text:
    No. 3674
    Second Circuit
    L. WEMPLE COMPANY, INC., v. FELGER LUMBER COMPANY, INC., ET AL.
    (January 31, 1930. Opinion and Decree.)
    (March 24, 1930. Rehearing Refused.)
    Bruton T. Dawkins and W. C. Roberts, of Alexandria, attorneys for plaintiff, appellant.
    White, Holloman & White, of Alexandria, attorneys for defendants, appellees.
   WEBB, J.

This action was brought to recover judgment for $729.06, a balance alleged to be due on the price of timber alleged to have been cut and removed by defendant from'.lands belonging to plaintiff, and plaintiff appeals from a judgment rejecting its demands.

Plaintiff owned timbered lands and defendant operated a sawmill, and they had dealt with each other for some time with reference to the timber. From about July, 1925, to August, 1926, defendant cut and removed timber from the lands, and thereafter, from August, 1926, until November, 1927, the timber was cut by plaintiff and the logs delivered to defendant.

During the period that defendant cut and removed the timber, there was taken from the lands approximately 490,840 feet of cypress, ash, and other hardwood logs, for which defendant paid at the rate of $12.50 per 1,000 feet for the cypress and ash and $7 per 1,000 feet for the oak and other hardwoods, and the record shows that during the period plaintiff cut the timber and delivered the logs to defendant, from August, 1926, to November, 1927, there was approximately 830,103 feet accepted by defendant, and during the period the logs were delivered by plaintiff, defendant, at short intervals, rendered statements to plaintiff, showing the species, quality, and quantity of logs accepted and credits for same, and remitted the amount due, as shown by the statements.

The statements rendered from August, 1926, to June, 1927, show that there was approximately 578,830 feet of cypress, ash, oak, and other hardwood logs accepted, of which 667 feet of the cypress and 3,545 feet of the ash was classed as No. 2, for which credit was given at the rate of $3 per 1,000 feet, and for the balance credit was given at the rate of $12.50 per 1,000 feet for the cypress and' ash and $7 per 1,000 feet for the oak and other hardwoods, and additional credits were allowed for hauling, etc., at the rate of $12.50 per 1;000 feet for the cypress and ash and $11.50 for 1,000 feet for the oak and other hardwoods, and the statements rendered from June, 1927, to November, 1927, show that there was 251,253 feet accepted, and that 74,913 feet of the cypress and ash and 4,089 feet of the oak and other hardwoods was classed as No. 2, and credits allowed as above.

There is not any amount claimed to be due on the timber cut or logs removed from the lands by defendant during the period from July, 1925, to August, 1926, or for the logs delivered by plaintiff during the period from August, 1926, to June, 1927, during which latter period the president of plaintiff company was in actual charge of its affairs and handled the statements rendered and remittances made by defendant.

The president of plaintiff company, however, became ill in June, 1927, and thereafter, until about November 1, 1927, the timber was cut and logs delivered by employees of plaintiff, and the Statements and remittances were handled by the secretary of plaintiff company, and when the president of plaintiff company recovered from his illness and resumed charge of plaintiff’s affairs he complained and protested against the right of defendant to have classified the logs and to pay for those classed as No. 2 at the rate of $3 per 1,000 feet, contending that under the agreement of the parties defendant was bound to pay for all logs accepted by it at the rate of $12.50 per 1,000 feet for cypress and ash and $7 per 1,000 feet for oak and other hardwoods, and the amount claimed here is the difference between the amount paid by defendant for the logs classed as No. 2 and the amount which plaintiff contends should have been paid under the agreement of the parties.

There were, however, as indicated, several agreements between the parties. First, there was a written agreement, of date March 27, 1925, which purports to have been a contract for the sale of the merchantable ash and cypress timber on sections 8 and 9 at the price of $12.50 per 1.000 feet, log scale, to be paid at the end of each month, as the timber was cut and the logs scaled; and, second, there was a verbal agreement, which was made in February, 1926, relative to the oak and other hardwoods on sections 8 and 9, and also relative to the cypress, ash, oak, and other hardwoods on sections 6 and 7 and other lands, under which it is conceded defendant cut and removed timber from the lands until August, 1926, paying for the logs at the rate of $12.50 for cypress and ash and $7 for oak, etc.

In August, 1926, there was another verbal agreement, under which plaintiff began cutting the timber from the lands and delivering the logs, and about the time plaintiff began delivering the logs, in August or September, 1926, there was another verbal agreement relative to grading the logs, and thereafter the statements rendered by defendant show that of the logs accepted by defendant in September,*October, November, and December, 1926, and January, 1927, there was, as previously stated, 667 feet of cypress and 3,545 feet of ash classed as No. 2 and paid for at the rate of $3 per 1.000 feet, and of the logs accepted after June, 1927, or in July, August, September, October, and November, 1927, there was, as stated, 74,913 feet of cypress and ash and 4,089 feet of oak and other hardwoods classed as No. 2, and paid for at the rate of - $3 per 1,000 feet, and the question presented is whether or not, under the agreement • made by the parties in August or September, 1925, after plaintiff began to cut the timber and deliver the logs, defendant was given the right to classify the logs and to take those classed as No. 2 at $3 per 1.000 feet.

The president of plaintiff company and one of the representatives of defendant company were the only witnesses who had any knowledge of the various agreements of the parties; and while they apparently disagree in some respects as to all of the agreements, their version of the agreement made in August or September, 1927, after plaintiff began to cut the timber and deliver the logs to defendant, is especially conflicting.

Relative to the last agreement, the president of plaintiff company states that, after it began to deliver the logs, the representative of defendant company complained of the ash logs cut from sections 6 and 7, and as we gather from his statement, it was agreed that as to the ash logs taken from those sections defendant could take those classed as No. 2 at the rate of $3 per 1.000 feet until such time as the right should be withdrawn, which the president of plaintiff company states was withdrawn in January, 1927, but the representative of defendant company states that the agreement related to all'of the logs delivered by plaintiff, and he refers to the statements rendered by defendant company in September, October, November, and December, 1926, and January, 1927, which showed that cypress logs as well as ash were classified, and those classified as No. 2 paid for at the rate of $3 per 1,000 feet, as corroborating his version of the agreement.

The- president of plaintiff company states, however, that he had protested against the classification of the cypress logs, but that, as the amount involved was small, he had acquiesced and accepted payment on the basis of $3 per 1,000 feet, although, as we gather from his evidence, the persistent action of defendant company in classifying the cypress logs was one of the reasons for withdrawing the right to classify the ash logs. However, the representative of defendant company denies that there was any protest whatsoever made.

There was not any evidence introduced tending to show that the logs classed by defendant company as No. 2 were not of that quality, or that such logs were worth more than $3 per 1,000 feet, and while it must be conceded that the fact that other timber than ash was classified as No. 2, with the knowledge of plaintiff company, and payment accepted for same at the rate of $3 per 1,000 feet, corroborates the version of the agreement as stated by the representative of defendant company, it is urged that such corroboration was not sufficient, on the theory that the agreement between the parties was for the sale of timber, and that defendant company not only carried the burden to establish a modification of the agreement, but that any modification of the agreement should be conclusively established.

In support of ‘that position the agreements of March, 1925, and February, 1926, are referred to as contracts for the sale of merchantable timber, and as having fixed the price of the cypress and ash at $12.50 per 1,000 feet, and oak and other hardwoods at $7 per 1,000 feet, and the agreement of August, 1926, is referred to as merely supplementary of the former agreements.

Considering the agreements of March, 1925, and February, 1926, from that point of view, it would appear that defendant company would have to bear the expense of cutting and hauling the timber, and we assume that such was the case where it cut and hauled the timber; but it is conceded that after the agreement of August, 1926, when plaintiff cut the timber and delivered the logs to defendant company, the expense was borne by plaintiff company, and that defendant company was reim-' bursed' only as to the logs accepted by defendant company, and, further, that whatever may have been the intention or rights of the parties under the agreements of March, 1925, and February, 1926, it is conceded that defendant company selected the timber which it cut, and that it did not take all of the timber cut by it, and also that it “docked” or sawed off portions of the logs which were of inferior quality, paying only for that which it took, and that after the agreement of August, 1926, when plaintiff company cut the timber and delivered the logs, defendant company had the right to refuse any that it saw fit to reject, we are of the opinion that the parties never considered the agreements of March, 1925, and February, 1926, as other than for the sale and purchase of logs, and that the agreement of August, 1926, was regarded by them as a substitute for the former agreements.

There was not anything unreasonable in the version of the representative of defendant company that the agreement related to all of the logs delivered by plaintiff company, and we are of the opinion that it having been shown that defendant had classified the logs with the knowledge of plaintiff company, and that payment was accepted in accordance with the version of the agreement given by the representative of defendant company, was sufficient to establish the agreement and right of defendant company to classify the logs and take those classed as No. 2 at $3 per 1,000 feet, and that plaintiff company’s demands were properly rejected.

On conclusion of the trial, on March 12, 1929, the cause was passed for argument, and ón May 20, 1929, plaintiff moved to reopen the case for further evidence, and the motion was refused, and appellant urges that the court erred, and prays that the cause be remanded.

In the motion to reopen the cause, plaintiff company' alleged that it had the evidence which it sought to have introduced at the time of the trial, but that it did not realize the evidentiary value of the evidence until after the president of plaintiff company had read the testimony of the officers of defendant company, and that the evidence would contradict the evidence of the officers of defendant company, and support the testimony of th§ president of plaintiff company, as to the agreement for classifying the logs.

