text:
    No. 10,545
    Orleans
    REDDING, Appellant, v. WILSON & CO. OF LA.
    (March 28, 1927. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Master and Servant —Par. 54, 55.
    Defendant, a ¡packing company, was not negligent in failing to furnish plaintiff, an independent contractor, a safe place to work and to warn him of possible hidden dangers, when plaintiff, who had been for years consulted in an advisory capacity and' who was called in on the day of the accident as an expert to supervise the adjustment of the ammonia pipes and valves of the refrigerating plant, was injured by the breaking of a corroded bolt, “not visible to the naked eye”. ■
    Appeal from Civil ' District Court, Division “D”. Hon. Porter Parker, Judge.
    Action by John A. Redding against Wilson & Company of Louisiana, Inc.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Joseph H. Brewer, of New Orleans, attorney for ¡plaintiff, appellant.
    John May, of New Orleans, attornev for defendant, appellee.
   JONES, J.

This is a suit for twenty-five thousand four hundred, and ten dollars ($25,410.00) damages for personal injuries.

In response to plaintiff’s petition, defendant filed an exception of no cause of action, which exception was sustained by the District Court, and. plaintiff has appealed.

- Plaintiff alleges that he is an experienced mechanical engineer and was, for many years, employed in such capacity by the defendant, but left defendant’s employ on or about June 15, 1921, and ceased to be a salaried employee from about that date; that from time to time thereafter it was defendant’s custom and habit to call upon petitioner to care for and adjust the ammonia valves, piping and machinery of its . ice or refrigeration plant located at its place of business, 401 St. Joseph street, and that at such times defendant furnished petitioner the necessary mechanic or helper to assist petitioner; that upon such occasions petitioner was employed at no specific or stipulated compensation, but was called in as an engineer or ice-plant executive or expert to adjust and supervise the adjustment of the valves, pipes and machinery of said plant and that upon the completion of his services, petitioner would render a bill for their value, which would in due course be paid by defendant; that after leaving the regular employment of defendant, petitioner was regularly employed by the Standard Oil Company of Louisiana, as plant engineer, and that the professional services rendered by petitioner to defendant in connection with the adjustment of the valves, pipes. and ice-plant of defendant were rendered during petitioner’s lunch hour and after his regular hours of employment, by the Standard Oil Company of Louisiana.

Petitioner further says that on August 19, 1925, about eleven thirty o’clock a. m., he was called in by defendant’s plant manager, and was engaged in the work of adjusting and supervising the adjustment of the ammonia valves and pipe lines of said ice-plant or refrigeration plant, with the aid and assistance of a mechanic employed and furnished by defendant, when, suddenly, without warning, a terrific explosion of the ammonia cleanout to the ammonia expansion valve of said ice or refrigeration plant occurred, which resulted in your petitioner sustaining severe ammonia burns, etc.

Petitioner says further that such explosion and resulting injuries were due to the negligence of defendant, in maintaining and operating an ammonia ice or refrigeration plant, of which the bolt of the ammonia expansion valve cleanout was defective, and which contained a corroded bolt not visible to the naked eye of your petitioner, and the condition of which could not have been ascertained by your petitioner except by a thorough inspection of said machine at a time when the same was not in operation and that your petitioner was given no warning whatever of the unsafe or defective condition of said cleanout to said ammonia expansion valve, or the danger of an explosion thereof, by either the defendant or by any of its agents, servants, etc.; that he was reguested and permitted, without warning, to -work upon and in close proximity to said defective bolt and said defective ammonia expansion valve clean-out.

Petitioner further avers that defendant was under a legal duty to maintain its machinery in a reasonably safe and sound condition and to cause proper inspection thereof to be made at reasonable intervals and not to expose your petitioner to any unusual or extra hazards by reason of its failure to do so, or to warn your petitioner of the existence of such defects.

Petitioner’s suit is thus brought primarily under Article 2315 of our Code.

But in the alternative, petitioner asks that should the court find, as a matter of law, that petitioner comes within the Louisiana Compensation Law, that there be judgment in petitioner’s favor for such sum as the court may find to be due under such law.

Section 3, paragraph 8 of Act 20 of 1914, the Compensation Statute of' Louisiana, reads, in, part, as follows:

“The term wages as used in this act is defined to mean the daily rate of pay at which the service rendered by the injured employee is recompensed under the contract of hiring in force at the time of the accident.”

Here plaintiff had no contract of hiring; on the contrary he avers in paragraph two of his petition that he left the employ of defendant on June 15, 1921, and in paragraph four that he was called there after lunch hour or after his regular business duties, as an expert to “adjust and supervise the adjustment of the valves, pipes and machinery of defendant”; that, for this work he was paid such reasonable charge as he might make.

There is no averment that defendant maintained any supervision or control over plaintiff in doing the w'ork and it has been held by the Supreme Court in Deck vs. Gravel Logging Co., 152 La. 993, 95 So. 99; that the right to control and supervise the work of the injured person establishes the difference between a servant and an independent contractor.

We are of the opinion that the petition shows clearly that the plaintiff was an independent contractor and in this conclusion we think that plaintiff’s attorney concurs as he cites us to no authority holding the contrary and devotes little or no discussion either in brief or argument to this point.

As plaintiff has no standing under the compensation statute, we will now discuss his charges of negligence under Art 2315, C. C., the general tort law.

The above synopsis of the petition shows that the accident was caused by the breaking of a corroded bolt “not visible to the naked eye of petitioner” and that the negligence of defendant consisted in not having proper inspection of the machinery made at reasonable intervals so as not to expose petitioner to any unusual hazard.

In the case of Ryland vs. Wheeler Lumber Co., 146 La. 787, 84 So. 55, the Supreme Court held that the rule which entitles an employee to rely upon the superior knowledge of his employer as regards ' a reasonably safe place for work was. generally inapplicable to an independent contractor, who is expected to determine that matter for himself.

Here the plaintiff alleges that he was called in as an expert to adjust the pipes and valves of the refrigerating plant of which he had had general supervision as a sort of consultation engineer since June, 1921, and he was certainly better qualified than plaintiff to pass upon the condition of the plant. Moreover, if defendant had taken down the entire plant and inspected all the bolts as plaintiff alleges was his duty, then defendant would not have needed the service of a consulting expert, as he would presumably have been familiar with all the details of the machinery.

A careful reading of the petition shows that plaintiff was expected to do everything necessary to keep the entire ice-plant in good condition and under the circumstances we do not think it was defendant’s duty to warn him as to all hidden dangers.

In the selection of machinery, tools or material, the master is responsible to his servants for only ordinary care; that degree of care which a man of ordinary (prudence, in the same line of business, would be expected to exercise to secure his own safety, were he doing the work * ® * ordinary care does' not require such tests as are appropriate only to the process of manufacture. Nor does it require that the article shall be taken to pieces, or subjected to any other test which is not shown to be practical, efficient and in ordinary use by careful users. (Cooley on Torts, 3rd Edition, p. 1143.)

Ordinary care requires only that precautions be taken against occurrences that can and should be foreseen, but does not require that one should anticipate unusual and improbable, if entirely possible, occurrences. (Rouseo vs. Gauche-Connor Co., 8 Orl. App., p. 217.)

“Defendants have been repeatedly relieved from the charge of negligence where the act done, or omitted to be done, was one which the ©arty had no reasonable ground to know or believe or could not reasonably be held to foresee in the light of the attending circumstances, or which he did not know would carry with it injury as its natural and probable consequence. (Gilliam vs. Texas & Pacific R. R. Co., 114 La. 272, 38 So. 166.)

“A mere failure to guard against a certain result is not actionable negligence unless under all the circumstances it might have been reasonably foreseen by a man of ordinary prudence.” (N. O. & N. E. R. R. vs. McEwen & Murray, Ltd., et al., 49th Annual, p. 1184.)

It is useless, however, to continue a discussion of the foregoing general principles, when, our Supreme Court has, in Feely vs. National Packing Co., 141 La. 903, 75 So. 837, enunciated a rule clearly applicable to this case.

Paragraph four of the syllabus reads as follows:

“Where the defendant packing company, being unable to discover the cause of an unusual odor in its cold storage plant, asked another packing company to send its engineer to locate the ammonia leak, and while' searching for the cause of the odor, he was killed by an explosion of gas entering the building through a drain pipe, the packing company was not negligent in failing to warn him not to strike a match or to tell him that the odor might proceed from some cause other than ammonia, as no one knew the origin of the odor any better than he did, and he knew that his services had been requisitioned because the others had to acknowledge their incompetence in the matter.”

For above reasons the judgment is affirmed.


source: Caselaw Access Project

author: CLAIBORNE, J.

license: Public Domain

text:
    No. 10,576
    Orleans
    HIGHT v. CASANAS, Appellant
    (March 28, 1927. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Automobiles — Par. 4 (o).
    It is imprudent to back out an automobile from its garage across the sidewalk without taking extra precautions to avoid running down passersby.
    2. Louisiana Digest — Automobiles—Par. 8; Evidence — Par. 343, 344.
    The testimony of a plaintiff concerning injuries which are occult and latent and not visible to professional eyes must be accepted with caution.
    3. Louisiana Digest — Automobiles—Par. 9; Damages — Par. 103, 104.
    Five hundred dollars for pain and suffering caused by contusions considered suffificient compensation when added to compensation for actual loss of earning capacity.
    (See Civil Code, Article 2315. Editor’s note.)
    Appeal from Civil District Court. Hon. Porter Parker, Judge.
    Action by Mrs. Helen B. Hight against Benjamin C. Casanas.
    There was judgment for plaintiff and defendant appealed.
    Judgment amended and affirmed.
    Joseph H. Brewer, of New Orleans, attorney for plaintiff, appellee.
    Edward Rightor, of New Orleans, attorney for defendant, appellant.
   CLAIBORNE, J.

