text:
    No. 3210
    Second Circuit
    WASHINGTON v. Y. & M. V. R. R. CO.
    (November 18, 1929. Opinion and Decree.)

      Thatcher, Browne, Porteous & Myers, of Shreveport, attorneys for plaintiff, appellant.
    Wise, Randolph, Rendall & Freyer, of Shreveport, attorneys for ■ defendant, appellee.
   REYNOLDS, J.

Plaintiff sustained bodily injuries in a collision between a motor truck on which he was riding and a train of freight cars owned and operated by defendant, and he seeks by this action to recover judgment for damages.

The collision occurred on July 19, 1926, where Velva Street crosses defendant’s railroad, in the city of Shreveport, Louisiana. The crossing is at grade.

Plaintiff alleges that the collision was caused solely by defendant’s negligence in that (1) the train was moving at more than six miles an hour in violation of an ordinance of the city limiting the speed of trains within the city limits to six miles an hour; (2) the engineer in charge of the locomotive had the last clear chance to avoid the collision and failed to avail himself of it; (3) a flagman or mechanical warning signal was not stationed at the crossing to give notice of the approach of trains; (4) no bell was rung, nor (5) whistle blown as the train approached the crossing; (6) the train was not stopped nor its speed brought under control just before the crossing was reached; (7) one of the train crew was not sent ahead of the train to flag its approach at the crossing.

The answer of the defendant was a denial of the negligence charged and an allegation that the sole cause of the accident was the negligence of plaintiff and the driver of the truck on which he was riding.

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

OPINION.

Velva Street runs north-south. The truck on which plaintiff was riding was uncovered and was being driven north on Velva Street by one Oliver. It was loaded with furniture and plaintiff’s duty was to “tend” the furniture.

The railroad crosses Velva Street in a northeasterly-southwesterly direction at an angle of about 45 degrees.

About one o’clock in the afternoon a train, made up of fourteen cars, eleven of which were loaded, and a locomotive, was moving southwesterly. On its way it crossed Claiborne Avenue, which is one block from Velva Street in the direction from which the train was coming. It stopped and blew the whistle just before crossing Claiborne Avenue. The bell was ringing all the while the train was moving.

The driver of the truck, Oliver, was not called as a witness.

The plaintiff testified, on direct examination:

“Q. Did you hear that train coming?
“A. No, sir; did not know it was coming.
“Q. Was any bell rung or whistle blown ?
“A. I didn’t hear any.
“Q. When was the first time that you heard the train?
“A. After the accident. I didn’t hear it. I didn’t see it. I could not see it from where I was standing. I was in the body of the truck, holding the furniture. Had two or three dressers in there-.
“Q. In what direction were you facing?
“A. I was facing the way we were going, and holding the dressers.
“Q. The train came in from your right?
“A. Yes, sir.
* * * * * * *
“Q. How fast was that truck going?
“A. I guess it might have been going fifteen or eighteen miles an hour.
“Q. When the train struck the truck, what happened?
“A. It knocked the furniture and everything, myself and the furniture, out of the truck; bruised me all up in here (indicating). I did not see the train until after I came to, when they picked me up and put me in the truck; I didn’t know what hit me.
‡ ‡ ‡ ‡ ‡ $
“Q. This furniture which stood up was about how high? How high was that furniture?
“A. Some was higher than my head.
“Q. That was in front of you?
“A. Yes. I was standing on the truck, holding the dresser.
“Q. The side the train was coming from, was that dresser between you and that, higher than your head?
“A. Yes, sir; had a mirror in it.’’

J. P. Bonar testified that he was the engineer in charge of the locomotive and that he was sitting on the right-hand side of the cab in the direction the train was moving and that this was on the south side of the track; that he first saw the truck when it was forty or fifty feet from the track and the locomotive about twenty feet from Velva Street. The locomotive was being operated with its tender or tank ahead or to the front. That the throttle was shut off and the engine drifting. He blew the signal for the crossing, and as the truck continued to move toward the track he applied the brakes, and the locomotive stopped with its head on the crossing. From the time the train left Claiborne Avenue until the brakes were applied its speed was between four and five miles an hour. The left-hand side of the locomotive struck the truck between its front and back wheels. The force of the impact was not sufficient to overturn the truck. A brakeman named Shep Jackson was riding on the foot-board at the head of the locomotive, and at the same moment that the witness first saw the truck he saw Jackson jump from the foot-board to the ground and throw his hands down in warning of danger of collision.

Shep Jackson testified that he was a brakeman on the train and was stationed on the foot-board at the front of the locomotive. That the train had stopped at Claiborne Avenue and its speed after it started again until the accident was between four and five miles an hour. On approaching Velva Street the crossing whistle was blown. He first saw the truck when it was about thirty feet from the railroad and that at that time the locomotive was about twenty feet from Velva Street. As soon as he saw the truck he shouted and waved liis arms to the driver of it and at the same time jumped to the ground, feeling as he left the locomotive, the jar consequent on the application of the brakes to it. The bell was ringing as the locomotive approached Velva Street and had been ringing as long as the train was in motion.

He further testified:

“Q. Didn’t the auto slacken its speed as it approached you?
“A. No sir.
"Q. How fast was it travelling?
“A. I estimate it was going ten or fifteen miles an hour, I reckon.”

J. R. Harris and R. 0. Williams were riding in an automobile and crossed the railroad at Claiborne Avenue just ahead of the train and drove around into Velva Street and stopped on the right-hand side of that street immediately north of .the railroad before the train reached Velva Street.

Harris testified:

“Q. Had you any occasion to hear or see the train before it reached that point?
“A. I saw it at Claiborne Avenue; drove across ahead of it.
*******
“Q. You heard the train as it started up across the crossing at Claiborne Avenue?
“A. Yes, sir, about the time I crossed.
“Q. What signals were given?
“A. I think they blew two long and short, 'maybe.
*******
“Q. What other signals were being sounded?
“A. The bell was ringing.
“Q. Did you hear the bell ringing any after that time?
“A. Yes, sir.
“Q. How long?
“A. We ran on down to Velva Street and stopped just before getting to the railroad, and after stopping they came on, and we were sitting there talking and they were coming and we could hear it; I didn’t hear it all the way round, but when we stopped I heard the bell ringing.
“Q. Before it got to Velva Street?
“A. Yes, sir.
“Q. Did you see that train as it approached?
“A. Yes, sir.
“Q. What would you say as to its speed?
“A. I don’t know; it couldn’t have been running very fast, I guess five miles an hour.
“Q. Did you see the truck before it got to the crossing?
“A. Yes, sir.
“Q. How far back down?
“A. Seventy-five or eighty feet.
•i* ***** *
“Q. About how fast was it coming?
“A. He was going twelve or fifteen miles an hour.
“Q. Did he stop or slow down after you saw him?
“A. No, ' sir; he was leaning on the curb, sighting it on down.
*******
‘‘Q. And you could see he was going to hit the train?
“A. I figured it that time; you can figure it that way. It is about right, I guess.
“Q. How far was it (the locomotive) up the track when the man was seventy-five feet away?
“A. I could not tell you.
“Q. That was when you first noticed there was going to be an accident?
“A. I seen the driver — of course there is a house there and of course the train was coming — and I told Mr. Williams, watch that fellow run in front of the train. He was not even looking. Never looked when it hit. Didn’t look up. *******
“Q. Was there anything to attract your attention when this man was seventy-five feet away?
“A. The train was coming.
*******
“Q. When he was seventy-five feet away, was it sure that an accident was going to happen?
“A. I thought there would, .because he didn’t cut off his engine; he was looking the other way.
“Q. When you first saw him coming out there, he was in no position to see the train, was he?
“A. He could see at any time he wanted to. The house was small, and there was an open space before he got to the house. He could s.ee it if it (meaning the train) was there, and hear the bell.
“Q. You could tell, when it was seventy-five feet away, there was going to be an accident?
“A. I could tell. Could tell, the way the man was going.
"Q. You could tell?
“A. Yes, sir. Could have stopped, if he had seen it.'’

Williams corroborated Harris’ testimony.

He was asked:

•‘Q. Did you see anyone on the approaching or front end of the foot-board?
“A. A negro brakemart; I reckon it was a brakeman — a negro.
“Q. What did he do as he got pretty close there?
“A. Jumped before the train hit the truck; jumped off.”

Two witnesses called by plaintiff, Pall Gray and H. S. Roberts, gave it as their opinion, on direct examination, that the train was moving at a speed of from twelve to fifteen miles an hour, but, on cross-examination, admitted that they were not paying particular attention to the speed and were at work up to the time of the accident and that their estimate of the speed was merely guess.

In our opinion the preponderance of the evidence clearly establishes that the speed of the train did not exceed six miles an hour and that the bell was continuously ringing all the while it was moving.

In respect of the blowing of the whistle, an ordinance of the city introduced in evidence forbids the blowing of locomotive whistles within the city limits, and Yelva Street is within those limits. Had the whistle not been blown the omission would not have been negligence, as it is not negligence to obey a city ordinance. However, there is abundant proof in the record that the whistle was blown, notwithstanding the ordinance forbidding it.

No ordinance of the city or rule of the defendant required that a flagman or mechanical device to warn of the approach of trains be stationed at the crossing, or required the train to stop before crossing the street, or move at a slower speed than six miles an hour, or that one of the train crew be sent ahead of the train to flag the crossing; and in the absence of such ordinance or rule the omission to do these things was not negligence.

Neither do we think the last clear chance to avoid the accident lay with the engineer. Though this contention is not pressed in brief by counsel for plaintiff we have examined the evidence in support of it and our conclusion is that it is unfounded. The truck was moving rapidly and before the engineer could know that it would not stop before attempting to cross the track it was upon the track and the locomotive too close to it for the train to be stopped before striking the truck.

