turn out the tenant before his lease has expired, unless the contrary has been stipulated in the contract.”
“Art. 2741 (-2712). If the lease has not been reduced to writing, the purchaser cannot be compelled to give any indemnification.”

In supplemental brief for relator, our attention is invited to the early case of Brown vs. Martin & Crenshaw, 9 La. Ann. 504, in which the Supreme Court interpreted Art. 2712 of the Code of 1825, which is now Art. 2741 of the Revised Civil Code. In that case, the court said:

“Art. 2704 of the Code declares, that if the lessor sells the thing leased, the purchaser cannot expel the lessee until the expiration of the time fixed for the lease, unless the right to do so has been reserved in the contract of lease itself. Art. 2712 says, that if the lease is not made in writing, the purchaser is not bound to jnake any indemnification to the lessee.
“Although .the lease of even a predial estate may be made by either a verbal or a written contract, we think the proper construction of our Code on that subject is, that a purchaser of property subject to a lease, is entirely unaffected by it, unless the lease is evidenced by a written contract. The violation of such a verbal contract by the lessor, in selling the property before the expiration of the lease, without reserving the rights of his lessee, might give rise to an action of damages against the lessor, but his vendee acquires the property free from any incumbrances by reason of the lessee.”

The intention of the court in the foregoing decision was to stress the impossibility of asserting as against a third party, any contractural rights arising from a verbal lease without the same being converted into and evidenced by a written contract. It is not physically possible to record a verbal contract or judgment. When either is evidenced in writing, it is no longer a verbal agreement or decree: An ex parte written affidavit concerning a verbal lease made by one alleging himself to be a party to the verbal agreement of lease, can have no effect in law as a recorded document manifesting a contract which, in itself, is not susceptible of recordation. It follows, therefore, that in registering respondent’s affidavit, the Registrar of Conveyances exercised or performed a ministerial function which he had no authority or right to exercise under the law. Having done that which he should not have done, the paramount question of law in this case is:

III. DOES MANDAMUS LIE TO COMPEL THE UNDOING OF THAT ILLEGALLY DONE BY ONE EXERCISING MINISTERIAL FUNCTIONS OR POWERS?

It is contended by counsel for respondent, Simms, that the extraordinary, summary writ of mandamus cannot lie in the instant case, where the dominant issue as to this respondent’s term of lease or right of possession, involves essentially issues of fact, which respondent is entitled to have determined, with or without jury, in a direct action. It is further contended that mandamus, without exception, is a remedy only sanctioned where a relator seeks the enforcement of'- some ministerial duty imposed by law. These arguments, and the authorities cited by counsel, would be well worthy of consideration if the premises upon which they are here enunciated were true. It is error to State that in the instant case the dominant issue of fact is whether a lease or right of possession under a lease existed by virtue of an alleged verbal contract, such as is set out in the recorded affidavit.

This court, concluding as hereinabove noted, that the issues involved in this litigation are solely, and dominantly questions of law, and being of the opinion that the registration or recordation of the affidavit for purposes of asserting rights under a verbal lease was an object impossible of performance, we find no merit in the contentions here urged by respondent, Simms.

Counsel for this respondent invites our attention particularly to the ruling made in the case of New Orleans Land Co. vs. Registrar of Conveyances et al., 139 La. 478, 71 South 773. We have given careful consideration to this authority. In that case mandamus issued and was granted, directing the cancellation from the records of the . Conveyance Office for the Parish of Orleans of certain documents which the Nylka Land Company, Ltd., made co-defendant with the Registrar, had caused to be recorded as muniments of title to a certain tract of land. The documents recorded included an auditor’s deed, a sale for city taxes, a judgment of the Civil District Court, and, finally, an affidavit made by Hamilton Sims arid wife. In this affidavit these affiants' declared that they had purchased the property affected by the registry in question, by notarial act, on a date mentioned, and. had been in undisturbed possession of the same up to the date of filing said affidavit, and that the property in question had been sold to the State for delinquent taxes of certain years, and had thereafter been conveyed by the State, through various conveyances, to the Nylka Land Company, Ltd.

It appears from a reading of this case that affiants were not those asserting the title to the property affected by the registration of the affidavit, but were in fact parties undertaking to relinquish, through the averments made in the affidavit, all right or title to the property involved, in favor of the Nylka Land Company, one of the respondents to the mandamus proceedings. The affiants themselves were not made even parties to the proceedings, and had simply declared that the purpose of the affidavit or quit claim was to place in authentic form the facts enumerated therein. We find no application of the cited case to that now before us.

The later and sound jurisprudence applicable to the instant case, and which appeals to us as correct appreciation of the law which should govern and prevail, is found in State ex rel. Braswell vs. Hallam, 150 La. 922, 91 South. 298. In that case the Registrar of Conveyances was proceeded against by mandamus to cancel the inscription of an affidavit made by the affiant to the effect that the owner of certain real estate had accepted in writing affiant’s offer to purchase said property, particularly described in the affidavit, and that the owner had refused to carry out his contract, and that affiant had placed the affidavit on record as her claim to the property, intending to institute judicial proceedings therefor. • The court, in.making the writ peremptory and. directing .a cancellation of the affidavit, said:

“There is no- merit in appellants’ plea or exception that ‘because relator might have resorted to an ordinary suit, he was not entitled to the summary proceedings by mandamus’. Article 831 of the Code of Practice declares that a judge may, in his discretion, issue a writ of mandamus even when the complainant has other means of relief, if the slowness of an ordinary proceeding would be likely to cause such a delay as to hamper the administration of justice. If the recording of an ex parte affidavit, laying claim to another person’s property, should compel that other person to resort to an ordinary suit for slander of title, there would be no end to such suit. * * * But the Register of Conveyances should have refused to record the ex parte affidavit of Mrs. Hallam, which served no other purpose than to cast a cloud upon the title to the property. Mandamus was therefore the proper proceeding to compel the Register of Conveyances to perform his ministerial duty, to cancel the affidavit.”

In State ex rel. Macheca vs. Dunn, 148 La. 460, 87 South. 236, the court said:

“It is well settled that mandamus is the proper remedy for compelling the recorder to cancel an illegal or unauthorized inscription purporting to operate as a mortgage.”

See also State ex rel. Henderson Iron Works vs. Jeter, Tax Assessor, 151 La. 1011, 92 South. 594.

In Lanaux vs. Recorder of Mortgages, 36 La. Ann. 974, it was held:

“The object of a mandamus in our practice is to prevent a denial of justice or .to avert the consequence of a defective remedy. It must be issued when there is no ordinary legal relief and justice requires that a mode of redressing the wrong shall be found. It may be issued even when there are other means of relief, if the ordinary legal forms will produce such delay that the public good will suffer and the administration of justjce be hindered.”

IV. SHOULD AN APPELLATE COURT DISPOSE OF MATTERS APPARENTLY INVOLVING MOOT ISSUES WHICH HAVE BECOME SUCH SUBSEQUENT TO THE APPEAL?

It is contended by counsel for relator that inasmuch as the lease or right of occupancy or tenure involved in this litigation all expired October 1, 1923, that there is nothing before this court excepting a moot issue, and that, therefore, there being nothing to adjudicate, the matter should be dismissed.

The relator in this case reserves, in his petition, the right to sue for damages resulting from, what he claims to have been the illegal registration of an affidavit filed for the sole purpose of - hindering relator from disposing of his property.- We can find no justification for the dismissal of these proceedings or for nullifying the judgment appealed from on any such plea as finally herein urged by respondent. (15 N. W. 496.)

The judgment appealed from is, in every respect, just and proper, and, in our opinion, should be affirmed.

