text:
    No. 3899
    Second Circuit
    FOX v. CITY OF MONROE
    (December 23, 1930. Opinion and Decree.)

      Newton & Newton, of Monroe, attorneys for plaintiff, appellant.
    H. H. Russell, of Monroe, attorney for defendant, appellee.
   ODOM, J.

On' April 15, 1920, plaintiff was appointed registrar of vital statistics for the parish of Ouachita, which includes the city of Monroe, and held that position continuously from that date up to the date of the trial of this case in March, 1930. As compensation for his services as such he was entitled to a fee of 25 cents for each birth and each death reported, to be paid by the police jury of the municipality upon the warrant of the president and secretary of the board of health for the state, as provided by Act No. 60 of 1914, page 151.

From August 20, 1920, to August 20, 1929, twenty-eight warrants aggregating $1,744.50, were drawn by the state board of health on the treasurer of the city of Monroe in favor of plaintiff. None of the warrants were paid by the city, and the present suit is to collect them.

The city’s defense is that during the entire period from the date on which the first warrant was issued to the date of the last one, plaintiff was employed by it as secretary of the city board of health and sanitary officer for the city of Monroe and was by the city paid a monthly salary of $185 for his services, which included the work he was required to do under his employment as registrar of vital statistics; that plaintiff was informed that the person holding the office or position of secretary of the city board of health and sanitary officer and receiving the salary of that position would be required to perform the duties of local registrar of vital statistics for the city without the payment by it of any sums other than the salary; and that plaintiff acceded thereto by accepting the position and salary without pressing his demands for payment of these warrants and that he thereby waived whatever rights he may have had under the law to collect them. Plaintiff appealed from a judgment rejecting his demands.

OPINION

The warrants now sought to be enforced against the municipality are for plaintiff’s services in reporting births and deaths which took place within the city, and it is not denied that under Act No. 60 of 1914, it was the duty of the municipality to pay them and that upon its refusal the state board of health could have compelled payment of them by mandamus or other summary process, nor is it denied that the holder of the warrants could have at any time enforced their payment by personal action against the city had he not waived his rights to collect them.

But the city resists the action and sets up the defense that .plaintiff waived his right to collect from it the fees due him as registrar of vital statistics, and-in effect pleads that he has already been paid .by it for such services. The trial judge held that the city’s defense was good, and under the facts disclosed -we must sustain his ruling.

The first of the warrants held by 'plaintiff and filed in evidence was issued to him on August 20, 1920, for the second quarter of that year and one like it, except in amount, at the end of each quarter thereafter until August 20, ’ 1929, so that the warrants sued'on are for plaintiff’s services as registrar of vital statistics for a period of exactly nine years and three months.

These warrants were due and payable by the city upon presentation and demand, and plaintiff knew that, and he knew further what his remedy was when the city refused to pay. The first of the warrants was more than nine years and the last one two months overdue when this suit was filed. Yet there is no testimony that plaintiff, during that period of nine years, ever pressed these claims against the city. He was not at any time during that period ignorant of his rights and remedy, nor was he in any sense incapacitated to press his claims.

But the facts are that during all that time and longer he was an officer or an employee of the city at a monthly salary of $185, and that he knew that the city officials expected him to render the service as registrar of vital statistics for the city as part of his duties as secretary of the city board of health and sanitary officer and that the salary paid him by the city each month was intended to be full compensation for all his services, and his conduct shows that he accepted it as such. It was explained to him, not once, but on numerous occasions, by the city attorney, that the emoluments of his office as secretary of -the city boar.d of health and sanitary officer were intended to cover all services to the city, including those connected with the bureau of vital statistics for which these warrants were issued. He held to his position with the city and accepted the salary paid him by it with full knowledge and understanding of that fact. He resigned his position with the city on September 1, 1929, and filed this suit on November 12, following, and never until then did he press these claims for collection.

At various times during the period over which these warrants were issued to him, plaintiff mentioned the matter of their payment to the city attorney, who upon each occasion informed him that the city did not pay them for the reason above stated. But plaintiff aid not at any time during the period of his employment by the city insist upon their payment, but apparently acceded to the city’s demand that he do this work in connection with his other duties for which he was paid a salary. Plaintiff testified that he knew if he pushed these claims for collection, he would be discharged. He said:

“I know I would lose my job if I insisted on the payment of them and they were too small to lose a job over.”

Plaintiff, therefore, deliberately and intentionally chose the benefit of the salary paid by the city instead of that which arose under the warrants. He knew he could not claim both and with full understanding of his legal rights he made his choice. He cannot now, after making a deliberate choice of the greater benefit of the salary and accepting it through all those years, be permitted to enforce this stale demand against the city.

A “waiver” is an election by one to dispense with something of value or to forego an advantage he might have taken or insisted upon, or the giving up or surrendering of some known right.

Prom Bouvier’s Law Dictionary, Rawle’s Third Revision, we quote the following found under the heading “Waiver”:

“The relinquishment or refusal to accept of a right. * * * The intentional relinqiuishment of a known right. * * * In practice it is required of every one to take advantage of his rights at a proper time; and neglecting to do so will be considered as a waiver.” Browning v. Smith, 139 Ind. 280, 37 N. E. 540.

Many authorities are cited under the following statement found in 8 Words ana Phrases, First Series, page 7376:

“Bishop, in his work on Contracts (section 792), defines waiver as ‘where one in possession of any right, whether conferred by law or by contract, and a full knowledge of the material facts, does or forbears the doing of something inconsistent with the exercise of his right or of his intention to rely on it. Thereupon he is said to have waived it, and he is precluded from claiming anything by reason of it afterwards. * * *
“A waiver implies the idea that one has a right, and, with knowledge of his rights and that which might defeat his rights, does an act by which he waives the right to stand upon his legal position or his legal right.” Citing Hollings v. Bankers’ Union of the World, 63 S. C. 192, 41 S. E. 90.

“Waiver” is a voluntary act and involves the idea of assent and intention. Plaintiff voluntarily abandoned these claims against the city during the period of his employment and acceded to the city’s refusal to pay them. His intention to do so is manifest from his conduct.

He abandoned his rights under these warrants for prudencial reasons. He knew if he insisted upon their payment he would lose his position, and the salary which the city was paying him. Prudence and discretion prompted the course which he took.

“Where a person refrains from asserting his rights for prudential reasons he is entitled to less favorable consideration than if his conduct has been that of mere inaction.” 10 R. C. L. 402.

See Thorn Wire Hedge Co. v. Washburn & Moen Manufg. Co., 159 U. S. 423, 16 S. Ct. 94, 40 L. Ed. 205.

Plaintiff seems to have entertained some remote, lingering hope that the city would finally honor and pay these warrants, but he took no active steps to enforce them. Even if he had constantly and regularly asserted his rights, that would not avail him anything due to his conduct and long inaction. Mackall v. Casilear, 137 U. S. 556, 11 S. Ct. 178, 34 L. Ed. 776.

Counsel for appellant in brief says that plaintiff’s claim is equitable, in that he earned the amount through service, and he quotes article 21 of the Civil Code, which provides that:

“In all civil matters, where there is no express law, the judge is bound to proceed and decide according to equity.”

But we find no room for the application of the equity rule in plaintiff’s favor. On the contrary, we think it would be inequitable to permit him to enforce this belated and stale demand. If he had' pressed his demand or manifested an intention to do so at any time during all the nine years he was reaping the benefits of the salary paid him by the city, it could have protected itself either by discharging him or by reducing his salary to an amount which added to these quarterly payments would be what it considered adequate compensation for what he was doing.

Equity demands that a man speak when it is time and his duty to speak. No one is permitted to remain silent when it is his duty to speak and thereby lead his adversary into a trap. The rule is that, “He who asks equity must do equity.”

For the reasons assigned, the judgment appealed from is affirmed, with all costs.


source: Caselaw Access Project

author: ODOM, J.

license: Public Domain

text:
    No. 3910
    Second Circuit
    HENDERSON v. MISSOURI PAC. R. R. CO.
    (December 23, 1930. Opinion and Decree.)
    Frank W. Hawthorne and W. Dan Files, of Bastrop, attorneys for plaintiff, appellant.
    Hudson, Potts, Bernstein & Sholars, of Monroe, attorneys for defendant, appellee.
   ODOM, J.

On June 16, 1928, a collision took place in the daytime at a public crossing in a rural section of Morehouse parish between one of defendant’s passenger trains and an automobile in which plaintiff was riding. He was injured and prosecutes this suit to recover damages.

He alleges that he was a passenger in the automobile which at the time was owned and driven by one B. J. Greenberry and that neither he nor the driver of the car was guilty of any fault or negligence, but that the accident and resulting injury were due solely to the fault and negligence of the defendant company, the specific acts of negligence charged being: (1) That the crossing where the collision occurred was dangerous and negligently constructed in that approach to the same is up a short incline; (2) that the Louisiana stop sign at the crossing is placed in such manner as to obstruct the view of a train approaching from the south; (3) that the defendant negligently permitted weeds and bushes to grow up along the right-of-way to the height of six feet so that it was impossible for one approaching the crossing to see the train on the track, and (4) that the train crew, before reaching the crossing, did not ring the bell, blow the whistle or give any other warning signal whatever.

The defendant in answer admitted that its .train collided with the car in' which plaintiff was riding and -admitted that he was injured to some extent but denied generally the other allegations, and affirmatively alleged that plaintiff, while not the driver of the car, was guilty of gross independent negligence and in the alternative pleaded contributory negligence in bar of his recovery.

The trial judge rejected plaintiff’s demands, ordered his suit dismissed, and he prosecutes this appeal.

This is a tort action founded upon negligence and if the defendant company was guilty of no negligence there can be no recovery and the burden was upon plaintiff to prove negligence on the part of defendant as a necessary element of his cause of action. This point is conceded by counsel for appellant.