The mere happening of the accident did not raise a presumption of negligence on the part of defendant.

Cook vs. Railroad Co., 130 La. 917, 58 So. 767.

Negligence is a breach of a legal duty. It will not be presumed, and the burden of proving it rests upon him who asserts it.

Meyers vs. Cypress Co., 118 La. 811, 43 So. 448.

A person is not negligent in failing to anticipate that another person will be negligent.

Ford vs. Tremont Lumber Co., 123 La. 742, 49 So. 492, 22 L.R.A. (N. S.) 917, 131 Am. St. Rep. 370; Damonte vs. Patton, 118 La. 530, 43 So. 153, 8 L.R.A. (N. S.) 209, 118 Am. St. Rep. 384, 10 Ann. Cas. 862.

Plaintiff’s counsel has cited many cases holding railroad corporations liable for collisions caused by backing trains. The locomotive attached to the train here was at the head of the train and the train was not backing. Therefore the authorities cited have no application to the case at bar. And the fact that the tender or tank of the locomotive was ahead rather than the smokestack and boiler is not of any consequence, as that fact in no way contributed to cause the accident.

The driver of the truck, instead of stopping and looking and listening before attempting to cross the railroad, attempted to drive across the tracks at a speed which plaintiff himself testified was from fifteen to eighteen miles an hour, thereby putting the truck on the tracks in front of and so close to the locomotive that it was impossible for the engineer to stop the train before striking the truck; and this we think was the sole cause of the accident.

The evidence convinces us that the collision occurred without any fault or negligence on the part of the defendant.

The judgment appealed from is correct and it is affirmed.


source: Caselaw Access Project

author: ODOM, J.

license: Public Domain

text:
    No. 3482
    Second Circuit
    BANK OF WINNFIELD v. OLLA STATE BANK
    (November 18, 1929. Opinion and Decree.)

      R. W. Oglesby, of Winnfield, attorney for plaintiff, appellant.
    Henagan & Gaharan, of Jena, attorneys for defendant, appellee.
   ODOM, J.

E. C. Paulette owned an oil and gas lease, known as the “Holmes Lease,” covering the SW^ of SW^ of Section 17, Township 9 North, Range 1 East, in Grant Parish, on which he drilled two wells, both being producers. On July 1, 1927, he borrowed $13,000.00 from the Bank of Winnfield, plaintiff herein, and gave his note for said amount, secured by mortgage on said lease. This mortgage was duly inscribed in the mortgage records of Grant Parish on July 5th, following. On July 2nd, one day subsequent to the date of the mortgage and prior to the date of its inscription in the mortgage records, Paulette purchased “one standard rig” from D. J. Critchet for $1600, on which he paid $1200 cash and for the balance of the purchase price gave Critchet his note, secured by vendor’s lien and chattel mortgage on the rig. The rig, when ¡purchased, was in La Salle Parish where Critchet lived, and the chattel mortgage and the note were executed before a notary in that parish. Critchet transferred the note and chattel mortgage to the Bank of Olla, defendant herein. The chattel mortgage was sent to the recorder of mortgages in Grant Parish and there recorded on July 16th, following.

Immediately after purchasing the rig, Paulette moved it to Grant Parish and set it up on the Holmes lease, ■ which he had previously mortgaged to the plaintiff bank, the rig being installed on the lease prior to the date on which plaintiff’s mortgage was recorded.

Paulette failed to pay the plaintiff bank, whereupon it foreclosed its mortgage and caused to be seized, advertised and sold the said Holmes lease, together with all the improvements situated thereon. Several months after this foreclosure and sale, the Bank of Olla sought to foreclose its chattel mortgage via executiva on the rig and had it seized where it was then installed on the Holmes lease in Grant Parish. The plaintiff bank enjoined the foreclosure proceedings of defendant on the ground that it was then the owner of the rig, the property in controversy, having purchased it at foreclosure sale, along with the lease to which it was attached.

Defendant contended in the lower court, and contends here, that the rig in question which was ¡purchased by Paulette and placed by him on the lease subsequent to the date of plaintiff’s mortgage, never became subject to that mortgage and was not part of the lease, and therefore, was not and could not be sold along with the lease under plaintiff’s foreclosure, and that therefore, Paulette, and not the plaintiff bank, was the owner of the property at the time it attempted to foreclose its chattel mortgage. The district judge held with defendant and rejected plaintiff’s demands.

Our examination of the record and a consideration of the law which we think applicable have led us . to a different conclusion.

The rig in controversy was a pumping outfit which was placed on the lease after the well was completed; it was placed on the lease for its service and improvement, and became a part of it by destination. It was not on the Holmes lease at the time Paulette mortgaged it to the plaintiff bank, nor was it specifically described in the act of mortgage, nor did the mortgage specifically state that it should cover all improvements subsequently placed on the land. For these reasons, the defendant, Olla State Bank, contends — and the district judge held — that plaintiff’s mortgage never became operative against it. Therefore, when the “Holmes Lease” and all the improvements thereon were sold under plaintiff’s execution, the pumping rig did not go with it.

A mineral lease, under Act 232 of 1910, is a species of real property (Choate Oil Corporation vs. Glassell, 153 La. 715, 96 So. 543). The pumping rig was placed upon the lease by Paulette, the owner, to develop it, for its service and improvement. The rig was necessary to the operation and development of the lease; having been placed there for its service and improvement, it became immobilized and immovable by destination. (Civil Code, art. 468; Choate Oil Corporation vs. Glassell, supra.) Paulette mortgaged the lease to the plaintiff bank and whether the rig was on the property at the time or was placed there later, the mortgage, attached to and covered it the moment it was put there, under the precise language of the Civil Code, which reads as follows:

“Article 3310 — A conventional mortgage when once established on an immovable, includes all improvements which it may afterwards receive.”

New Orleans Nat. Bank vs. Raymond, 29 La. Ann. 355, 29 Am. Rep. 335; Louisiana Land & Pecan Co. vs. Gulf Lumber Co., 134 La. 784, 64 So. 713.

It has been specifically held that such mortgage covers all property immovable by destination.

Rochereau vs. Bobb, 27 La. Ann. 657;

Williamson vs. Richardson, Sheriff, et al., 31 La. Ann. 685;

Weil vs. Lapeyre et al., 38 La. Ann. 303.

An additional reason, if any be needed, for holding that plaintiff’s mortgage attached to the rig is that Act 232 of 1910, page 393, specifically provides that owners of mineral leases may mortgage the same “together with all buildings, constructions and improvements placed and erected on such lands, or to be placed and erected thereon.” Sec. 1. It was held in Choate Oil Corp. vs. Glassell, supra, that under this act improvements placed upon a mineral lease became part of it by destination and that a mortgage on the lease covered such accessories without any mention of them in the act and covered, not only accessories then on the lease, but those about to be placed thereon. The testimony shows that it was intended by Paulette and the plaintiff bank, when the money was loaned, that a part of it should be used in the purchase of a pumping rig to be placed on this particular lease.

According to the recitals of the act plaintiff’s mortgage covered the Holmes lease “with all wells and improvements on said described land.” Our conclusion is, and we hold, that the pumping rig in controversy, though not on the lease when plaintiff’s mortgage was granted, but having later been placed and attached thereto by Paulette, the owner, as an improvement, became subject to the mortgage as much so as the improvements already thereon.

The documentary evidence found in the record shows that in plaintiff’s foreclosure proceedings the sheriff seized, advertised and sold to the plaintiff bank “one oil, gas and mineral lease acquired from J. L. Holmes on the SW% of SW% of Section 17, Township 9 North, Range 1 East, together with all wells and equipment on said lands.”

This particular pumping rig was on the Holmes lease at that time and, while neither the seizure, advertisement nor the deed make any. specific mention of it, the sale unquestionably included it and title passed to the plaintiff bank, which took immediate possession of it.

The sale made to the plaintiff bank was of the lease, together with all wells and equipment situated on the land covered by the lease, all of which property was sold confusedly together — that is, the property in controversy was sold confusedly with a mass of other things belonging to Paulette. The defendant did not intervene and demand a separate appraisement and sale of the property on which its chattel mortgage rested. Then, what became of its rights under its chattel mortgage? They were divested, lost. The case of Baton Rouge Rice Mill, Inc., vs. Fairbanks, Morse & Co., Inc., 164 La. 789, 114 So. 633-634, is exactly in point. It was there stated by the organ of the court that— “it is the established jurisprudence in this "State that, if one having a lien, privilege or mortgage on movable or immovable property, suffer the same to be sold in globo or confusedly in mass with other movable or immovable property without protecting his rights by causing such ¡property to be separately appraised and separately sold, his lien, privilege or mortgage is lost.”

(See Civil Code, art. 3228.)

It was there specifically held that a chattel mortgage held by the seller of an engine installed in a rice mill, under the chattel mortgage law, Act 198 of 1918, Sec. 4, even if prior to all other encumbrances, was lost and could not be enforced as against one holding the engine under a foreclosure of a mortgage on real property and sale thereof in mass, where the holder of the chattel mortgage permitted the chattel to be sold without a separate appraisement and sale.

The O'lla State Bank, defendant here, has a similar but weaker case, because its chattel mortgage did not prime plaintiff’s mortgage, it having been filed for record in Grant Parish where the rig was located on July 16th, eleven days after the inscription of plaintiff’s mortgage.

Under Section 4 of Act 198 of 1918, the Chattel Mortgage Law, such mortgages do not become a lien upon the property until filed for record.

Wilson vs. Lowrie, 156 La. 1062, 101 So. 549;

Youree et al. vs. Limerick, 157 La. 39, 101 So. 864, 37 A. L. R. 396;

Gulf Finance & Securities vs. Taylor, 160 La. 945, 107 So. 705.