Plaintiff was knocked down and injured by an automobile. Hence this suit.

She alleged that on June 4, 1924, at about 12 o’clock noon, she was walking towards the woods along the uptown sidewalk of Burdette street in front of the home of the defendant No. 630 Burdette street.

When suddenly, negligently and without any warning, the chauffeur of the defendant backed an automobile from the driveway of said home and struck plaintiff with violence, knocked her down and rolled over her right shoulder, arm and neck, inflicting painful and serious injuries of a permanent character, impairing the use of her shoulder and arm, preventing her from standing upon her feet for any length of time without much pain; that she is a composer of popular songs and a student of music, and also operated a barber shop at No. 7833 St. Charles Avenue, where she enjoyed a lucrative practice and was known as the “Lady Barber of Carrollton”; that her business has been destroyed to a great extent by her injuries; that she has suf-« fered the following damage:

1st. Inability to continue the operation of her barber shop — $10,000.00
2nd. Pain and suffering__________________ 5,000.00.
3rd. Medical expenses actually incurred ________________________________________ 111.50
4th. Medical expenses which will be incurred ............................... 500.00
5th. Inability to continue her music and writing of songs.. 10,000.00
Total..............................$25,611.50

T'he defendant admitted that his home was at No. 630 Burdette street, but denied all the other allegations of the petition. He specially denied all negligence on his part and alleged that the accident was due to plaintiff’s contributory negligence.

The case was tried twice. At the first trial the plaintiff remitted $10,000 of her claim, reducing it to $15,611.50. At that trial the jury failed to agree. tJjpon the second trial there was a verdict and judgment for $4,500.

Prom this judgment the ■ defendant has appealed. In this court the plaintiff prayed for an increase for the judgment.

It was admitted that the chauffeur, McDowell, was driving the defendant’s car in ■the'course of his employment.

The plaintiff herself and two- witnesses testified to the circumstances of the accident. The plaintiff was walking along the sidewalk when defendant’s Cadillac car was driven by defendant’s chauffeur out of the garage, across the sidewalk in the direction of the street; the car struck the plaintiff upon the sidewalk and knocked her down.

The defendant’s plea of contributory negligence on the part of the plaintiff is not well founded.

There is nothing to show that she knew that there was a garage upon defendant’s premises, or that she should have anticipated that a car would emerge from a garage at that moment, necessitating care on her part. On the other hand, the defendant’s chauffeur should have foreseen that there might have been persons pausing upon the sidewalk at that moment and it was negligence on his part not to have seen the plaintiff and avoided the accident. Carroll vs. Ry., 125 La. 898; 119 La. 418.

There is no evidence that he gave any warning of his approach. Backing of steam cars without extra precautions, has been held negligent. Eyma Brown vs. The Texas & Pacific Ry. Co., 42 La. Ann. 350, 7 So. 682; Robert T. Hamilton and Wife vs. Morgan’s La. & Tex. R. R. & S. S. Co., 42 La. Ann. 824, 8 So. 586; Downing vs. Morgan’s L. & T. Ry. & S. S. Co., 104 La. 508, 29 So. 207; Hollins et ux. vs. New Orleans & N. E. R. Co., 119 La. 418, 44 So. 159.

The fact of the negligence of the chauffeur is therefore established. He did not testify on account of absence. T'he only question, therefore, is the amount of the damage.

The plaintiff testified that when the car knocked her down she fell between the two rear wheels and the hub struck her; after she was picked up, she walked to the street car which took her,to the Charity Hospital; she did not receive attention there quickly enough and she left there and went to the Presbyterian Hospital, where her arm was treated and put in a sling; there was an x-ray taken, which showed no fracture or bones broken, but torn tissues under the collar bone; she operated a “beauty shop”; her weekly earnings were on an Average of $40; she studied piano and composed songs; since her accident she was not physically able to cut hair nor to (play upon the piano, nor compose songs, owing to the soreness of her arm; she had partially improved on the day of the trial; her recovery was a question of time; her medical expenses were as follows:

Presbyterian Hospital ____________________________$17.50
X-ray, Dr. Henriques ________________________________ 17.50
Touro Infirmary ______________________________________ 9.00
Dr. Talbot ........................ 20.00
$64.00

Plaintiff is 41 years of age, has been on the stage doing some acting and some singing; at the time of the accident she lived in the rear of 7833 St. Charles Avenue paying $15 a month rent.

Dr. Paul Talbot, for plaintiff, testified that he examined the plaintiff in June or July, after the accident and found some little swelling and redness over her right shoulder with a little tenderness which necessarily interfered with the use of her right arm somewhat; there was no repression of the shoulder joint; the only thing that caused the inability to move the shoulder normally was the inflammation around the joint; he thought she had some little injury to the ligaments that support that joint; she had pain of the shoulder; he saw the plaintiff only one time; her injuries are not of a permanent character.

Royal Hoyt, for the plaintiff, said that hearing an outcry he turned around and saw the plaintiff on the ground; he assisted in raising her up, and her shoulder was “marked up” and arm bruised; Mrs. Casanas came to the door and hallowed to bring her up, but the plaintiff did not go up, but went right off.

Mrs. Munier testified that the plaintiff occupied her premises for two or three years; that she paid her rent punctually prior to the accident, but afterwards failed until August when she vacated owing six months.

Mrs. Frank testified that plaintiff ceased to take music lessons from her after the accident; and Henry Asher, that she returned a sewing machine upon which she was making payments.

The record contains four songs which the plaintiff says she had published; but she never received any compensation for songs composed by her.

The defendant introduced only one witness, Dr. Urban Mass.

At the request of the defendant, on August 24, 1924, two months and twenty days after the accident and one month after the filing of this suit, he examined the plaintiff. He is a graduate of Thlane University, professor of surgery there, and senior surgeon at Charity Hospital and Touro Infirmary. He was unable to find any defect or sign of injury or disease upon plaintiff; his attention was called particularly to her shoulder; she carried her arm in a sling and the stiffness and inability that she complained of was entirely due to immobilization or keeping the arm quiet by carrying it in a sling; he had an x-ray picture taken by Dr. Samuel Bony, the pfficial of the I. C.; it showed no injury or disease in and around the joint; at the time he examined her there was no injury to her body.

The fact of injury to the plaintiff is established by herself and by Dr. Talbot, hut the extent of it is sworn to only by the plaintiff herself. It must be noted that the injury sworn to by the plaintiff, other than the slight evidence of it testified to by Dr. Talbot, is not visible to the naked eye and is occult and latent, and visible to no one. For that reason it must be received with much caution. See Furlow vs. Maison Blanche, 3 La. App.

Thirty days after the accident Dr. T'albot saw only a little redness and swelling; and sixty days thereafter Dr. Mass saw no injury to her body; that the plaintiff had her arm in a sling was the only occasion for inferring suffering and that was caused by the sling itself. There is no occasion to discredit the testimony of such eminent practitioners, even if they were employed each by a different litigant, the more so that they practically concur.

We must also consider the failure of the first jury to agree.

It is difficult, under such testimony, to attribute the closing of the beauty shop, the cessation of the music.lessons and the composing of songs and the surrender of the sewing machine, and the failure to pay rent to the injury suffered by the plaintiff. The very exaggeration of her money claims leads to the suspicion of like exaggeration of her injuries.

But the fact remains that the plaintiff did suffer some injury in the nature of contusions, painful, but not permanent. She says her earnings were $40 per week. We shall allow her about six months’ loss of earnings, about $1000, and $500 for pain and suffering.

It is therefore ordered that the judgment herein be amended by reducing the amount thereof from four thousand five hundred dollars, to one thousand five hundred dollars, and as thus amended that the judgment be affirmed, the defendant to pay the costs in both courts.


text:
    No. 9837
    Orleans
    SUCCESSION OF SARTHOU On Rule against Adjudicatee Appellant
    (Feb. 28, 1927. Opinion and Decree.)
    (Mar. 28, 1927. Rehearing Refused.)

      (Syllabus by the Court)

    1. Louisiana Digest — Succession—Par. 38.
    It is not necessary that the succession of a deceased person should be opened and his legal heirs recognized by judgment of court. Their heirship may be proved by any other method.
    2. Louisiana Digest — Succession—Par. 38. 45.
    They inherit by mere operation of law.
    3. Louisiana Digest — Prescription—Par. 20.
    A title translative of property from a person whom the purchaser honestly believes to be the real owner, accompanied by a possession of ten years, secures a perfect title as • against all persons against whom prescription runs.
    Appeal from Civil District Court. Hon. Mark M. Boatner, Judge.
    Action by Succession of Rebe Piat Sarthou en rule against adjudicatee, appellant.
    There was judgment for plaintiff and defendant en rule appealed.
    Judgment affirmed.
    Chas. J. McCabe, of New Orleans, attorney for plaintiff, appellee.
    Emile Pomes, of New Orleans, attorney for defendant, appellee.

      P. A. Abrams, of New Orleans, attorney for defendant en rule, appellant.
   CLAIBORNE, J.

This is an appeal from a judgment compelling an adjudicatee to comply with an adjudication made to him.

