author: HIGGINS, J. JANVIER, J.

text:
    No. 13,658
    Orleans
    ROBICHAUX v. DORION
    (May 25, 1931. Opinion and Decree.)
    (June 8, 1931. Rehearing Refused.)
    (July 17, 1931. Writs of Certiorari and Review Refused by Supreme Court.)
    H. W. Robinson and F. B. Freeland, of New Orleans, attorneys for plaintiff, appellee.
    Guión & Upton and Thomas Gilmore, of New Orleans, attorneys, for defendant, appellant.
   HIGGINS, J.

Plaintiff claims damages from defendant for personal injuries said to have resulted from being knocked down by defendant’s automobile at the intersection of Milan and Magazine streets, .this city, on July 21, 1929, at 10:30 a. m.

The petition alleges that defendant was operating his car at a high and dangerous rate of speed; that plaintiff was past the middle of the street when struck; that, although plaintiff had the right of way under the traffic ordinance, defendant failed to recognize it; and that plaintiff was in plain view, and defendant could have avoided running into him had his car been under proper control and had he been keeping a proper lookout.

Defendant answered, admitting the accident, but denying that he- was at fault; averring that plaintiff was guilty of contributory negligence, and “that the said plaintiff walked into the automobile of respondent.”

The trial court found that plaintiff was guilty of negligence in failing to look in the direction in which defendant’s car was-coming, but that defendant had the last clear chance of avoiding the accident, and rendered judgment in favor of plaintiff in the sum of $1,000. , Defendant has appealed.

The evidence shows that on the morning in question plaintiff, who was sixty-seven years of- age, was walking on the uptown sidewalk of Milan street in the direction of the lake. As he reached the corner of Magazine street, he proceeded across the intersection, and had reached a point slightly past the middle of the street when defendant’s automobile, which was proceeding down Magazine street, struck him and knocked him down, fracturing both bones of the left leg about 4 inches below the knee. He was taken to the Charity Hospital for treatment.

Magazine street is a two-way street, with double street car tracks thereon. The tracks on.the lake side are used by street cars mpving uptown and the tracks on the river side are used by street cars going downtown. It is agreed by both parties that the width of the river sidewalk of Magazine street, at the intersection of Milan street, is 11 feet 10 inches; that the distance from the curb of the. river sidewalk of Magazine street to the first rail of the downtown tracks is 10 feet 3 inches; and that the width of the car track is 5 feet 1 inch. It is estimated that the distance between the two sets- of tracks is about 5 feet.

The evidence of both defendant and plaintiff clearly establish that plaintiff had reached a point near -the river rail of the uptown tracks or slightly past the middle of Magazine street at the time that defendant’s automobile struck him.

While plaintiff says he looked up and down Magazine street before attempting to cross, it, and did not see any automobiles close enough to interfere with his crossing, it is apparent that plaintiff either did not look or, if he did look, he did not do so carefully. To Took and not see is just .the same as not looking at all. We find, as did our learned brother below, that he was guilty of negligence in going out into the street without having properly and carefully looked before doing so.

But, notwithstanding the fact that plaintiff was guilty of negligence, defendant will- still be liable under the doctrine known as last clear chance, in the event, after seeing plaintiff’s perilous position, he failed to stop his car or to swerve it so as not to strike the plaintiff, if he had an opportunity to do so.

Defendant contends (hat he did not have an opportunity of avoiding the accident, because there was a parked automobile 15 feet, several inches from the gutter curb on the uptown river corner, and that plaintiff suddenly stepped from in. front of the parked car into the path of his automobile, that he had been running about 20 miles per hour, but had slowed down to about 10 or 12 miles per hour, and that immediately upon seeing plaintiff, who continued to walk across' the’ intersection looking in a downtown direction, he applied his brakes, and swerved sharply to the left, causing his car to come into collision with one of the several cars which were going uptown.

Defendant on cross-examination testified as follows:

“Q. On what spot in that intersection was Mr. Robichaux when he was struck?
“A. Well, he was past thei track on the river side, maybe just exactly between the two tracks, about ten feet, in the middle of Magazine Street, ten feet below the sidewalk line of Milan Street.
“Q, We understand each other perfectly about that, Mr. Robichaux was between the two car tracks, actually in the center of the street and about ten feet below the curb line of the Milan St. sidewalk?
“A. Yes, sir.
“Q. When you were going twelve miles, an hour, you could stop your car in about seven or eight or ten feet, could you not?
“A. Cars should be able to stop in that distance, I understand.
“Q. Could not you have done that?
“A. I guess I could have done it.
“Q. You are familiar with driving cars and had good brakes, and could have stopped your car in ten feet?
“A. About.
“Q. And twelve miles an hour is going very slow?
‘‘A. Very slow.
“Q. It is going with the car thoroughly under control, is it not?
“A. Supposed to be; yes, sir.”

He further testified that' he saw plaintiff when he was 12 feet away from him, as he came from behind the parked car.

Defendant’s witnesses corroborated him to the effect that he was" going only about 10 miles per hour, and could have stopped almost immediately, and that he saw plaintiff when he was 12 feet in front of the ear.

The evidence is undisputed that plaintiff was sixty-seven years of age and was walking across the intersection at the time he was struck. Conceding that the parked automobile interfered with the view of defendant, there can be no doubt that, after plaintiff passed from in front of the parked car into the street, he was plainly in view, and defendant saw him or should have seen him.

Plaintiff from the time he emerged from behind the parked car, walked a distance of 12 feet, as established by the evidence of both sides. During the - time that he walked this distance, defendant’s car must necessarily have traveled, at the very least, twice as far. Defendant states that he was going 10 or 12 miles per hour, had good brakes on his car, and could stop within 12 feet. He admits that he saw the plaintiff when he first came from in front of the parked car'. Since plaintiff actually walked 12 feet from the time he emerged from the side of the parked automobile until he was struck, surely and certainly the automobile traveled a greater-distance, and had more than 12 feet within which to stop. The fact that plaintiff was looking downtown would indicate to any prudent or careful driver that he was unaware of the approaching ear. We believe under the circumstances defendant, after seeing that plaintiff was. in imminent danger, had an opportunity of avoiding the accident by stopping his car, which he failed to do. It also appears to us that defendant could likewise have avoided the accident by slightly turning to the right instead of the left, in which event he would have passed to the rear of the plaintiff. We have come to the same conclusion as. our learned brother below .that defendant is liable. Lanphier v. D’Antoni, 14 La. App. 441, 131 So. 628; Fontaine v. Dorsey, 15 La. App. 282, 131 So. 506; Gauvereau v. Checker Cab Co., 14 La. App. 448, 131 So. 590; Gouzien v. Feraci, 2 La. App. 115; Da Ponte v. Uzzo, 5 La. App. 105; Shields v. Fairchild, 130 La. 648, 58 So. 497; Mequet v. Algiers, 147 La. 364, 84 So. 904; Duffy v. Hickey, 151 La. 274, 91 So. 733; Fernandez v. Montz, 151 La. 299, 91 So. 742; Southall v. Smith, 151 La. 967, 92 So. 402, 27 A. L. R. 1194.

As to the quantum of damages, we first observe that plaintiff only claims damages for pain and suffering for his personal injuries. The court allowed him¡ the sum of $1,000. The record shows that he was knocked down and rendered unconscious; that both bones in his left leg were broken about 4 or 5 inches below the knee; that he was confined to the hospital for three weeks, where his leg was first placed in splints, and later in a plaster east, which remained on him for eight weeks; that he was required, after leaving the hospital, to return there twice a week for treatment; that he could not walk without a crutch and stick for four months after the accident; that he suffered intense pain; and that his • disability was for about four months. We gather that it was a clean fracture, with no comminution or breaking of the tissues, and that the bones were set in.proper apposition, leaving no permanent injuries.

Plaintiff has answered the appeal, and asks for an increase in the award, and defendant contends that the amount awarded is excessive. It is our opinion that' $1,000 is fair and reasonable and in line with former awards of this court.

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

JANVIER, J.

(dissenting). The facts of this case are somewhat in dispute, hut, accepting plaintiff’s statement as true, I cannot escape the conviction that his own negligence was responsible for the accident, and that this is nothing more nor less than an ordinary pedestrian crossing case in which the pedestrian failed to exercise his senses of sight and hearing; and, in passing, let me remark that the record shows that the pedestrian in this case had defective hearing.

Plaintiff says that he walked out into the street and did not see the automobile coming. That it was coming is evidenced by the fact that the collision occurred, and that the speed was. moderate is ■ not in dispute. His only reason, then, for not seeing, was that he did not look. Whether he was struck when in the middle of the street, or just prior to reaching .the middle, or wnen just beyond that point, is of no great importance, though on this question his own testimony should he given great weight. He says that “he was pretty near in the middle of the street.” I take this to mean that he had not. quite reached the middle. That defendant’s automobile was on the river side of the street, that is, the side from which plaintiff emerged, is also .testified to by Mr. Fabacher, plaintiff’s principal witness, who, on this point, says that at the time the defendant’s automobile struck Mr. Robichaux it was “on the river side.”

