text:
    No. 2914
    Second Circuit
    LIDE v. PARKER
    (June 28, 1927. Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Assault and Battery —Par. 4, 9.
    One who is the aggressor and at fault in bringing on a difficulty in which he is injured cannot recover damages for such injuries even though the person who injures him was not justified in law in his conduct.
    2. Louisiana Digest — Assault and Battery —Par. 4, 9.
    A wife cannot recover in an action for damages for the killing of her husband by another when it is shown that the deceased by his acts and conduct provoked the encounter which - resulted in his death.
    3'. Louisiana Digest — Assault and Battery —Par. 8; Evidence — Par. 72, 352.
    In a suit by the wife for damages for the killing of her husband, evidence that the defendant had been prosecuted and convicted of manslaughter was admissible, not as conclusive of plaintiff’s right of recovery, but as proper to be considered by the jury along with other testimony in determining the issue before them.
    Appealed from the First Judicial District Court of Louisiana, Parish of Caddo. Hon. E. P. Mills, Judge.
    Action by Mrs. Anna T. Lide against Robert L. Parker.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Long and McSween, of Shreveport, attorneys for plaintiff, appellant.
    Barnette & Roberts, of Shreveport, attorneys for defendant, appellee.
   ODOM, J.

Plaintiff brings this suit to recover of defendant damages in the sum of $30,000.00, and, as a. cause of action, she alleges that she is the surviving spouse of David M. Lide, deceased; that on April 7, 1925, the defendant Robert L, Parker wilfully, maliciously and deliberately struck the deceased on or about the head-, thereby causing him to fall and strike his head against a concrete floor, resulting in injuries from which he died the same day; and that defendant struck deceased without any reasonable or probable cause, deliberately and with intent of doing bodily harm to deceased.

Defendant, in answer, admitted that he struck deceased, but alleged that he struck him a very light blow, not sufficient to do bodily harm or damage; that deceased fell and that as a result of the fall deceased received injuries from which he died; and he further alleged that deceased provoked and brought on the situation which caused him to strike him by insulting and abusing him in the presence of his wife and in his place of business, and in assuming a threatening attitude; that deceased attempted to strike him and that he struck deceased for the purpose of defending himself and to ward off a blow on the stomach which deceased was about to inflict with a sample case which he then had in his hand; and that he would not have struck deceased except in defense of himself.

The case was tried before a jury. The jury rejected plaintiff’s demands. The judge of the District Court approved the verdict, refused to grant a new trial, and plaintiff appealed.

OPINION

There is no dispute as to the law involved in a case of this kind. The District Judge gave the following charge to the jury to which counsel for plaintiff made no objection:

“If from the evidence you find that David M. Lide was the offender and aggressor and brought on the difficulty in which he met his death, his surviving widow cannot recover from this defendant in damages although the defendant, Parker, was not justified in law in striking Lide.”

Citing the cases of—

Bankston vs. Folks, 38 La. Ann. 267.

Miller vs. Meche, 111 La. 143, 35 South 491.

Massett vs. Keff, 116 La. 1107, 41 South 330.

In addition to the above citations, we refer to a much later case, that of Fontenelle vs. Waguespack, 150 La. 316, 90 South 662, where the court announced and applied the same rule, and, in addition to the above cited cases, cited' — •

Johns vs. Brinker, 30 La. Ann. 241.

Vernon v. Bankston, 28 La. Ann. 710.

Bonneval vs. American Coffee Co. 127 La. 57, 53 South. 426.

Counsel for plaintiff, in brief, says:

“We do not dispute that, had the deceased lost his life in mutual combat, or in an altercation for which he was responsible in law, that his widow could not recover.”

The fatal encounter took place in defendant’s place of business.

There being but little, if any, dispute as to the facts, counsel argue that the jury misinterpreted and misapplied the facts.

It may be here remarked that following the death of Mr. Lide, Parker was indicted for and tried and convicted of manslaughter and ■ sentenced to serve six months in the state penitentiary. But that fact is not conclusive on the point as to whether defendant is liable in civil damages.

Miller vs. Meche, 111 La. 143, 35 South. 491.

There were only two witnesses, the defendant and his wife, to the unfortunate and tragic affair which brought on this litigation.

The defendant testified, and his testimony is corroborated by that of his wife, that during the morning of the day on which the difficulty arose he was out of his jewelry store making collections; that when he returned Mr. Lide was sitting in his office waiting for him; that he and Mr. Lide shook hands and passed the usual greetings; that Mr. Lide took orders for shirts, and was there by’ appointment to sell defendant shirts.

Defendant says that when he walked into the office he. was very tired and hot and did not want to talk about the shirts at that time and that he reminded Mr. Lide that his engagement was for the afternoon and not for the morning and asked Lide to return in the afternoon when he would talk with him, whereupon Mr. Lide became somewhat irritated and stated that the engagement was for the morning and that if Parker did not order the shirts then he would have to order them from the factory; whereupon, Parker says, he told Lide that he could not stop at that time to talk about the shirts, that Lide seemed to be very much irritated and told him, Parker, that he would not return and that if Parker wanted the shirts he would have to order them from the factory, whereupon he told Lide that he did not have to purchase the shirts and that Lide retorted that he did not have to have the business.

Parker says he then asked Lide to leave the store; that there were at the time 'some customers in the front of the store and that, he waited on them and went back to where Lide was; that Lide then informed him that he would not leave the store; that he then asked Lide again to leave and told him that he did not want any trouble, whereupon Lide told him that he would not leave and, furthermore, that he, Parker, could not put him out.

Parker says that he renewed his re-guest that Lide leave his place of business as he wanted no trouble and that Lide reiterated his statement that he could not be put out, whereupon the deceased drew back his sample case, which was a small leather folder in which deceased carried his samples, and made a motion to strike or gouge him in the stomach, and' that when deceased made that move he struck deceased a light blow on or about the chin with the back of his left hand; that his sole purpose in doing so was to protect himself from the blow which he thought he was about to receive on his stomach, and that he used no more force than’ was necessary to protect himself.

He says that the blow was not sufficient to knock the deceased down, but that deceased did fall, but that he did not fall as if he were knocked down; defendant’s idea being that, due to the deceased’s nervous and excited condition, the blow caused him to faint and fall down.

It is not contended by’ plaintiff that the blow inflicted by defendant killed deceased, it being conceded that the injury from which he died resulted from his striking his head on the concrete floor when he fell.

Doctor Jasper K. Smith and Doctor George S. Sexton, two ministers of the Gospel, testified, that on the day following they observed a discolored spot on the side of deceased’s forehead, which, counsel contend, resulted from a blow inflicted by the defendant; but there is nothing to show that the spot observed by the ministers resulted from a blow.

One of the ministers said it looked as though the blood had coagulated under the skin. There was no abrasion.

If the deceased had received a wound there, the physician who attended him immediately after the occurrence and the undertaker who prepared the body for burial, would have been the best witnesses’ to that fact. The physician was called but was not questioned on that point, and the undertaker did not testify, which indicates that plaintiff could not have made the proof by them.

The testimony shows that deceased was sixty-seven years old, in poor health, frail and delicate, whereas the defendant is a younger, much heavier, and stronger man.

The question whether defendant was justified in doing what he did is not the point. The question is whether the deceased, by his conduct, brought on the encounter which resulted in his death.

The deceased unquestionably provoked the difficulty. There is absolutely nothing to indicate that defendant bore the slightest ill will or malice toward the deceased. He greeted deceased in his store cordially, the two shaking hands. According to the testimony of defendant and his wife, and that is all there is in the record, defendant was not irritated or angered by deceased’s conduct. He asked deceased to leave the store, but did not threaten or attempt to put him out, but spoke to him courteously. Deceased became angered, refused to leave and told defendant he could not be put out. Defendant made no hostile move until deceased attempted to assault him. When defendant saw that deceased had been injured, he and' his wife used such means as they had at hand to alleviate his suffering. Defendant hurriedly telephoned a sanitarium and failing to get a ready response he telephoned another, and still another, finally getting an ambulance. He later went to the sanitarium to inquire concerning deceased’s condition. His conduct in this respect does not indicate that he bore any malice toward the deceased.

The testimony does not warrant the holding that defendant knocked or intended to knock deceased down. On the contrary, he struck him a slight blow, which, due to the deceased’s nervous condition, caused him to lose his balance and fall.

Our view of the case is that deceased, by his conduct and especially his attempted assault upon defendant, provoked the difficulty which resulted in his death, and that, under the ' law, his widow cannot recover.

In view of the specific charge which the district judge gave the jurors, it is clear from the verdict that they construed the facts as we have.