It is conceded that the question of reopening the case was within the discretion of the court (Sterling vs. Carruthers, 7 Mart. (N. S.) 55; Psyche vs. Paradol, 6 La. 366; Le Blanc vs. Nolan, 2 La. Ann. 223; Roberts vs. La. Ry. & Nav. Co., 132 La. 446, 61 So. 522, Ann. Cas. 1914D, 1207; Succession of Lefort, 139 La. 51, 71 So. 215, Ann. Cas. 1917E 769; Miller vs. Miller, 160 La. 936, 107 So. 702), and as the motion shows on its face that the evidence sought to be introduced was in plaintiff company’s possession at the time of the trial, and is merely cumulative, we cannot say that the ruling was manifestly erroneous.

The judgment is therefore affirmed.


source: Caselaw Access Project

author: DREW, J.

license: Public Domain

text:
    No. 3363
    Second Circuit
    HOPKINS, STARR, HOPKINS & HAMEL v. URANIA LUMBER COMPANY, LTD.
    (January 31, 1930. Opinion and Decree.)
    (March 24, 1930. Rehearing Refused.)
    G. P. Whittington, of Alexandria, attorney for plaintiff-appellee, appellant.
    Thornton, Gist & Richey, of Alexandria, attorneys for defendant-appellant, appellee.
   DREW, J.

Plaintiffs in this suit are a firm of attorneys in Washington, D. C. They institute this suit against the defendant company for the sum of $1,750 for attorney’s fees for services which they allege they rendered the defendant, during the year 1926 and the early part of 1927, in connection with a dispute that existed between the Urania Lumber Company, Limited, and the United States government over an erroneous charge made by the government against said company for excess income taxes amounting to about $16,000 for the years 1919 to 1921, inclusive.

Defendant denies that it. ever employed plaintiffs to represent it in said controversy, averring that it employed the accouzzting firm of Flournoy & Beasley, of Alexandria, La., to handle the matter for it before the Internal Revenue Department of the United States, and that, if said plaintiffs performed any service in connection with the matter, said accounting firm was responsible for the services, and not this defendant. It further alleged that, if the court should find that the defendant was in any way responsible for the services of plaintiffs, that the said services were not worth in excess of $100.

The case was tried on its merits, and the lower court rendered judgment in favor of plaizitiffs in the sum of $500. From this judgment, both plaintiffs and defendant perfected appeals.

In the early fall of 1925, the Internal Revenue Department notified the Urania Lumber Company, Limited, that its claim for stave depletion for the years 1919 to 1921, inclusive, amounting to something in excess of $54,000, had been rejected by the department, and an assessment in excess of $27,000 extra income tax had been levied against the defendant company.

Defendant employed the accounting firm of Flournoy & Beasley, of Alexandria, La., to represent it before the Internal Revenue Department in adjusting said claim. It is necessary for any one who appears for another before this department, or any of its units, to have a written power of attorney, and when the power of attorney was .presented by the accountant firm to defendant for signature, it not only contained the name of Flournoy & Beasley, but also the name of the plaintiffs herein. Defendant made arrangements with the accounting firm for the employment of said accounting firm and to pay them certain fees. When the matter was finally wound up and settled, the defendant had been saved between $16,000 and $17,000. The accounting firm of Flournoy & Beasley were paid the fees agreed upon, amounting to about $2,400. Later the plaintiffs presented a bill to defendant for $1,750 for services claimed to have been rendered in the matter, and, when same was not paid, filed this suit.

Plaintiffs base their claim of employment entirely upon the power of attorney, which reads as follows:

“Know all men by these presents, that we, Henry E. Hardtner, of Alexandria, Louisiana, president and secretary-treasurer, respectively, of the Urania Lumber Company and- Natchez, Urania & Ruston Railway Company, of Urania, Louisiana, corporations organized under the laws of the state of Louisiana, do hereby make, constitute, and appoint W. C. Flournoy and J. W. Beasley, of Alexandria, Louisiana, both of the firm of Flournoy & Beasley, public accountants, Alexandria, Louisiana, and Richard S. Doyle, attorney of the legal firm of Hopkins, Starr, Hopkins & Hamel, of Washington, D. C., our true and lawful attorneys, for us, and in our name, place, and stead, to appear before the Treasury Department of the United States, or any Bureau thereof, or any official or officials of said Department, in all matters pertaining to the determination, assessment, collection or payments of any taxes which may be due by the said Urania Lumber Company and Natchez, Urania & Ruston Railway Company, to the United States, or pertaining to claims for abatements, credit or refunds, based on the assessment or payment of any amounts as such taxes — to inspect any and all returns made by the corporations under the Revenue Acts of 1917, 1918, 1921 and 1924, respectively — to receive and receipt for in behalf of the corporations all checks and warrants made by the United States on account of any refunds made or allowed — and generally to do, execute, and perform every act and thing whatever necessary or proper to be done with respect to the premises.

“In witness whereof, we have hereunto set our hands and corporate seal, on this -day of -, 1925.”

The original is not in evidence, only a copy, but there is no denial that the above power of attorney was signed by the president and secretary-treasurer.

The testimony shows that the firm of Flournoy & Beasley used the plaintiff firm in all cases where they needed attorneys in Washington, and that their custom was, in taking the power of attorney from their clients, to always insert the name of the plaintiffs as well as their own, and after-wards, if they found they needed Washington attorneys, to use the said plaintiffs without any further power of attorney; that they had inserted plaintiffs’ name in' several other powers of attorney when they made no use of them. One specific case referred to in the evidence is the Ball Bros. Lumber Company. The uncontradicted testimony is that, when the power of attorney was presented to defendant for its signature by its officers, Mr. Flournoy stated that they had inserted their Washington attorney’s name therein; on October 2, 1926, a letter written by Flournoy & Beasley to defendant and signed by W. C. Flournoy, reads as follows:

“We are inclosing herewith copy of a letter from the Treasury Department forwarded us through our Washington, D. C., attorneys.”

Mr. Flournoy testified that he brought the plaintiffs into the case in January or February, 1926, and the power of attorney is shown to have been executed and filed in September, 1925, and that the entire matter they were employed to handle was taken up and threshed out with the New Orleans department prior to the bringing into the case of the plaintiffs; the evidence is conclusive that there was never at any time any meeting of plaintiffs and defendant and there was never any correspondence between them, except the demand for payment of the bill of $1,750 by plaintiffs.

The testimony of Mr. Flournoy is very convincing. Before this suit was instituted, he and Mr. Beasley dissolved partnership, and the business of defendant was retained by Mr. Beasley. Mr. Flournoy says that he has no interest in the suit, other than to stand behind the Washington attorneys. He testified on direct examination that “we (Flournoy & Beasley) were employed to take the case and to defend them against the government.” He also testified:

“Well, they gave us the customary power of attorney to do all things needful and necessary before the United States Internal Revenue Bureau, both in New Orleans and in Washington, D. C. I devoted considerable time to it, both in the office of the Urania Lumber Company as well as in our office, and also in Washington, D. C. The major item was a depletion charge of $50,000, which the government disallowed, and which was the basis of our investigation through our Washington attorneys. We were enabled to get the timber valuation engineers in Washington, D. C., sustain the reduction of the depletion originally claimed by the Company and later disallowed by the field agents. That was really the work we were employed for, and that was what we employed the Washington attorneys for.”

He further testified:

“We couldn’t operate without an attorney in Washington.”

When Mr. Flournoy returned from Washington in the spring of 1926, and notified Mr. Beasley, his partner, that he had brought the plaintiffs into the case, Mr. Beasley strenuously objected, on the ground that they did not need the services of an attorney in this matter, and for the further reason that the fee made with defendants by them would not justify paying an attorney, and they could not expect any more than was agreed to, to which Mr. Flournoy replied that plaintiffs would be satisfied with a nominal fee, which was shown to be $100.00.

' Mr. Hardtner, secretary-treasurer and general manager of the defendant company, testified that he employed Flournoy & Beasley to handle this matter, and that he did not employ plaintiffs, and had no knowledge of their being in the case until he received their bill several months after the matter had been settled and he had paid the accountants, Flournoy ,& Beasley, in full. His testimony is as follows:

“I employed the firm of Flournoy & Beasley to represent us and I signed whatever they recommended and if they brought a paper for me to sign, I signed it. If they brought me a power of- attorney to sign, I signed it.”

Mr. Doyle, one of plaintiffs, testified that Mr. Flournoy, of the firm of W. C. Flournoy & Co., took up the matter with him (Doyle) of representing the Urania Lumber Company, Limited. He does not claim that he had any dealing in regard to employment with the defendant, or even had any correspondence with defendant in regard to the case; neither does he claim that any fee was ever fixed by any one.

The evidence is convincing that the defendant never had any intention of employing any one other than Flournoy & Beasley and that Flournoy & Beasley never had any intention other than to pay plaintiffs a nominal fee out of their fee; that the only contract of employment plaintiffs had was with Flournoy & Beasley, and defendant could not be held liable under such contract.

■ Where counsel makes a written contract to transact certain business for a given per cent of the sum realized, he cannot charge his client with the fee of other attorneys whom he employs to perform the work. Hughes vs. Zeigler, 69 Ill. 38; In re Hynes, 105 N. Y. 560, 12 N. E. 60.

There is much evidence on the question of the services performed by plaintiffs and the amount they are entitled to for said services; however, it is unnecessary to go into this phase of the case under our finding.

There is evidence suggesting collusion between the plaintiffs and their witness, Flournoy, who was formerly a member of the firm of Flournoy & Beasley, neither of whom attempted to clear the suggestion up, and, to the contrary, refused to file in the record the correspondence between them on the subject of the present suit. But, under our finding in the case, it can have no bearing.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be reversed, and there be judgment rejecting plaintiffs’ demands, at their costs in both courts.


author: ODOM, J.

text:
    No. 3732
    Second Circuit
    REED ET AL. v. ROSS ET AL.
    (March 24, 1930. Opinion and Decree.)