The only charge of negligence against the railroad company urged by counsel for appellant in this court is that the train approached the crossing without the sound of bell or whistle. All others have been abandoned.

Act No. 12 of 1924, page 16, provides that every railroad company shall cause each locomotive engine used to be equipped with a bell and a steam whistle “and shall cause the bell to be rung or the whistle to be blown at the distance of at least three hundred yards from the place where the railroad crosses over any highway or municipal street, and the bell shall be kept ringing or the whistle shall be kept blowing continuously until said crossing is passed.” Section 1.

It goes without saying that neglect to comply with this mandatory duty on the part of the railroad company is negligence per se. But in this connection we take occasion to say that in order to comply with the requirements of the above cited act it is not necessary that the bell be rung and the whistle blown at a distance-of 300 yards from the place where the railroad crosses the highway, nor is it necessary that the bell be kept ringing and that the whistle be kept blowing continuously until the crossing is passed. The act does not so provide. All that is required by the act is that either one or the other warning signal shall be given at a distance of 300 yards from the crossing and that either the bell shall be kept ringipg or the whistle kept blowing continuously until the crossing is passed. Either warning signal suffices. Both are not necessary. This must be kept in mind in considering the testimony in this case touching the only charge of negligence now urged.

In support of his allegations that defendant’s train approached the crossing without the sound of bell or whistle, plaintiff testified that the driver of the car in which he was riding stopped it before going upon the track and that he, plaintiff, looked both ways, up and down the track, that he listened and that he neither saw nor heard the train. We readily accept as true his statement lhat he did not see or hear the train, .because if he did, it is inconceivable that he would have permitted the driver to go upon tne track immediately in front of the oncoming train as he did without making some protest or giving some warning, and he says he did nothing and said nothing to the driver until the front wheels of the automobile had crossed the first rail of the track, at which time, the testimony shows, the train was so close that a collision was inevitable. But we cannot believe that he either looked or listened. This crossing is in a rural section where the land is level and open and the railroad track is practically straight. There is nothing of any character or description either on the right-of-way or near it within a mile of the crossing to obstruct the view. It is undisputed that one standing at or near the crossing on either side could see the railroad track either way for at least a mile. Therefore, the fact that plaintiff did not see the train until the automobile got up on the track is proof sufficient that he did not look for it until then.

Now the fact that plaintiff was mistaken or not candid when he said he looked leads readily and strongly to the conclusion that he was also mistaken when he said he listened. We think he did neither, and, therefore, attach no importance to his testimony, that the train approached without warning signals.

Plaintiff called three other witnesses in support of this allegation of negligence, James Harkness and Eugene Gray, both young white men, and Cora Hawkins, a colored woman. Harkness and Gray were both standing on the front porch of the latter’s residence which is between a half and three-quarters of a mile from the crossing where the collision took place. Harkness says the beil was not rung and that the whistle was not blown. Gray does not say that there was no bell or whistle but says he heard none. The woman, Cora Hawkins, was in a house a quarter of a mile away and says she heard the noise of the train from the time it left Collins-ton, which is two miles away, and that the whistle was not blown and the bell was not rung until the train hit dhe car.

As against the above there is the testimony of the train crew, James McCarthy, the engineer; J. M. McDonald, the fireman, and T. A. Brown, the conductor. The engineer and the fireman both say that the automatic bell ringer was turned on as the train left Collinston two miles south of the crossing and that the bell rang continuously until after the collision. The engineer in explaining why he left the bell ringing over the entire distance said that there was a private crossing on the outskirts of Collinston and that cattle grazed on the right-of-way in that vicinity. The whistle post is one-quarter of a mile from the crossing and the engineer, fireman and conductor each say that the crossing whistle was blown at or near the post.

To corroborate the testimony of the train crew defendant called four colored persons, Fred Key and his wife, Mattie, Liza Reece and George Reece. Fred Key testified that he lived about 250 yards from the crossing and was in his back yard cutting wood when the collision took place; that he heard the bell and whistle but did not see how far the train was from the crossing at the time. His wife, Mattie, was in the house sitting down with her baby in her lap when she says she heard the whistle blow and at once got up, carried the baby to the door to show it the train and that about the time she got to the door the train hit the car. Liza Reece lives about 200 yards from the crossing, and heard the whistle which caused her to look in that direction. She does not fix definitely the location of the train when she heard it whistle but says that when she looked she saw the automobile about the time it left the main highway to go across the track and that after the car turned to go across the track it slowed down and she was sure it did stop. The main highway is about 200 feet from the track so that, according to her testimony, the whistle must have been blown some distance from the crossing. George Reece lives about 200 yards from the crossing, and saw the accident. He says he heard the whistle when the train was about 100 yards down the track from the crossing and again that the front wheels of the automobile were nearly to the first rail when the whistle blew.

To sum up the testimony, we disregard that of the plaintiff himself for reasons already stated; Harkness says the bell was not rung nor was the whistle blown until after the collision, but his testimony loses some of its effect when it is considered that he was from one-half to three-quarters of a mile from the crossing and there was apparently nothing to attract his attention until he saw the collision; Gray, who was with Harkness, does not say the signals were not given but says he did not hear them; Cora Hawkins says the signals were not given until after the collision. For the defendant the three members of the train crew are positive that both signals were given at the proper time and place and that the bell was ringing continuously. The testimony of the four colored witnesses tends to show that the proper signals were given before reaching the crossing, although they did not definitely fix the position of the train when they were given.

In considering the testimony of the witnesses called by plaintiff and the colored witnesses called by defendant we must take into consideration the fact that none of them were expecting the arrival of the train and had no reason to notice the signals. The signals could easily have been given and not noticed by them. That is especially true of Harkness and Gray. According to their testimony they were between one-half and three-quarters of a mile from the crossing. According to members of the train crew the whistle was first blown at the whistling post one-quarter of a mile south of the crossing. Harkness and Gray being at least one-half a mile from the crossing and the whistling post being one-quarter of a mile further south, they were at least three-quarters of a mile from the whistling post so that if the whistle was blown at the whistling post it is not likely that these witnesses would have noticed it at that distance m view of the fact that there was no ¡particular reason why they should have noticed it. Harkness says he saw the train strike the automobile and that the bell did not begin ringing until after the collision. It would seem rather strange that the engineer should set the bell to ringing after the collision. The fact is, we think, that the bell was ringing all the while and that Harkness did not notice it until he saw the collision. According to the colored witnesses the train was making a great deal of noise, one of them stating that she heard it about the time it left Collinston, which is two miles away, so that it is not improbable that they did not notice the bell, the sound of which was confused with and probably drowned by the noise of the train.

If we hold that the proper crossing signals were not given we must base that holding uipon purely negative testimony, that is, upon the testimony of those who did not hear them. Not only that, to so hold would be, in effect, at least, to say that the three members of the train crew deliberately falsified and for no suggested reason other than that they are employees of the defendant company. The personal character and veracity of these men are not assailed. On the contrary it is shown that they have been entrusted with the operation of defendant’s trains for many years. We cannot assume that such men would be willing to perjure themselves to win a law suit for their employer. It is suggested in this case, as it usually is in cases where the members of a railroad crew are called, that they may on account of personal interest be expected to say that the proper signals were given, for to do otherwise might cause them to lose their jobs. But this is an argument' which may cut the other way, for it may be said with equal force that for the same reason a plaintiff would be expected to say that the ¡proper signals were not given, for to say otherwise might cause him to 'lose his case. In the absence of testimony to show or even a suggestion that a plaintiff or the members of a train crew are not worthy of belief, courts cannot disregard the testimony of either merely and solely because the plaintiff has an interest and wants .to win his case or that the members of the crew are employees- of the defendant company.

Now, unless we disregard altogether the testimony of the members of the train crew and we see no reason for doing so, we must hold that the proper crossing signals were given. It frequently happens that the engineer and the fireman are the only persons in a position to know definitely whether the signals are given. They, of all people, should know, for it is their business to give them. The following quoted from the opinion, in the case of Bihm v. N. O. & Mexican R. R. Co., 6 La. App. 655, is pertinent here:

“It was the duty of the engineer and fireman to blow the whistle for each crossing and ring the bell before reaching same; such things become matter of habit with them. People not engaged in the operation of trains but living near crossings over which fast trains daily pass, become so accustomed to the whistling, and the ringing of the bell, that ordinarily, unless purposely listening, they pay no attention to such things and do not consciously hear them.”

See Simpkins v. L. R. & N. Co., 5 La. App. 438, Guillot v. L. R. & N. Co., 3 La. App. 541.

The trial judge found that, while not driving the car, plaintiff could not recover because of his own gross negligence which was the main contributing cause of his injury. We shall not comment upon that point further than to say we think his conclusions well founded, as we prefer to rest the case upon our finding that the defendant company was guilty of no negligence.

The judgment is affirmed with all costs.


author: DREW, J.

text:
    No. 3913
    Second Circuit
    DEHMER v. HEMLER
    (December 23, 1930. Opinion and Decree.)
    J. B. Dawkins, of Monroe, attorney for plaintiff, appellant.
    George Wesley Smith, of Rayville, attorney for defendant, appellee.
   DREW, J.

Plaintiff sued for damages in the sum of $10,000, alleging that on or about the 15th day of April, 1929, she and her husband were occupying, as lessees, a house owned by defendant, and that defendant, during the absence of her husband, called at her home and, after forcibly entering the house, made an assault and battery upon her; all of which caused her great physical, nervous and mental harm.