The verdict of the jury and the judgment of the court based thereon are affirmed, with costs.


source: Caselaw Access Project

author: WEBB, J.

license: Public Domain

text:
    No. 2952
    Second Circuit
    MILLSAPS v. HORNSBY
    (May 13, 1927. Opinion and Decree.)
    (June 28, 1927. Rehearing Refused.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Automobiles — Par. 4 (a), 7.
    Even though the defendant was negligent, the plaintiff was contributorily negligent in approaching the meeting place of the two cars at such a speed that he could not stop in time to avoid the collision, defendant’s car being slightly over on the left side of the road at the moment of impact.
    ' Appeal from the Third Judicial District Court of Louisiana, Parish of Lincoln. Hon. S. D. Pearce, Judge.
    Action by Herbert M. Millsaps against Cleve Hornsby.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Dhu Thompson, of Ruston, attorney for plaintiff, appellant.
    J. W. Elder, of Farmerville, attorney for defendant, appellee.
   WEBB, J.

The plaintiff instituted this action to recover damages for injuries sustained in a collision between an automobile owned by him and in which he was riding at the time of the collision, and an automobile owned and being driven by defendant, and the latter reconvened for damages alleged to have been sustained by him and his minor daughter who was riding in defendant’s car.

The cause was submitted to a jury which returned a verdict rejecting the demands of all parties, and plaintiff appealed from a judgment based op the verdict, and defendant answered the appeal, praying that the judgment be affirmed insofar as it rejected plaintiff’s demands, and reversed insofar as it rejected defendant’s reconventional demands.

The collision occurred on the public highway and in the daytime and the drivers of both machines could have had a clear view of the situation and of the cars as they approached the point of collision.

The defendant was driving east and immediately in front of him and traveling in the same direction was another automobile, both cars being driven at a rate of speed estimated from twenty to twenty-five miles per hour, and as those cars approached the point of collision, which was near a point where a car headed in the same direction in which defendant was going was parked on the side of the road, the car of defendant approached from the east and at an approximately equal distance from the parked car.

The situation thus presented was such that each of the drivers of the respective cars were bound to exercise that degree of care called for by the situation.

The defendant was driving so close to the car in front of his that when the latter came to a sudden stop immediately behind the parked car he was unable to stop in time to avoid colliding with the car in front of him and was confronted with a situation where he would either have to strike the. car in front of him or place his car in front of the advancing car, and, choosing the latter, he placed his car in a position where the left, front wheel of his car was over the center of 'the road and where it came in contact with plaintiff’s car.

The defendant in driving so close to the car immediately in front of him and at a rate of speed which would not permit him to bring his ear to a stop before striking the car in front of him, should the latter come to a sudden stop, was negligent (Henican vs. Woodman, et al., 1 La. App. 281), and his negligence created the situation where he took the chance of colliding with the car of plaintiff, of which danger, he being held to have noted the situation, is held to have been aware, and he cannot recover.

On the other hand, the speed at which plaintiff’s ear approached the .meeting place was variously estimated at from twenty-five to fifty miles per hour, and as the evidence shows that defendant’s car was only slightly over the center of the road and had been brought to a stop at the time of collision, and that there was room for the plaintiff’s car to have passed, we cannot account for the collision on any other theory than that plaintiff’s car was being driven at an excessive rate of speed which contributed to the collision.

The judgment appealed from is therefore affirmed.


text:
    No. 2927
    Second Circuit
    IVERSON v. WENZEL
    June 28, 1927. Opinion and Decree.)
    (July 25, 1927. Rehearing Refused.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Appeal—Par. 493.
    Where the appellant has not appeared in court and directed the court’s attention to no error, and a consideration of the record shows that he has no defense, the judgment will be presumed correct.
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo. Hon. E. P. Mills, Judge.
    Action by H. L. Iverson against Victor Wenzel.
    There was judgment for plaintiff and defendant appealed.
    The judgment affirmed.
    Thatcher, Browne, Porteous & Myers, of Shreveport, attorney’s for plaintiff, appellee.
    Harry V. Booth, of Shreveport, attorney for defendant, appellant.
   WEBB, J.

This action is based upon a promissory note drawn by defendant in favor of plaintiff, and defendant appeals from a judgment rendered against him for the amount of the note, interest and costs.

The answer of defendant is somewhat vague but appears to have been considered as a denial of liability on the ground that there was a failure of consideration.

The appellant has not appeared in court and directed our attention to any error in the judgment, and while under such circumstances we think we would be authorized to presume the judgment to be correct (Barber Asphalt Pav. Co vs. New Orleans, 49 La. Ann. 1608, 22 South. 955), however we have considered the record and are of the opinion that the evidence fails to establish the defense, and the judgment is affirmed.


author: REYNOLDS, J.

text:
    No. 2236
    Second Circuit
    BRENNER v. FORD
    (April 8, 1927. Opinion and Decree.)
    (May 13, 1927. Rehearing Refused.)
    (July 12, 1927. Writ of Certiorari and Review Denied by Supreme Court.)

      (Syllabus by the Gourt)
    1. Louisiana Digest — Evidence—Par. 215, 223, 272.
    Parol testimony is incompetent and inadmissible to vary, alter or modify the stipulations' of a written lease.
    Civil Code, Articles 2235, 2238, 2276. Gomila & Co. vs. Hibernia Ins. Co., 40 Ann. 553.
    2. Louisiana Digest — Evidence—Par. 72, 223. — Landlord and Tenant — Par. 91, 92. — Pleading—Par. 112, 114.
    In a suit for rent, where plaintiffs have not alleged whether the lease was verbal or in writing, they may establish the lease contract by any competent evidence. If the defendant, in order to prepare liis defense, desired to know whether plaintiffs were suing on a written or verbal contract, he should have required the plaintiffs to elect by exception in limine. Failing to do this, he could not, on trial, object to proof of a written lease.
    Appeal from the City Court of the City of Shreveport, Louisiana. Hon. David B. Samuels, Judge.
    Action by Alphonse and C. M. Brenner against Z. A. Ford.
    ■ There was judgment, for plaintiffs and defendant appealed.
    Judgment affirmed.
    Cook & Cook, of Shreveport, attorneys for plaintiffs, appellees.
    • Cal D. Hicks, of Shreveport, attorney for defendant, appellant.
   STATEMENT OF THE CASE

REYNOLDS, J.

Plaintiffs sued defendant for four months’ rent of a store building at $75.00 per month, less a credit of $50.00.

Defendant denied liability on the ground that by agreement between him and plaintiffs obligation to pay rent should not begin to run until after plaintiffs had made certain improvements to the leased premises.

On these issues the case was tried and there was judgment in favor of the plaintiffs as prayed for and defendant appealed.

OPINION

The question to be decided in this case is whether plaintiffs were entitled, under their pleadings, to introduce in evidence the written lease signed by them and defendant. The objection urged to its admission by defendant was. that plaintiffs did not allege that the lease was in writing. The trial court overruled the objection and admitted the lease.

We do not think the trial court erred. If the defendant desired to know, in order to prepare his defense, whether plaintiffs were suing on a verbal or a written lease he should, in limine, have asked the court to require the plaintiffs to declare whether the lease was verbal or in writing and if in writing to file it in court. He did not do this but answered the petition on the merits after excepting to be sued as Zack C. Ford, instead of in his right name, Zack A. Ford, and having the misnomer cured by amended petition.

Defendant having gone to trial without requiring plaintiffs to state whether the lease sued on was verbal or in writing plaintiffs were entitled to make proof of a written lease and defendant could not justly plead surprise for the reason having signed the lease he was aware of its existence and stipulations and could have obtained oyer of it on proper application.

Having found that plaintiff was entitled to introduce in evidence the written lease, we find also that the evidence sought to be introduced by defendant to vary, alter or modify the stipulations of the lease were inadmissible under the authority cited in the syllabus.

Under all the evidence in the case the judgment of the trial court is right and it is accordingly affirmed.


author: ELLIOTT, J.

text:
    No. -
    First Circuit
    BIHM v. NEW ORLEANS & MEX. R.R. CO.
    (Jan. 7, 1927. Opinion and Decree.)
    (May 3, 1927. Rehearing Refused.)

