author: WESTERFIELD, J.

text:
    No. 9783
    Orleans
    USHER v. RIETH
    (May 23, 1927. Opinion and Decree.)
    (June 29, 1927. Rehearing Refused.)

      (Syllabus by the Court)
    1. Louisiana Digest — Builders and Buildings — Par. 18, 30.
    In a suit, by a contractor, for the value of extra work, in the sum of $245.17, where it appears that shortly after the completion of the work only $127.80 was demanded by plaintiff for the extra work, the lesser sum will he accepted as the limit of the amount due plaintiff unless it affirmatively appears that the smaller amount was asked by way of compromise only.
    Appeal from Civil District Court, Division “D”. Hon. Porter Parker, Judge.
    Action by Anthony Usher against Frank Rieth, Jr.
    There was judgment for plaintiff and defendant appealed.
    Judgment amended and affirmed.
    Wm. H. Byrnes, Wm. A. Greer, of New Orleans, attorneys for plaintiff, appellee.
    Woodville & Woodville, of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

This suit involves $245.17. It was filed October 7, 1912, and after lingering twelve years in the District Court reached this court on appeal September 9, 1924. However, both parties to the suit are alive and well (the record indicates nothing to the contrary) and there is no reason to suppose the judicial marathon is approaching the end.

Plaintiff is a building contractor, and his claim is based on certain alleged extras, in connection with the execution of a contract he had with defendant for remodeling of two buildings owned by defendant.

Defendant does not deny that the work was done, nor, with a trifling exception, that it was extra work. He disputes the sum demanded as unreasonable and pleads payment of the greater part of plaintiff’s demand, admitting only $30.40 to be due him.

There is much testimony bearing upon the reasonableness of the items making up the bill of extras, which range from fifty cents to eighty-five dollars. There is also much discrepancy between the claims of payment made by defendant and the admission of plaintiff. We find in the record, however, a letter dated April 26, 1912, writetn by Mr. David Rosenberg, an attorney, admittedly representing plaintiff, to defendant, in which letter plaintiff’s claim is put at $127.80 and immediate payment" demanded “before the end of the month”, otherwise “I am to enter suit against you for it with interest and costs”. At the time this letter was written plaintiff had completed all the work for which he demands payment in this suit. Enclosed in the letter was an itemized bill showing how the $127.80 was arrived at. Plaintiff' says that this was a compromise offer, but there is nothing in the record to support this statement. On the contrary, it is very unlikely that his attorney would have failed to state in his letter demanding payment that the sum demanded would be accepted in compromise only. The letter makes no mention of compromise and the itemized bill accompanying it suggests that it was not a compromise offer.

We will accept the amount of this bill as the sum due plaintiff and will allow a credit of $25.00 to defendant. •

This credit results from a receipt offered in evidence by defendant for that amount signed by plaintiff. Plaintiff admits receiving the money but says it was a loan made to defendant for the purpose of paying a negro epiployed by defendant to do some paving in a garage owned by defendant. His testimony is not convincing. In the fii’st place the receipt reads “for garage in Berlin and Willow” and one of the items sued for is for work done on garage on Berlin and Willow Streets.

Plaintiff’s explanation that by the wor'ds, “for garage” (the receipt was written by plaintiff), he referred to the fact that the negro was working for the garage puts too much strain on our credulity.

For the reasons assigned the judgment appealed from will be amended by reducing the amount accorded plaintiff from $245.17 to $102.80, and as thus amended it is affirmed, appellee to. pay costs of this appeal.


source: Caselaw Access Project

license: Public Domain

text:
    No. 10,064
    Orleans
    CONNELL v. BERNHARDT PAINT CO.
    (October 18, 1926. Opinion and Decree.)
    (November 2, 1926. Rehearing Refused.)
    (April 11, 1927. Judgment Affirmed by Supreme Court on Writ of Certiorari and Review.)

      (Syllabus by the Court)

    1. Louisiana Digest — Sheriffs and Constables — Par. 35, 38, 49 — Execution—Par. 199.
    A constable who, in execution of a writ of fi fa, seizes the property of a third, person, is liable in damages, in solido, with the judgment creditor.
    Appeal from Civil District Court, Division “E”. Hon. William H. Byrnes, Jr., Judge.
    Action by John P. J. Connell against David Bernhardt Paint Company, tLd.
    There was judgment for plaintiff and defendants appealed.
    Judgment affirmed.
   WESTERFIELD, J.

Plaintiff sues the constable of the First City Court and David Bernhardt Paint Company, Ltd., in solido, in the sum of $1500.00, as damages, alleged to he due on account of the illegal seizure of plaintiff’s property.

There was judgment below in plaintiff’s favor for $200.00. Defendants have appealed, and plaintiff asks an increase in the award.

The illegality of the seizure is admitted. The only question for consideration is the amount due plaintiff. Defendants insist that the award should be nominal. They contend that their action was without malice and with probable cause and no serious injury resulted therefrom. We are referred to the following authorities:

“Where judgment creditor in execution of his judgment causes the property of a third person to be seized under the mistaken idea that it belonged to the judgment debtor, but there is no malice shown and no serious injury is' inflicted by the seizure, the court will not allow more than actual damages.”

Kent vs. Keyman, 7 Orl. App. 399.

“Where no serious injury is shown to have been sustained by the plaintiff, and defendant acted without malice, the damages will be nominal only.”

Presas vs. Lanata, 11 Robinson 288.

“In no event can vindictive or exemplary damages be recovered, when defendants acted without malice and with probable cause. The measure of damages in such a case is the amount of the actual loss proved to have been the direct and approximate result of the attachment.”

Byrne & Co. vs. Gardner & Co., 33 La. Ann. 6.

The facts in the cases cited bear little resemblance to the facts in the case at bar. Plaintiff in the instant case is entitled to substantial damages.

The defendant, David Bernhardt Paint Company, Inc., obtained a judgment and caused a fi fa to issue against John R. Connell. In execution of the fi fa, the constable, acting upon the instruction of the judgment creditor, seized the household furniture contained in the premises occupied by the judgment debtor. ' The furniture belonged to the debtor’s father, plaintiff herein, whose name is John P. J. Connell. The similarity of the names of father and son and the fact that the furniture was found in the premises occupied by the debtor are circumstances which, though they do not excuse, must be considered in mitigation of the conduct of the defendants. The sheriff, however, must know that the property seized is the property of his debtor and he takes the property of third persons at his peril.

“An action lies against a sheriff who seizes goods other than those of the defendant in execution.”

Peet vs. Morgan, 6 Martin (N. S.) 137.

“The plea of the sheriff cannot avail him. He was authorized to seize the property of defendant in execution, and become a trespasser by seizing that of a third person. hTe instruction of the plaintiff affords him no protection.”
Yocum vs. Bullett, 6 Mart. (N. S.) 324.
“A sheriff must, at his peril, avoid seizing, under execution, any other property than that of the defendant. It is not enough that he should presume, even on strong grounds, that the property is the defendant’s; he must know it. A person whose property is illegally taken by the sheriff, as belonging to the defendant in execution, is not' bound on receiving information of the fact, to give any notice to the sheriff. He may at once seek relief by a suit, unless he wishes to avoid costs by making an amicable demand.” Duperron vs. Wickle, 4 Rob. 39.

Moreover, defendants were informed that the furniture belonged to plaintiff before the seizure was effected and upon the first call of the constable at the premises by plaintiff’s daughter (plaintiff being absent), who also stated that the plaitniff’s son, the judgment debtor, owned no property on the premises. Ignoring this information the constable, after consulting with the counsel of the judgment creditor, co-defendant herein, returned to the house with a wagon with the intention of carting off the household effects, and upon being refused admittance obtained an order permitting forcible entry, and, with a police officer, effected an entrance and removed the furniture.

We are referred to Perry vs. Junius Hart Piano House, 10 Orl. App. 170, where $400.00 w\as allowed for the illegal seizure of a piano; to Boniel vs. Black, 44 La. Ann. 514, 10 South. 869, where $500.00 was allowed for the illegal seizure of furniture by a landlord; to William Van Wren vs. Hugh Flynn, 34 La. Ann. 1158, where $750.00 was allowed for the improper seizure of household furniture.

We are of opinion that special circumstances distinguish all of the cited cases from the case at bar and have concluded to affirm the judgment of the lower court awarding plaintiff $200.00, and it is so ordered.


author: WESTBRFIELD, J.

text:
    No. 10,906
    Orleans
    FLICK v. NEW ORLEANS ITEM-TRIBUNE
    (June 20, 1927. Opinion and Decree.)
    (June 20, 1927. Rehearing Refused.)
    (July 5, 1927. Second Petition, for Rehearing not Considered.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Automobiles—Par. 4, 3.
    In an intersectional collision, 'between a Ford automobile and a motor truck, where the front end of the Ford strikes the rear end of the truck, a presumption of negligence on the ¡part of the Ford driver arises, and this presumption amounts to proof, when it further appears that the truck had the right of way and the driver of the Ford failed to look in the direction of the truck, before entering the intersection, or looking, did not see the truck until it struck his Ford.
    Appeal from First City Court, Sec. “A.” Hon. W. Alexander Bahns, Judge.
    Action by Mrs. Jacob Flick against New Orleans Item-Tribune.
    There was judgment for plaintiff and defendant appealed.
    Judgmbnt affirmed.
    John J. Wingrave, of New Orleans, attorney for plaintiff, appellee.
    Thos. J. Dobbins, of New Orleans, attorney for defendant, appellant.
   WESTBRFIELD, J.

Plaintiff appeals from a judgment denying her claim for damages to her Ford automobile, resulting from an intersectional collision with a motor truck, operated by defendant.

We believe, with the trial judge, that the accident was caused by plaintiff’s fault. Her car, at the time of the collision, was being driven by her son, who was ¡proceeding up North Prieur Street toward Canal Street. The truck of defendant was travelling out St. Philip Street toward the river. The cars collided in the intersection. The front end of the Ford struck the truck, near its rear end, which, in itself, is suggestive of fault. In addition the driver of the Ford says that he did not see the truck until it struck him, indicating a failure to look, involving further probability of negligence, and, finally, the truck which was approaching from plaintiff’s right, had the right of way under the city ordinance, which is in evidence.

The judgment appealed from is affirmed.