      Chris Barnette; Barnette & Roberts, of Shreveport, attorneys for plaintiffs, appellees.
    Coleman Lindsay; Mclnnis & Campbell, of Minden, attorneys for defendants, appellants.
   ODOM, J.

On December 31, 1927, plaintiffs, R. A. and H. C. Reed, leased to J. E. Ross and J. I. Gearrald certain property which they owned in the parish of Webster, granting to defendants the privilege of extracting from said land gravel at the stipulated price of 7% cents per cubic yard. The lease contract, which is in writing, provides that the lessees shall develop the property and shall furnish to the lessors an itemized statement of all gravel mined and sold, with certified copies of bills of lading covering the same on the first day of each month showing the amount of gravel ’mined and sold during the previous month. The contract further specifically provides that the lease cannot be assigned without the consent of the lessors.

By this suit, plaintiffs seek to annul said lease on the ground that the contract was violated by the lessees, in that they failed to develop the property as contemplated and stipulated in the lease, and that the lessees have, in violation of the provisions of the contract, assigned the same to the Big Four Gravel Company which company took possession of the property and proceeded to develop it. The suit was brought against the original lessees and the Big Four Gravel Company. All defendants filed exceptions of no cause and no right of action, which exceptions were overruled by the court. Defendants then answered admitting that the original lessees had assigned the lease to the Big Four Gravel Company, and that the act of assignment is recorded in the conveyance records of Webster parish; and further admitting that the Big Four Gravel Company had taken possession of the property and had extracted therefrom certain quantities of gravel for which it had not paid; but it is especially alleged that it had tendered to plaintiffs the price or value of the gravel so taken. They deny that the ’ease contract was in any sense violated, and especially allege that the assignment of the lease by defendants, Ross and Gear-raid, to the Big Four Gravel Company, was valid and binding on plaintiffs.

There was judgment in the lower court in favor of plaintiffs and declaring that the lease contract had been violated and canceling the same; and against the Big Four Gravel Company for the value of the gravel taken by it. From this judgment, defendants have appealed.

OPINION

The testimony shows beyond question that the original lessees, Ross and Gear-raid, made no attempt whatsoever to develop the property as contemplated by the lease contract, but, on the contrary, made an assignment of the lease to the Big Four Gravel Company. Defendants made no effort to show that the assignment of the lease by Ross and Gearrald to the Big Four Gravel Company was made with the consent of the lessors. They did attempt, however, to show that plaintiffs had knowledge of the fact of the transfer, and, further, that plaintiffs knew at the time the lease was made that Ross and Gearrald, the lessees, intended to assign the same to a corporation then in contemplation. The testimony, however, convinces us that plaintiffs had no knowledge either of the intention of the lessees to transfer the same or that the contract had been assigned to the corporation until a short time previous to the institution of this suit. The testimony further shows beyond question that the contract was breached, in that no statements of the amount of gravel taken were rendered to plaintiffs on the first of each month, and that no payments were tendered until after the suit was filed. There is some testimony in the record showing that plaintiffs knew of the existence of a corporation styled, “Big Pour Gravel Company,’’ hut there is no testimony to show that they had knowledge that the said gravel company was taking gravel from the land. One of the plaintiffs visited the mine on several occasions while 'it was being operated and found Mr. Ross in charge; and, while Mr. Ross seems to have been connected with the defendant corporation, there is no testimony to show that plaintiffs knew that he was in charge for the corporation.

The district judge found and held that the lease contract had been breached and ordered it canceled, and we think his findings are amply supported by the record. Since the appeal was lodged in this court, defendants have not appeared through counsel to point out the errors of which they complain, although counsel of record were timely notified of the setting of the case for argument in this court.

By reference to counsel’s brief filed in the lower court, we infer that they relied mainly upon. the exceptions of no cause and no right of action filed by them in limine, which, as stated, were overruled. Those exceptions were grounded upon the proposition that plaintiffs could not maintain an action for the -dissolution of the lease contract .and at the same time recover against the Big Pour Gravel Company for gravel taken under the terms of the lease; in other words, that plaintiffs could not in the same suit claim the dissolution of the lease and the benefits of it. The district court correctly overruled the exceptions of no cause of action. The suit to recover for the gravel taken by the Big Pour Gravel Company, one of the defendants, was not on the contract, hut on a quantum meruit. It is not alleged, c counsel appear to have argued in the lower court that the gravel was taken by the Big Pour Gravel Company under the terms of the lease contract. The allegations are that the defendant corporation had taken certain quantities of gravel from the property under their assignment of the lease to them, which assignment, plaintiffs alleged, was invalid because made without the consent of plaintiffs. See John Brown vs. The Laura Snow, 14 La. Ann. 848.

The amount for which judgment was granted is not disputed by defendants. The judgment appealed from is correct «and is accordingly affirmed, with all costs.

DREW,. J., recused.


author: HIGGINS, J.

text:
    No. 11,986
    Orleans
    INTERSTATE ELECTRIC CO. v. D'ANTONI BROS. ET AL.
    (February 17, 1930. Opinion and Decree.)
    (March 10, 1930. Rehearing Refused.)
    Lemle, Moreno & Lemle, of New Orleans, attorneys for plaintiff, appellant.
    S. Roccaforte, of New Orleans, attorney for defendants, appellees.
   HIGGINS, J.

Plaintiff sued defendants, a commercial partnership, and- the partners thereof, in solido, for- the sum of $276.60 on.an open account for merchandise alleged to have been delivered from August 1 to September 17, 1927. Defendants denied liability on the ground that their brother, Biagio J. D’Antoni, who was in charge of-the operation of their garage, was without authority to open the account and make any purchases for the defendants. There was judgment ..in favor of defendants, dismissing plaintiff’s suit, and plaintiff has appealed.

The record shows that D’Antoni Bros, was a commercial partnership composed of Salvador J. D’Antoni and Louis J. D’Antoni. The partnership was engaged in the garage business in New Orleans with Biagio J. D’Antoni, a brother of the partners, in actual charge of the operation of the business, the partners being employed by the Standard Fruit Company in this city.

Plaintiff is a wholesale house, and a large part of its business is supplying automobile and electrical, goods to garages and service stations. This company had regularly sold goods to D’Antoni Bros.’ garage on a cash basis. The salesman who secured these orders suggested to Biagio J. D’Antoni that he open a credit account with plaintiff, and was told that this would have to be done through his brothers, Salvador or Louis D’Antoni. The matter was then referred to O. H. Rasch, secretary-treasurer and credit manager of the plaintiff company, as was the customary procedure. Rasch, after checking defendant’s credit rating, and finding it good, telephoned the office of the Standard Fruit Company, and asked to speak to one of the D’Antoni brothers, and he testified that one of the brothers authorized him over the telephone to open the account. The goods were then delivered on the orders of Biagio J. D’Antoni over the period of August 1 to September 17, 1927. Both partners denied having any such conversation with Rasch, but admit they checked over the hills of the plaintiff for the goods alleged to have been delivered to the garage, and paid the items which they had authorized.

The plaintiff’s witness, Rasch, testified that Biagio J. D’Antoni was in actual charge of the operation of the garage. It is admitted by the defendant partners that they had placed their brother in charge of the garage, hut, they say, not as manager, as he was “irresponsible.’’ It appears that the partners, employed by the Standard Fruit Company, went to the garage whenever they had an opportunity, and particularly in the evening, for the purpose of seeing how the business was getting along.

We are convinced that Biagio J. D’Antoni •was in actual charge and operating the business for the partnership, with actual or ostensible authority to order merchandise necessary in connection with the operation of the business. We are further of the opinion that Rasch, credit manager of plaintiff, did call up one or the other of the brothers at the Standard Fruit Company, and was authorized to open the account in question: We are fortified in this opinion because there would have been no necessity for changing the arrangement from a cash to a credit account, except to accommodate defendants.

D’Antoni Bros, made no complaint during the period of August 1 to September 17, 1927, when the merchandise was delivered, and, in fact, the account was 90 days past due when demand for payment was made upon them, and they refused to pay on the grounds of want of authority, as urged in the defense. The fact that they actually paid for a number of the articles delivered under the account shows that they had knowledge of the existence of the account, and there is nothing in the record to show that they ever instructed the plaintiff not to deliver any merchandise ordered by Biagio J. D’Antoni, who had at least ostensible authority to order merchandise necessary in the operation of -the business. The account in question covers only such commodities.

We find that plaintiff has made out a case by a preponderance of the evidence, and is entitled to recover. However, the record shows that plaintiff was unable to properly prove delivery of all the merchandise, but did prove delivery of goods aggregating the sum of $228.50.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be and it is annulled, avoided, and reversed, and that there now be judgment herein in favor of the Interstate Electric Company, plaintiff, against the defendants, D’Antoni Bros., a commercial partnership composed of Salvador J. D’Antoni and Louis J. D’Antoni, and the said Salvador J. D’Antoni and Louis J. D’Antoni, defendants, in solido, in the full sum of $228.50, with legal interest from judicial demand until paid, and all costs of court.


author: WESTERFIELD, J.

text:
    No. 11,623
    Orleans
    HEBERT v. SUCCESSION OF VEZOUX
    (February 17, 1930. Opinion and Decree.)
    (March 10, 1930. Rehearing Refused.)
    Prowell, McBride & Ray, and Welton P. Mouton, of New Orleans, attorneys for plaintiff, appellant.
    Charles J. Rivet, of New Orleans, attorney for defendant, appellee.
   WESTERFIELD, J.

This is a suit for damages for the alleged breach of a contract to purchase certain real estate belonging to plaintiff. Fernand Vezoux had contracted to buy the property and, at the time of his death, had failed or refused to execute the agreement.