If, as plaintiff claims, there was another automobile between himself and the car which struck him, then he was negligent in crossing in front of that other car without making certain that on the other side there was no danger, because he should have borne in mind that any driver of another car on the other side could not see him any better than he could see the other car. Therefore, whether there was a car between him and the car into which he walked is of no importance, since in either event it was his negligence which was primarily responsible for the accident, and in either event his own negligence in not looking continued with each succeeding step, and this continuing negligence prevented the application of the doctrine of the last clear chance, since there was no time at which it can he said that it was no longer possible for him to have saved himself by the exercise of care. When defendant discovered the peril of plaintiff and turned to the left to avoid him, if plaintiff had been on his. guard, he also would have discovered defendant, and could have stopped or stepped hack and avoided the accident. The doctrine of the last clear chance'applies only when the injured party no longer has it in his power to avoid the final result. After .the ability to save himself no longer exists, then, if the other party can avert the accident, and fails to do so, he is liable under the doctrine referred to. It has been many times said that the doctrine of the last clear chance, which is a so-called exception to the rule of contributory negligence, “will -not he extended to cases where the plaintiff’s own negligence extended up to and actually contributed to the injury. To warrant its application there must have been some new breach of duty on the part of the defendant subsequent to the plaintiff’s negligence.” Jarrow v. City of New Orleans, 168 La. 992, 123 So. 651, 652. See, also, Castile v. O’Keefe, 138 La. 479, 70 So. 481; Harrison v. La. Western R. Co., 132 La. 781, 61 So. 782; American & English Encyclopedia of Law, (Supp.) vol. 2, p. 64, notes 4 and 5.

I therefore respectfully dissent.


source: Caselaw Access Project

author: HIGGINS, J.

license: Public Domain

text:
    No. 13,702
    Orleans
    SYNIGOL v. OURY
    (April 27, 1931. Opinion and Decree.)
    (May 25, 1931. Rehearing Refused.)
    (July 17, 1931. Writs of Certiorari and Review Refused by Supreme Court.)
    John Armstrong, of New Orleans, attorney for plaintiff, appellee.
    St. Clair Adams, St. Clair Adams,, Jr., of New Orleans, attorneys for defendant, appellant.
   HIGGINS, J.

Plaintiff brings this, suit to recover damages for personal injuries and property loss alleged to have been sustained as a result of a collision between his wagon and the defendant's automobile at the intersection of Constantinople street and St. Charles avenue, this city, on February 24, 1930, about 10 o’clock a. m. The petition charges the defendant with negligence in two respects: First, that at the time defendant’s automobile struck his wagon, it (the wagon) had almost completed, the crossing, and therefore had the right of way under the traffic ordinance; second, that, although defendant had ample space to pass to the rear of plaintiff’s wagon, she negligently ran into it.

Defendant denied liability, admitting the accident, but averring that the plaintiff was solely at fault, as the defendant had the right of way under the city traffic ordinance (No. 7490, C. C. S.L which makes St. Charles avenue a right of way street, and in the alternative, that plaintiff was guilty of contributory negligence in failing to comply with that provision of the ordinance which required him to come to a full stop before crossing St. Charles avenue.

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

The record shows that plaintiff was driving his horse and wagon on Constantinople street in the direction of the river. The defendant was operating an automobile on the lake side thoroughfare of St. Charles avenue, going uptown. As the plaintiff reached the intersection of St. Charles avenue, he looked for traffic moving up town, and saw the defendant’s automobile about a block away. He then proceeded across, but did not stop before entering the intersection. As the horse was on the street car tracks, which are located on the neutral ground, and used by street ears going uptown, the defendant’s automobile struck the left side of the wagon, causing the left front and rear wheels to be crushed and the shaft to be broken, and precipitating plaintiff to the pavement and causing the injuries complained of.

The defendant had been driving her automobile about four feet from the neutral ground, and, as. she states, was running about twenty miles per hour. She admits that she did not see the plaintiff’s horse and wagon until she was within eleven feet of Constantinople street. She immediately applied her brakes and succeeded in stopping the car in the intersection, after striking the wagon. Both vehicles, after the accident were in the intersection near the street ear tracks and neutral ground.

While it is true that the city traffic ordinance makes St. Charles avenue a right of way street, the same ordinance also provides that, where a vehicle has entered the intersection and has almost completed it, it thereby obtains the right of way.

It appears to us that the preponderance of the evidence shows that the wagon had almost crossed the St. Charles avenue roadway when it was struck, and hence had a right to complete the crossing. Rappelet v. Progress Grocery Co., Inc., 13 La. App. 287, 127 So. 760; Pope v. Locascio et al., 13 La. App. 304, 126 So. 727, 729; Bryan v. Magnolia Gas Co. et al., 13 La. App. 52, 127 So. 124; Shields v. Succession of Hodge, 13 La. App. 546, 128 So. 530.

Plaintiff was not required to wait at the crossing until there were no automobiles in sight. Simpson v. Pardue, 15 La. App. 341, 131 So. 854; Bagert v. Maestri, 18 La. App. 94, 131 So. 863.

The case of Vance v. Poree, 5 La. App. 109, appears to us to he in point and decisive of the issues involved. In that case an automobile driven by a young man going up St. Charles avenue collided with a car driven by a colored boy going out Robert street toward the river, and the point of collision was near the neutral ground. The court concluded that the defendant’s car, which entered from Robert street, must have entered the intersection first; otherwise the point of contact would not have been near the neutral ground. The court held that the driver of the car going up the avenue was at fault.

As we view the case, the proximate cause of the accident was the defendant’s, failure to keep a. proper lookout, since she admits she did not see the slow-moving horse and wagon of the charcoal vender until she was within eleven feet of Constantinople street. It further appears to us that the defendant had sufficient room and opportunity to pass to the rear of the wagon, and would therefore be liable under the doctrine of the last clear chance.

As to the quantum, the evidence shows that the plaintiff is a charcoal peddler earning $19.50 per week, and that he lost six weeks from his vocation. The medical bills amounted to $34 and the repairs to the wagon $48. The plaintiff was knocked from the wagon to the paved street, and suffered injuries in the sacroiliac region, which necessitated strapping him. He was confined to his home for two weeks, and suffered pain. Our learned brother below allowed the sum of $490 for all items of damage, and we believe that the award is correct under the circumstances. '

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


author: JANVIER, J.

text:
    No. 13,639
    Orleans
    SPRINGER v. CARTER
    (May 25, 1931. Opinion and Decree.)
    (June 8, 1931. Rehearing Refused.)
    Felix Wilfred Gaudin, Milton B. De Reyna and Edna K. Gaudet, of New Orleans, attorneys for plaintiff, appellee.
    John H. Hammel, of New Orleans, attorney for defendant, appellant.
   JANVIER, J.

The intersectional collision, from which this litigation results, occurred at the corner of Valence and Rampart streets, at about 8:30 o’clock in the morning of April 3, 1930.

Plaintiff’s Studebaker was being driven up Rampart street by his chauffeur and in it were several school girls on their way to school.

The other car which was involved was owned by M. C. Carter, Inc., and was driven by M. C. Carter, president.

The Carter car was being driven on Valence street in the direction of the Mississippi river. Just as it crossed Rampart street it was struck on the left rear wheel by the Springer car.

Springer claimed damage in the sum of $142.93, alleging that the cause of the accident was the excessive speed of the Carter car. The Carter Company reconvened and claims $225 as the damage sustained by its automobile.

The city traffic ordinance is not in evidence.

The testimony is conflicting, that on behalf of [plaintiff apparently predominating to the effect that plaintiff’s car was proceeding at a moderate rate of speed; had stopped or practically stopped before entering the intersection and, suddenly, and at the last moment, defendant’s car, at an excessive speed, dashed across the intersection directly in the [path of plaintiff’s car.

On behalf of defendant only one witness was produced, Mr. Carter himself, who testified that he saw plaintiff’s car when it was some thirty feet or so from the intersection, and that he proceeded across at a moderate speed but that plaintiff’s car had approached at such an excessive speed, that it crashed into the side of his car near the rear, before he could clear the intersection.

Since there are no physical indications to assist us we would find it most difficult to reach a conclusion as to whose negligence caused the accident but the actions and conversation of Carter immediately after the impact make it most probable that he, himself, at that time, considered that he was at fault. Realizing that his corporation had no insurance protecting it against liability and noticing at once that the damage to the car he was .driving was somewhat in excess of that to the other car, he proposed to the chauffeur of the Springer car that if he, the chauffeur, would admit that he was at fault, he, Carter, would pay the damage to the Springer car. His purpose plainly was, by this scheme, to compel the insurance company, which had issued to Mr. Springer a liability policy, to pay the damage to the Carter car. Such suggestion in our judgment was not only reprehensible but it indicated that Carter thought himself at fault.

We think that this was sufficient to upset the balance of the scales and to cause the evidence to preponderate in plaintiff’s favor.

In the court below judgment was rendered in plaintiff’s favor for $120.93, the trial judge being of the opinion that there should not have been included in the original claim the cost of an entirely new fender since the automobile, at the time of the accident, was three years old’ and since It appears that the fender could have been repaired. We think that this was correct.

The judgment appealed from is affirmed at the cost of appellant.


text:
    No. 13,669
    Orleans
    ZAHN v. FERRARO
    (April 27, 1931. Opinion, and Decree.)
    (June 8, 1931. Rehearing Refused.)
    (July 17, 1931. Writs of Certiorari and Review Refused by Supreme Court.)
    See, also, 131 So. 504.
    Theo. Cotonio and Theo. Cotonio, Jr., of New Orleans, attorneys for plaintiff, appellant.
    Fred G. Veith, of New Orleans, attorney for defendant, appellee.
   JANVIER, J.

Plaintiff seeks to quiet a tax title on the ground that more than three years have expired from the recordation of the tax deed which the sheriff executed in his favor. The suit is brought under the provisions of Act No. 101 of 1898.

The property involved consists of two lots of land in the city of New Orleans, numbered 11 and 12 in square 59 on the map of the New Orleans Land Company, measuring each 25 feet front on Wuerple street by a depth between parallel lines of 120 feet.