It is, therefore, ordered that the judgment appealed from herein be and the same is hereby affirmed, costs in both courts to be borne by appellant.


author: WESTERFIELD, J.

text:
    No. 9488.
    Orleans Appeal.
    STATE EX REL. OTTO F. BRIEDE, Appellant, v. CITY OF NEW ORLEANS, RECORDER OF MORTGAGES, CRAVEN & LANG, AND A. P. BOH & CO.
    (January 19, 1925, Opinion and Decree.)
    (February 2, 1925, Rehearing Refused.)
    (March 3, 1925, Decree Supreme Court. Writ of Certiorari and Review Refused.)

      (Syllabus by the Court.)

    1. Louisiana Digest, Municipalities — Par. 127.
    The acceptance of paving work by the City of New Orleans is binding upon abut- . ting property holders in the absence of fraud or error.

      2. Louisiana Digest, Municipalities — Par. 127, Estoppel — Par. 52; Pleading-Par. 62.
    A petition of a property holder alleging the nullity of paving liens and praying for their cancellation upon the ground that the paving was not laid according to specifications without suggesting fraud or error filed after the completion of the paving and its acceptance by the City authorities discloses no cause of action.
    Appeal from Civil District Court, Hon. Wm. H. Byrnes, Jr., Judge.
    Plaintiff, proceeding by mandamus, seeks to have a paving lien which had been inscribed against.his property cancelled. The trial court maintained an exception no cause of action and plaintiff has appealed.
    Judgment affirmed.
    John R. Upton, attorney for plaintiff and appellant.
    Michel Provosty, Miller, Miller & Fletchinger, E. J. Thilberger, attorney for defendant and appellee.
   WESTERFIELD, J.

Plaintiff proceeding by mandamus seeks to have a paving lien, which has been inscribed against his property, cancelled. He alleges that the City of New Orleans entered into a contract with Craven & Lang and A. P. Boh & Co. for the paving of Magazine Street from Canal to St. Joseph Streets “with creosoted wooden blocks, according to the most approved and accepted method” and “that said contracts and specifications called for paving blocks to be placed upon a hardened pitch paint coat” but that “said Craven & Lang and A. P. Boh & Co. without warrant or authority and contrary to said specifications, substituted a sand and cement cushion for the pitch paint coat as called for in said plans and specifications”. That “the substitution of a sand and cement cushion for one of hardened pitch paint constitutes a material or major change” in the contract and financially benefited the contractors and was detrimental to plaintiff. He alleges that as the work on the paving progressed he protested to the City Engineer from time to time in writing, without avail. . He prays for a mandamus directed to the City of New. Orleans and Craven & Lang and A. P. Boh & Có., and Joseph A. Craven and Louis N. Lang and Arthur P. Boh and R. Sidney Hernandez respectively, individually, and as composing the said co-partnerships, paving contractors, and the Recorder of Mortgages for the Parish of Orleans, commanding them and each of them, to cancel and erase the paving claims on the property hereinabove described, and recorded in the Mortgage Office in Book 132,. fos. 6 and 7, and the lien and privilege on the property above referred to by which it is pretended that the said paving bills or claims are secured, or to show causé to the contrary on such a day and at such an hour as the Court may appoint.

The defendants each filed exceptions of misjoinder, non-joinder and no cause of action. The trial court maintained the exception of no cause of action and plaintiff has appealed.

Thé learned judge a quo in his reasons for judgment expressed the opinion that •the issues presented here could not be determined in a mandamus proceeding; We are not so sure of the propriety of this view for the jurisprudence is at least doubtful. State ex rel. Newcomb Realty Co., 148 La. 1045; 88 South. 392; State ex rel. Henderson Iron Works vs. Jeter Tax Assessor, 151 La. 1011; 92 South. 594. But we think the exception was properly maintained upon other grounds.

The gravamen of plaintiff’s action is the contention that the substitution of a sand and cement cushion for pitch paint base upon which the wooden blocks of the pavement were placed was a mistake and not justified by the best engineering practice, consequently the pavement for which he is called upon to pay Ms share is inferior in quality to what it would have been if the original specifications had been strictly adhered to. There is no allegation of fraud or bad faith on the part of the City Engineer or other City official, nor any language which might be said to be equivalent to such allegation eo nomine. There is no charge of incompetency. On the contrary plaintiff’s attorney in a brief filed in the District Court says “In justice to both Messrs. Black and Klorer (City Commissioner and Engineer respectively) we do not mean to insinuate that they were improperly influenced or could be”. In a word, this is a suit seeking an annullment of a paving lien upon the ground that the city officials representing the City’s interest in a paving contract were guilty of an error of judgment in permitting the substitution of certain material used in the pavement. The pavement was completed before the suit was filed. It is so alleged in the petition. The pavement had been accepted by the City for paving liens under the paving law are not inscribed until the work is approved. See Sec. 48, Act 67 of 1916.

In City of Shreveport vs. Chatwin, 139 La. 531; 71 South. 791; a case in many respects similar to the case at bar, the Supreme Court said, in speaking of the taxpayers made defendants by the City of Shreveport in that case:

“They resist the payment upon the ground that the work was not done according to contract, in that many of the wooden blocks which the pavement was made of. were not properly creosoted, and were laid at right angles to the curb, instead of diagonally, as required by the specifications.
“This work was accepted by the city authorities. . This acceptance is binding upon the property owners in the absence of allegation of fraud or error (Kelly vs. Chadwick, 104 La. 719; 29 South. 295; Moody vs. Sportono, 112 La. 1008, 36 South. 836), and no such allegation is made by defendants.
“The learned counsel for defendants review in their brief the several decisions of this court in which that doctrine has been announced, and say that the announcement was unnecessary for the decision of the cases', and was therefore obiter dictum. But that doctrine is well settled in jurisprudence, and would have to be applied here as good law even if it had not been heretofore declared by this court to be such.
“Again, counsel say that this doctrine is based on estoppel, and estoppel was not pleaded by plaintiff. It did not need to be. Keystone Life Ins. Co. vs. Von Schlemmer, 122 La. 280; 47 South. 606.”

We think the Chatwin case is controlling here.

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


author: BELL, J. CLAIBORNE, J.

text:
    No. 9590.
    Orleans Appeal.
    MR. AND MRS. EDWARD PILSBURY v. J. D. O’KEEFE, RECEIVER, ET AL.
    (January 19, 1925, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Street and Interurban Railroads — Par. 21, 26, 30.
    While liability for certain injuries suffered by plaintiff in a street car accident may be avoided by defendant’s plea and successful proof that plaintiff’s gross negligence caused the initial accident, nevertheless plaintiff may recover, for damages arising out of the accident, where it is definitely shown that ordinary and reasonable care on the part of the defendant would have prevented additional injuries suffered by plaintiff. (Civil Code, Art. 2315. Editor’s note.)
    Appeal from the Civil District Court for the Parish of Orleans, Division “B”, Hon. Mark M. Boatner, Judge.
    This is a damage suit for personal injuries to a child.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Woodville & Woodville, attorneys for plaintiff and appellee.
    Benj. W. Kernan, attorney for defendant and appellant.
   BELL, J.

Plaintiffs, on behalf of their daughter, a minor, bring this • action in damages against the street railways company pf New Orleans and its bondsman, for injuries sustained by the child in an accident which- ocOurred on the upper, tracked portion, of what is known as the neutral ground of Oanal Street, between Rampart Street and University Place. The claim is for $30,000.00, the full amount of which, judgment is prayed for against the defendant railway company, and a judgment for at least $5,000.00 of this amount is asked. in solido against both defendants.

The usual charges and counter charges of negligence common to damage suits constitute the major portion of the pleadings in this case. We are in accord with the findings of the trial judge, to the effect that the child — eleven years old at the time of the accident — was guilty of contributory negligence leading. up to and causing the initial accident from which she sustained-some of her injuries. There was judgment in solido against both defendants in the sum of $3,000.00, from which judgment each defendant has appealed.