In deciding the case adversely to plaintiff, the trial court gave the following reasons:

“Of the defenses urged by the Succession, I need consider only that which is based on the fact that the title of Hebert to the property in question was subject to restrictions on the use and disposal of it, none of which was mentioned in the contract on which Hebert relies.

“In this State agreements relating to real estate can result only from writings. The contract here, in effect, stipulated for Vezoux’s full dominion of the property he- intended to buy. But if jus fruendi and jus disponendi were limited, he could not get full dominion.

“It appearing that Hebert was unable to convey the thing which the contract obligated him to deliver to Vezoux, his suit must fail.”

The views expressed by our learned brother below are in exact accord with our opinion in Carrado Giacoma vs. J. C. Yochim et al. (No. 11681) 126 So. 84, decided January 27, 1930, and for the reasons therein given the judgment appealed from is affirmed.


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    No. 3623
    Second Circuit
    TERRELL v. ALEXANDRIA AUTO CO., INC.
    (January 31, 1930. Opinion and Decree.)
    (March 24, 1930. Rehearing Refused.)
    Polk & Robinson, of Alexandria, attorneys for plaintiff, appellee.
    K. Hundley, of Alexandria, attorney for defendant, appellant.
   DREW, J.

Plaintiff placed with defendant an order for a Durant sedan automobile. The order was made on an ordinary order blank, and reads as follows:

“You may enter my order for one 4 Cyl. Durant 4 Door Sedan to be delivered to me on or about or soon as possible, Dec. 15th 1928. Cash Price of Car-Price at time of delivery fully equipped. Allowance for Star touring car $212.50. Balance, Reg. terms.”

This order was, signed by plaintiff on August 9, 1928, and accepted by W. F. Walker and Salesman C. R. Scroggs.

About 30 days after placing the order, plaintiff notified defendant that he was not going to be in financial condition to take out the ear ordered, and requested defendant to allow him to take in its stead a secondhand car that defendant had secured. Defendant refused to allow him to make the change, for the reason that the price allowed for plaintiff’s Star car was based on the price of the new car he had ordered, and insisted on plaintiff’s taking the car ordered. Plaintiff, on another occasion, told defendant that he would be unable to take out the new car and offered to allow defendant a commission for selling his Star car, and requested the return to him of the price allowed for his Star automobile, less a commission for handling it. This also was refused by defendant, and it insisted on plaintiff’s carrying out his original contract. On the 21st day of November, 1928, defendant sold the last car it had and did not order any others for the reason given, that there was to be a change in the car, consisting of improvements, and possibly lowering of price, and that to stock up four cars, which was one carload, at' that time of the year would have been a foolish thing to do, and would have entailed heavy loss on defendant, due to the fact that the new model car was in process of being put on the market at that time.

After plaintiff had notified defendant that he could not take the car- ordered, there was nothing more that passed between them until the 17th day of December, 1928. On that day plaintiff went to defendant’s place of business and demanded the car he had ordered. Defendant told him they had no new cars on hand, and the reason for not having them on hand, but offered to go to Shreveport and drive a car from there to Alexandria for him the next day. This plaintiff refused, stating that he did not want any one driving his car. Defendant then offered to take plaintiff himself, or any one he would designate, and pay all expenses of the trip, and to pay for any time lost on account of the trip, and to allow plaintiff, or the one he designated, to drive the car through from Shreveport to Alexandria, a distance of 135 miles. Plaintiff refused this offer, and stated that he wanted a car delivered to him from the freight car in Alexandria, and would not accept anything else, and de: manded that defendant pay to him the $212.50 allowed him in trade for his Star automobile. On the same day, plaintiff addressed a letter to defendant in which he demanded delivery of a car as ordered by him, not later than December 20, 1928, and stating that he would accept only a car delivered to him from the freight car at Alexandria, and, in default, he demanded the payment to him of the price allowed for the Star car traded to defendant. Defendant did not comply with the demands of plaintiff and he instituted this suit for the price of the Star automobile, $212.50, and $50 damages for failure to comply with the contract. The case was tried in the city court of Alexandria, and there was judgment for plaintiff in the sum of $212.50, together with 5 per cent per annum interest thereon from February 7, 1929, until paid, from which defendant appealed to this court. Plaintiff has not answered the appeal; therefore the question of damage in the amount of $50, which was not allowed by the lower court, is not before us.

The only question for this court to decide is: Was the delivery offered by defendant a substantial compliance with the contract? It was not necessary for defendant to bring the car from Shreveport to Alexandria and tender it to plaintiff to put him in default. After that was offered and plaintiff positively refused the offer, default was unnecessary.

“Where a 'party refuses * * * to comply with his obligation, the other party need not formally put him in default. No one is required to do a vain and useless' thing.” Stockelback vs. Bradley, 159 La. 336, 105 So. 363, 364.

A delivery within a reasonable time after December 15, 1928, was in compliance with the contract under the wording “on or about Dec. 15th, 1928.” The offer was made on December 17th, stating that delivery could be made the following day, and the contract was not breached as to the time of delivery.

Plaintiff contends that his order was for a new car, and that a car driven from Shreveport to Alexandria, a distance of 135 miles, is not a new car but a driven car as distinguished from a used car, and, although the order is silent as to where delivery is to be made, that custom is, to be made at defendant’s place of business, or plaintiff’s home. The testimony of all witnesses, except plaintiff, being eight in number,' is that it was the custom to drive cars through from Shreveport, Lake Charles, and New Orleans to fill orders, and that the same was done many times without any objection from purchasers; that cars properly driven from that distance was not injured, and had always been considered new cars; that the insuranee company insured them as new cars and all finance companies took the paper on them -as new cars; and that a car driven from Shreveport to Alexandria for the purpose of delivery to fill an order was guaranteed as any other new car, and at certain times, if they were not allowed to drive cars through from one place to another, a number of the smaller automobile dealers would be forced to go out of business.

In interpreting a contract not specific in Its wording, it is necessary to take into consideration the custom of the place and the usual and customary manner of fulfilling like contracts in arriving at what was the reasonable expectation of the parties to the contract at the time it was made.

Where a contract is capable of construction in accordance with justice and fair dealing, the court will adopt such construction, instead of one entailing loss to a party to the contract. Civil Code, art. 1951. Ascension Red Cypress Co., Ltd., v. New River Drainage District, 149 La. 764, 90 So. 165.

It therefore follows that defendant’s offer to deliver a car of the kind and make ordered by plaintiff to him by driving the same from Shreveport to Alexandria, or allowing him to drive it through, was such a compliance with the contract as could have been expected by plaintiff, and plaintiff’s refusal to accept a car under those conditions was a refusal to comply with the contract.

Plaintiff relies almost entirely upon the authority of the ease of Wilcox vs. Central Louisiana Motor Car Co. et al., 1 La. App. 461. The two cases are distinguished, in that the facts are entirely different. The facts of the case relied upon by plaintiff are that the car was to be delivered by December 22, 1922, and that the date of delivery was finally postponed by consent of both parties until August 1, ’ 1923, that since that time the plaintiff had made repeated demands upon the defendant for delivery of the car, and that the defendant never at any time offered to make said delivery, and, in answer to the suit of the plaintiff, alleges that it has been impossible for defendant to make delivery of this particular type of car, and that it will make delivery as soon as it is able to secure one. Defendant does not attempt to say when it can make delivery, and the evidence showed that it did not have the factory agency of the car sold to the plaintiff.

In the case cited by plaintiff there was no offer of delivery, because, as alleged by the defendant, it was impossible to make delivery, and in the present case defendant insisted on making delivery, and said delivery was refused by the plaintiff without any reason that could be held to be good. Courts cannot uphold the peculiar whims of litigants that are not founded on sound reasoning and law.

Defendant reconvenes, praying that there be judgment in its favor declaring forfeited to defendant the deposit made by plaintiff on the car described, and that the court fix a date upon which plaintiff shall take delivery of said car under penalty of forfeiting said deposit.

The record is silent as to the damage to defendant by reason of plaintiff’s breach of contract in refusing to take the car. Defendant is entitled to whatever damage was occasioned him by the breach of contract. Bolling vs. Red Snapper Sauce Co., 97 Miss. 785, 53 So. 394. Therefore his demand for forfeiture of the deposit of $212.50 as damages will be nonsuited.

It is therefore ordered, adjudged, and decreed that the judgment of the city court, Alexandria ward, Rapides parish, La., be reversed, avoided, and annulled, and that there be judgment in favor of the defendant, Alexandria Auto Company, Inc., rejecting the demands of the plaintiff, E. H. Terrell, at his cost in both courts. And it is further ordered, adjudged, and decreed that the reconventional demand of the Alexandria Auto Company, Inc., for forfeiture of -the deposit money be rejected, reserving to the plaintiff and to the defendant each the right to urge in another action whatever rights • either have in and to the $212.50 deposited in part payment of the Durant car.


author: JANVIER, J.

text:
    No. 11,903
    Orleans
    FORSTALL v. STEWART
    (March 10, 1930. Opinion and Decree.)

      Frank A. Miller and Solomon S. Goldman, of New Orleans, attorneys for plaintiff, appellee.
    Louis Jung, of New Orleans, attorney for defendant, appellant.
   JANVIER, J.

Defendant sold to plaintiff an electric refrigerator. Plaintiff sues for the rescission of the sale and the return of the purchase price, to-wit: $325, alleging that the refrigerator was defective and that after several attempts defendant was unable to adjust it so that it would operate satisfactorily.

Defendant contends that he was not able to satisfactorily adjust the machine because, though his employees called several times, it was impossible for them to enter plaintiff’s residence due to his absence.