At the time of the tax sale the owner was a resident'of the city-of New Orleans ■ ánd it is conceded ■ that • no notice of the sale was given but it is claimed that petitioner “has had complete, corporeal, physical possession of said property for more than three years after said tax deed was registered in Conveyance Office, and that said tax title to said property has been quieted and confirmed by the ‘ prescription of three years.”

Defendant denies that plaintiff has been in corporeal possession for three years and avers that the fact is that defendant himself or his author in title has “been in actual, corporeal, physical possession of the said property for many years prior to the pretended sale of the said property for the taxes due the state of Louisiana for 1922 and have been in actual, continuous possession to the present time.”

It is conceded, as indeed it must be, that notwithstanding the tax sale and regardless of the fact that three years expired after that sale, nevertheless if the owner remained in possession of the property that possession constituted a continuous protest against the sale and prevented the running of the peremption established by section 11 of article 10 of the Constitution of the state of Louisiana of 1921. Commercial Securities Company, Ltd., v. Smith et al., 12 La. App. 499, 126 So. 997; Levenberg v. Shanks, 165.La. 421, 115 So. 641, 642.

The question presented then is one solely of fact: Did the former owner remain in possession to such an extent as to prevent the running of the peremption referred to.

The trial court held that the former owner had remained in possession and it is that judgment that we are asked to review. : " ■

The tax sale took place in 1923. Defendant claims that his author in title surveyed and fenced the property in September, 1924, and rebuilt the fence in 1929.

That the survey was made in 1924 cannot be denied, but the making of a survey does not constitute such an act of possession as will, prevent the accrual of the three-year peremption. See Levenberg v. Shanks, supra, in which the Supreme Court after mentioning the fact that a survey had been made by the former owner, said:

“No other possession than actual corporeal possession is sufficient to operate as a continuing protest against the tax title, and thereby prevent the peremption from accruing.”

But the building of a fence, if in fact one was built, would, we believe, constitute such corporeal possession as is referred to by the Supreme Court.

We can think of no more open or unequivocal act of possession than the erection of a fence to keep out intruders.

Therefore, the only question of fact is: Was a fence erected by the former owner? If so, the peremption has not accrued, if not, then plaintiff’s tax title has been perfected by the passage of time.

As witnesses plaintiff produced himself and a Mr. Spies who lived near the property.

■Plaintiff testified thav. he was on the property several times between the time of his purchase at tax sale and the time of the trial of this case below and, that ■he went there for the purpose of seeing what the actual, physical -conditions were and that he. found no fence at any time.

Mr. Spies testified that he was very familiar with the property; that he had picked blackberries qn it on many occasions and that at no time had he found a fence thereon.

On behalf of defendant a former owner testified that a fence was erected in 1924 and in corroboration defendant produced a receipt for money paid to a carpenter on September .27, 1924, fqr erecting said fence. Plaintiff counters with the assertion that the receipt is not genuine and he maintains that it should not have been introduced in evidence but that the carpenter himself should have testified. However, defendant explains this omission on the ground that he was unable to locate the carpenter after so long a time. At any rate the receipt was not objectionable since it was introduced in connection with the testimony of the former owner, who identified it and stated that it had been given by the carpenter at the time.

The carpenter who erected the fence in 1929 testified that he found remnants of an earlier fence and in this he was corroborated by his assistant.

It would indeed'be difficult to determine just what is the true fact with reference to the earlier fence were it not for the finding of our brother below who saw and heard the witnesses. It was to meet just such situations that our courts established the doctrine that findings of fact should not be disturbed on appeal unless manifestly erroneous. In view of the fact that the. trial court has found in favor of defendant and because we are unable to say that that finding was manifestly erroneous, it is ordered, adjudged and decreed that the judgment appealed from be and it is affirmed at the cost of appellant.

ON MOTION TO DISMISS

In a motion filed in this court appellee suggests “that the plaintiff .and appellant has failed to complete the. transcript in the above entitled cause by failing to file the testimony of the defendant appellee” and asks that the appellant be ordered to show cause why he should not file the testimony or, why in the alternative, his appeal should not be dismissed.

We notice in the transcript the certificate of the clerk of the court a qua to the effect that the said transcript includes “all the pleadings, evidence and documents” so that we have no way of determining whether the statement of facts contained in the motion to dismiss is correct. Furthermore, we find that, under the Code of Rractice, article 898, if the record is defective in the particular complained of by appellee, the appeal need not be dismissed but that the appellant may, even as late as the time fixed for argument, obtain further time to supplement the transcript.

We are, therefore, of the opinion that the appeal should not be dismissed at this time and when the matter is called for argument if it then appears that the transcript is deficient, it may be that it will be found necessary, by proper proceedings, to supplement it.

It is, therefore, ordered, adjudged and decreed that the motion to dismiss the appeal be and it is overruled.


text:
    No. 13,808
    Orleans
    FENASCI v. S. H. KRESS & CO.
    (May 25, 1931. Opinion and Decree.)
    (June 8, 1931. Rehearing Refused.)
    (July 17, 1931. Writs of Certiorari and Review Refused by Supreme Court.)
    Arthur B. Leopold, of New Orleans, attorney for plaintiff, appellant.
    Milner & Porteous and P. M. Milner, of New Orleans, attorneys for defendant, appellee.
   HIGGINS, J.

Plaintiff brings this suit claiming damages for personal injuries alleged to have been sustained on April 14, 1930, at- 1 o’clock p. m., as a result of being pushed through a large plate glass show window in the arcade of the defendant’s building. The defendant is charged with being at fault in permitting the plate glass to remain in its frame when its officers knew that it had been cracked and without barricading it when they knew that large crowds, who were doing their Easter shopping, were passing through the arcade.

The defendant admitted that there was a slight crack in the plate glass and that its officer^ knew of it; that they did not barricade it; that the plaintiff was injured as a result of being violently pushed into the plate glass show window -and sustained injuries; but denied liability, averring that the crack in the glass was about three inches in length and did not come through the glass; that it was in the corner, where the copper railings and supports held the glass in position, being about 12 inches from one support and 10 inches from the other; that the glass broke in the center, when ¡plaintiff was hurt, away from the place where it was cracked; that the crack in the glass in no' way contributed to the accident, because the sole and proximate cause of the accident was the violent force with which the plaintiff was thrust against the glass by some member of 'the public in the crowd passing through the arcade.

There was judgment in favor of the defendant dismissing the suit and plaintiff has appealed.

The plaintiff’s evidence establishes that she is a young married woman and had gone into the defendant’s place of business with her sister for the purpose of purchasing some Easter eggs. She came out of the building alone and was walking through the arcade, which was crowded, when someone in the crowd roughly and unexpectedly jostled or ¡pushed her into the show window, causing it to break and large pieces of glass to fall, which severely cut and injured her, plaintiff being in a delicate condition at the time. She was immediately taken to the hospital, where her injuries were treated.

The defendant’s evidence tends to show that the arcade is spacious. In the center of it were three small show cases and between them tables on which Easter • lilies were being offered for sale. The aisles on either side of these cases were eight feet in width and served as a means of ingress and egress to defendant’s customers. The sides of the arcade were composed of large plate glass show windows. The glass in question was 10 feet by 12 feet and 5/16 of an inch in thickness and was held in brackets made of 1 i/8 inch copper strips, the glass being imbedded a half inch in this moulding. The copper moulding was screwed to the wooden frame of the window. It appears that on Good Friday evening, one of the window trimmers caused a glass shelf to fall, striking the lower ¡part of the glass about 10 inches from one moulding and about 12 inches from the other, making a crack of three or four inches. The crack did not come through to the outside, which was perfectly smooth. The officers of the defendant company knew of this condition and, after inspecting it, concluded that it would be safe and did not barricade it. The plaintiff was pushed through about the center of the glass, causing a considerable portion of it to fall, leaving a sort of arched portion of the glass remaining in the frame. All of the glass, as well as plaintiff, fell inside of the show window, the pressure being exerted from the outside. The three or four-inch cracked part of the glass in the lower corner was still intact and remained in the frame and was about 18 inches from the nearest place where the glass had broken. The copper moulding at the bottom was ¡pulled out and the screws which supported it were broken off.

The crowd in the arcade at the time was not unusually large and not any larger than the regular Saturday afternoon congregation of shoppers.

It is the custom tq put up barriers to protect plate glass show windows, adjacent to sidewalks, during the carnival season and New Year’s eve on account of the tremendous number of people who congregate on the sidewalks, but it is not customary to take such precautions for show windows in the arcades of buildings.

The expert testimony offered by the defendant shows that the construction of the frame and the copper mouldings which supported and held the glass in position was done in the usual customary way. The thickness of the plate glass was also in accordance with the custom prevailing. These experts, in response to hypothetical questions based upon the facts of the case, gave as their opinion that the glass was safe unless an unusual pressure was exerted against it. They did not 'believe it was necessary to barricade the window.

The law is plain that everyone, under penalty of responsibility for resulting damages, is required to keep his building in such a state of repair that no part of it shall fall and cause injury to those lawfully on the premises, or those passing bj( it. Arts. 670, 2316 and 2322, K. C. C.; Tucker v. Illinois Central R. R. Co., 42 La. Ann. 114, 7 So. 124; Ramon v. Feitel Housewrecking Co. et al., No. 13,663 of this court, 134 So. 426, decided May 11, 1931.