ON APPLICATION FOR. REHEARING

PER CURIAM:

The trial court rendered judgment, originally, for defendant, and, subsequently, after granting a new trial, for plaintiff.

As our opinion indicates, we concluded the court was right in the first instance.

In preparing our decree, we, inadvertantly affirmed the judgment appealed from, which, of course, was the last judgment, with which we were not in accord.

Under the circumstances! our former decree will be amended so as to read “the judgment appealed from is reversed and it is now ordered that there be judgment for defendant dismissing plaintiff’s demand at her cost in both courts.


text:
    No. 9779
    Orleans
    MIDDLETON v. HOWELL
    (June 6, 1927. Opinion and Decree.)
    (July 5, 1927. Rehearing Refused.)

      (Syllabus by the Court.)

      1 Louisiana Digest — Attachment—Par. 95, 96, 101.
    The right of a defendant to move to dissolve a writ of attachment does not depend upon the seizure of property under it belonging to him. It is of no consequence that the only property seized under the attachment belongs to a third person. The right of plaintiff to resort to a writ of attachment is conditioned -upon the allegation and proof of one of the grounds mentioned in the Code of Practice as entitling him to the writ. Whenever a defendant successfully challenges the truth of the allegations upon which ■ the writ issued, the writ should be dissolved, whether any property of defendant or of any one else, is seized under it.
    Appeal from Civil District Court, Div. “E.” Hon. Wm. H. Byrnes, Judge.
    Action by "Mrs. G. W. Middleton against Floyd Howell.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Paul M. Maloney, of New Orleans, attorney for plaintiff, appellant.
    Marx & Levy, W. O. Hart, of New Orleans, attorneys for defendant, appellee.
   WESTERFIELD, J.

This is an appeal from a judgment dissolving an attachment. The parties raised a number of questions which, happily, are not now in controversy. As plaintiff puts it, “the only point at issue in this case is the right of the lower court to refuse to maintain an attachment, where defendant disavows an interest in the property attached.”

It seems that an automobile described as an “Overland Baby Grand Five Passenger Touring Car,” was seized under the writ. The Overland Baby Grand was in defendant’s possession, but under circumstances which admittedly conferred no title in defendant (a common law sale with retention of title effected in Mississippi). No other property was seized and plaintiff contends that in this situation defendant has no interest to move to dissolve the attachment.

Our brother below thought otherwise, as the following excerpt from his written reasons for judgment demonstrates.

“The Court believes .that it is not necessary to determine the question of ownership of property seized under the writ in order to decide whether or not writ was properly issued. The writ itself and the release of property seized under it are separate and distinct propositions. A writ may be set aside even though no property was seized. As long as the writ stands in full force and effect, additional property, if this debtor possess any, may be seized. Hence the debtor has always an interest in dissolving the writ. If property has ben seized under the writ, no matter to whom it belongs, the effect of dissolving the writ is to release the property.”

Attachments are dissolved because the allegations upon, which they issue are found to be untrue, or unproven when put at issue by the rule to dissolve. We are referred to no decision in point by either side. However, the proposition seems so clear to us that we deem it unnecessary to conduct an independent examination of our jurisprudence.

It is quite unnecessary that any property of a defendant in attachment pro-ceedings be seized in order to confer the privilege of having the attachment dissolved by successfully challenging the truth of the allegations of plaintiff upon which alone the writ issued. An attachment is a dragnet, which authorizes the Sheriff as long as the writ is in his hands to seize upon any property of defendant (statutory exemptions of course excepted). The test of the propriety of the issuance of the writ is not the seizure of .property of defendant, vel non, but the truth or falsity of the allegations made by plain-

The judgment appealed from is affirmed, tiff as grounds for its issuance.


author: WEBB, J.

text:
    No. 2919
    Second Circuit
    PALMETTO OIL CO. v. BETHANY OIL & GAS CO.
    (June 28, 1927. Opinion and Decree.)
    (July 9, 1927. Application for Rehearing.)
    (July 25, 1927. Rehearing Refused.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Obligations Par. 99, 100 — Mineral Rights, Par. 7.
    An agreement made in regard to an oil lease giving the lessor certain options because of pending litigation involving the title to the land under the lease is not a suspensive condition nor is the obligation to transfer the lease in suspense during the pendency of the litigation.
    (See definition of Suspensive Condition in Kent vs. Davis Bros. Lumber Co., 122 La. 1046, 48 So. 451. Editor’s Note.)
    2. Louisiana Digest — Mineral Rights, Par. 5, 10.
    A lessee in accepting the asignment of an oil lease with knowledge of the fact that the title to the property was involved in litigation was bound to maintain the lease in effect by paying rentals and could not permit the lease to lapse for non-payment of rentals and thereby have itself relieved of the obligation ’ to pay the purchase price.
    3. Louisiana Digest — Mineral Rights, Par. 7, 11.
    Where, because of pending litigation, the lessee gives the lessor in an oil lease certain options dependent upon the outcome of the litigation, the duty of pressing the litigation is upon the lessor holding title, and the lessor, who makes no effort to press the litigation cannot avoid liability on the lease by reason of his default.
    4.Louisiana Digest — Mineral Rights, Par. 11, 12.
    The lessee of an oil lease under which the title to the land is in litigation has an equitable right to suspend the term of lease but, where a special agreement has been made in regard to the pending litigation, he has not the right to rescind the lease.
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo. Hon. J. H. Stephens, Judge.
    Action by Palmetto Oil Company against Bethany Oil & Gas Company.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    John B. Files, of Shreveport, attorney for plaintiff, appellee.
    Wilkinson, Lewis & Wilkinson, of Shreveport, attorneys for defendant, appellant.
   WEBB, J.

In this action Palmetto Oil Company obtained judgment against the defendant, Bethany Oil & Gas Company, in the sum of two thousand dollars, from which judgment defendant appeals.

The facts upon which plaintiff based its action are admitted by the parties and are in substance as follows:

The Palmetto Oil Company having acquired from various individuals oil and gas leases covering about four hundred and fifty acres of land in .the state of Texas, assigned the same, insofar as the gas rights were affected, to g. V. Oeland, and, after the assignment to O'eland, it entered into negotiations with the Bethany Oil & Gas Company, a corporation organized under the laws of this state and domiciled in Caddo parish, to assign to the latter the leases, insofar as the oil rights were affected, and to have S. V. Oeland assign them, insofar as the gas rights were affected, for a consideration of six thousand dollars; but, pending the negotiations, it was" discovered that the title of plaintiff’s lessors as to an undivided interest in one of the tracts of eighty acres covered by the leases to be assigned was involved in a suit pending in the state of Texas (in which neither the Palmetto Oil Company nor S. Y. Oeland were parties) and, in view of this situation, the Palmetto Oil Company wrote defendant on March 4th, 1921, in which it referred to the pending litigation and with reference to which it declared:

“Now, therefore, we hereby stipulate and agree to asign to you witli warranty as to the purchase price the oil and gas leases now held by us insofar as it covers the oil rights thereunder, and to guarantee to you the assignment of the gas rights on said lands now held by S. V. Oeland on the following terms, to-wit:
“You to pay two thousand ($2,000.00) dollars to us upon the termination of the litigation favorable to our rights. In the event the litigation is. adverse to our rights, then it is optional with you to accept the assignment and pay the consideration above mentioned. In the event the litigation is partly adverse to our rights anct affects only a part of our interest to. the land, it is optional with you to take an assignment of the part not affected by said litigation and to pay us for same pro rata; you to pay the consideration and accept the assignment as soon as the litigation is terminated favorable to. our rights in the court of Panola county in which the action is now being brought.
“In the event the litigation is terminated adversely to our rights, or partly adverse to our rights; then within five days thereafter you are to exercise your option to take the assignment, or a partial assignment, to the lands not affected, or reject same.”

The Palmetto Oil Company and S. V. Oeland assigned the various leases, including that covering the land involved in litigation, to the Bethany Oil & Gas Company, which assignments were recorded on March 25th, 1921, in the county where the lands were situated.

On November 17th, 1923, plaintiff obtained from the parties contesting the title to the lands leased to it a ratification and tendered same to defendant and demanded that defendant pay it the amount of two thousand dollars, and defendant refusing, plaintiff filed a suit to recover judgment for the amount claimed, which suit was dismissed on an exception of no cause of action, and thus the matter stood until about June 4th, 1924, when defendant wrote plaintiff to the effect that it had delayed having the litigation terminated, stating:

“You may accept this letter as a formal legal demand to terminate this litigation favorably to you within thirty days from this date. Otherwise, we shall consider the arrangement about this $2,000.00 forfeited altogether and will decline to pay .you the $2,000.00. Your failure to terminate this litigation within thirty days from this date will put you in legal default, and that is the purpose of this letter.”

To which plaintiff answered dissenting from the implied construction placed by defendant on the agreement.

The litigation involving the title terminated in favor of the lessors of plaintiff in September, 1925, and this suit was filed. June 1st, 1926.

It was also admitted that the lease which was affected by the litigation involving the title of plaintiff’s lessors had decreased in value since July 3rd, 1924, and that plaintiff had refused to accept a return or reassignment of the lease covering the land, involved in the litigation in lieu of two thousand dollars, and it was further admitted that the lease covering the lands involved in the litigation would have expired by limitation at the date of the termination of the litigation, but that it had in fact been kept alive by reason of developments on other lands covered by leases which had been assigned to defendant by plaintiff at the same time that the lease involved in litigation had been assigned, and evidence was introduced showing that plaintiff had insisted on the attorneys representing its lessors in the litigation involving the title to try the cause, but that the attorneys not representing plaintiff ignored the request and acted as they deemed best for the interest of the persons whom they represented, and let the matter take its course, and court being held in the county where the litigation was pending only twice a year the cause was not tried until the date stated above.

The defense originally interposed and insisted upon here is that the agreement contemplated that the litigation involving the title to the property covered by the lease would be terminated in a reasonable time, and in support of that contention the defendant argues that the nature of the lease or object of the contract was not a permanent thing and under the admission that it would have expired by limitation (in default of drilling operations on the lands covered by the lease) prior to the date of the ■ actual termination of the litigation, it must be held that a reasonable time was contemplated by the parties in which the litigation should terminate, although the agreement did not fix any time, and that the litigation having pended for four years, the defendant had the right to rescind the agreement by placing plaintiff in default.