Plaintiff’s mortgage was therefore superior in rank to that of defendant’s, it having been previously recorded.

Counsel for defendant, in their elaborate brief, say that even if it be true that plaintiff’s mortgage did cover the pumping rig, and even though it did prime the chattel mortgage, which had no effect in Grant Parish until filed for record, their vendor’s lien was still enforceable because it existed without recordation, as has been repeatedly held.

But the vendor’s lien attaches only so long as the thing remains the property of the vendee and in his possession. (Civil Code, art. 3227.) The property here in controversy remained in the possession of Paulette up to the day it was sold to the plaintiff bank and the vendor’s lien attached to it up to that date. That is true, even though Paulette did attach it to the lease and make it a part thereof by destination, because the property retained its identity and could have been removed without material damage to the lease itself, and it has been specifically held that the vendor’s privilege exists on movables though impressed with the fictitious character of immovables by destination.

Shelly vs. Winder, 36 La. Ann. 182;

Carlin vs. Gordy, 32 La. Ann. 1285;

Lapene vs. McCann, 28 La. Ann. 749;

Walburn-Swenson Co. vs. Darrell, 49 La. Ann. 1044, 22 So. 310;

Bergeron vs. Patin, 34 La. Ann. 534.

The defendant bank, we think, could have pursued this property under its vendor’s lien at any time previous to its sale by the plaintiff bank. But the fact remains that the rig was sold to the plaintiff bank confusedly with a mass without a separate appraisement and sale. The vendor’s privilege was, therefore, lost. (Civil Code, art. 3228.)

Forrey et al. vs. Strange, 158 La. 941, 105 So. 21;

Baton Rouge Rice Mill vs. Fairbanks-Morse, supra.

It, therefore, follows that when the defendant bank instituted its proceedings some time after the plaintiff bank had foreclosed on its mortgage and purchased the property, it had no mortgage or vendor’s lien thereon; it had no right to seize the same and its suit must therefore fall.

For the reasons assigned, it is ordered and decreed that the" judgment appealed from be reversed; and further ordered that the preliminary restraining order granted plaintiff be perpetuated and that the seizure of the property in controversy by the defendant bank be set aside, and the said bank and sheriff of Grant Parish be permanently enjoined and prohibited from proceeding further with the salé thereof; all costs to be paid by the defendant, Olla State Bank.


author: WEBB, J.

text:
    No. 3496
    Second Circuit
    CORY v. ASKEW
    (July 1, 1929. Opinion and Decree.)
    (___________________ Reversed and Remanded by Supreme Court on Writ of Certiorari and Review.)
    (See original opinion, 11 La. App. 110.)
    Harry Y. Booth and George 'T. McSween, of Shreveport, attorneys for plaintiff, appellant.
    John B. Files, of Shreveport, attorney for defendant, appellee.
   WEBB, J.

On the original hearing a motion was made to dismiss the appeal on the ground that plaintiff had acquiesced in the judgment, and the cause was remanded for trial on that question, and a rehearing having been granted, it is urged that the order remanding the cause was erroneous.

The pleadings pertinent to the question were correctly stated in the original opinion, with the exception that it was stated that defendant “admitted the accident but denied that plaintiff was entitled to the extent alleged,” which was erroneous, as defendant’s answer was, in effect, a general denial.

In support of the position that plaintiff could not be held to have acquiesced, even though it should be shown that he had issued execution on the judgment and forced payment, plaintiff cites Kittredge vs. Grau, 158 La. 154, 103 So. 723, and Chandler vs. Oil Fields Gas Co., 2 La. App. 778.

Article 567, Code of Practice, provides that:

“The party against whom a judgment has been rendered cannot appeal:
“1. If such judgment have been confessed by him, or if he have acquiesced in the same, by executing it voluntarily.
“2. If he has suffered the time prescribed by law for appealing to elapse.”

and it is held that the provisions of the article are applicable to the party in whose favor the judgment has been rendered as well as to the party against whom the judgment has been rendered.

“By article 567, of the Code of Practice, a party against whom a judgment has been rendered cannot appeal if he have acquiesced therein, by voluntarily executing it; and the same rule will be extended to one, who, having obtained a judgment, has carried it into execution.” State vs. Judge, 4 Rob. 85. Also, Succ. DeEgana, 18 La. Ann. 59.

The question, as to whether one should be held to have acquiesced in a judgment, by reason of some action taken thereunder, relates somewhat to the intent of the person taking the action, and in the case of Kittredge vs. Grau, supra, it was held that the plaintiff, who had recorded the judgment, had not acquiesced therein, within the meaning of article 567, and the same ruling was made in Augustin vs. Farnsworth, 155 La. 1053, 99 So. 868; and in the Chandler vs. Oil Fields Gas Co., supra, it was held that the plaintiff in a compensation case who had accepted weekly payments of compensation under the judgment, had not acquiesced in the judgment, so as to prevent an appeal, where the period of compensation was fixed at less than the period there demanded.

While the Chandler case is apparently in conflict, with the former ruling by the court, in which it was said that “the receipt by the appellant of a portion of the amount decreed him by the judgment is acquiescence in the judgment and defeats the appeal * * * Nor is this acquiescence at all affected because the appellant, receiving part of the amount of the judgment, undertakes to reserve his appeal.” (Flowers vs. Hughes, 46 La. Ann. 436, 15 So. 14. Also Raines vs. Dunson, 143 La. 321, 78 So. 574.) But it does not, we think, go further than to change the rule to the extent that a voluntary acceptance of payment under the judgment will not defeat the appeal.

In the present case the question is, whether or not one who executes a judgment and forces payment acquiesces in the judgment; as to which it was said in Succession of DeEgana, supra, “it cannot be controverted that, under the laws and jurisprudence of this state, the party who voluntarily executes, either partially or in toto, a judgment rendered for or against him, * * * is not permitted to appeal from it;” and we think that ruling is applicable here.

If the action was based upon distinct claims and judgment was rendered for one, or if defendant had admitted liability for the amount of the judgment, it could not prejudice his rights to permit the execution of the judgment; but such is not the case presented here.

It is therefore ordered that the former decree and order, remanding the case,, be reinstated.


text:
    No. 3527
    Second Circuit
    ARNOLD v. ATKINS
    (November 18, 1929. Opinion and Decree.)
    W. B. Massey, of Shreveport, attorney for plaintiff, appellee.
    Clifton F. Davis, of Shreveport, attorney for defendants, appellants.
   ODOM, J.

Defendants appealed suspensively and devolutively from a judgment rendered against them by default. The record contains no note of evidence, but the judgment recites that “by reason of the preliminary default heretofore taken and entered not having been set aside, and by further reason of the law and the evidence being in favor thereof, the said preliminary default is hereby confirmed, etc.”

Presumably, the judge of the lower court heard testimony sufficient to warrant the judgment.

When the case was set down to be heard in this court, defendants did not appear by counsel nor has counsel filed any brief. The judgment appealed from must, therefore, be affirmed.

Plaintiff has answered the appeal and asked that the judgment be amended so as to 'allow damages for frivolous appeal. We see no reason why damages should not be allowed, under article 907 of the Code of Practice, as the appeal was evidently frivolous.

It is therefore ordered, adjudged and decreed that the judgment appealed from be amended so as to allow five per cent damages for frivolous appeal and, as thus amended, it is affirmed, with costs in both courts.


text:
    No. 3544
    Second Circuit
    BANK OF WINNFIELD v. BRUMFIELD ET AL.
    (November 18, 1929. Opinion and Decree.)

      Moss and Moss, of Winnfield, attorneys for plaintiff, appellee.
    H. W. Ayron and W. J. Hammon, of Jonesboro, attorneys for defendant, appellant.
   ODOM, J.

Y. L. Brumfield was elected principal of the Jonesboro High School for the school year of 1928-1929, at a monthly salary of $250. The Jonesboro High School is a public school established by the Jackson Parish School Board and maintained with public funds. Brumfield’s salary was budgeted by the Board and was to be paid monthly. The plaintiff bank had a judgment against him and by supplemental proceedings garnisheed his salary in the hands of the School Board.

Prior to answering interrogatories propounded to it by plaintiff bank touching the questions whether it was indebted to him or whether it had in its possession or under its control any funds or property belonging to him, the board tendered exceptions of no cause and no right of action which were referred to the merits. Under reservations, the Board answered that Brumfield was employed by it as principal of the Jonesboro High School for the term ending in May, 1929, but did not specify the amount, if any, due him at that time. These answers were not traversed, but we understand that it is conceded that at the time the answers were filed, the Board had in its hands $250 already earned by defendant on his salary.

Brumfield’s defense is that he is an employee of a public board, a public servant whose salary is paid out of public funds dedicated to that specific purpose, that to all intents and purposes he is a public officer, and that his salary is not subject to seizure under the garnishment process, under the law. The School Board especially urged the defense that it would be against public policy to permit public funds which had been dedicated to the payment of the salaries of its teachers to be seized while in its hands.

The case was tried on the following statement of facts:

“It is admitted that V. L. Brumfield is Principal of the Jonesboro High School, a public school of Jackson Parish, and that as principal he has the management, control and supervision of said school and that his duties are discharged for the advancement, education and the youth of the Town of Jonesboro and the surrounding community and having been employed as principal of said school for the year 1928-1929 and his salary of $250.00 was budgeted.”

There was judgment in favor of the plaintiff bank, especially decreeing “that the salary due said V. L. Brumfield as principal of the Jonesboro High School by the Jackson Parish School Board is not exempt from seizure and garnishment process under the judgment rendered in this cause in favor of plaintiff.”

From this judgment, both Brumfield and the School Board appealed.

OPINION.

In our opinion, the judgment appealed from is erroneous and must be reversed.