The evidence shows that the crack in the glass was three or four inches in length and of such a nature as not to be dangerous to those using the arcade of the building. The evidence also shows that at the place where the plaintiff was violently or roughly shoved into the plate glass window was near the center of it. The great preponderance of the evidence is to the effect that after the accident the small portion where the crack in the glass was located was still intact and held firmly in the copper frames. The allegations of the plaintiff’s petition and her own testimony conclusively established that she was roughly and forcibly pushed into the window by some member of the public who was using the arcade. The evidence convinces us that the defendant was not guilty of any negligence or fault which in any manner contributed to the most unfortunate accident. The proximate cause of the accident was the rough and violent push that the plaintiff sustained by some third person, for whose action defendant is not liable.

The judge of the trial court found that the defendant was free from fault and, after a careful review of the record, we are of the opinion that his finding was correct.

For the reasons assigned 'the judgment is affirmed.


author: BOATNER, J., PER CURIAM.

text:
    No. 13,471
    Orleans
    YAZOO & MISS. VALLEY R. R. CO. v. A. MARX & SONS
    (June 8, 1931. Opinion and Decree.)
    (July 1, 1931. Opinion and Decree on Rehearing.)

      Lemle, Moreno & Lemle, of New Orleans, attorneys for plaintiff, appellant.
    Neil A. Armstrong, Jr., and L. F. Daspit, of New Orleans, attorneys for defendants, appellees.
   BOATNER, J.,

ad hoc. A shipment of what was billed as “pig-lead” was made from a point in Texas to the defendants in New Orleans. It originated on the New Orleans, Texas & Mexico Railroad, which, having no line into New Orleans, turned the goods over to the Yazoo & Mississippi Valley Railroad en route, under a contract between the two railroads, and delivery was made by the latter.

On arrival of the shipment the defendants objected to its classification as pig-lead, contending that it was scrap-lead, which took a lower freight rate. They furnished proof to the officers of the Yazoo & Mississippi Valley Railroad in New Orleans that the lead had been used by their vendors in sheets to line tanks, and, having been discarded, was melted down and cast into small bars for convenience in handling, and that in this form it was sold to the defendants as scrap lead. On this showing the local representatives of the railroad yielded to the defendants’ contention and collected freight at the lower rate.

Afterwards these officers were overruled by higher railroad authority and were directed to collect the deficit at the pig-lead rate. The defendants refused to pay and this suit resulted.

The court a qua, after overruling exceptions of no cause of action- and prescription, gave judgment for the defendants, and the plaintiff appealed.

The bill of lading reads as if the initial carrier, the New Orleans, Texas & Mexico Railroad, was also to make delivery, and it is argued that the Yazoo & Mississippi Valley Railroad, which actually made delivery, did so in the capacity of agent of the other railroad and not as a carrier, and that it is not entitled as delivering carrier to demand payment of the freight. The distinction, if it has any reality, should make no difference, particularly since prior to .the suit the Yazoo & Mississippi Valley Railroad settled with the other carrier on the basis of the pig-lead rate and the recovery asked here is solely for its own account. Clearly the cause of action belongs to the plaintiff, and the exception of no cause of action was properly overruled by the judge a quo, and the suit having been brought on behalf of the plaintiff within the prescriptive period, the exception of prescription was also properly held to be unfounded.

Of course, errors of railroad agents in the construction of tariffs do not make estoppel and cannot affect the right, which is also the duty, of the railroad to demand the true rate. The only question to be determined here is whether the defendants’ goods were “pig-lead” or “scrap-lead” in the sense of the freight tariff.

It appears to be a fact that the form in which the lead was shipped is that which is commonly spoken of as “pig-lead,” that is, in small bars roughly cast; but it is true, too, that the lead itself was used and discarded metal, not “virgin,” that it must be melted and refined before it can be used again, and that it is of considerably less value than “virgin” lead. It is contended that it is these facts, not the mere form in which the material was cast, which are important in determining its classification.

The tariffs do not define the terms, and we are referred to no case which does. In the dictionaries we find the following:

Standard: “Pig. An oblong mass of metal cast in a rough mold, usually in sand. * * * A 301-pound mass of lead. * * * All-mine pig. Iron smelted entirely from mine material.”

Century: “Pig. An oblong mass of metal which has been run while still molten into a mold excavated in sand; specifically iron from the blast furnace run into molds excavated in sand. All-mine pig, pig-iron smelted entirely from ore or mine material.”

Webster: “Pig. * * * 6. Metal, (a) An open sand casting of metal, now esp. of iron or lead, run directly from the smelting furnace.”

And in 48 C. J. 1180, the following:

“Pig-iron. * * * The term was derived from the shape which the iron assumed in the sand beds in which it was first cast; and when first used had reference to a particular shape or form. It has since acquired a larger meaning, and as used at present includes any product of the blast furnace that is cast in any convenient form or shape without reference to what that form or shape may be.”

The production of lead is analogous to that of iron and pig-lead is the same as pig-iron with the metal changed. Some of the definitions include the idea of production in a blast-furnace, that is,. from the ore; but' we find also definitions of all-mine pig as composed, by way of distinction, entirely of mine materials. It would seem, therefore, that in their references to production in the blast furnace the lexicographers meant rather to describe the usual process than to define the product. The characteristic which is predominant and which ' suggests the name is the form,' likened to that of a small hog.

The making up of freight tariffs is a highly practical matter, for they are to be used and applied by merchants and railroaders, generally the most practical of men. There is more than ordinary need to give the language of a tariff its obvious meaning, and .to avoid refinements of construction which would require technical knowledge to understand and apply it.

The average man has no difficulty in distinguishing between pig-lead and scrap-lead by sight. If classification for rating depends on origin, whether directly from the ore or from junk, the rate man must stop to take and consider evidence, and it may be, to make physical and chemical investigations. It is not reasonable to suppose that for t'he application of freight tariffs aids of those sorts should be required.

■ We think we must hold that lead in pigs is pig-lead, and that it is immaterial whether it is produced from lead ore or from scrap-lead.

Accordingly, the judgment appealed from is annulled and reversed, and there is now judgment in favor of the plaintiff, Yazoo & Mississippi Railroad Company, against the defendants, A. Marx & Sons, Inc., in the sum of $200.56, with legal interest from judicial demand and all costs of both courts.

JANVIER, J., takes no part.

ON APPLICATION FOR REHEARING

PER CURIAM.

The application is not considered because filed too late. O. K. Realty Co. v. John A. Juliani, Inc., 157 La. 277; Valmont Service Station v. Eug. B. Avegno et al., 3 La. App. 336.


author: WESTERFIELD, J.

text:
    No. 13,646
    Orleans
    INTERNATIONAL TIME RECORDING CO. v. HART ENTERPRISE ELECTRICAL CO., INC.
    (June 8, 1931. Opinion and Decree.)
    (July 1, 1931. Rehearing Refused.)
    Dart & Dart and Leo L. Dubourg, of New Orleans, attorneys for plaintiff, appellee.
    Lemle, Moreno & Lemle, of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

This is a suit on an open account. Plaintiff alleges that the Hart Enterprise Electrical Company, Inc., purchased certain merchandise amounting to $3,146.89; that it ¡paid on account thereof $2,826.89, leaving a balance of $319.91, which was subject to a credit of $40, reducing its claim to $279.91, for which amount this suit was brought. Attached to its petition was an itemized statement together with invoices covering the various items supporting its claims.

Defendant answered admitting the purchase of the merchandise but denying any liability, on the ground that a compromise had been effected, which, under the, prevailing circumstances, relieved it of any obligation to plaintiff.

There was judgment below in plaintiff’s favor as prayed for, and defendant has appealed.

Among the articles of merchandise sold plaintiff were four “heavy duty clock movements,” for $92. For some reason these clock movements were not delivered promptly and are not among the items which go to make up the account on which this suit is based. A dispute arose as to whether the company, when delivery was finally made, would ship clock movements of the kind and quality which had been ordered, for the sum of $92. The defendant insisted that the amount for which these movements had been sold- to it was below the market, • other manufacturers charging $260 instead of $92, and declined to make settlement without the delivery of the clock movements. However, through the intervention of counsel, representing both parties, it was agreed that defendant might retain out of the amount due plaintiff the sum of $260, and check was accordingly mailed to Messrs. Dart & Dart, plaintiff’s counsel, for the sum of $2,826.98. This check was inclosed in the following letter:

“January 19, 1929.
“Dart & Dart, Attorneys,
“Canal Bank Building,
“New Orleans, La.
“Gentlemen: Attention: Mr. Louis C. Guidry
“Enclosed please find check ¿¿10279 amounting to $2826.98 in accordance' with our settlement, it being understood that the balance of $260.00 remains due on this account pending the decision of the factory regarding the return of the four heavy duty clock movements.
“Very truly yours,
“Hart Enterprise Electrical Co., Inc.,
“By M. E. Hart, President.”

. Printed on the reverse of the check was the following legend: “This check is hereby accepted by the payee in full payment of the within account and indorsed as follows:”

The check also contained in typewriting the following: “For account qf International Time Recording Co. in full to date.”

This letter and check are relied on as establishing the compromise in compliance with the provisions of article 3071, R. C. C., requiring a compromise to be in writing.

The clock movements were not delivered to defendant as promptly as desired and when tendered were refused, the petition stating that they are on hand and are ready for delivery, but that since defendant declines to accept same that item of the order has been treated as canceled. Defendant’s position is that the letter and check evidences an agreement whereby the failure to deliver the clock movements promptly, permitted it to retain the $260. The plaintiff, on the other hand; maintains that the $260 was in the nature of a deposit left with defendant to guaranty the delivery of the four heavy duty clock movements for the sum of $92; that it had not charged defendant company for the movements, and since delivery has been declined the retention of the $260 cannot be justified because it is ready and willing to deliver the clock movements upon payment of the $92.

