text:
    No. 3015
    Second Circuit
    NAREMORE v. CADDO-DESOTO COTTON OIL COMPANY
    (March 14, 1928. Opinion and Decree.)

      (Syllabus by the Editor)
    1. Louisiana Digest — Master and Servant —Par. 159, 159a.
    Under Paragraph (d) 3, Subsection 1, of Section 8, and (d) 15 of Subsection 1 of Section 8 of Act 85 of 1926, the Workmen’s Compensation Law, where two of employee’s fingers were injured causing 50% disability, he will be entitled to compensation for ten weeks for each finger.
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo. Hon. E. P. Mills, Judge.
    Action by John L. Naremore against Caddo-DeSoto Cotton Oil Company, Inc.
    There was judgment for plaintiff and defendant appealed.
    Judgment amended and affirmed.
    Julius T. Long, of Shreveport, attorney for plaintiff, appellee.
    Wilkinson, Lewis & Wilkinson, of Shreveport, attorneys for defendant, appellant.
   ODOM, J.

Plaintiff brings this suit to recover compensation at $20.00 per week for 800 weeks under the Workmen’s Compensation Law as finally amended by Act No. 85 of 1926.

He alleges that while at work for defendant his hand was so injured by accident that he is now unable to do work of a reasonable character.

Defendant admitted, in answer, that it had paid plaintiff compensation at $20.00 per week for ten weeks, and especially alleged that it had paid him all the compensation due him.

There was judgment in the lower court for plaintiff awarding him compensation at $20.00 per week for thirty weeks, with credit for the amount already paid.

Defendant appealed, and plaintiff answered the appeal, asking that the judgment be so amended as to allow compensation for 150 weeks as fo)r the total loss of a hand, as provided in Paragraph (d) 5 of Subsection 1 of Section 8 of Act No. 85 of 1926.

OPINION

Plaintiff was employed as manager of defendant’s gin plant at Homer, Louisiana, at a daily wage of $6.00, .and while at work on September 4, 1926, got his right hand caught in the wheels or gin gearing. As a result, a part of the first phalanx of the little finger and all of the first phalanx of the ring finger on the right hand were cut off. The fingers were hot mashed or otherwise lacerated and there was no injury to the other fingers or to the hand.

Plaintiff testified that those parts of his fingers were cut “smooth off,” but the testimony of Dr. Sanderson and Dr. Crain tends to show that portions of these fingers were removed by a surgeon by an operation, but they say that plaintiff lost only the first phalanx of the ring finger and only a part of the first phalanx of the little finger.

Counsel for defendant contend that, under this testimony plaintiff is not entitled to any compensation, because the act does not allow compensation for the loss of one phalanx of any finger except the thumb, as was held in the case of Bell vs. Merchants Cotton Oil Co., 160 La. 585, 107 So. 436.

They call special attention to the following statement in the Bell case, supra:

“Our conclusion is that Subsection (e) does not allow compensation for the loss of only one phalanx of a finger, even though compensation for such injury is not provided for in any previous provision of the statute, and even though the case is one where the usefulness of a member, or a physical function, is seriously permanently impaired.”

But this case is governed by the compensation law as amended by Act No. 85 of 1926, which allows compensation for a permanent loss of the use of function of a member.

Paragraph (d) 15 of Subsection 1 of Section 8 of the new act reads:

“In all cases involving a permanent partial loss of the use of function of the member mentioned hereinabove, compensation shall bear such proportion to the amounts named herein for the total loss of such member as the disability to such member bears to the total loss of the member, provided that in no case shall compensation for an injury to a member exceed the compensation payable under this act for the loss of such member.”

The testimony shows that as a result of the injury to his fingers, plaintiff has suffered permanent partial loss of the use of function of two of his fingers, the little finger and the one next to it. In treating the wounds, the physician wrapped and bound the two injured fingers as well as the middle finger which was not injured, to a board which held them straight. They remained in that condition for about sixty days, until the wounds apparently healed. When the fingers were unwrapped and released from the board, they were stiff. When the case was tried in March after the injury in September, they were still stiff. Plaintiff could not close them so as to bring the tips of the fingers to the palm of the hand, and Dr. Sanderson and Dr. Crain both say that condition is permanent. They estimate that the loss of function of these fingers is fifty per cent, and that, from the explanation, seems reasonable to us.

Paragraph (d) 3 of Subsection 1 of Section 8 of Act No. 85 of 1926 reads:

“For loss of any other finger, or a great toe, sixty-five per centum of wages during twenty weeks.”

If plaintiff had suffered total loss of both his little finger and the one next to it, he would have been entitled to sixty-five per cent of wages for twenty weeks for each, or forty weeks for both. He did not lose these fingers, but did lose fifty per cent of the function of each. Applying paragraph (d) 15 of Subsection 1 of Section 8 of the act, plaintiff’s compensation—

“shall bear such proportion to the amounts named, hereinabove, (paragraph 3) * * * member as the disability to such member bears to the total loss of the member.”

The testimony shows that the disability to each of the two fingers is fifty per cent, so that plaintiff is entitled to ten weeks compensation for each finger, or twenty weeks in all.

We note that the District Judge allowed plaintiff compensation for thirty weeks, which indicates that he allowed for disability of the middle finger also. But that finger was not injured at all in the accident. It seems that it was bound up with the others and that as a result it was slightly stiff. But there is no testimony indicating that the stiffness will remain and there is no reason why it should. Dr. Sanderson made it plain that the stiffness of the other two fingers resulted from injury to the tendons. This does not apply to the middle finger, for it was not injured.

Counsel for plaintiff argues that this case falls under the ruling in the case of James vs. Spence & Goldstein, Inc., 161 La. 1108, 109 So. 917, where the court allowed compensation for one hundred and fifty weeks for an injury to the hand. We do not think so. The facts are quite different. In that case, plaintiff’s middle finger was perfectly, stiff and he could bend the others on that hand only sightly. He had inflammation of the covering of the bones of the middle finger and bone atrophy in all the fingers, and especially marked in the phanlanges of the middle finger. He was unable to grip anything, because all the fingers were involved, and he was for that reason incapacitated to do the only kinds of work he knew how to do, farming oi" carpentering.

.In the case at bar, there is no injury to the plaintiff’s thumb, forefinger or middle finger, and only partial stiffness in the other two fingers. He can bend the injured fingers so as to bring the tips to within one inch of the palm of the hand. Plaintiff says he is a carpenter by trade', although he was not working at that trade when injured, and that he cannot grip the handle of a carpenter’s tool. With the hand, the thumb, the forefinger and the middle finger uninjured, and with the other two fingers only partially stiff, we can see no reason why he should not be able to do that kind of work.

Eor the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from be amended so as to allow plaintiff compensation for twenty (20) weeks instead of thirty (30) weeks, and that in all other respects it be affirmed; costs of appeal to be paid by appellee, all other costs to be paid by appellant.


source: Caselaw Access Project

author: JONES, J.

license: Public Domain

text:
    No. 11,111
    Orleans
    QUINETTE v. BURK
    (January 30, 1928. Opinion and Decree.)

      {Syllabus by the Court)

    O. Louisiana Digest — .Costs and Fees — Par. ' 59, 60; Appeal — Par. 512.
    Damages for frivolous appeal will be allowed when taken merely for delay.
    Appeal from the First City Court, Section “A”. Hon. W. Alexander Bahns, Judge.
    Action by James C. Quinette against Mr. and Mrs. Joseph Burk.
    There was judgment for plaintiff and defendants appealed.

      Judgment affirmed, with damages for frivolous appeal.
    Weiner & Roos, of JSTew Orleans, attorneys for plaintiff, appellee.
    Van Burén Harris, of New Orleans, attorney for defendants, appellants.
   JONES, J.

Plaintiff sued defendants for one hundred forty-two and 65-100 ($142.65) dollars, balance due for florist supplies and garden work; attaching to his petition and making part thereof an itemized statement of the amount due.

Defendants filed a general denial.

The case came up for trial on June 21, 1927. Plaintiff and his attorney were present; the defendants were absent and unrepresented.

Judgment was signed on June 27, 1927, in favor of plaintiff and against only one of the defendants, namely the husband, Joseph T. Burk, for the amount prayed for by plaintiff.

Prom that judgment the defendant has prosecuted his appeal to this court.

The evidence is clear, and the plaintiff’s testimony is borne out by another florist, Mr. Otto Able, who stated that he had been a florist all of his life, and that the charges made by Mr. Quinette were fair and reasonable.

The plaintiff answered the appeal in this cause, and asked that ten per cent be awarded him in addition to the amount awarded by the court a qua, because the defendant’s appeal is frivolously prosecuted.

. As defendant has filed no brief and made no appearance in this court, it seems that the appeal has no merit and ten per cent damages therefore should be allowed.

It is, therefore, ordered, adjudged and decreed that there be judgment in favor of plaintiff, James C. Quinette, and against defendant, Joseph Burk, in the sum of one hundred forty-two and 65-100 ($142.65) dollars with legal interest from judicial demand and all costs with ten per cent additional as damages for frivolous appeal.


author: ODOM, J.'

text:
    No. 2468
    Second Circuit
    MERIWETHER SUPPLY CO. v. WHITTINGTON
    (March 14, 1928. Opinion and Decree.)