Pursuant to article 12, sec. 10 of the Constitution of 1921, the Legislature of 1922, by Act 100, sec. 17, created a parish school board for each of the parishes of the state, and constituted them bodies corporate with power to sue and be sued, and to make rules and regulations for their own government not inconsistent with the laws or the regulations of the State Board of Education. Under that act of the Legislature, all funds destined for the support of the free public schools of the state are paid to these boards to be used by them in support of the schools in their respective parishes. They are authorized to establish such public schools as they deem necessary to provide adequate school facilities for the children of the parish, to determine the number of schools to be opened, the location of schoolhouses, the number of teachers to be employed, and to fix their salaries.

These boards are therefore public corporations. Their'functions are exclusively of a public character, and their acts are performed solely for the public benefit. The funds which they possess, administer, and disburse are public funds dedicated to a specific purpose. These boards are state agents, a part of the state government with only such powers and authority as are delegated to them by the state, and their relation to the state is the same as that of any other public corporation. Their acts are purely administrative. They act for the state in the administration of the affairs of the public school system; they have, and can have, no interest to subserve except that of the public.

The responsibility of maintaining adequate and efficient public schools in the parishes is laid upon the parish boards. To carry out that function, all funds destined for the support of the public schools are intrusted to them; to carry out the functions for which they are created, they are especially charged with the duty of employing capable, well-qualified superintendents and teachers. For the payment of the salaries of these teachers, the boards set aside and dedicate a portion of the public funds intrusted to them. When so dedicated, these funds cannot be diverted to any other purpose, except by and with the sanction of the boards themselves, and it is the plain duty of these boards to see that the funds which they have set aside to pay their teachers is used for that and no other purpose. This is true, because to permit these funds to be diverted to any purpose, except for the maintenance of their teachers, would stifle them in their work, and thereby materially interfere with the orderly administration of public school affairs.

It is matter of common knowledge that teachers in public schools are poorly paid, and that it usually takes all of their salaries to maintain them as they go. "Without pay, they cannot work, and, unless they work, the public interest suffers, and it is the board’s duty to see, in so far as it can, that the public gets what it pays for. It is therefore the duty of these school boards, we think, for their own protection and for the protection of the public which they serve, to resist actions brought by creditors of their teachers for the purpose of diverting from their usual cburse the salaries of such teachers, not as a favor to the teachers or to shield them from their creditors, but to see that their services to the public are not interfered with. For this reason the school board was within its rights in defending this suit as it did, and we think that the exceptions tendered by the board should have been sustained.

Under article 647 of the Code of Practice, and under repeated decisions of our Supreme Court, salaries of public officers are exempt from garnishment while such salary remains in the public treasury or in the hands of the disbursing officer. The reason for the law exempting these salaries from; seizure is stated by the court in the case of Fischer vs. Dubroca, 163 La. 292, 111 So. 710, 712, from which" case we quote the following:

“The exemption rests upon the fundamental proposition that a. public fund that is dedicated by law to a special purpose cannot be diverted to any other purpose except by the same authority that dedicated it. * * *
“The reason why, as a matter of public policy, a public officer’s salary is not subject to seizure by garnishment process against the disbursing officer is that the orderly administration of public affairs should not be hampered in that way. An officer’s salary is dedicated by law to the special purpose of paying for the service that he must render to the public, and, until the fund leaves the public treasury, it must not be diverted to any other purpose at the instance of any individual. The law does not exempt a public officer’s salary from seizure, or shield it from liability for his debts, as a matter of grace or favor to him. The exemption prevails only so long as the salary remains in the public treasury or in the hands of the disbursing officer. Dunbar v. Dinkgrave, 10 La. Ann. 545.”

The identical reason stated above why the salary of a public officer is exempt from seizure by garnishment process may be assigned for exempting the salary of a public school teacher from seizure. Public school teachers are public servants; their services as teachers are rendered solely in the interest of the public; public funds dedicated for the payment of their salaries are dedicated for the purpose of paying for the service which they must render to the public. If these funds are diverted and used for any other purpose, the public must necessarily suffer.

While there is no specific law exempting their salaries from seizure, we think it would be against public policy to permit public school affairs to be hampered by the seizure of the salaries of teachers. Our jurisprudence is uniform to the effect that the salary of a public officer is exempt from seizure, and, while our courts have not found it necessary to base their holdings upon the ground of public policy because our statutes especially make exemptions in favor of such officers, we have no doubt that, in the absence of any statutory exemption, our courts would have held that such salaries are exempt as a matter of public policy. In practically all the decisions there are statements and suggestions that to permit such course would be against public policy.

In a strict, literal sense, a public school teacher may not be a public officer, although courts- of last resort in many jurisdictions have considered them such in cases involving the question whether their salaries are subject to seizure under the provisions of statutes exempting officers’ salaries from seizure, and in the case of Fifth Avenue Library Society vs. Miss Hortense Kilshaw, 7 Orl. App. 496, the court specifically held that public school teachers are officers. But, whether they be termed public officers or not, their relationship to the public is precisely the same as that of public officers, and the same reasons, from the standpoint of public policy, why a public officer’s salary cannot be seized, apply to public school teachers. No distinction seems to have been made between public officers and public employees in cases of this kind, and it is well settled that the salary of neither can be seized while the same is in the hands of the board or disbursing officer.

“Upon grounds of public policy it is generally held that the salary or compensation of public officers and employees is not subject to execution, attachment, or garnishment, except under the authority of a statute broad enough to include them.” 23 C. J. p. 334. See, also, 12 R. C. L. 802.

This rule applies to public school teachers.

“In the absence of special statutory enactment, the general rule is that the salaries of public officers or employees, such as officers or employees of towns, cities, villages, counties, or of a state or the national government cannot be reached by garnishment or trustee process, on the ground of public policy.
“In conformity with the above rule, the better doctrine seems to be that salaries due to teachers and superintendents of public schools cannot be reached by garnishment or trustee process in the hands of school trustees or the county or municipal treasury.”

20 Cyc. 1030, 1031.

“The general rule of public policy whereby compensation for public service is judicially excepted from the operation of the general terms of the statutes defining garnishable property has been held to be applicable to the salaries of school officers. And, while there is some authority to the contrary, by the great weight of authority it is likewise applicable to the compensation of school teachers.” 28 C. J. 182; 12 R. C. L. 802.

The reasons generally assigned why salaries of public school teachers are exempt from seizure under garnishment process are found in the case of Chamberlain vs. Watters et al., 10 Utah, 298, 37 P. 566, where the court said:

“But there is another reason why the contention of counsel cannot avail the appellant. In the case at bar the defendant Watters was a teacher in one of the public schools in the city of Ogden, regularly employed by the board of education, which board was created by authority of the legislature for the benefit of the public. Thus employed, he was a public servant, receiving a stipulated salary; and no portion of such salary, so long as the money remained in the hands of the board, was subject to the process of garnishment. There is perhaps no class of persons more intimately connected with the welfare of the municipality than the teachers in the public schools. Their labors are of interest to the entire body of the people. As a general rule they belong to that class of persons who depend upon their salaries for the support of themselves and families. As a class, they are honorable, industrious public servants, and are generally poorly paid. If their wages, intended for the support of those dependent upon them, were subject to process of garnishment, the public might be deprived of their services at any time, and suffer great inconvenience because of interruptions in the management of the schools which would thus occur. The children of the country cannot be educated without competent teachers, and those teachers, usually devoting their whole time to their vocation, must have the necessaries of life; and their salaries ought not be subject to process which will tie them up, in the hands of a board of education, for an indefinite length of time, in disregard of the public interest. The territory has undertaken to establish, at great expense, a system of public schools, and it cannot allow the wages of the teachers to be intercepted, at the risk of the efficiency of the system being thereby impaired.” Bulkley vs. Eckert, 3 Pa. 368, 45 Am. Dec. 650; Bivens vs. Harper, 59 Ill. 21; Hightower vs. Slaton, 54 Ga. 108, 21 Am. Rep. 273; Allen vs. Russell, 78 Ky. 105; Wallace vs. Lawyer, 54 Ind. 501, 23 Am. Rep. 661; Bell vs. Ga. Mil. College, 32 Ga. App. 527, 124 S. E. 52; Born vs. Williams, 81 Ga. 796, 7 S. E. 868; Heilbronner vs. Posey, 103 Ky. 462, 45 S. W. 505; Tracy vs. Hornbuckle, 8 Bush (Ky.) 336; Flood vs. Libby, 38 Wash. 366, 80 P. 533, 107 Am. St. Rep. 851; School Dist. vs. Gage, 39 Mich. 484, 33 Am. Rep. 421; Millison vs. Fisk, 43 Ill. 112.

It is ordered, adjudged, and decreed, that the judgment appealed from be reversed; that the garnishment proceedings instituted by the plaintiff bank be Quashed, and the seizure of defendant’s salary in the hands of the Jackson parish school board be set aside; the plaintiff bank to pay all costs in both courts.


text:
    No. 3602
    Second Circuit
    CHRISTIAN v. LANGFORD MAHFOUZ AND WINKLER, Interevenors
    (November 18, 1929. Opinion and Decree.)

      Parsons and Colvin, of Mansfield, attorneys for plaintiff, appellee.
    Pegues & Pegues, of Mansfield, attorneys for intervener, Bert Winkler, appellant.
    W. M. Pollock, of Mansfield, attorney for Joe and T. Mahfouz, interveners and appellants.
   ODOM, J.

Plaintiff sued defendant to recover an indebtedness of $579.47, and had his property attached on the grounds set out in paragraphs 4 and 5 of article 240 of the Code of Practice. The sheriff, according to his returns, attached, along with other property on April 6th, “74 peeled, pine pilings, located on the right-of-way of the Texas & Pacific Railway at South Mansfield, Louisiana,” as the property of defendant.