Mr. Hart, the president of the defendant company, admitted on the stand that the misunderstanding arose over the payment of the $92, it being his understanding that he was tq obtain the clock movements and pay the $260 if they lived up to the original specifications, but not $352.

The transaction, it must be admitted, is not very clear, and we are unable to determine how, in view of the letter we have been discussing, plaintiff’s claim should be $279.91 instead of $260, nor is there any explanation of why defendant’s check should be drawn for $2,826.98 and credit given for $2,826.89. We also, find that in subsequent correspondence counsel representing plaintiff refer to the $260 retained by defendant as $262.

However, it is apparent that when the check for $2,826.98 was given there admittedly remained due to plaintiff by defendant the sum of $260; no charge having been made for the heavy duty clock movements. We can find no reasonable explanation of the retention of $260 to protect a purchaser concerning the quality of an item valued at only $92, for which he had not been charged. Mr. Hart, the defendant’s president, who testified that the difficulty arose over' the insistence upon the payment of $92, does not explain why a dispute as to $92 would justify the retention of $260; the difference between $260 and $92 -being $168.

The conclusion we have reached, albeit with none too much confidence, is that plaintiff should have judgment for $260. and not $279.91, consequently, the judgment appealed from will be amended by reducing the amount awarded plaintiff to $260; the costs of the lower court to be paid by defendant and of this court by plaintiff, and as thus amended, it is affirmed.

JANVIER, J., takes no part.


text:
    No. 13,679
    Orleans
    DIVAS v. NOTO
    (April 27, 1931. Opinion and Decree.)
    (June 8, 1931. Rehearing Refused.)
    R. A. Dowling, of San Antonio, Texas, and W. R. Kinsella, of New Orleans, attorneys for plaintiff, appellant.
    Charles A. Danna, of New Orleans, attorney for defendant, appellee.
   HIGGINS, J.

This is a suit by a tenant to recover from the landlord damages for alleged personal injuries said to have resulted from falling through the flooring of the gallery on the second story of the leased premises. The defendant denied liability and specially pleaded contributory negligence, averring that she had warned the plaintiff not to use the gallery, but that, in disobedience to this admonition, plaintiff had done so.

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

The defendant admits the relation of landlord and tenant between herself and plaintiff. The plaintiff proved by a preponderance of the evidence that she walked upon the gallery for the purpose of hanging out some clothing, and that her left leg went through one of the hoards, due, to the fact that one of the supports gave way on account of its rotten condition. In short, plaintiff .proved a prima facie case.

The defendant then undertook to establish that the plaintiff was guilty of contributory negligence in failing to heed the warning not to use the porch on account of its decayed condition. The defendant and her daughter, who collected the rent, both testified that this warning was given on Sunday preceding the Wednesday on which the accident happened. On the contrary, the carpenter and plaintiff testified that the warning was given after the accident. Defendant bore the burden of establishing the special plea, but it would appear to us that she has failed to do so by a preponderance of the evidence.

Counsel for defendant places great stress upon the fact that plaintiff admits that she knew the gallery was in a rotten condition, and hence that she was guilty of contributory negligence in going upon it. Plaintiff testifies that she went upon the portion she regarded as safe.

In the case of Boutte v. New Orleans Terminal Co., 139 La. 945, 72 So. 513, 516, in which the deceased knew the gallery was rotten, the court, after having pointed out the responsibilities of the landlord to the tenant under the provisions of articles 670, 2322, and 2695 of the Civil Code and further that the defendant bore the burden of proving a special plea of contributory negligence, said:

“To assume that the lessee, in this case, knew that the balcony was so rotten that it could not withstand her weight would' be to assume that she committed suicide. All that could be assumed in that respect would be that she knew or ought to have known that the balcony was unsafe. The evidence, however, does not justify our concluding that the danger was so apparent as to do away with the provisions of article 2695 qf the Civil Code, whereby the lessor was bound to guarantee the lessee against all vices and defects in the leased premises and to indemnify her for any loss resulting therefrom.”

See, also, Gardiner v. De Salles, 13 La. App. 83, 126 So. 739; Richard v. Tarantino, 15 La. App. 311, 131 So. 701; Vanosby v. Creidman, 15 La. App. 488, 131 So. 702; Klein v. Young, 163 La. 59, 111 So. 495; Breen v. Walters, 150 La. 578, 91 So. 50; Brown v. Losch, 8 La. App. 278.

In the light of the foregoing authorities we are of the opinion that defendant is liable.

As to the quantum, the record shows . that the plaintiff was not badly or seriously injured, but she suffered bruises and contusions of her knee, and from the medical testimony we gather that she was able to go about, but limped, and that her period of disability was about three weeks. For the pain and suffering and injury we will allow the sum of $150. She also had to hire a cook to replace her in her hoarding house business, at an expense of $12. The drug bill was $3. These items are also allowed. Brown v. Losch, 8 La. App. 278; Nash v. Canal & C. R. Co., 52 La. Ann. 1199, 27 So. 661.

For the reasons assigned it is ordered, adjudged, and decreed that the judgment appealed from be annulled, avoided, and reversed, and that there now be judgment in favor of Clara Divas, plaintiff, and against the defendant, Mrs. Peter Noto, in the full sum of $165, with legal interest from judicial demand until paid, at the cost of defendant.


text:
    No. 13,753
    Orleans
    KRAAK v. GRUNTZ
    (June 8, 1931. Opinion and Decree.)
    (July 1, 1931. Rehearing Refused.)
    W. J. and H. W. Waguespack, of New Orleans, attorneys for plaintiff, appellee.
    C. A. Buchler, of Gretna, attorney for defendant, appellant.
   WESTERFIELD, J.

The plaintiff, a florist, and the defendant, a dairyman, are neighbors in the parish of Jefferson. One of the defendant’s cows broke through a fence and entered upon the property of plaintiff, causing certain depredation to his growing plants. In discussing the in-, cident it is claimed that defendant used certain abusive and insulting language in the presence of several bystanders. This suit is brought for the sum of $1,705, $205 of which is claimed to be due for damage to the growing plants of plaintiff, and the balance, $1,500, for humiliation, mental suffering, et cetera, due to the alleged use of abusive epithets by defendant.

There was judgment below in the sum of $200 covering damage to plaintiff's plants, no amount having been allowed on account of the alleged insult and abuse. Defendant has appealed.

In this court the claim for damages for defamation is abandoned. Consequently, there remains for consideration only the question of injury to the plaintiff's plants.

There is little or no dispute concerning the liability of defendant, the main defense being addressed to the quantum. It is said that there is not sufficient evidence to sustain an award of damages, which, in any event, were merely nominal. Two witnesses were placed upon the stand by plaintiff, both of whom were quite familiar with the character of shrubs and plants contained in plaintiff’s nursery, and both of whom testified that substantial damage had been occasioned by defendant’s cows. One of these witnesses, Mr. Papworth, who is shown to be a man of much experience in plaintiff’s line of business, testified that his nursery was one of the finest in the South, single plants being worth as much as $50 each. . He put the damage at “several hundred dollars.” No countervailing evidence is in the record. We feel, therefore, that the judgment of the court, a qua, should be affirmed.

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


text:
    No. 13,757
    Orleans
    GAIRENS ET UX. v. VALENTI ET AL.
    (June 8, 1931. Opinion and Decree.)
    (July 1, 1931. Rehearing Refused.)
    Daly & Hamlin and Jules A. Grasser, of New Orleans, attorneys for plaintiffs, appellees. ■
    Richard A. Dowling, of San Antonio, Texas, and William R. Kinsella, of New Orleans, attorneys for defendants, appellants.
   JANVIER, J.

Defendant Blache is a real estate agent. Plaintiffs, who, at the time, were husband and wife, became attracted to certain real estate listed with Blache for sale and, through the said agent, made written offer therefor. In connection with the said offer they deposited the sum of $380. The offer contained a condition that it was contingent upon the granting by the Suburban Building & Loan Association of a loan amounting to 80 per cent of the purchase price. The homestead association named in the offer refused to make the said loan. The sale was not consummated and plaintiffs now seek the return of the deposit.

The owner of the property disclaims any interest in the deposit, but the real estate agent asserts that he is entitled to a commission for his service in negotiating the contract and he offers to return the balance of the 'deposit only after deducting therefrom the commission which he claims he has earned as well as a fee for his attorney.

He claims that he is entitled to the commission by reason of the fact that, though the homestead association named in the contract refused to make the loan, another association agreed to do so and he argues from this that plaintiffs’ refusal to accept the property is not justifiable.

On behalf of the agent it is argued that the view of the trial judge that the contract contained a potestative condition was erroneous, and our attention is called to the case of Morrison v. Mioton, 163 La. 1065, 113 So. 456, in which the Supreme Court held that where a particular homestead was specified the condition was not potestative. We do not see, however, that there is involved here any question of whether or not the agreement to sell contained a potestative condition. Plaintiffs, for reasons best known to themselves, were willing to take the property if, and only if, the particular homestead association named should indicate its willingness to make a loan thereon for 80 per cent of the purchase price.

It may be that plaintiffs were acquainted with the appraisers of that association and that they selected it because they felt that if those appraisers placed on the property a valuation sufficient to permit of a loan of 80 per cent of $3,800, they could rest assured that the price offered was proper.

It may be that they knew the officers of that association and were pleased with their methods of doing business but, whatever their reasons, they were within their rights in stipulating that they would purchase only on conditión that that association would make the loan.