The facts are as follows:

The Succession of Rene Piat Sarthou was opened in the Civil District Court for Orleans Parish and his widow and five children were put in possession of the property left by him, consisting of movable and immovable property situated in the City of New Orleans and in the Parish of St. Bernard. Two of the children filed suit against their mother and their co-heirs for a partition. Judgment was rendered ordering a partition by sale of all the immovables. At the sale Emanuel Estopinal became adjudicatee of the following property:

“Two lots of ground situated in the Parish of St. Bernard in the square No. 103, bounded by Royal, Chartres, Angela and Mehle streets, designated as lots B and C, on a plan of W. J. Seghers, measuring each 30'11"2'" front by 120'.”

The said Estopinal refused to comply with the adjudication to him, and a rule taken against him, he gave reasons:

1st. That Pierre Piat Sarthou purchased by act of W. F. Roy, notary of the Parish of St. Bernard, on May 11, 1905, from Anna Pourcet, wife of Louis Dours and from Josephine Pourcet, wife of Charles Metzger, representing themselves as heirs of their mother, Mrs. Lucien Pourcet, and from Francois and Louis Larre as heirs of their mother, Marie Pourcet, wife of Dominique Larre, and of their grand-mother Mrs. Lucien Pourcet; that neither the succession of Mrs. Lucien Pourcet nor of Mrs. Marie Pourcet Larre had been opened, nor had their heirs above mentioned been recognized by judgment of court;

2nd. That one of the heirs of Mrs. Lucien Pourcet, namely, Miss Louise Pourcet never sold her interest in the above named property, as.- she had disappeared prior to the acquisition of said property by Pierre Piat.

The plaintiff pleaded the prescription of ten years.

There was judgment for plaintiff and the defendant, Emanuel Estopinal, has appealed.

1st. The practice has grown up in the Parish of Orleans to open the succession of deceased persons, to establish therein by sufficient ex parte affidavits the number and names of their heirs, and to obtain a judgment recognizing the heirs and putting them in possession of the property left by the deceased and to record the judgment. These proceedings carry with them prima facie proof of their correctness. It serves the heirs and the assessors and tax collectors, but it was not always so. They are not essential to the transmission of the property of the deceased to his heirs. The succession is opened in favor of the legitimate heirs by the mere operation of the law. C. C. 886 (882) 940-941, 942-6 La. Dig. 886 — 1891.

It is otherwise as to natural children and irregular heirs, who are permitted to take possession of the succession which has fallen to them only by the order of the judge of the parish in which the succession is opened. C. C. 825 (919) 949. Propf of heirship may be established by any other method than by the judgment recognizing heirs. It may be established by affidavit by the heirs .themselves or of witnesses or by their declarations or otherwise. The only object being to procure and preserve proof of heirship.

But in the present case, on the trial of the rule, Louis Dours, examined as a witness, testified that he was the son-in-law of Mrs. Lucien Pourcet; that she left four children, girls, namely, first, Anna Pourcet, his wife; second, Josephine Pourcet, wife of Charles Metzger; third, Marie Pourcet, wife of Dominique Larre; and fourth, Louise; Marie Pourcet Larre, died, leaving two children, Francis and Louis.

There are the four vendors of Pierre Piat, excluding Louise.

We think their heirship has been sufficiently established.

2nd. This same witness, Louis Dours, testified that Louise Pourcet disappeared before his marriage twenty-eight years ago, that is, more than thirty years from the ¡present time. He also testified that Pierre Piat took possession of the property at the time he bought it in 1905 and that he had been in possession of it ever since.

Pierre Piat’s title and possession for more than ten years conferred upon him and upon his heirs a complete title. C. C. 3478-3498; 6 La. Dig., p. 116; Ours vs. Gray, 112 La. 214, 36 So. 326; Brewster vc. Hewes, 113 La. 45, 36 So. 883; Smith vs. Granger, 13 Orl. App. 213.

. We are therefore of the opinion that the title tendered is good and that the defendant should comply with the adjudication to him.


author: WESTERFIELD, J.

text:
    No. 9508
    Orleans
    EBERLE & CO., INC., v. MORGENSTEEN
    (February 28, 1927. Opinion and Decree.)
    (March 28, 1927. Rehearing Refused.)

      (SyllaMis by the Court)
    1. Louisiana Digest — Corporations — Par. 89, 92, 154.
    A stockholder-employee, who resigns his position and solicits and obtains some of the customers of the corporation is under no obligation to the corporation to indemnify it for loss of profits on the business of its former customers.
    Appeal from Civil District Court, Division “D”. Hon. Porter Parker, Judge.
    Action by G. P. Eberle & Co., Inc., against Emile L. Morgensteen.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    G. F. Eberle, E. A. O’Sullivan, of New Orleans, attorneys for plaintiff, appellant.
    A. J. Plough, S. S. Goldman, of New Orleans, attorneys for defendant, appellee.
   OPINION

WESTERFIELD, J.

This is an appeal from a judgment maintaining an exception of no cause of action.

' Plaintiff, G. P. Eberle & Company, Inc., alleges that defendant and two other individuals were its incorporators; that each incorporator had an equal interest in its earnings and each drew the same salary; that the business of the corporation was general accounting; that on September 29, 1923, (plaintiff corporation was organized April 1, 1921), “defendant sent his resignation to the office of the corporation- and thereafter, before the acceptance of his resignation, called upon a number of clients of the co-partnership (erroneously so termed) and unknown to your petitioners (plural inadvertently used) solicited their business for his own personal profit and to the financial loss of his co-partnership (meaning, doubtless, fellow stockholders); “that the business so illegally and clandestinely obtained by defendant” amounted to $2000.00 in accordance with a peculiar method of computation employed by plaintiff, which we omit further reference to.

Great stress was laid upon the words “illegally and clandestinely obtained” by plaintiff’s counsel, and it was insisted that defendant’s conduct as set forth in the petition was unquestionably immoral; that the use of information obtained as a stockholder for purposes of competition was indefensible, ethically and morally.

We are not as confident of the impropriety of defendant’s conduct as counsel. Let us suppose a case in which an officer of a corporation is discharged, either with or without justifiable cause; would such discharged employee be under any moral obligation to refrain from competing with the corporation which discharged him, or would he be prevented by any proper consideration from soliciting the customers of his former employer? To answer this question in the affirmative would involve serious consideration of fundamental rights of self-preservation, common to all individuals as members of society. But be that as it may, we are not aware of anything illegal in the alleged conduct of defendant as the basis of this action.

There is no law which compels a stockholder to work only for the corporation and prohibits his competing with it.

“There is no rule of law which prohibits an individual stockholder from entering into business on his own account in competition with the corporation.”
Corpus Juris, Vol. 14, p. 868.
“Ordinarily, the whole legal duty of a stockholder or corporator in a trading or stock corporation is discharged when he has paid in his subscription to the capital stock, though his pecuniary liability to the creditors of the corporation may be somewhat greater. * * * The stockholder may enter into business on his own account in competition with the corporation, or join in the formation of a new corporation, which by its rivalry will destroy the business prospects of the first.”
Monroe Dairy Assn. vs. Webb, 57 N. Y. Supp. 574.

In White vs. Trobridge, 64 Atl. 862, the following language is found.

“* * * so long as the defendant (retired partner) does not attempt to sell his goods as those of the old firm, or represent that his business is a continuation of the old firm, he is at liberty to engage under his own name, honestly and in good faith and in the same line of business in the same locality.”

And in Williams vs. Ferrand, 50 N. W. 446, L. R. A. 161:

“The doctrine that a retiring partner who has conveyed his interest in an established business, whether the good will be included or not, cannot personally solicit the old customers of the firm, has no support in principal. -A' retiring partner conveys, in addition to his interest in the tangible effects, simply the advantage that an established business possesses over a new enterprise.”

What the defendant is ‘charged with doing is resigning his position with a corporation in which he held stock and engaging in the same business on his own account, having previously given notice of his intention so to do. Whatever effect this action on defendant’s part may have had on the revenues of the corporation involves no liability as far as defendant is concerned. To contend otherwise is equivalent to saying that an employee stockholder must continue to work for a corporation indefinitely, unless he chooses to change his occupation and engage in a n.on-eompetitive business. There is no allegation that defendant was under any contractual obligation for any period of time to remain with the plaintiff corporation. He simply, for reasons best known to himself, quit, which we think he had a right to do, nor do we find any fault with his soliciting and obtaining some of the customers of the plaintiff corporation. We are under the impression that such things are of almost daily occurrence in the business world.

For the reasons assigned the judgment appealed from is affirmed.


author: JONES, J.

text:
    No. 9279
    Orleans
    LOYACANO v. VILLERE AND BURGLASS
    (Feb. 28, 1927. Opinion and Decree.)
    (Mar. 14, 1927. Rehearing Refused.)
    (April 26, 1927. Writ of Certiorari and Review denied by Supreme Court.)

      (Syllabus by the Court)
    1.Louisiana Digest — Judgment—Par. 159.
    When a landlord, having secured judgment against tenant and surety on lease for rent during unexpired term, seizes and sells under fi. fa. the furniture, but not the right of occupancy, which is then seized by another judgment creditor of the tenant, he cannot then sue to cancel lease, because all his rights are crystallized in the judgment.
    Appeal from Division “C” Civil District Court. Hon. Porter Parker, Judge.
    Action by Anthony P. Loyacano against Mrs. Septime Villere and Abraham Burg-lass.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Prowell and McBride, of New Orleans; attorneys for plaintiff, appellant.
    W. O. Hart, Edward Rightor, S. S. Goldman, E. J. Pruye, attorneys for defendants, appellees.
   JONES, J.