      (Syllabus by the Editor)
    1.Louisiana Digest — Railroads—Par. 59, 64, 77 — Automobiles—Par. 5, 7.
    Act 12 of 1924 does not intend that it is sufficient for a party about to cross a railroad track to look and listen from the stop sign, if on looking from that place the railroad is curtained from view. The looking and listening must be done where a view can be had along the railroad both ways.
    2. Louisiana Digest — Railroads—Par. 59, 64, 77 — Automobiles—Par. 5, 7.
    Where the driver of an automobile looked from the position of the stop sign where the train was curtained from view by the depot, but drove upon the railroad track without looking again, practically, he did not look for the train at all and was guilty of negligence.
    3. Louisiana Digest — Railroads—Par. 58, 62.
    Where the engineer of a train blew the whistle and did all that he could to avoid a collision with an automobile driven upon the track in front of him, he was not negligent.
    4. Louisiana Digest — Railroads—Par. 61. The law does not require that trains be run so slowly that they can be stopped in time to save striking vehicles coming suddenly before them on the track.
    5. Louisiana Digest — Railroads—Par. 59, 64, 77. — Automobiles—Par. 5, 7.
    It is the duty of the driver of an automobile not to drive on the railroad track without first looking for trains from a viewpoint; that if one had been coming he could have seen it and kept out of the way until it had passed.
    6. Louisiana Digest — Appeal—Par. 597.
    Where the charge of the judge to the jury is not in the record the appellate court will presume that the jury was properly instructed.
    Appeal from the Parish of St. Landry. Hon. B. H. Pavy, Judge.
    Action by Mrs. Theoiste Fontenot Bihm against New Orleans, Texas and Mexico Railroad Company.
    There was judgment for' plaintiff and defendant appealed.
    Judgment reversed.
    L. Austin Fontenot and R. L. Garland, of Opelousas, attorneys for plaintiff, appellee.

      Dudley L. Guilbeau, of Opelousas, and George Janviér and W. H. Talbot, of New Orleans, attorneys for defendant, appellant.
   ELLIOTT, J.

Suit by widow for damages on account of the’ death of her husband and minor child killed by defendant’s train.

Willie Bihm, plaintiff’s husband, and father of Lee Bihm, driving an automobile in which were also his son, Lee Bihm, about seven years old, Mrs. Hermina Bordelon Gosselin, her daughter, Miss Ida Gosselin, and Clifford Bihm, attempting to cross the New Orleans, T’exas and Mexico Railroad track, using a public road crossing, within the limits of the village of Lawtell, was struck and wrecked by defendant’s eastbound fast passenger train, and four of the occupants, including himself and child, were instantly killed, Clifford Bihm being the only survivor.

The plaintiff sues to recover damages on account of the death of her husband and child. She alleges that her husband and child were killed as the result of the negligence and fault of the railroad company, its agents and employees in the operation of its said train. That her husband on coming to the stop sign, about fifty feet from the south side of the track, brought his automobile to a full stop and looked and listened for trains. That not seeing nor hearing any, and unconscious of danger, he attempted to cross, but before he could do so, defendant’s train struck his automobile, killing him and her child. That there is a whistling post for Lawtell, situated about three hundred yards west of the crossing and that defendant’s train did not blow for the crossing, and the bell on the engine was not rung until the post had been passed for some three hundred, feet, when it was too late to notify her husband of its approach. The continuous blowing of the whistle and ringing of the bell, from the whistling post until the crossing was reached, was absolutely necessary by reason of the fact that the depot building obstructed the view of the railroad from the stop sign, for fully a half mile west, and that a train coming east on said account, gets within six hundred feet of the crossing before' it can be seen. That defendant’s train was being run at about sixty miles an hour, an excessive speed for that place.

That the railroad company had constructed the grade at the crossing higher than was permitted by the ordinance of the Police Jury of the Parish of St. Landry. That the rails on the railroad bed stood four inches above the level of the bed, serving to obstruct the safe and convenient use of the crossing. That if the crossing grade had been constructed and maintained as the ordinance of the Police Jury required, and if the rails of the railroad bed had been laid on a level with the embankment, instead of projecting four inches above it, her husband would have cleared the crossing in safety in advance of the train, notwithstanding the gross negligence of defendant’s employees in running at an excessive speed and in not blowing the whistle and ringing the bell at the whistling post as should have been done. That defendant’s failure to blow the whistle of its locomotive at the whistling post and to continue whistling and to ring thq bell and continue ringing it for the crossing at which her husband was about to cross, combined with the speed of the train, the faulty construction of the crossing grade and the impeded crossing caused by said projecting rails, prevented the passage of her husband’s automobile, and caused his death and that of her minor child.

. She claims damages to the amount of $40,000.00 and prays for judgment accordingly.

The railroad company for answer denies that its train was running sixty miles an hour and denies that its speed was excessive. It denied that the grade crossing was higher than the ordinance of the police jury permits, and that its rails stand above the embankment as alleged by plaintiff; denied the negligence alleged against it, and alleged that the direct and proximate cause of the accident was the negligence of plaintiff’s husband, in not taking proper precautions to look and listen before attempting to cross the track. Defendant alleged that plaintiff’s husband did not look and listen at a proper place, and that if it should appear that the negligence of plaintiff’s husband was not the direct and proximate cause of his own death and that defendant was negligent, then, plaintiff’s husband was guilty of contributory negligence in not looking and listening for the train at a proper place, and his negligence contributed to his own death and that of her minor child. That his said neglect and failure in the matter stated must be imputed to his son. Defendant finally prayed that her demand be refused add rejected.

The case was tried before a jury which returned a verdict in favor of the plaintiff and against the defendant for $20,-000.00. The defendant moved for a new trial on the ground that the verdict was contrary to law and the evidence. The motion was overruled and judgment based on the verdict was rendered against the defendant for the amount of the same. The defendant has appealed.

The collision occurred on June 10, 1925, at about 2.10 P. M., in the village of Lawtell. The village is not incorporated, but the community is populous and thickly settled. The weather was said to have been fine, from which we understand that the day was fair. Defendant’s train was a. fast interstate passenger on its way to Opelousas, Baton Rouge and New Orleans. The speed was about fifty miles per hour. This we hold was not excessive for a fast interstate train, through an unincorporated village. An ordinance of the police jury of the Parish of St. Landry adopted August 5, 1912, offered in evidence, requires that grades at railroad crossings are not to exceed one foot in seven. Mr. Hollier, civil engineer, measured the grade at this crossing and states that it is an 8 per cent grade, that is, eight feet to the hundred. Mr. Muckleroy, another civil engineer, measured the grade from the south side, which is the side from which plaintiff’s husband approached the crossing, and he states that it is a 6.45 per cent grade, that is, 6.45 feet to the hundred. This measurement if true, is less than that provided for by the ordinance of the police jury. None of the many witnesses, questioned on the subject of the grade, regarded it as an obstruction or impediment, which impeded the use of the crossing. Clifford Bihm, who was in the automobile at the time, does not speak of the height of the grade as a cause which contributed to the collision. It is our conclusion that the grade of the approach to the crossing had nothing to do with bringing the accident about and that the difference between the two witnesses mentioned is unimportant, because the evidence indicated that the grade did not delay nor hinder the passage of the automobile which Mr. Bihm was driving.

Plaintiff claims, and Clifford Bihm testifies that the automobile went over the first rail, but when the front wheels reached the second or north rail, the impact killed the engine, stopping the automobile on the track, and that it was struck by defendant’s train during the momentary delay thus caused. Plaintiff urges from this that the unusual- height of the rails above the railroad bed brought about the death of her husband. A number of witnesses testified that the rails stood about four inches above the level of the road bed and that their automobiles were killed by the rise and drop over the rails. But their evidence shows that the occurrences mentioned were single instances, and no account was taken of their use of the crossing without any trouble of that kind. Other witnesses in number about equal speak of the rail elevation as nothing unusual for country crossings and stated that they had no trouble of the kind in getting over the rails. Mr. Hollier measured the height of the rails above the railroad bed and found that it was 2% inches. Two witnesses testified that according to the tracks of the automobile, it did not quite reach the second rail, but that the wheels may have struck the rail and bounded back. But if the front wheels did reach the second rail and struck against it, the tracks would not have stopped short of the rail as the witnesses say they did, but would have continued close up to the rail, hotwitlistanding the rebound. It is our opinion from the evidence that the automobile stopped on the track, just the instant before it was struck, but it is not at all clear that it was the impact of the front wheels .against the second rail that caused it. It was impossible for plaintiff’s husband to help seeing and hearing the train looming and roaring above and right at him, about the time he got on the track and before his automobile had time to reach the secohd rail. It is therefore not unlikely that he killed his engine unintentionally himself in a desperate, frantic effort to jump it across the track ahead of the train. According to Clifford Bihm, when plaintiff’s husband left the place where he had stopped and lqoked near the stop sign, he drove without haste on his way across the track, unconscious of the train at hand. Another witness who saw the automobile at the time, says that it looked to him as if the party driving it did not see the train, almost upon him. The evidence shows that the crossing in question is 627 feet east of the depot. Defendant’s train was running at the rate of fifty miles an hour, which one of the civil engineers testified was equivalent to 73.4 feet per second. Such being the case, the train traversed the distance from the depot to the auomobile in less than ten seconds. After the automobile reached the second rail it still had its entire length across the railroad, and if it be supposed that it was kept going at the gait at which it was moving when it came upon the track, it could not have gotten across but would have been struck just about where it occurred. The time that elapsed between the stop and blow was so short that it makes no difference in the matter of consequence.