When the machine was first installed the employee who connected it had difficulty in doing so and had to break open a sealed compartment which the builders did not intend should be opened. On four different occasions this same employee called at the residence of plaintiff but was never able to fix the machine so that it would operate properly.

We are well convinced from the record that the machine was defective; that defendant was given ample opportunity to correct the defects and could not do so.

When defendant himself was placed on the witness stand he stated that he had had no complaints from other users about defects in their machines, but his memory seems to have been very poor on this point because our attention is called to the fact that only three months before giving this testimony he had brought suit against the manufacturing company which sold him the machines and had alleged in that suit that they were so defective that he had been besieged with complaints about them.

The district court felt as we do but, although the prayer attached to the petition asks that the sale be rescinded, the judgment rendered merely ordered the return of the purchase price to the plaintiff. Of course, if the plaintiff is to receive back his purchase price, the defendant should also receive back his merchandise.

It is therefore, ordered, adjudged and decreed that the judgment appealed from be and it is amended so as to read as follows:

It is ordered, adjudged and decreed that there be judgment in favor of plaintiff, Harry Forstall and against the said defendant, Samuel B. Stewart in the full sum of $325 with legal interest from judicial demand until paid and that said Samuel B. Stewart be ordered and required to receive back and to remove the refrigerator. All costs to be paid by defendant and appellant.


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    No. 3673
    Second Circuit
    BUCKNER v. POWERS
    (January 31, 1930. Opinion and Decree.)
    (March 24, 1930. Rehearing 'Refused.)
    Hawthorn tsc Stafford and John L. Pitts, of Alexandria, attorneys for plaintiff, appellee.
    Overton & Hunter and Dawkins & Roberts, of Alexandria, attorneys for defendant, arppellant.
   ODOM, J.

Plaintiff brings this suit to recover the damage done to his automobile when it collided with the car belonging to defendant on a street intersection in the city of Alexandria. He alleges that he was free from negligence in the operation of his car, and charges that defendant’s son, who was driving the other car, was guilty of gross negligence in that he was driving at an excessive rate of speed, and that he left his own side of the street and veered to the left, when he should have swerved to the right. Defendant denied negligence on the part of his son, and pleaded contributory negligence on the part of plaintiff in bar of his recovery. The lower court found for plaintiff and rendered judgment in his favor for $501.01, from which judgment defendant appealed.

There are only questions of fact involved, and, while we disturb judgments of lower courts based solely on questions of fact with some reluctancy, yet we find it necessary to do so in this case, as the lower judge, we think, manifestly erred. A careful consideration of the whole case has convinced us that even if it be conceded, as counsel for plaintiff contend, that defendant’s driver was negligent, plaintiff’s right to recover is barred by his own contributory negligence.

The collision took place at the intersection of Murray and Sixteenth streets in the city of Alexandria, at 10:30 p. m. Each of these streets is 32 feet wide from curb to curb. Murray is a right of way street, under an ordinance of the city, and is graveled. Sixteenth street has been graded, but not graveled, is rough, and crosses Murray street at right angles. On the night of the accident, plaintiff was driving along Sixteenth street towards Murray. He alleged that, at about the time his car arrived at the intersection, he slackened its speed, so that when he entered the intersection he was traveling about 5 miles an hour; that “just before he entered said street” he looked both to the right and to the left, and saw the car approaching from the left which proved to be the one driven by Werner Powers, son of defendant; that “just before” he got to the intersection, and slowed down, the defendant’s car was about 450 to 500 feet away; “that at the moment that petitioner’s car entered the intersection it (defendant’s car) was perhaps 350 feet away; that the said Werner Powers (driver of defendant’s car) was driving along Murray street at a very rapid rate of speed, estimated by petitioner at between 45 and 50 miles per hour; * * * that, seeing the car some distance away, petitioner felt that he had ample time to cross Murray street, and to reach the far or right side of the said street long before the Powers «car arrived at Sixteenth street; shows that he entered and was more than half way across the intersection of the two streets when, due to the negligence and carelessness of the said Werner Powers, his car was struck and damaged by the auto driven by the said Powers; * * * that after his car had entered the intersection of Sixteenth and Murray streets, and when the Powers car was only a few yards away, the driver of the Powers car suddenly veered his car to the left, entirely leaving his own right side of the street; that petitioner saw said car veering to the left, but, due to the speed of the approaching car and its nearness, it was impossible for petitioner to get out of its path.”

Plaintiff’s testimony, which is corroborated by that of Miss Cox, a young lady who was riding on the seat with him, is in substantial accord with the above-quoted allegations of the petition. These allegations and the testimony show that plaintiff entered the intersection when he saw the other car bearing down upon him from the left at what he considered a rapid rate of speed, and the testimony as a whole, taken in connection with the physical facts, shows that he entered the street at a time when the other car was so close upon him that he could not get | out of its way.

If the driver of defendant’s car was exceeding the speed limit on Murray street, as fixed by ordinance, as contended by plaintiff, he was guilty of negligence as a matter of law; but conceding that he was negligent in that respect, it does not necessarily follow that plaintiff may recover, because, if plaintiff was also negligent and his negligence was the contributing, proximate, and not the remote, cause from which the injury arose, he cannot recover.

The negligence rule generally is stated in 28 Cyc. p. 38, under the heading “Motor Vehicles,” as follows:

“The act or omission alleged to be negligent must always be the proximate cause of the injury in order to be actionable; and so, too, must the alleged contributory negligence be, in order to bar recovery, such that the injury would not have been sustained except for such negligence.”

Conceding, as contended by plaintiff, that defendant’s driver was guilty of actionable negligence, we hold that plaintiff’s right to recover is barred by his own contributory negligence, which was the prime cause of the accident. The city traffic ordinance makes Murray a right of way street and contains the general provision that “it shall be the duty of the driver or person in charge of any vehicle using the streets of Alexandria, Louisiana, which do not have the right of way, as herein-above set forth, upon approaching intersections of streets, to stop if necessary in order to avoid collisions with vehicles using streets which have the right of way. Drivers of vehicles, before stopping, turning, slowing down or changing the course, shall ascertain that such movement can be made in safety and shall make known their intention by signaling with the hand.”

Flaintiff testified that he knew Murray was a right of way street and that he was reasonably familiar with the traffic laws of the city, as he had lived there for a number of years and was accustomed to driving a car. He did not stop, he says, when he reached Murray street, because he felt that he had time to cross before the other reached the intersection. That he was mistaken, is demonstrated; the cars collided in the intersection.

The testimony as a whole and the physical • facts show that defendant’s car was almost to the intersection when plaintiff entered. He alleged and testified that, just before he reached Murray street,' defendant’s car was about 450 to 500 feet away, and that, at the moment his car entered the intersection, the other car was perhaps 350 feet away. These figures are estimates only, and that they are far from correct is shown by the physical fact that the collision took place in the intersection. If defendant’s car had been as ’far away from the intersection as plaintiff says it was when he entered, there would have been no collision, because plaintiff could have crossed the street and gotten out of the way. Plaintiff testified that he entered the intersection, going possibly 5 or 6 miles an hour, and that he accelerated his rate of speed when he saw defendant’s car nearing him, and that he had passed the center of the intersection and lacked only about 5 or 6 feet of being across Murray when the cars collided. Taking plaintiff’s estimate as correct, defendant’s car traveled 350 feet while plaintiff’s was traveling only about 24 feet, so that, from the moment plaintiff entered the intersection to the moment of the collision, defendant’s car traveled more than 14 times as far as plaintiff’s. If plaintiff’s car was going across at an average rate of speed of 7 miles an hour, and that is a fair estimate according to his testimony, he was going approximately 10 feet per second and it took him 2% seconds to cross. Then, in 2% seconds, defendant’s car, in order to reach plaintiff, had to run 350 feet, or 140 miles an hour, which, of course, is impossible.

Plaintiff in his testimony changed his figures somewhat, and said that, when he got to the intersection, defendant’s car was 350 feet down the street, and that when he got into the intersection the car was 150 feet away. These figures are also irreconcilable with the fact that the collision took place in the intersection as it did. If defendant’s car was 150 feet down the street when plaintiff’s car was well within the intersection and moving at 6 or 7 miles an hour, it could not have reached the intersection and struck plaintiff as it did without running at a rate of speed of more than 100 miles an hour. In view of the fact that the collision took place in the intersection, before plaintiff got across, makes the conclusion inescapable that he entered the intersection when defendant’s car was almost upon him.

Defendant’s son, who was driving the car, testified that he was proceeding along Murray street at a speed of 15 to 20 miles an hour; that he saw plaintiff’s car approaching Murray from - Sixteenth street when he was about 50 or 60 feet from the intersection, but did not know or anticipate at the time that plaintiff would enter the crossing without stopping, and, knowing that he had the right of way, he assumed that plaintiff would stop before entering the crossing, and that he took no precautions until he saw plaintiff’s car going into the intersection; that he did not know that plaintiff would -enter the crossing until his own car was almost to it; that he then reduced his speed and applied his brakes, which worked perfectly, but that it was then too late to avert the collision, as the two cars were almost together. He says further that he was so close to plaintiff’s car when he saw that it was coming into the intersection that he swerved to the left in order to go in front of it, as that seemed at the time to be the proper move, but that he realized later that, if he had swerved to the right instead of to the left, there probably would have been no collision, although, if he had gone straight ahead, the two cars would have collided about the center of the intersection. This testimony accords more nearly with the physical facts than does the testimony of plaintiff.