      (Syllabus dy the Editor)
    1. Louisiana Digest — Appeal—Par. 493.
    Where appellant does not argue or file brief and proceedings seem regular, the finding of the trial court will be affirmed.
    Appeal from the City Court of the City of Shreveport. Hon. David B. Samuel, Judge.
    - Action by Meriwether Supply Company, Inc., against T. P. Whittington.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.

      Blanchard, Goldstein & Walker, of Shreveport, attorneys for plaintiff, appellee.
    T. P. Whittington, of Shreveport, attorney for defendant, appellant.
   ODOM, J.'

Plaintiff brought this suit in the City Court of the city of Shreveport to recover of defendant the sum of $148.28, alleged to be due on open account for building material sold and delivered by plaintiff to defendant.

Defendant was duly cited and served, but so far as the record shows, made no appearance in Court.

Upon trial, there was judgment in favor of the plaintiff and against the defendant for the amount claimed.

Defendant appealed.

OPINION.

The only evidence we find in the record is a sworn, itemized account of the indebtedness, which was filed in evidence by the plaintiff. This account shows a balance due plaintiff of $148.28.

Since the appeal was lodged in this Court, the defendant has not appeared to orally - argue the case nor has he filed a brief. There is ample evidence in the record to support the judgment of the lower court. The proceedings seem to be regular, and we find no error in the judgment rendered.

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


author: CLAIBORNE, J.

text:
    No. 9683
    Orleans
    RICCOBONO v. KEARNEY
    (March 28, 1927. Opinion and Decree.)
    (Oct 31, 1927. Supreme Court judgment under Review annulled and set aside.)

      {.Syllabus by the Court)
    1. Louisiana Digest — damages—Par. 47, 48.
    It is the duty of a party to minimize the damages he may suffer from the wrongful act of another if he can do so by reasonable effort and moderate expense.
    2. Louisiana Digest — Landlord and Tenant —Par. 78.
    When a lessee abandons the premises leased the lessor may take possession of them and lease them for account of the lessee.
    Appeal from Civil District Court. Hon. E. K. Skinner, Judge.
    Action by Dominico Riccobono against J. J. Kearney.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    Theo. Cotonio, of New Orleans, attorney for plaintiff/ appellant.
    A. B. Leopold and Sanders, Baldwin, Viosca and Haspel, of New Orleans, attorneys for defendant, appellee.
   CLAIBORNE, J.

Plaintiff claims of the defendant $1925 for rent.

Plaintiff alleged that on May 1, 1923, he leased to J. J. Kearney the No. 3865 Gentilly Boulevard for twelve months commencing May 1, 1923, and ending April 30, 1924, at $175 per month payable monthly, for which said lessee gave his twelve notes; it was stipulated in said lease that “should said lessee at any time fail to pay said rent punctually at maturity, the rent for the whole unexpired term of said lease should at once become due and exigible” with ten per cent attorney’s fees; that the rent note due June 1, 1923, was unpaid, which caused the maturity of all the eleven unpaid notes amounting to $1925.

The plaintiff prayed for provisional seizure and for judgment for $1925 with interest and attorney’s fees.

For answer the defendant admitted signing the lease and the notes and his failure to pay the same; he averred that he leased said premises with “all the furniture and equipment contained in said premises as set forth and enumerated in an- inventory attached to the lease; that after he had paid the rent for the month of May he learned that the cash register in the (premises did not belong to the plaintiff, but was the property of the National Cash Register Co., and was by them removed on May 29th for the reason that there were due thereon two notes of $25 each; that after the provisional seizure the plaintiff caused to be removed from the premises all the soft drinks; that on May 17th the plaintiff caused to be removed from the premises a gas stove which was essential to his business, and compelled him to use a coal range.

During the trial it was proved that after the seizure the defendant abandoned the premises and that' the plaintiff rented the premises without consulting the defendant or giving him an opportunity to sublease them himself. The defendant contended that such action constituted a termination of the lease.

On April 21st there was judgment in favor of defendant rejecting plaintiff’s demand, and he has appealed.

On May 5, 1924, the plaintiff filed a petition averring that since the defendant had abandoned the leased premises he had leased the same to other parties from September 10, 1923, to April 30, 1924, the date of the expiration of the lease, and that he collected rents from said premises for that period of time amounting to $871.88 for which he entered a remittitur.

The facts of the case are that the plaintiff was in the soft drink and restaurant business at 3865 Gentilly Boulevard; that wishing to retire from the business there he employed Generes and Ganucheau, real estate agents, to lease his place; these agents procured the defendant, they leased to him the building and the contents of the soft drink establishment consisting of knives, forks, plates, glasses, tables and. other accessories of the business, of which a list was made for the price of $175 per month; there were on the premises an electric sign, a cash register, an ice box, and a piano, bought by plaintiff on time, upon which he had made partial payments; it was agreed that the defendant was to pay to the plaintiff the amounts which the plaintiff had paid on account of those four articles and to assume to pay the installments still due the amount of which was to be ascertained later, and at the expiration of the lease the plaintiff was to reimburse to the defendant one-half of the amounts paid by the lessee on account of the four articles mentioned above.

In accordance with these preliminary arrangements the lease sued on was committed to writing.

The clauses concerning these four articles read as follows:

“The lessee agrees to pay the following amounts for the articles of equipment hereunder enumerated and agrees to pay promptly the installments still due on said articles of equipment when same fall due.
“Amounts payable in cash to lessor:
Electric sign ___________________________‘----------------$150.00
Cash register __________________________________________ 175.00
Ice box ................................ — ................... 96.00
Piano _____________________________________________________ 105.00
Total __________________________________________$526.00
“Lessor agrees to reimburse the lessee upon the expiration of this lease ;;; * * one-half, of the amounts paid by the lessee on account of the articles of equipment hereinabove set forth.”

Accordingly the defendant gave to the plaintiff his check for $701, composed of the above sum of $526 and of one month’s rent of $175, and went into possession of the premises and movables leased.

When the National Cash Register Co. called for an installment of $25 due for a month anterior to his purchase the defendant failed to pay it and the Company removed the register without protest on defendant’s part. He had another register of his own on the premises. He thereafter failed to pay his rent.

Hence this suit.

He bases his refusal to pay the rent on two grounds:

1st. Because the Register Company removed the register and,

2nd. Because the defendant removed a stove.

The Company removed the register because the defendant did not pay the installments due.

These installments he had assumed to pay and it was his failure to pay them | which brought about the removal. He cannot visit his fault upon the plaintiff.

But even if it was the duty of plaintiff to pay the installment and he refused to do so, the defendant should have paid it to minimize his loss, the more so as the lease was ample to protect him.

In the case of Tardos vs. Rrd., 35 La. Ann. 15, the plaintiff asserted a contract with the defendant for a low freight rate which the defendant refused to recognize and claimed more freight.

On defendant’s refusal to accept the reduced freight, the plaintiff abandoned the goods and afterwards sued for damages. The Court held that the defendant should have paid the freight claimed and then sued to recover it.

Said the Court:

“Equity as well as law, abhors the idea that a man who, by the payment of $58, could escape all injury, may quietly sit down and suffer damage to the extent of $1900, and then claim this enormous sum from a, third (person without even notifying him of the injury or giving him the opportunity to avert the damage.”

Beers vs. Bd. of Health, 35 La. Ann. 1132; Armistead vs. Shreveport & R. R. Valley Ry Co., 108 La. 171, 32 So. 456; Chattanooga Car & Foundry Co. vs. Lefebre, 113 La. 487, 37 So. 38; Donovan vs. New Orleans Ry. & Light Co., 132 La. 239, 61 So. 216; New Iberia Sugar Co., Ltd., vs. Lagarde, 130 La. 387, 58 So. 16; Airey vs. Pullman Palace Car Co., 50 La. Ann. 648, 23 So. 512; Curl vs. Bond, 52 La. Ann. 1052, 27 So. 577; Carr vs. Miller-Morris Canal, Irrigation & Land Co., Ltd., 105 La. 239, 29 So. 715; 4 Orl App. 111; 13 Cyc. 71; 1 Sedgwick, S. 93, p. 165; 2 Greene Ev., S. 261.

The law does not favor the abrogation of leases. Denman & Co. vs. Lopez & Co., 12 La. 823.

2nd. The stove was not a part of the articles leased; it was not upon the list. It belonged to a third person who removed it.

3rd. The last defense is that taking possession of the leased premises after defendant had abandoned them, and leasing them to a.third party without defendant’s consent amounts to an acceptance of the premises and releases the lessee.

In support of this proposition the defendant quotes 35 C. J. 1093.

It finds no echo in the jurisprudence of our State. On the contrary our Courts have decided that:

“Where a lessee abandons the premises the lessor may collect the rent due from subtenants and procure new ones for the former’s benefit; and where he has never refused to give the lessee the premises on his complying with the lease, such acts will not cancel the lease, and the lessee will be bound for the difference between the rent and that received from the subtenants.” 11 R. 101; 2 N. S. 453; L. D. 369, No. 5; Sargent vs. Slatter, 6 La. Ann. 72; Reynolds vs. Swain, 13 La. 198; (O) Succession of Jno. O’Loghlen, 27 La. 364; Vincent vs. Frelich, 50 La. Ann. 378, 23 So. 373; Bullier vs. Huppenbauer, 23 La. Ann. 339, (O); Penn vs. Collins, 5 Rob. 213, (O); Orr & Laubenheimer Co. vs. Wilson & Co., 48 La. Ann. 1313, 20 So. 724; Ledoux vs. Jones, 20 La. Ann. 539; Parker vs. Alexander, 2 La. Ann. 188, (O), 187; Wolf vs. Cuccia, 144 La. 336, (80 So. 581); Looram vs. Burlingame, 16 La. Ann. 199, (O) — 198; Johnson vs. Meyer, 36 La. Ann. 333, (O) — 333; Smith vs. Haas, 36 La. Ann. 413, (O) — 413; Looran vs. Burlinggame, 16 La. Ann. 199, (O) — 198; O’Kelly vs. Ferguson, 49 La. Ann. 1230, 22 So. 783; Schleider vs. Deilman, 44 La. Ann. 462, 10 So. 934; Meriwether vs. Dorrity, 158 La. 405, 104 So. 187; 11 Orl. App. 297; 7 Orl. App. 426.