The accident happened at the place noted on the afternoon of February 11, 1921, at about 3:30 o’clock. A careful examination of the voluminous record before us, ' in which the testimony of some twenty-one witnesses has been recorded, leads us to the additional conviction that the initial accident by which the child suffered injuries to the lower portion of her left leg, could not have been avoided by the defendant railway company. The child’s negligence in failing to look, or to listen with any degree of care, which even one of her age should have exercised, and the suddenness with which she ' appeared on the company’s track from a. place where she could not have been seen for any length of time prior to the accident, constitute facts which further lead us to the conclusion that the initial accident was itself unavoidable, in so .far as the defendant: railway company is concerned. The company’s operation of, the car as well as its' equipments on the car do not appear, under the circumstances of this case, to establish- any grounds for a conclusion that this defendant was, as to the initial accident, at fault.

The little girl is shown to have been a passenger with her mother and brother on a Canal Street belt car, which stopped. at the place of the accident,, immediately behind another.car, which had come to.a stop in obedience to traffic 'signals. .There was a space of some four or five feet between these two cars, and both of these care were .at rest when the child, atempting. to go to the upper, side of Canal Street, passed between the ears and approached near enough to, or over the track of an oncoming St. Charles Street belt car, whose fender hanging down in front of the car and suspended about six to eight inches above and parallel to the track, struck her down. There is much contradictory, evidence as to whether the motorman of the oncoming car rang his gong or gave any notice of approaching danger. The motorman of this car swears that he rang his gong, reversed his brakes and made every effort, except that of springing the fender, to avoid the accident. The fact is definitely established that the fender was not dropped or sprung so as to he of service for which it was intended. Wé give little weight to this fact or to the fact of whether the gong was rung or not, for the reason, as already stated, that we are convinced from the evidence before us that any exercise of due caution and care on the part of the motorman would not have avoided the accident. We, therefore, pass to the consideration of what happened immediately after the child was struck. '

We find that the lower portion of the child’s left leg above the ankle was pinned under the left front wheel of the car, with resulting damages, both painful and severe. While thus pinned under the car, it appears that effort was made hy innumerable bystanders, but by none of the eight employees of the company who were present while the child was in this position, to raise or jack up the car. The motorman, after descending from his car momentarily, again mounted the car, and attempted, on the advice of many persons around him, but against the particular instructions and cautions given him by his conductors, to back the car. There is no doubt that the car was backed ' while the child’s leg’ was under the front wheel. At this moment the .child screamed from intense pain, and we find from the evidence, as did the trial judge, that the moving of the ear backwards resulted in serious and painful injury to the thigh of the child’s leg just above the knee. She was taken to the hospital, where she remained from February 11, 1923, to. March 31, 1923, and was for many weeks afterwards under treatment of Dr. J. A. Danna, whose testimony, as well as his certificate in regard to the accident, convinces us that the injury to the thigh occurred, not at the same moment when the foreleg was injured, but only after the car was moved backwards. We must conclude that no part of the car could have struck or injured the child except the wheel, which pinned the foreleg in the first part of the accident, but that in the backing of the car some part of the framework surrounding the wheel was lowered upon the child’s thigh. The doctor says in his certificate, compiled by agreement after his verbal testimony had been given, that the little girl had severe crushing injury of the left thigh, such as might have been produced by continued strong pressure, the thigh being still dented across its whole diameter at a point just below its middle; that the hone was not broken completely across, but the x-ray showed a fracture through the inner condyle just above the knee, and that the leg below the knee, down to the foot, was severely crushed and torn. He further states that while the injury to the leg below the knee appeared more extensive, being an open, gaping wound, yet the injury to the thigh above was much more serious, causing him for a while to fear the necessity for amputation of the thigh, probably resulting in death.. He further states that skin taken from the ■upper part of the thigh had to be grafted to the wound on the lower part of the leg. It is his opinion that there must be some permanent impairment of the limb as a result of 'the severe crushing of the thigh and loss of substance in the leg. It further appears from his testimony and certificate that treatment continued for many weeks after the child was dismissed from the hospital. The photographs of the child’s limb show permanent and severe scars and lacerations. The child’s testimony is to the effect that she still suffers from pain in her leg, and the trial judge has found upon examination made at the trial, that the child was still limping. She states that she is able to dance, though cannot engage in some athletic sports. Beyond the severe scars on the leg, we conclude, however, from other testimony in the record, that the injuries are not of a nature to permanently cripple her.

From the evidence of several witnesses testifying in this ease, and from the physical fact that the skin on the upper portion of the leg above the knee was not lacerated but crushed by some apparent weight, it is fair to conclude that all of the injury to the thigh was a result of the backing of the car after the initial accident.

Though two supervisors of the defendant company were present after the child was pinned under the car and before the car was backed, these employees, who should have directed and commanded the whole movement 6f the car after the initial accident, are shown not to have participated in any control of the car whatsoever. Alter the backing o£ the car, it was raised by jacks, which -do not appear to have been operated by any of the railway company’s employees — in other words, nothing was done by any employee of the company to relieve or to protect the child after the initial accident, except the ill-advised and unfortunate movement of the car in a backward direction. From this act, we are of the opinion that the company, through its agents, was guilty of negligence which could have been avoided by proper supervision of those charged with the handling of the car. It appears to us that careful investigation as to the child’s position under the car and careful judgment exercised after such investigation, would have avoided that part of the accident for which the trial court has awarded damages. The amount of damages allowed in this case are, under, all of the circumstances before us, in our opinion, just and reasonable.

Plaintiffs and appellees have petitioned this court for an amendment of the judgment appealed from so as to increase the amount of the award from $3,000.00 to $20,000.00. It is argued by their counsel that not only the amount awarded for the damages sustained subsequent to the initial accident is insufficient, but that plaintiff’s child was not guilty of contributory negligence, and that the injuries sustained from ■ the initial accident, as well as from what happened subsequently, are of an extent justifying the amount now prayed for.

We have already noted our conclusions to the effect that the railway company was not only not negligent in regard to the initial accident, but that even if the company was held to be negligent, the contributory negligence of the child in this case would bar her recovery from such injuries as arose from the initial accident. She is shown by the evidence to have been of more than ordinary intelligence, and despite her tender. age, the jurisprudence of this State is to the effect that children even younger than she, may be held in law to be guilty of contributory negligence barring recovery. (State vs. Stafford, 107 La. 537, 32 South. 83; Lynch vs. Knopp, 118 La. 618, 43 South. 252; Downey vs. Baton Rouge Electric and Gas Co., 122 La. 481, 47 South. 837; Cusimano vs. City of New Orleans, 123 La. 565, 49 South. 195. Cent. Dig. 217.)

The doctrine of contributory negligence applied to a child of such tender years is recognized in this and innumerable States of the Union, and is thus stated in 36 Cyc., page 1564:

“It has been held that a child is guilty of contributory negligence precluding a recovery if he is of sufficient age and intelligence to appreciate danger and take such precautions as such a child would be reasonably expected to take, where he goes upon the tracks without properly looking or listening for an approaching car which he could have discovered in time to avoid the accident, and where he attempts to cross without properly looking or listening immediately behind another car, or where he carelessly, or heedlessly attempts to cross in front of a car which he sees approaching in dangerous proximity.”

The judgment appealed from is correct and should be affirmed.

It is, therefore, ordered that the judgment herein appealed from be and the' same is hereby affirmed at defendants’ costs in both courts.

CLAIBORNE, J.