This suit was filed on June 7, 1923, by the landlord Loyacano against his tenant, Mrs. Septime Villere, and her judgment creditor, Burglass, who had seized the lease and the right of occupancy.

Plaintiff alleges substantially as follows:

1. That the lessee had failed to pay five rent notes and that he was entitled to have said lease cancelled, because he had reserved the right of cancellation in the event of the lessee’s failure to pay the rent as it fell due, all as moré fully shown by the said lease and notes which, though annexed to the proceedings entitled Loyacano vs. Villere, No. 146,203, Civil District Court, were made a part of the suit.
2. That Abraham Burglass had seized under a judgment Mrs. Villere’s lease and her right of occupancy.

Plaintiff then prays that both defendants be cited to show cause why the lease should not be cancelled.

Mrs. Villere, though duly served with citation, made nq appearance.

Burglass, along with his answer, which denied all plaintiff’s allegations save his seizure; filed the following exceptions:

1. That plaintiff’s petition is inconsistent with his enforcement of the lease between him and defendant, Mrs. Villere, because in the proceedings entitled Anthony P. Loyacano vs. Mrs. Villere, No. 146.203, Civil District Court, plaintiff had obtained judgment for the full term of the lease and had seized and sold under fi. fa. the furniture and effects belonging to lessee in said leased premises.
2. That plaintiff is estopped from seeking a cancellation of the lease on account of the action taken in proceedings No. 146.203, Civil District Court.
3. That said petition sets forth no cause of action.

On said trial of these exceptions the record in suit No. 146,203 of the Civil District Court was offered in evidence and it was proved that property seized under fi. fa. issued in this ease had been sold for six hundred forty-one and 60-100 ($641.60) dollars, that the sheriff’s costs were two hundred eighty-seven and 79-100 ($287.79) dollars, and that the balance was being held subject to decision of the court on an intervention.

It was admitted that five rent notes had not been paid.

The record in the provisional seizure suit shows that Loyacano on March 16, 1923, filed suit against his tenant, Mrs. Villere, and the surety on the lease, Ellis Headly, for three thousand, three hundred and sixty dollars ($3,360.00), plus ten per cent attorney’s fee on the ground that she had failed to pay two rent notes amounting to three hundred and twenty dollars ($320.00) dollars and that under the terms of the lease, the rent for the whole unexpired term (21 months) was due and owing.

As the defendants made no appearance and the lease and attached notes proved the claim, judgment was given on April 19, 1923, against both defendants, in solido, for the amount claimed, three thousand three hundred and sixty dollars ($3,360.00), plus ten per cent attorney’s fee; that on March 26, 1923, the sheriff seized, under a writ of fieri facias all the furniture and movable effects in the leased premises.

Plaintiff contends, in this court, that the landlord by obtaining judgment for the unexpired term of the lease did not destroy his right to sue for cancellation of the lease, because the primary obligation of the tenant to pay the rent continued to exist. In the support of his contention he cites the cases of Canal Bank, et als., vs. Copeland, 15 La. 75, and Watson vs. Feitel, 139 La. 375, 71 So. 585.

In the first case, plaintiff, who had already brought a t.uit for specific performance of a contract to purchase a lot of ground and had obtained judgment, then sued to rescind the sale for non-payment of the purchase price. An exception of inconsistency in demands, which had been maintained by the lower court was overruled by the Supreme Court and the sale was rescinded. In the course of the opinion the court uses the following language:

“It mu: t not be forgotten also in considering the bearing of Art. 149 of the Code of Practice on this case that the suit brought and the judgment obtained by the plaintiffs is not for the price of the property sold, but for the specific performance qf the adjudication. It is true that it draws the payment in cash of the first settlement, because it would have been idle to order the defendant to make his note payable at a time already gone by, but this circumstance does not change the nature • of the judgment under which no execution could issue for the price.”

This decision, even if it is not overruled by later decisions quoted below, is, not controlling here, because Loyacano in this proceeding prayed for and secured an unqualified judgment for three thousand three hundred and sixty dollars ($3,360.00), plus ten per cent attorney’s fee, and he at once had issued a fi. fa. for the entire amount. Had the judgment in the case been for rent payable so much per month during the life of the lease as was the judgment in the :uit for specific performance payable according to the terms of the contract to sell, the analogy would have been closed.

The second case was a suit to rescind a sale for non-payment of purchase price brought the next day after defendant had been put formally in default. Defendant then made a tender of the amount due with interest and costs, but the lower court held that tender was made too late after putting in default and rescinded the sale. The learned, carefully reasoned opinion of Justice Provosty, the organ of the Supreme Court on appeal, deals entirely with the legal effect of putting in default. After copious references to French authorities and a detailed analysis of all the prior decisions of the Louisiana Supreme Court on the subject, he finally reverses the lower court and holds that the tender was not too late. On page 386 of the opinion he quotes from Larombiere, vol. 2, page 353, S. 46, as follows:

“In a word the defendant is not barred from the right of paying until the resolution is definitely adjudicated in favor of the plaintiff; that is to say, when the judgment which has been rendered has become definitive and final.”

The learned Justice then shows that this doctrine is affirmed by many other commentators and concludes that part of his opinion -by stating that the great French writers all approve.

It is plain that this decision cannot help plaintiff here for he has secured a definitive judgment, which has now the authority of the thing adjudged. In other words, (plaintiff had two rights under the lease and the law when lessee failed to pay the rent as-it fell due. He could either sue for the rent due and cancel the lease for the unexpired term, or he could sue for the rent for the whole unexpired term. Here he preferred the second alternative and cecured judgment against his tenant and her surety for three thousand three hundred and sixty dollars ($3,360.00), rent for the unexpired time of the lease.. He could then have seized the right of occupancy under his fi. fa. and sold this asset along with the furniture and the movable effects, but he failed to do so and this was seized by another judgment creditor.

Having deliberately exercised his choice and secured an unqualified judgment, against the tenant and her surety, all his rights were crystallized in the judgment and that judgment now has the sanctity and authority of the thing adjudged.

The fundamental time-honored principle is well stated by Elliott on Contracts, S. 1985, as follows:

“If there be any' one principle of law settled beyond all question, it is true, that whensoever a cause of action in the language of the law, transit in rem judicatam, and the judgment thereupon remains in full force unreversed, the original cause of action is merged and gone forever. 24 (See United States vs. Leffler, 11 Pet. (U. S.) 86.) It would indeed be difficult to find a general doctrine announced more emphatically or in broader terms than this one. Clear cut and unambiguous, it can mean but one thing, and that is exactly what it says. Moreover, ‘cause of action’, used as it is here, is not a phrase of restricted meaning, but must necessarily include causes of action arising from crime, tort and contract alike. In other words, where a person sues ex contractu and recovers a valid judgment upon the merits he must, provided he does not thereafter obtain satisfaction of the amount owing him, sue upon the judgment, as evidence of his claim, rather than upon the original contract, i. e., the latter is merged in the former.”

Our Supreme Court has ratified this doctrine in the following words:

“Matters once determined by a court of competent jurisdiction, if the judgment has; become final, can never again be called', into question by the parties or their privies,, though the judgment may have been erroneous and liable to certain reversal on appeal.” (La. Digest, vol. IV, 376.)

The same court, in rent cases similar to; the present, has recently applied this; basic principle in three decisions.

Harvin vs. Blackman, 112 La. 24, 36 So. 213:

“Judgments against a tenant for rent and eviction, while not technically res judicata, because the delay for taking devolutive appeal had not expired; preclude any further action by the same court on the matters litigated, the sole remedy of the party cast being by appeal.”

In Succession of Romero, 137 La. 251, 68 So. 433, the law on the subject is thus stated:

“* * * so long as the contract (of lease) exists, the lessor is entitled to recover his rent according to its terms, if he can, or where the lessee abandons the premises, by at once enforcing his claim against the property subject to his privileges and pledge, in order to do which he may obtain a judgment, and otherwise execute it in accordance with the terms of the contract, and that the lessee is entitled to the possession, fruits and revenues of the property whether he occupies or abandons it, pays the rent or leaves it unpaid, since he cannot terminate the lease by violating its provisions, and though the lessor may terminate it, for violations by the lessee, he is not obligated to do so, and if he prefers to seek its continued enforcement, he thereby concedes to the lessee the right which it confers upon him.”

In Rose Mercantile Co. vs. Stearns, 154 La. 946, 98 So. 429, the court uses the following language:

“If the lessee fails to pay his rent as it matures, the lessor may hold him liable.for the rent due for the expired term of the lease, and may sue to dissolve the contract and evict the lessee, or, if he should so elect, he may hold the lessee for the rent, both for the expired and unexpired terms of the lease, and may sue accordingly. If, however, he elects to avail himself of the latter right, he elects to continue the contract in force, notwithstanding the default of the lessee in his payments, and thereby accords to the latter the right to remain on the premises and to use them in accordance with the terms of the lease, and continues in force the obligation imposed by law upon him to maintain the lessee in the peaceable possession of the property.”

For the above reasons, the judgment is affirmed.


text:
    No. 10,788
    Orleans
    McMahon, Appellant, v. HILBERT ET AL.
    (April 11, 1927. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Succession—Par. 59, 64, 65, 67.
    When a lease is made to the mother for a year, and she dies before the expiration of the lease, leaving no property of any kind, and her children inherit nothing from her, and do not otherwise accept her succession and they vacate the premises at the death of their mother they are not liable for rent.
    Appeal from First City Court. Hon. W. V. Seeber, Judge.
    Action.by John R. McMahon against Milton F. Hilbert et al.
    Judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Hubert M. Ansley, of New Orleans, attorney for plaintiff, appellant.
    Jules A. Grasser, of New Orleans, attorney for defendant, appellee.
   CLAIBORNE, J.