In Hyman vs. Hibernia Bank, 144 La. 1085, 81 So. 718, the Court said:

“Again it has been held that the abandonment by the lessee of the leased premises has the effect of maturing the whole amount of the rent under the lease.” Christy vs. Casanave, 2 Mart. N. S. 453; Holder vs. Tanner, 6 La. Ann. 75.

It is therefore ordered that the judgment appealed from be reversed and set aside; and it is now ordered that the plaintiff Dominico Riccobono have judgment against the defendant J. J. Kearney for the sum of one thousand nine hundred and twenty-five dollars with eight per cent per annum interest upon that sum from June 1, 1923, up to April 30, 1924, subject to a credit of eight hundred and seventy-one 88-100 dollars on said April 30, 1924, and a like interest of eight per cent upon the remaining one thousand and fifty-three 12-100 dollars from May 1, 1924, till paid; together with ten per cent attorney’s fees on said principal of one thousand nine hundred and twenty-five dollars and upon the interest above mentioned, the whole with lessor’s privilege and maintaining the provisional seizure issued herein.


text:
    No. 9946
    Orleans
    ANGERMEIER v. GIARRATANO
    (November 14, 1927. Opinion and Decree.)

      (Syllabus by the Court)
    1. Louisiana Digest — Appeal—Par. 625.
    As only questions of fact are involved and there is no manifest error in the decision of the trial judge it is affirmed as to liability.
    2. Louisiana Digest — Damages—Par. 104.
    An award of three hundred dollars is sufficient as damages to an adult woman who suffered a bruise on the left shoulder, caused by a plank falling from a neighbor’s house, when she did not consult a physician for eight days and never complained to the neighbor and there was no permanent injury.
    Appeal from Civil District Court, Division “A.” Hon. H. C. Cage, Judge.
    Action by Mrs. Julia Angermeier, widow by first marriage of Bernard Graff and wife by second marriage of William Ger-chow, against Jos. Giarratano.
    There was judgment for plaintiff and defendant appealed.
    Judgment amended and affirmed.
    Henry B. Curtis, of New Orleans, attorney for plaintiff, appellee.
    Theo. Cotonio, of New Orleans, attorney for defendant, appellant.
   OPINION.

JONES, J.

Plaintiff sues for one thousand, five hundred sixty-one and 90-100 ($1,561.90) dollars, damages itemized as follows:

Physical pain and mental suffering caused by blow ________________________________$ 750.00

Resulting injury and loss of health 750.00

Physician’s bill and medicine________ 161.90

$1561.90

Plaintiff alleges that she was struck and severely bruised about neck and shoulders by a plank falling from defendant’s house, while she was conversing with him in the alleyway between their two homes on December 21, 1923, at 4 p. m.; that the plank was twelve feet long, six inches wide and one-half inch thick and struck petitioner so violently that she was unable to continue the interview; that the falling of the plank was due to defendant’s negligence and that the injury caused her to remain in bed for a week in January, 1924,' to consult a physician from time to time up to the filing of this suit, June 30, 1924, and that she was still suffering from pain in the back, dizzy spells and was unable to lie on her back without pains.

Defendant admitted the falling of the plank from his house at the time of the interview, but denied that it struck plaintiff and averred that the filing of the suit against him was prompted by a desire to harass him, because he had shortly before filed suit against her about a right of passage through the alleyway.

The judge of the lower court found against defendant on.the question of negligence and gave judgment in favor of plaintiff for seven hundred and fifty ($750.00) dollars.

In his reasons for judgment he states that he did not believe the doctor would ever send her a bill for his services and that her testimony as to cost of drugs was too vague to permit recovery.

There was only two witnesses to the falling of the plank, plaintiff and defendant. The former swears positively that it struck her, the latter somewhat hesitantly that it did not.

Defendant further swears that she made no complaint at the time and in fact had never made any to him and plaintiff admits these charges.

However, the attendant circumstances seem to support the conclusion of the trial judge and as careful consideration of the entire evidence reveals no clear error in his decision, we hereby affirm it as to liability.

As the plaintiff did not consult a physician for eight days after the accident and as the evidence is by no means conclusive as to her having been confined to her home or having lost any time from her occupation at the Charity Hospital as a practical nurse, and as there is' no permanent injury, we think the amount awarded should he reduced to three hundred ($300.00), an amount more consonant with awards of this Court in somewhat analogous cases.

Banister vs. City of Monroe, 4 La. App. 182.

Greer vs. Hamilton, 3 La. App. 120.

Hampton vs. Northwest R. R. Co., 2 La. App. 171.

Becker vs. I. C. R. R. Co, 2 La. App. 745.

Boulin vs. Bradley, 1 La. App. 260.

For above reasons the judgment is amended to read as follows:

It is ordered, adjudged and decreed that there be judgment in favor of plaintiff, Mrs Julia Angermeier, by first marriage widow of Bernard Graff and by second'marriage wife of William Gerchow, and against defendant, Jos. Giarratano, for the full sum of three hundred ($300.00) dollars, with legal interest from judicial demand.


text:
    No. 10,486
    Orleans
    BURNETT, Appellant, v. NEW ORLEANS PUBLIC SERVICE INC.
    (January 2, 1928. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Street and Interurban Railroads — Par. 34.
    The plaintiff rests her case upon two propositions:
    1st. That the car was started while she was upon the steps in the act of descending, and,
    2nd. That the automatic steps were raised while she stood upon them, and her foot was thereby caught in the doors as they closed.
    Held: The first proposition is not established with sufficient certainty to entitle plaintiff to a judgment, and the second is impossible as defendants’ evidence shows.
    Appeal from Civil District Court for the Parish of Orleans. Hon. Porter Parker, Judge.
    Action by Rebecca Burnett, wife of Dallas West, against New Orleans Public Service Inc.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Norman, Breckwaldt & Schwartz, of New Orleans, attorneys for plaintiff, appellant.
    Benjamin W. Kernan, of New Orleans, attorney for defendant, appellee.
   CLAIBORNE, J.

The plaintiff having suffered an injury in descending from a car of the defendant company sues it for damages.

She alleged that on January 24th, 1925, at about 8:20 P. M., she was a passenger in -one of defendant’s cars; that while in the act of leaving said car she had placed her left foot in the step to descend upon the street, but before she could take another step with her right foot, the conductor rang the bell for the motorman to start, and began pulling on the folding doors before she had cleared the platform with her right foot; that the operation of closing the doors also lifted the step; that the step being pulled upward by the -conductor and the. sudden starting of the ■car threw her forward, and the folding doors caught her right foot causing her to . fall' forward on her knees and front portion of her body; that she was unable to rise after her fall and had to be as-sisted by two pedestrians; that she was un'able to walk and was carried to her home; .that 'she weighs 215 pounds, and since the accident has been unable to leave her bed or stand upon her legs at all and that she is informed it will be a long time •before she will recover; that she suffered contusions and bruises of her knees and hip and internal injuries in her abdominal .regions; that her injuries were caused “by the deliberate, malicious, wanton, wilful, and unlawful action on the part of the -defendants’ employees”; • that it was the duty of said employees to permit plaintiff sufficient time to disembark from the car and not to start the 'car or to close said doors and raise the mechanical step before plaintiff had had an opportunity to safely •get upon the street; for all of which plaintiff claims $5000 damages.

The defendant ■ denied all charges of negligence and liability, and averred that a car of the Freret Street Line stopped on Erato street between Saratoga and Rampart, and while the car was so stopped the plaintiff alighted from it and in so doing'-fell; that her fall was due to her •awkwardness in alighting from the ear or from- the character of the shoes which she. wore and her failure to exercise due care,:

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

The plaintiff introduced five witnesses.

Victor Jones testified that the accident happened between eight and half-past eight P. M. in the center of Erato street, between Rampart and Saratoga streets, from a Freret street car; the rear of the car was about 150 feet from Rampart street; in the statement he gave (plaintiffs’ attorney the number of the car as 965. There were two cars in front of the Freret car; the nearest to it was the Louisiana Avenue and the next the Clio car; he was in his automobile about 20 feet behind ' the Freret car; he was somewhat to the right or uptown side of the street where passengers are discharged; six or eight passengers got off of the car; plaintiff was the last person to leave the car; he explains the accident as follows: “When the ear moved off, it threw her; the conductor closed the door and one of her feet was caught in the step of the car, which threw her into the curbing in the street near, the curbing”; he does not know which foot; he took the names of several witnesses who saw the accident, and then took the plaintiff home in his car; at the time of the accident witness was employed as a federal prohibition agent; he never saw her since .the accident; when the plaintiff’s shoe was taken off, it was mashed from the rear; he got the names of Lem Harris, Palmyra George, Johnny Jones, Frank Howard, who were standing on the sidewalk, which is about four feet from the car track; he saw plaintiff’s foot caught in the 'ptep; it seemed that way to him; after the plaintiff fell the car moved about three feet and stopped; one foot was on the step and the other near the pavement; she was standing on the step when the conductor closed the door; before she could get her foot off it was caught in the step. He saw Palmyra, who was sick, on the morning of the trial.