The situation presented by the record as a whole is this: Plaintiff knew that Murray was a right of way street; he saw defendant’s car coming down that street from his left when he was 30 feet from the intersection and slowed down from 15 to 5 miles an hour; that he saw it when he got to the street, but did not stop. It was night, and plaintiff says that he could not estimate the speed of defendant’s car for that reason, and for the further reason that it was approaching from an angle. Under these circumstances, he should have been doubly careful. He knew that it was his duty under the ordinance to yield to defendant’s ear its superior right, and to stop, if necessary. Instead of heeding the plain provision of the traffic ordinance and the ordinary rule of safety, plaintiff entered this main right of way highway from an intersecting street, when he saw another car bearing down upon him. He was, we think, guilty of the grossest kind of negligence.

Defendant’s car being on. a right of way street under the municipal ordinance, and therefore having a superior right at the crossing, the driver of it had the right to assume that plaintiff not only knew the law, but would observe it, yield the right of way and take the necessary precautions for his safety. It was not negligence for defendant’s driver to fail to anticipate plaintiff’s negligence in driving into the intersection without taking the precautions required by the traffic ordinance and dictated by the ordinary rules of safety. It is argued, and true, we think, that if defendant’s driver had applied his brakes when he first saw plaintiff’s car approaching the intersection, he could have stopped, or at least so slackened its speed as to avoid the collision; but, when he first saw plaintiff approaching, he assumed, and had the right to assume, that plaintiff would observe the traffic regulations of the city. Not only that, but the indications were that plaintiff intended to stop. Plaintiff himself says that he was running about 15 miles an hour, and that, as he approached the crossing, he slackened his speed, so that, when he reached the edge of Murray, he was going not more than 5 or 6 miles an hour. Under these circumstances, it was not the duty of defendant’s driver to stop and wait to see if plaintiff intended to stop. But it was his duty, of course, to do all that was reasonably possible for him to do to stop and avert the collision, when and after he saw that plaintiff was not going to stop. This we think he did.

The fact that cars on certain streets are given the right of way under municipal traffic regulations does not absolve the drivers of such ears from all care; but the duty of using due care to avoid injuring those who approach Intersections from less-favored streets still rests upon him, even though his right is superior. But, in arriving at a correct conclusion as to whether he used due care, a consideration of his superior right is an important factor. If by ordinance he has a superior right at the intersection, the degree of care required of him in approaching the crossing is less than it would be if he had no such right. On the other hand, the duty of one approaching a right of way street from one less favored is correspondingly greater because of his inferior right.

The rule is thus stated by Blashfield in his Cyclopedia of Automobile Law (1927), vól. 1, p. 499, sec. 25:

“The fact that one traveler is given the right of way over another, either because of the relative position in which they approach the intersection or because traffic in one direction is given preference over that going in a different direction, affects the question of care to he exercised by the latter. The priority of right of one driver imposes a corresponding duty on the driver having the inferior right of way to exercise a degree of care commensurate with the superior right of the other to observe the car of the other, its speed,( position and operation, and to wait until' it has passed before attempting to cross the intersection. * * *

“A driver not having the right of way, who sees a car approaching at a negligent rate of speed, cannot assume that it will slow down at the crossing and attempt to cross first on such assumption; and a motorist who at night approaches a street, traffic on which is given the right of way, without sounding his horn, and collides with a car on such favored street, which is traveling at a reasonable speed, showing side lights, is guilty of negligence as matter of law.”

This rule has been consistently adhered to by this court. McCalmont vs. Sterkx, 5 La. App. 730; General Exchange Insurance Corporation vs. Morrow, 9 La. App. 487, 121 So. 304; De La Vergne vs. Levy, 10 La. App. 768, 123 So. 182; Hubert vs. Robichaux, 8 La. App. 789. See, also, Berry on Automobiles (6th Ed.), vol. 1, sec. 1056.

Counsel for plaintiff in their brief say:

“Counsel contends that under the doctrine of McCalmont v. Sterkx, 5 La. App. 730, Smith v. Interurban Transportation Co., 5 La. App. 704, etc., the driver of a car coming into a main highway must first ascertain that he can cross it in safety before he enters it. We concede that this is the law and it is good law. We advanced it in the Smith case, in which we successfully made the defense now tendered. The rule contended for is not pertinent here, for we believe that we can show that the Buckner car had entered, and was well into the intersection some few seconds before the Powers car, and had crossed over into the other side of the street where it belonged, and where the Powers car did not belong. In the instant case Powers was driving at an excessive rate of speed, and really lost control of his car, an element lacking in the Smith case.”

Counsel then proceeded with the argument that defendant’s driver lost control of his car and swerved to the left, when he should have gone straight ahead or veered to the right. It is probably true, as already stated, that defendant’s driver made a mistake in turning to the left, instead of the right; but his mistake in that respect cannot be charged against him as negligence. He was confronted with a sudden emergency. Plaintiff’s car came into the street immediately in front of him. He acted quickly and under impulse. One in peril, or who sees another in peril, when immediate action is necessary to avoid it, cannot exercise the same presence of mind and cool deliberation as under other circumstances. In a case note found in 27 A. L. R., page 1197, it is stated:

“The well-settled rule, stated in the earlier annotation, that an automobile driver, who by the negligence of another, and not by his own negligence, is suddenly confronted by an emergency and is compelled to act instantly to avoid a collision or injury, is not guilty of negligence if he makes such a choice as a person .of ordinary prudence placed in such a position might make, even though he did not make the wisest choice, is supported by the following recent cases.”

Following this statement, there are cases cited from 18 states, as well as from Federal courts. It was not defendant’s negligence which brought about the emergency, but the negligence of plaintiff.

For the reasons assigned, it is ordered and decreed that the judgment appealed from be reversed; that plaintiff’s demands be rejected and his suit dismissed, at his cost in both courts.


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    No. 11,682
    Orleans
    KELLY v. PIPPITONE
    (January 27, 1930. Opinion and Decree.)
    (March 10, 1930. Rehearing Refused.)

      Henry L. Garland, of New Orleans, attorney for plaintiff, appellant.
    Hugh M. Wilkinson and Harry Nowalsky, of New Orleans, attorneys for defendant, appellee.
   JANVIER, J.

Plaintiff, Kelly, and defendant, Mrs. Pippitone, own adjoining houses in this city.

During the year 1921 both the properties in question were owned by Mrs. Annie Kelly, and, as the improvement on each plot occupied too much thereof to permit of an automobile driveway entirely within the limits of either, Mrs. Kelly, in July of that year constructed an automobile driveway consisting of two concrete runways. This driveway, located between the two houses, one concrete strip being on each lot of ground, served two separate garages, one in the rear of each house. On January 9, 1924, Kelly purchased from his mother, Mrs. Annie Kelly, one of the properties, to-wit: No. 3918 Banks street. On December 14, 1922, one E.- Leo Faciane bought the other property, to-wit: No. 3916 Banks street, from Mrs. Kelly, and on March 12, 1926, Faciane transferred it to the present defendant, Mrs. Pippitone.

While the properties were owned by John Kelly and Faciane, respectively, they, by agreement, repaved the driveway so that, instead of its consisting of two concrete strips, it now consists of one solid strip wide enough for an automobile to pass.

On December 19, 1922, the said Faciane and the said Kelly signed a joint statement with reference to the driveway, which statement reads as follows:

“I, E. Leo Faciane, do hereby state that under date of December 14, 1922, I purchased the single cottage, known as 3916 Banks Street, from Mrs. Annie Kelly " (the said Mrs. Kelly being owner of the adjacent property 3918 Banks Street), and that at the time of my purchase, community driveway between the two said properties was in use.

“By mutual consent, it was agreed that this said community ‘driveway would remain in effect for the benefit of myself and Mrs. Kelly’s son, J. W. Kelly, also owner of an automobile. This said community driveway and garage was installed prior to the purchase of the cottage, known as 3916 Banks Street, by the writer.

“In support of the above statement, I hereby affix my signature, and request that the said party, J. W. Kelly, joint-user of this community driveway also affix his.

“(Signed) E. Leo Faciane.

“(Signed) J. W. Kelly.”

On January 18, 1924, the said Kelly and the said Faciane entered into another agreement which reads as follows:

"I, J. W. Kelly, with this statement do certify that under date of January 9, 1924, I purchased from my' mother, Mrs. Annie Kelly, the residence at 3918 Banks Street, this said residence being next to a similar residence owned by E. Leo Faciane, and both parties enjoying the benefit of a community driveway, and being aware of previous agreement existing between Mrs. Kelly and Mr. Faciane, we, the present owners, E.' Leo Faciane of 3916 Banks Street and J. W. Kelly of 3918 Banks Street, do mutually agree to continue the agreement regarding the community driveway, and it is further mutually understood that in the event that either property is disposed of, the present owners agree to inform the future purchaser of this joint agreement.”

Later, Mrs. Pippitone, for reasons of her own, erected a fence on the line dividing her property from that of her neighbor, and, as that made it impossible for an automobile to use the driveway, this suit resulted.

Plaintiff claims that a servitude of passage has been established and that he is entitled to an injunction restraining defendant from interfering with the exercise of the rights resulting from that servitude.

. This claim is based on. articles 767 et seq. of the Civil Code. Article 767 reads as follows:

“The destination made by the owner is equivalent to title with respect to continuous apparent servitudes.....

“By destination is meant the relation established between two immovables by the owner of both, which would constitute a servitude if the two immovables belonged to 'two different owners.”

The servitude claimed results under certain circumstances, from what is termed the “destination du pere de famille.” It is at once apparent that, in order to establish such a right, three essential facts must be shown:

First, the right must have been created by the common owner, the “pere de famille” ;

Second, the right or servitude must be apparent; and

Third, the right or servitude must be continuous.

It is conceded that the servitude claimed was not established by title. Therefore, unless the three essential requirements to which we have referred can be shown to exist, the inescapable result is that article 767 of the Code is not applicable, and if that article does not apply, then the situation is governed by article 766, which, in part, reads as follows:

“Continuous non-apparent servitudes, and discontinuous servitudes, whether apparent or not, can be established only by a title.”