Without concurring in that portion of the opinion which charges the child with negligence, I concur in the decree.


text:
    No. 9624.
    Orleans Appeal.
    SURETY CREDIT COMPANY, INC., v. J. B. G. ARNOULT ET AL.
    (January 19, 1925, Opinion and Decree.)
    (February 2, 1925, Rehearing Refused.)
    (March 10, 1925, Decree Supreme Court Writ of Certiorari and Review Refused.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Appeal—Par. 718.
    Where the record on appeal clearly discloses the fact that appellant, as defendant in a suit on a promissory note, signed and indorsed by him, has pleaded throughout the proceedings below in propria persona, and that counsel on his behalf was only put of record after trial and judgment, the appellate court will refuse' to set aside the judgment or remand the case for a new trial, though appellant represents to the appellate court, appearing there also in propria persona, that the trial was had and judgment rendered below in the absence of himself and counsel, and while the latter was actively engaged in another court.
    Appeal from First City Court of New Or- , leans, Section “C”, Hon. Henry Renshaw, Judge.
    This is a suit on a promissory note.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    L. H. Gosserand, attorney for plaintiff and appellee.
    J. B. G. Arnoult, Jos. Rosenburg, attorneys for defendant and appellant.
   BELL, J.

The appeal herein taken is from a judgment in favor of plaintiff, the holder and owner, for value before maturity, of a certain promissory note, signed and indorsed by appellant. We are asked to set aside the judgment and to remand the case for a new trial, on the grounds that the case was tried and judgment rendered in the absence of appellant or his counsel.

The case was fixed in the trial court after due notice to defendant and was set for hearing on the 2nd day of April, 1924, at 10 o’clock a. m. The judgment recites that the case was called on the above date, “Defendant absent and unrepresented”. We find in the record a motion and order directing that Joseph Rosenberg, Esq., be made attorney of record for defendant. This document, signed by this attorney and by the trial judge, bears a filing stamp of the deputy clerk of court, showing that the motion was filed at 1:30 p. m., at an hour or time subsequent to that on which the case was evidently heard and judgment was rendered. All of the pleadings filed by defendant prior to the motion and order making Mr. Rosenberg counsel of record were signed only by defendant in propria persona. Upon these facts, as recited, it is plain that defendant has had his day in court, and he having failed to show to the trial court or to this court any legal reason for a continuance of the case tried in his absence, we must hold that the refusal of the trial judge to grant him a new trial was well founded. Appellant has appeared here only in propria persona. This appeal has been taken solely for the purpose of having this court remand the case for a new trial. This we will not do under the circumstances of this case. The judgment appealed from is correct and should be affirmed.

It is, therefore, ordered that the judgment appealed from herein be and the same is hereby affirmed, at defendant’s costs'in both courts.


text:
    No. 9765.
    Orleans Appeal.
    CHAS. J. BABST v. MRS. CORA HARTZ, ET AL., Appellants.
    (January 19, 1925, Opinion and Decree.)

      (Syllabus by the Court.)

    1. — Louisiana Digest — Courts—Par. 144; Appeal — Par. 25, 43.
    Where the issue in a case is not the ownership of property hut the right of possession thereof, it is the value of the right of possession and not the value of the property which determines the question of jurisdiction of the Appellate Court.
    2. Louisiana Digest — Appeal—Par. 46.
    An appeal from a judgment in a reconventional demand follows the jurisdiction of the main demand.
    (Art. VII, Sec. 1, Constitution of 1921. Editor’s note.)
    3. Louisiana Digest — Sales—Par. 47.
    Under the jurisprudence a promise of sale amounts to a sale only in this sense that it entitles either party to enforce specific performance; hut a promise of sale is not translative of the property and does not change the ownership of it even between the parties.
    (Civil Code, Art. 2462. Editor’s note.)
    Appeal from Civil District Court, Hon. Hugh C. Cage, Judge.
    This is a suit for the possession of the property No. 4826 Pitt street. This came up on a motion to dismiss founded on jurisdiction.
    Motion to dismiss denied.
    Francis P. Burns, attorney for plaintiff and appellee.
    Chas. Louque, attorney for defendant and appellant.
   CLAIBORNE, J.

This is a suit for the possession of the property No. 4826 Pitt Street.

Plaintiff avers that he purchased said property from T. W. Hooley on September 20, 1923, and that it is worth $7,000; that since October 1,' 1923, the defendants have been occupying said property to the exclusion of plaintiff without any title as owners, or as lessees, or permission from plaintiff, nor are they willing, nor have they agreed, to pay any rent for the occupancy of said property; and that they have refused to remove from said property though requested so to do by plaintiff, and have refused to pay rent; that he is damaged to the extent of $50 a month.

He prays for judgment recognizing him as owner of said property and commanding the defendants to remove from hig property and to restore possession thereof to him, and for $50 per month rent from October 1, 1923, until the defendants deliver the property to him.

The three defendants severed in their answer.

Gladys Hartz claimed to be the owner of the property by virtue of the following document:

“New Orleans, La., October 18, 1923. O. V. Cooper, Agent.
Dear Sir:
I offer to buy the 4826 Pitt Street, single, two-story, 35x110, or at least 8-foot driveway on downtown side of house, for tho sum .of Sixty-two Hundred and Fifty Dollars on terms of all cash * * * sidewalks and driveway to be put in by present owner * * ® Act of sale to be passed before Homestead Notary within 30 days al expense of purchaser.
Possession to be given at time Act of Sale is passed. If this offer is accepted I will deposit $250 immediately with you as part of the purchase price, which deposit is to be non-interest bearing and is not to be earnest money; either party hereto reserving the right to demand specific performance, etc.
(Signed) GLADYS HARTZ.”
“New Orleans, La., 10/18/1923.
O. V. Cooper, Agent.
Accept the above offer.
(Signed) CHAS. J. BABST.”

The defendant further alleged that no act of sale was signed because plaintiff insisted on selling 35 feet front on Pitt Street which did not give an eight-foot driveway, and that he prepared an act to that effect which defendant refused to sign; that on April 28, 1924, defendant then tendered to the plaintiff an Act of Sale in strict conformity with the written agreement of October 18, 1923, that is 35 feet by 110 feet or at least 8-foot driveway on downtown side of house, which plaintiff refused to sign, and made an actual tender of $6,250 to the plaintiff which he refused to accept.

T'he defendant further alleged that she occupied said house as owner and was in no way bound to pay rent; that she gave her consent to have her mother, Mrs. Cora E,. Hartz, and her brother, Julius Hartz, the other two defendants, occupy the house; she admitted she had no lease and required none since she was the owner of the property by virtue of the above document and that she owes no rent.

She therefore prayed that plaintiff’s suit be dismissed, and in reconvention for judgment in her favor ordering the plaintiff to sign the Act of Sale prepared by her, and that the property above mentioned be declared to belong to her as of date October 18, 1923.

The other two defendants, Mrs. Cora E. Hartz and Julius Hartz, admitted that they had no title to the property, nor any lease, and that they occupied the property by the consent of the owner, Gladys Hartz, to whom the plaintiff sold the property by virtue of the document dated October 18, 1923, and they prayed for the dismissal of the suit.

The plaintiff then moved to strike out from the answer of Gladys Hartz all allegations in her said answer supporting a demand in reconvention for specific performance of the contract alleged in the answer.

The rule was made absolute and all allegations in support of the reconventional demand were ordered stricken out.

On the trial of the merits there was judgment in favor of plaintiff recognizing him to be the owner of the property and entitled to the possession thereof, and condemning the defendants to be ejected therefrom and to pay plaintiff from November 18, 1923, $50 per month until they shall have removed from the property.

The defendants have taken a suspensive appeal from said judgment returnable to this Court.

In this Court a motion is made to dismiss the appeal or to transfer it to the Supreme Court on the ground that this Court is without jurisdiction ratione materiae for the reason that “this is a suit for the recognition of title to,, and possession of, certain real estate brought by mover; that the admitted value of said real estate is above $2,000, etc.”