The plaintiff claims of the defendant $209.50 rent.

He alleges that on October 1, 1925, lie leased to Mrs. J. Hilbert the premises No. 237 S. Cortez street for 12 months commencing October 1, 1925, and ending September 30, 1926, at $40 per month, evidenced by 12 notes of $40 each; that the last five are not paid; that Mrs. J. Hilbert died on May —, 1926, leaving five children, three of whom are Milton F., Albert and Emily M., divorced wife of Gurson Levy, and the other two unknown to plaintiff; that the three children hereinabove named accepted the succession of their mother and took possession of all the property left by her, consisting of household furniture and divided the same between themselves and removed it from the leased premises and disposed of the same; that by doing so the said three children accepted the succession of their mother and became liable for her debts.

The defendants admitted that their mother died and left children as alleged; but they denied that they accepted the succession of their mother or took possession of any property left by her; they averred that the movables contained in the leased premises were not owned by the deceased; that they were in the possession of the owners thereof, and not under the control of the deceased; that their mother left no estate; that the plaintiff was apprized of the death of Mrs. Hilbert and that he agreed to let defendants remove their property out of the premises.

There was judgment in favor of defendants dismissing plaintiff’s suit at his cost and he has appealed.

The evidence is that Mrs. J. Hilbert died March 25, 1926, on the leased premises, 237 S. Cortez; her daughter Emily Levy lived with her mother all her life, with the exception of four and one-half years during her marriage; there was in the house a living room, a dining room, a hall down stairs and a kitchen and two bedrooms; they were all furnished; the furniture was worth $1000, more or less; not a piece of it belonged to the mother; Mrs. Levy bought it all at- Holmes, Barnett and Werlein; she is a nurse; she bought some during her marriage, others afterwards; every bit of furniture in the house was bought and paid for by her, and everything belonged to her, the only thing her mother owned when she died was her wedding ring; when her mother died she sold the furniture to a lady next door; she produced a certificate from Barnett’s Furniture Store and one from Holmes certifying to the purchase by her of a dining room set and a phonograph.

There is no evidence to contradict the testimony of Mrs. Levy.

Considering that the plaintiff leased the premises to Mrs. Hilbert, that she died without leaving any property of any kind, and that she left therefore nó succession to accept; that Mrs. Levy left the premises immediately after her mother’s death, and that she paid the last month of their occupation and that the rent claimed is for a period subsequent to the mother’s death and subsequent to the surrender of possession by Mrs. Levy to the plaintiff, we must affirm the judgment in favor of the defendants.


text:
    No. 10,390
    Orleans
    SILK v. CROSSET SHOE SHOP
    (Feb. 14, 1927. Opinion and Decree.)

      (Syllabus by the Court)
    1. Louisiana Digest — Pleading—Par. 62; Sales — Par. 219.
    A petition in a suit for - damages for breach of warranty in sale of a pair of shoes shows no cause of action where the alleged defect was apparent to the buyer and there is no averment that the retail dealer knew of a hidden defect and fraudulently concealed it.
    Appeal from Civil District Court, Division “C”. Hon. E. K. Skinner, Judge.
    Action by Abraham Silk against Crosset Shoe Shop.
    Judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Arthur B. Leopold and Gerold Netter, of New Orleans, attorneys for plaintiff, appellant.
    H. W. Robinson, of New Orleans, attorney for defendant, appellee.
   OPINION

JONES, J.

Plaintiff alleges that he purchased for eight dollars on September 5, 1925, a pair of low tan shoes from the defendant, who is engaged in the business of selling tihoes at retail, that the right shoe of said pair was defective, carelessly and improperly made, in that the tongue of said shoe was placed too low in said shoe, and was also rough and thick, causing pressure on plaintiff’s foot, that after defendant’s [talesman had measured plaintiff’s foot, plaintiff selected a pair of shoes which defendant’s salesman tried on plaintiff’s feet, and assured, warranted and represented to plaintiff that said pair of shoes would fit; that, relying on the warranty and representation of defendant’s sale¡> man, plaintiff wore said pair of shoes for two days, when, on the second day his right foot became swollen, inflamed and painful, and that he was compelled to cease wearing said pair of shoes. That plaintiff, with the pair of shoes in his hand, called at defendant’s store and complained to defendant’s salesman of the swelling, inflammation and pain in his (plaintiff’s) right foot, when said salesman examined said right shoe and admitted to plaintiff that said right shoe was defective and carelessly and improperly made.

That because of the pain and swelling to his right foot, plaintiff sought the advice of a phyucian who examined plaintiff’s foot, took his temperature, found that he had 101 degrees of fever, and ordered him to go to his home immediately and remain in bed.

That plaintiff remained in bed from September 8th, to September 19, 1925, under the treatment of physicians,, during which time (plaintiff suffered severe pain. As a result of said injury plaintiff sued for $2,196.00, which sum is itemized as follows:

Doctors bills ...... 32.00
Value of shoes ____________________ 8.00
Medicine _______________ 5.00
Two weeks’ salary ____________ 150.00
Pain and suffering ____________ 1,000.00
Mental anguish ___________________ 1,000.00

Defendant filed a peremptory exception that the petition disclosed no cause of action, more particularly in this:

“The implied warranty of a dealer in merchandise does not cover personal injuries of the sort referred to in the petition herein and caused, as alleged in the petition.”

The exception was maintained and the suit dismissed and appeal was taken to this court.

For the purposes of this exception the allegations of the petition must be taken as true.

Paragraphs IV, V and VIII of the petition, which contain the crucial allegations, read as follows:

Par. IV. “That the right shoe of said pair of shoes was defective, carelessly and improperly made, in that the tongue of said shoe was placed too low in said shoe, and was also rough and thick, causing pressure on petitioner’s right foot.”
Par. V. “That after said defendant’s salesman had measured petitioner’s foot, petitioner selected a pair of shoes, which defendant’s talesman then tried them on petitioner’s feet and assured, warranted and represented to petitioner that said pair of shoes would fit.”
Par. VIII. “That Monday, September 7, 1925, being Labor Day, a legal holiday, on which defendant’s store was closed, petitioner was compelled to wait until the following day, when he called at said defendant’s store with the pair of - shoes in a package in his hand and complained to defendant’s ralesman of the swelling, inflammation and pain in his right foot, when your said defendant’s salesman examined said right shoe and admitted to petitioner that said right shoe was defective and carelessly and improperly made.”

In his supplemental brief plaintiff uses the following language:

“In the case before your Honors, plaintiff is seeking to. recover damages for the violation of a contract on the ground of latent defects and by virtue of the implied warranty which goes with all sales.”

Plaintiff quotes Article 1764, Sec. 2 of the Civil Code and various decisions of appellate court to the effect' that the vendor warrants the thing sold as fit for the purpose intended. The truth of the principle and its wisdom and justice we fully admit, but the question before us »s the extent to which the warranty goes.

The Civil Code provides and repeated decisions have imbedded the principle in our law that this warranty in the ease of redhibitory actions and actions quanti minoris does not cover apparent defects; that is, such defects as the buyer might have’ discovered by simple inspection and that even where the defects are latent, in the absence of fraud and bad faith, the buyer is limited to the recovery of actual price.

In this case petitioner admits that he selected the shoes and tried them on and surely he had ample opportunity to discover that the tongue was misplaced, for such a defect is not only discernible by the eye, but here must have been called to his attention by the senc'e of touch, when the shoe was placed on his foot. Common sense tells us that the practice of trying on shoes, a custom universally followed, is far the only purpose of finding whether the shoe suits the individual taste of the buyer. Generally speaking, the retail dealer only warrants that the article is suitable for the purpose for which it is sold.

Had the plaintiff in ■ this care alleged that there was poison in the leather which infected his foot when he first wore the shoe, he would have had a far stronger case, for such a defect could not have been discovered by ordinary inspection.

In the case of Flynn vs. Bedell Co., 242 Mass. 450, cited by plaintiff in his brief, the court found that the defect was hidden, because the fur was died and buyer had a right to rely upon seller's. expert knowledge of furs. But one necessarily sees the tongue o.f a shoe when he is trying it on and plaintiff must to some extent have realized that it was placed out of the ordinary, oif its location was so unusual as to cause great pain later.

We are of the opinion that defect here here alleged was not hidden or latent defect and that plaintiff’s suit was properly dismissed.

See Szymanski vs. Urquart, 5 La. Ann. 491; Decuis vs. Packwood, 5 Mart. (O. S.) 300 C. C. 2521.

But even if we should be mistaken on that point there is a time-honored principle in the civil law and as old as the famous case of Hadley vs. Baxendale in the common law to the effect that the obligee, in absence of bad faith, can only recover contemplated damages. Surely this case illustrates the wisdom of this fundamental principle, for without such limitation the daily transactions of our complex lives would be impossible. What retailer could possibly do business if he were liable for penalties ■ in thousands of dollars as consequential damages for defects in articles Sold for a trifle? Surely, no shoe retailer ordinarily contemplates a greater damage than the return of the price and cancellation of the sale, if the article proves unfit for use.