The. servitude claimed is a right of passage, and under Civil Code, article 727, the right of passage is a discontinuous servitude. That the construction of a road or a tramway does not convert a discontinuous servitude to a‘Continuous one is well established in our jurisprudence.

In Ogborn vs. Lower Terrebonne Refining & Mfg. Co., 129 La. 379, 56 So. 323, the Supreme Court said:

“The writer of this opinion thinks that a servitude, the exercise of which necessitates the permanent maintenance of a railroad, consisting of- roadbed, cross-ties, rails, bridges, etc., of which the - dominant estate has the exclusive use, and of which the servient estate has only the burden, is a continuous apparent servitude. It is admittedly so at common' law, and, in the writer’s opinion, must be so under the civil law also, because the basic principles of prescription are the same in the two systems of law. The majority of the court think differently, however.”

In the same case the court, commenting with approval on certain commentators, said:

“Aubry & Rau, commenting on the articles of the Code Napoleon corresponding with the foregoing articles, has the following :

“ ‘Discontinuous servitudes are those which need the act of man to he exercised. What characterizes them is that their exercise does not survive the act of man; it ceases the moment this act ceases. Such is the servitude of way; it is exercised each time the owner of the dominant estate passes over the servient estate, and only during the time occupied in his passing. The law cites as additional examples servitudes of drawing water, of pasturing cattle.

“ ‘These servitudes continue to be discontinuous, notwithstanding that in order that they should be exercised certain apparent works have had to be established. The reading together of articles 688 and .689 shows that the Code has employed two distinct divisions, which must not be confounded, "appearance” .and “continuity.” A servitude of passage which manifests itself by a door or gate, of which the key has been delivered to the owner of the dominant estate, or for which visible works have been constructed — for example, a road across the neighboring estate, a bridge —is none the less discontinuous, according to the classification made by the Code.’ Volume 8, p. 118, No. 248, Servitudes.

“From the standard work, Carpentier et Du Saint (volume, Passage, Nos. 56 and 57), we take the following:

“ ‘The servitude of way may be apparent. It is so if it manifests itself by some exterior work, as a gate, or a macadamized road. But it continues, nevertheless, to be a discontinuous servitude, despite its apparent continuousness, and, inasmuch as the actual action of- man is necessary for its exercise, it cannot be established by prescription; citing Cassation, 24 Nov. 1835; Brahauban (Sirey, vol. of 1836); pt. 1, p. 52; Id., Journal du Palais; 9 Md. 1836, Case of Accloque, Sirey, vol. of 1846, pt. 1, p. 307; Sup. Ct. of Nimes, 1st July, 1845, Case of Gordareau, Sirey, vol. of 1846, pt. 2, p. 14; Journal du Palais, vol. of 1846, pt. 1, 267; Sup. Ct. of Grenoble, Feb. 3, 1849, Case of Barbier, Sirey, vol. of 1849, pt. 2, p. 572; Dalloz, vol. of 1849, pt. 2, p. 235; Delvincourt, vol. 1, 412; Duranton, Servitudes, No. 577; Pardessus, Servitudes, vol. 2, No. 276; Solon, No. 314; Demolombe, vol. 12, Nos. 719 and 771; Aubry & Rau (5th Ed.) vol. 3, No. 248, p. 118; Laurent, vol. 8, No. 128; Bandry-Lacantinerie & Chanuveau, Servitudes, No. 1084.’

“It is thus seen that in France a servitude of passage is none the less discontinuous, within the meaning of the above-quoted article of the Code, if exercised by means of a macadamized road. A road of that character is as apparent and continuous as a railroad; and hence the two are not distinguishable in the present connection.”

Later, in Bomar vs. City of Baton Rouge, 4 La. App. 232, the Court of Appeal for the First Circuit said:

“The fact that the Perkins Road ran over this lot for a period of fifty, sixty or seventy-five years prior to its incorporation within the corporate limits of the city of Baton Rouge does not make proof of dedication. The proof is that after this lot had been taken into the city limits, the public continued to use it as a street of Baton Rouge. This use by the city was a mere continuation of the use which had been made of it as a public road by the traveling public of the parish of East Baton Rouge. This right of passage so enjoyed by the parish, and thereafter by the city, was a mere discontinuous servitude; C. C. 727; and which could be established only by a title, and could not be acquired by possession; C.C. 766.”

See, also, Lawson vs. Waterworks, 111 La. 83, 35 So. 390; City of Shreveport vs. Simon et al., 132 La. 69, 60 So. 795.

It thus appears that the third essential to which we have referred does not exist here. It is true that the driveway was constructed by the common owner. It is also true that the driveway is apparent, but it is very evident that, under the jurisprudence, its discontinuous uáe prevents the application of article 767 of the Civil Code and stands as an obstacle to the right of plaintiff.

In Durel, Administrator, vs. Boisblanc, 1 La. Ann. 407, cited by plaintiff, the question of whether a servitude of passage was continuous 'or discontinuous does not seem to have been involved. There the purchaser at a judicial sale refused to take title because of the existence of a servitude of passage. The court held that the alleyway in question was apparent and that the purchaser must have known of it when he bid on the property, and further held that in all probability his bid was not affected one way or another by the servitude. Whether the defendant, Mrs. Pippitone, knew or did not know, when she bought the property, that there was a common driveway, or whether she knew or did not know that the servitude was not established by title, is immaterial, because such a servitude, if it is discontinuous, can be established only by title, and not by estoppel.

That the servitude was not established by title was well known to plaintiff, as is evidenced by the contract he made with Faciane. That Mrs. Pippitone .and her husband did not consent to the servitude being inserted in the title is evident by the testimony of Faciane to the effect that, when he sold to Mr. Pippitone, who was then alive, “they wanted to know if the house did have a community drive, and I told them that I bought the place without a community drive, but we had agreed between Mr. Kelly and I to have it. Mr. Pippitone said he did not want it put in the title at the time — wanted to buy it like I bought it.”

Broussard vs. Etie, 11 La. 400, is in no sense applicable here. That case is authority merely for the proposition that one whose estate is entirely inclosed by that of another can force that other to give him a right of passage somewhere, but that he is not the owner of a continuous apparent servitude to pass at any particular place until the place is determined by a judgment of court. The court' said:

“ ‘Interrupted servitudes, whether apparent or not, can be established only by a title.’ Louisiana Code, art. 762.

“The plaintiff has, indeed, shown, that from the situation of his estate he may claim .the right of passage on that of the defendant; but he has not shown that he has this right on any determinate part of it. This right he must acquire by obtaining from the defendant, or contradictorily with him from the court, a designation of the place on which it is to be exercised. He has not done this, and he cannot, therefore, complain of the erection of a fence by the defendant, on any part of his estate.”

The authorities seem overwhelming to the effect that such a driveway, if creating a servitude of any kind, creates only a discontinuous one, and that to hold a discontinuous servitude over a servient estate, the owner of the dominant estate must have a title.

The judgment appealed from is correct and it is affirmed.


author: WEBB, J.

text:
    No. 3610
    Second Circuit
    WAGNER v. BARBIN
    (January 31, 1930. Opinion and Decree.)
    (March 24, 1930. Rehearing Refused.)
    Philo Coco, of Marksville, and J. B. Nachman, of Alexandria, attorneys for plaintiff, appellant.
    W. E. Couvillion, of Marksville, attorney for defendant, appellee.
   WEBB, J.

Plaintiff, Prank Wagner, individually and as the representative of his minor daughter, Ufa Wagner, instituted this action to recover damages alleged to have resulted from injuries sustained by Ufa Wagner through the fault and negligence of defendant, A. T. Barbin, and his minor son, Fergus Barbin, and plaintiff appeals from a judgment rejecting his demands.

Plaintiff- alleged that defendant’s son had, with the use of a “sling-shot,” thrown or shot a small stone at his daughter, which had struck her in the eye, resulting in the loss of the eye; that the instrument, “sling-shot,” was a dangerous instrument, which defendant had permitted his son to use; and that the son had negligently, mischievously, and maliciously used the instrument in injuring plaintiff’s daughter.

There was some conflict in the evidence as to whether or not defendant’s son had thrown or shot at plaintiff’s daughter, but the preponderance of the evidence shows that he did not throw or shoot at her, and if plaintiff can recover it must be on the ground that defendant was negligent in permitting his son to use the “sling-shot,” or that the injury resulted from the negligent manner in which defendant’s son used the “sling-shot.”

There was not any evidence introduced showing that the “sling-shot” was a dangerous weapon, in the sense in which a firearm is so regarded, and the evidence establishing that defendant’s son was about 14 years of age, and that children were generally permitted to use such instruments, and it not being shown that defendant’s son had used the “sling-shot” off of defendant’s premises, or that it had been used by him in a mischievous manner, we do not think that, having regard either to the character of the instrument, the place i'n which defendant’s son was permitted to use it, or the manner in which he had perviously used the instrument, shows lack of parental care or discipline by defendant, or that defendant was guilty of negligence in failing to exercise due discipline or care, and, if defendant is liable, it must be for the reason that his son had carelessly and negligently thrown the rock without exercising due precaution.

Plaintiff and defendant were neighbors, residing in adjoining premises in the town of Marksville, and plaintiff’s child had been accustomed to visiting defendant’s premises, where she sustained the injury, and it was shown that defendant’s son had been playing with the “sling-shot” for some time when plaintiff’s daughter came on the premises, and while the evidence indicates that plaintiff’s daughter had stopped to watch the youth as he was throwing rocks with the “sling-shot,” and that she was looking upward at the rocks thrown by him at the time she received the injury, it was not shown that young Barbin knew she had stopped and was in a position where she would be in danger of being struck by a falling rock, and we are of the opinion the evidence failed to establish that young Barbin was guilty of negligence, and that the injury should be held to have been accidentally inflicted.