As a general rule the jurisdiction of a court is determined by the prayer of the petition. But this conclusion may be modified by the allegations of the answer, or by other pleadings affecting the “amount in dispute”.' Thus in Crowell vs. Lynch, 157 La. 21, 101 South. 797, the court said:

“The test of jurisdiction of an Appellate Court, so far as it is determined by the amount or value in contest, is. not the amount or value sued for, but the amount or value remaining in contest when the case has been submitted for decision in the Court of original jurisdiction.” Wolf vs. Thomas, 137 La. 833, 69 South. 269; Tremont Lumber Co. vs. Talbot, 140 La. 887, 74 South. 183; Crawford, Jenkins & Booth vs. Fisher, 144 La. 130, 80 South. 224; Norwood vs. Lake Bisteneau Oil Co., 145 La. 823, 83 South. 25.

In that case the suit was a petitory action to recover 80 acres of land alleged to be worth $4,000. The defendant acknowledged plaintiff’s ownership, but claimed $1,000 in reconvention for improvements he had made. The Supreme Court said that the reconventional demand was the “only matter at issue”, and therefore transferred the case to the Court of Appeal.

'In the ease before us the plaintiff alleges himself owner of property worth $7,000, asks to be recognized as such and to be put in possession thereof, and for rent at $50 a month from October 1, 1923.

The defendants admitted that plaintiff had been the owner of the property, but that he had transferred his ownership thereof to one of the defendants by virtue of the document dated October 18, 1923, mentioned above.

By offering to purchase from the plaintiff the defendants admitted that plaintiff had been the owner. The question now arises has the document of October 18th the effect of transferring the ownership from the plaintiff to the defendant?

This document is merely an “offer to buy” made by defendant and an acceptance of “the offer” made by the plaintiff. It did not amount to a sale. By that acceptance the plaintiff did not transfer the ownership of the property, nor did the defendant acquire the ownership of it. It was not until the offer and the acceptance had been consummated by an act of sale that the ownership passed from one to the other. But before this consummation took place the parties disagreed as to the meaning of the document, and each refused to execute it as the other ' understood it.

The jurisprudence is that neither a mutual agreement to sell and buy, nor a mutual promise to sell and buy, transfers ownership.

“A promise to sell when the thing to be sold and the price of it are agreed upon, is so far a sale that it gives to either party a right to claim, recta via, the delivery of the thing or payment of the price; but such a promise does not place the thing at the risk of the promissee, nor does it transfer to him the ownership or dominion of it.” McDonald vs. Aubert, 17 La. 448. Affirmed in Short vs. Knight, 15 La. 483; Fernandez vs. Soulie; 28 La. Ann. 34; Edward Foreman vs. W. G. Saxon, 30 La. Ann. 1117; Broadwell vs. Raines, 34 La. Ann. 677; Thompson vs. Duson, 40 La. Ann. 712, 5 South. 58; Myra Jane Knox vs. Payne & Harrison, 13 La. Ann. 361; Capo vs. Bugdahl, 117 La. 995, 42 South. 478; Lehman vs. Rice, 118 La. 975, 43 South. 639; Bennett vs. Fuller, 29 La. Ann. 663. Manning U. C. 365.
“This reciprocal promise of sale did-not make Peck the owner of the land. It gave him only the right of becoming so at a future time * * * . Until a voluntary or forced execution of the promise, the ownership did not pass to Peck.” Peck vs. Bemiss, 10 La. Ann. 160.
“It (a promise of sale) produces .only such an obligation as may be specifically enforced, but does not absolutely convey the property, or confer upon the promissor the rights of a vendor.” Collins vs. Desmarest, 45 La. Ann. 108 (114), 12 South. 121.
"By a settled jurisprudence a promise of sale means no more than that the contract is susceptible of specific enforcement, 117 La. 276, 41 South. 572; Girault vs. Fuicht. It does not mean that the buyer becomes owner of the property, or debtor for the price. Baldwin vs. Morey, 41 La. Ann. 1105, 6 South. 796, and cases there cited.” Barboy Co. vs. St. Louis, 121 La. 152 (167), 46 South. 193.
“Under the jurisprudence a promise ot sale amounts to a sale only in the sense that it entitles either party to enforce specific performance; but a promise of sale is not translative of the property an'd doe's not change the ownership of or dominion over the thing, even as between the parties, or put the thing at the risk of the promissee.” Caire vs. Mutual Assn., No. 7315 Ct. App.
“A written contract whereby the owner of property agrees to sell it and another agrees to buy it, the act of sale to be passed within a stated time, is not a' complete sale, but only an agreement for the sale.’.’ Maloney vs. Aschaffenberg, 143 La. 509, 78 South. 761.

The document dated October 18, 1918, contains this clause: “Act of Sale to be passed before Homestead Notary within 30 days.” In Thompson vs. Milue, 9 La. Ann. 84, the Court said:

“So if the agreement to sell contains a clause that an authentic act shall be passed * * * creditors of the vendee are informed that the Act must be passed * * * before the sale is perfect between the parties.” Also Bennett vs. Fuller, 29 La. Ann. 663.

Having disposed of the question of ownership, the only remaining questions in dispute are the Tight of possession and the amount of rents claimed.

“Where the issue between the parties .to a suit is not the right of ownership, but the right of possession, and the value of the latter right is as to amount below the appellate jurisdiction of the Supreme Court, an appeal taken to that Court will be dismissed ex proprio motu.” In re Genella, 45 La. Ann. 1377, 14 South. 302.
“Where the issue in a case is not the right of ownership of specific property, but of the possession' thereof, it is the value of the latter right which determines the jurisdiction on Appeal of the Supreme Court. Lea vs. Orleans, 46 La. Ann. 1444 16 South. 456.
"The suit being one for possession, its value and not the value of the property, is the test of jurisdiction.” Norwood vs. Wirnby, 104 La. 647, 29 South. 311; State vs Judges of Court of Appeal, 105 La. 217, 29 South. 816.

The value of that possession in this case is below $2,000.

The authorities .quoted by plaintiff all refer to petitory actions where title to property exceeding $2,000. was involved.

The reconventional demand of defendant praying for a specific performance follows the jurisdiction of . the main demand.

" Article VII, Sec. 1 of the Constitution of 1921, p. 35, reads as follows:’

“In all cases where there is an appeal from a judgment on a reconventional demand, the appeal shall lie to the Court having jurisdiction of the main demand.”

We therefore conclude that the appeal was properly made returnable to this Court and the motion’tó: dismiss is denied.


text:
    No. 9822.
    Orleans Appeal.
    JAMES Z. REEVES v. FRANK E. DIETZ AND THE EMPLOYERS’ LIABILITY ASSURANCE CORP., INC., Appellant.
    (January 19, 1925, Opinion and Decree.)

      (Syllabus- by-.the Court.).

    1: “‘Louisiana Digest, Master and -Bervánt.' . —Par. 160-A. ,
    The question of whether an injured employee claiming compensation under tlie Workman’s Compensation Act should submit to an operation in an effort to. . ’ cure or lessen his disability depends upon the reasonable character of the ’ operation under the circumstances pre- - vailing.
    2.. Louisiana .Digest, Master and Servant. . —Par. 160-A. ,
    Where there is conflict of opinion among, medical experts concerning the- advisability of the operation the employee’s refusal to submit thereto is -not unreasonable. :
    3. Louisiana Digest, Master and Servant.—Par. 159. ,
    An injury causing partial disability to work is covered by Sub-division. C of Section, • 8 of the Compensation Act and not Sub-division D of Section 8 of the Act,where awards are made employees without reference to the effect upon earning capacity.
    4. Louisiana Digest, Master and Servant.Par. 159-A.
    The phrase “able to earn” as used in the - - Compensation Act in referehce to wages an injured employee is “able to earn” subsequent to his injury does not ■ mean the maximum sum earned in any ■ one week but a fair average' of thd . weekly wages which ■ an employee is . able to earn covering a sufficient period, of time to determine his earning ca- ' pacity.
    . Appeal froi® Civil District Court, Hon.. Wm. H. Byrnes, Jr., Judge.
    . This is an action by an injured-efnplóyee undqr the Employer’s Liability-Act, namely Act...No. 20 of 1914, page 44; ‘
    1There was judgment for plaintiff and dej fendant has appealed.
    Judgment amended and affirmed.