The evidence shows that there is a whistling post near the depot and one further west near Bayou Mallet about 1700 feet west of the depot. There is a crossing called the Fontenot crossing, which one of the civil engineers estimated was about 1,000 feet, but which the other one says is 650 feet west of the depot. After this crossing comes the depot 627 feet west of the crossing at which plaintiff’s husband was killed. The plaintiff urges that the train whistle Was not blown and that the bell was not rung for these crossings as the law requires and that if it had been done, her husband would have been warned of his danger in time to have saved himself. Nearly all the witnesses who testified on that subject stated that they heard the train whistle west of the depot at a place not definitely fixed, hut which most of them thought was near Bayou Mallett. But four or five claimed that the whistle was not blown nor the bell rung for the Fontenot crossing, the depot, nor the crossing at which the collision took place. About an equal number declined to say that it was not done, but that they did not hear it. On the other hand the conductor, engineer and fireman on the train declared positively that the whistle was blown at Bayou Mallet and was blown again and the bell rung for the Fontenot crossing, for the depot and also for the crossing at which the collision, occurred, all before the train reached them. The train crew are corroborated to some extent in the matter by two witnesses, not members of the crew. One of them was on the train and he says he heard the train whistle for the depot; another, a lady living at Lawtell at the time, says she heard a succession . of whistles at the time, but neither of them remembered hearing the bell. It was the duty of the engineer and fireman to blow the whistle for each crossing and ring the bell before reaching same; such things become matter of habit with them. People not engaged in the operation of trains but living near crossings over which fast trains daily pass, become so accustomed to the whistling, and the ringing of the bell, that ordinarily, unless purposely listening, they pay no attention to such things and do not consciously hear them. After considering all that has been said on the subject we think it more than likely and very probable that the whistle was blown and the bell rung, as claimed by the fireman and engineer, and we are not satisfied and therefore cannot hold that such was not done.

It seems to us that the outstanding fact in this case is that plaintiff alleges in her petition that the approach of this eastbound train could not be seen or observed by one stopping at the warning sign, until the train was within six hundred feet of the crossing. That the view of said track westward from the warning post beyond that distance is obstructed from view_ for fully one-half mile by the depot building, section house, trees and telegraph poles. That her husband after having stopped his automobile at the warning sign fifty feet from the railroad track, hearing no whistle nor bell from an approaching train and not seeing any, was warranted in believing that he could safely drive over the crossing. And the evidence is to the effect that starting from the stop sign or near it, where he had looked and listened, he went leisurely and steadily forward, without looking or listening any more until he was struck on the track. It not only appears from plaintiff’s petition, but is a matter agreed by all who testified on the subject, that looking from the stop sign or from any place near it, where plaintiff’s husband had looked and listened, absolutely cut off from view, a train coming from the west of the depot. Mr. Hollier says that the view was cut off beyond the depot for 1,107 feet; Mr. Bruce says 1,500 feet. Both say that standing at the stop sign, the depot does not prevent a train further west than that from being seen, but that it goes out of sight after getting within a certain distance, but can be seen of course after it comes from behind the depot curtain. That as you leave the stop sign and approach the railroad, the vision west along the railroad extends further and further and that when you get within twenty feet of the track, the depot ceases to be in the way, and then you can see west along the railroad, track, as far as the eye can reach. One of the witnesses engaged in hauling gravel over this crossing testified that he had noticed the danger and had cautioned his truck drivers to keep close watch for trains coming from the west, and to look from a place where they could see along the track. Another witness had traveled the same road used by plaintiff’s -husband, and stopped at the same stop sign. He was accompanied by his wife, and had looked west along the railroad before he stopped. He saw a train coming before it got behind the depot curtain and- told his wife about it, but she could not see it and did not think that any was coming, so he told her to wait. They waited and although he knew the train was coming, he did not hear it, but in due time it came from behind the depot and he says that if his automobile had been stopped on the track when it came into view from behind the depot, that he would have had no chance for his life.

Act 12 of 1924 does not intend that it is sufficient for a party about to cross a railroad to look and listen from the stop sign provided for by the act, if on looking from that place the railroad is curtained from view. It intends in conformity with established jurisprudence on the subject, that the looking and listening must be done where a view can be had along the railroad both ways. In this case it must be held that plaintiff’s husband did not lqok at all, because the depot prevented him from seeing west along the railroad, from the place where he looked. Why he did not hear the train in time to stop before getting on the track is impossible to say. It is not indicated by any evidence that his hearing was impaired. The parties in the automobile may have been talking or the noise of his motor may have been the cause. A train running fifty miles an hour or 73.4 feet per second is close behind the noise that it makes in running.

It is established beyond question that at the time plaintiff’s husband looked, the train was coming but was curtained from his view by the depot and could not be seen from the place. Practically speaking, it was not different from not looking at all. If he had looked when he got within twenty feet of the track, he would have seen the train; he would have been bound to have, seen it; but he did not take the precaution. The engineer, fireman and other members of the train crew should have been on the lookout for this crossing, the approach to which was curtained from their view to the same extent that the train was hidden from defendant’s husband, Ike evidence on that subject is to the effect that the engineer did all that he could, but the collision was unavoidable on his part. The law does not require that trains be run so slow that they can be stopped in time to save striking vehicles coming suddenly before them on the track. It was the duty of plaintiff’s husband not to drive on the track without first looking for trains from a viewpoint, that if one had been coming he could have seen it and kept out of the way until it had passed.

The charge of the judge to the jury is not in the record. We take it that they were properly instructed, but their verdict and the judgment appealed from, based" thereon, is contrary to the law and the evidence. It is therefore annulled, avoided and set aside and the demand of plaintiff is refused and rejected at her cost in both courts.


author: JONES, J.'

text:
    No. 10,886
    Orleans
    AHRENS v. FIRST NAT’L LIFE, HEALTH & ACCIDENT INS. CO. OF N. O. and WILTZ v. FIRST NAT’L LIFE, HEALTH & ACCIDENT INS. CO. OF N. O.
    Consolidated
    (June 6, 1927. Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Insurance—Par. 36, 43, 60, 152.
    The first beneficiary in a .life insurance policy, though having an insurable interest, cannot prevent the second beneficiary, having a like interest, from collecting proceeds of the policy, on the ground that the second change was not endorsed on the policy, as required by the contract, if she refused to surrender the policy to the insured or to the company when notified by both of the second change.
    Appeal from the First City Court, Sec. “C.” Hon. William Y. Seeber, Judge.
    Action by Mrs. Henry Ahrens against First National Life, Health & Accident Insurance Company of New Orleans, Louisiana, and Fernand J. Wiltz against First National Life, Health & Accident Insurance Company, of New Orleans, Louisiana. Consolidated.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Thos. J. Dobbins, of New Orleans, attorney for plaintiff, appellant.
    L. A. Schwartz, of New Orleans, attorney for defendant, appellee.
   JONES, J.'

Each of these suits is for two hundred eighty-seven and 00-100 ($287.00) dollars, proceeds of a life insurance policy an<j the undisputed facts are as follows:

The insurance company issued policy No. 5080 on the life of Orlander C. Pritchard, on December 11, 1922, payable to his estate.

On November 11, 1924, Pritchard made Mrs. Henry Ahrens, appellant in this case, the beneficiary of said policy.

On December 18, 1925, Pritchard again changed or tried to change the beneficiary of his policy from Mrs. Henry Ahrens to Mr. Fernand J. Wiltz, of this city, by filing with the company an application signed and acknowledged before a notary which was duly noted by the company.

At the time Mr. Pritchard desired to effect the change, substituting Wiltz for Mrs. Ahrens, the policy was in the possession qf Mrs. Ahrens who refused to surrender it to Pritchard, or to the insurance company.

After Pritchard died on the 16th day of January, 1926, suits were brought against defendant by the appellant herein, Mrs. Henry Ahrens, and the appellee, Fernand J. Wiltz, each claiming as beneficiary of said policy. Their suits were consolidated.

The lower court rendered judgment in favor of appellee, Fernand J. Wiltz, and against defendant for the full amount of the pqlicy and costs. The suit of Mrs. Ahrens was dismissed.

The only question involved is whether the insured could change the beneficiary of his policy while policy was in the possession of the original beneficiary who refused to surrender it on the ground that she had an insurable interest therein, because she ha'd furnished the deceased board, lodging and had paid several premiums on the promise qf deceased that she should get the insurance.