When that association refused to make the loan, so far as they were concerned the contract, by its own terms, was canceled and it cannot be said that plaintiffs were in any way in default in refusing to accept the title.

It is true that the contract contained the provision that the real estate agent should 'be entitled to his commission “as soon as both parties have affixed their signatures to said contract in acceptance.” but, it is also true, that the contract stipulated that the said commission should be due by plaintiffs only if they should fail to comply with said offer. They did not fail to comply with the said offer but compliance therewith was made impossible by reason of the fact that the condition that the Suburban Building & Loan Association should make the loan was never fulfilled.

The judgment of the trial court which ordered the return of the deposit was correct.

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


text:
    No. 13,647
    Orleans
    FRANK DELATOUR, INC., v. MARULLO ET AL.
    (June 8, 1931. Opinion and Decree.)
    (July 1, 1931. Rehearing Refused.)
    John Singreen, of New Orleans,, attorney for plaintiff, appellant.
    Edward Rightor, W. H. Sellers and Henry M. Mayo, of New Orleans, attorneys for defendants, appellees.
   HIGGINS, J.

This is a suit to recover property damages alleged to have resulted from an intersectional collision at the corner of Conti and Burgundy streets on June 17, 1930, at 1:30 p. m.

Plaintiff seeks to hold defendants on the ground that its car had the right of way, haying entered the intersection first, and that defendants’ car was being operated at an excessive rate of speed.

Defendants denied liability and averred that the accident' was caused solely by the fault of the driver of plaintiff’s car and in the alternative pleaded contributory negligence.

There was judgment in favor of defendants dismissing plaintiff’s suit and it has appealed.

It is conceded by plaintiff that the Woodstock Company, Ltd., one of the defendants, who is sought to be held on the ground' of respondeat superior, is not liable.

The evidence shows that plaintiff's car was being driven by its president on Con-ti street in the direction of the Mississippi river. Defendants’ car was proceeding on Burgundy street in the' direction of Canal street. The two automobiles met in collision where the streets intersect each other at right angles.

The driver of plaintiff’s car and the young lady riding with him both testified that as he approached Burgundy street he slowed down and then attempted to cross. The young lady stated that she saw defendants’ car about ten or fifteen feet away coming towards Canal street.- The driver of plaintiff’s car stated that he did not see defendants’ car until it was at his side.

Defendants and their witnesses testified that when defendants’ car was about 15 or 20 feet from the corner the driver of plaintiff’s car came to the intersection first, slowing down and then speeding up to cross directly in the path of defendants’ car. They state that in order to avoid striking plaintiff’s car the driver of defendants’ car applied the brakes and attempted to turn sharply to the left on Conti street in the direction of the river.

Both parties litigant established the fact that the right front side of defendants’ car struck the rear left side of plaintiff’s car near the back wheel, the automobiles coming to rest on the uptown river corner of Conti and Burgundy streets.

Counsel for plaintiff strenuously argues that the physical da!mage being to the left rear portion of plaintiff’s car shows conclusively that it had entered the intersection first and, therefore, had the right of way to continue crossing, and, second, that the extent of the damage is evidence of the excessive speed of defendants’ car. It would appear to us that the reason why the damage was to the rear of plaintiff’s car was because the driver of defendants’ car put on his brakes in an attempt to stop and also swerved to his left in a further attempt to avoid the collision. Thus plaintiff’s car had an opportunity to come further into the intersection than it would have had if the driver of defendants’ car had proceeded across the street in a straight course. It further appears that plaintiff’s driver accelerated the speed of the car and made no effort to apply the brakes. This is an additional reason why the plaintiff’s car was struck on the rear.

Furthermore, the young lady riding with the driver of plaintiffs car testified that defendants’ car was only 15 feet from the intersection at the time plaintiff’s car entered it. This satisfies us that both cars approached the intersection at or about approximately the same time. The city ordinance is not pleaded, so neither party had the right of way over the other.

The fact that both cars came to rest practically in the intersection at the uptown river corner of Conti street shows that neither car was proceeding at an excessive rate of speed.

We have carefully read the record and have reached the conclusion that the driver of plaintiff’s car was guilty of negligence both in not keeping a proper lookout and in attempting to cross in front of the defendants’ oncoming car, which was in dangerous proximity, and consequently, was guilty of contributory negligence.

For the reasons assigned the judgment appealed from is affirmed.

JANVIER, J., takes no part.


text:
    No. 13,769
    Orleans
    HOFFMAN v. PETER JUDLIN, INC.
    (May 11, 1931. Opinion and Decree.)
    (July 1, 1931. Rehearing Refused.)
    Titche, Kiam & Titehe and Robert D. Samsot, of New Orleans, attorneys for plaintiff, appellee.
    Spearing, McConnell & McClendon, of New Orleans, attorneys for defendant, appellant.
   JANVIER, J.

This litigation results from an intersectional collision at the corner of Iberville and Villere streets in New Orleans. George J. Hoffman, owner of one of the automobiles concerned, received injuries and filed this suit. Prior to trial, however, the said Hoffman died from causes apparently in no way growing out of the accident and, as parties plaintiff, there were substituted his widow, individually and as natural tutrix of her three minor children.

The district court rendered judgment in favor -of plaintiffs in the sum of $247 and defendant- has appealed.

The said Hoffman was driving his Ford automobile on Iberville street in the direction of Lake Pontchartrain. Defendant’s large motortruck, driven by one of its employees, was on its way up Villere street.

Iberville parallels and is one block below Canal street. Villere street crosses Canal and Iberville and is a “one-way” street between those two streets, traffic thereon in that one block being limited to vehicles proceeding downtown, so that defendant’s truck, which was on its way uptown, should have turned in to Iberville street. The driver thereof says that such was his intention, but that just as he commenced to make the turn to his left he realized that Hoffman’s car, which was approaching from his left at an undiminished speed, could not be stopped and he states that he, therefore, instantaneously decided to proceed straight across Iberville street in an effort to complete the crossing before the Hoffman car could crash into the. side of‘the truck.

While there is presented to some extent an interesting question involving the interpretation of certain sections of the traffic ordinance regarding the right of way, the serious and determining point is one of fact, i. e.: Did the truck strike the Ford or was it struck by it after it had pre-empted the crossing?

On behalf of plaintiffs it is contended that the truck was proceeding at an excessive speed; that the chauffeur thereof intended driving against traffic on Villere street from Iberville to Canal street and that after the Ford entered the intersection the truck crashed into its right side and turned it completely around.

Defendant asserts that the truck had the superior right under the ordinance, to which we shall hereafter refer, and that in spite of this the Ford dashed into its left side near the rear, the driver of the Ford being responsible for the resulting damage.

We think that the most significant physical fact is that the left front fender of the Ford was damaged and not the right. True, there is some dispute over the location of this damage, but the record leaves the impartial reader firmly convinced that no damage was sustained by the Ford on its right side and that its left front fender received the brunt of the impact.

This would have been impossible had the truck crashed into it after it had preempted the intersection and makes it certain that the damage was sustained when the driver of the Ford, who admittedly up to that time had not seen the truck, suddenly noticed it directly in his path and swerved his car to the right in an instinctive effort to pass around the rear. Only in this way could the left-front fender have received the damage and only in this way could the right fender have remained uninjured. This physical fact corroborates the testimony of defendant’s witnesses and tends to contradict Mr. Hoffman, who, in other particulars, is shown to have been somewhat inaccurate. For instance, he stated that he was unconscious for -three-quarters of an hour after the accident and that his car had to be pulled home by another automobile, whereas' the record conclusively shows that he left the scene of the accident to try to find a representative of defendant and that thereafter he drove the car home himself.

If, then, the truck had pre-empted the intersection, it was the duty of the driver of the other vehicle to afford it the opportunity of proceeding, regardless of which vehicle might have been entitled to the right of way under the traffic ordinance. Vance v. Poree, 5 La. App. 109; Item Co. v. Checker Cab Co., 9 La. App. 397, 120 So. 509.

It is contended by plaintiffs that since the truck was required to turn at that corner it was negligence for the driver thereof to enter the intersection at -a speed in excess of five miles per hour, since that is the maximum speed permitted to vehicles turning into intersecting streets by sub-paragraphs (a) and (b) of paragraph 2 of article 2, section 1, of ordinance No. 7490, C. C. S.

It appears to us probable that the driver of the truck was at fault in this particular, but that violation would not relieve the driver of the other vehicle of the duty of exercising care and would not give a right of recovery to those claiming through him if his negligence as set forth contributed in causing the accident.

Had Villere street above Iberville street not been a one-way street and had it been legally permissible for the truck to continue up that street, the truck, of course, would have been entitled to the right of way, since it had approached the intersection from the right of the other car. See paragraph 7 of article 1, section 1, ordinance No. 7490, C. C. S. However, it was not the purpose of the truck, according to the driver, to cross Iberville street, but to turn into it, and it is argued on behalf of plaintiffs that in such a situation paragraph 7 referred to has no application and that the right of way should be afforded to the vehicle which does not intend to turn.

Whether the truck had the right of way is, as we have stated, an interesting question academically, but is of no practical importance here in view of our conclusion already announced.

In view, then, of the fact that the negligence of Hoffman himself contributed to the unfortunate result, there can be no recovery.

That the driver of defendant’s truck had lost the sight of his left eye and that defendant, in spite of this, permitted him to operate the truck is not of itself proof of negligence, since it is not shown that the physical condition of the said driver had any causal connection with the collision. 64 A. L. R. Annotated, 1929, page 132; Emile Wilson v. Emile Bittner, 129 Or. 122, 276 P. 268, 64 A. L. R. 132; Campbell v. Walker, 1 Boyce (Del.) 580, 76 A. 475.