In other words, the defendant suggests that the stipulation was in its nature a suspensive condition and that it must be presumed that the parties contemplated the event would happen before the object of the agreement ceased to exist; and while the position appears to be plausible, yet we do not think that under the facts admitted the stipulation should be considered as a suspensive condition or that the obligation to transfer the lease was in suspense, as the admitted fact is that the lease was transferred.

And from that point of view the stipulation, we think, should be regarded as merely an agreement between the parties that in event the fingí termination of the litigation affected the title to the property covered by the lease assigned, together with other leases, for a consideration of six thousand dollars, that a certain proportion of the purchase price would be withheld.

As we view the transaction, the defendant, in accepting the assignment of the lease with knowledge of the fact that the title to the property covered by the lease was involved in litigation, was bound to maintain the lease in effect, at least insofar as the lease required the payment of rentals, and defendant could not have permitted the lease to lapse for such cause and thus have relieved itself of the obligation to pay the purchase price; and the record title to. the lease having been placed in defendant and the stipulation not providing as to who should press the litigation, we think the plaintiff holding the title was in better position to do so, and if it was in the contemplation of the parties that the litigation was to be pressed to an early conclusion, and that the object of the agreement should have ceased to exist by reason of failure to press the litigation, defendant, who does not pretend .to have attempted to have the litigation- terminated could not have complained or have avoided liability by reason of its default.

The lessors in the lease which was assigned', warranted their title to the property covered by the lease, and bound themselves to defend same, and if it be true that the lessee could not be held under such circumstances to develop the lease, we think that as against the lessors the lessee should have an equitable right to suspend the term of the lease (Thornton, 4th Ed. No. 906) and considering the agreement of the parties which provides that defendant should have the option of taking an assignment of the lease insofar as' it covered that ©art of the land not affected by the litigation (which we assume to be the interest of the lessors) and considering the stipulation from this point of view, it cannot be said the agreement contemplated that the suit would be pressed to an early termination or in default thereof that the option granted to defendant to acquire the lease insofar as it was good as to the interests of the lessors as finally fixed by the termination of the litigation would expire before that time, and if the agreement was to remain in effect as to the defendant until the termination of the litigation, it must have been contemplated that it would remain in effect as to the plaintiff until such time.

Without considering the effect of the ratification of the lease by the parties who were contesting the title of the original lessors to the land covered by the lease, which was obtained by plaintiff long prior to the termination of the litigation involving the title, which plaintiff also urges in support of its right to recover, as that question seems to have been concluded in a former suit, we are of the opinion that the plaintiff is entitled tq recover, and the judgment is affirmed;.


text:
    No. 2948
    Second Circuit
    COLE v. MURRAY
    (June 28, 1927. Opinion and Decree.)

      (Syllabus by the Editor)
    1. Louisiana Digest — Landlord and Tenant, Par. 96, 97, 12.
    The law under Articles 284-285 of the Code of Practice authorizes a writ of provisional seizure only in cases where the law grants a privilege. Therefore, where the petition and evidence fail to show that the plaintiff had any privilege on the crops seized, the writ is properly dissolved.
    2. Louisiana Digest — Obligations, Par. 172, 180 — Damages, Par. 85.
    Where, after an agreement of sale had been made and an abstract and deed were tendered with the demand that the purchaser pay the price, his refusal is sufficient to admit evidence to show a breach of contract and give rise to a demand for damages.
    3. Louisiana Digest — Damages, Par. 91— Obligations, Par. 182.
    In an action to recover damages for the breach of a verbal promise of sale, it is essential that the contract be established by legal evidence.
    4. Louisiana Digest — Evidence, Par. 129.
    Where the promisee has been placed in possession in pursuance to a verbal promise of sale, and the proof is dependent upon the confession of the parties, the answers of the party interrogated are conclusive where there is not any written evidence to contradict or disprove the answers given.

      5. Louisiana Digest — Evidence, Par. 129, 216.
    Where the defendant, in his answers to interrogatories, sets up a different contract from that alleged, in that other lands had been agreed to be sold than those alleged in the petition, the proof of the verbal contract being dependent upon the answers of defendant to the interrogatories, parol evidence is inadmissible to disprove the answers and the contract is proven.
    6. Louisiana Digest — Damages, Par. 88, 91.
    Where the evidence as to damages flowing from the breach of an alleged contract are vague and uncertain they are properly rejected by the trial court as not having been proven.
    Appeal from the Third Judicial District Court of Louisiana, Parish of Union. Hon. S. D. Pearce, Judge.
    Action by I. A. Cole, individually and as tutor, against Arthur Murray.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    S. L. Digby, of Farmerville, attorney for plaintiff, appellant.
    G. H. Holloway, of Farmerville, attorney for defendant, appellee.
   WEBB, J.

In this action the plaintiff, I. A. Cole, individually and as tutor of Errye Pryor, S. L. Reeves, R. L. Reeves, Mrs. Ella Edwards, Y. H. Cole, Helen Pryor, A J. Pryor, and Ella Faye Daniels and R. B. Daniels, represented by their tutor, C. B. Edwards, allege that, on or about the latter part of November, or first of December, 1925, they entered into a verbal contract with Arthur Murray, defendant, under which they agreed to sell to defendant and he agreed to purchase certain described lands for the price of two thousand dollars; that they had agreed to furnish an abstract of the title and to give defendant a good, valid title under deed, and that pending the furnishing of the abstract and giving the deed defendant had been placed in possession of the property and had remained thereon until the date of suit in August, 1926, and in the meantime had cultivated a crop thereon and had cut and sold some timber from the property; and plaintiffs annexed to their petition interrogatories on facts and articles in which defendant is requested to state whether or not he had agreed to purchase the property, the nature of the contract, and also as to whether or not he had entered into possession, and plaintiffs obtained an order for defendant to answer the interrogatories in open court.

Plaintiffs further alleged that they had procured at an expense of seventy-five dollars an abstract covering the property which shows their title is good and valid, and had presented same to defendant, and had also tendered to defendant a deed conveying the title, and had demanded of defendant to accept the title and pay the price; that defendant had refused to accept the deed and pay the price and had breached the contract, and that they were entitled to recover from defendant damages in the sum of fifteen hundred and seventy-five dollars itemized as follows: Six hundred dollars for failure to comply with hip contract, seventy-five dollars for the cost of the abstract, eight hundred dollars for rent of the ^property, and one hundred dollars for timber cut and removed from the premises by defendant.

Plaintiffs further alleged that they had a lien and privilege on the crops to secure the rent, and obtained a writ of provisional seizure and prayed for judgment in accordance with their petition.

The crop was seized and the seizure was bonded by defendant and following defendant moved to dissolve the writ of pro» visional seizure on. various grounds among which, was that the petition failed to show a cause or right of action, and prayed for dissolution of the writ with damages.

The motion being referred to the merits, defendant, as to the main demand, excepted that the petition failed to state a cause or right of action, prematurity, and failure to put defendant in default, which exceptions being referred to the merits, defendant answered reiterating the exceptions and denying the allegations of the petition, with the exception that he admitted he was in possession of the property described in the petition but that he was ■ not in possession of all the property agreed to be sold, under condition that plaintiff would furnish an abstract showing a good and valid title to the property and that they would give him a good and valid deed.

He further alleged that the abstract furnished did not cover all of the property agreed to be purchased or all of the property described in the petition and that it was defective in that it did not contain certain judicial proceedings by which plaintiffs acquired title nor the tutorship proceedings under which the tutor to the minors were appointed, and, further, that the proceedings under which the minors were appointed were irregular, and setting up various defects in plaintiffs’ title, and that plaintiff had not made a legal tender and placed him ^jn default, and that the deed did not cover the property agreed to be sold.

He alleged that plaintiffs had violated their agreement, and reconvened for damages in the sum of six hundred dollars for violation of the contract, and reiterated his demand for the dissolution of the writ of provisional seizure and for damages in the amount set forth in the motion to dissolve and prayed for judgment accordingly. On trial the writ of provisional seizure was dissolved and the demands of all parties were rejected, from which plaintiff alone appealed.

OPINION

The defendant did not answer the appeal and the judgment rejecting his reeonventional demand is final, leaving for consideration only the demands of plaintiffs and appellants who have not, however, filed a brief, and we are not advised of the grounds on which they contend the judgment should be reversed.

Considering first the exceptions, we are of the opinion that the allegations of the petition do not show that plaintiff had a privilege on the crop, but, on the other hand, accepting the allegations as true, it appears that plaintiffs did not have a privilege, and the writ of provisional seizure being authorized only in cases where the law grants a privilege (Arts. 284-285, C.P.), we are of the option the exception was good and should have been sustained. (Blancar vs. Davidson, 7 La. Ann. 654; Smith vs. Smith, 2 La. Ann. 447; Haughery vs. Lee, 17 La. Ann. 22, and authorities cited); and even considering the evidence offered on the trial it fails to show that plaintiffs had any privilege, and the writ of provisional seizure was properly dissolved.

The exception of no cause of action urged against the plaintiffs’ demands, as well as the exceptions of prematurity and failure to place defendant in default, were not improperly referred to the merits as the pleadings show the basis of the action was the alleged verbal promise of sale which could be proven only by the interrogatories propounded to defendant which, if answered in the affirmative, would establish the contract, and, the contract being established, the allegations of the petition as to plaintiffs haying furnished defendant with an abstract covering the property and having tendered to him a deed and demanded that he pay the price, and comply with the agreement, and his refusal to do so, were sufficient to admit evidence to show a breach of the contract and to give rise to the demand for damages.

When the cause was called for trial, however, and the interrogatories annexed to plaintiffs’ petition were propounded to defendant, he answered them in the -negative, and while we think that his answers should be considered' in connection with his pleadings, in which he set up that there was a promise to sell and agreement to purchase, yet the pleadings set up a different agreement from that alleged upon.