Joe and T. Mahfouz intervened in the suit, claiming a privilege on the piling by virtue of a chattel mortgage thereon executed previous to the attachment. Bert Winkler also intervened, claiming a privilege on the same piling, under Act 195 of 1912, which creates a privilege on telegraph and telephone poles and cross-ties and the timber out of which the same are manufactured in favor of those who have furnished the stumpage, and for those who have furnished labor and other advances for getting out such poles, ties, etc.

There was judgment in the district court in favor of the plaintiff, maintaining the writ of attachment. From this judgment, defendant did not appeal. The court also granted judgment in favor of both interveners, against the defendant Langford for the amount sued for, but rejected their demands for recognition of their alleged privileges, and they have appealed.

INTERVENTION OF MAHFOUZ.

On March 31st, just prior to the date on which the writ of attachment was served, the defendant, Langford, made a chattel mortgage in favor of Joe and T. Mahfouz, covering the following described property:

“Seventy (70) 14-inch varied length pole pilings, situated on the right-of-way of the Texas & Pacific Railroad at South Mansfield, De Soto Parish, Louisiana.”

The district judge filed no written opinion setting forth his reasons for rejecting interveners’ claims to a privilege, but counsel state in their brief that the judge “held that the description of the property described in the chattel mortgage was not a sufficient description to identify the pilings in question,” and they state further that this is the sole question presented for our consideration.

In view of section 2, Act 198 of 1918, the Chattel Mortgage Law, reciting that every such mortgage “shall be in writing, setting out a full description of said property to be mortgaged so that same may be identified,” we hold that the judgment appealed from is correct.

The requirement under this statute is that the mortgage shall contain a “full description” of the property, “so that the same may be identified.” There was no full description of these pole pilings. They are described as “14-inch pole pilings.” That is as far as the description goes. They are said to be of varied lengths. It is not stated whether they were all of pine, oak or cypress timber, whether they were old or new, or whether the bark was still on them or peeled off.. A description, “14-inch varied length pole pilings” is no more definite than one describing cattle as so many four-year-old cows of various colors, or so many red cows of various sizes. Nor does the recital as to the place where situated help the description in this case. It is recited that they were situated “on the right-of-way of the Texas & Pacific Railway at South Mansfield, De Soto Parish, Louisiana.” There is no place on the right-of-way suggested. The Texas & Pacific Railroad may run for a full mile or more through South Mansfield. The poles intended to be mortgaged may have been scattered along the right-of-way all through the town, all on one side, some on each side, or they may have been stacked in piles of five, ten or twenty poles each, or all together. There is nothing to show, nor is there anything to suggest that the mortgagor did not own other pole pilings than those intended to be mortgaged. As a matter of fact, there is testimony in the record admitted on another branch of the case which shows that he did own other poles there. Then, how could a third person identify the particular seventy poles which the defendant intended to mortgage? Or assuming that there were 14-inch pole pilings on the right-of-way belonging to other persons, how could a third person point out those belonging to the mortgagor?

Counsel, in support of their contention that the description in this case is sufficient, cite the case of Commercial Bank of Arcadia vs. Simmonds (Bryan, third opponent), 2 La. App. 658, decided by us in 1925, in which case the late Judge Carver was the organ of the court, where it was said:

“Our understanding of Section 2, (referring to Act 198 of 1918) as copied above, is that it is not necessary that the chattel mortgage should contain such a description of the mortgaged property as will itself identify it, but it is sufficient if the description is such as that it may be identified; that is to say, anyone reading it may from the description contained in the act together with information derived from inquiries suggested by it, be able to identify it.”

Without reaffirming that particular holding and without here giving further specific sanction to it, but assuming that it is sound, the case does not support interveners’ contention.

The property there mortgaged was live stock and the description in the mortgage was as follows:

“Two mare mules of medium size weighing respectively about 900 or 1000 lbs, each about 5 years old the heavier mule being a dark bay and the lighter being a light bay in color, and the 2 mare mules about 6 years old weighing between 1000 and 1100 lbs. both Dlack, one bay mare about 10 years old named Lieu weighing about 950 lbs. with white spots in her face.”

In that case, the sex, approximate size and weight, age and color of the animals were specified. That description is about as definite as it could have been, the only thing left out which might have been stated was the place where the animals were located. The difference between that description and the one under consideration as to being definite is manifest. In the case at bar, the property is described as so many “14-inch pole pilings” situated on the right-ofway of a railroad. If a third person had read the description in the act of mortgage and had gone out to locate or identify the pilings, he could not have done so because there might have been others of the same kind. The description is wholly inadequate in view of the particular and specific wording of our Chattel Mortgage Law.

Durel vs. Buchanan, 147 La. 804, 86 So. 189;

Cont. Bank & Trust Co. vs. Succ. of McCann, 151 La. 555, 92 So. 55, 56.

In the latter case, the court said:

“It is clear that the full descripción sufficient to identify the property and serve as notice to all parties should appear in the written instrument itself, so that when recorded, it will serve the purpose intended by the statute.”

INTERVENTION OP BERT WINKLER.

This intervener, representing himself and others, claims a privilege on the pole pilings for stumpage and labor, under Act 195 of 1912, page 382.

A reading of that act discloses that the privilege granted is only upon telegraph and telephone poles and cross-ties, and the timber out of which the same are manufactured. But these interveners are claiming a privilege on “pole pilings” which are not mentioned in the act and we are not referred to any other law under which they might have a privilege. Privileges are strieti juris. Unless they are granted by some specific law, they do not exist and cannot be granted. The district judge may have rejected interveners’ demands for recognition of a privilege on this account. However, from the trend of counsels’ brief, we infer that the court was of the opinion that these litigants failed to identify the poles. Our reading of the record discloses that the one who claimed to have furnished the stumpage, as well as those who claimed to have performed the labor and furnished the supplies to make and haul them, utterly failed to identify the poles attached. One of the interveners claimed that he loaded all the poles, presumably when they were shipped out. Even if it be conceded that Act 195 of 1912 should be so construed as to include pole pilings, thip party would have no privilege because none is granted to those who load them.

The judgment appealed from is correct and is therefore affirmed, with costs' in both courts.


text:
    No. 3612
    Second Circuit
    CARTER v. BOLDEN ET AL.
    (November 18, 1929. Opinion and Decree.)

      Parsons & Colvin, of Mansfield, attorneys for plaintiff, appellee.
    Pegues & Pegues, of Mansfield, attorneys for defendants, appellants.
   WEBB, J.

In this matter, defendants appealed from a judgment declaring certain transfers of immovable property by plaintiff to defendant, her daughter, to have been null and void, from which judgment defendants obtained orders of appeal returnable here on May 15, 1929.

Appellants filed appeal bonds within ten days from the date of the judgment for the amounts fixed under the order, but the transcript was not filed until June 5, 1929, and appellee moves to dismiss the appeal, to which appellants answer that the failure to file the transcript was not due to their fault and that “ the transcript was filed with the consent of counsel for appellee. . \

Passing the effect which might result from any consent of the appellee to the filing of the transcript after the return date, the rules of this court provide that the transcript of appeal shall be sent to the clerk of this court by' the clerk of the district court in time to be filed here on or before the return day, under which it is the duty of the clerk of the district court to file the record in this court, and it is not alleged or any showing made that the failure to file the record here was due to the fault of appellants, and the motion to dismiss the appeal is refused. (Stockbridge vs. Martin, 162 La. 601, 110 So. 828.)


text:
    No. 3641
    Second Circuit
    HOUSEMAN SHEET METAL WORKS v. KAUCHER-HODGES & CO.
    (November 18, 1929. Opinion and Decree.)
    Harry V. Booth, of Shreveport, attorney for plaintiff, appellant.
    Cook & Cook, of Shreveport, attorneys for defendant, appellee.
   WEBB, J.

Kaucher-Hodges & Company, defendant, contracted, with the city of Shreveport to construct a building according to plans and specifications, and defendant sublet a part of the work to plaintiff, who instituted this action against defendant for alleged extra work.

The question presented was whether or not the specifications for the work undertaken by plaintiff included the alleged extra work, and it is conceded that plaintiff carried the burden of proof, and further, that before the alleged extra work was done, plaintiff had taken the position that the specifications did not call for such work, or for the character of materials which the supervising engineers of the city demanded should be used, and the question was agreed to be submitted to arbitration by well-known contractors, who held that the materials which the engineers demanded should be used in the work were called for under the specifications, and plaintiff then proceeded to do the work with full knowledge that the defendant construed the specifications as including the work which plaintiff now contends was not included in the specifications.

On trial, the ¡finding of the arbitrators was not pleaded as binding on plaintiff, and it is contended that the contractors, to whom the question had been submitted, should not have- been permitted to state their opinion, which was reached on their previous examination of the specifications and inspection of the work.

The objection goes rather to the effect of the evidence than to its admissibility, and the opinion of the contractors having been shown to have been reached after considering the specifications and contract of plaintiff, admitted to have been based on the specifications, there is not anything in the record which indicates that the opinions of the contractors called by defendant should be given less weight than those called by plaintiff, who are certainly not shown to have been any better qualified or more conversant with the matter than the contractors called by defendant.

Considering the evidence of the experts called by defendant, as well as that of the experts called by plaintiff, relative to the construction of the specifications, there cannot be any question that plaintiff failed to establish that the work and materials for which additional compensation was claimed, was not included in and called for by the specifications, and the judgment rejecting plaintiff’s demands is affirmed.


author: WEBB, J. ODOM, J.

text:
    No. 3569
    Second Circuit
    LUKE v. CADDO TRANSFER & WAREHOUSE CO.
    (July 1, 1929. Opinion and Decree.)
    (November 18, 1929. Opinion and Decree on Rehearing.)
    (December 2, 1929. Writ of Certiorari and Review Refused by Supreme Court.)