Lem Harris was standing about 20 feet from the rear entrance of the car waiting to take it; as the plaintiff was getting off the car, it moved and it seemed that the plaintiff got hung or hooked on something, he did not see what, and she fell; “they didn’t have no light around there;” she did not draw his attention when she was on the steps; only when she fell; the doors were coming up as she was getting down; he did not see her feet caught in the step; he could not tell whether it was her feet or her dress, plaintiff fell straight out; her head was .toward the curb and her feet were towards the car track; for the steps to close they have to go up.

Frank Howard did not know the name of the plaintiff, did not know her and never saw her before the day of the accident and does not know her now; he knows there were a couple of cars ahead of the one on which the accident happened, but does not know what line of cars; he had just crossed Erato street .behind the car about 12 feet when the woman fell; her head "was towards the river, and her feet partly towards the car; when he saw her she was falling; he did not see her feet in the step; he was not looking for that; if she had not fallen he would not have noticed her; “for her to come down off the car she must have put her foot on the step. I don’t suppose she tried to step from the platform down to the pavement”; not paying much attention he does not know whether the car was at a perfect stop or just moving before he saw her fall; he knows “the car came to a stop after she was finished falling off the car”; it moved a couple of feet; he did not hear any bell; after she fell he noticed the doors were wide open; he is carman for the Illinois Railroad; he left as soon as the plaintiff was carried off in an automobile; Johnny Jones asked his name as a witness; Jones works for the railroad; he has known him for ten years; Jones was a witness to the accident; witness - lives at 1206 Saratoga street in the block between Saratoga and Rampart; he “had crossed from the lower side of Erato to the upper side of Erato behind the street car just as the car was passing him”.

“Q. As you got to the upper side of Erato street, the car stopped and your attention was attracted by the woman falling?
“A. Exactly.”

He was going towards Rampart street. Street lights threw a dim reflection on the scene; he saw no portion of the woman’s body or dress entangled in the car.

Johnny Jones said there were two cars ahead of the one on which the accident happened, the Clio, the Louisiana Avenue and the Freret; he was passing by and stopped; the cars were blocked and that caused him to stop ánd see what was the trouble; when he saw that it was a lady who had fallen off the car he thought it might be his wife; he got there before the accident about five minutes; he was ten feet from the accident; “there was passengers getting off the car, and this lady when she went to get off the car, the car moved, so she fell”; she had her right foot on the step, her left foot was on the ground; and the car moved as she fell; the woman fell when the car was moving and the conductor closed the door; when she fell her head was uptown and her right feet hung on the car step or “one of her feet”; Victor Jones helped to pick her up; when he got to the middle of the block all the three cars were there,, there was a blockading of the three cars; when he saw the plaintiff falling she had her right foot on the step and her left foot on the ground facing uptown; her “feet was caught in the step;” when she stepped from the platform to the step the car was standing still; she had one foot on the step and one on the ground; the point of her shoe near the right toe was hung in the car; her feet were towards uptown; her face was facing uptown; her feet were facing “towards Saratoga, the rear of the car, towards Saratoga going towards Rampart”.

Palmyra George was at the corner of Erato near Rampart waiting for a car, about 50 feet from the corner; when she got there, there were two cars standing, the Louisiana and the Clio, and afterwards the Preret car came in, in which the plaintiff was; there was no automobile behind the Preret car; “just as she (plaintiff) stepped down out of the car she had one foot down to the ground and the other was still on the step, and they closed the doors then, the steps, the spring steps, and her foot got caught”; the car was moving, it moved about five feet; the conductor gave the bell and the car started off before she was off the steps; then of course he opened .them (the doors) “to keep her from dragging”; her foot was caught; the doors “wasn’t exactly closed not with her foot being caught in it”; she did not see whether it was in the door or in the step; she did not go up to see where her foot was entangled; there were so many people around, she could not see; she could not_ say which way her head was facing when she fell; she was not noticing that nor her feet; when she fell one foot was on the ground and the other was hooked in the step; she does not know Victor (Tones; and does not know who gave her name as a witness; this is the second time she has seen the plaintiff; the Louisiana Avenue and Clio cars had gone before the Preret car stopped; her toe was caught; could not say whether it was the right or left foot; she did not see Lem Harris nor Johnny Jones.

The plaintiff testified as follows:

“I got out of the car on the left-hand side, and just as I got up to get out, I stepped on to the step; I put my right foot down and the car moved and he caught the left foot into the step; just as I stepped off of the car, I put my right foot on the step, then the left; then I stepped down to the ground with the right, and just as I went to step with the left foot the car moved, and I fell, and the ‘left’ foot caught into the step;” she then produced the shoe; but it happened to be the right shoe; she then testified that it was the “right” foot which was caught in the step; Victor Jones took her home; she did not know him before; she weighed 215 pounds; she paid $6.38 for drugs; Dr. Potts treated her for two months, for which he charged $40, and during which she remained in bed, and she suffered pains for six months; af, the time she was thrown off the car she had not cleared it; her left foot was still upon it; she is 26 years of age; as she came out upon the platform to go out the car was still moving; the car stopped and the conductor opened the door; she stepped out on the front or left-hand side of the road and was not holding on to anything; she stepped from the platform to the step with her left foot, and then with the right on the step too; so that she was standing on the step with both feet, then she reached the ground with her right foot before the doors were closed or the car started; just as she put out her left foot to step upon the ground the conductor pulled the car off and that caused her to fall; then he raised the door and caught her right foot in the car; her right foot got to the ground before the doors were closed; she did not know Palmyra Jones and does not know how she became a witness; she did not know Victor Jones before tbe accident; he got the names of the witnesses for her and brought her to her attorney in this case; just about a half-inch of her toe was caught in the step.

If the testimony of the above witnesses was the only evidence in the case we would fail to be convinced that the plaintiff had made out a case. The testimony of her witnesses is conflicting, contradictory, impossible, and unreliable, and such was the opinion of the district judge. The plaintiff rests her case upon two propositions: 1st. That the car was started while she was upon the steps in the act of descending; and 2nd. that the steps were raised while she stood upon them, and her foot was thereby caught in the doors as they closed. The first proposition is not established with sufficient certainty to entitle plaintiff to a judgment, and the second is impossible as defendant’s evidence shows.

The defendants put a government official upon the stand as a witness and proceeded to' ask him whether Victor Jones had resigned the service or whether he had been dismissed. The official testified that he was not permitted to testify as to any of the facts as to why Jones left the service or whether he resigned or was dismissed; only that “he severed his connection with the government on January 25th, 1925”. The defendants did not examine the witness further.

Henry Gonzales was attending the dental college of ' Loyola; he was on the back platform of the street car from which the accident happened; he said: “This colored woman told the conductor to stop the ear to get off; so the conductor did so, and this colored woman got some bundles in her left arm and she tried to get off the car, and to my opinion she made a misstep and fell.”

“Q. Was the car moving when she fell?
“A. No, sir.
“Q. Did it move just at the time she was getting off?
“A. No, sir.”

Elijah Lawson is a longshoreman; he was standing on Erato street about the distance of two cars from the corner of Rampart; he was waiting for the Preret car; when it came, he walked right back of it before the door was opened; when the door was opened, the plaintiff stepped out; nobody else, and she fell; the car was standing still; he saw no automobile back of the car; the conductor and another man helped her up; he did not see Victor Jones there; he saw no white person on the platform; nor any colored woman waiting for a car; the plaintiff fell from the step off the car; he saw her shoes; they were high heels, low quarters; “from the looks of them in the dark, in the half light they was shining like they was new.”

Joseph Barnes is a window cleaner for the Guarantee Window .Cleaning Company; he saw the accident; he was on the uptown side of the banquette on Erato street between Saratoga and Rampart; there were two cars there; he was behind the Preret car; the car was already stopped when he got there; he saw the plaintiff when she fell from the car, and he helped the conductor to sit her on the curb of the banquette; the car was stopped when she fell; he did not see anyone come up and offer to take her home in an automobile; the door was open while she was falling; they were not being closed; she no sooner fell than the conductor was out to assist her up.

Arthur Bordelon was the conductor of the car from which the accident happened; his car stopped about two car lengths from Rampart street; the plaintiff came to him and said she wanted to stop; so he opened the safety doors and let her out; as she was getting <off she fell; he got off the car and assisted her up and she sat down on the curbing; he did not close the doors on her as she was getting out; Joseph Barnes, a colored man, helped him to raise up the plaintiff after she fell; it was a safety door car, the doors open and close automatically by air, by means of a little bit of a lever turned on either side to close or open; he did not ring a bell for the motorman; the motorman is not supposed to start unless the conductor gives him two bells; he saw only one passenger get off and that was plaintiff; as the plaintiff was getting off of the step she fell; he made his report of the accident “as she was getting off she fell off”; when anybody is standing on the step of the car with any weight at all the safety step cannot be raised, because he tried it himself; he can hold it down with one finger; “you can turn the lever and put the air on to close the door and I will hold the door or the step with one finger and stop it from closing”; he tried it in his car already in the barn; people told him that if you put your hand in the door and let it close on you, it hurts you, and some said, “No, it doesn’t hurt you”; and he tried it, and he let somebody else put the air on and let them close the door and the step; they both close at the same time.