An obligee must always minimize his damages and if tlie shoe causes an abrasion of the skin on account of a misplaced tongue, it is the duty of the buyer to stop wearing the shoe at once and demand the return qf his money or another equally valuable pair of shoes.

If the theory of plaintiff be well founded, the defendant might have continued to wear the defective ■ shoe until amputation of the limb was necessary and still plaintiff would be responsible.

In the case of Doyle vs. Fuerst & Kraemer, 129 La. 838, 56 South. 906, cited by plaintiff, the Supreme Court held the maker of cakes and chocolate with whipped cream liable to plaintiff for one hundred dollars where the evidence showed that plaintiff suffered intense pain fqr two hours, believed that he was dying and later was the victim of jaundice.

They say on page 841:

“There is liability on the part of the seller for all damages that were foreseen or could easily have been foreseen.”

Applying this principle here we hold that no such damages as those claimed in .this petition were foreseen or could reasonably have been foreseen by defendant in this case.

In the case of Richardson vs. Johnson, 1 La. Ann. 389, plaintiff sued for four hundred dollars; damage caused by sale of a slave with defective vision, averring that he could not return the slave because he had carried the slave to the republic of Texas, whence Congress prohibited his transportation. He claimed under old Article 2294 of the Civil Code, which is at present Article 2315.

In maintaining an exception of no cause of action, Judge Rost uses the following language:

“If our Code contained no special disposition for casesi like the present, the action of the iplaintiff might probably be maintained under the general principle he invokes, but our laws on the contract of sale, in defining the various remedies given to the purchaser by the action ‘ex empto’ have provided that such wrongs as the plaintiff complains of, can only be redressed by the action of redhibition or the action ‘quanti minoris’, it was therefore incumbent upon him to have resorted to one of these.”

This decision was affirmed in the cace of Peterson vs. Burn, 3 La. Ann. 656, and again in the ease of Fisk vs. Proctor, 4 La. 562.

In the case of George vs. Shreveport Cotton Oil Co., 114 La. 498, 38 So. 432, plaintiff sued for fifteen hundred dollars, damages caused by defendant’s breach of contract in manufacturing and delivering inferior cotton seed cake. In his petition for review to the Supreme Court, plaintiff alleged that this action was not redhibitory and not an action quanti minoris, but an action under 1930 C. C. The Supreme Court held that a manufacturer who cells his products presumptively knows the qualities thereof and is therefore liable for hidden defects; that this was an action “quanti minoris” and that plaintiff had failed to bring his suit in time.

Considering together the Doyle case (referred to on page 4) and the above four easec( we hold that our Supreme Court has decided as follows:

(1) That manufacturers are held to a higher degree of care than retailers.

(2) That claimants for damages for defects in articles sold by retailers are limited to actions quanti minoris or redhibitory actions and that damages greater than the value of the article sold can only be claimed when there is bad faith on the part of the vendor.

Hence we conclude that this petition is fatally defective because bad faith is not alleged.

Furthermore, this is a passive violation of the contract and there is no averment that defendant was ever put in default, which has been repeatedly held essential.

See Darragh vs. Vicknair, 126 La. 171, 52 So. 264.

Defel vs. Covington, 37 La. Ann. 661. Livingston vs. Scully, 38 La. Ann. 781.

For above, reasons the judgment is affirmed.


text:
    No. 10,821
    Orleans
    SALCEDO OIL CO. v. OTERO
    (April 11, 1927. Opinion and Decree.)

      (Syllabus by the Oourt)

    1. Louisiana Digest — Appeal—Par. 625.
    The judgment of the trial court will be affirmed when only matters of fact are involved, unleis that judgment is palpably erroneous.
    Aippeal from Division' “B”, First City Court. Hon. Val Stentz, Judge.
    Action by Salcedo Oil Co. against Richard B. Otero.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    F. B. Freeland, of New Orleans, attorney' for plaintiff, appellee.
    C. S. Hebert, of New Orleans, attorney for defendant, appellant.
   JONES, J.

Plaintiff sues defendant for two hundred forty-three and 91-100 ($243.91) dollars, balance due on open account. The answer which does not appear in the record is said to have been a general denial.

The entire record, consisting of the pleadings and exhibits, was lost in the lower court, but fortunately a copy of the petition, the annexed account, the judgment below and the evidence were found and constitute the record as filed in this court.

Paragraph IV of the petition reads as follows:

“That the said Richard B. Otero on March 7, 1925, acknowledged part of the aforesaid account by endorsing a promissory note for $143.00, made and signed ‘Otero Auto Lodge, Henry Y. Smith, Mgr.’, payable 90 days after date and given to petitioner by the said Otero; that no part of the said note has been paid and petitioner, herewith, returns said note, annexed hereto and made part hereof.”

The court below gave judgment for one hundred forty-three ($143.00) dollars and defendant has taken a suspensive appeal.

A:* this appeal was lodged in this court on February 21, 1927, and as iplaintiff did not file his answer .to the appeal asking for an increase of the judgment to the amount claimed . until March 29th, that answer came too late and cannot be considered.

Only questions of fact are involved and although the voluminous evidence is somewhat contradictory in parts, a careful reading convinces us that it abundantly sustains the conclusion of the trial judge.

Defendant’s 'able attorney both in argument and brief incists that the lower judge gave him judgment for the amount of the note because the note was annexed to the petition and that he erroneously treated this as a suit on the note. However, the record does not sustain this contention, but it does tend to show the note was given as an acknowledgment of balance due on settlement of accounts between the plaintiff and defendant and we think that the conclusion of the trial judge is far more consistent with the uciual business transactions and therefore far more probable than defendant’s contention.

For above reasons the judgment is affirmed.


text:
    No. 10,816
    Orleans
    SLAWSON, Appellant, v. CHISESI AND CO., INC.
    (April 11, 1927. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Factor or Commission Merchant — Par. 4, 24, 41.
    A commission merchant who solicits a consignment of rabbits for sale guaranteeing a certain market price on arrival, cannot escape liability up to the amount of the guarantee on the ground that the rabbits were lean, if they were in the ordinary condition prevailing at the place of [iiipment.
    2. . Louisiana Digest — Estoppel—Par. 26, 40.
    By receiving a part of his claim a creditor is not estopped from suing for the ■ balance.
    Appeal from First City Court. Hon. W. V. Seeber, Judge.
    Action by Frank Slawson against Chisesi and Co., Inc.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    Dart & Dart, L. L. Bubourg, of New Orleans, attorneys for plaintiff, appellant.
    R. R. Ramos,' of New Orleans, attorney for defendant, appellee.
   CLAIBORNE, J.

This is a suit for a,n accounting.

The plaintiff alleged that he resides in Greenfield, Missouri; that on September 20, 1924, plaintiff received from defendant, who resides in New Orleans, a card containing the following quotations:

“New Orleans, La., Dec. 27, 1924.
“We will guarantee you the market for arrivals here u© to the 3rd of January, 1925. Rabbits * * * $4.25 a dozen.
“Yours very truly,
“N. CHISESI AND CO., INC.”

That plaintiff thereupon shipped to defendant fifty and one-half dozens rabbits which were received by defendants on January 2, 1925, at 1:10 p. m.; that notwithstanding repeated demands and only after plaintiff had placed the matter in the hands of an attorney, plaintiff on February 14, 1925, received from defendant its! check for $13.19 together with a pencil memorandum dated January 2, 1925, purporting to be the proceeds of sale of the rabbits shipped by plaintiff; that said memorandum reads as follows:

“Account sales of 5 barrels rabbits; received January 2, 1925, from Frank Slaw-son, Greenfield Mo.
447 Rabs. refuse, lean and skinny
$1.50 ______________________________________________________$56.87
Freight __________________________________________$36.00
Commission ___________________________________ 5.70 43.70
Bal. 1/2/1925____________________$13.17
“These rabbits did not,have any meat on at all. They were starved out. This is the reason they were hard to sell.”

That the allegation that the rabbits did not have any meat is false, and plaintiff is entitled to recover from the defendant the difference between the amount guaranteed and $13.17 say $165.45; that the defendant has refused to furnish plaintiff with a list of the (persons to whom the rabbits were sold.

The defendant filed a plea of estoppel based on the ground that the plaintiff received the check cent to him by the defendant for $13.70 and cashed it.

For answer defendant alleged that he is a commission broker in the city; that the prices quoted by him were exclusive of freight and broker’s commission of ten per cent; that he received only 447 rabbits or 37% dozens; that they were extremely poor in flesh and so thin that he was unable to sell them to the ordinary trade but was forced to dispose of them to peddlers; that he had no opportunity to examine the rabbits as the express company demanded payment of freight before delivery; that owing, to the poor condition of said rabbits the defendant was forced to keep them in cold storage.

There was judgment in favor of defendant dismissing plaintiff’s suit and he has appealed.

The plea of estoppel Is without merit. It does not appear that the collection of the check hasj affected defendant’s position injuriously. He owed the $13.70 and he paid it by check. His means of defense for the balance claimed remain the same even after the collection of the check. 96 U. S. 29; Wells vs. Sherrill Hardwood Lbr. Co., 151 La. 1081, 92 South. 76.

Charles Stewart, a member of the defendant firm, examined the rabbits and counted them on their arrival. No one else did. There were only 447 or 37% dozen rabbits; they were “lean and skinny”; they were received on January 2nd and put in cold storage, and were sold on February 14th; at the time he made returns he had received dunning letters from the plaintiff from his attorneys in Missouri and in New Orleans.