She further alleges that at the time of the assault she was just recovering from an abdominal operation, and that when defendant held and pulled her she suffered a rupture of the wound, which was only partially healed; that she was confined to her bed for a period of three weeks after the assault, suffering intense, pain during the time of her confinement; and that the effect of the rupture of the wound has been to cause an adhesion, from which she still suffers and believes will be permanent.

She alleges that she was greatly frightened hy the alleged assault and still suffers greatly from nervousness caused by the assault; that the assault was made maliciously and unlawfully and in violation of her rights to the peaceable enjoyment of her home; and that she is entitled to exemplary damages.

She prays for judgment in the sum of $7,500 actual damages and $2,500 as exemplary damages.

The defendant denied all the material allegations of the petition.

On these issues the case was tried, resulting in judgment in favor of defendant, rejecting the demands of . plaintiff. Prom that judgment plaintiff has appealed to this court.

Outside of the question of the admissibility of certain testimony, the case presents only questions of fact, and the rule of this court has been not to disturb the findings of fact by the lower court, unless his findings are clearly erroneous.

Appellant complains of the ruling of the lower court in rejecting the testimony of Mrs. Dupont, who attempted to tell what the plaintiff had told her of the incident a short time after the alleged assault. Mrs. Dupont lives just across the street from the plaintiff. She saw the defendant go into plaintiff’s house, and waited in her own home until after the defendant had. come out of the house of plaintiff and had walked to the next house on the same street and entered on the porch, at which time Mrs. Dupont came out of her own home and walked across the street and entered the home of plaintiff. She testified that she found the plaintiff in a weakened condition, and about to cry; that she got cold water and bathed her face, and that at that time plaintiff told her what had occurred.

The lower court excluded the testimony of this witness, when she was asked to relate what plaintiff had told her, on the ground that it was hearsay and not part of the res gestae. The objection to the testimony, for the reason that it was hearsay, was properly sustained.

Plaintiff also complains of the trial judge’s allowing certain character witnesses to testify, who had not been placed under the rule. All witnesses were placed under the rule, and over the objection of plaintiff the court allowed certain witnesses to testify as to the character of defendant, although these witnesses had been in the court room during the trial. This matter was entirely in the discretion of the trial judge. While it is usual and common practice to exempt from the rule all character witnesses, and there is no good reason why they should not be exempted, there was no error in the ruling of the court on this point.

The third and last complaint of plaintiff is, that the trial judge totally disregarded the testimony in rendering his judgment. We cannot agree with the plaintiff in this contention.

Plaintiff does not contend that the alleged assault and battery was committed with any intent to injure her or on account of any feeling of ill will or hatred, but only that it was prompted by too much affection; that defendant embraced her and kissed her, and her injury was received in her struggle to free herself from him.

Plaintiff is a young married woman in the twenties, and defendant a man seventy-four years of age. He had called at her house on the day alleged to collect rent that was due him, as he usually did. He and plaintiff were seated in the front part of the house discussing the rent, which was not ¡paid, when plaintiff smelled her dinner burning and she left to go to the kitchen to see about it. She testifies that defendant followed her to the kitchen and there embraced her and kissed her, and that she struggled to get loose from his embraces, and ruptured her wound. Defendant denies that he went to the kitchen or that he embraced her or even thought of doing such a thing. There were no other witnesses as to what actually happened in the house at that time.

Defendant, on leaving the home of plaintiff, went to other houses on the same street to collect rent. After he left, the witness, Mrs. Dupont, went into plaintiff’s home, and in about fifteen minutes’ time the defendant found that one of his rent- . ers had left his house, and he returned to plaintiff’s home to inquire if the key had been left there. Mrs. Dupont was present, but plaintiff did not accuse defendant of any wrongdoing while he was there in the presence of Mrs. Dupont, the natural thing for her to have done. She made no outcry at the time of the alleged assault, and it is indeed strange that defendant would have returned to plaintiff’s home so soon after he had assaulted her and had been so completely rebuffed. Her narrative of the affectionate assault at least needs corroboration, which is lacking in this case, and we only have her testimony against the testimony of defendant. If they are of equal credibility, she has failed to make out her case, as the burden of proving her case with a preponderance of testimony is upon her.

In this case the credibility of the witnesses might govern, and the trial judge, who saw and heard them testify, was better qualified to pass on their credibility than we are.

The fact that plaintiff did return to her bed and was under treatment for her ruptured wound for several weeks, might add some credence to her story; but that in itself is not sufficient to justify this court in reversing the lower court on his findings of fact. There are many ways that the rupture might have been caused other than by the affectionate embraces of an old man in the seventies.

We cannot say that the judgment of the lower court is erroneous. It is therefore ordered, adjudged and decreed that the judgment of the lower court be affirmed, with costs.


text:
    No. 3918
    Second Circuit
    MONROE AUTOMOBILE & SUPPLY CO. v. BOWMAN ET AL.
    (December 23, 1930. Opinion and Decree.)

      McHenry, Montgomery, Lamkin & Lam-kin, of Monroe, attorneys for plaintiff, appellee.
    Edward L. Gladney, Jr., of Bastrop, attorney for defendants, appellants.
   DREW, J.

Plaintiff filed suit against Tom B. Bowman and W. C. Blanchard on eight promissory notes, asking for personal judgment against Blanchard, the maker, and Tom B. Bowman, the endorser. The notes are paraphed by a notary public to identify them with a certain act of sale and chattel mortgage between the plaintiff and W. C. Blanchard, the notes being annexed to and made part of the petition. The petition does not ask for recognition or enforcement of the chattel mortgage.

Blanchard could not be located and' therefore was not cited, and has made no defense to the suit. Bowman answered, denying the indebtedness and alleging that 'he signed as accommodation endorser and that plaintiff — by filing suit for personal judgment against Blanchard, thereby destroyed, waived and discharged the lien and privilege to which Bowman was entitled to be subrogated, without his consent.

On these issues the case was tried and the lower court rendered judgment, as prayed for, in favor of plaintiff and against the defendant, Bowman. From this judgment, Bowman has appealed.

Plaintiff sold to W. C. Blanchard an automobile part on credit and took a chattel mortgage on the car for the credit portion of the price. The notes were made by Blanchard and endorsed by the defendant; Bowman. The notes are past due and ex-ecutory, and there is no dispute over the amounts of the notes. The only question in the case is whether the plaintiff, by bringing suit for personal judgment against the defendants and not asking for recognition of his lien and privilege under said chattel mortgage, has released the endorser, admitted to be an accommodation endorser, from liability thereon.

The evidence shows that prior to the filing of the suit, the vendee, Blanchard, had a wreck in the automobile and completely destroyed it, or rendered it worthless. Defendant objected to this testimony and it was admitted over his objection. The evidence, we think, was properly admitted. ■Defendant’s defense is that he is released from liability as endorser for the reason that plaintiff did not preserve its privilege against the automobile and plaintiff was entitled to the right to rebut that defense by showing why it did not preserve its lien and privilege on the car.

The defendant, having specially put at issue the question asked by plaintiff in his answer and there being no replication allowed in pleadings in this state, the evidence was properly admitted by the trial court. (Code of Practice, art. 329.)

The law does not require that plaintiff do a vain or foolish thing and it would have been both vain and foolish to ask for recognition of vendor’s lien and chattel' mortgage on property shown to be worthless. The endorser could not have been helped by preserving for him an article that • was absolutely worthless, as the car in this instance was proven to be. He is in the same position that he would have been had the chattel mortgage been on live stock that had died prior to the filing of the suit. The preservation of a lien and privilege on something that does not exist is not required of the vendor in order to proceed against the endorser of the notes given for the purchase price. If the evidence had shown the car to be of any value, then probably the contention of defendant would have prevailed. But, under the evidence in the case, his contention is without merit.

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


text:
    No. 3914
    Second Circuit
    OTIS v. KAPLAN
    (December 23, 1930. Opinion and Decree )
    Lester & Madden, of Monroe, attorneys for plaintiff, appellee.
    Stubbs & Thompson, of Monroe, attorneys for defendant, appellant.
   DREW, J.

Plaintiff alleges that he is a doctor of medicine and a specialist in nervous and mental diseases; and that the defendant is indebted unto him* in the sum of $275.24 for this, to-wit:

That defendant on or about the 6th day of May, 1929, authorized and delegated Dr. D. I. Hirsh, a physician of Monroe, Louisiana, to procure the services of plaintiff, a resident of New Orleans, Louisiana, to go to Pineville, Louisiana, and there make an examination and inquiry into the sanity of Samuel Kaplan, a brother of defendant; that acting under said authority, Dr. D. I. Hirsh communicated with plaintiff, explaining the instructions that had been given him. Acting upon said instruction given to him by defendant, through his agent, Dr. Hirsh, that plaintiff went to Pineville and made the examination of Samuel Kaplan, then an inmate of the Central Louisiana State Hospital, and reported his findings to the defendant; that he at that time presented defendant with a bill for his services and was promised by the said defendant that the bill would be paid. He alleges amicable demand and the failure of defendant to pay the bill.

Defendant denies the allegations of the petition and alleges that if the bill is due at all, that it is due by the estate of Sam Kaplan.

The lower court rendered judgment in favor of the plaintiff in the amount sued for, and from that judgment defendant has prosecuted this appeal.