Marshall O’Quinn was motorman for defendant company; he stopped his car two lengths from the corner of Rampart and Erato with the Louisiana Avenue car ahead of him; after that car had moved out, he received no signal to move on, and looking around the side of the car to see what the trouble was, he noticed the conductor on the outside on the ground with a pencil in his hand; he stepped out of his car and went back and found a woman sitting on the curb; he made only one stop.

The testimony of plaintiff’s witnesses would have carried more weight had they not attempted to prove that while plaintiff was standing upon the steps, they were lifted by the air mechanism, which has been shown to be impossible. Their failure to establish that discredits their testimony when they attempt to prove that the car started prematurely.

In the case'of Chester vs. N. O. Public Service, No. 151,260 of the District Court and No. 9712 of this court, the allegation was that, “when petitioner was on the step of said car, the doors having been opened, and in the- act of stepping off said car, and when she was about placing one foot on the ground and had the other foot on the step of said car, and before she had time to get off safely from said car, the conductor closed the folding doors of said car, and the raising of the step of said car while the folding doors of said car were being closed, while petitioner was on the step of said car caused petitioner to be violently pitched to the ground below and injured painfully and seriously”; that petitioner was thrown to the ground due to the careless handling and raising of the step of said car and the closing of said car and the closing of its folding doors; that said conductor “deliberately started the car while petitioner was on the step of said car, before she had time to get off safely and injured her as stated herein”; that petitioner sustained said injuries through the gross carelessness of defendants’ employees “in starting the said car prematurely, by raising the step of said car while she was in the step thereof, likewise the closing of its folding doors”.

The conductor in that case testified that he did not, and that he could not, raise the steps with the weight of a person on the step. There was judgment for defendant in the District Court by a different judge from the one in this case, which judgment was affirmed by this court in the following language:

“The charges of negligence are: 1st. That while plaintiff was alighting from the car ■ of defendants’ Carondelet street line at Broadway and Spruce streets the conductor closed the folding doors and raised the step, thereby throwing her to the ground; 2nd. That the car was started and the step raised while she had one foot on the step.”

The district judge rejected plaintiff’s demand on the ground that he had failed to make out a case.

This court affirmed the judgment, and a writ was refused by the Supreme Court. See Opinion, Book 72.

We see no error in the judgment appealed from and it is therefore affirmed.


text:
    No. 10,095
    Orleans
    PARKS v. CILLUFFA
    (February 13, 1928. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Bills and Notes — Par. 44.
    A promissory note which has for its consideration the payment of a deposit to bind a sale made “for cash through homestead” is null and cannot be enforced by the original holder, when the sale has failed.
    Appeal from the Civil District Court. Hon. H. C. Cage, Judge.
    Action by Harry T. Parks against Anthony Cilluffa.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed.
    Walter G-. Wedig, of New Orleans, attorney for plaintiff, appellee.
    Theo. Cotonio, of New Orleans, attorney for defendant, appellant.
   CLAIBORNE, J.

This suit is upon the following promissory note:

“$800
“New Orleans, La., September 4th, 1923.
"Forty-five days after date I promise to pay to the order of myself at New Orleans, Louisiana, eight hundred and 00/100 dollars for value received with interest at the rate of eight per cent per annum from maturity until paid.
“Signed: TONY CILLUFA.”

The defendant admitted having signed the note sued on, but averred “the truth to be that plaintiff obtained said note through fraud, error, and misrepresentation, without any consideration whatever, and that at no time did plaintiff give to defendant the sum of $800 or the equivalent thereof; that at the time of the execution of said note respondent signed an agreement which had been drawn by the plaintiff, reading as follows:

“New Orleans, La., Sept. 4th, 1923.
“I, Anthony Cilluffa, hereby agree to purchase from H. D. Parks, the properties Nos. 531-33 and 35 S. Cortez Street, measurements as per title for the sum of eight thousand dollars and deposit with the said. H. D. Parks my note for eight hundred dollars payable 45 days after date to bind the sale, which is to be part payment of the purchase price. Sale for cash through homestead.
“Signed: TONY CILLUFFA.
“I accept the above offer.
“Signed: H. T. PARKS.”

On April 6, 1925, judgment was rendered in favor of plaintiff.

The defendant filed an application for a new trial upon the following grounds, among others:

“1st. That the Court failed to pass upon the issue of want of consideration;
“2nd. * * *. 3rd. * * *. 4th. That there being no agreement of sale which can be enforced there is no consideration, and the Court, because of such want of consideration, should have rendered judgment in favor of defendant.”

The new trial was refused and defendant appealed.

The plaintiff, examined as a witness, admitted that the signature to the above document was his and that the note mentioned therein and filed herein is the note sued on, and that he. did not give the defendant $800 in cash money for the note; he also testified that the defendant agreed to purchase the property for $8000 and furnished the note for $800 or ten per cent to bind the sale, and as part payment of the purchase price.

The defendant offered in evidence the document mentioned in his answer dated September 4, 1923.

On February 28, 1927, in the case of Titus vs. Jackson, reported in 7 La. App. 37, this Court decided:

“A contract to buy and sell real estate under which the buyer agrees to buy subject to homestead loan enables the buyer to prevent or hinder the happening of the event upon which his obligation depends and is therefore void as containing the potestative condition.” 114 So. Rep. 86.

In that case the plaintiff, Titus, offered to buy real estate from the defendant, Mrs. Jackson Cunningham. His offer was accepted and he deposited $750 with defendant’s broker who delivered it to the defendant.

Titus failed to consummate the sale notwithstanding default, and Mrs. Cunningham sold the property to another buyer. Titus then sued Mrs. Jackson Cunningham for the return of his deposit. This Court said:

“The agreement resulting from Mrs. Cunningham’s acceptance of Titus’ offer is not an absolute one but conditional because it contains the phrase ‘subject to homestead loan.’ Plaintiff offers to buy defendant’s property for $750.00 cash and upon other terms sufficiently definite ‘subject to homestead loan’.”

The Court then proceed to declare that such terms create a potestative condition which renders the obligation null “on the part of him who binds himself” under Articles 2034 and 2024 of the Civil Code. The two cases of Titus and the one under consideration are identically the same, in principle. If Titus could recover from Mrs. Jackson the money he had deposited in her hands on the ground that it lacked consideration and was not due (C. C. 1893, 2133, 2301) a fortiori, can Cilluffa refuse to pay to Parks a note the consideration of which is declared by law and. jurisprudence to be null? We must adhere to our opinion in the Titus case until it is reversed by the Supreme Court.

In justice to our learned brother of the District Court we must state that the Titus cash had not been decided by this Court at the time he rendered his judgment herein

The judgment herein is reversed and annulled and it is now ordered that there be judgment against the plaintiff herein, Harry T. Parks, rejecting his demand at his cost in both Courts.


text:
    No. 11,076
    Orleans
    SURETY COLLECTION CO v. FINE
    (January 2, 1928. Opinion and Decree.)

      (Syllabus by the Court)
    1. Louisiana Digest — Bills and Notes— Par. 243.
    The judgment is affirmed without comment as it is a suit on a promissory note and there is no defense in either Court.
    Appeal from First City Court, Division “B.” Hon. Yal Stentz, Judge.
    Action by Surety Collection Co. against H. R. Fine.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    T. J. Dobbins, of New Orleans, attorney for plaintiff, appellee.
    H. R. Fine in P. P. Jas. J. Cullinane, of New Orleans, attorney for defendant, appellant.
   JONES, J.

Judgment below was given by default on a promissory note, after legal service and necessary delay. In this Court there has been no argument and no brief.


text:
    No. 10,122
    Orleans
    KLING v. MALONEY
    (December 12, 1927. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Landlord and Tenant Par. 45; Appeal — Par. 625.
    Abrogation of leases is not favored except in extreme cases and where there is no manifest error of- the trial judge on the question of fact as to defects in the rented house, the judgment will be affirmed.
    Appeal from the Civil District Court, Division “A”. Hon. H. C. Cage, Judge.
    Action by Mrs. Edna M. Kling, et al., against Mrs. W. C. Maloney, et al.
    There was judgment for defendant and the plaintiff appealed.
    Judgment affirmed.
    Joseph H. Brewer, of New Orleans, attorney for plaintiff, appellant.
    M. C. Scharff, of New Orleans, attorney for defendant, aippellee.
   JONES, J.

On October 13, 1923, the plaintiff, Mrs. Kling, as agent of her husband, leased from the defendant, Mrs. Maloney through Matthews Brothers, as agents, half of a double house in the City of New Orleans, designated as No. 2264 Carondel'et Street, for the term of eleven and one-half months, commencing on October 15, 1923, at a monthly rental of forty dollars ($40.00) per month. This lease was in writing and is filed in the record as a part of the plaintiffs’ petition.

Plaintiffs, that is Mrs. Kling and her husband, allege in their petition that, at the time Messrs. Matthews Brothers, as agents of the defendant, Mrs. Maloney, rented the premises to Mrs. Kling, they represented to her that the premises were in good condition and repair and were fit for human occupation as a residence, and that these representations were false and fraudulent, as it subsequently developed that the plumbing was out of order, and the roof leaked causing damage and inconvenience to the ¡plaintiffs, and despite their demands for repairs, neither Matthews Brothers nor the owner, Mrs. Maloney, gave the matters attention, and that by reason thereof the plaintiffs are entitled to a cancellation of the lease and a return of the immatured rent notes.