The judgment appealed from is annulled, avoided, and reversed, and it is now ordered, adjudged, and decreed that there be judgment in favor of defendant and against plaintiffs, dismissing their suit at their cost.


author: ' JANVIER, J.

text:
    No. 12,605
    Orleans
    UNITY INDUSTRIAL LIFE INS. & SICK BENEFIT ASSN. v. WILSON ET AL.
    (May 25, 1931. Opinion and Decree.)
    (June 8, 1931. Rehearing Refused.)

      '■(No Syllabus)

    . Jules A. Crasser, of New Orleans, attorney for plaintiff, appellee.
    Chas. J. Mundy, of New Orleans, attorney for defendants,'appellants.
   ' JANVIER, J.

Plaintiff, an industrial life insurance company, issued two policies on the life of Charles Wilson. At the time of his death Wilson left a widow, Lizzie Wilson, with whom he had not been living for several years.

In both policies Lizzie Wilson, prior to the last indorsement, had been named beneficiary. However, both policies now bear indorsements dated March 10, 1930, under which indorsements the beneficiary was changed from Lizzie Wilson to Emily Broussard. The insurance company, finding itself unable to determine to which of the two women the proceeds should be paid, deposited the said proceeds in court in accordance with the provisions of Act 123 of 1922 of the State of Louisiana. Thereupon the said Emily Broussard, concubine of the said Wilson, filed a rule against Lizzie Wilson, the wife, in an effort" to obtain the proceeds of the said policies. The controversy, then, is between the two rival claimants to the proceeds.

. It is admitted that. on the face of the policies there, is an indorsement apparently changing the beneficiary, Lizzie Wilson, the wife, to Emily Broussard, the concubine, but Lizzie Wilson contends that at the time the change is said to have been applied for by Charles Wilson, . on whose life the policies were issued, he was ill with tuberculosis in the hospital and was physically- and mentally unable to make application for such change.

It is asserted that the said change was applied for by Wilson, but the evidence rather convincingly shows that on that day Wilson’s condition was such that he could not have done so. Emily Broussard testifies that the said Wilson made application to a certain Sidney Martin, collector for the company, but she fails to produce Martin as a witness, in spite of the fact that testimony by him, if corroborative of her testimony, would have been of the utmost importance to her.

Only questions of fact are involved and the trial judge, after hearing all the witnesses, decided in favor of the wife, Lizzie Wilson. We are unable to say that that decision is manifestly’erroneous.

The judgment appealed from is affirmed.


author: WESTERFIELD, J. JANVIER, J.,

text:
    No. 13,792
    Orleans
    CHAUVIN v. AMERICAN MUTUAL LIABILITY INS. CO.
    (May 11, 1931. Opinion and Decree.)
    (July 1, 1931. Rehearing Refused.)

      Dart & Dart and Leo L. Dubourg, of New Orleans, attorneys for plaintiff, appellant.
    Henry & Coopér and John A. Smith, Jr., of New Orleans, attorneys for defendant, appellee.
   WESTERFIELD, J.

This suit was originally brought in the name of Mrs. Marie Dubourg Chauvin, Miss Louise Chauvin and Miss Laura Chauvin for compensation for the death of Louis Chauvin, the son of Mrs. Chauvin and the brother of the Misses Chauvin. The petition alleged that on October 8, 1930, Louis Chauvin was electrocuted under circumstances entitling his dependents to compensation from his employer, the E-Z Opener Bag Company of Braithwaite, Plaquemines parish, Louisiana; that he- earned $200 a month and contributed $120 per month to the support of petitioners, who were partially dependent upon him; that the defendant, American Mutual Liability Insurance Company, was the insurer of Louis Chauvin’s employer; that in accordance with the terms of Act No. 20 of 1914, petitioners are entitled to recover in a direct action against the insurance company. They pray for compensation in the sum of $18 a week for a period of 300 weeks, commencing October 8, 1930, for $100 funeral expenses and for $50 additional as incidental expenses.

Defendant filed an exception of no cause of action as to the right of the Misses Chauvin to claim compensation upon the ground that brothers and sisters have no cause of action when the mother, or father, either or both, are living. The record does not disclose whether this exception was ever disposed of by the court, but, upon the trial of the case, the claim of the two sisters was abandoned and the case proceeded with the mother alone as plaintiff. After a trial on the merits, judgment was rendered in favor of Mrs. Chauvin in the sum of $3 per week for 300 weeks, the first payment to be made as of October 15, 1930, Plaintiff has appealed.

The position taken by plaintiff in argument and in brief in this court is that there should be a recovery in favor of plaintiff of $9 per week for 300 weeks. Defendant denies liability upon the ground that the injury from which Louis Chauvin died was not received in the course of his employer’s "trade, business or occupation,’’ as required by paragraph 2 of section 1 of the Workmen’s Compensation Act, and, in the alternative, avers that, if there be liability, the actual amount due would not exceed $1.94 per week for 300 weeks, but for the minimum, of $3 per week established by the law. (Fuhrmann v. Keenan, 168 La. 642, 122 So. 892.)

The following facts gleaned from the record are pertinent to the question of liability. The E-Z Opener Bag Company built two ornamental brick pillars at the entrance to its plant. The pillars were surmounted by an electric light. A verbal agreement had been entered into between the bag company and the Louisiana Light & Power Company under the terms of which the bag company undertook to run the wire Connections from the lights to a pole nearby, and, while engaged in running the wires, Louis Chauvin, who was the electrician of the E-Z Opener Bag Company, was shocked and killed. Defendant argues that Chauvin’s employer was engaged in the business of manufacturing paper bags at its plant in the parish of Plaquemines and that, in connecting the wires of tbe Louisiana Light & Power Company with the ornamental pillars, which were located outside of the plant of the bag company, Chauvin, at the time of his death, was not engaged in the business of his employer. However, the record shows that Chauvin acted upon orders of his superiors and pursuant to an agreement between his employer and the Louisiana Light & Power Company. It will be presumed that he acted within the scope of his employment. He certainly was not engaged in any private enterprise and there is nothing in the record which would justify us in holding that the installation of the wires was not undertaken in the Interest of his employer’s business. Labostrie v. Weber, 15 La. App. 241, 130 So. 885.

Section 8, paragraph 2, of Act No. 85 of 1926, p. 116, reads as follows:

“For injury causing death within one year after the accident there shall be paid to the legal dependents of the employee, actually and wholly dependent upon his earnings for support at the time of the accident and death, a weekly sum as hereinafter provided. If the employee leaves legal dependents only partially actually dependent upon his earnings for support at the time of the accident and death, the weekly compensation to be paid as aforesaid shall be equal to the same proportion of the weekly payments for the benefit of persons wholly dependent as the amount contributed by the employee to such partial dependents in the year prior to his death bears to the earnings of the deceased at the time of the accident.”

Without quoting further provisions of the act, suffice it to say that it is conceded that a widowed mother in Mrs. Chauvin’s- position is a partial dependent and, as such, is entitled to compensation for 300 weeks in a sum equal to such proportion of 32% per cent of her son’s weekly wage as his weekly contribution bore to his total weekly earnings. Chauvin earned $200 a month and he gave his mother $120 a month. His mother was the head of á household which comprised the following individuals besides the deceased: Two sisters, Misses Louise and Laura Chauvin, three brothers, Vincent, Ernest and Eugene Chauvin. All of the children are majors, with the exception of Eugene, who was 19 years of age. Vincent, who earned $30 a week, gave his mother $15 and- Ernest, who earned $25 a week, contributed $10. Eugene, who earned $65 a month, contributed little or nothing. Mrs. Chauvin, whose husband had been dead about 15 years when the suit was tried, maintained the household with the funds contributed by the three boys. One of the sisters, Louise, was an invalid; Laura, the other sister, helped with the housework. The family lived in a home which had been purchased through a homestead and out of the funds contributed to Mrs. Chauvin she paid $30 a month, or $360 a year to the homestead. In addition to this, she paid the Aetna Life Insurance Company an annual premium of $143.76 and to a community burial service company 50 cents a week or $26 a year. Defendant multiplies $120 by 12 to ascertain the yearly contribution to Mrs. Chauvin. From the sum arrived at, $1,440, it is claimed that there should be deducted $529.76, this amount representing the annual homestead and insurance payments of Mrs. Chauvin, thus leaving a balance of $910.24, from which counsel deducts the further sum of $547.50, an arbitrary amount estimated for the room and board of Louise, Laura and Eugene Chauvin at the rate of 50 cents each per day for one year. From the remainder, $362.74, he subtracts a further sum of $1 per week for 52 weeks for the room and board of Louis Chauvin, deceased, thus leaving a balance of $310.74, which he claims to be the sum actually contributed annually to Mrs. Chauvin’s support. Counsel then continues his calculations as follows: Dividing $2,400, the annual income of the deceased, by 52, the number of weeks in the year, he gets the figure $46.16. 32y2 per cent of this sum amounts to $15. He divides $310.74, the amount he claims to have been contributed annually by deceased, by 52, the number of weeks in the year, and arrives at the figure $5.98. He then multiplies 15 by $5.98 and divides by $46.16, and reaches the figure $1.94, the actual amount which it is claimed Mrs. Chauvin is entitled to recover.