In the early part of May, 1929, Samuel Kaplan was adjudged insane and committed to the Central Louisiana State Hospital, at Pineville, Louisiana, by the Fourth Judicial District Court of Louisiana, in and for the parish of Ouachita. On that same day, the defendant, a brother of the interdict, apparently not satisfied with the interdiction, discussed the case with Dr. D. I. Hirsh, one of the physicians who nad been appointed by the court to examine into the sanity vel non of Samuel Kaplan. During this discussion, defendant requested and authorized Dr. Hirsh to telephone to plaintiff, a nerve specialist in New Orleans, requesting that he come to Pineville at once and make an examination into the sanity of the then interdict. Acting on this telephone message, the plaintiff secured the services of other doctors in New Orleans to serve for him in his absence and proceeded to Pineville, where he was met by the defendant. Defendant furnished plaintiff with a full history of the case of his brother after which plaintiff made an examination into the sanity of Samuel Kaplan and reported to defendant what he found. At that time, plaintiff presented his bill for the amount sued for here As to what was said at the time the bill was presented, the testimony is widely different. Plaintiff swears that defendant was perfectly satisfied and promised to pay the bill; while defendant testifies that he did not promise to pay the bill, but told plaintiff to send the bill to the “tutor” (meaning curator of the interdict), and they would pay it. Plaintiff sent bills monthly to the defendant, but same were never paid. Suit was then filed.

It is conclusively proved and not contradicted that the plaintiff, Dr. W. J. Otis, is a specialist in nervous and mental diseases and that he performed services in conformity with the instructions given him by Dr. Hirsh and that the fee charged was a very reasonable one.

The only question in the case is; Was Dr. Hirsh the agent of defendant and is defendant bound for the fee?

Dr. Hirsh, when he telephoned to plaintiff, did so at the request of defendant, and in the conversation told plaintiff that he was talking for defendant and that defendant would meet him at Pineville. Defendant was present in the office when the telephoning was done and undoubtedly heard the conversation as he testifies that he located plaintiff in his office in New Orleans. It is also very evident that Dr. Hirsh did not know plaintiff and had never used him in any of his own cases, as he says, he preferred other specialists. Defendant suggested that plaintiff be called in to see his brother and requested that Dr. Hirsh call him on the telephone.

The evidence is clear that Dr. Hirsh telephoned to plaintiff at the request of defendant and told plaintiff that he was talking for the defendant; that defendant was present in the office of Dr. Hirsh at the time. This constitutes special agency and is binding upon the defendant. The reason that defendant authorized Dr. Hirsh to call the plaintiff and who defendant thought would have to pay the bill or who Dr. Hirsh told him would have to pay the bill is beside the issue as between the plaintiff and defendant herein. Plaintiff 'has no concern with why defendant appointed Dr. Hirsh as his agent to employ him to examine Samuel Kaplan; he was justified in acting upon the instructions given him by Dr. Hirsh, the special agent of defendant. It is enough that Dr. Hirsh was the special agent of the defendant and was acting within the scope of his authority.

The judgment of the lower court is correct; therefore it is ordered, adjudged and decreed that said judgment be affirmed, with costs.


author: 'ODOM, J.

text:
    No. 3866
    Second Circuit
    LAWSON ET UX. v. NOSSEK
    (November 7, 1930. Opinion and Decree.)

      Foster, Hall, Barrett & Smith, of Shreveport, attorneys for plaintiffs, appellees.
    Jackson & Smith and Thigpen, Herold & Cousin, of Shreveport, attorneys for defendant, appellant. • •
   'ODOM, J.

The plaintiff, Mrs. Lila Lawson, sues defendant for damages resulting from injuries which she received in an automobile accident while riding as a guest in defendant’s car, ahd her husband, Alvin Lawson, the other plaintiff, asks judgment for the' amount expended by him for sanitarium, nurses’ and doctors’ bills; said expenses having been incurred as a result of the injuries sustained by his wife.

Plaintiff makes the usual allegations of negligence and want of due care on the part of defendant, who was driving her own car. Defendant denied generally and specially the allegations of negligence, and affirmatively alleged that, at the time her car overturned she was driving at a moderate rate of speed and in a careful and prudent manner, and set up the special defenses that, just before her car was upset, she suddenly and unexpectedly encountered loose gravel, which rendered the roadbed defective and insecure, and that the accident was “caused by latent defects in the steering mechanism and loose gravel in the road,” that she made -every effort to stop the car, but that it failed to respond properly to her efforts to steer it, “and the steering wheel gave way.” And, in the alternative only, in case the court should hold that she was guilty of negligence and want of due care, she alleged as a defense that, at the time of the accident and injury, she. and “Mrs. Lila Lawson were going to Ruston in a joint enterprise for a common purpose and that the automobile was being operated under the joint control of defendant and Mrs. Lawson,” and that, if there was negligence, it was the joint negligence of the two.

Defendant has appealed from a judgment against her.

The plaintiff, Mrs. Lawson, and the' defendant, Miss Nossek, are business women of Shreveport and have been personal friends for a number of years. For seven or eight years they worked together in one of the leading dry goods establishments of the city. About a year previous to the date on which the accident occurred, Miss Nossek, the defendant, set up in Shreveport a ladies’ ready-to-wear establishment of her own, and employed Mrs. Lawson as cashier. Miss Nossek had a woman friend in Ruston, who was entering into a similar business there, and who, on the afternoon of November 14, 1928, telephoned her to come over for the opening on the following day. She accepted the invitation, and immediately invited Mrs. Lawson to go along with her in her car. Miss Nossek had no interest ,in the business at Ruston, but felt a personal interest in her friend, and thought she might be of some help at the opening by way of suggestions as to how to display the goods.

On being asked the occasion of Mrs. Lawson’s going along with her, Miss Nossek said:

“I invited her to go along because she knew the people, had met them in the store. We were very friendly and I just asked her to come and go with us.”

She was asked:

‘‘Did you order her to go?”

And she replied:

“No, I invited her to go.”

This disposes, we think, of defendant’s alternative defense that the parties were going to Ruston in a joint enterprise, for a common purpose. Mrs. Lawson was not invited by the lady in Ruston to attend the opening of her business, but Miss Nossek was, and there is no intimation that there was any suggestion that Miss'Nossek invite Mrs. Lawson, or any one else, to come with her. Mrs. Lawson’s invitation came from Miss Nossek, and therefore, when Mrs. Lawson accepted the invitation to ride in the car, she became defendant’s guest.

The other special defenses that defendant suddenly and unexpectedly encountered defects and loose gravel in the road are disposed of in the statement of facts which follows:

Defendant left Shreveport about 9 o’clock on the morning of November 15th, in her ear, which was driven by herself, with Mrs. Lawson and Mr. Louis Davis as passengers, Mrs. Lawson riding on the back seat. When approximately 50 miles east of Shreveport, on the Dixie-Overland highway, which was graveled at that time, Mrs. Lawson suggested to defendant that she was driving too fast, and asked her to slow down. Defendant says she did not hear the request, but does not deny that it was made. Mrs. Lawson says that Mr. Davis also made a similar request. Davis says he does not recall such a suggestion, but said, when asked if his attention was directed to the speed of the car:

“I have the habit when in a car of saying: ‘Don’t drive so fast.’ I am quite nervous.”

We have no doubt that both Mrs. Lawson and Mr. Davis did feel apprehensive and warned defendant of the danger of driving too fast. However, the testimony does not warrant a holding that defendant was driving in excess of 35 or 40 miles an hour, which is not excessive in the daytime, on a dry graveled road, in perfect condition, as this one was at the time. We therefore absolve defendant from the charge of driving at an excessive rate of speed.

The testimony discloses that almost immediately after Mrs. Lawson, and probably Mr. Davis, warned defendant against fast driving, the car began to swerve and zigzag from one side of the road to the other to such an extent that both Mrs. Lawson and Mr. Davis became alarmed. Mr. Davis says he thought defendant “was kidding them” or giving them a “thrill.” Mrs. Lawson begged her to slow down or stop, stating to her that, if she did not, the car would turn over. The car continued to swerve and zigzag from one side of the road to the other for a distance of over 100 yards while it was going upgrade, on a perfectly smooth road, slightly curving to the left; the road being, according to the only witness who testified on the point, 40 feet wide. When it reached the crest of the hill, it left the road, turned what the witnesses describe a complete somersault, or changed ends, landed on the right side of the road, upside down, with the wheels up and with the front end back towards Shreveport, or in the direction from which it had come.

There were no defects in the road. It was hard and perfectly smooth, and there was no loose gravel at any point from where the car began to swerve to where it left the road. The movements of this car and its upset were, to say the least, very strange and unnatural. Automobiles, when properly equipped, with steering device in perfect condition, when carefully handled on a smooth dry road, with no defects and hindrances, such as loose gravel, do not swerve, zigzag, run off the road, change end for end, and land upside down, but hold the road. There was, of course, some reason for these strange movements of defendant’s car. However, such exceptional movements and upset of an automobile do not lead necessarily to the conclusion that the driver of it was negligent, for there may be reasons for them over which the driver had no control, as, for instance, the steering machinery may be defective without his knowledge, or it may suddenly. break down, due to no fault of his, or some foreign substance might strike him in the eye, causing temporary blindness, or a casing blow out; any one of which conditions being sufficient to cause him to lose control, without his fault. Under such conditions and circumstances, it could hardly be said that the driver was guilty of actionable negligence.

The doctrine of res ips'a loquitur, which means “the thing speaks for itself,” finds frequent application in automobile accident suits. Under this doctrine or rule, when a thing or instrument which causes the accident and injury is shown to be under the control and management of a person who owes a duty to another, and where it is shown that the accident is such as does not happen, in the ordinary course of events, if those who control such instruments use due care, the presumption arises that the accident was caused by want of due care. But that presumption is not conclusive. In such cases negligence may be inferred from the fact itself, and the rule res ipsa loquitur applies. So that, in automobile accident suits based upon negligence, the plaintiff makes out a prima facie case when he shows that the machine which caused the injury was under defendant’s control, that the accident and injury did take place, and that the event would not have happened in the ordinary course of events, if due care had been taken by the driver. The burden is then shifted to defendant to make explanation to show that ordinary care was exercised.