In the cases cited by counsel (Marionneaux vs. Brugier, 35 La. Ann. 13; Mullins vs. Blaise, 37 La. Ann. 92; Sutton vs. Champagne, 141 La. 469, 75 So. 209; Wright vs. Petty, 7 La. App. 585), the facts presented established that the parents were themselves guilty of negligence in failing to exercise proper parental care or discipline, in permitting their children to use dangerous weapons or instruments in public places, which was not the case in tne present instance, and although parents are liable for damage resulting from the negligence of their children, even though it may appear that the parents were not guilty of negligence, they cannot be held responsible for injuries accidentally inflicted by their children.

The judgment is affirmed.


text:
    No. 3547
    Second Circuit
    HAYNE v. JAFFA
    (January 31, 1930. Opinion and Decree.)
    (March. 24, 1930. Rehearing Refused.)
    D. J. Hyams, of Natchitoches, and Hawthorn & Stafford and John L. Pitts, Jr., of Natchitoches, attorneys for plaintiff, appellee.
    Phanor Breazeale, of Natchitoches, attorney for defendant, appellant.
   WEBB, J.

This is an action to recover damages for personal injuries sustained by plaintiff, alleged to have resulted from the negligence of defendant in driving an automobile against plaintiff while he was walking across the roadway of a street.

Plaintiff alleged that defendant was driving at an excessive rate of speed, on the wrong side of the street, and without maintaining a lookout, which was denied by defendant, who alleged that the accident was due solely to the fault and negligence of plaintiff in walking in front of the automobile driven by defendant in such close proximity thereto that it was impossible for defendant to avoid the accident, and on trial judgment being rendered in favor of plaintiff, defendant appeals.

The accident occurred in the daytime on a street which runs approximately east and west, the roadway of which is about 30 feet in width, and plaintiff was walking from the south towards the north side of the street when he was struck by the automobile which approached from the east.

There was, as usual, a conflict in the evidence as to the rate of speed at which defendant’s automobile 'was being driven, the witnesses called by plaintiff estimating the speed as in excess of the maximum fixed by the municipal ordinances, and those called by defendant estimating the rate of speed at much less than that fixed by the ordinances; but without regard to the rate of speed at which the automobile was being driven, the weight of the evidence, we think, conclusively establishes that defendant was not maintaining a lookout, and that had he been doing so he could easily have avoided the accident.

Plaintiff stated that when he stepped into the roadway defendant’s automobile was at a distance of about 80 or 100 feet to the east, and the evidence shows that plaintiff was struck before he reached the center of the street, and it clearly appears that if defendant had been maintaining a lookout, he would have discovered plaintiff’s situation, and even if defendant was driviiig at an excessive rate of speed, he could easily have passed to the north of the center of the street and avoided striking plaintiff, and if defendant was not driving at an excessive rate of speed, that he could easily have brought his car to a stop.

While defendant does not admit that he was not maintaining a lookout, he does admit that he did not see plaintiff until after the car had struck plaintiff, and it was shown that immediately after the accident defendant had stated that he was looking towards a house on the north side of the street and that he was surprised that he had driven so far to the south of the center of the street, and we are of the opinion that defendant was properly held liable.

Both parties complain of the amount of the award, which was for $840, with legal interest from the date of the judgment. Plaintiff, at the time of the accident, was about 68 years of age, and although he did not sustain any permanent injuries, he was severely shocked and bruised, and was confined to his bed for about two weeks and to his home for about five weeks. He stated that he suffered considerable pain during the period he was confined to his bed, and that he still suffered at times with some pain and disability from his knee where the bumper or fender of the automobile struck him, and it was shown that he was under the care of physicians for a considerable period, for which he paid $90. The physicians stated . that plaintiff had suffered considerable pain, and that he would at times experience some pain and disability from the injury, and we cannot say that the amount allowed by the court was excessive.

The judgment is therefore affirmed.


text:
    No. 3496
    Second Circuit
    CORY v. ASKEW
    (January 31, 1930. Opinion and Decree.)
    (March 24, 1930. Rehearing Refused.)

      See, also, Cory vs. Askew, 11 La. App. 110, 120 So. 779; Cory vs. Askew, 11 La. App. 645, 123 So. 435; and (La. Sup.) 125 So. 455.
    Harry V. Booth, and Geo. T. McSween, of Shreveport, attorneys for plaintiff, appellant.
    John B. Piles, of Shreveport, attorney for defendant, appellee.
   ODOM, J.

The plaintiff was employed by defendant as a common laborer in tne oil fields, his specific work being around a derrick, and on August 15, 1927, while lifting a piece of iron pipe, his foot slipped, and he fell, striking his left side against the pipe. He alleges that as a result of the fall the left side of his stomach was torn and lacerated, and the tissues, muscles and ligaments were bruised and deranged, that his kidneys and bladder were severely lacerated and torn, and that, as a result, the sciatic nerve on that side was injured, causing sciatica — all of which injuries, he alleges, have incapacitated him from doing labor of a reasonable character, and he sues for compensation for 300 weeks. The answer is a general denial.

The trial in thé district court result:d in a judgment in favor of plaintiff for compensation for 5 weeks, at $20 per week, plus costs and medical expenses. Prom this judgment, plaintiff appealed.

A careful review of the testimony reveals that, the judgment appealed from is correct. After plaintiff’s fall on the floor of the derrick on August 15th, he continued his work during that day and the day following, but on the 17th he made complaint to the foreman, who suggested that he go to Dr. Alexander for an examination. Dr. Alexander testified that he found that plaintiff had a ruptured abdominal wall, and that he could do nothing for him, and suggested that he be carried to a sanitarium for further diagnosis and for treatment, if necessary. On August 18th plaintiff was carried to a sanitarium, where he was examined by three physicians, who, from their testimony, examined him thoroughly and kept him under observation for several days. At that time, plaintiff made no complaint of any injury, except to his side, and as his physicians could find no evidences of injury to his side, except a small abrasion on the skin, they made a thorough examination in order to ascertain, if possible, what caused the' pain from which plaintiff was then complaining. Their written report which we find in the evidence, and which is in accordance with their oral testimony before the court, shows that plaintiff was a young, robust individual, with bad tonsils, one ba'd tooth, heart and lungs normal, no evidences of hernia, but evidences of pain in the sacroiliac region, and an infected prostate gland, showing the presence of numerous pus cells. Their conclusions were as follows:

“In our opinion, he has evidence of neuritis of left hip, due to focal infection situated most probably in prostate gland. Evidently this focus of infection is prolonging his disability, consequently if cleared up would most probably stop his symptoms.”

These physicians are in charge of a sanitarium in the city of Shreveport, do not represent and have no connection whatever with the defendant or the surety company, but made their examination and .diagnosis as they would of any other patient brought to them for treatment.

The testimony shows that plaintiff remained at the sanitarium for 34 days, during a portion of which time he was kept under observation by these physicians, and was finally ordered to leave the sanitarium by a representative of the surety company, for the reason that the physicians who had examined him found nothing wrong, except as above stated, the physicians being of the opinion that the fall of which plaintiff complained had no connection whatsoever with the pain of which he complained.

After being discharged from the sanitarium, plaintiff, it seems, secured work in El Dorado in an oil field at $5 per day, the same wage which he was receiving while -working for defendant, but as to how long he worked the record is not clear. He says himself, however, that be did work in the oil field, but suffered pain while doing so.

In the month of December, 1927, plaintiff, through Harry V. Booth and Hoyo Grafton, attorneys, filed suit against defendant, alleging that he had received an injury while at work around a derrick, which injury had produced hernia which had disabled him, and he asked compensation in that suit for 300 weeks on account of the hernia. When that case was called for trial on February 16th following, plaintiff, through counsel, dismissed his claim as in cáse of nonsuit. Plaintiff, on being asked why he dismissed tha suit, stated that he did not dismiss it, but his attorneys did, because they were not able to get any doctors to give evidence in his favor. The present suit was instituted by Mr. Booth and another attorney on March 22, 1928.

When the present suit was called for trial, plaintiff called two physicians, Drs. Bodenheimer and Richardson; they examined him, and stated that, while he had no hernia, he did have what they considered a rupture of the muscles of the abdominal wall above the inguinal ring on the 'left side, which they said could cause the pain of which plaintiff complained. They both stated that, with considerable strain, they felt sure that plaintiff would suffer pain. They examined him on the day before the trial, which was the first time they had seen him, and could not, of course, tell when he received the injury to the muscle, but stated that it was not congenital, and must have been caused by some strain or blow.

The ease was tried on June 8, 1928, nearly 12 months after the alleged injury. As the physicians who made a thorough examination of plaintiff immediately following his alleged injury were unable to find any injury to his abdominal wall, and as plaintiff worked for approximately 2 days aftethe alleged injury, and then for some time in the oil fields at El Dorado, it is by no means clear that the disability of which he now complains was the result of the injury which he received when he fell against the pipe. In plaintiff’s original suit, he alleged that he had a well-defined, well-developed hernia, and that he had been treated by physicians, and had requested defendant to pay the expense of an operation. But, when he filed his second suit, he made no mention of a hernia, and the physicians called by him specifically stated that he had none. All this leads us to entertain some doubt of plaintiff’s sincerity in making his claim. We are convinced from the evidence that plaintiff is not disabled as a result of the alleged injury.

The district judge allowed plaintiff compensation for 5 weeks, the period of time he was in the sanitarium under observation. We think the judgment appealed from is correct, and it is accordingly affirmed.

DREW, J., takes no part.