We have followed counsel’s mathematics . with difficulty and not without some misgiving concerning our complete comprehension. If the compensation law contained a stipulation to the effect that the basis of compensation to be ©aid dependents of deceased workmen should be the actual amount of profit which such dependents derived from the contribution of the workmen, the argument of counsel and his mathematical deductions would have much force. But we find no such provision in the law, which, as it is written, is based upon the amount contributed to the dependents. Mrs. Chauvin received from her son, Louis, $120 per month. • If she had applied that sum for her own maintenance exclusively, there could have been no doubt that it should be the basis for the calculation of the fractional proportion of his earnings which she should receive. The difficulty arises from the fact that Mrs. Chauvin was the head of a household in which there were some eight persons supported by the contributions of her three sons. In other words, all of her children who were earning any money gave» what they could toward the maintenance of the family home. Taking the first item, which it is claimed should be deducted — $360 a year ©aid to the homestead by Mrs. Chauvin — we believe this sum should be ignored, whether the principle of- defendant’s position be admitted or not, because the home, for the payment of which these monthly sums were given the homestead, belonged to the deceased, Louis, and in addition to the sum he gave monthly, he also provided a home for the family, the rent of which must at least have equalled the amount paid the homestead. As to the insurance premium of $143.76, it appears that this premium was paid for a life insurance policy in which Mrs. Chauvin was named as beneficiary and from which she collected the face value after her son’s death. Under the circumstances she benefited by the policy for which this expense was incurred. The same would also apply to the 50 cents a week, or $26 a year paid the community burial service. As to the minor son and major daughters living with Mrs. Chauvin, one of the daughters, by helping her mother with the household in a family of that size, must certainly have earned her way,.' and as to the other daughter and the son, the daughter being an invalid and the son a minor, the mother was under an obligation to maintain them. Counsel concedes that such would be the case if the children were minors, but. says that no obligation rests upon parents to maintain their major children. The following articles of the Civil Code are of interest:

“Art. 227. Fathers and mothers, by the very act of marrying, contract together the obligation of supporting, maintaining and educating' their children.
“Art. 229. Children are bound to maintain their father and mother, and other ascendants who are in need; and the relatives in the direct ascending line are likewise bound to maintain their needy descendants, this obligation being reciprocal.-
“They are also bound to render reciprocally all the services which their situation can require, if they should become insane.”

Mrs. Chauvin was under a legal obligation to maintain the members of her household, her children, who did not contribute to the establishment.

In the case of Boudreaux v. Myles Salt Co., 11 La. App. 480, 123 So. 907, 908, it was held that no deduction should be made in calculating compensation due a father because of his support of his minor children out of the fund contributed by the deceased son; the father being under a legal obligation to support his minor children. See, also, Heinzelman v. Board of Commissioners, 149 La. 221, 88 So. 798. In the case of In re Peters, 65 Ind. App. 174, 116 N. E. 848 (1917), the appellate court of Indiana, where the compensation law with respect to partial dependency is very similar to our own, the compensation to be paid in such cases being “in the same proportion to the weekly compensation for persons wholly dependent as the amount contributed by the deceased employee to the partial dependent bears to his annual earnings at the time of injury,” held that where a father maintained the family out of a common fund, no deduction should be made for the maintenance of his deceased son in determining the amount contributed to his father, and said:

“It is contended that a proper inquiry to be made, where a parent makes application for compensation by reason of being deprived of contributions from the earnings of a minor son, is whether such son was a financial asset to such parent; that the mere fact that the son’s earnings entered into the common family fund is not material, unless those earnings exceeded the cost of his maintenance. This contention finds support in certain cases under the English Workmen’s Compensation Act, where it is provided’ that the compensation shall be ‘proportionate to the injury to the said dependents,’ but it has not met with approval in this country under acts similar to the one by which we are governed, *******
“It might be contended that it would be unjust to allow compensation to a dependent father, based on the earnings contributed by a minor son, where the father supports such son, without deducting the cost of such support. But in view of the fact that the act in question does not purport to provide a method of determining the actual loss sustained by such father, and require full' compensation for such loss, but only assumes to ■ fix an arbitrary amount that shall be paid such father as compensation, based on such son’s annual earnings and contributions therefrom to such dependent father, it is manifest there is no basis for such contention. There is no provision in the act for any such deduction, and no language from which such requirement can' be inferred. Hence, we conclude, both on reason . and authority that the cost of the maintenance of a contributing minor son should not be considered in determining the amount of compensation to which a dependent father is entitled.”

. In People’s Hardware Co. v. Croke, 66 Ind. App. 340, 118 N. E. 314, 315 (1918), the same court, in considering a similar situation where a mother in charge of a common fund maintained the household, disposed of the contention that certain deductions should be made on that account in the following words:

“The facts show that all the wages of the deceased were placed in the common fund. Such being the case, the basis of the award was not changed by the fact that he (the deceased), as well as other members of the family, received support from the common fund.”

In Clingan et al. v. Carthage Ice & Cold Storage Co. et al. (Mo. App.) 25 S. W. (2d) 1084, 1085, decided February 17, 1930, the court, in considering the question of deductions for maintenance of a deceased minor on account of the expense of his board and lodging, said:

“Suffice it to say that our Workmen’s Compensation Act makes no provision for such a reduction. It merely provides a basis of computation by which to determine the amount to be paid, and since no provision is made for any reduction on account of being relieved of the further support of the deceased minor, it is apparent to us that none was. intended.”

See, also, Dembinski’s Case, 231 Mass. 261, 120 N. E. 856.

But, as we have said, the basis for determination of the extent of partial dependency is the amount contributed to the dependent — in this case the mother — and not the profit or the net amount which she derives from her son after allowances for expenses in connection with his living or otherwise. Our law, like the Indiana and Missouri law, makes no provision for any deduction, nor does the law make any inquiry as to the manner in which the dependent spends the contribution. If, for example, the mother in this case had obtained the $120 a month from her son and, refusing to recognize any parental responsibility for the care and maintenance of her family, used the money entirely for her own selfish purposes, it would hardly be argued that there should be any deduction on that account in computing the amount due her. More than that, if she had dissipated the funds supplied by her generous son in extravagant living, the situation would be the same, because the basis of compensation is the contribution of the deceased and not the manner in which it was disbursed. The law, for reasons which have been often stated, is designed to make up, to the extent mentioned in the act, the income derived from the deceased wage-earner, and does not concern itself with the manner in which the dependent expended the funds contributed. Our conclusion is that the basis of computing the compensation due plaintiff is the full amount of his weekly contribution.

But defendant says plaintiff is estopped by judicial admissions in her petition bearing her affidavit to the effect “that at the time of his death, petitioners (the mother and her two daughters) were partially dependent upon deceased for support,” and that “the deceased, prior to. his death, was contributing to the support of your petitioners the sum of $120 per month out of his wages of $200 per month.” Peytral v. Lacourage, 1 Orleans App. 38; Succession of Hostetter, 128 La. 468, 54 So. 961. The alleged effect of these allegations, it is claimed, is to estop Mrs. Chauvin from claiming more than $40, or one-third of the total of $120 which is shown to have been given her each month. In the first place, the petition does not allege that Louis Chauvin contributed the sum of $120 per month in equal proportions, but, in any event, the principle of judicial estoppel has no application here, for the reasons given by Chief Justice Provosty in Parley v. Prost-Johnson Lumber Co., 133 La. 497, 63 So. 122, L.R.A. 1915A, 200 Ann. Cas. 1915C, 717, and repeated in Maddox v. Robbert, 158 La. 394, 104 So. 183, 185, to the effect that “judicial allegations operate as estoppels only when they have been acted on by the party invoking them as such.” Here the original claim for compensation on behalf of the mother and the two daughters, sisters of the deceased, was abandoned upon the trial of the case after the error of counsel’s position in regard thereto had been pointed out by the exception of no cause of action. There was no resulting disadvantage to defendant, nor was the conduct of the defendant in any way influenced thereby. In an excerpt from the Parley case found in Maddox v. Robbert, the following expression of the law, as stated by Greenleaf, is found:

“Admissions which have been acted upon by others are conclusive against the party making them, in all cases between him and the person whose conduct he had thus influenced.”

The plea of estoppel is not well founded.

The plaintiff received from her deceased son $120 per month, or $1,440 a year. Dividing this amount by the figure 52, the number of weeks in the year, we have $27.69 as the amount received each week by Mrs. Chauvin. Dividing $2,400, the total yearly salary of the deceased, by 52, we have $46.15, his weekly wage. If Mrs. Chauvin were totally dependent she would receive 32% .per cent of $46.15, the weekly wage, or $15. Being partially dependent, she is entitled to only a proportionate amount. Mrs. Chauvin should receive a sum equal to “the same proportion of the weekly, payments for the benefit of persons wholly dependent as the amount contributed by the employee to such partial dependents in the year prior to his death bears to the earnings of the deceased at the time of the accident.” Chauvin’s weekly contribution of $27.69 is 60 per cent of $46.16, his total weekly wage. Consequently, ¡plaintiff is entitled to 60 per cent of $15, or $9 per week for 300 weeks.

For the reasons assigned the judgment appealed from is amended by increasing the sum awarded plaintiff from $3 a week to $9 a week for 300 weeks, and, as thus amended, it is affirmed.

JANVIER, J.,

concurring. I believe that there should be deducted from the weekly prior contributions made by the deceased son a sum to represent the value of his own board and lodging. However, since the deceased had lived in his mother’s home only a small portion of the time there should be deducted so inconsequential an amount that no substantial reduction would result in this particular case, and I complain only of the establishment of the principle that where a son pays to his mother a regular amount each week or each month, and lives with his mother, the whole sum' should be considered as a contribution to her. Part of the amount represents payment for his board and lodging and not contribution.

I concur in the decree.