In the case of Sweeney v. Erving, 228 U. S. 233, 33 S. Ct. 416, 418, 57 L. Ed. 815, Ann. Cas. 1914D, 905, the court said:

“In our opinion, res ipsa loquitur means that the facis of the occurrence warrant the inference of negligence, not that they compel such an inference; that they furnish circumstantial evidence of negligence where direct evidence of it may be lacking, but it is evidence to be weighed, not necessarily to be accepted as sufficient; that they call for explanation or rebuttal, not necessarily that they require it; that they make a case to be decided by the jury, not that they forestall the verdict. Res ipsa loquitur, where it applies, does not convert the defendant’s general issue into an affirmative defense. When all the evidence is in, the question for the jury is whether the preponderance is with the plaintiff. Such, we think, is the view generally taken of the matter in well-considered judicial opinions.” Blashfield Cyclopedia of Automobile Law, vol. 2, p. 1619; Berry on Automobiles (6th Ed.) vol. 1, sec. 234, p. 208; 7' Words and Phrases, First Series, verbo “Res Ipsa Loquitur,” p. 6136.

In the case at bar, plaintiff made out a prima facie case. Defendant, in her efforts to show the exercise of due care, made the following explanation, on being asked how the accident occurred:

“Well, I don’t know. We were just driving, I thought on a gravel road, and all of a sudden I lost complete control of the car, the wheel. I tried to stop it and instead of that, it went faster and faster and I could not stop it. Just went from one side of the road to the other. Just swerved. And then I heard them, hollering, ‘Ra’ye! Raye!’ But instead of stopping, it went faster and all I knew was that the car was turned over and I tried to get out. I crawled out from under the car.”

Further on, she was asked, “Did you try to steer the car in the middle of the road?” and she replied, “I tried, but I could not.”

Defendant makes no explanation at all, except that as above quoted, and we hold that such does not show the exercise of due care.

Common prudence and caution dictate that, when an automobile begins to swerve or zigzag from one side of the road to the other, that when a driver begins to lose control, he should slow down or stop. Defendant realizes that she should have done that. The way to stop an automobile from running is to cut off the supply of gasoline and apply the brakes. Defendant does not say that she did either. She says that she tried to stop the car, but she does not say what method she used to accomplish that purpose. According to her version, the car, instead of slowing down, went “faster and faster.” It swerved and zigzagged from one side of the road to the other for a distance of more than 100 yards, and during all that time was running up grade, If she had cut off the supply of gasoline, the car would probably have stopped within a distance of less than 100 yards, in view of the fact that it was running up grade, and, if she had applied the brakes, it could have been stopped in a much less distance. The fact that it ran faster shows conclusively that the engine received more fuel, instead of less, and that the driver failed to make use of the ordinary and necessary methods for stopping cars. Defendant does not state that the steering device gave way, and, as a matter of fact, it did not. It was examined after the accident and found in good condition. When the car turned upside down, the steering wheel dropped off the rod and was found inside the car, but there is no testimony that it came loose while in the hands of the driver. She says she “lost complete control of the car, the wheel.” We do not understand that to mean that she lost control of the car because the- wheel became loose from the rod. None of the casings blew out. One of the front wheels was wrecked, the spokes broken, but evidently that happened after the car left the road.

Our conclusion and holding is that defendant could have controlled her car and avoided the accident if she had used the means at hand for that purpose, and that her failure to do so shows not only lack of ordinary care, but gross negligence.

“A guest in an automobile is entitled to demand that ■ his host shall exercise ordinary care for safety in driving the car.” Jacobs v. Jacobs, 141 La. 272, 74 So. 992, 997, L. R. A. 1917F, 253; Hamburger v. Katz, 10 La. App. 215, 120 So. 391.

The defendant is liable.

ON THE QUANTUM OF DAMAGES

Mrs. Lawson obtained judgment for $5,-000. She moved to amend, and asks that the amount be increased. Defendant contends that the amount is grossly excessive.

Mrs. Lawson is comparatively young, and has been married eleven years. She received a lacerated wound about ten inches long on the right side of the face, extending downward across the cheek from the nose just under the eye to and across the lower part of the outer ear, going through the skin and superficial tissues, and also a lacerated wound above and one below the eyelid. These wounds have healed, but the one across the face left an ugly scar, which is a permanent disfigurement. She was shocked to some extent, but not rendered unconscious. She sustained some bruises and contusions about the body, a fracture of the nasal bones, but'these soon healed and left no injurious effect. She has slight paralysis of the muscles of the face and a very slight droop of the right eyelid, but these cause very little inconvenience, if any, and the droop of the lid is not noticeable, except on close inspection. An X-ray showed a slight deformity of the coccyx bone, but we are not convinced that it was brought about by the accident. Mrs. Lawson and her husband both say that she is nervous, does not sleep well, and is easily excited, and has occasional headaches. These conditions no doubt resulted from the shock, but the doctors do not seem to think they are permanent. The testimony does not warrant a holding that she has suffered any permanent injury to the nervous system. We think the amount awarded is ample, but not excessive. The husband was awarded $1,069, which was the amount expended by him for medical, hospital, nurses’ and doctors’ bills.

Finding no error in the judgment appealed from, the same is affirmed, with costs in both courts.


text:
    No. 3823
    Second Circuit
    ARCADIA LUMBER CO., INC., v. AUSTIN ET AL.
    (December 23, 1930. Opinion and Decree.)
    (February 2, 1931. Rehearing Refused.)

      Goff & Goff, .of Arcadia, attorneys for plaintiff, appellee.
    J. Rush Wimberly, of Arcadia, attorney for defendants, appellants.
   DREW, J.

Plaintiff sued the sureties on a contractor’s bond for the price of materials alleged to have been furnished by plaintiff to the contractor and used in the building specified in the contract.

He alleges that on January 31, 1928, S. B. Sutton entered into a contract with J. R. Jordan to erect a certain building in the town of Arcadia, La., for the price of $5,000, and furnished bond in the sum of $1,500 conditioned for the payment of all claims or liens, including charges of any and all material used or furnished in the construction of the said building, which bond was signed by the' defendants herein, as sureties. The contract and bond were duly recorded in the mortgage records of Bienville parish, La. That on July 21, 1928, J. R. Jordan, owner of the building, filed notice of acceptance of the work, which was duly recorded in the mortgage records of Bienville parish.

Plaintiff further alleges that it gave notice to defendants, as required by Act No. 225 of 1918 and Act No. 298 of 1926, and prays for judgment in solido against the defendants for the amount of its claim, with legal interest from April 24, 1928, until paid, and for ten per cent additional as attorney’s fees.

Plaintiff did not file and record a lien against the building, and this suit was filed on March 23, 1929.

The contractor is not made a party to the suit, it being a suit against the sureties on the contractor’s bond.

Defendants filed an exception of misjoinder or nonjoinder and an exception of no cause of action. The exception of misjoinder or nonjoinder was overruled, and the exception of no cause of action was referred to the merits and overruled in the decision on the merits.

Defendants answered denying the indebtedness, and alleging certain credits that were due the contractor, S. B. Sutton, by the plaintiff; and that the failure to sue the contractor released him from the debt and thereby released the sureties.

The lower court rendered judgment on the merits for the amount prayed for, together with" interest and attorney’s fees, and from that judgment the defendants have appealed.

The exception of misjoinder is based on the fact that the contractor was not made a party to the suit, he being the original obligor.

The suit is brought under the provisions of Act No. 298 of 1926. Section 3 of that act declares that the contractor and his surety shall be solidarily liable for all labor and material used in the work, and that, notwithstanding the erasure of the inscription of the contract, the surety’s liability shall not be affected and he shall be bound to the same extent as the contractor. Being solidarily liable, the creditor or furnisher of material could proceed against either or both at its will. Rev. Civ. Code, arts. 2091, 2094 and 2095.

The exception of misjoinder or nonjoinder was properly overruled.

The exception of no cause of action is leveled at the fact that the bond given and sued on is not a bond in compliance with the act of the Legislature (Act No. 298 of 1926), in that the act requires a bond to be given equal to the amount of the contract where the contract price is not more than $10,000, and in the instant case the contract price was $5,500 and the bond for only $1,500.

The bond is not in the amount required by the act; however, it is a valid bond for the amount of $1,500, and there is no good reason for releasing the sureties entirely because it is for a less amount than required by law. If no bond had been given at all, then the right of action would have been against the owner of the building, and the lien would have to be recorded within the statutory time of thirty days after acceptance. If the amount of claims for material, labor, etc., exceeded the amount of the bond given, the owner would likewise be liable for failure to require the necessary bond. The sureties could not be held liable for an amount greater than the amount of the bond, but are liable to the amount of the. bond.

No harm could befall the sureties by reason of the bond being for a less amount than the owner should have required, in order to protect himself from all harm by failure of the contractor to pay for his material and labor. The creditors of the contractor would have a right to complain of the insufficiency of the bond, but certainly not the sureties on the bond.

Defendants further complain that the plaintiff did not file and have recorded its lien within thfe time required 'by the act.

Recordation of a lien is not necessary in an action against the contractor or his sureties on his bond for material furnished. Section 14 of Act No. 298 of 1926 contains the declaration that nothing in the act “shall be so construed as to deprive any claimant of his right of action against the surety signing any bond furnished in connection with any building contract or subcontract, or against the principal obligor, thereunder, which right of action against such obligor and said surety shall accrue at any time after maturity of the claim of the said claimant.” The section also provides that any action against the surety must be brought within a year from the registry of the owner’s acceptance or of ■ notice of the contractor’s default

This suit was brought after maturity of ■ the claim and within the year after the notice of acceptance was filed for registry by the owner, and the exception of no cause of action was properly overruled. Dixie Bldg. Material Co. v. Mass. Bondiug & Ins. Co., 167 La. 399, 119 So. 405.