Both the owner of • the leased premises, Mrs. Maloney and her agents, Matthews Brothers, were made defendants, and each of these defendant filed exceptions of no cause of action. The exceptions of Matthews Brothers were maintained and those of Mrs. Maloney overruled. The cause was tried upon its merits and from a judgment in fayor of the defendant, dismissing plaintiffs’ suit as in case of non-suit, at their cost, the plaintiffs prosecute the present appeal.

Plaintiffs and two roomers swear that the roof leaked so badly in a room downstairs and one upstairs that they had to place pans to catch the water, but the paper and plastering was ruined. A neighbor and two visitors confirm above wit- . nesses to the extent of saying that they saw during a rain, pans on the floor of these two rooms (presumably placed there • to catch the dripping water); they differ somewhat as to where these pans were placed and how bad the leaks were.

When this case was tried on April 29, 1925, one of plaintiffs’ witnesses, Rigny by name, testified that he had moved into the premises on September 1, 1924, was still living there and during the entire eight months there had been no leaks whatever.

Miss Maloney, agent for her mother, testified that no repairs had been made to the roof since plaintiffs moved out in May, 1924.

Buhler, a paper hanger, testified he had papered the downstairs rooms, one of which was said to be .the worst for leaking, in the summer of 1924 after plaintiffs moved out, had removed the paper, which was at least five years. old, but had seen no signs of discoloration by leaks anywhere.

A roof repairer swears he repaired the roof on December 9, 1923, and defendant offered a receipted bill for this work.

It would serve no useful purpose to analyze the voluminous evidence, as the witnesses for plaintiffs and defendants contradict each other flatly. It suffices to say that as the question is one of fact and the most careful study of the entire record discloses no manifest error in the decision of the trial judge, his decision will be affirmed. Our courts are and always have been loath to cancel leases.

In the case of Meyers & Bro. vs. W. H. Henderson, 49 An. 1547, the Supreme Court said:

“The abrogation of leases is not favored except in extreme cases.”

See also Dussau vs. Husband, 6 La. An. 279.

Denman vs. Lopez, 12 La. An. 823.

For above reasons the judgment is affirmed.


text:
    No. 10,571
    Orleans
    MARSIGLIA v. McKEE, ET AL., Appellant
    (February 27, 1928. Opinion and Decree.)

      (Syllabus by the Oourt)
    1. Louisiana Digest — Builders and Building — Par. 7, 29; Mechanical Privileges —Par. 53, 55.
    When tbe law relative to building contracts provides that tbe surety of tbe contractor shall be limited to such defenses only as the principal on the bond can make, the surety cannot make the defense that tbe materials ordered by tbe contractor were not used on tbe building.
    Appeal from Civil District Court. Hon. Porter Parker, Judge.
    Action by Vito Marsiglia against Earl W. McKee et al., appellants.
    There was judgment for plaintiff and defendant surety appealed.
    Judgment amended and affirmed.
    Tbeo. Cotonio. of New Orleans, attorney for plaintiff, appellee.
    Dart and Dart, Emile Pomes, John R. Reilley, Sanders, Baldwin, Yiosea and Haspel, and J. J. Jackson, all of New Orleans, attorneys for defendants, appellants.
    H. W. Robinson, Denegre, Leovy and Chaffe,' of New Orleans, attorneys for American Surety Co., defendant, appellant.
   CLAIBORNE, J.

This is a suit of materialmen against the contractor, McKee, and his surety, the American Surety Company.

There was judgment in favor of the materialmen against tbe contractor and bis surety.

Tbe surety has appealed.

Its defense is that there is no showing that the materials were delivered at tbe site of tbe buildings, nor that they went into the building.

In the case of Graphic Arts Building Co. vs. Union Indemnity Co., 163 La. 1, 111 South. 470, the Court decided that a surety on a contractor’s bond is limited tq defenses that can be made by the contractor in suits for materials furnished him. “Materialmen may recover against surety for material specially manufactured for building, though one-third of materials was used elsewhere by contractor.”

This decision was followed by tbe Court of Appeal for the First Circuit in Thibodeaux vs. Globe Indemnity Company, 6 La. App. 380. Tbe defense was “that plaintiff cannot recover because be has failed to prove that the materials were actually used in the erection of tbe buildings.” The Court said that the contractor could not defend upon the ground that he had not used tbe materials in tbe building; therefore neither could tbe surety, quoting tbe case of Graphic Arts Building cited above. We are bound by tbe opinion in tbe last case and cannot decide in opposition to tbe Court of tbe First Circuit.

But tbe trial court rendered judgment in favor of Scbill and of Hortman who have already been paid.

This inadvertence must be corrected.

It is therefore ordered that the judg* ment herein be amended by reversing tbe two judgments in favor of Hortman and Co., Inc., for $229.35 and $1.50 and in favor of Ellie H. Schill for $522' and $2.00, and as thus amended that the judgment herein be affirmed.


text:
    No. 10,024
    Orleans
    BONURA & CO. v. PAYNE, Director General, Etc.
    (December 12, 1927. Opinion and Decree.)
    (January 2, 1928. Rehearing Refused.)

      {Syllabus by the Court)

    1. Louisiana Digest — Carriers and Passen gers and Goods — Par. 135, 136.
    In an action against a carrier for damage to cantaloupes, which were shipped in good order and arrived at destination over-ripe and soft, burden of proof is on carrier to show that loss occurred without his fault, and proof that car was iced at all the usual places and that it was as promptly handled as possible under the circumstances is not sufficient, where the carrier admits that “one crate had been robbed” when car was opened at destination.
    Appeal from the Civil District Court, Division “D”. Hon. Mark M. Boatner, Judge.
    Action by John Bonura & Company, Inc., against John Barton Payne, Director General, Etc.
    There was judgment for defendant and plaintiff appealed.
    Miller, Miller & Fletchinger, of New Orleans, attorneys for plaintiff, appellant.
    Harry McCall, of New Orleans, attorney for defendant, appellee.
   JONES, J.

Petition, which was filed on June 1st, 1921, states that plaintiff purchased a car load of cantaloupes in good

order from the Randolph Marketing Co. at Brawley, Cal., for six hundred eighty-four and 85-100 ($684.85) dollars f.o.b. Brawley, and it was shipped on June 25th, 1919, under a bill of lading, copy of which is attached; that through unreasonable delays or negligent handling cantaloupes were delivered over-ripe, soft and decayed, and that petitioner sold them for the best price obtainable, seven hundred seven and 10-100 ($707.10) dollars, that the freight paid by petitioner amounted to three hundred seventy-eight and 99-100 ($378.99) dollars and petitioner suffered a loss of three hundred fifty-six and 74-100 ($356.74) dollars, for which he promptly filed claim without avail. Petitioner then avers that the car arrived with one crate missing and that said crate had been stolen while in possession of defendant.

The defendant, while admitting the receipt of the goods in good order and their delivery in bad condition, makes in his answer two special defenses to the action in

the following words: “If said shipment deteriorated during the time it was in respondent’s possession, then and in that event such deterioration was due to the condition or vice of the shipment at the time it was delivered to respondent for shipment and/or the manner in which the said shipment was crated and loaded, the crating and loading being done by shipper and not by carrier.”

Respondent pleads Par. 2 of Sec. 1 of the conditions of the bill of lading and admits loss of one crate, but denies all negligence and obtention of best price for damaged goods by plaintiff. No objection is made to method of fixing damage.

There was judgment below in favor of defendant and plaintiff has appealed.

The evidence shows that the cantaloupes were shipped from Brawley, California, on June 25th, 1919, in good order and condition for a long haul; that they arrived in New Orleans on July 4th, 1919, at 5 p. m., nine days later; that they were high-grade “fancy cantaloupes” carefully packed and carefully inspected and carefully loaded; that such fruit should have stood a shipment of ten to fourteen days, if car were properly handled; that other shipments made from same crop during that immediate period harvested, packed and inspected in the same way stood a shipment of thirteen days for longer hauls without deterioration; that twenty to thirty per cent of cantaloupes actually picked in the field were rejected before packing; that plaintiff was notified on July 5th at 9 p. m. of arrival of car and at once inspected it with his broker and yard clerk of defendant, Coombes, who then signed an inspection certificate (which was identified on the trial below and filed in the record) stating that cantaloupes arrived “Over-ripe and soft, 1 crt. robbed”.

Allegations of plaintiff as to cost and selling price and consequent loss were proved as alleged.

John Bonura, president of plaintiff company, stated that he inspected the car at 9 a. m. on July 5th with Coombes and his broker, Lally, and found fruit over-, ripe and soft; that the damaged cantaloupes were sold from the car, without advertising, as quickly as possibles but it took until July 12th to dispose of the entire lot; that the ice bunkers were only one-quarter full and there was not sufficient ice, that he opened the car himself and found one crate missing; that he went on the roof of the ear and pulled the block out to see exactly how much ice there was in the bunkers, that he and his partner and a salesman solicited the dealers on Poydras street, the main produce market, but he did not send this ear to Fruit Exchange for sale as he sometimes did, because he thought it best to sell direct to trade; the melons received two days later were in good condition; that he figured to make one hundred ($100.00) dollars to one hundred fifty ($150.00) dollars profit on a car; that he supposed car was re-iced after it was turned over to him, as he employed a clerk especially for that.