L. Alberti, a commission merchant in the same business, testifies that in December, 1924, and January, 1925, he received rabbits from Greenfield, Mo., and they were very poor, that condition is brought about by the weather; there was a drouth in 1924 and the rabbits could not get the proper amount of feed to keep them up; $1.50 a dozen is a fair price for rabbits during January, 1925. But the credibility of this witness has been successfully attacked for reasons which it would serve no useful purpose to state here.

On the other hand the record contains the testimony of the plaintiff and of two witnesses. Chester Riley and Charles Morrison. They all three testify that they have been in the rabbit business for several years; that they all three examined and counted the rabbits as they were packed; that thére were 606 or 607 rabbits and that they were all in good condition; that the contention of the defendant that the rabbits were poor and lean in flesh was absolutely without foundation and untrue.

It will thus be seen that the preponderance of the testimony is vastly with the plaintiff. But the facts also speak in favor of plaintiff. The failure of defendant to inform the plaintiff of what ■ it called the lean and hungry condition of the rabbits as soon as discovered, his delay in selling the rabbits, his failure to make returns, sales until goaded on by plaintiff’s attorneys in Missouri and in New Orleans, are all circumstances against him.

But the lean condition of these rabbits had nothing to do with the case. T'he testimony is that weather conditions affect the weight of rabbits; that they are now fat and then lean; that a drouth had prevailed in Missouri in December, 1924, which caused rabbits to be poor in flesh; that all rabbits shipped from Missouri about that time were all the same, rather lean.

The defendant being in that business must be charged with that knowledge. In making his quotations to the plaintiff he did not restrict, guarantee them, only to rabbits heavy in flesh, but “rabbits”; and he guaranteed the market price of $4.25 a dozen for them up to January 3, 1925.

The' law is clear that when the quality of goods to be delivered is not specified the debtor fulfills his obligation by delivering a thing 'neither of the best nor of the worst, but of a good ordinary quality. C. C. 2156 (2152). This the plaintiff has done as the testimony shows.

The plaintiff’s claim for 50% dozens is established; at $4.25 a dozen equals $214.62. From this amount must be deducted the freight charges $36 and 10 per cent commission on $214.62 or $21.46 and $13.17 or a total of $70.63 leaving a balance due of $143.99.

It is therefore ordered that the judgment herein be reversed and avoided, and it is now ordered that defendant, N. Chisesi and Co., Inc., be condemned to pay to the plaintiff, Prank Slawson, one hundred and forty-three 99-100 dollars with five per cent per annum interest from July 3, 1925, till paid and all costs of suit.


text:
    No. 10,161
    Orleans
    STATE EX REL. MAES v. NEW ORLEANS POLICE BOARD
    (Jan. 17, 1927. Opinion and Decree.)
    (Jan. 31, 1927. Rehearing Refused.)
    (Mar. 2, 1927. Writ of Certiorari and Review denied by Supreme Court.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Pleading—Par. 62, 71.
    An exception of no cause of action admits the well pleaded facts, but not the conelusions of law contained in the petition.
    2.Louisiana Digest — Mandamus—Par. 45.
    'A municipal board cannot be controlled by mandatory injunction in the performance of " discretionary duties and the courts will not go behind the judgment of the board for the purpose of inquiring into the amount of the evidence.
    Appeal from Civil District Court, Division “D”. Hon. Porter Parker, Judge.
    Action by Joseph Maes on the relation of the State of Louisiana against the New Orleans Police Board to show cause why injunction should not issue.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Richard A. Dowling, Alfred J. Bonomo, of New Orleans, attorneys for plaintiff, appellant.
    Ivy G. Kittridge, Wm. E. Westerman, of New Orleans, attorneys for defendant, appellee.
   OPINION

JONES, J.

This is a suit by Joseph Maes, a former policeman of New Orleans, asking the Police Board of New Orleans and the individual members thereof show cause why an injunction should not issue compelling them to reinstate petitioner as a policeman and also for a judgment awarding him the salary he would have been paid if he had not been dismissed.

The material allegations of the petition briefly put are as follows:

1. He was a duly and legally appointed police officer of New Orleans, and made an excellent record on the police force prior to the present trouble.
2. He was charged with bribery in an indictment before the Criminal Courts of New Orleans on September 27, 1924.
3. That on October 14, 1924, before his trial on the criminal charge, he was tried by the police superintendent and dismissed from the force.
4. He appealed to the Police Board, but they affirmed the decision of the police superintendent on October 23, 1924.
5. That both trials were over his protest and objections, as he made the objection that the charge being a criminal one he was entitled to be tried in the Criminal Courts first, and if found guilty he would automatically be barred from further service on the police force; but that if acquitted he was entitled to retain his position.
6. That neither the superintendent of police, nor the police board, wodld await the trial of the criminal charge, but dismissed him from the force.
7. That he was tried by the Criminal Court on December 4, T924, and found “not guilty” by a jury on the self same charge of bribery.
8. That within the limit allowed by law, and after being exonerated by a jury of this charge, he again applied to be reinstated to his position by asking the police board to grant him a rehearing. This they refused to do.
9. That your petitioner having been discharged by the police superintendent of New Orleans, in violation of law, is entitled to his salary for the time that he has been deprived of employment as a police officer of the City of New Orleans. (Par. XVI.)

To this petition the City of New Orleans and the other defendants filed along with other exceptions an exception of no cause of action, which was maintained by the lower court. As the other exceptions were not passed on by the lower court, the only question before us is the correctness of the ruling of the lower court on the exception of no cause or right of action.

The only material allegation is that contained in the paragraph quoted above (par. XVI of plaintiff’s petition), which states that the superintendent and the police board acted illegally in dismissing him, which averment is clearly a legal conclusion for the other allegations of the petition apparently show that the superintendent and the police hoard acted throughout under the authority conferred upon them by Act 32 of 1904, the controlling law.

In the case of Ex Rel. McMahon vs. New Orleans, 107 La. 632, 32 So. 22, where plaintiff sought a mandamus compelling the Council qf the City of New Orleans to reinstate him in that body, the Supreme Court uses the following language:

“True it is, where in such a case, a charge sufficiently grave to justify expulsion lias been preferred, and the accused has received the notice, and has been afforded the opportunities for defense, to which he is entitled, and there has been evidence adduced in support of such charge, the courts will not, ordinarily, go behind the judgment rendered for the purpose of inquiring ‘into the amount, or the balance, of evidence’.”

In the case of Lane, Secretary of the Interior, vs. —, 240 U. S. 174, the United States Supreme Court held that courts will only issue the writ of mandamus where the duty is plain and not discretionary.

In the case of State vs. Chauvin, 147 La. 703, 85 So. 645, the Supreme Court held that officers cannot be controlled by mandamus in the performance of discretionary duties.

An exception of no cause of action admits the well pjeaded facts, but not the conclusions of law contained in the petition.

Southern Chemical vs. Wolf, 48 La. Ann. 631, 19 So. 558.

Globe Realty Company vs. Vix, 3 Orl. App. 270.


text:
    Nos. 10,044-10,838
    Orleans
    HARRELL v. GONDOLF
    (Feb. 28, 1927. Opinion and Decree.)
    (Mar. 28, 1927. Rehearing Refused.)

      (Syllabus by the Court)

    1. Louisiana Digest — Appeal—Par. 301, 328.
    An appeal will not be dismissed as devolutive when the order of appeal fixes the amount of the bond for a devolutive appeal at fifty dollars and appellant furnishes a bond for $1500.00, whether the bond be sufficient for a suspensive appeal or not.
    2. Louisiana Digest — New Trial — Par. 27, 29, 30.
    A new trial upon the ground of newly discovered evidence is properly refused defendant when the effect of the evidence is merely to contradict the testimony of one of plaintiff’s witnesses.
    3. Louisiana Digest — Appeal—Par. 625, 629.
    When there is sufficient evidence before ' the jury, which if believed, would support its finding that a plaintiff in a physical injury suit was in fact injured, its verdict and the judgment of the trial court, based thereon, will not be disturbed unless it appears manifestly erroneous.
    Appeal from Civil District Court, Division “B”. Hon. R. F. King, Judge.
    Action by Willye E. Harrell against Nick J. Gondolf.
    There was judgment for plaintiff and defendant appealed.

      Judgment amended and affirmed.
    Sol Weiss, of New Orleans, attorney for plaintiff, appellee.
    A. G. Williams, I. F. Williams, of New Orleans, attorneys for defendant, appellant.
   ON MOTION TO DISMISS

WESTERFIELD, J.

plaintiff moved to dismiss in tlie lower court upon the ground of insufficiency in the appeal hond. The court refused to dismiss defendant’s appeal and plaintiff took a devolutive appeal from this judgment. Plaintiff’s devolutive appeal was argued in this court with the merits of the case by consent of counsel.

The judgment appealed from was for the sum of $1000.00 and the appeal bond furnished by defendant, which was attacked hy plaintiff as insufficient, is in the sum of $1500.00. The alleged deficiency in the bond is due to the failure of defendant to calculate interest upon the judgment (interest was expressly allowed in the judgment) to the time the appeal was taken and, undoubtedly, if interest should be considered, the bond is insufficient to support a suspensive appeal. But the important question is, since the case has been heard on the merits, not whether defendant has perfected a suspensive appeal, but whether he has properly appealed at all either suspensively or devolutively. The case having been submitted we could not decline to consider it, if the attempted appeal be effective devolutively.