      R. G. Chandler and R. D. Fuller, of Shreveport, attorneys for plaintiff, appellee.
    Barksdale, Bullock, Warren, Clark & Van Hook of Shreveport, attorneys for defendant, appellant.
   WEBB, J.

This is an action in damages for personal injuries alleged to have been sustained by plaintiff as the result of defendant’s fault.

Plaintiff alleged, in substance, that, while he was lawfully riding on a truck owned and being operated by defendant, the driver of the truck had driven it against a brick post supporting a building, demolishing the post and causing a part of the building to collapse, and that the brick and debris from the building fell upon him, resulting in fracturing the sixth and seventh ribs on his left side and the transverse process on the left side of the lumbar spine with a displacement of same, and that as a result of the injuries he had been confined to his bed for ninety days, and that he had been seriously and permanently disabled to do any work; and he prayed for judgment against defendant in the sum of $7,044.50, which was itemized as follows: sanitarium bills, $39.50; physicians’ fees, $125; loss of time, $480; physical pain and suffering, $1500; loss of earning power, $3500; and mental pain and suffering, $1500.

Defendant filed a plea of prescription of one year, and plaintiff admitted that the suit had been brought one day after the expiration of one year from the date of the accident and injury.

However, the plea was referred to the merits, and defendant answered, pleading that the petition failed to state a cause of action and again pleading prescription, as above, and otherwise denying plaintiff’s allegations. And the case being tried and submitted, judgment was rendered in favor of plaintiff for $1500, and defendant appealed.

The stenographic notes of the evidence introduced on trial of the case, or on which it was submitted, were lost or misplaced, as appears from an agreement of counsel in the record which reads as follows:

“This cause was tried in part on the evidence in the case of Hollingsworth B. Barrett versus Caddo Transfer & Warehouse Co., and the note of evidence has been misplaced. The District Court rendered judgment for $1500.00 and there is no contention as to the amount of the judgment if defendant is liable at all. The case is brought to this court solely on the plea of prescription of one year, which was overruled or referred to the merits by the District Judge; and this note of evidence being unnecessary to determine this point, it is agreed between counsel for plaintiff and counsel for defendant that the transcript be filed and the case considered by the court without this note of evidence.”

Counsel, in presenting the cause, have considered only the plea of prescription. It is evident, however that the appeal having been taken after trial on the merits, that the appeal was from the entire judgment and not merely from any ruling that the court may have made on the plea of prescription; and the appeal being thus taken, it was essential, we think, that the stenographic notes of the evidence should have been brought up with the record, or that a statement of the facts should have been made (Parish of St. Martin vs. Baker, 30 La. Ann. 1092).

However, if it could be said that the cause could be brought up on appeal, where the cause has been tried and considered on the merits, solely for the purpose of determining the correctness of a ruling on an exception or plea which had been referred to the merits without objection, we think it would be essential that there should be a statement of the facts relevant to the exception’ or plea, as it cannot be said that the court may determine whether a plea should or should not be sustained without considering the facts relevant to the plea.

There is not any such statement in the record. Neither is there an agreement that the court should accept the allegations of fact contained in the petition, insofar as relevant to the plea, as true and inclusive, or whether the allegations should be thus considered, except as changed by the admission that the suit was brought one day after the expiration of one year from the date of the accident and injury, ■ and under the circumstances we must decline to consider the case, and it is therefore ordered that the appeal be dismissed.

ON REHEARING

ODOM, J.

The facts in this case were fully stated in our original opinion. We granted a rehearing upon the application of appellant, concurred in by counsel for appellee. Along with the application for rehearing, the parties filed two joint stipulations, to-wit;

1. “Both parties in this case agree that the allegations of plaintiff’s original and supplemental petitions are true and correct and may be considered by the Court in deciding this case on appeal. It is, however, understood that the date of the accident in this case occurred on January 30, 1923, and that the date of January 31, 1923, alleged in plaintiff’s petition is incorrect in that particular instance.”
2. “In this cause, it is agreed by and between counsel for plaintiff and counsel for defendant that in the stipulation heretofore filed herein it was understood that for the purposes of the plea of prescription filed in this suit, the allegations of the petition should be taken as proved, or taken as true, that it is desired by both plaintiff and defendant that the plea of prescription be passed on and it is now specially agreed that for the purposes of said plea of prescription and the consideration thereof by the court, all the allegations of plaintiff’s petition be taken as true.”

Under Article 3536 of the Civil Code, tort actions are prescribed by one year, and under Article 3537, the prescription runs from the date on which the damage was sustained.

Citation of authorities is unnecessary now to support the legal proposition that, as to tort actions, prescription begins to run from the date on which the damage was sustained and not from the date on which the wrongful act was done. The wrongful act complained of in this case was done on January 30, 1923, and the suit was filed on January 31, 1924 — more than one year later. So that, if the allegations of plaintiff’s petition which, under the stipulations filed, we are to take as true or proved, show that the damage for which he seeks redress was sustained on January 30, 1923, the date of the accident, his action is barred and plaintiff’s plea of prescription of one year must be sustained.

Plaintiff brings this suit to recover damages for personal injuries. He alleges that one of defendant’s truck drivers invited him to ride on the truck to a certain place in the city of Shreveport and that while on the way the truck driver negligently drove the truck against and knocked down a post which supported part of a brick structure, and that “the said post and said bricks of the brick building were dislodged, the bricks completely covered up your petitioner with such force that he was seriously and permanently injured and the said driver was instantly killed. * * * That at the time of the accident and due to the accident, petitioner’s sixth and seventh ribs in the axillary were fractured on the left side, also a fracture of all the transverse processes on the left side of the lumbar spine, with displacement of same * * *. That as a result of said injuries, petitioner was confined to his bed for ninety days and to this day is unable to attend or do any kind of work, nor will he ever be able to do any kind of manual work, the only kind of work that your petitioner is competent to do or has evep done. That due to the accident and the injuries at the time, your petitioner will forever be permanently disabled to perform any manual labor or to do any kind of heavy work whatsoever.”

These allegations make it clear that plaintiff was damaged the moment the brick post and wall fell upon him. He was instantly injured and instantly damaged. He alleges that due to the accident and injuries “at the time” he is disabled; “that at the time of the accident and due to the accident his ribs were broken and all the transverse processes on one side of his spinal column were fractured and displaced, and that as a result, he was confined to his bed and was permanently disabled.” He sues to recover damages resulting from these injuries. Under his allegations, it is clear that his injuries instantly disabled him. When the brick wall fell upon him, he was injured and instantly damaged and his cause of action arose the moment he was damaged. The falling of the bricks upon him crushed his body and produced personal injuries. These injuries instantly produced a condition from which all the damages which he claims arose. His cause of action arose then. In tort actions prescription begins to run from the moment the cause of action arises and the cause of action arises, as already stated, when the damage is done.

But counsel for plaintiff argue that his cause of action did not arise until such time as he could determine definitely the result of his injuries. He suggests, for instance, that he could not know on the day he was injured how long he would be disabled, how long he would suffer, how long he would be confined in the hospital and what expenses would be incurred until later, and that he could not fix the amount of his claim as a basis for his suit until the time had elapsed and such expenses had been incurred. The answer to that argument is that his petition shows that he was confined to his bed for only ninety days, during which time he could, of course, dp no work and was attended by a physician, had endured pain and suffering — for all of which he claims damages. At the end of that time, he could have definitely determined at least a portion of his damages, as well as later. After he was released from the hospital he then had nine months in which to file his suit, and he suggests no reason why he could not have filed it within that time. Plaintiff further suggests that neither he nor anyone else could know that his injuries would not cause his death. But this is an action for damages caused by personal injuries. If he had died, then his children or surviving spouse or his father, mother, etc., would have had a cause of action for damages caused by his death “for a space of one year from the death,” under Article 2315 of the Code. But this is a personal injury suit brought by the party injured to recover damages for pain and suffering, loss of time, expenses and loss of earning power- — all caused by the injuries sustained, according to his petition, at. the time the unlawful, wrongful act was committed.

In support of his contention that prescription did not begin to run on the date of the accident, counsel cite the leading cases of Guderian vs. Sterling Sugar & Ry. Co., Ltd., 151 La. 59, 91 South. 546; Rady vs. Fire Insurance Patrol of New Orleans, 126 La. 273, 52 South. 491, and Jones vs. Texas & Pacific Ry. Co., 125 La. 542, 51 South. 582, 136 Am. St. Rep. 339.

These cases do not support his contention. In the case of Guderian vs. Sterling Sugar & Ry. Co., Ltd., plaintiff brought his suit under the Workmen’s Compensation Act for total disability on account of the loss of an eye which, due to the fact that he had previously lost the other one, rendered him totally blind and therefore totally disabled from doing work of a reasonable character. The loss of the eye resulted from a blow which at first produced no injurious effects upon it, but later caused its loss. Plaintiff instituted his suit more than one year after the date on which the blow was struck, but less than a year from the date of the loss of the eye. Defendant pleaded the prescription of one year, under Section 31 of the Compensation Act which provides that in case of personal injury all claims shall be forever barred unless within one year after the injury or death the parties shall have agreed upon the payments to be made or proceedings have been begun. The Court overruled the plea, but said:

“The injury consists in the loss of an eye * * *. Plaintiff’s cause of action did not arise until he lost his eye. It is self-evident that one cannot sue until his cause of action arises. * * * He had no cause of action at that time (referring to the blow) under the Employer’s Liability Act. His cause of action was in process of development, but without knowledge of this fact on his part or means of' knowledge.”

In the case of Rady vs. Fire Insurance Patrol of New Orleans, supra, a mother sued for damages for the death of her son, and the court held that prescription ran from the date of the child’s death, and not from the date' of the injury. That is necessarily true because the mother’s cause of action was the damages which she sustained on account of the' death of her son. She was not damaged until the son died, and therefore had no cause of action until that time.