In an action to recover damages for the breach of a verbal promise of sale, it is essential that the contract be established by legal evidence. (Patterson vs. Bloss, 4 La. 374; Allison vs. Fox, 5 La. 457; Baudue vs. Conrey, 10 Rob. 466; Marionneaux vs. Edwards, 4 La. Ann. 103; Bradford vs. Cook, 4 La. Ann. 229; Anderson vs. Smith, 4 La. Ann. 525); and where the promissee has been placed in possession and the proof is dependent upon the confession of the parties, the answers of the party interrogated are conclusive where there is not any written evidence to contradict or disprove the answers given. (Sherman vs. Nehlig, 154 La. 25, 97 South 270; Rubenstein vs. Files, 146 La. 727, 84 South. 33, and authorities cited); and the only grounds upon which we conceive that the answers given by defendant should not be conclusive against plaintiffs’ action is that it might be contended his answers to the interrogatories were in conflict with the allegations of his answer, in that in his answer he alleged that there had been an agreement or promise of sale.

In the answer, however, as stated, the defendant set up a different contract or agreement of sale from that alleged upon, in that he claimed that other lands than that described in the petition had been agreed to be sold and transferred, and we do not think it could be said the answer of defendant admitted the contract alleged by plaintiff, and the proof of the contract being dependent upon the answers of defendant to the interrogatories, and parol evidence being inadmissible to disprove the answers to the interrogatories, the action of plaintiffs for damages for the breach of the contract fell when defendant answered the interrogatories denying the contract alleged upon.

The claim for rent, if it could be considered as the same as for the use and occupancy of the property, as well as the claim for timber cut and removed from the premises by defendant, may, however, be based upon other grounds than as damages flowing from the breach of the alleged contract; but as the evidence as to such claims is vague and uncertain, and as the pleadings clearly indicate the claim made for such items was for a breach of the contract, we .consider that the judgment rejecting plaintiffs’ demands as to such claims was correct. However,' we think that plaintiffs’ right to make a claim for the use and occupancy of the property and for the timber cut, destroyed or removed by defendant should not be concluded by the decree, and that their rights as to such items should be reserved, and that the judgment should be amended in that respect; and it js therefore ordered, adjudged and decreed that the judgment appealed from be amended so as to reserve to the plaintiffs the right to claim for the use and occupancy of the property, and for the timber cut, destroyed or removed, by defendant, and, as thus amended, the judgment appealed from is affirmed; plaintiffs to pay the costs of the appeal.


author: CLAIBORNE, J.

text:
    No. 9888
    Orleans
    GULF FINANCE AND SECURITIES CO. v. NATIONAL FIRE INSURANCE CO.
    (July 14, 1927. Opinion and Decree.)
    (August 1, 1927. Rehearing Refused.)
    (October 6, 1927. Writ of Certiorari and Review Denied by Supreme Court.)

      (Syllabus by the Court)

    1. Louisiana Digest — Insurance—Par. 33; Master and Servant — Par. 1.
    When an assured requests a friend to drive his car to a garage and leave it there, and neither the car nor the friend are seen or heard of afterwards, the insurance company against theft will be held liable.
    2. Louisiana Digest — Master and Servant —Par. 1.
    In such a case the friend will not be considered in the service or employment of the assured within the terms of the policy.
    Appeal from Civil District Court. Div. “C”. Hon. E. K. Skinner, Judge.
    Action by Gulf Finance and Securities Co. against National Fire Insurance Co. of Hartford, Connecticut.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    Spencer, Gidiere, Phelps and Dunbar, of New Orleans, attorneys for plaintiff, appellant.
    J. Zach Spearing, of New Orleans, attorney for defendant, appellee.
   OPINION

CLAIBORNE, J.

This is a suit for an amount of an insurance on a policy against theft.

The plaintiff alleged that on September 19th, 1922, the defendant issued to it an open policy against theft on various automobiles; that under, certificate No. 7388, under said open ¡policy, the defendant insured a Ford Motor Touring Car against “Theft” for a period of one year from May 18th, 1923, in favor of F. N. Lindley, mortgagor and owner, and the plaintiff herein, the Gulf Finance Securities Co., mortgagee, for the sum of $430; “that on or about August 23rd, 1923, at 3:30 p. m., the car in question was stolen from the corner of St. Charles avenue and - Julia street in the following manner: F. N. Lindley, the owner, becoming ill while downtown, directed a friend of his by the name of Wilson to take him to the Alberta Hotel in the car in question; that upon reaching the hotel, Lindley directed Wilson to drive the car to a garage and there leave it. Since that time neither the car nor Wilson has been seen, nor can either be located”; that .plaintiff’s interest in the policy, by virtue of the mortgage, is $430; which it claims from the defendant.

The defendant excepted that the petition disclosed no cause of action and that it was vague and indefinite.

The court maintained the exception and “plaintiff’s demand was rejected at his cost”.

The plaintiff has appealed.

The grounds of exception, as set forth in argument and brief, are: 1st, that plaintiff’s allegations disclose nothing more than a “disappearance” of the car or an “abandonment”, and do not show a “theft”; and 2nd, that the rider of the .policy excludes liability by any person in the household or in the insured’s service or employment.

1st: The distinction which the defendant attempts to establish between “theft and embezzlement” might succeed in a criminal prosecution, but in an ordinary suit or an insurance against “theft,” it is too subtle to succeed. There is nothing in the policy nor in the' books to sustain the contention. The policy does not exclude liability for “embezzlement eo nominee”. The policy must be interpreted in favor of the assured and against the insurer.

C. C. 1946 (1941): “The words of a con- \ tract are to be understood like those of a law, in the common and usual signification, without attending so much to grammatical rules, as to general and popular use.”

We entertain no doubt that after Wilson had failed to drive the car to the garage and to leave it there, or to return it to its owner, that Lindley and other laymen considered that Wilson had stolen the car. See 189 N. W. 794-176 S. W. 210; 204 N. Y. Supp. 465; 115 Atl. 596; 239 N. Y. 303; 146 N. E. 432; 10 Orl. App. 284.

2nd: Nor do we consider that Wilson was a person “in the household or in the insured’s service or employment”. Wilson was only a “friend” of Lindley ostensibly performing an act of kindness. The words “service” or “employment” in the policy apply to one working for a remuneration or compensation and not to one acting gratuitously as Wilson did in this case.

An interpretation of the policy favorable to the insured must be adopted. Mutual Life Insurance Co. vs. New, 125 La. 41; 51 So. 61; 136 U. S. 287.

The judgment is therefore reversed and the case is remanded to be tried in accordance with the views herein expressed. Defendant to pay costs of appeal and the costs of the District Court to await the final judgment.


author: JONES, J.

text:
    No. 10,432
    Orleans
    LANCASTER AND WALLACE, Receivers T. & P. RY., v. LOUISIANA CYPRESS LUMBER COMPANY
    (June 6, 1927. Opinion and Decree.)
    (July 14, 1927. Rehearing, Opinion and Decree.)
    (October 6, 1927. Writ of Certiorari and Review Denied by Supreme Court.)

      (.Syllabus by the Court)
    1. Louisiana Digest — Carriers of Passengers and Goods — Par. 154.
    When unaccepted shipment is sold by the carrier under Act 124 of 1890, as amended by Act 172 of 1916, demurrage can be claimed for only seventy days from date of arrival.
    Appeal from the Twenty-fourth Judicial District Court for the Parish of Jefferson. Hon. L. Robert Rivarde, Judge.
    Action by J. L. Lancaster and Charles L. Wallace, Receivers of the Texas and Pacific Railway Company, plaintiffs and appellees, against Louisiana Cypress Lumber Co., defendant and appellant.
    There was judgment for plaintiffs and defendant appealed.
    Judgment amended.
    Spencer, Gidiere, Phelps and Dunbar, of New Orleans, attorneys for plaintiff, appellee.
    Dart and Dart, L. C. Guidry, of New Orleans, attorneys for defendant, appellant.
   JONES, J.

In this suit plaintiff seeks to recover Five Hundred Forty-five and 69/100 ($545.69) Dollars, demurrage due on a carload of lumber shipped over plaintiffs’ lines from the mill of defendant at Harvey, Louisiana, to the Lafourche Levee Board at Magnolia Switch, Louisiana, which car was refused by the consignee.

Plaintiffs’ material allegations are as follows:

(1) Car was shipped on May 24, 1920, on bill of lading issued by plaintiffs to defendant.

(2) Shipment was received on May 27, 1920, consignees were notified on May 28th, and car placed for unloading May 29th at seven a. m.

(3) Levee Board refused to accept the shipment and shipper was immediately notified, but failed to give instructions as to disposition of car in spite of repeated efforts.

(4) Car remained on hand until October 30th, when it was sold by plaintiff in accordance with Act 124 of 1890, as amended by Act 172 of 1916.

(5) Demurrage began to run on the car forty-eight hours after placement at rate of Two Dollars per day for first four days and Five Dollars per day thereafter.

(6) The total demurrage and car

tax was Six Hundred Forty-one and 69/100 Dollars _________________________________$641.69

The proceeds of sale were Ninety-six Dollars _______________________________________ 96.00

$545.69

In its original answer defendant admitted the shipment, but denied indebtedness and in a supplemental answer defendant admitted that it had been notified on June 16th that the car had been refused and it had replied that price had been paid and it had no further interest. »

Defendant then averred that plaintiffs were estopped by their negligence from claiming damages for two reasons:

(1) Because plaintiffs had been guilty of negligence in not unloading and selling the lumber promptly and thus minimizing the damages.

(2) Because there were four Magnolia Switches in Louisiana and plaintiffs were negligent in sending car to the wrong place without demanding more specific instructions.

There was judgment for plaintiff and defendant has appealed.

There is no dispute about the -following facts.