Lally, the broker, confirmed Bonura as to damage inspection.

Wilkinson, plaintiff’s clerk, confirmed him as to selling price and as to obtention of the best price possible. He also stated that cars usually arrived in nine days from California and this fruit was in his opinion damaged because of poor icing.

, Plaintiff’s receipt and release for twenty-four and 15-100 ($24.15) dollars, in full settlement for the “robbed crate” together with court costs up to that time was filed by defendant.

Coombes, team track clerk for defendant, states that car arrived with ice bunkers five-eighths filled, and he put in three thousand pounds more on July 4th and signed certificate above referred to on July 5th about 9 a. m.

Defendant offered in evidence the deposition of twelve employees, located at the various icing stations between Brawley and New Orleans, who testify that the car was properly iced and handled promptly, except at one point when a delay of one day was caused by a sudden washout, which was repaired with all possible expedition.

As the above quoted evidence shows that the cantaloupes were shipped in good condition and arrived here in bad condition, and as it further shows that similar shipments from the same crop at same time stood a longer shipment, the burden of proof rested on defendant to show the cause of the damage and we do not consider that the proof as to usual filling of the bunkers with ice and prompt handling of the car is sufficient to rebut the presumption of negligence under all the attendant circumstances.

In this case there is one outstanding fact which the defendant has entirely failed to explain, namely the “robbed crate”, for the doors of the car must have been opened if robbers removed the crate and the evidence shows that the opening of the car doors and the admission of warm air inevitably tends to over-ripen the fruit. The natural and usual presumption from proof of prompt handling and the customary re-icing of such cars is rebutted in this instance by the unavoidable conclusion that somewhere en route the doors of the car were opened.

The pertinent part of Par. 2 of Sec. 1 of the bill of lading reads: “Except in case of negligence of the carrier * * * and the burden to prove' freedom from such negligence shall be on the carrier * * * the carrier shall not be liable for loss, damage or delay occurring while the property is stopped and held in transit upon request of the shipper * * * or resulting from a defect or vice in the property or from riots or strikes.”

It is thus seen that the carrier here directly assumes the burden of proving freedom from negligence, and this court in the case of Guidry vs. T. & P. Ry. Co., 6 La. App. 169, a case exactly similar to the instant one, except for the fact that none of the articles shipped were stolen en route, after citation of a long list of Louisiana decisions held that proof of usual reicing and prompt handling of the car containing the vegetables by the carrier was not sufficient to sustain the burden of proof resting on the defendant. In reaching this conclusion this court followed the ruling of the Supreme Court in the case of National Rice Milling Co. vs. N. O. & N. E. R. R. Co. et als, 132 La. 616, 61 So. 708, as set forth in the following words:

“According to law and the jurisprudence of this state, to be relieved from liability the carrier must prove that the loss or damage has been caused by accidental or uncontrollable event and this involves the proposition that the carrier must prove that it was free from fault.”

On this point see also Eastman vs. T. & P. R. R. Co., 6 La. App. 638, and Sou. Cotton Oil Co. vs. N. O. & N. E. Ry. Co., 146 La. 51, 83 So. 374.

We, therefore, conclude defendant is liable.

As this is an interstate shipment, it is governed by the federal law as interpreted by the federal courts.

See C. N. O. & T. P. Ry. Co. vs. Rankin, 249 U. S. 319.

However, we are referred to no decision and we know of none where the federal courts have reached a conclusion different from the above.

The controlling federal law, namely, the Carmack Amendment to the Interstate Commerce Act of June 29, 1906, C. 3591, 34 Stal. 584 (U. S. Comp. St. Suppt. 1911, p. 1281), requires the carrier to issue a bill of lading and makes it liable to the lawful holder thereof “for any loss, damage qr injury to the property caused by it and no contract, receipt, rule or regulation shall exempt such common carrier, railroad or transportation company from the liability hereby imposed.” Although the same point was made and elaborately argued in the Rice case above quoted our Supreme Court held that the Federal decisions were in harmony with the conclusion reached therein.

Defendant argues that the correct measure of damages is the difference between the market value of the damaged articles and their value in good order at the place of delivery at the time shipment should have arrived; that there is no evidence showing either of these values and consequently quantum of damages is not proved.

Defendant has stated correctly the rule for fixing damages in such cases.

See Chicago M. & S. T. R. Co. vs. McCaull Denemore Co., 253 U. S. 97.

Hicks vs. Guinness, 269 U. S. 71.

Crail vs. I. C. R. R. Co., 13 Fed. 459.

Armested vs. Shreveport, Etc., 108 La. 171, 32 So. 456.

Here the evidence shows there was no market value for such damaged fruit, and these cantaloupes were sold for best price possible, but there is no evidence as to market value-of good cantaloupes in New Orleans on July 5, 1927. ,

As ¡plaintiff set forth fully in his petition that the damaged cantaloupes were sold for the best price obtainable in the market and as he qnly prays for the amount of his actual loss and as defendant simply denied in his answer that the best possible price had been obtained for damaged fruit', but made no objection to the method of calculating the damage, we think the point should have been raised in the lower court, when plaintiff could easily have shown the price of good cantaloupes in New Orleans on July 5th. See Acme White Lead vs. Gulf Naval Stores, No. 10,008 C. of A., this day decided.

Defendant also • contends that plaintiff was guilty of contributory negligence in keeping the melons in the car while he was selling them and in taking six days to dispose of them.

On this point Bonura testified that he had no refrigerator in his store at the time and that it was his custom to keep fruit in the refrigerator car until he could sell it and that he had a man whose sole business was to watch the cars and see that the ice did not run out. Bonura also testified that he expected to make one hundred to one hundred and fifty dollars on this car, if fruit had been in good condition; that he was handling two or three cars of cantaloupes per week at that time; that he received another shipment two days later and sold them.

Plaintiff’s testimony and that of Wilkinson to the effect that it was the very best price obtainable is uncontradicted and unimpeacked. Therefore, we must take it for true.

Wilkinson swears the cantaloupes were sold below the prevailing price of first class melons.

The Cummins Amendment to the Interstate Commerce Act of March 4, 1915, provides that the carrier shall be liable for the full actual loss and the U. S. Supreme Court in the Denemore case, cited above, hehi that the consignee was entitled to his full actual loss on the bases of value at destination, even if that value is greater than the value at the time and place of shipment, notwithstanding the uniform bill of lading provided for computing damages on the latter basis.

Here plaintiff is only demanding his actual loss, which is apparently less than he was entitled to by correct method of computation. Defendant has no serious cause of complaint on that score.

No useful purpose will be served by remanding this case for further proof as to market value of good cantaloupes on July 5, 1919. The case has already been in Court over six years.

For above reasons the judgment below is reversed and it is now ordered that there be judgment against James C. Davis, Director General of Railroads and in favor of John Bonura & Co., Inc., in the full sum of three hundred fifty-six and 74/100 ($356.74) dollars with legal interest from July 15, 1919, and all costs.

See Stockbridge vs. Martin et al, 162 La. 601, 110 South. 828.

ORDER.

The attention of the Court having been called to a clerical error in the decision of December 12, 1927, it is now ordered by the Court ex proprio moto that same be changed to read as follows

The judgment below is reversed and it is now ordered that there be judgment against Andrew W. Mellon, Director General of Railroads and in favor of John Bonura & Co., Ltd., in the full sum of three hundred fifty-six and 74-100 dollars ($356.74) with legal interest from July 15, 1919, and p,Il costs.


text:
    No. 10,204
    Orleans
    WILLIAMS v. WHITE AND DANZIGER
    (January 30, 1928. Opinion and Decree.)

      (Byllabus by the Court)
    1. Louisiana Digest — Appeal—Par. 625, 628.
    As only matters of fact are involved and the evidence abundantly sustains the verdict of the jury and the judgment based thereon, it is therefore affirmed.
    Appeal from Civil District Court, Division “E.” Hon. William H. Byrnes, Jr., Judge.
    Action by Celina Williams against Lula White and George Danziger.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Joseph H. Brewer of New Orleans; attorney for plaintiff, appellee.
    P. L. Fourchy, of New Orleans, attorney for defendant, appellant.
   JONES, J.

Plaintiff, a sub-lessee, brought suit against Lulu White, owner of premises, and George Danziger, lessee, in solido, for damages in the sum of twenty-five hundred ($2500.00) dollars, alleging that the fall of the plaster which injured her was due to latent defects in the building, unknown to her when she occupied the room in question.

Various exceptions having been properly overruled, defendants filed answer admitting ownership of defendánt. White, but denying all of the allegations.

The cause was tried before the Hon. Wm. H. Byrnes, Jr., Judge of Division “E”, and a jury. A verdict was rendered in favor of the defendant, George Danziger, dismissing the suit, and in favor of the plaintiff and against the defendant, Lula White, for the sum of four hundred ($400.00) dollars, interest and costs.

A judgment in accordance with the verdict was rendered below.

On trial of the case, it was shown that George Danziger was the agent for his brother, Alfred Danziger, who was the lessee. Accordingly, suit against George Danziger was properly dismissed.

As the defendant, Lula White, admitted ownership of the premises and as the subtenancy of plaintiff, the bad condition of the premises prior to the accident to the knowledge of the tenant, the fall of the plaster from an unknown defect; and physical injury to plaintiff (more or less serious) directly caused thereby are overwhelmingly proved by the record, on the question of owner’s liability, we concur in and hereby approve the judgment below on the authority of the following recent Supreme decisions:

Allain vs. Frigola, 140 La. 982, 74 South. 404.