In the case of Jones vs. Texas & Pacific Ry. Co., supra, the plaintiff brought suit for damages for the value of a mule which died as the result of injuries inflicted by one of defendant’s trains, and also for $25, consisting of his expense in treating the mule while injured and for the loss of the use of the animal. The court held that the former items were barred by prescription because the suit was instituted more than a year from the date of the injury to the mule, but that the item for the value of the mule was not prescribed because the suit was instituted less than a year from the date on which the mule died. As to the item for the value of the mule, the court held that the cause of action did not arise until the mule died and prescription did not begin to run until then. The facts were that the mule was only slightly injured by the accident and “the serious nature of his injuries was not known until revealed by his death. He was not even lamed, although he revealed a disinclination or disability to move faster than a walk. He was struck on the hip, receiving a wound supposed to be a mere flesh wound.” The mule was turned loose to get well, but instead, it died as the result of the injury. The question presented was whether prescription ran from the date of the accident or from the death of the mule, and the court held that it ran from the latter date.

This case, in ¡principle, is similar to that of Guderian vs. Sterling Sugar & Ry. Co., Ltd., supra, in two respects, and the court’s ruling is the same in each case. In the Guderian case, the injury consisted in the loss of an eye, not in the slight blow which caused the loss; and in the Jones case, the loss and damage to plaintiff was the value of the mule, caused by its death. In the former case the cause of action did not arise until the loss of the eye, and in the latter, until the death of the mule. In each case, the cause of action was in process of development from the date of the accident up to the happening of the event which caused the loss, but without knowledge of the fact or means of knowledge on the part of the plaintiffs.

The Jones case is relied upon mainly by counsel for plaintiff. But it is easily distinguishable in principle from the case at bar. In that case, as stated, the damage sustained by plaintiff was the value of the mule, and until its death, the measure of damage was not known, and therefore, plaintiff had no cause of action for it. The cause of action was in ¡process of development from the date on which the mule was injured and came into existence only at its death.

In the ease at bar, plaintiff’s cause of action was never in process of development. He was crushed, his ribs ' were broken, and the processes of his spinal column were broken and displaced when a portion of a brick wall fell upon him. He was instantly injured, disabled, took his bed, lost time and incurred expenses, and thereby suffered loss and damage which resulted directly from the injuries received at the moment the unlawful, wrongful act was done.

It is true that the damage resulting from the injuries was destined to be suffered in the future; nevertheless, those injuries exhibited a present degree of certainty which justified their being made the basis of a judgment. The nature and extent of the injuries were known immediately and weré such, as to make it sure that plaintiff would suffer loss and damage therefrom.

The organ of the court in the Jones case made the following translation from the note to the decision of the Court of Cassation in the case of Chemin de Fer du Midi c. Paraire, Journal du Palais, 1877, page 281:

“The rule to which we have just referred must be judiciously applied. Due care must be taken not to confound the future and uncertain prejudice which cannot serve as the basis for judgment, and the damage which, although destined to be suffered only in the future, does none the less exhibit in the present a degree of certainty and actuality which justifies its being made the basis of judgment.”

And then, to sum up the whole matter, he said:

“In other words, in order that prescription should run, it is not required that the loss should have been already suffered, but only that the fact that it is going to be suffered, or is sure to result, should be sufficiently certain to serve as a basis for a claim of damages in court.”

A careful consideration of the Jones case shows that, instead of supporting plaintiff’s contentions, it refutes them.

In the first place, the court specifically held that in order for prescription to run, it is not necessary that the loss should have been suffered already, “but only that the fact that it is going to be suffered or is sure to result, should be sufficiently certain to serve as a basis for a claim for damages in Court.”

Again, it will be noted that the plaintiff in that case sued upon a claim for three items of damage, to-wit: first, the value of the mule; second, the expense incurred in taking care of it; and third, for the loss of its service during its illness. The court held that plaintiff had a right to recover the entire amount of each item, but that the items for expense incurred in taking care of the mule and for the loss of its use ■ had prescribed, and said:

“But the item for the value of the mule did not come into existence until the death of the mule and prescription did not commence to run on it until then, as has already been shown.”

It is manifest that if prescription began to run as against” the claims for treating the .mule and for the loss of its use on the date the mule was injured (and the court held it did), then prescription began to run against the claim of plaintiff in the present case from the date of his injury.

The lower court should have sustained the plea of prescription.

For the reasons assigned, it is now ordered and decreed that the judgment appealed from be reversed; that defendant’s plea of prescription of one year be sustained; and plaintiff’s suit dismissed at his costs in both courts.


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    No. 3647
    Second Circuit
    BRUNSON v. BARNWELL
    (November 18, 1929. Opinion and Decree.)

      Cook & Cook, of Shreveport, attorneys for plaintiff, appellee.
    Barksdale, Bullock, Warren, Clark & Van Hook, of Shreveport, attorneys for defendant, appellant.
   WEBB, J.

Defendant appeals from a judgment in favor of plaintiff for damages resulting from an automobile collision which occurred at a street intersection in the city of Shreveport.

There is not any dispute as to the extent of the damage to plaintiff’s car, and while defendant pleaded that the collision was due solely to the fault of plaintiff, it is urged here that the evidence established that both parties were at fault.

The intersection was twenty-eight feet square, and plaintiff approached and entered the intersection from the east, while defendant approached and entered the intersection from the north, and the collision occurred at a point northwest of the center of the intersection, the front of plaintiff’s car having traversed a distance of approximately twenty-two feet, while the front of defendant’s car had traversed a distance of less than fourteen feet. Plaintiff estimated the speed of his car at from ten to twelve miles an hour, while defendant estimated the speed of both cars at fifteen miles per hour.

Assuming that the estimated speed of the cars was approximately correct and considering the point on the intersection where the collision occurred, it would appear that at the time plaintiff’s car arrived at the intersection, defendant’s car would have been approximately twenty feet from the intersection, and appellant urges that even though it be held that plaintiff’s car, being the first to reach the intersection, had the right of way, the circumstances stated show that he should be held to have taken a chance of colliding with defendant’s ear.

While it must be conceded that a driver of an automobile, having the right of way at an intersection, is not relieved of exercising ordinary care to avoid colliding with other cars approaching the intersection from other streets and should not be permitted to recover damages resulting from a collision on the intersection, if it appears that there was danger of colliding with a car approaching the intersection, if he knew of such danger, or should have known of ' danger with the exercise of ordinary-care, or that the failure to realize the danger was due to his failure to approach the intersection with his car under control, or to observe the cross street before driving on the intersection.

If the only fact established was the point on the intersection at which the collision occurred, it might be assumed, if the estimate of the speed of the cars is accepted as correct, that both parties were negligent. However, plaintiff testified that he had approached the intersection with his automobile under control, and that prior to entering the intersection, he had observed the cross street and that there was not any vehicle approaching the intersection within a distance of fifty or sixty feet, and, assuming that the estimate of the distance was correct, it could not be said that plaintiff was negligent in entering the intersection, as he had the right to assume that others approaching the intersection would have their cars under control and would maintain a lookout for traffic entering the intersection, and it is not suggested that the driver of an automobile who approached the intersection exercising such care, would not have ample time and space to avoid collision with vehicles which entered the intersection in advance of him.

The record indicates that the parties were very frank and candid in their version of the incident, but it clearly shows that defendant did not exercise ordinary care, and the evidence conclusively establishing that plaintiff’s automobile was the first to reach the intersection with his car under control, and that he did observe the cross street prior to entering the intersection, and the defense urged being that at the time plaintiff entered the intersection there was in fact an apparent or obvious danger of collision with the automobile operated by defendant, the burden of proof was on the defendant to establish the fact.

We realize that estimates of distances, as well as of speed, are often not reliable; however, in order to find that there was an apparent or obvious danger of collision between the cars at the time plaintiff drove on the intersection, we would have to accept the estimates of speed as correct and ignore the estimate of distance.

However, the record does not, we think, authorize the evidence to be so considered, and as defendant carried the burden of proof to show that the plaintiff, who had the right of way, had not exercised due caution in the face of an obvious danger, we do not think that it can be said that evidence which may lead to the conclusion that a fact did or did not exist, is sufficient to establish the fact. Further, the evidence showing that plaintiff approached the intersection with his car under control and that he observed the cross street before entering the intersection, it is not to be presumed that he then cast aside precaution and proceeded in the face of danger, and we are of the opinion that the estimate of the distance made by him at that time is more reliable than the estimate of speed made by defendant as he became aware of the certainty of the collision.

The judgment is affirmed.


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    No. 2889
    Second Circuit
    PAGE v. LOUISIANA REAL ESTATE & DEVELOPMENT CO.
    (November 18, 1929. Opinion and Decree.)
    Cook & Cook, of Shreveport, attorneys for plaintiff, appellee.
    George Thurber, of Shreveport, attorney for defendant, appellant.
   ODOM, J.

Plaintiff in his petition alleges that the defendant company is due him the sum of $585 for rent on certain real estate which he owns in the Parish of Caddo, which rent, he alleges, was collected from a tenant named John Gilliam, by the defendant company, and which amount the defendant company now refuses to pay.

The defendant, in its answer, denies generally all of plaintiff’s allegations, and. in Section VIII of the answer it is alleged:

“Further answering, defendant shows the Court that it has never collected rents from the said John Gilliam for the occupancy of any portion of land belonging to plaintiff.”

Counsel for both plaintiff and defendant state in briefs that this case bears wholly upon questions of fact, the only question being whether certain rents which were admittedly collected by defendant were due for property owned by the plaintiff, it being conceded by defendant that if the land on which defendant collected these rents is the property of plaintiff, then it is due plaintiff the amount of rents collected.