The policy contains the following provision:

“The beneficiary or beneficiaries named herein may at the request of the insured be changed at any time to any person or persons having an insurable interest in the life of the insured, provided this policy is returned to the company at its home office, and the endorsement of the change made upon the policy.”

The evidence shows the following facts:

1. That Ahrens, the husband of appellant paid some premiums on the policy (exact amount not shown) and the deceased had roomed for sometime at the house of appellant, free of charge, and had left the policy with her, when he moved to Charity Hospital a year before he died.

2. That Wiltz had given appellant five ($5.00) dollars shortly before the death to pay premium.

3. Wiltz, at the request of Pritchard, who was ill in the Charity Hospital, called on Mrs. Ahrens and asked for the policy and she refused to,, give it to him.

4. That the insurance company likewise asked in vain that she return the policy.

5. In his notarial declaration Pritchard states that Mrs. Ahrens had refused to surrender the policy and that he was writing to authorize and instruct the company to make the change of beneficiary because he was ill.

6. That Wiltz paid the funeral bill of one hundred nine and 60-100 ($109.60) dollars and also several premiums (exact amount not shown) during the confinement of Pritchard at Charity Hospital for a year prior to his death.

In the case of Toussant vs. National Life & Accident Insurance Company, 147 La., page 982, 86 South. 415, the Supreme Court said:

“Plaintiff sues on a policy of insurance taken out by her husband on his life in her favor. The defense is that the beneficiary was changed under authority of the following clause in the policy, ‘provided the beneficiary hereunder may be changed by the insured by consent of the company,’ and that full settlement has been made with the substituted beneficiary.”

Under such a clause the beneficiary may be changed without consulting the beneficiary named in the policy.

In the case of Alba vs. Provident Savings Life Assur. Society, 118 La. 1029, the. court said:

“Where, by agreement between the insurer and the assured, a beneficiary is named in a policy of life insurance, subject, however, to the expressed condition that the assured may, thereafter, at any time, upon notice to the insurer, change such beneficiary, the original beneficiary has no standing to interpose between the contracting parties and prevent the assured from exercising the right thus secured him by his contract.”

In argument and brief before this court counsel for appellant urged the proposition that if the insured could change the benefi clary of this policy, such change had not been legally effected because there was no endorsement of the change made upon the policy.

The evidence shows that Mrs. Ahrens refused to surrender the policy when requested to do so by the company and by the assured. In other words, she now seeks to profit by her own acts. She wishes to claim proceeds of policy for failure to comply with’ a provision, when she herself caused that failure.

On this point Ruling Case Law, (Volume 14, Section 556, says:

“If the member does all that is within his power to effect a change in beneficiaries and fails to surrender the certificate * * * only because such certificate is in the possession of the original beneficiary who refuses to surrender it, the beneficiary thus thwarting the wishes of the member will not be allowed to profit thereby, and his rights to the (proceeds of the certificate are subordinate to those of the new beneficiaries selected by the member.”

Everything possible was done by the insured to effect the change of beneficiaries. Mrs. Ahrens was requested to return the policy. This she .refused to do. Pritchard made a notarial declaration of his intention to change the beneficiary and requested the insurance company to make such change. The insurance company made the ' change and recognized Mr. Wiltz as the beneficiary under the policy as will be seen from the evidence of the President and Vice President, and the evidence of Mr. Wiltz in the record. Further than that, the officers of the company advised appellant that a change of beneficiaries had been made.

The cases quoted by appellant are not in point.

For above reasons the judgment is affirmed.


text:
    No. -
    First Circuit
    SUCCESSION OF DUNN OPPOSITION OF FIZER AND ANDREWS TO FINAL ACCOUNT
    (June 7, 1927. Opinion and Decree.)

      (Syllabus hy the Editor.)

    1. Louisiana Digest — Executors and Administrators — Par. 129. — Obligations— Par. 31. — Successions—Par. 65.
    The succession of a party who was given board and lodging for years previous to his death will be ordered to pay the value of those services although no price had been agreed upon, the [party giving board and lodging not being presumed to have undertaken the burden without expecting payment.
    2. Louisiana Digest — Successions—Par. 65, 68. — Executors and Administrators— Par. 136.
    In view of Civil Code, Article 3, and custom the expenditure of a reasonable sum for the purpose of marking the grave of the deceased has acquired the force and effect of law and the sum necessary .will be ordered paid out of the succession.
    Appeal from the District Court, Parish of East Feliciana. Hon. Charles Kilbourne, Judge.
    Action by Succession of V. H. Dunn; opposition of Mrs. Ruth Currie Fizer and of Mrs. Catherine A. Andrews to final account. Henry D. Reiley, administrator.
    There was judgment for the opposition and administrator appealed.
    Judgment reversed.

      H. H. Kilbourne, of Clinton, attorney for Henry D. Reiley, administrator, appellant.
    George J. Woodside, of Clinton, attorney for Mrs. Ruth Currie Fizer and Mrs. Catherine A. Andrews, opponents and appellees.
   ELLIOTT, J.

V. H. Dunn departed this life on April 30, 1920, intestate, leaving two sisters, Mrs. Fizer and Mrs. Andrews, the opponents herein and nephews and nieces, descendants of John Dunn, a brother previously deceased, and of Mrs. Reiley, who was the wife of ' George J. Reiley, a sister, also previously deceased, ■ as his sole heirs. He was a bachelor and left no ascendants nor descendants. His total estate was' inventoried at $2,320.85. According to the final account, the payment of his funeral expenses and debts required all the assets of his estate, except a small tract of land which was tendered on the account to the heirs. Among the debts and expenses charged on the account was one for board and lodging of the deceased, amounting to $1,241.46, in favor of Henry D. Reiley, administrator, and an item of $65.00 for a monument marking the decedent’s grave. Mrs. Ruth Currie Fizer and Mrs. Catherine A. Andrews, surviving sisters of decedent, opposed the charge for board and lodging and Mrs. Andrews in addition opposed the item of $65.00. Their oppositions were sustained and the administrator appealed. None of the other heirs opposed the account, therefore as to all the other heirs the account was approved and homologated as filed. Mrs. Fizer not having opposed, except as above stated, the account was in all other respects homologated as to her and Mrs. Andrews not having opposed, except as above stated the account was in all other respects homologated as to her. The inventory and the evidence shows that Y. H. Dunn owned a small farm of 66% acres of land and 3 mules, 1 horse, 20 cattle, 1 wagon, Fqrd automobile, saddle, gun and pistol, but no furniture nor household goods of any kind and no farming implements, such as plows, etc. The fact that he did not own any property of the kind mentioned tends to support the testimony of Henry D. Reiley, that the decedent, his uncle, came to him in April, T915, and asked him if he could live and stay at his place, of which Henry D. Reiley was the manager and which the evidence shows was the Blairstown Plantation. That his uncle said to him in making the request, that he would pay what he could or was right and that his answer was that he certainly could. That his uncle, acting on this arrangement, took up his residence with him and lived with him about eleven years, the arrangement continuing until his death. That his uncle, at times spoke to him about their account, expressing his inability to pay. That some times his uncle was in shape to have paid and at other times was nqt. That for the last three years of his life his uncle in talking to him always said he was unable, to pay and never paid nor contributed anything by service or otherwise as his living from the time he commenced until his death. That he charged for only three years because he knew a longer time would be opposed on the ground of prescription.

The arrangement between Henry D. Reiley and Mr. Dunn at the beginning is supported by the testimony of John A. Reiley, a brother. C. L. Munson, an attorney, testified that he stopped at Blairstown during the fall of 1923 and requested of Mr. Dunn permission to stay all night. That Mr. Dunn replied, “I can’t tell you. Henry runs this place. I just board. You will have to see him (Henry).”

Mr. Dunn’s bank balance at intervals during the last three years, was produced and shows that he had on hand different amounts, ranging from $92.87 to $1,005.56. He could, we suppose, have used these sums for the purpose of paying his board and lodging, but there is no evidence that he (paid anything. His reluctance for the last three years may be explained and accounted for by his bad health and probable inability to look after his interests, such as he had and the uncertainty as to his future needs. He made at least one trip to New Orleans and a number to Baton Rouge to secure treatment. According to Henry D. Reiley, he expressed a wish during his last illness to make a will in his favor, but it was not done.

An uncle by marriage of Henry D. Reiley testified that the evening after the death of Mr. Dunn, he asked Henry D. Reiley, in the presence of his aunt, wife of the witness, if his uncle owed him for board and that Henry D. Reiley replied, “not one cent.” That later the same evening, in further conversation about the matter, Henry D. Reiley said that his uncle would buy what he wanted and bring it here. Henry D. Reiley recalled and re-examined as to these remarks testified that the witness or his aunt remarked to him that they had heard that he had forced his uncle to pay board monthly, whether he was hard up or not and that his reply was that his uncle had never paid him a cent.