ON THE MERITS

Defendants deny that the original obligor was indebted to plaintiff in any amount, and allege that the original obligor, S. B. Sutton, during the time of the erection of the building, sold plaintiff materials amounting to the sum of $319.65, also two wheel-harrows, at $22, and a secondhand screen, worth $3.50. They also deny that the said S. B. Sutton purchased certain items as. shown by the itemized account filed by plaintiff. The items of $22, for wheelbarrows, and $3.50, for the screen, claimed to have been sold to plaintiff, have been abandoned by defendants, and they rest their defense on the theory that the contractor, Sutton, did not purchase the doors, windows, some brick, and a few other items from plaintiff and that they did not go into the building. The preponderance of testimony, however, is that all the items shown on the account filed were purchased for this particular building by the contractor, Sutton, and were ordered delivered at that place. The lower court, who heard the witnesses testify, so held, and we are not disposed to disturb his finding in that respect.

The amount of $319.65 is pleaded in compensation and offset by the defendants. The amount is pleaded in globo with no attempt being .made in the answer to show what material was sold to plaintiff to make up this amount. On trial of the case, the defendants attempted to prove the items and price of each that made up the $319.65, pleaded as an offset, which testimony was objected to by the plaintiff for the reason that there was no allegation in the answer on which to base the proof; that the attempt to plead compensation and set-off is in globo; that proof of an account in globo cannot be made; and that proof of an itemized account cannot be made for the reason that there are no allegations on whicli to base the proof. No itemized account had been alleged by which the plaintiff could be put on its guard as to the time and items.

The evidence was heard subject to the objection. The objection should have been sustained.

A plea of compensation or set-off should be set forth with the same certainty as to amounts, dates, items, etc., as though the party pleading it was the plaintiff in the suit. And when this is not done and objection is timely made, it should be sustained.

The lower court held that the plaintiff had proved its account, and we think his judgment correct.

Defendants complain of attorney’s fee being allowed. However, Act No. 225 of 1918 is an act fixing penalties of attorney’s fees when the claim against the sureties, etc., is not paid within thirty days after written demand is made for payment of the claim. Plaintiff made written demand more than thirty days before filing suit, and in that respect complied with the act, and is entitled to the attorney’s fees as prayed for. Act No. 298 of 1926 did not in any way repeal or alter Act No. 225 of 1918.

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


text:
    No. 3888
    Second Circuit
    WEST ET AL. v. GREEN
    (December 23, 1930. Opinion and Decree.)

      See, also, 10 La. App. 707, 122 So. 128.
    C. J. Ellis, Jr., and Warren Hunt, of Rayville, attorneys for plaintiffs, appellants.
    George Wesley Smith and T. H. McGreg- or, of Rayville, attorneys for defendant, appellee.
   ODOM, J.

This is a petitory action involving the title to the N. W. % of the N. W. %, section 11, township 18 north, range 7 east, situated in the parish of Richland. The plaintiffs are Mrs. M. E. West, the surviving widow in community of J. B. West, and Mrs. Ethelyn Brent, Mrs. Margaret West Morris, and Mrs. Dorothy West Barham, sole heirs of J. B. West. They allege that they are the owners of the property which was acquired by the said J. B. West under two deeds, one from the succession of Charles Chaffe, conveying an undivided five-eighths interest therein, and the other from the succession of John Powell, conveying the other three-eighths interest therein, which deeds are dated November 2, 1896, and duly recorded in Conveyance Record Book P, pages 38 and 39, of the Parish of Rich-land. They trace their title back to the United States through what is alleged to be an unbroken chain of transfers.

They further allege that the defendant, W. M. Green, is in possession of the said property without right or title, and they pray for judgment recognizing them as the owners of said property and entitled to possession.

The defendant, Green, admitted in answer that he was in possession of the property, but denied generally and specially plaintiffs’ allegations of ownership, and affirmatively alleged that he was the owner of the property under title which he acquired from C. B. Paul by deed dated April 10, 1917, and duly recorded on September 24 of that year in Conveyance Record Book 31, page 583, of Richland parish, and further that he had acquired the property in good faith and in good faith had taken corporeal possession of it more than ten years previous to the date on which this suit was filed, and that he had in good faith continued to possess it without interruption down to the present time, and he pleaded ten-year prescription.

On the first trial of the case there was judgment in the lower court for plaintiff, and defendant appealed. When the case came on for hearing in this court, it was suggested that one of the plaintiffs, Mrs. M. E. West, was dead, but neither her attorneys nor those for defendant knew the date of her death, and the case was remanded to the district court for the pur-, pose stated in our opinion handed down on May 8, 1929. See West et al. v. Green, 10 La. App. 707, 122 So. 128.

It developed that Mrs. West died after the trial in the district court, hut before judgment was signed. The judgment of the lower court was therefore null, having' been rendered in favor of a dead person. -

Upon proper application, the heirs of Mrs. West were made parties in the district court, whereupon counsel for plaintiff moved that the case be reset and for judg- ■ ment on the testimony previously taken, and the court fixed the case for January. 29, 1930. On the latter date counsel for • plaintiff called up their motion, but before a ruling was made counsel for defendant moved to re-open the case for the introduction of further testimony, which motion was granted and the case re-opened for a. purposes, all over plaintiffs’ objection.

The case was again set for trial, and counsel for plaintiffs offered in evidence the testimony taken on the previous trial and rested, their ease. The defendant called : and examined some five or six witnesses. who had not testified on the previous trial, but plaintiffs offered no additional testimony. On the second trial there was judgment for defendant, and plaintiffs appealed. In this court counsel for plaintiffs suggest the following errors:

(1) That the trial judge had no right to grant a new trial; and (2) that the judgment is not supported by the record.

On the first point counsel argue that, under the ruling of this court remanding the case, no further testimony could be introduced. We cannot concur in that view. The case was remanded to the district court to be reinstated on the docket in the precise situation it was when Mrs. West died. It developed that she died after the case was tried but before judgment was rendered; therefore the judgment was null as being rendered in favor of a dead person. After the heirs of Mrs. West were made parties in the district court, the case could have been re-submitted and judgment rendered on the testimony previously taken. But the district judge was authorized to re-open the case for the introduction of additional testimony under proper showing.

Under article 557 et seq., of the Code of Practice, and Act No. 10 of 1926, p. 11, courts may grant new trial within three judicial days upon the application of the party who believes himself aggrieved, and he must do so “if there is a good cause for same.”

Article 560 of the Code provides that a new trial shall be granted “if the party has discovered, since the trial, evidence important to the cause, which he could not, with due diligence, have obtained before.”

Defendant in his application for a new trial set out that he had since the trial discovered new evidence material and important to his cause which he could not with diligence have obtained before, and attached to his application the affidavits of several witnesses showing what they would swear to if called. The minutes disclose that the motion for a new trial was set down, taken up, tried, and allowed. The testimony adduced on the trial of the motion, if any, is not before us, but we must assume that it was sufficient to warrant the ruling of the trial judge. The granting of new trials is a matter which addresses itself largely to the discretion of the trial judge, and appellate courts will not interfere unless their rulings are manifestly arbitrary.

ON THE MERITS

The land in controversy is what is known as swamp land, and was selected by the state as such on May 17, 1858, und'er the Act of March 2, 1849 (9 Stat. 352), and the selection was finally approved. It was purchased from the state by Robert Boyd on May 21, 1858, and state patent was issued to him.

Prom Boyd title passed to the Homer College by tax sale in 1872, and by Homer College to the state by tax forfeiture in 1878. This tax forfeiture seems to have been ignored, because two years later the Homer College sold the land by notarial act to George Gill and ten years later George Gill sold to George G. Gill. On July 27, 1891, the land passed from George G. Gill to Chaffe and Powell under a writ of seizure and sale executed by the sheriff, and on November 2, 1896, an undivided five-eighths interest therein passed from the succession of Chaffe to Joseph B. West, and on the same day West acquired the other three-eighths interest therein from the succession of Powell. The property seems to have fallen into the community which existed between Joseph B. West and his wife, Mrs. M. E. West, and in the dissolution of the community by the death of West, his Interest was inherited by his three daughters, who with their mother are plaintiffs in this suit.

There is nothing in the testimony to show that either the plaintiffs or any of their authors in title ever had more than civil possession of the land. No attempt was made by them to show corporeal possession, and it is alleged that defendant was in possession at the time the suit was filed.

Defendant now possesses and claims to own the land under a chain of title which traces back to the state. In the year 1882 the land was advertised for sale for the taxes due thereon prior to that year by one Richard Pritchard, and, there being no bidder, it was bought in by the sheriff for the state under Act No. 98 of 1882. Later in the same year the same property was advertised for the unpaid taxes due by Christopher Paulson, and under the same act was bought in for the state by the sheriff in the absence of a bidder.

In June, 1889, it was transferred by the state through the auditor to the Tensas basin levee board under Act No. 77 of 1888 and by the levee, board to the Tensas Delta Land Company in 1898.

In the year 1908 the Tensas Delta Land Company sold the land to C. B. Paul, a resident of Arkansas, but the deed was lost and never recorded. Paul, however, seems to have gone into corporeal possession of it in 1908 or 1909 by cutting down and removing the merchantable timber. The Tensas Delta Land Company executed another deed to Paul dated September 14, 1917, and recorded September 22, in lieu of the one lost.

On April 10, 1917, some months prior to the date on which he got his second deed from the Tensas Delta Land Company, C. B. Paul sold the land to the defendant, Green, by notarial act, duly recorded in the conveyance records of Richland parish on September 24 following. The deed recites that the property is sold under full warranty of title and for a consideration of $200 cash.