An appeal bond which, because of deficiency in amount, will not support a suspensive appeal may, nevertheless, suffice to maintain a devolutive appeal if the amount of the bond is fixed by the court. Succession, of Keller, 39 La. Ann. 597, 2 So. 553; Helmas vs. Pailet, 126 La. 497, 52 So. 676; State vs. Martin, 145 La. 924, 83 So. 193.

The order of appeal in this case reads:

“It is ordered that a.devolutive and suspensive appeal be granted to the said Nick J. Gondolf, returnable to the Court of Appeal for the Parish of Orleans on the 15th day of April, 1925, upon said party furnishing bond with good and solvent surety according to law in the sum of fifty dollars for devolutive appeal.”

It is apparent that the suspensive appeal bond is not fixed by the court hut is to be “according to law”. However, the amount of the bond for the devolutive appeal, is fixed at fifty dollars and defendant furnished a bond of fifteen hundred dollars which though intended as security for the suspensive appeal, we believe will answer for the devolutive appeal. -Appeals are favored in law and will not be lightly dismissed.

ON THE MERITS

This is a suit for damages brought by a tenant against her landlord because of alleged personal injuries caused by falling plaster.

Defendant denies that plaintiff was injured at all, questions the quantum and claims the court erred in refusing a new trial.

The new trial was asked,upon the ground of newly discovered evidence. In the words of counsel this evidence consists of:

A witness named Doctor Frederick Fenno, who resides at No. 1630 Napoleon Ave., and who will testify that at the request of the National Life and Accident Ins. Co., he called on plaintiff a few days after June 4, 1922, (date of alleged injury), and that he made a thorough examination of the plaintiff, and that his examination showed no evidence of bruises or contusions or injury of any nature or kind whatsoever.
A witness named William H. Dane, residing at No. 4432 Laurel street, who will testify that he called on the plaintiff June 6, 1922, at the house No. 3210 Dryades street, that he saw the room and bed which the plaster fell in and that the bed was made of iron. That he was an insurance collector and that he made weekly calls upon the plaintiff and that he was thoroughly familiar with the contents of the front room of house No. 3210 Dryades street at the time of the alleged injury.
A witness named Frances Williams, who resides at No. 3217 Dryades street, who will testify that she heard William Johnson call to plaintiff, whereupon she went to her front door and upon looking out saw the plaintiff on the s.idewalk walking towards her home.

Tlie trial judge refused the motion for the new trial upon the ground that the newly discovered evidence was cumulative and affected only the quantum. Defendant’s counsel insists that the evidence of Dr. Fenno, one of the new witnesses, could not be so regarded. Perhaps not, but, such evidence would only serve to contradict the .testimony of plaintiff’s doctor, and other witnesses, and, is not of sufficient importance to justify a reopening of the case. State vs. Young, 34 La. Ann. 346; Doiron vs. Baker-Wakefield, 131 La. 618, 59 So. 1010.

The judge, a "quo, was in doubt as to whether the fact of plaintiff’s injury had been sufficiently established, and we are by no means certain on that point. However, it is a question of appreciation of testimony and as remarked by the trial court “there was testimony in the case which, if believed by the jury, would justify them in finding that the plaintiff was in fact injured by the fall of the plaster.”

We can not say the verdict of the jury and judgment of the court are manifestly erroneous, therefore, their finding as to the fact of injury will be approved.

The amount awarded plaintiff seems to us excessive. Her injuries do not appear to have been serious. A few bruises on the chest and abdomen and an alleged vaginal hemorrhage of rather doubtful origin.

There is some testimony of a spitting of blood following the accident. But on the whole, the proof of these extraordinary symptoms is unsatisfactory. There was undoubtedly some 'shock and several bruises about the body. We will allow $500.00.

For the reasons assigned the judgment appealed from is amended by reducing the amount awarded to $500.00 and in all other respects it is affirmed. Defendant to pay costs of both courts.-


text:
    No. 10,792
    Orleans
    YOUNG v. SMYTHE
    (April 11, 1927. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Automobiles — Par. 4 (d).
    In determining the fault of drivers of colliding automobiles, infractions of the traffic ordinance largely influence the deliberations of the court.
    Appeal from First City Court, Section “B”. Hon. Val J. Stentz, Judge.
    Action by Charles S. Young against E. Smythe.

      There was judgment for jplaintiff and defendant appealed.
    Judgment reversed.
    Lemle, Moreno, Lemle, of New Orleans, attorneys for plaintiff, appellee.
    A. R. Christovich, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

This suit results from a collision between a Jewett sedan owned and driven by plaintiff and a Ford coupe, owned and driven by defendant. Plaintfif claims $185.50 as damages to bis Jewett ear.

There was judgment for plaintiff and defendant has appealed.

Plaintiff was proceeding down Carondelet street in the direction of Canal street and defendant out Fourth street in the direction of the lake. The collision occurred in the intersection of Fourth and Carondelet streets.

There is the usual conflict of evidence as to the speed of the colliding cars and we find its impossible to determine which car offended in that regard. However, defendant had the right of way because he was approaching from plaintiff’s right, neither street being accorded a right of way under the traffic ordinance. (C. C. S. 7490.)

Art. 1-7 (c) of that ordinance ¡provides:

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

Plaintiff was under the impression that he had the right of way because of greater traffic on Carondelet street than on Fourth. Perhaps Carondelet street should be preferred to Fourth for the reason given by plaintiff, but, as yet, the ordinance does not so provide. We attribute the accident to plaintiff’s mistaken belief in his having the right of way.

It is frequently very difficult to determine which of the two drivers of colliding automobiles is at fault, particularly so at intersections. In reaching a conclusion infractions of the traffic ordinance, where there is proof to that effect, largely influence our deliberations. We know of no better method of relieving the present congestion of vehicular traffic on our city streets, and the consequent danger to life and limb, than the enforcement of laws governing that traffic. It is the duty of the court, in considering claims for; damages resulting from a disregard of the provisions of that law, to emphasize the fact.

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


text:
    No. 10,811
    Orleans
    HUGHES v. CASTEIX, Appellant
    (April 1, 1927. Opinion and Decree.)

      (Syllabus by tfi,e Court)
    1. Louisiana Digest — Negligence—Par. 10, 11.
    It is not every defect in a pavement that will entail liability for a fall. It must be such as is apparently dangerous and calculated to do injury.
    Appeal from First City Court. Hon. W. Alexander Bahns, Judge.
    Action by Marguerite Hughes against M. B. Casteix.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed.
    Prowell and McBride, of New Orleans, attorneys for plaintiff, appellee.
    Jno. R. Perez and H. G. McMahon, of New Orleans, attorneys for defendant, appellant.
   CLAIBORNE, J.

Plaintiff fell upon the door sill of defendant’s premises and was hurt.

She claims damages.

She alleged that the defendant was the owner of a drug store at the corner of Magazine and Thalia streets; that on January 9, 1926, at about 8 p. m., she entered the store to make some purchases and when she attempted to leave through the door opening on Magazine street she stepped into a hole about three inches in diameter located upon the sill of the door with the result that the heel of her shoe became wedged in the hole and she was thrown to the ground; that at the time she attempted to pass the door was closed so that it was not possible for any one in the store to see the hole; that the hole was caused by the rottenness of the material of the sill, and that the defendant knew or should have known of it; that plaintiff’s heel and ankle were sprained; that she was taken in a taxicab to a hospital for treatment, and then brought home where she remained in bed two days unable to sleep; that she was unable to attend to her work for two weeks and five days on account of the pain of her foot; that she was attended by a physician; that she is employed as a saleslady at $15 per week; that she has suffered the following damage:

Bandage for her foot ----------------------------$ 3.00
X-ray picture _______________________ 2.00
T'axicab to hospital ____________ 5.00
Loss of wages ________________________________________ 42.50
Mental anguish _______ 47.50
Physical pain ____________________________ — .......... 200.00
$300.00

The defendant denied the allegations of the petition; denied that the plaintiff had entered his store to make purchases; but on the contrary to use the telephone for her own purposes; that the condition of his premises was the same as had been for some time previously; that plaintiff had every opportunity of seeing its condition.

There was judgment in favor of plaintiff for $200 and defendant has appealed.

On the trial of the case it was admitted that the plaintiff had suffered a sprained ankle at the time of her fall.

The steps upon which the plaintiff tripped and fell are of cement. It was agreed upon the trial that photograph No. 4, offered in evidence, was “a picture of the hole”.

This photograph shows a small portion of cement missing upon the front of the step, of course that could not have been the cause of the accident, as the foot could not have rested, nor have b^n caught upon the side of the step. Upon the top of the step there appears only a crack or fissure a few inches long, but no hole, nor evidence of any missing material. The evidence is that this condition was of long standing, and that the plaintiff had been in the habit cf entering and leaving the store many times a week. The attention of the defendant had never been called to that condition, nor any suggestion made that it was dangerous; no accident had happened prior thereto.

Plaintiff is the only one who testifies that she tripped in that crack of the cement.

No one saw her trip, nor knew what the cause of her falling was.

It is not every defect in a pavement that will entail liability for a fall. It must be such as is apparently dangerous and calculated to do injury. Wiltz vs. City, 2 La. App. 444; Barnes vs. City of New Orleans, 4 La. App. 503; Varnado vs. Baton Rouge, 5 La. App. 238.

The evidence in this case is that the crack in the pavement or chip had existed for some time and had never attracted attention, nor suggested danger, and it is difficult to conceive that the accident happened from the cause alleged by the plaintiff.

It is therefore ordered that the judgment be reversed and set aside, and it is now ordered that plaintiff’s demand be rejected at her cost.