On May 24/1920, defendant delivered to plaintiffs a carload of lumber. Defendant itself prepared the bill of lading and submitted same to plaintiffs’ agent at Harvey. This bill of lading specified as the destination of the shipment “Magnolia Switch, La.”, and gave the route as “T. & P. R. R.” The only instructions that plaintiffs’ agent had as to the destination of the shipment was the insertion in the bill of lading of the destination as “Magnolia Switch, State of Louisiana,” “Route T. & P. R. R.” It was admitted at the trial of the case in the District Court that there are in Louisiana four stations known as “Magnolia”; one on the line of the Texas & Pacific Railway in Assumption parish, one on the line of the Southern Pacific in Terrebonne parish, one on the line of the New Orleans & Lower Coast Railroad in Plaquemines, and one on the line of the Louisiana Southern in St. Bernard parish, all of which are prepay stations. This shipment was intended for the “Magnolia" on the line of the New Orleans & Lower Coast Railway but nothing was said to plaintiff’s agent in this regard. The only instructions the agent had were those shown on the bill of lading made out by defendant itself where the destination was given as “Magnolia Switch, State of Louisiana,” and the route, “T. & P. R. R.” Plaintiffs’ agent assumed .thát the shipment was intended for the station known as “Magnolia” on the line of the Texas & Pacific Railway. The shipment was accordingly forwarded and arrived at this destination on May 27, 1920; the consignee, Lafourche Levee Board, was notified hy plaintiffs on May 28, 1920, and the shipment was placed for unloading on or before 7 a. m. on May 29, 1920; the Lafourche Levee Board refused, however, to accept the shipment and failed to give instructions to plaintiffs for its disposition. On June 16, 1920, plaintiffs notified defendant that the shipment had been refused by the consignee. Defendant failed to give instructions for the disposition of the shipment, taking the position that the lumber belonged to the consignee and that it “had nothing further to do with it”.

The shipment remained on hand undisposed of until October 30, 1920, when, in compliance with the provision of Act 124 of 1890, as amended and re-enacted by Act 172 of 1916, it was sold by plaintiffs to pay charges. The proceeds of the sale amounted to One Hundred ($100.00) Dollars (plaintiff p. 3), from which plaintiffs deducted Four ($4.00) Dollars for the advertisement pertaining to the sale and credited defendant with the sum of Ninety-six ($96.00) Dollars.

It is admitted that as to the defendant, the shipper, demurrage cannot be assessed for the period prior to the notice to defendant that the shipment had been refused.

Defendant’s argument that plaintiffs were negligent in forwarding the shipment without securing further information from defendant as to its proper destination, is not sound. Defendant itself made out the bill of lading. In this bill of lading the destination of the shipment is described as “Magnolia Switch, State of Louisiana,” and the route is specified as “T. & P. R. R.” The only instructions the agent had were those shown on the bill of lading. On the faith of these facts alone the agent was justified in assuming that the shipment was intended for the station known as “Magnolia” on the line of the Texas & Pacific Railway. If the shipment had been intended for the “Magnolia” on the line of the New Orleans & Lower Coast Railway it would have been handled on a “Track receipt,” the form of which was offered in evidence and is part of the record herein. This document is an entirely different sort of document from a bill of lading. Mr. Vaught, defendant’s agent, testified that defendant was accustomed to make many shipments out of Harvey and that plaintiffs had no through rates from Harvey to the “Magnolia” on the line of the New Orleans & Lower Coast Railway in Plaquemines. ■

Plaintiffs’ agent was, therefore, justified in assuming that, had defendant intended the shipment for the station in Plaquemines parish on the line of the New Orleans & Lower Coast Railway, it would have taken out the proper “track receipt” instead of tendering a completed Texas & Pacific bill of lading form.

In answer to the other defense that plaintiffs are estopped by their failure to unload and sell the lumber, plaintiffs quote the following provision of the bill of lading:

“Property not removed by the party entitled to receive it within forty-eight hours (exclusive of legal holidays) after notice of its arrival has been duly sent or given, may be kept in car, depot, or place of delivery of the carrier, or warehouse, subject to a reasonable charge for storage and to carrier’s responsibility as warehouseman only, or may be, at the option of the carrier, removed to and stored in a public or licensed warehouse at the cost of the owner and there held at the owner’s risk and without liability on the part of the carrier, and subject to a lien for all freight and other lawful charges, including a reasonable charge for storage.”

Under this provision plaintiffs had the right to leave the lumber in the car until it was sold.

Plaintiffs argue that the defendant had the burden of proving that damages could have been minimized and that the record is bare of any proof on that point.

We do not think this contention sound because the Supreme Court in the case of Mutual Rice Co. vs. Star Bottling Works, 163 La. 159, 111 South. 663, held that the burden of proof, in a case where the buyer has breached a contract for the sale of sugar, is upon the seller not only to prove his loss hut to show; that it could not have been avoided or lessened by ordinary care on his part.

Applying this decision here we think that plaintiffs have failed to show that the loss could not have been lessened by ordinary care for the following reasons: The controlling statute provides that unclaimed property may be sold by the carrier sixty days' after the arrival and after ten days advertisement. Assuming that these perils do not run concurrently, though the statute is not clear, on that point, as the car arrived on May 28th, it could legally have been sold seventy clear days later, that is August 7th.

Had this been done, as demurrage according to the agreed facts, could not run against defendant, until it had received notice qf consignee’s refusal to take the property, which notice was given on June 16th, and then at the rate of Two ($2.00) Dollars per day for the first four days and Five ($5.00) Dollars per day thereafter, we find that defendant owed demurrage amounting to Two Hundred Forty-eight ($248.00) Dollars, as follows:

June 17, 18, 19 and 20 at $2.00 per day________________________________________________________$ 8.00

Remaining 10 days in June, 31 in July and in August, altogether 48 days, at $5.00 per day________________________ 240.00

Total demurrage _________________________________$248.00

As the proceeds o.f the car were. Ninety-six ($96.00) Dollars, the balance due is One Hundred Fifty-two ($152.00) Dollars.

Defendant refers us to the case of Morley Cypress Lumber Co. vs. Hines, 160 La. 676, 107 So. 487, where- the Supreme Court reversed the judgment of the lower court and allowed storage only from the time the railroad notified the consignor that the property would be sold, to the date of sale.

We do not think that decision controlling here because the facts differ greatly. In that case as the rails were unloaded promptly and the car returned to use, there was no charge for demurrage. Furthermore, there was an understanding between the consignee and the carrier that the rails should be unloaded, pending a possible compromise between the parties interested.Here there was no understanding between the parties and no unloading.

It is true that the carrier in this case' did not notify the consignor and the consignee until October 14th that they intended to sell the lumber on October 30th, but it had notified the shipper on June 16th of the consignee’s refusal to accept delivery and under the Louisiana statute this was the limit of the carrier’s authority, as the Louisiana statute, the sole source of the carrier’s right to sell, did not permit sale until sixty days after arrival.

For above reasons the judgment is amended and it is now ordered, adjudged and decreed that there be judgment for pláintiffs, J. L. Lancaster and Charles L. Wallace, Receivers of the Texas & Pacific Railway Co., and against the defendant, Louisiana Cypress Lumber Company, in the sum of One Hundred and Fifty-two ($152.00) Dollars, with legal interest from judicial demand, costs of this appeal to be paid, by appellee.

ON PETITION FOR REHEARING

In computing the amount of demurrage, it was overlooked that the tariff provides for the exclusion of Sundays and holidays.' (Sec. 3.) There should have been excluded June 20th and 27th, July 4, 5, 11, 18, 25, and August 1st. As July 4th fell on a Sunday, Monday, July 5th, should be excluded. This makes a difference of eight days, or $40.00.

It is therefore ordered that the original judgment be reduced from $152.00 to $112.00.


text:
    No. 10,525
    Orleans
    STOUFF v. TRAVELERS' INS. CO.
    (July 14, 1927. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Master and Servant —Par. 154; Insurance — Par. 166.
    Under the Employer’s Liability Acts, the injured employee, prior to award or judgment or agreement with his employer fixing the amount of compensation, has no right of action against the insurer of his employer.
    Appeal from Civil District Court. Div. “E”. Hon. W. H. Byrnes, Judge.
    Action by Fred Stouff against Travelers’ Insurance Co.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Paul W. Maloney, of New Orleans, attorney for plaintiff, appellant.
    John May, of New Orleans, attorney for defendant, appellee.
   OPINION

CLAIBORNE, J.

This is a suit under the Employer’s Liability Acts.

The plaintiff alleged that he was employed to work by the Alexandria Construction Company at Bayou Lafourche building bridges and while so engaged on December 14th, 1924, he sustained the loss of the first finger and serious injury to two other fingers of the left hand so that he will be permanently deprived of the use of his hand; that the said Company paid plaintiff $200.46 in weekly payments, but will not pay any additional sum; that the Travelers’ Insurance Company was the surety for the employer, the Alexandria Construction Company, and the liability for said injury comes under the Liability Act 216 of 1924; that the Company paid plaintiff $200.46 in weekly payments under the Liability Acts but refuses to pay any more; that plaintiff is entitled under Section 8 (d) of Act 216 of 1924 to 65 per cent of his weekly wages of $30 during 150 weeks.

The defendant excepted that plaintiff’s petition disclosed no right or cause of action.

The trial judge maintained the exception and dismissed plaintiff’s suit. He has appealed.

The simple issue in this case, which was not written in the exception but which should have been, is whether an injured employee has a right of action against the insurer of his employer?

He can only have it insofar as the statute may give it to him.

A mortgagee has no right against an insurance company which has insured the owner against fire. Reid vs. Crocker, 12 La. Ann. 436; Nicholson vs. Citizens Bank, 27 La. Ann. 369; 19 Cyc. 640, note 91-885; Gordon and Gomilla vs. Wright and Clark, 29 La. Ann. 812.

This right is claimed under Section 23 of Act 20 of 1914, p. 58, which reads as follows:

"That no policy of insurance against liability arising under this Act shall be issued unless it contains the agreement of the insurer that it will promptly pay to the person entitled to compensation all installments of the compensation that may be awarded or agreed upon, that the obligation shall not be affected by any default of the insured after the injury, or by any default in the giving of any notice required by such policy, or otherwise. Such agreement shall be construed to be a direct obligation by the insurer to the person entitled to compensation, enforceable in his name.”

The words “awarded” refer to a judgment after suit, and the words “agreed upon” mean the amicable agreement to which the employer and employee may come. These words do not govern contested claims which have neither been “awarded” by the court nor “agreed upon” by the employer and employee. If there was any doubt concerning this interpretation it would be removed by the words of Section 25 of the same Act which provides:

“That if any employer shall carry insurance against liability under this Act, and said employer shall be or become insolvent, or any execution upon a judgment for compensation is returned unsatisfied, an employee of such employer, or the dependents of a deceased employee who shall be entitled to payments under this act -may enforce their claim to payments against the insurer of such employer to the same extent that the employer could have enforced his claim against such insurer had he made such payments, any provision contained in any policy or agreement of insurance written after the date of the approval of this Act to the contrary notwithstanding.”