Henry D. Reiley, questioned about this matter on his direct examination had answered as follows:

“Q. Was anything said about buying by Mr. Dunn and bringing some things to keep Up the house supplies?
“A. No. Not that I know of. He bought some things like a loaf of bread or fruit at times, but no contributions toward running the house.”

The witness further testified that Henry. D. Reiley had informed him and his aunt, wife of witness, that his uncle H, meaning Y. H. Dunn, had asked him during his last illness to draw up a will and wanted to give him all his property and that he had answered his uncle, saying not to do that; to will it to papa, meaning George J. Reiley.

Opponents argue that Henry D. Reiley would not have suggested to his uncle that he will his property to George J. Reiley, father of Henry D. Reiley, if his uncle had owed him, but would have acquiesced in his ofeer to make a will in his favor. This evidence introduced by opponents as well as the other statements which they claim that Henry D. Reiley made to the effect that his uncle did not owe him a cent and had bought what he wanted and brought it there, has this weakness: Their witness could have been honestly mistaken as to what Henry D. Reiley said or intended to say, but Henry D. Reiley could not have been mistaken in what he said. What he said in denial is either true' or wilfully false. It is also improbable that Mr. Dunn bought his own food supplies, because if he had done so, the party from whom he had bought was evidently within reach and there was no showing made along that line. The testimony, direct and circumstantial, establishes with reasonable certainty that V. H. Dunn and Henry D. Reiley entered into the arrangement testified to by the latter and that it continued until the death of V. H. Dunn. Their arrangement contemplated and V. H. Dunn intended from the beginning to pay for his board and lodging and Henry D. Reiley expected payment; but no agreement as to amount was ever reached and nothing was ever paid. The case comes fairly within the scope of the reasons on which payment was ordered in Succession of Fowler, 7 La. Ann. 207; Succession of Krekeler, 44 La. Ann. 726, 118 South. 35; Daunenhauer vs. Succession of Brown, 47 La. Ann. 341, 16 South. 827, and Succession of McNamara, 48 La. Ann. 45, 18 South. 908. A party will not be presumed to have undertaken a burden of this kind and duration without expecting payment, as might be done if the party taken had been his ancestor.

The opposition of Mrs. Fizer and of Mrs. Andrews to the charge for board and lodging should have been overruled. The item of $65.00 paid by the administrator for a monument, marking the grave of the decedent is opposed by Mrs. Andrews.

Henry D. Reiley testifies that this expenditure was requested by Mrs. Andrews. There is no testimony to the contrary.

The expenditure of a reasonable sum out of the estate of a party who has died for the purpose of marking his grave is authorized by a custom, so long existing that it has acquired the force and effect qf a law. Civil Code, Article 3. The opposition of Mrs. Andrews to a charge of $65.00 for such a purpose in this case should have been overruled.

For these reasons the judgment appealed from to the extent that same sustains the opposition of Mrs. Ruth Currie Fizer and of Mrs. Catherine A. Andrews to the charge of $1,241.48 on the final acount in favor of Henry D. Reiley for the board and-lodging of V. H. Dunn, and that of Mrs. Catherine A. Andrews to the charge of $65.00 for a monument marking the grave of V. H. Dunn, is annulled, avoided and set aside and said oppositions are both rejected. The case is remanded to the lower court for further proceedings, in the settlement of the estate as the law provides. The opponents to pay the cost of this appeal and the cost of their opposition in the lower court.


author: LECHE, J.

text:
    No. -
    First Circuit
    LOYD v. COVINGTON MOTOR CO.
    (June 7, 1927. Opinion and Decree.)

      (Syllabus by the Editor.)
    1. Louisiana Digest — Damages—Par. 12, 13.
    Vindictive or punitory damages are not recoverable under the law of Louisiana.
    2. Louisiana Digest — Obligations—Par. 122, 133. — Sales—Par. 69, 71, 78.
    Where a Ford truck previously mortgaged was traded on a Chevrolet truck, the balance of the purchase price being represented by notes, after the Ford and the notes were resold, on discovery of the chattel mortgage on the Ford and the illegal detention of the Chevrolet by the seller, the seller is entitled to be recognized owner of the Chevrolet upon payment to the buyer of the difference in the amount allowed on the Ford and a chattel mortgage against it and the cancellation of indebtedness by the buyer of the Chevrolet to the seller.
    Appeal from the Parish of St. Tammany. Hon. Prentice B. Carter, Judge.
    Action by Howard Loyd against Covington Motor Company.
    There was judgment for defendant and plaintiff appealed.
    Judgment set aside and rendered.

      Arthur J. Finney, of Covington, attorney for plaintiff, appellant.
    Victor Plauche, of Covington, attorney for defendant, appellee.
   LECHE, J.

Plaintiff sues for the possession of a one-ton Chevrolet truck, for one thousand dollars damages, and additional damages at the rate of ten dollars per day from July 6, 1926, until such time as defendant returns to him his truck. Defendant, on the other hand, prays that plaintiff’s demand be rejected and asks for judgment in reconvention for three hundred twenty-four and 25-100 dollars. Judgment by the district court does not pass upon plaintiff’s demand for possession but otherwise was rendered in accordance with defendant’s prayer, and plaintiff has appealed.

The facts are that plaintiff owned a Ford truck and wishing to procure one more suitable for his work, called upon defendant with a view of securing a Chevrolet truck. After some negotiations, the parties agreed that plaintiff would pay seven hundred twenty-five and 66-100 dollars for a new Chevrolet truck and that defendant would accept in part payment the second-hand Ford truck of plaintiff on an agreed appraisement of three hundred fourteen and 25-100 dollars, the balance of the purchase price of the Chevrolet truck to be represented by plaintiff’s twelve notes, payable monthly, each for the sum of .$34.29 and aggregating altogether $411.41. An act of sale and chattel mortgage was accordingly drawn up and signed by the parties. Plaintiff took possession of his new Chevrolet truck and defendant received plaintiff’s notes and likewise took possession of the Ford truck. This much of the transaction is not disputed and is admitted by both parties.

It apears that plaintiff’s Ford truck was at the time affected by a chattel mortgage amounting to three hundred twenty-four dollars. There was no. concealment of this fact. Both parties knew it, but through error, no account was taken of it when the sale and mortgage was drawn up and signed. It was only two or three days after that defendant discovered the error. Defendant at once called upon plaintiff, who, although he recognized the error, did not seem overwilling to rectify it. It is true that he. offered to return defendant the Chevrolet truck upon defendant’s returning to him his Ford truck, but he then knew that defendant had already sold the Ford truck and could not make restitution. The Ford truck was bought by J. W. Loyd, father of plaintiff, the day after the sale of the Chevrolet had been made by defendant to plaintiff.

The sale of the Chevrolet was made on July first, the sale of the Ford truck was made by defendant to plaintiff’s father on July third, and it w'as on July sixth that the final interview was had between plaintiff and defendant, in order to rectify the error. Various propositions were made but were not accepted, and during this parleying, which took place in Covington, a heavy shower of rain' came up. From that mo.ment the testimony of the parties is very conflicting. Plaintiff says that wishing to get his new Chevrolet truck out of the rain, he handed his ignition key to a colored boy in the employ of the defendant, and asked him to drive the truck in defendant’s garage and service station, where it would be under shelter; that after the rain was over, he proceeded to defendant’s garage, drove out his truck and backed it into an empty lot next to the garage; that still later, being unable to come to a definite understanding with defendant, he returned to get his truck but found it chained and locked and standing inside of defendant’s garage. He further says that he was dispossessed of it from that moment up to the time the case was tried. On the other hand the manager of defendant firm, says that the Chevrolet was brought back to his garage with the full knowledge and consent of plaintiff, and with the understanding that it was to remain there until the parties could adjust their differences.

The trial judge evidently gave full credit to the testimony of defendant and did not believe that of plaintiff. But there are two circumstances which are inconsistent with the version by defendant, as to what actually took place. If plaintiff consented to let the Chevrolet truck remain in the custody and under the control of- defendant, what reason was there to justify defendant in locking it and padlocking the wheels with chains. When confronted with this 'question, defendant manager says that he padlocked the truck “because at the time I left the garage to go to dinner there was no one to leave in charge except the colored boy and I was afraid that he could not give a clear explanation to anyone who came for the car, so I ordered him to put a lock and chan on the wheel.” The reason as thus given by defendant manager is clearly inconsistent with his prior testimony that the truck was to remain in his custody with the full consent of plaintiff, until an adjustment of their differences could be made. The other circumstance is that plaintiff still has possession of the key to the ignition switch of the Chevrolet truck. If it be true that the colqred boy, employee of defendant, was handed the key by plaintiff to bring the truck into defendant’s garage, there to remain, evidently the key also would have remained in the ignition lock of the truck, in defendant’s garage.