The testimony shows beyond . question that John Gilliam, the tenant from whom defendant collected the ' said amounts, did not during the whole period of time over which those rents were being collected by defendant, occupy or cultivate any land, except that owned by the plaintiff, Page, with the exception of a small strip estimated to be 300 by 345 feet, said by Gilliam, the tenant, to contain about two and one-half or three acres.

There is no question about the identity of the land which is owned by the plaintiff. It seems that a number of years ago the defendant company acquired a large tract of land in that vicinity from a man by the name of Carter. The land was subdivided by the defendant into 10-acre lots, which lots were sold to various individuals, the plaintiff having acquired some three or four of the lots. These lots may have been surveyed when the property was subdivided, but tbe testimony shows that up until 1923 the lines had not been definitely staked or marked. But in that year the land was surveyed and marked. The tenant, Gilliam, was called as a witness and he testified positively that he knew the exact location of plaintiff’s land from the stakes which had been set by the survey- or, and that from about 1914 down to 1923, inclusive, he had occupied a residence on plaintiff’s land and that he had cultivated no land at all, except the Page land and a small strip to the north of it, containing 2% or 3 acres. Charles Hooks, a colored man, who stated that he was born in 1845, and had known and had frequently been over all this land for the' last fifty years, testified that to his personal knowledge the tenant, Gilliam, had cultivated no land in that vicinity, except that which belonged to Mr. Page and a small strip to the north of it. He testified further that he was very familiar with the boundaries of plaintiff’s land, having seen the stakes and markers set by the surveyors. Robert Gilbert, another colored man, who lives in that vicinity, testified positively that to his personal knowledge the tenant, Gilliam, had cultivated no land, except that which belonged to the plaintiff. These colored people — not one of whom had any interest in the outcome of this litigation and knew nothing of the merits of the controversy between these litigants — are the only witnesses called who had any definite knowledge as to the real (point in controversy. Mr. Bluestein and Mr. Schutt, both connected with the defendant company, testified that the tenant, Gilliam, had contracted with the defendant company to pay $45 a year for as much of the land which the company owned as he desired to cultivate. But neither of these witnesses had any definite knowledge as to just what lands Gilliam had been cultivating. To illustrate, Mr. Bluestein was asked whose land it was that Gilliam had in his field and he answered that it belonged to the Louisiana Real Estate & Development Company. He was asked how he knew that, and he answered:

“Well, I don’t know, but we own land there and he could have had any land we had because we had that agreement and he was up there long enough.’’

As we have stated, the Carter tract was subdivided into lots of ten acres each and the lots were sold to various individuals, and what was not sold was owned at the time of this suit by the defendant company. It is no doubt true that when the defendant company, through Mr. Bluestein and Mr. Schutt, collected these amounts from Gilliam, it did so in good faith thinking that the amounts due were for rent on land owned by the company. But the testimony makes it perfectly clear that they were mistaken. As stated, it is conceded that if the land cultivated by the tenant, Gilliam, belonged to the plaintiff, then the rents were due him and that the defendant should make good the amounts to plaintiff.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from be affirmed, with costs in both courts.


author: JANVIER, J.

text:
    No. 11,391
    Orleans
    W. W. CARRE CO., LTD., v. DI CARLO
    (November 18, 1929. Opinion and Decree.)
    Buck, Walshe & Buck, of New Orleans, attorneys for plaintiff, appellee.
    O. S. Livaudais, of New Orleans, attorney for defendant, appellant.
   JANVIER, J.

This is a suit on a promissory note which was given to cover the balance due on an open account. In the petition judgment is asked for $448.13, less a credit of $200, and it is admitted in the petition that the $200 is made up of payments as follows:

9/4/24 — cash ___________________________________________$ 50.00
7/7/25 — cash ___________________________________________ 50.00
10/20/25 — cash _________________________________________ 50.00
12/16/25 — cash __________________________________________ 25.00
11/4/26 — cash ____________________________________________ 25.00
$200.00

It appears that the payments referred to were made by check, and on production of the checks the dates of the respective payments admitted in the answer were shown to be erroneous, the check in each instance being one year later than the date shown in the answer. Defendant seeks to take advantage of this and to claim that he has paid not only the $200 admitted in the answer, but $200 in addition, as represented by the checks.

We are quite well convinced, as was the trial judge, that $200 was all that was paid on account, and that the plaintiff’s records were in error insofar as dates were concerned. Defendant relies entirely on the records of plaintiff and made no effort to produce affirmative proof showing the payments which he claims to have made.

This is manifestly a case for the application of the doctrine that the finding of the trial court will not be reversed where only facts are involved, unless that finding is manifestly erroneous.

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


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    No. 11,397
    Orleans
    GENERAL SUPPLY CO. v. BARTH & BARTH
    (November 18, 1929. Opinion and Decree.)
    "Weiss, Yarrut & Stich, of New Orleans, attorneys for defendants, appellants.
    O. S. Livaudais, of New Orleans, attorney for plaintiff, appellee.
   JANVIER, J.

Plaintiff was engaged in the business of selling paints and painter’s materials. Defendants were engaged in the painting of houses. For something over a year defendants had been dealing with plaintiff and had purchased from them paints and other supplies. This suit is for the collection of an alleged open account balance of $685.65. The defense is in effect a general denial.

Plaintiff, through its officer, testified positively to the delivery of all of the articles set forth in the statement attached to the petition and the defendants’ denial that they received the articles is most evasive and vague. In fact, the attitude of defendants appears to us to be most unreasonable. One of them, William Barth, testified that he would never pay for any article unless the vendor could produce his signed receipt. In an attempt to substantiate their defense the defendants produced as a witness one W. F. McCabe. The purpose of putting him on the stand was, apparently, to prove that defendants never accepted deliveries of goods without executing receipts therefor. The effect of Mc-Cabe’s testimony is very much weakened by the showing that the defendants are now contending that they did not receive several articles which had been sold to them by McCabe when he was working for plaintiffs. He identified invoices covering goods sold by him to defendants which they deny having received. The effect of this is, in our judgment, proof that those goods at least were sold and delivered, although defendants deny receiving them.

The record is voluminous, consisting of nearly two hundred pages of testimony. Nothing but questions of fact are involved and in our judgment the principle that an appellate court should not overturn the finding of a trial court on a question of fact, unless it is manifestly erroneous, is particularly applicable here. The judgment rendered by the lower court was in favor of plaintiff for $685.65, with legal interest from judicial demand, and as we think that judgment is correct, it is affirmed.


author: WESTERFIELD, J.

text:
    No. 11,168
    Orleans
    ALFORD v. LYONS
    (November 18, 1929. Opinion and Decree.)
    Charles Carroll and A. J. Plough, of New Orleans, attorneys for plaintiff, appellant.
    Edward Rightor, of New Orleans, attorney for defendant, appellee.
   WESTERFIELD, J.

Plaintiff sues the defendant for damages for personal injuries sustained as the result of an accident caused by a collision between defendant’s automobile and plaintiff’s motorcycle.

Plaintiff, who was employed by the United States Government as a special delivery messenger, whs riding his motorcycle down St. Charles Avenue in the direction of Canal Street, and, the defendant was driving his automobile in the same direction and just ahead of plaintiff. As both vehicles approached the intersection of Palmer Avenue, plaintiff, desiring to pass defendant’s automobile, sounded his horn, as an indication of his intention, whereupon defendant moved slightly to the right and turned sharply to the left, colliding with plaintiff’s motorcycle in the intersection of Palmer Avenue, upon the neutral ground. As a result of the accident a bone in plaintiff’s right foot was broken causing him considerable pain and suffering.

The defendant denies having heard the plaintiff’s horn, and claims that as he approached Palmer • Avenue he put out his hand to indicate his intention to turn into the intersection, and that in order to make the turn it was necessary for him to move slightly over to the right for the reason that Palmer Avenue enters St. Charles Avenue at an acute angle; that without any knowledge of plaintiff’s approach from his rear, he turned into the intersection when he was run into by plaintiff’s motorcycle which was proceeding very fast, in order, as defendant claims, to beat him across the intersection.

Plaintiff is supported in his version of the accident by two witnesses and defendant by two witnesses. As we read the record we find the case to be very close. We have concluded, however, to affirm the judgment because it is supported by the verdict of the jury, whose determination of questions of fact, as we have often said, should not be lightly disregarded.

For the reasons assigned the judgment appealed from is affirmed.


text:
    No. 11,383
    Orleans
    GRANEN v. CRAVEN & LANG
    (November 18, 1929. Opinion and Decree.)
    John J. Wingrave, of New Orleans, attorney for plaintiff, appellant.
    William A. Porteous, of New Orleans, attorney for defendant, appellee.
   JANVIER, J.

Plaintiff seeks to recover for personal injuries alleged to have been caused by falling as a result of stepping into a hole which she alleges was left by defendants while paving a part of Canal Street with concrete.

She testifies that she stepped into the hole alongside of or near the neutral ground and that it was so deep that she went in nearly up to her knee. Her principal witness, who picked her up immediately after the fall, had no recollection whatever of having seen any hole and the evidence of two witnesses who examined the street the next morning proves conclusively that there was no hole such as plaintiff describes. The first layer of concrete had been laid some days before and in this layer of concrete there were small holes about one-half to three-fourths of an inch deep,- placed there for the purpose of allowing the top dressing to hold firmly to the first layer, but these holes were so small as to be inconsequential.

The trial court found in favor of defendant and in its reasons for judgment stated:

“It is evident that this lady fell from some other cause than the hole in the paving, because there was none there * * *”

In this we think he was entirely correct.

For these reasons it is ordered, adjudged and decreed that the judgment appealed from be and it is affirmed, at the cost of appellant.