This Section 25 would have been superfluous if the employee under Section 23 had the right to sue the insurer Company under any and all conditions.

The policy of insurance is not annexed to the ¡petition and forms no part of the record. We cannot say that it would help the plaintiff. But from the fact that it is not annexed as part of the petition we conclude that it would afford no help to the plaintiff. We áre, therefore, of the opinion that an employee prior to award or judgment or agreement with his employer fixng an amount of compensation has no right of action against the insurer of his employer.

In the case of Summers vs. Woodward, 142 La. 241, 76 So. 674, relied on by plaintiff, the question was whether plaintiff’s injury fell within the Employers’ Liability Act. Woodward had made regular payments' to Mrs. Summers, from whom he received the following receipts:

“Received x x x for that ¡portion of my weekly wages x x x to which I am entitled under the Louisiana Workmen’s Compensation Act.”

It further appears that Woodward received reimbursement of the sums thus paid by him from his insurance company to the extent of those receipts. The Supreme Court adopted the opinion of the District Judge, who said that he did not see how the defendant’s admission that plaintiff’s injuries brought her within the Burke-Roberts Acts could be made any stronger.

Besides the Summers’ suit was against the employer himself and not against the insurance company.

The two cases are not alike.


text:
    No. 10,123
    Orleans
    SUCCESSION OF BOWSER AND STUMP
    (July 14, 1927. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Mandate—Par. 31, 40.
    The principal has no right to withhold what is due to the agent merely because the latter failed to render an account unless, perhaps, it is alleged and proved that an account,, if rendered, would show the agent indebted to the principal.
    2. Louisiana- Digest — Mandate—Par. 32.
    The proper course to pursue is to obtain a judgment ordering an agent to render an account within a reasonable time to which plaintiff may file an opposition.
    Appeal from Civil District Court. Hon. E. K. Skinner, Judge.
    Suit for accounting in Succession of Emeline Bowser, wife of C. Stump, and of C. Stump.
    There was judgment for William Stump and Rosa, David and Ollie Stump et al appealed.
    Judgment affirmed.
    Dart and Dart, of New Orleans, attorneys for William Stump, appellee.
    B. I. Cahn, of New Orleans, attorney for Rosa, David and Ollie Stump et al, appellants.
   CLAIBORNE, J.

This is a suit for an accounting.

Emeline Bowser, wife of Christopher C. Stump, died January 27th, 1901.

Christopher C. Stump died April 28th, 1924.

Their succession was opened on May 16th, 1924. By judgment rendered June 9th, 1924, their heirs were recognized and put in possession of all the property left by them and more particularly a lot of ground with improvements thereon, bearing No. 3512-14 S. Franklin Street; by consent of all the heirs this property was sold to effect a partition and the proceeds of sale were delivered to Bertrand I. Cahn for distribution; the said Bertrand I. Cahn withheld the share of the proceeds accruing to William Stump, one of the heirs, pending an accounting claimed of him of certain funds belonging to the succession arising out of his administration of the real estate mentioned above.

Whereupon, William Stump took a rule against said Cahn representing all the heirs to show cause why he should not pay him the portion of the proceeds of sale accruing to him.

To this rule Cahn made a lengthy answer in which he narrated all the facts recited above and stated moreover that the said William Stump had admitted that he had been collecting the rents of the double cottage, 3512-14 S. Franklin street, for several years prior to the death of his father, and paying taxes and repairs thereon; that William Stump agreed to furnish a statement of his administration, and never denied having money on hand to the credit of the succession; that the coheirs of said William Stump had instructed him, Cahn, not to pay William Stump until he had furnished an account; that William Stump is financially irresponsible; that his coheirs believe that he is indebted to the succession for which he owes an accounting; and that he should not receive his share until he has furnished the accounting; hence they pray that the rule of William Stump be dismissed.

Alter a lengthy trial the rule was made absolute and the heirs have appealed.

The amount of William’s share is $249.00.

It is the duty of an agent to render an account of his agency. C. C. 3004. Croizet opposition to account of Gondrau, 12 La. Ann. 401.

But we know of no law which would justify the principal for withholding what is due to the agent merely because he has failed to render an account unless, perhaps, if it is alleged and (proved that the account, if rendered, would show the agent indebted to the principal. The proper course to pursue is to obtain a judgment ordering the agent to render an account within a reasonable time to which the plaintiff could file an opposition. Lillie vs. Lillie, 48 La. Ann. 726; 19 So. 738.

In this case William Stump swears that he kept no books; that his father mortgaged the property to pay taxes; that his father gave him charge of the place; from one side they got $8 and from the other $9; whatever money he collected he turned over to his father who kept it in a box; he has no money belonging to the succession; he never agreed to furnish an account; he collected from one side of the house and his father collected from the other side, $9; he made out the rent receipts for his father.

There is no evidence to contradict William Stump’s testimony. We must conclude, therefore, that he owed • nothing to the. succession. There is, therefore, no justification for withholding what the succession owes him.


text:
    No. 11,004
    Orleans
    DIMES, APPELLANT, v. LASSITER AND COMPANY
    (July 14, 1927. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Master and Servant— Par. 158.
    In order to succeed in a suit under the Employer’s Liability Act the plaintiff must prove that the injury was re- , ceived while performing services arising out of and incidental to his employment in the course of his employer’s business.
    Appeal from the "24th Judicial District for the Parish of Jefferson. Hon. L. Robert Rivarde, Judge.
    Action by Lee Dimes against Robert G. Lassiter and Co.
    There was judgment for defendant and (plaintiff appealed.
    Judgment affirmed.
    Charles J. Larkin, Jr., of New Orleans, attorney for plaintiff, appellant.
    Walmsley, Beard and O’Keefe, of New Orleans, attorneys for. defendant, appellee.
   CLAIBORNE, J.

This is a suit for compensation under the Employer’s Liability Acts.

Plaintiff alleged that on November 8th, 1926, he was employed by the defendant as a laborer in constructing highways, for the daily wages of $2.75, 'or weekly $16.50; that while performing his duties he met with an accident and broke his right leg which caused him a temporary total disability to do any work of any reasonable character up to the present time; that he is therefore entitled to sixty-five per cent of his weekly wages during the time of his disability, being ten and 73/100 dollars; that defendant therefore owes plaintiff from November 8th, 1926, to February 25th, 1927, the time of filing this suit, or for fifteen weeks, the sum of $160.95, with interest from November 11th, 1926, together with the like weekly wages of $10.73 during the remaining period of his disability and for medical expenses paid by plaintiff.

The defendants admitted that the plaintiff was employed by them as alleged, but averred “that said accident and injury, if any, did not grow out of and was not incidental to his employment with defendant company and that same, if any, occurred after the completion of his work with defendant company and after he had been safely returned by defendant company to the point where his connection with said defendant ended.”

After extended and learned reasons committed to writing and extant in the record, judgment was rendered in favor of the defendants rejecting plaintiff’s demand.

After an unsuccessful application for a new trial, the plaintiff has appealed.

The plaintiff was employed by Butler for the defendants, Lassiter and Co., to dig ditches on the Shrewsbury road, from 7 a. m. to 5:30 p. m. W. C. Butler was their foreman; plaintiff was not hired to drive trucks; the defendants, Lassiter and Co., owned no trucks; Lassiter and Co. assembled their men in the morning at Harahan at Draube’s store and had to transport them to the places where he worked at or near Shrewsbury and bring them back in the evening; for that purpose they employed one Lauricella, who owned trucks, for one hour in the morning and one hour in the evening; when the men returned to Harahan in the evening their work was finished and they were no longer under the orders of defendants; Lauricella was working under him, the same as the plaintiff; Lauricella was “kind of a straw boss” at $4 a day. Butler had his gang split; if, during the day, he needed a few more men where he was, he went to the other part of the crew, and he took four of them and' brought them to the other place; Lauricella was “digging some ditches”; the plaintiff returned from work that night with Butler; defendants used Lauricella’s trucks when they needed them; Lauricella was working some men for the defendants; they were ditching; plaintiff Dimes worked for Butler; Lassiter engaged one of Lauricella’s trucks to bring the men out to work in the morning and to bring them back in the evening; he was allowed $3 a day for the use of his trucks; the men were brought out that morning in one of Lauricella’s trucks driven by plaintiff Dimes; the driver had not come out and Lauricella told him to drive the men, and plaintiff Dimes drove the men out that morning, and he told him to bring the truck back that evening; Dimes returned in another truck; Lauricella sent him back to get the truck, and he caught another truck to go and get it where he had left it; on the way out the truck had a wreck and plaintiff’s leg was broken; the truck that was wrecked belonged to Lauricella; Dimes was supposed to do any kind of labor work, ditching, putting in pipe, spreading gravel, or any labor work that the foreman directed; the Company had to send the laborers to work and to take them back home; they rented different trucks; they rented Lauricella’s trucks; they were working thirty trucks, different people owned them; they rented the trucks, gas, oil, driver, and everything, and paid them so much an hour, acording to the size of the truck and what it hauled; they paid Lauricella $1 or $1.50 an hour. Lauricella testified, and it is not denied, that plaintiff Dimes had been asking him for a job to drive a truck, and Lauricella told him on the morning of the accident that he wanted to see whether Dimes could drive.

The learned judge of the trial court said:

“The evidence shows conclusively that the accident did not arise out of and incidental to his employment. At the time of the accident the relation of Master and Servant had ceased to exist, because plaintiff had already finished his day’s work and was delivered safe and sound at the point and place from which he left that same morning, the same spot where all of the laborers left in the morning and returned in the evening,” quoting Bass vs. Shreveport Eldorado Pipe Line Co., 4 La. App. 107; Jarrow vs. Sabrier, 5 La. App. 288; Blane vs. Iglehart, 5 La. App. 18; Wyatt vs. Alabama Petroleum Corporation, 2 La. App. 499; Goree vs. Atlantic Oil Producing Co., 2 La. App. 558.

We will add that the testimony shows conclusively that plaintiff’s day’s work had ended at 5:30 when the truck rented by the defendants for that purpose brought him and the other laborers back at Harahan which they had left in the morning; that at that time and place, after 6 p. m., Lauricella, owner of all the trucks, called plaintiff’s attention to the fact that he had not brought back the -truck in which he had driven the laborers in the morning and told him and sent him back to bring back the truck. In obedience to that request or order, the plaintiff proceeded to return for the purpose of securing and returning the truck. This certainly was an undertaking for the benefit of Lauricella alone and entirely foreign to plaintiff’s functions towards the defendants and not in the course of, nor for the interest of the defendant. The truck in which he started on that errand was the property of Lauricella and the driver was employed and paid by him, and was not in any way connected with the defendants or their work.