Defendant now asserts ownership of the land under this deed and especially alleged in his answer that he went into corporeal possession thereof in good faith more than ten years prior to the date on which this suit was filed, and that he remained in possession continuously and without interruption up to the present time, and he pleads ten-year prescription under art. 3478 of the Civil Code.

It is argued by counsel for plaintiffs, and it is probably true, that plaintiffs have the better paper title to this property. But it is undisputed that defendant’s deed from C. B. Paul, dated April 10 and recorded September 24, 1917, is regular in form, translative of property, and is sufficient to form the basis of ten-year prescription, and, as already stated, it is not contended that either plaintiffs or any of their authors in title ever had corporeal possession of the land.

So that, if it be true as a matter of fact that defendant acquired the land in good faith and in good faith went into corporeal possession of it more than ten years previous to the date this suit was filed and corporeally detained it continuously and without interruption up to the date of this suit as he alleged and now contends, his title is good regardless of' the fact that plaintiff may have the better record title. Civil Code, art. 3478 et seqi.

That defendant, Green, purchased this property in good faith and in good faith took corporeal possession of it under the deed more than ten years previous to the date on which this suit was filed, and that he remained in physical possession of it continuously and without interruption down to the date of the trial, is proved to our entire satisfaction. He testified that C. B. Paul had bought the property in 1908 and had cut'and removed the merchantable timber therefrom in that year or in the year 1909, and that before purchasing it from Paul he had an abstract made and was told by the party who made the abstract that the title was good. He says he thought it was good, and we think his conduct then and thereafter shows that he thought so. The testimony shows beyond question that in the latter part of 1917 he fenced, began to clear the land and to erect a tenant house thereon at an expense of more than $600. In addition to the testimony of defendant that he went into physical possession of this property and began to improve it in the fall of 1917, we have the testimony of four or five witnesses to the same effect. Mr. Blatchford, a surveyor, located the lines and the corners, he said, in the year 1916 or 1917. Mr. Balfour, who entered the World War in February, 19jL8, testified that defendant began to clear and fence the land and to build a house thereon previous to that date. Guy Graham testified that the land was fenced in December, 1917; that he was engaged in the logging business in the vicinity of the land and hauled logs across the land, and, in order to do so, he had to remove a panel of the fence; that at that time the land was partially cleared and partially fenced; that there was a pump and a house partially built.

Jerry Roberts hauled logs through the place in the fall of 1917. He was able to fix the date because it was previous to his entering the World War in May, 1918. Two colored people were called, and each testified that defendant began to make improvements on the property in the latter part of 1917.

The testimony shows conclusively that defendant remained in possession without interruption down to the date on which this suit was tried.

For the reasons assigned, the judgment appealed from is affirmed, with costs in both courts.


author: WEBB, J.

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    No. 3882
    Second Circuit
    SCOTT v. CONTINENTAL LIFE INS. CO.
    (December 23, 1930. Opinion and Decree.)
    H. W. Ayres, of Jonesboro, attorney for plaintiff, appellee.
    W. J. Hammon, of Jonesboro, attorney for defendant, appellant.
   WEBB, J.

Defendant, Continental Life Insurance Company, issued to Bessie Scott, wife of H. G. Scott, a life, health and accident policy, in which the maximum amount to be paid in event of death was $250, and the maximum monthly indemnity for disability resulting either from accidental injury or sickness was $25.

Bessie Scott died of fibroma of the uterus, and H. G. Scott, who was made beneficiary under the policy in event of the death of the insured, made proof of death, and after complying with the formalities required by the policy, demanded payment of $250, which being refused, he instituted the present suit to enforce payment.

In answer defendant alleged that the insured died of a disease peculiar to women, and that under the stipulations of the policy there was excepted from the risk assumed all diseases not common to both sexes.

On trial evidence was introduced relative to whether or not fibroma of the uterus was a disease common to both sexes, and on the cause being submitted, judgment was rendered in favor of plaintiff as demanded, and defendant appealed.

The policy is rather lengthy, being divided into seventeen parts, many of which are subdivided into sections, under which there are various clauses, but our attention is especially directed to only a part of section (a), part XVII, under the head of “Special Provisions,” which is quoted by counsel for appellant as follows: “There shall be no liability on the part of the Company * * * directly or indirectly, from injury to the genital organs, if the insured be a female, or sickness of, or any condition of organs peculiar to women”; and appellant urges that the evidence established that “death was caused by a disease that was not common to both sexes, or in other words, that death was caused by a disease peculiar to women,” which was within the exception quoted.

While counsel does not state what would be his construction of the exception if the insured had been a man, we gather from his brief that it would not have been contended that the exception was applicable, and that the exception is applicable only when the insured is a woman, and then only when she dies of a disease peculiar to women.

Considering the exception from this point of view, it is of course conceded that an exception to the risk assumed should be construed strictly against the insurer (Cooley, volume 2, p. 981, volume 6, p. 5182, and authorities cited), and if the disease of which the insured died was one to which men are not immune, it cannot be said that the insured died of a disease peculiar to women. (Shuler v. Amer. Benev. Assn., 132 Mo. App. 123, 111 S. W. 618; National Life & Accident Ins Co. v. Waver (Tex. Civ. App.) 226 S. W. 754.)

Defendant carried the burden of proof to establish that the disease of which the insured died was peculiar to women, or that men were immune or not subject to the disease, but both of the physiciaus who were called as witnesses, stated that while fibroma of the uterus was a disease peculiar to women, as men did not have such an organ, they said that a fibromatus growth was a disease common to both sexes, often occurring in the stomach and various parts of the body of men, as well as of women, and that when the growth occurred in any particular organ, such word was used to designate the disease.

We are of the opinion that under the evidence introduced, defendant failed to establish that the disease of which the insured died was peculiar to women, and that the judgment was correct, and it is therefore affirmed, at appellant's cost.


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    No. 3842
    Second Circuit
    BYNUM v. SUCCESSION OF HODGE ET AL.
    (December 23, 1930. Opinion and Decree.)

      Stubbs & Thompson, of Monroe, attorneys for plaintiff, appellant.
    Theus, Grisham & Davis, of Monroe, attorneys for defendant, appellee.
   DREW, J.

Plaintiff sued for the cost of the funeral expenses of his wife and for the 'mst of a tombstone placed over her grave. He alleged that nis wife was killed in an automobile accident while occupying a car with Mrs. Irene Sims Shields; that the accident was caused by the carelessness and negligence of the minor son of the deceased, Wesley J. Hodge, who was driving a car that ran into the one occupied by plaintiff’s wife and Mrs. Shields; that his wife was killed in said accident, and that he is entitled to recover the cost of her funeral and for the tombstone he placed over her grave.

This is a companion case to the case of Irene Sims Shields v. Succession of Wesley J. Hodge, 13 La. App. 546, 128 So. 530.

The attorneys for both plaintiff and defendant by written consent agreed that the testimony and evidence in the Shields case should be used and made a part of this record, insofar as same might be relevant.

This court decided the Shields case against the defendant on the question of negligence and, for the same reasons as are set out in that case, we hold the defendant liable for the damages occasioned by the accident in this case.

The lower court rendered judgment in favor of the plaintiff for the sum of $417.50, representing the funeral expenses incurred by him, and rejected plaintiff’s demand for the cost of a tombstone which was $400.

Plaintiff has appealed from the judgment of the lower court and defendant answered the appeal asking that the demands of plaintiff be rejected and his suit dismissed. However, on trial of the case in this court, counsel for defendant admitted the liability for the funeral expenses and prays that it be affirmed.

Appellant, in brief and in argument before this court, admits that the judgment for the funeral expense of $417 is correct, and is not asking that it be increased. There remains, therefore, the single question as to whether the cost of a tombstone erected to the memory of a person killed by the wrongful act of another is an element of damage against the person causing the wrongful death.

The question presented is apparently new. We have been cited no decisions and have been unable to find any where the cost of a tombstone has been allowed in an action arising ex delicto. There are some decisions which hold that the cost of a tombstone can be properly charged against the succession of the deceased by the executor or administrator, provided the cost is in keeping with the value of the estate of the deceased. The reasoning in these cases, however, is based on the fact that the deceased is entitled to have a tombstone paid for out of the estate he has left and has accumulated through his labor, and are not in line with the case before us.

Article 3192 of the Revised Civil Code reads as follows:

“Funeral charges are those which are incurred for the interment of a person deceased.”

The word “interment” is defined as the placing of the dead in the earth — burial. We do not think it includes the cost of a tombstone to be placed over the grave. Even though the cost of a tombstone is allowed out of the estate of a deceased person when one is placed over his grave, the cost of same must be in line with the value of the estate. What would govern, if it were allowed in an action arising ex delicto? The value of the estate of the deceased or the ability of the defendant to pay? What would be a reasonable price for a tombstone? If based on the value of the estate of the deceased, in one case it might be $50,000 and in another, $50, and. likewise if based on the ability of the defendant to pay.

Everyone does not mark the grave of a loved one with a tombstone. Some do and some do not. It is often requested before death that no money be expended for a tombstone. You may enter any cemetery and find numbers of graves without even a marker — much less a tombstone. We do not think the cost of a tombstone was a necessary expense incident to the death of plaintiff’s wife. It is perfectly natural that plaintiff should want to mark his deceased wife’s grave with a suitable tombstone, yet it is not necessary to the extent that defendant could be forced to pay for it. The burying of the deceased was necessary, and she was entitled to a decent burial which the record shows she received, and the judgment allowing damages to cover the cost of that burial was a proper judgment.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be affirmed; cost of appeal to be paid by appellant.


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    No. 3784
    Second Circuit
    NEELEY v. MAGNOLIA GAS CO.
    (December 23, 1930. Opinion and Decree.)
    George T. McSween, of Shreveport, attorney for plaintiff, appellant.
    Pugh, Grimmet & Boatner and J. N. Marcantel, of Shreveport, attorneys for defendant, appellee.
   DREW, J.