Under the circumstances we cannot help but believe that plaintiff was dispossessed of his truck by force, by strategy, or by both; that defendant took possession of it as a measure of protection against possible loss and without any intention of harassing plaintiff. Of course such taking was illegal, no matter what defendant’s motives might have been.

Plaintiff claims one thousand dollars as damages for this act of defendant, and he also, prays for ten dollars damages for each day he has been deprived of the use of his truck. These claims are fanciful, they rest entirely upon a desire to obtain vindication and are not supported by a preponderance of the evidence. We have no right under the late jurisprudence, to inflict vindictive or punitory damages, the only kind that might be recoverable in this case. Plaintiff has not alleged or proved any damages for disappointment, outraged feelings or mental suffering, and none can be allowed upon those grounds.

The error of both parties in drawing up the contract which they signed, vitiates the whole transaction and equity requires that they both should be placed in the position they occupied before they signed the same. But that is now' no longer possible. Defendant has sold the Ford truck and plaintiff’s notes have presumably gone out of the hands of defendant into the ordinary channels of commerce. It is no -longer within the power of defendant to restore plaintiff to his original position. The difficulty which presents itself is to enter such a decreé that will as nearly as possible do justice between the parties.

Plaintiff owned a Ford truck which defendant sold for $350.00 but upon which there was a chattel mortgage of $324.00 paid by defendant. Plaintiff has therefore lost and defendant has made $26.00 as a result of the transaction. Defendant has regained possession of its Chevrolet truck and is therefore in its original position. The Chevrolet is subject to a chattel mortgage amounting to $411.41, which if held by defendant is automatically cancelled and if sold should be paid by defendant" for having already received the proceeds of such mortgage.

For these reasons the judgment appealed from is avoided, annulled and set aside and it is now ordered that plaintiff recover of defendant the sum of twenty-six dollars, that defendant be recognized as owner of the Chevrolet truck, motor No. 230491, subject to the chattel mortgage thereon of $411.41. It is further ordered that defendant pay costs of both courts.


text:
    No. 2983
    Second Circuit
    POWELL v. SPENCER BROS.
    (June 28, 1927. Opinion and Decree.)
    (July 14, 1927. Application for Rehearing.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Appeal—Par. 625.— Master and Servant — Par. 100(1).
    The finding of the trial court as to the amount of wages an injured employee suing under the Workmen’s Compensation Act (Act No. 20 of 1914, and amendments) had been earning at,the time he was injured and the amount of wages he was able to earn thereafter being questions of fact, its findings will not be disturbed unless manifestly erroneous.
    Bowers vs. Orleans Producing & Refining Corp., 1 La. App. 784.
    2. Louisiana Digest — Master and Servant —Par. 159, 160d.
    The fact that an injured employee, suing under the Workmen’s Compensation Act (Act No. 20 of 1914, and amendments) negligently employed a general medical practitioner to set a broken wrist bone, instead of a surgeon, whereby his injury was rendered more serious than it otherwise might have been, will not deprive such employee of his right to compensation. Especially ia this so. in view of the requirement of the Act that the employer shall “furnish the employee reasonable medical, surgical and hospital services and medicines, not to exceed two hundred fifty dollars in value.”
    (The recent amendment of Act 20 of 1914 is Act 85 of 1926. — Editor’s Note.)
    Appeal from the Tenth Judicial District Court of Louisiana, Parish of Natchitoches. Hon. John F. Stephens, Judge.
    Action by Shelton Powell against Spencer Brothers.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    James W. Jones, Jr., of Natchitoches, attorney for plaintiff, appellee.
    Phanor Breazeale, of Natchitoches, attorney for defendant, appellant.
   STATEMENT OF THE CASE

REYNOLDS, J.

This is a suit under the Workmen’s Compensation Act (Act No. 20 of 1914, and amendments) to recover compensation for disability suffered by plaintiff by reason of the bone of his wrist being broken in an accident growing out of and in the course of his employment by defendant.

The defendant denied liability and set up various affirmative defenses. The District Court rejected plaintiff’s demands and dismissed Ms suit and he appealed. This court (Powell vs. Spencer Brothers, 5 La. App. --■) decided that the plaintiff was entitled to recover and reversed the judgment of the court a quo, but being unable to determine from the evidence in the record what wages plaintiff was earning at the time of the accident or what wages he was able to earn thereafter, we remanded the case for the introduction of further evidence on these points.

On the second trial judgment was rendered in fa-Vor of the plaintiff and against defendant for $11.70 a week for twelve weeks, beginning July 25, 1925, and for $2.92 a week for not exceeding two hundred eighty-eight weeks, beginning October 25, 1925, with legal interest on each weekly installment from the date of its maturity until paid, and the costs of the suit. The defendant again appealed.

OPINION

The only question nqw before the court for decision is the amount of compensation the plaintiff is entitled to.

Plaintiff was engaged in hauling gravel for defendant at a fixed price per cubic yard, the price varying with the distance and conditions, for which purpose he furnished his own motor truck and labor. His net earnings therefore depended on the value of the use of the motor truck. It is defendant’s contention that this value was more than that the lower court took in ascertaining plaintiff’s net income from the wqrk, and that therefore plaintiff’s net earnings were much less than $3.00 a day, the basis used by the lower court in fixing the amount of compensation plaintiff was entitled tq.

We are unable to find in the record any evidence definitely fixing the number of days in any given space of time that plaintiff hauled gravel or the reasonable value of the use of the motor truck, including the cost of necessary oil and gas and repairs for it,, during any lapse of time when it was in use, or how much money plaintiff actually earned by his labor and the use of his motor truck during any space of time. Plaintiff was given metal checks of a fixed money value for every load of gravel he hauled and these checks were exchanged for actual money [periodically. No exact record was kept of the quantity of gravel plaintiff hauled during any day or week. We must therefore ascertain, his earnings from other evidence.

Plaintiff himself testifies that at the time of the accident he was earning $3.00 a day and in this he is corroborated by Mr. H. S. Spencer, who testified, page 26.

“Q. The custom out there is to pay $2.50 for the average, truck driver?
“A. The average truck driver, yes.
“Q. And a good truck driver got $3.00?
“A. T'he best, yes.”

There is no. evidence or even intimation in the record that plaintiff was not a good truck driver. He testified, page 4, that he had been driving a truck from three to four years.

It is not disputed that plaintiff was totally disabled for twelve weeks and we think the evidence warranted the court allowing him $11.70 a week for that many weeks, being 65 per cent of the wages he was receiving for the period of his temporary total disability.

This brings us to the award of $2.92 a Week for not exceeding two hundred eighty-eight weeks, as for partial disability, being 65 per cent of the difference between the wages plaintiff was earning at the time of the accident and the wages he is now able to earn.

The second trial took place eighteen months after the accident and the evidence then taken shows that plaintiff was still partially disabled by his injury. He testified on the second trial (page 2).

“Q. Have you been able to hold any job of any kind since you got your arm broke ?
“A. No, sir; I haven’t had a job of any kind, except farming a little.
“Q. Have you been able to plow or hoe?
“A. Not all day, no sir; I can’t hold out.
“Q. Why?
“A. Because my arm hurts too bad; I haven’t got the strength.”
Doctor J. B. Glass testified, pages 16,
17, 18, 19.
“Q. Did you treat Shelton Powell?
“A. Yes, sir; in 1925.
"Q. I want you to examine Mr. Powell’s arm now.
“A. That is what I call a ‘Ford’ fracture.
“Q. It incapacitates his entire right arm, don’t it, doctor?
“A. Yes, it does.
“Q. That will go with him more than 300 weeks after the accident?
“A. It will go with him to the grave.”
On cross-examination he testified, page 18.
“Q. What, in your judgment, is the impairment to the ability of Shelton Powell to use his hand and arm in farming, making a crop. .How much would it be impaired after you discharged him, and how long would that impairment last?
“A. Mr. Phanor, I would not know how to answer that; he couldn’t use his arm like he could before it was hurt.
“Q. I know that.
“A. You want my judgment?
“Q. That is what I asked for. What is the impairment to his disability. It was broken, and so was mine. What, in your judgment, is the percentage of impairment, in making a crop?
“A. I just have to guess at it.
“Q. Make your own estimate.
“A. I know it is impaired; I know his arm was broken; it depends on how he gets along, Mr. Phanor; I would say half; I guess that would be about a half, Mr. Phanor.”
Doctor C. R. Reed testified, pages 21 and 22.
“Q. Have you seen this x-ray?
“A. Yes, sir.
“Q. Have you examined Shelton Powell’s hand?
“A. Yes, sir.
“Q. When did you make your first examination of the hand and arm?
“A. It was in November or December last.
“Q. Of 1926?
“A. Yes, sir.
“Q. As an expert, do you claim that his arm is impaired?
“A. Yes, sir.
“Q. How long will that impairment last?
“A. The balance of his life.
“Q. What per cent is the impairment?
“A. It is a difficult matter to ascertain on a percentage basis; but, considering the condition of his arm, and considering the way he makes his living, by manual labor, I would say that he is impaired, has a disability that is going to run about twenty or twenty-five per cent.
“Q. That is fhe present per cent. It has been 18 months since he was hurt.
“A. I would say about twenty-five per cent.
“Q. At the 'present time?
“A. Yes; I don’t think it will ever be any better than that; than what it is now.”