Lasyone et ux vs. Zenoria Lumber Co., 163 La. 185, 111 So. 670.

Klein vs. Young, 163, p. 59, 111 So. 495.

In the last case cited the facts were exactly similar to those at present under consideration.

There a roomer in a house, which had been leased by the owner to a third party, was injured by the fall of some back steps due to latent decay, and the Supreme Court on writ of review reversed this Court and held the owner liable in damages.

The case of Pecoraro vs. Grover, 5 La. App. 676, cited by defendant, is not in point, because in that case the lessee herself was injured, and this Court held that she was bound by her covenant in the lease to the effect that the lessor would not be responsible for any defects of the leased property, except in case of positive neglect on his part to have repairs within a reasonable time after notice.

As the record shows that plaintiff, who was confined to. her room for two weeks by the bruises and. shock incident to the impact of the plaster, has received no permanent injury and that she was able to go to her physician’s office at the end of two weeks, we think the judgment below does substantial justice as to quantum*

The judgment is, therefore, affirmed.


text:
    No. 10,572
    Orleans
    CENTANNI v. FERRITO
    (November 28, 1927. Opinion and Decree.)
    (February 16, 1928. Writ of Review by Supreme Court Refused.)

      (Syllabus by the Court)
    1. Louisiana Digest — Automobiles—Par. 4.
    The duty and responsibilty of the driver of an automobile towards his guest in the automobile is merely to be careful and avoid committing an act of negligence or imprudence that might add to or increase the ordinary dangers of the occupation.
    Appeal from Twenty-fourth Judicial District Court for the Parish of Jefferson. Hon. L. Robert Rivarde, Judge.

      Action by Paul Centanni, tutor, et al, against Vincent Perrito.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Geo. J. Untereiner, of New Orleans, attorney for plaintiff, appellant.
    P. M. Milner, of New Orleans, attorney for defendant, appellee.
   CLAIBORNE, J.

This is an automobile damage suit.

The plaintiffs are the children of Cosino Dominick Centanni. They allege that on November 16, 1924, their father, at the invitation of the defendant, Vincent Perrito, boarded a motor car owned and driven by him, Vincent Perrito, at his home in Harvey and rode- with him from the home of defendant towards the home of defendant’s father at lower Harvey; that defendant drove his car at a great rate of speed and suddenly turned from the side of the road to the center, thus making a short turn and in so doing struck' an obstruction which upset the car upon its side and threw petitioners’ father, Cosino Domino Centanni, out of the car, causing him serious injury from which he died the same day; that by his death petitioners have suffered damages in the following amounts:

1st. The cost of his burial______________________$ 190
2nd. His mental and physical suffering ------------------------------------------------------$3000
3rd. Loss of his love and association $3500
4th. Their support and maintenance____$3310
“That petitioners’ father’s death was caused solely and exclusively by the negligence, fault, want of care and skill of Vincent Territo in driving his car down the road at a high rate of speed, faster than permitted by law and turning his car from the side of the road to the center of the road made the turn too short, driving his car against an obstruction in the road; that in so doing he threw his car on its side and threw petitioners’ father from the car, injuring him as above stated;” for all of which the plaintiffs claim $10.000.

The defendant admitted that Cosino Centanni was riding in his automobile but that it was at Cosino’s request; and therefore denies that' he was his guest; he denied that he was driving at great speed; he averred that he turned the front wheels to the right of his car to avoid a rock in the path of the wheel, which brought the car near the ditch on the side of the road, that he immediately turned the wheels to the left to avoid the ditch, when he saw another car driving towards him from the opposite direction, which caused him again to turn his wheels to the right, when without any warning, the steering gear of his car broke and caused the front wheels to turn abruptly and overturn the car; that defendant was driving at the rate of 15 miles an hour, in a careful manner, and that the accident was attributable entirely to the breaking of the steering gear; defendant avers that he also was badly injured and so was his son; defendant admitted that the plaintiff's father died from the injuries received and that they buried him; but denied all the other allegations of the petition.

There was judgment in favor of defendant rejecting plaintiffs’ demand.

They have appealed.

The plaintiffs put the defendant upon the stand as a witness. He said that the deceased got into his car without any invitation from him but with his permission. In the car with them were his boy and his brother-in-law; he corroborated the manner of the accident as stated in his answer and further said; “when I saw I was going down in the gutter,, there was another car coming to meet me, and instead of me putting my foot on the brake, I must have put it on the oil; I put it on the oil and felt the car going over, and the steering wheel must have broke, and I was knocked unconscious * * * when I pulled over again my wheel struck a rock and it throwed my wheel out of my hand into the gutter * * ® up to the time he turned over his steering wheel was in good order.

Paul Centanni, the plaintiff testified that after the accident he examined defendant’s automobile and that he saw that “the top of the steering wheel where he holds, was broken off;” the car turned over on the left side “because Mr. Ferrito was pinned underneath the car;” the steering wheel was off.

E. W. Gardere testified :

“I was going up the Gretna, Jefferson Highway * * * and as I was going up, the roads were rather dusty, and about six blocks ahead of me, I could see it very distinctly because I was going in the direction the automobiles were coming, and about six blocks ahead of me there was a Ford sedan, and immediately back of that sedan, was another automobile which later I discovered to be Mr. Ferrito’s car coming at a fast rate of speed; I could notice it was coming fast because of the amount of dust that it was stirring up as it was coming along. Mr. Ferrito evidently blew for the Ford car to get out of his way, because I noticed the Ford car move aside, and as the Ford car moved to the right, Mr. Ferrito then tried to pass it. In passing, evidently they had some loose gravel, and he was about to go into the ditch on the left side, as he was passing the Ford sedan; then he righted his car, and made back for the right of the road. His car then turned to go to the opposite side of the road, and he was facing the predicament of going in the ditch on the other side, or through the fence. He turned short to straighten his car, and in doing that, whether the front wheels locked, or got tangled up in the gravel or not, I don’t know, but the car made a complete somersault, and in landing it reversed the position in which it came. I was going towards them, and I went to the accident, and saw Mr. Ferrito who was then unconscious. The wheel evidently got jammed or got caught in the gravel, otherwise he would have kept going.”

If something had not occurred in front to prevent the front wheels from rolling along, the car would have kept going.

Sam Deto was in the car with the man that is dead.

“Q. Tell the Court how it happened.
“A. Well, there was loose gravel and a rock. They had a machine in the road, and it was going close to the ditch, and he swung and swung again, and it turned over. There was a machine coming on the road, and a machine on the side, and he hit a rock and loose gravel.”

Jake Ferrito, defendant’s son, testified as to the manner of the accident as follows:

“Well, they had loose gravel, and they had some cars coming front ways and the loose gravel caught him and he swerved to get out of the. way, and he hit a rock, and his wheel got locked and the steering wheel broke and it turned over, the steering wheel where he holds his hand; he was going between 15 and 20 miles.”

Defendant in his own behalf repeats his examination in chief and says he was going between 15 and 20 miles an hour; he had no reason to believe that the steering wheel was defective, the wheel broke in his hand, and that was the cause of the accident.

It is evident that the plaintiffs can recover against the defendant only by proving him guilty of negligence in the driving of his car. The plaintiffs have understood their obligation in this respect by specifically charging the defendant with negligence. Assuming that the deceased was the guest of the defendant, what degree of care was due by defendant to deceased?

This question is answered by our Supreme Court in Jacobs vs. Jacobs, 141 La. 272, 74 So. 992, in which the Court said on page 286:

“The driver’s duty and responsibility is merely to be careful and avoid committing any act qf negligence or imprudence that might add to or increase the ordinary danger of the occupation.”

Huddy in S. 678, p. 880, condenses the law in these words:

“The express or implied duty of the owner and driver to the occupant of the ear is to exercise reasonable care in its operation and not unreasonably to expose him to danger by increasing the hazard of that method of travel. He must exercise the care and diligence which a man of reasonable prudence, engaged in like business would exercise for his own protection and the protection of his family and property.”

On page 881:

“In some jurisdictions recognizing degrees of negligence, such as ‘gross,’ ‘ordinary’ or ‘slight’ negligence, it may be held that the driver of an automobile taking a gratuitous (passenger is liable only in case of ‘gross negligence.’ The latter doctrine was repudiated by our Supreme Court in the Jacobs case on p. 286.

In the case of Siefker vs. Paysee, 115 La. 953, 40 So. 366, the Court said:

“Where persons are gunning together and an accident occurs, the negligence, to render one liable, must be in its nature gross. Fault must be shown.”

We do not see in this case that the defendant was negligent. He turned to his left, upon a narrow country road, to avoid another car in front of him; when he had done that, he turned to his right in order to resume his proper position in the road; but in doing so he drove too near the ditch; in trying to return to a safe position in the road an incoming ear blocked his way; in an effort to avoid it, he got tangled in loose gravel and struck a rock; and in trying to straighten his wheels his steering gear, which was apparently in good condition, broke in his hands.

Nor do we find that he was traveling at an excessive rate of speed. The uncontradieted testimony is that his speed was between 15 and 20 miles. The deceased made no complaint of the speed. Huddy, S. 694; Jacobs, p. 279.

We see no fault in defendant.

His family were in thé car with him.

The judgment is therefore affirmed.