Ray vs. Louisiana Oil Ref. Corp., 5 La. App. 735.

Gray vs. Elgutter, 5 La. App. 315.

Purvis vs. Ware Construction Co., 5 La. App. 684.

De Gruy vs. Cire and Delhower, 4 La. App. 558.

Myers vs. La. Ry. & Nav. Co., 140 La. 937; 74 So. 256.

Dyer vs. Rapides Lbr. Co., 154 La. 1091; 98 So. 677.

Smalley vs. Brown, 156 La. 671; 101 So. 16.


text:
    No. 10,397
    Orleans
    PONCET v. SOUTH N. O. LIGHT AND TRACTION CO.
    (July 14, 1927. Opinion and Decree.)
    (August 1, 1927. Rehearing Refused.)
    (October 6, 1927. Writ of Certiorari and Review Denied by Supreme Court.)

      (Syllabus by the Court)
    1. Louisiana Digest — Damages—Par. 88, 89.
    When doctor and drug bills, are claimed as elements of damages for physical injuries, it is not essential to prove that they have been paid; it is sufficient to prove a liability therefor.
    2. Louisiana Digest — Marriage—Par. 265, 268, 269.
    In case of community the husband alone can sue for and recover such damages.
    3. Louisiana Digest — Marriage—Par. 277; Pleading — Par. 63, 67.
    A suit by the wife although authorized by her husband to recover such damages cannot be the basis of lis pendens or res judicata to a suit by the husband for the same.
    Appeal from Civil District Court, Hon. Wm. H. Byrnes, Jr., Judge.
    Action by William Poncet against South N. O. Light and Traction Co., appellant.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Habans and Coleman, of New Orleans, attorneys for plaintiff, appellee.
    E. Howard MeCaleb, of New Orleans, attorney for defendant, appellant.
   CLAIBORNE, J.

This suit is a sequel of the case of Mrs. Theresa Poncet vs. South New Orleans Light and Traction Co., No. 9949 of the docket of this court, reported in 3 La. App. 64. In that case the plaintiff alleged that while a passenger on the Gretna car No. 9, operated by the defendant, she was struck on the right wrist by the falling of the screen used in cars for the purpose of separating the white from the colored passengers, and was seriously injured.

There was judgment in her favor for $1,000, which was affirmed by the Court of Appeal.

In the ease under consideration the plaintiff, the husband of Theresa Poncet, claims $1,070 damages for this: That on account of said injury to his wife, she was compelled to have her arm again bound in splints over a period of four weeks, that she underwent medical treatment and was unable to discharge her domestic duties and plaintiff was obliged to incur the additional expense of employing others to attend to her duties during her period of suffering. He claimed the following items of damage, viz:

Por medical treatment______ $300.00
Medicines and appliances____ 50.00
Help for household duties during one year _______________ 720.00
Total______________________$1,070.00

The defendant excepted: 1st, that the petition disclosed no right or cause of action; and 2nd, upon the trial of the case in the district court and in this court, it interposed the peremptory exception of res adjudicata and lis pendenes and estoppel, founded upon the record in the first suit of Theresa Poncet against this defendant.

The exceptions were overruled and we think properly.

1st: In the case of Mistress Shields vs. Johnson, 132 La. 773, the plaintiff sued “for doctor bills, nurse bills, drug bills, clothing, and ambulance service connected with the injury alleged by plaintiff”.

The court maintained an exception of no cause of action on the ground that “these are expenses of the community for which the husband is responsible; and he alone can recover therefor”. See also 46 Ann. 1429; Munich vs. Central Laundry Co., 2 La. App. 123; Richardson vs. Calovello, 5 La. App. 56; 62 Pac. 315; 7 N. E. 375; 135 Ala. 147, 33, 335; 46 N. E. 1063; 14 Colo. App. 152, 59, 476; 88 N. W. 337.

2nd: The exceptions of lis pendens, res judicata and estoppel are based upon the same conditions.

“There is a strong analogy between the pleas of lis pendens and res judicata, and it is fair to inquire whether judgment in the former case would be res judicata in the latter.” Cross on Pleadings, p. 171.

Inasmuch as the wife had no right to sue or recover for the items of doctor bills and others claimed by her in her suit, it cannot be said that her petition for the same or the judgment rejecting her claim for the same can constitute lis pendens or res judicata against a demand for the same by the husband in a subsequent suit. C. C. 2286; C. P. 335.

Nor does it make any difference that the husband joined the wife in the first suit. Such are the decisions. Mitchell vs. Dixie Co., 157 La. 383, 102 So. 497; Munich vs. Central Laundry Co., 2 La. App. 123.

T'he defendants pleaded practically a general denial. There was judgment for plaintiff for $350.00.

The defendant has appealed.

As to the claim for the doctor it is immaterial whether plaintiff has paid it. In cases of injunctions it is not essential that the plaintiff should have paid the attorney’s fees. It is sufficient that he has become liable for them. Tessier Dig., p. 88; Meaux vs. Pittman, 35 La. Ann. 360.

In this case the doctor sent a bill for $300 and the obligation of the defendant to pay it follows.

The expense for medicines and liniments was at least $50; the wife paid cash for them; there is no evidence that the wife owned separate property; the presumption, is that she disbursed community money for which the husband is entitled to be reimbursed. The husband testified that he gave his wife the money to pay for the drugs.

The trial judge rejected the claim for help for household duties for one year, $720. The plaintiff has asked for an increase of the judgment to that amount. There is some inconsistency between the witnesses as to that item and some improbability as. to its payment and the amount thereof. Neither the alleged all-around colored servant, nor the colored boy, has testified.

Their absence weakens plaintiff’s case.

The judgment does not appear to us manifestly erroneous and it is therefore affirmed.


author: JONES, J. Per curiam;

text:
    No. 9697
    Orleans
    BLOCK v. DETROIT FIRE & MARINE INSURANCE CO.
    (May 23, 1927. Opinion and Decree.)
    (June 20, 1927. Rehearing Refused.)

      (Syllabus by the Court)

    1. Louisiana Digest — Insurance—Par. 33, 37, 93.
    In a suit to recover on a fire insurance policy where defendant denies liability for failure to comply with iron safe provision of policy, proof that plaintiff, who acted in the best faith, substantially complied with those provisions, will suffice, for recovery.
    Appeal from Civil District Court. Div. “F”. Hon. Percy Saint, Judge.
    Action by Miss Esther Block, plaintiff and appellee, against Detroit Fire ■ and Marine Insurance Co., defendant and appellant.
    There was judgment for plaintiff and defendant appealed.
    Judgment amended.
    Weiss,' Yarrut and Stich, of New Orleans, attorneys for plaintiff, appellee.
    Milling, Godchaux, Saul and Milling, of New Orleans, attorneys for defendant, appellant.
   JONES, J.

This is a suit to recover Five Hundred ($500.00) Dollars on a fire insurance policy, One Hundred ($100.00) Dollars attorney’s fees, and twelve per cent damages.

Plaintiff alleges the issuance of the policy by defendant on January 27, 1921, for Five Hundred ($500.00) Dollars to cover stock and fixtures in the millinery store of plaintiff at 1844 Dryades; the payment of the initial premium, the complete destruction of the store and contents, exceeding in value amount of policy, by fire on October 20, 1921; compliance by plaAntiff and, offer to comply with all conditions precedent und,er the contract.

Defendant admits issuance of policy and payment of premiums, but denies liability on account of failure of plaintiff to comply with the Iron Safe Warranty in the policy, which reads as follows:

“1. The assured will take a complete itemized inventory of stock on hand at least once in each calendar year, and, unless such inventory has been taken within twelve calendar months prior to the date of this policy, one shall be taken in detail within 30 days of issuance of this policy, or this policy shall be null and void from such date, and upon demand of the assured the unearned premium from such date shall be returned.
2. The assured will keep a set of books, which shall clearly and plainly present a complete record of business transacted, including all purchases, sales and shipments, both for cash and credit, from date of inventory, as provided for in first section of this clause, and during the continuance of this policy.
3. The assured will keep.such books and inventory, and also the last preceding inventory, if such has been taken, securely locked in a fireproof safe at night, and at all times when the building mentioned in this policy is not actually open for business or, failing in this, the assured will keep such books and inventory in some place not exposed to a fire which would destroy the aforesaid buiding.
4.In the event of failure to produce such set of books and inventories for the inspection of this company, this policy shall become null and void and such failure shall constitute a perpetual bar to any recovery thereon.”

Seven witnesses testified for the plaintiff and none for the defendant.

The evidence shows the following facts:

(1) That plaintiff, who had been in the millinery business in this city for ten or fifteen years prior to the fire, lived in the house adjoining the store on Dryades street with her sister, Miss Brunette Block, who managed the business and had entire charge of the store.

(2) That the books, consisting of an invoice book, a ledger and a cash book, were kept by Lazard L. Block, a brother, without compensation, who had been for many years in the same kind of business at Frenchmen and Royal streets in this city.

(3) That this brother came to the store on Dryades street two or three times a week regularly, made the entries in the books from memoranda and locked the books up in an iron safe of which he alone knew the combination.

(4) That all the invoices and bills were kept on a file and regularly entered by him in the invoice book, that the entire business was done for cash and all the cash was turned over each day to Miss Brunette Block, who kept it until Mr. Block came, in an iron box in the so-called office.

(5) That Miss Brunette Block also kept memoranda of all cash sales, which were entered regularly in the cash book by Mr. Block, two or three times weekly.

(6) That a complete and detailed inventory had been made in July, 1920, and placed in the iron safe, where it was at time of fire, and a similar inventory had been made in July, 1921; and likewise placed in the safe, where it was when fire happened; that an incomplete inventory had been made in December, 1920, and had not been placed in the safe, but had been kept by the manager for her own convenience, and a fourth complete and detailed inventory had been finished oh October 17, 1920, three days before fire, at the instance of certain creditors, and had been sent to the creditors, but had not been placed in the safe and was not there on October 20, 1921.