      Habans & Coleman, attorneys for plaintiff and appellee.
    Edw. Rightor, attorney for defendant and appellant.
   WESTERFIELD, J.

This is a suit by an . injured employee for compensation at the rate of $10.80 per week for 300 weeks. The defendants admit the plaintiff was injured under circumstances entitling him to compensation and defend upon the following grounds:

“First: That the plaintiff’s disability is of such a character that it could either be removed or greatly reduced by an operation, painless, without danger and with reasonable hope of success; that such an operation defendants have tendered plaintiff and plaintiff has refused; and that all compensation should be suspended until the plaintiff submits to such operation.
“Second: That the plaintiff’s injuries are confined to a partial disability of the left hand; that the Act, Section 8, Sub-division D, paragraph 5, among the specific disabilities, fixes the compensation for the entire loss of a hand at 60% of wages during 150 weeks; that, it being conceded, even by plaintiff’s counsel and physician, that the plaintiff retains a substantial part of the use of his hand, under no circumstances can this plaintiff recover beyond 150 weeks. Otherwise, he would recover for the partial loss of use of his hand a greater amount than he could recover for the total loss of use of his hand.” •

There was judgment below awarding compensation at the rate of $8.50 per week during disability and not exceeding 300 weeks and denying defendant’s right to force the plaintiff to undergo an operation as a condition of the payment of compensation. The defendants have appealed and plaintiff has answered the appeal asking an increase in the weekly indemnity' awarded plaintiff to $18.00 per week.

The learned judge of the court a quo based his refusal to require plaintiff to submit to an operation or in the alternative to a diminution of compensation upon the case of Bronson vs. Harris Ice Cream Co., 150 La. 455, 90 South. 759. Counsel for plaintiff in his brief and oral argument contends (and the District Court seems to have been of the same opinion) that this case held that no operation, however slight or however small the danger to life, and whether the refusal of an injured employee to submit thereto was reasonable or unreasonable, could be required upon condition of affecting such employee’s compensation. Counsel quotes the following from McNally vs. Hudson & M. R. Co. (N. J.), 95 Atl. 122:

“The idea is appalling to one’s conscience that a human being should be compelled to take a risk of death, however slight that may be, in order that the pecuniary obligation created by the law in his favor against his employer may be minimized.”

Of course, no one can be compelled to submit to an operation. The person of individuals is inviolate. The law can no more compel an operation than it can compel a marriage. Everyone has a natural right to do as he pleases with his person and property. It is only when his actions affect others that the law intervenes. However, it is a mistake to assume that the Compensation Law is philanthropic or eleemosynary in its purpose. In fact, the word compensation is a misnomer. It is not compensatory.- The stipendiary allowances of the law are inadequate compensation for the injuries sustained and are less than allowed by the courts for similar injuries in cases not falling within its provisions. As its Germanic origin would suggest, it is socialistic and economic. The welfare of society, of the State, is its object and purpose. It can be justified upon no less exalted ground. In Hosh vs. La. Box Co., 9245 Orl. App., we said:

“When it is remembered that this act controverts long established principles of law in that it imposes upon the employer responsibility without fault or negligence on his part, may even be said to amount to a taking of property without .due process, and can only be justified under the police power, the most potent attribute of all governmental authority, the conclusion is irresistible that economic reasons of the most compelling sort and public policy of the mo'st vital import supports its enactment. This is the more evident since every civilized country in the world, as we believe, has enacted this legislation. Among the most important economic purposes to be subserved we conceive to be that of preventing injured workmen becoming public charges and to that end it imposes upon industry the burden of maintenance of injured employees.”

The law places the burden upon industry to repair as near as may be the damage it does to man as a member of society, a cog in the economic machine. It contemplates that the injured employee is the normal individual, desiring nothing so much as restoration to normal strength and usefulness, the God given right to work and that he will do nothing to create, continue or increase his disability by wilful or unreasonable conduct and thereby increase the burden upon society by reason of an unnecessarily prolonged disability due not to injuries received in the service of industry but to his laggard sense of his obligation to society.

Our appreciation of the Bronson case is in' harmony with the foregoing general observations. In that case at page 457-8 the Court said:

“To the legal action which the injured employee might have to recover full indemnification, the act substitutes a right to partial indemnification, but seeks to facilitate and insure as far as possible the recovery of this indemnity. To that end it takes away defenses, simplifies procedure, and creates presumptions. That purpose would in a large measure be defeated if the door were opened for discussion as to whether the injured employee should or not have recourse to an operation. This would be adding uncertainty where the law clearly desires that there should be none.
“At the same time we must. recognize that such a thing might be as an injury curable by an operation so simple and unattended by risk that plainly the real cause of the disability would be not so much the injury as the not making use of the easy remedy at hand.”

and after quoting a number df decisions from other states, the Court remarks;.

“Most of these cases are inapplicable under our statute, except in so far as establishing the proposition that the injured employee must not be entirely unreasonable in refraining from an operation.”

Though the Court held that the employee’s compensation in that ease could not be affected by his refusal to undergo an operation, its decision was based upon the fact that it would be unreasonable to have required him to do so, saying:

“In .view of the age of the plaintiff and the seriousness of the operation requiring the administration of an anaesthetic and in view of the natural (though unreasoning and we may add groundless) prejudice against resorting to the Charity Hospital, we do not think plaintiff’s unwillingness to submit to an operation was entirely unreasonable.”

In the well-reasoned case of Strong vs. Sonken-Galamba Iron & Metal Co. (Kan.), 198 Pac. 182, the authorities, English and American, are reviewed and the conclusion reached that the plaintiff’s refusal to submit to an operation was unreasonable, the Court saying at page 186 of the- opinion:

“The State goes to great expense to fit its- people for work, to protect them in their work, and to secure to them- the result of their labor. Then if a man who receives these favors from the State' will not work he at least is not a good- citizen.
“The plaintiff has been injured. The injury can be remedied, and he can be restored to his former condition-. If is his duty to do whatever is necessary to restore him. If he refuses to perform- that duty, he should not ask the State nor any person to assist him in that refusal. He cannot be compelled to undergo an operation, but he can be told that if he refuses he shall not receive compensation for that which he voluntarily continues.”

In Donnelly vs. Baird & Co., Ltd., 1 B. W. C. 95, an English case cited in the Strong case (supra), Lord Justice Clerk said:

, “I hold it to be the duty of an injured workman to submit to such treatment, medical' oi "surgical, as involves' no serious risk -or suffering, such an operation as a man of ordinarily manly character would undergo for his own good, in a case where ,no question of compensation due by another existed.”

and in' the same case Lord McLaren said:

“I can see no general principle except this, that if the operation is not attended 'with danger'to life or health, or extraordinary suffering,, and if according to the best medical or surgical- opinion the operation offers a reasonable prospect of restoration either .submit .to the -operation or release .the workman is suffering, then he must either sffbmit to the operation to release his employers from the obligation to maintain him.” Page 102.