Plaintiff brought this suit under Act No. 150 of 1920, alleging that he was entitled to be paid by the defendant for four days’ work in the last half of the month of June, 1928, at the rate of $4.50 per day, and for each day after the 21st day of June, 1928, until paid the full amount due him at the rate of $4.50 per day.

He alleges that he was discharged on June 21, 1928, and demanded his pay, which was refused, and that on the following day he again demanded his pay, and it was refused; that he made his demand at the usual place of payment for the said defendant.

Plaintiff prays for judgment in the sum of $18, with legal interest from the 16th day of June, 1928, and for further judgment in the sum of $4.50 per day for straight time, commencing on the 21st day of June, 1928, until such time as the defendant shall pay the claim sued on.

Defendant answered admitting that plaintiff worked on the pipe line for it on the 18th, 19th, 20th, and 21st of June, 1928, and alleged that his wages were $4.05 per day; that he did not work on the 22d, 23d, and 24th of that month, but reported for work on the 25th, at which time he war informed that his services were no longer needed. It admits that plaintiff demanded his wages at the regular place of payment on the date of his discharge and was not paid, for the reason that the timekeeper had on that day moved his office to the pipe line camp, a few miles away from the regular place of payment; that it requested plaintiff to go to the timekeeper and get his time and he would be paid; that a few days later, plaintiffs time was secured, his check made out and held at the defendant’s office, but that he never called for it, although he was notified that his check was awaiting him; that on July 6, 1928, when the regular pay .checks came in from the general office, plaintiff’s cheek was among them; and that on that day plaintiff was tendered his check for the four days’ time, which he refused.

Defendant also filed a plea of unconstitutionality, in which it alleged that Act No. 150 of 1920 is unconstitutional, in that it violates the Fifth Amendment to the Corn stitution of the United States and article 1, sec. 2, of the Constitution of the state of Louisiana 1921. The plea of unconstitutionality was not passed upon by the lower court, and judgment was rendered in favor of plaintiff for the sum of $16.20, for four days’ work during the last half of June, 1928, and for $56.70, representing statutory penalties to July 6, 1928, the date the tender was made, plus legal interest from judicial demand on the above amounts.

The defendant has not appealed from this judgment, which was rendered on June 1, 1929.

On December 21, 1929,- the plaintiff by petition asked for orders of devolutive appeal from that part of the judgment only that rejects his demands; that is, from that part of the judgment that did not allow him straight time, from July 6th on until paid. The court signed an order granting the appeal as prayed for.

Defendant answered the appeal by again attacking the constitutionality of the act.

It is plain to see that there is no appeal before this court in so far as the judgment of the lower court gave to plaintiff the sums of $16.20 and $56.70. The only thing before us is that part of the judgment rejecting the demand of plaintiff for penalties after July 6, 1928. The judgment otherwise is executory; neither plaintiff nor defendant having appealed from it.

The record is clear that on July 6th. plaintiff was tendered the amount due him for the four days’ labor during the last half of June. There is no dispute of this fact. Plaintiff is not entitled to recover penalties after the date of tender. This question has been decided by this court in the case of Whitehead v. Deas, 9 La. 47, 118 So. 856, 857, in which this court said:

“The statute must be strictly construed as to the right to recover penalties, against which equitable defenses may be interposed (Deardorf v. Hunter, 160 La. 213, 106 So. 831), and the evidence showing that the defendant, although urging that the employee was not entitled to be paid the wages claimed, offered to pay same, we think that the offer should have been accepted and further accumulation of penalties stopped (St. Louis, I. M. & S. W. Ry. Co. v. Bryant, 92 Ark. 425, 122 S. W. 996; Robinson v. St. M. L. Co., 34 Idaho, 707, 204 P. 671), and that plaintiff cannot recover penalties after the date of the offer to pay the amount of wages, claimed.
“As to the penalties which had accumulated prior to the date of the offer to pay the amount claimed for wages, the evidence failing to show that the defendant was entitled to make any deductions for alleged damages or failure of plaintiff to put in full time, the defendant is liable for such penalties, which the evidence shows amounted to $54.”

Our conclusion that the plaintiff cannot, recover on that part of his claim rejected by the lower court makes it unnecessary to pass on the question of unconstitutionality of the Act No. 150 of 1920.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court appealed from' be affirmed, and that the cost of appeal be paid by appellant.


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    No. 3864
    Second Circuit
    HORTON v. KAVANAUGH-HINTON MOTOR COMPANY
    (December 23, 1930. Opinion and Decree.)

      Lester & Madden, of Monroe, attorneys for plaintiff, appellant.
    Dhu Thompson, of Monroe, attorney for defendant, appellee.
   WEBB, J.

On July 5, 1929, defendant, Kavanaugh-Hinton Motor Company, sold to plaintiff, Robert Horton, an automobile at the price of $1,173, of which amount $363 was acknowledged to have been paid in cash (which amount was, however, represented by a secondhand automobile on which there was a mortgage of $156, which was to be paid by defendant, plaintiff delivering to defendant $56 and a note for $100, payable on September 3, 1929), and, for the balance of the price, plaintiff gave defendant one note, payable to the order of defendant, which was signed by plaintiff and O. T. Adams, to 'be paid in eighteen monthly installments beginning on August 3, 1929, secured by a vendor’s lien and chattel mortgage on the automobile.

Defendant indorsed and transferred the mortgage note to the General Motors Finance Company, to which plaintiff paid three of the installments, but, failing to pay other installments as they fell due, J. G. Kavanaugh, one of the members of defendant company, called upon plaintiff, and, after some discussion of the past due indebtedness, obtained possession of the automobile, which was delivered by defendant to O. T. Adams, the accommodation drawer on the mortgage note.

The present action was brought on January 6, 1930, in which plaintiff alleged that his automobile of the value of $1,173, had been illegally sold by defendant without plaintiff’s consent and plaintiff prayed for judgment against defendant for the value of the automobile, with interest from demand.

Defendant excepted that the petition failed to state a cause of action, which was overruled, and defendant then answered denying plaintiff’s allegations, and alleged the facts above stated, and that plaintiff had voluntarily delivered the automobile to defendant in satisfaction of his outstanding obligation to the finance company, and further alleged that, in event it should be held that plaintiff had not voluntarily delivered the automobile in satisfaction of the indebtedness due the finance company; that defendant had been forced to pay the mortgage on the automobile traded by plaintiff to defendant on the purchase price, and that plaintiff had not paid the note of one hundred dollars given to defendant, and that plaintiff also was indebted to defendant in the further sum of $22.50, for accessories purchased by plaintiff; and in event of judgment being rendered in favor of plaintiff in any amount, defendant prayed for -judgment against plaintiff in reconvention for the amount due by plaintiff on the chattel mortgage note and other amounts above stated, or a total of $797, with interest. On trial, judgment was rendered rejecting plaintiff’s demands, and he alone appeals.

The evidence concededly established that plaintiff had voluntarily delivered the car to defendant as the representative of the General Motors Finance Company, but plaintiff contends the delivery was made under the condition that the car would be stored until plaintiff could make arrangements to obtain funds to pay the past-due installments, while defendant contends that the car was delivered in payment of the amount due by plaintiff on the mortgage note.

Both parties agree that the conversation, leading up to the delivery of the car related to the past-due payments; the failure of plaintiff to pay and the financial ability of plaintiff to make .the payments, as well as the question of defendant taking the car. That plaintiff pretended he had remitted one payment which had not been, received, and J. G. Kavanaugh said that, after plaintiff pretended to search for the receipt, he admitted he had not made any remittance, and that he (Kavanaugh) asked plaintiff what he wanted him to do, and that plaintiff said, “There’s only one thing yoú can do, and that is to take the car’’; and, while plaintiff does not deny the general trend of the conversation, he said the car was delivered under the agreement as above stated that the car would be stored, etc.

There was some evidence introduced tending to support the version of both df the witnesses, but we find that the great preponderance of the evidence supports the version of Kavanaugh as to what was said. But the statement attributed to plaintiff by Kavanaugh does not show there was any agreement that the car was delivered in payment of the amount due by plaintiff on the note, or that it would be sold and the proceeds applied to the payment of the debt. However, under the stipulation of the act of mortgage granted by plaintiff, it was declared that on default in payment of any of the installments, all installments unpaid should become due; and, the act of mortgage importing confes-' sion of judgment, the holder was authorized to proceed by summary process against the automobile, sell same, and apply the proceeds to the payment of the note, or to take possession of the automobile and sell same either at public or private sale and apply the proceeds to the payment of the note. While the latter stipulation may not have been enforceable without the consent of plaintiff, he had the right to consent to such proceedings, and the evidence establishing that plaintiff had previously offered to deliver the car for the balance due on the note, and that he delivered the car to defendant as the agent of the finance company, and the circumstances attending the delivery of the automobile, show, we think, that plaintiff at least knew the car was to be- sold, and we are of the opinion that plaintiff should-be held to have impliedly consented to the car being sold.

Plaintiff knew that the car had been delivered to Adams, plaintiff’s accommodation drawer on the note, to whom the car was transferred for the balance due "on the note, and we do not think that plaintiff can repudiate the sale and recover in an action against defendant for converting the property to its own use, and- thus obtain the advantage of having been released from his obligation to pay through the as* serted illegal actions of defendant.

The most that plaintiff could recover would be the difference between the price obtained by defendant for the car, and the price which could have been obtained for the car; and, while there was some ’evidence introduced tending to establish that the car was worth more than the amount due thereon by plaintiff, there is not any suggestion that the car could have been sold at a better price than that obtained by defendant.

The judgment appealed from is therefore affirmed, at appellant's cost.