(7) That this last inventory which had been tendered to defendant before suit and refused, was offered and filed in evidence and plaintiff offered to prove loss by other documents and data; also a proof of loss which was offered in evidence by defendant.

(8) That the fire, which broke out some ■ distance from plaintiff’s store, consumed the entire block and the debris was guarded for'several days by a cordon of police and firemen to prevent theft, as several attempts were made to rifle the ruins.

(9) That the iron safe was seen among the ruins the day after the fire, but Lazard Block found when he tried to open it three days later and remove the books that the lock had melted.

(10) That the safe had been stolen when he went to move it away about a week after the fire and a day after the police had left.

(11) That plaintiff’s insurance was always much less than the value of her. goods and her good faith was never questioned.

(12) That plaintiff’s brother had completed the last inventory, posted the books, made all the entries and locked up the books in the iron safe on Monday night, October 17th, when the fire occurred three days later on Thursday night, October 20th.

(13)The last inventory taken on October 17, 1920, showed rock bottom value of goods on hand over Sixty-five Hundred ($6,500.00) Dollars, and testimony shows total insurance on the goods Four Thous- and, Three Hundred and Fifty ($4,350.00) Dollars.

Defendant argues vehemently that the trial judge erred in admitting evidence to show the reasons why the books' and inventory were not produced.

We think this contention unfounded for three reasons:

(1) Because the evidence was admissible under that article of the petition which alleged an offer by plaintiff to comply with all the conditions of the contract.

(2) Because defendant itself raised the issue in its answer and replication is not permitted under our system of pleading;

(3) Because no timely objection was made to the evidence and no request was made for a continuance, on account of surprise.

It is not necessary to negative the occurrence of facts which would constitute a breach of a promissory warranty or condition subsequent.

Knickerbocker Ins. Co. vs. Tollman, 80 Ill. 106.

Redman vs. Aetna Ins. Co., 49 Wis. 431.

While the declaration or complaint must allege performance of conditions precedent, plaintiff need not as a rule anticipate affirmative defenses either by positive or by negative allegations.

Fellman vs. Mercantile F. & M. Ins. Co., 3 Or. App. 103.

Indian River Bank vs. Hartford Ins. Co., (Pla.) 35 So. 228.

Even in jurisdictions requiring that the facts constituting performance of conditions precedent in a contract should he specially pleaded, the rule is relaxed and a general allegation of performance is held sufficient.

See Cohen vs. Ins. Co. (Del.) 95 Atl. 912.

After nearly thirty-six pages of testimony of plaintiff’s witness (Tr. 1 to 36) as to how the safe was lost, and how the books contained in the stolen safe were kept, counsel on cross-examination made his first objection to the testimony which he had elicited, on the • ground that it sought to broaden the pleadings, and tended to show excuse for non-performance of the warranties.

Where evidence has been received without objection, it will be too late, at a subsequent stage of the trial, to object to it as inadmissible.

Pickett vs. Bates, 3 La. An. 627; England vs. Grisson, 15 An. 304.

The admissibility of evidence given of facts not alleged should be objected to when offered, and the point reserved; otherwise, it will be considered as if it had been responsive to an allegation properly made.

Wycoff vs. Miller, 48 La. An. 476, 19 So. 478; State vs. Lundy and Riggs, 47 La. Ann. 1596, 18 So. 636; Bryan vs. Moore, 11 Mart. 26.

The testimony is admissible for the further reason that the defendant, by its answer, laid the foundation upon which such an excuse was predicated. It invited inquiry into and provoked decision on the very question which it now contends may not be considered and may not receive judicial decision.

Fellman vs. Mercantile F. & M. Ins. Co., 3 Or. App. 103, p. 114.

We think that the inventories kept by the plaintiff show substantial compliance with the Iron Safe Warranty, for it is unreasonable to require that a small millinery store in the residential section shall keep such detailed books of account as the larger merchants in the business section.

The object of the Iron Safe Clause is to protect the insurance companies against fake losses and dishonesty on the part of the insured and in this case there is nothing to suggest the slightest padding of the inventory or the least intention to be' unfair to the defendant. On the contrary the record shows that plaintiff tried to comply with the contract and that she promptly offered to furnish defendant with the detailed itemized inventory of her loss which had been completed only three days prior to the fire.

The language of the insurance policy, with respect to the last preceding inventory, has been held to refer to the inventory immediately preceding the fire.

Continental Ins. Co. vs. Waugh, 60 Neb. 348, 83 N. W. 81.

Phoenix Ins. Co. vs. Stensen, 34 Tex. Civ. App. 471, 79 S. W. 867.

Clark vs. Franklin Ins. Co., 130 La. 588; 58 So. 345.

. The rule that substantial compliance with the iron safe clause is all the law requires obtains in the State of Louisiana, and generally everywhere.

Monteleone vs. Travelers Fire Ins. Co., 8 Or. App. 82.

Central Glass Co. vs. German-Amer. Ins. Co., 8 Or. App. 321.

Clark vs. Franklin Ins. Co., 130 La. 584, 58 So. 345.

No particular mode of keeping books is required if the amount and value of the goods destroyed may be ascertained therefrom with reasonable certainty by a person of ordinary intelligence.

Clark vs. Franklin Ins. Co., 130 La. 584, 58 So. 345.

Central Glass Co. vs. German-Amer. Ins. Co., 8 Or. App. 321.

Monteleone vs. Travelers Ins. Co., 8 Or. App. 82.

If the books show the gross amount of sales, the ledger need not be posted each day.

Phoenix vs. American Cent. Ins. Co., 106 Miss. 145.

The purpose of the provision is accomplished if insured produces data from which the amount and value of stock at the time of the fire can be reasonably estimated.

Malin vs. Mercantile Town Mut. Ins. Co., 105 Mo. A. 625.

Scottish Union Ins. Co. vs. Moore Mill Co., 43 Okla. 370.

And it has been held that the policy will not be forfeited because a book containing the transactions of the day preceding the fire was not in the safe.

Brown vs. Palatine Ins. Co., 89 Tex. 590.

Permanent records, showing general description of goods purchased, prices, amounts of sale and cash received, held sufficient.

101 Sou. 831, London Ass. Co. vs. Pool.

Aetna Insurance Co. vs. Goldman, 134 S. E. 201.

Defendant argues that plaintiff was negligent in failing to preserve the safe and thereby to produce the books, as required by the policy. As the ruins caused by the fire were surrounded by a cordon of policemen and firemen and as plaintiff’s agent, Lazard Block, was unable to open the door of the safe because the lock had melted when he tried to do so two days after the fire; as plaintiff's agent went back to move the safe a day or two after the police were removed, only to find the safe stolen, we do not think the charge of negligence well founded.

If insured has complied with the requirements of taking an inventory and keeping books, the fact that some of such books were destroyed will not invalidate the policy, where the books or documents preserved are sufficient to supply the missing information.

Western Assur. Co. vs. Redding, 68 Fed. 708.

Finkelstein vs. Virginia State Ins. Co., 4 Or. App. 154.

When it is impossible for the insured to comply with the requirements as to producing books and documents, this is generally considered a sufficient excuse for non-production.

Liverpool, etc., Ins. Co. vs. Kearney, 180 U. S. 132.

Compliance with the requirements to produce books and documents may be excused by showing that the books and papers have been destroyed, or are beyond assured’s control, especially where she is able and willing to supply the deficiency by producing duplicates or otherwise.

Brumstead vs. Dividend Mutual Ins. Co., 12 N. Y. 81.

Nichols vs. Mechanics Ins. Co., 16 N. J. L. 410.

Although the controlling statute, Art. 168 of 1908, provides for “a reasonable attorney’s fee for the prosecution and collection of such losses”, defendant’s attorney denies this liability on the ground that the Supreme Court in Thompson vs. State Assur. Co., 160 La. 683, held that it could not fix the amount of compensation due the attorney because there was no proof in the record on which to base such action.

In that case the fire insurance policy was for $2,250.00 and the attorney’s fee of $250.00 was based on the total claim of $2,250.00, but the court only gave judgment for $660.00. We think that decision is not controlling in the case where the total amount claimed was recovered and all the attorney’s work was necessary and helpful to the result obtained.

In the case of Randolph vs. Carroll, 27 A. 467, the court said:

“It is a rule long settled by this court that it will not be implicitly governed in regard to questions relating to the value of professional services rendered to their clients by attorneys at law, by the opinion of legal men taken in evidence; but will be guided by a conscientious estimate of the value of the services performed, and will of itself fix the amount without reference to opinions of witnesses.”

Castille & Reese vs. Caffery C. R. and R. R. Co., 48 La. Ann. 322, 19 So. 332.

Gathe vs. Broussard, 49 La. Ann. 312, 21 So. 839.

State vs. Taylor, 49 La. Ann. 319; 21 So. 516.

Cotton vs. Mock, 21 La. Ann. 687.

Succession of Wells, 24 La. Ann. 163.

Succession of Jackson, 30 La. Ann. 463.

Dinkelspiel and Hart vs. Pons, 119 La. 236, 43 So. 1018.

Succession of Rabasse, 51 La. Ann. 604, 25 So. 326.

2 Orl. App 209; 6 Orl. App. 226; 1 H. D. 155.

We think that the record in this case shows that the amount claimed, One Hundred Dollars ($100.00), is a reasonable attorney’s fee for the service.

For above reasons the judgment is affirmed.

ON PETITION FOR REHEARING

Per curiam;

While considering petition for rehearing in this matter, we noted carefully the case of Gathe vs. Broussard, et als, 49 Ann., cited in the brief of defendant’s able attorney.

However, we concluded that the holding of the Supreme Court in that case as to the necessity for evidence in order to fix an attorney’s fee has been overruled by the same court in Succession of Rabasse, 51 La. Ann. 590, 25 So. 326, when it held as follows:

“Jurisprudence has settled the rule and consecrated it, that the question of attorney’s fees in any case where the services have been performed in the presence of the court which is called upon to decide the question, is a matter of law rather than one of fact and that it will value same as the opinion and sound discretion dictate rather than base its judgment upon the opinion of witnesses.”

The ruling which was cited in the original opinion was affirmed by the Supreme Court in the case of Hunt vs. Hill, 138 La. 583, 70 So. 522.