.-In Donovan vs. Railway & Light Co., 132 La. 239;. 61 South. 216_ a case quoted with approval by the Kansas Court in the Strong case, .the Court said:

“Where One has been injured but is advised by.competent physicians that the injury can be remedied by an operation that is ordinarily not dangerous, but refuses to submit to the operation, she is not minimizing her damages, and can not recover for the sufferings which would be avoided by the needed operation. It is incumbent upon the injured person to submit to reasonable treatment and to follow the advice of competent physicians.”

•We will now consider the reasonableness of plaintiff’s refusal to sumbit to the operation. His injury consisted of a severance of the muscles, tendon tissues, etc., of the left' forearm by a circular 'saw. As a result of tins injury and the attempt to repair it, 'plaintiff was permanently disabled in that there was numbness in che hand and inability to close the fingers, lack of sensation in the palm, inability to grip objects and pain upon exertion. In the words of a specialist testifying on behalf of” defendant:

“Claimant presents a slightly depressed scar 2 inches by 1-8 of an inch on the lower of the middle third of the left forearm, palmar external side. There is a loss of sensation on the back of the hand, entire thumb, 2nd and 3rd digits and external half of 4th digit, also the external palmar lower forearm to the scar. Plexor power of all the fingers and the hand and opponens power of the little finger and thumb are restricted seemingly by involvement in the scar of these muscles; the fingers, thumb and wrist however, allow of fully two-thirds of normal flexion, but not near enough to allow claimant to make a.fist or even grasp a large object with any degree of force.
“The loss of skin sensation is likely permanent and will constitute a slight permanent disability.”

The plaintiff is a carpenter by trade, an occupation requiring great freedom of muscular action, particularly of the arms, hence the nature of plaintiff’s injuries particularly affect his vocation. All the evidence is to the effect that his disability will be permanent unless operated upon. The character of the operation suggested by defendant is thus described by Dr. Simon testifying in defendant’s behalf: “The operation would consist in the removal of the skin-scar and a dissecting out of the different tendons and bellies as they go down— the muscle-bellies; and then an attempt to find the several nerve ends and join them.” Concerning the prospect of success the testimony is conflicting. Not one of the three doctors who testified in the case believed that a complete restoration of the arm and hand to normal functioning was possible. Two of the doctors testifying for plaintiff advised against the operation, while Dr. Simon for defendant thought it advisable and it was admitted that if Dr. Boulet were present he would corroborate Dr. Simon. Drs. Boulet and Simon are orthopedic surgeons or specialists, and Drs. LeBlanc and Rudolph for plaintiff are general practitioners, though Dr. Rudolph has had considerable surgical experience in the World War. Dr. Simon thinks plaintiff would have' “a fairly excellent chánce” of improved muscular capacity in his arm and hand with no chance of being in a worse condition that at present. Dr. Rudolph thinks there is a possibility of. plaintiff losing the little use he has of his hand .(he can use his index finger and thumb to some extent at. present) and that the muscles may atrophy. Both Dr. Rudolph and Dr. LeBlanc refer to danger of infection as a remote and disastrous possibility. It will require possibly one year of post-operative treatment, before positive and definite results can be ascertained. Plaintiff has experienced one operation of a similar character performed just after his accident, when the muscles and nerves were “sutured” as it is proposed to do in the suggested second operation. The chances of success are said to be greater when the operation is performed soon after the injury, though just how soon is disputed. More than á year has now elapsed., since plaintiff was injured. We conclude that under the circumstances of this case the plaintiff’s refusal to submit to the operation proposed was not unreasonable.

The second point raised by defendant is that plaintiff’s claim is controlled by paragraph 5, Sub-division “D” of Section 8 of Compensation Act which allows 60 per cent of difference between wages earned at the time of injury and wages which employee is able to earn thereafter during period of disability, not, however, beyond 150 weeks. Plaintiff claims that Sub-section C of Section 8 of the act controls. The difference between the two provisions of the law is that the maximum period of disability for which compensation is awarded is 150 weeks in one case and 800 weeks in the other. Sub-section D fixes compensation for the loss of a hand and the contention is that since the Amendatory Act of 1922 declares that “the permanent total .loss of the use of a member is equivalent to the amputation of the member” that plaintiff having lost the use of his hand must be controlled in his claim for compensation by this section.. We do not agree with counsel. In the first place plaintiff has not lost the entire use of his hand and moreover Sub-section D relates to injuries without regard to the effect upon earning capacity, whereas Sub-section C controls when the injury produces “partial disability to do work of any reasonable character”.

The remaining question for our determination is the amount of weekly allowance. The law fixes it at 60 per cent of the difference between the sum earned before the accident and amount the employee “is able to earn thereafter”. Counsel would interpret the words “able to earn” as meaning the maximum sum earned during any one week. On the principle that what man has done man may do. We do not so interpret this phrase of the statute. We think the act contemplates that compensation shall be 60 per cent of the difference between the average amount the employee is able to earn before and after the accident covering a period long enough to determine such average. In Gorman vs. Gulf Co., No. .... Orl. App., we said:

“The basis of compensation under the Workman’s Compensation Statute is the employee’s average weekly wage, which the statute itself defines as being the annual earnings of the injured divided by 52.”

The evidence concerning plaintiff’s earnings since the accident as well as before is not as satisfactory as it might be, however, it sufficiently appears that plaintiff should have at least as much as he claims in his petition, or $10.80.

For the reasons assigned the judgment appealed from is amended so as to increase the weekly compensation of plaintiff from $8.00 to $10.80 per week and in all other respects it is affirmed.


text:
    No. 9843.
    Orleans Appeal.
    DAMERON PIERSON CO. v. O. T. STAFFORD, Appellant.
    (January 19, 1925, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest, Municipalities, Par. 225.
    All vehicles approaching intersecting streets from the left shall give right of way to vehicles approaching from the right. No. 9874.
    2. Louisiana Digest, Municipalities, Par. 225.
    This rule applies specially to vehicles arriving at the intersection at approximately the same time.
    (Civil Code, Art. 2315 — Editor’s Note.)
    Appeal from First City Court, Hon. Leon L. Labatt, Judge.
    This is an automobile collision damage suit. Judgment for plaintiff. Defendant appealed.
    Judgment affirmed.
    Eugene D. Saunders, attorney for plain tiff and appellee.
    Solomon S. Goldman, attorney for defendant and appellant.
   CLAIBORNE, J.

This is an automobile collision damage suit.

The plaintiff alleges that at about noon on December 29, 1923, an automobile owned by it was proceeding out Fern Street towards the woods; that when it reached Elm Street it proceeded to cross that street; and had reached the middle of the intersection when an automobile operated by defendant, Stafford, came driving down Elm Street in the direction of Canal Street and negligently ran into the rear .of petitioner’s auto, knocking it completely around and turned it over; causing a damage of $109.26, which plaintiff claims.

'The defendant pleaded that the plaintiff was running at> an excessive rate of speed; that the chauffeur was not looking and did not sound his horn, while he, defendant, was driving at a slow speed and prudently.

There was judgment for plaintiff for $101.76, and defendant has appealed.

Only three witnesses testified.

O’Rourke, plaintiff’s chauffeur, testified that he was driving out Fern Street towards the woods about ten miles an hour; when he reached Elm Street he blew his horn; when he had almost crossed this street, all but five feet, the defendant car, driving down Elm' Street towards Canal Street at the rate of twenty-five miles an hour, struck his car on- the rear left side, knocked him completely around facing St. Charles Street and upset his car on the right side; plaintiff’s car was a Ford half-ton truck and defendant’s car was a Ford touring car; the impact broke three wheels,, three fenders, one windshield, two side windows and the magneto of plaintiff’s car, which was .removed by a wrecker to the repair shop.

The other witness for plaintiff testified as to the amount and necessity of the repairs done, and their value, and the correctness of the bill sued on.

The defendant testified that he was driving down Elm Street in a rented car with a. governor restraining its speed to 20 miles; he was running at a speed of 12 miles; he saw the plaintiff’s car when he got to about 12 or 15 feet from the corner, and the plaintiff was about 30 to 40 feet from the corner of Elm, running “wide open”, or 35 miles an hour. Witness says:

“I put on all that I had (meaning brakes). He came on and tried to duck (avoid) me; but he turned his back, when lie cut to the right; that thro wed his back wheel front and the right side of my bumper caught his back wheel” about the center of the street; “after my car had caught him he pulled me about 15 feet down Fern Street”, and there the two cars stopped.

The usual discrepancy occurs concerning the speed of each car. Giving the defendant the full benefit of his own testimony, it is evident that both cars reached the intersection of Fern and Elm at about the same time, since, according to him, the collision took place in the center of the intersection. Under those conditions the plaintiff had the right of way and the defendant should have stopped to allow him to pass. Paragraph C of Section 7 of Ordinance 7490, p. 7, provides:

“On all other streets, and at intersections of right of way streets with one another, all vehicles approaching intersecting streets from the left shall give right of way to vehicles approaching from the right.”

Paragraph G of the same section reads as follows, p. 8:

“The right of way herein given shall not be construed to mean that vehicles may be driven through street intersections in a reckless manner or at a speed beyond control nor that they may take advantage of such right of way to drive through intersections regardless of the rights of vehicles on intersecting streets. The right of way given applies only where two vehicles approaching intersecting streets arrive at the intersection ■ at approximately the same time, and does not authorize the vehicle traveling on the right of way street to disregard the rights of vehicles which have already entered the intersection from an intersecting street.”

There can be no doubt that the defendant was traveling “at a speed beyond control”. He was driving a Ford touring car and with that lighter car and notwithstanding his brakes he knocked around a Ford half-ton truck, a heavier car, upset it, and demolished so many of its parts that it had to be carried to the shop. That is not contradicted.

That the plaintiff car had “entered the intersection” first, appears from the fact that the defendant struck it in the rear; but even if the plaintiff and the defendant “arrived at the intersection at approximately the same time” the defendant should have yielded to the plaintiff the right of way which he had under the ordinance.

We ^re satisfied that the judgment of the City Court is correct and it is therefore affirmed.


author: WESTERFIELD, J. BELL, J.

text:
    No. 9844.
    Orleans Appeal.
    BLATTMAN WEESER SHEET METAL WORKS, INC., v. CHARLES W. HARRIS, ET AL., Appellant.
    (January 19, 1925, Opinion and Decree.)
    (March 16, 1925, Judgment Reinstated.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Pleading—Par. 110.
    Material allegations of fact contained in the petition and not denied in the answer are taken as true:
    Appeal from First City Court, Hon. Henry Renshaw, Judge, Sec. “C”.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Scott E. Beer, attorney for plaintiff and appellee.
    G. B. Harrison, Eugene D. Saunders, attorneys for defendant and appellant.
   WESTERFIELD, J.

This is a suit against a contractor and his surety for the price of certain building materials purchased by the contractor and alleged to have been used in the construction of a residence under a contract for the performance of which the surety had issued its bond.

The contractor, Harris, made no defense and has not appealed from the judgment against him. The surety, Globe Indemnity Company of New York, in its answer, defended upon the ground that the plaintiff had failed to record its lien against the proper party within forty-five days of the acceptance of the work and that, therefore, the surety was released. This defense appears to have been abandoned, as it well might be, for see Panama Sash and Door Company vs. Deliste, 8592 Orl. App., and in this Court it is urged that plaintiff has failed to make out his case with sufficient certainty, which is the sole issue in the case.

Prom the judgment below condemning it in solido with its co-defendant, the Indemnity Company has appealed. Only one witness, Mr. Blottman, for plaintiff,. testified. He declares that he sold the material to Harris, the contractor, for use in the construction of the house, which was being erected under the building contract upon which the defendant Indemnity Company was surety, and that he had not been paid therefor. He was asked whether he had seen the contract between the owner and Harris and answered in the negative. Counsel claims that there is not sufficient proof that the materials sold by plaintiff and used by Harris, the contractor, were used in accordance with the contract upon which it was surety. No such issue is tendered in the answer and defendant has offered no testimony whatever. On the contrary the petition in which there appears an allegation to this effect is not denied in this regard.

We think the case is clearly with the plaintiff and that the judgment appealed from should be affirmed and it is so ordered.

ON REHEARING.

BELL, J.

This case is before us upon a rehearing granted under the contentions of the applicant for rehearing, the Globe Indemnity Company, that this court has erred in applying to the instant case the rule of pleading that material allegations of fact contained in .the petition and not denied in the answer are taken as true.

It is .contended that however sound be this rulé, it is inapplicable to the present case, for the reason that all allegations contained in plaintiff’s petition have been denied by the defendant (now applicant for rehearing), except what is admitted.by it, and that such admissions as may be found in defendant’s answer are of a na.ture which does not relieve plaintiff primarily from the obligation or necessity of proving certain material facts alleged in his petition.

While the rule as stated in the syllabus of our original opinion may have been too broadly applied in the instant case, because qualified denials have in fact been made in the answer based upon defendant’s insufficient information to justify a belief, we are nevertheless of the opinion that our former judgment is correct.

The important question before us is whether the plaintiff as a sub-contractor has proven with sufficient certainty the fact that the materials furnished to the contractor and owner under a building contract upon which defendant was surety, have been furnished within the terms of plaintiff’s contract sued upon. The plaintiff has proven with, certainty that its claim is against the contractor and surety in a specific amount for materials and work actually furnished the building. It is admitted by the defendant, the surety company herein, that the building in question was covered by a building contract to which it, as such surety, and also the owner and contractor are parties. It has been specifically proven and no evidence has been offered to the contrary that the work and material were furnished in accordance with the original contract between plaintiff and the defaulting contractor.

Defendant specifically pleads in the fifth paragraph of his unverified answer filed in these proceedings that plaintiff’s claim has prescribed,, in that the claim has not been recorded within the time required by Act 262 of. 1916. Although this defense, imputing an' admission of the claim, appears to have been abandoned, it is now contended that plaintiff cannot recover for lack of sufficient proof that the materials and work furnished were with relation to and within the specifications and all other conditions of the contract which existed between the owner and contractor and upon which contract defendant is surety.

The existence or not of these important facts is bound to have been more within the knowledge of the defendant than of the plaintiff, whose only witness has admitted under cross-examination that the plaintiff company has never been shown or advised of the contents of the contract under which the surety is now sought to be held liable. That defendant did not plead nor attempt to prove the defense which would have relieved it of all liability, raises a presumption that no such defense was available.

We have but recently held, in the case of Healey & Company, Inc., vs. Burglass, 8799 Orl. App., that when evidence which is peculiarly within the power of one litigant to produce in order that his cause or defense may prevail, has not been produced, the presumption is that it would be to his prejudice if produced.

In the instant case, plaintiff, a material man or sub-contractor, has assumed and carried the burden of proof imposed by law to establish his entire claim, in that he has shown delivery to the building and installation therein of exactly what the contract called for under specifications and terms.set out in said contract. Having established this proof, as well as the amount and timely recordation of his claim, and also the acceptance of his work by the owner, he was not. required in suit against the main contractor and surety to either allege or prove that such work was in conformity with specifications set forth in a contract to which he was never a party. That it was not within the requirements or specifications of the building contract, was a matter, if true, of special defense available to those who were parties to the building contract.

We see no reasons for changing our former judgment in this matter.

It is, therefore, ordered that the judgment of this court heretofore rendered be and the same is hereby reinstated.