Doctor M. H. Phelps testified, pages 23, 24.

“Q. You are the physician and surgeon who treated this plaintiff and made these pictures?
“A. I examined him and made the pictures.
“Q. Under an order of court?
“A. Yes, sir.
“Q. Have you had occasion to examine Mr. Powell’s hand several times?
“A. Two or three times.
“Q. What is the condition of the hand?
“A. He had a dislocation of the small bones of the ulna; small bones in the hand; a jamming; and he also had a fracture of the radius, lower end, it is a small chip fracture.
“Q. Is there any impairment of Mr. Powell’s hand ?
“A. Yes.
“Q. How long will that be?
“A. That is, his hand will remain like it is the rest of his life; it will no doubt improve and get better by use, and the more he uses it the better it will get.
“Q. You find an impairment now, do you?
“A. Yes.
“Q. What is the percentage of the * impairment?
“A. At the present time, about twenty or twenty-five per cent.”

We are convinced that the evidence warranted the finding of the court that at the time of the second trial plaintiff’s ability to earn wages was reduced twenty-five per cent as a result of his injury. Seventy-five per cent of $16.00, his weekly earning capacity before he was injured, is $13.50, which represents his earning capacity since the accident. The difference between the two amounis is $4.50 and sixty-five per cent of this difference is $2.92; and the District Court allowed plaintiff $2.92 a, week for' not exceeding two hundred eighty-eight weeks, as for partial disability, beginning at the end of the period of total disability. This was correct.

Defendant’s counsel argued with great force and • earnestness that plaintiff’s disability was rendered greater than it otherwise might have been by reason of his having sought the services of a general medical practitioner to set the broken bone instead of a surgeon.

Neither negligence nor contributory negligence is a valid defense in an action ; under the Workmen’s Compensation Act.

Farris vs. Louisiana Leaf Lumber Co., 148 La. 106, 86 South. 670.

Besides it was defendant’s duty under , the law, (Section 8, paragraph 5, as amend"ed by Act No. 216 of 1924) to—

“furnish the employee reasonable medical, , surgical and hospital services and medicines, not to exceed two hundred fifty . dollars in value.”

; Plaintiff testified, page 36, that when he ; was injured he sent for Mr. Spencer, one . of the defendants, and that Mr. Spencer . said he was going to Locust Hill and did ' not have time to fool with him. On receipt of this information plaintiff sought out Doctor J. B. Glass, a general medical 1 practitioner, who set the broken bone.

If the fracture was not properly set by i Doctor Glass defendant is without right • to complain of it after having been re- • quested by plaintiff to provide . him with ; medical treatment by a doctor of defend- ; ant’s qwn selection and having failed to ' do so.

¡ We find no error in the judgment ap- ' pealed from, and, accordingly, it is affirmed.


text:
    No. 2972
    Second Circuit
    GRANT v. LA. SAWMILL CO., INC.
    (June 28, 1927. Opinion and Decree.)
    (July 12, 1927. Application for Rehearing.)

      (Syllabus by the Court)

    1. Louisiana Digest — Master and Servant —Par. 160.
    The terms “other members of the family of the deceased employee,” as used in paragraph (h), subsection 2, section 8 of Act No. 216 of 1924, includes a grandmother of the deceased employee even though she was not residing in the same house with him at the time of his death.
    2. Louisiana Digest — Family. (No paragraph.)
    “Family” includes all relatives descending from a common root.
    Civil Code, Art. 3556, paragraph 12.
    3. Louisiana Digest — Master and Servant —Par. 160.
    Where a grandson, not residing in the same house with his grandmother at the time of his death, is shown to have regularly remitted to her monthly-money for her support, she is entitled to recover compensation for his death in the coufse of his employmént, under paragraph (h) subsection 1, section 8 of Act No. 216 of 1924.
    Rome vs. Mexican Petroleum Corporation, 3 La. App. 423.
    4. Louisiana Digest — Master and Servant —Par. 154.
    A liberal interpretation should be given by the court to the Workmen’s Compensation Law (Act No. 20 of 1914 and amendments thereto) in favor of those intended to be benefitted thereby. Rome vs. Mexican Petroleum Corporation, supra.
    Appeal from the Ninth Judicial District Court of Louisiana, Parish of Rapides. Hon R. C. Culpepper, Judge.
    Action by Mary Jane Grant against Louisiana Saw Mill Company, Inc.
    There was judgment for defendants and plaintiff appealed.
    Judgment reversed.
    Hopkins & Talbot, of Alexandria, attorneys for plaintiff, appellant.
    Thornton, Gist & Richey, of Alexandria, attorneys for defendants, appellees.
   STATEMENT OF THE CASE

REYNOLDS, J.

This is a suit by Mary Jane Grant against the Louisiana Saw Mill Company, Inc., and the Southern Casualty Company to recover judgment against them in solido for $6.34 a week for a period of 300 weeks, beginning with August 6, 1925, with legal interest on each payment from its. maturity until paid, under paragraph (h), subsection 1, section 8 of Act No. 216 of 1924, amending the Workmen’s Compensation Law (Act No. 20 of 1914 and amendments), for the death of her grandson, Mack Kelly, who was accidentally killed on August 6, 1925, while performing services for and in the course of his employment by the defendant, the Louisiana Saw Mill Company, Inc.

The defendant denied liability, alleged that plaintiff was not dependent on the deceased for support, and that plaintiff was not one of those persons named in the Act as entitled to compensation for the death of the deceased.

The case was submitted to the court for decision on the following agreed statement of facts:

“That the question submitted for the court’s decision is, whether or not plaintiff is entitled to recover compensation under Section 8 of the Workmen’s Compensation Act, Act No. 20 of 1914 as amended, particularly Act No. 216 of 1924, subsection 2 (h), as a dependent member of deceased’s family.
“The Agreed Pacts
“That Mack Kelly, deceased, was an employee, at the time of his death, of the Louisiana Saw Mill Company, a corporation domiciled in and doing business in the parish of Rapides, State of Louisiana, and within the jurisdiction of this court; that the Louisiana Saw Mill Company owned and operated, on August 6, 1925, a sawmill at Glenmora, Louisiana, and was engaged in a hazardous occupation within the meaning of said laws; that the Southern Casualty Company is a corporation engaged in the insurance business with its domicile and principal place of business at Alexandria, Louisiana, and within the jurisdiction of this honorable court; that the Southern Casualty Company is the insurer of the Louisiana Saw Mill Company insofar as workmen’s compensation insurance is concerned.
“That Mack Kelly, a colored man, age thirty-six years, was employed as a laborer by the Louisiana Saw Mill Company on August 6, 1925, and as such was entitled to the privileges and benefits of the Louisiana Workmen’s Compensation Law; that on that date, while engaged in the performance of his regular duties, in connection with the loading of logs, by means of a skidder, at a point out from Glenmora, Louisiana, the said Mack Kelly was accidentally struck on the head by a log, and instantly killed.
“That the said Mack Kelly, at the time of his death, was single; that he had never been married, and therefore had no descendants; and that his mother and father were both dead; that he was earning a wage of $19.50 pér week at the time of his death. ' "
“That Mack Kelly’s mother died in Maringouin, Louisiana, in December, 1903, when Mack Kelly was about thirteen (13) years of age, and that he, with his sisters, lived with the grandmother, Mary Grant, plaintiff herein, on the Slack Plantation out from Maringouin, Louisiana, the grandmother, then 61 years of age, ‘keeping house’ and the six ■ (6) daughters then living and Mack Kelly working in the field on said plantation on ‘shares’; that in 1909 Sylvia Sebury, the daughter with whom your petitioner now resides, moved to New Orleans, Louisiana; that in 1911 Mack Kelly’s sister, now under the married name of Amelia Butler, moved to Alexandria, Louisiana, and that same year Mack Kelly left the farm at Maringouin, Louisiana, and followed his sister to Alexandria, Louisiana, and then began to follow ‘public works,’ first working at Lone Pine, Louisiana; that in the same year, 1911, your petitioner herein moved to New Orleans and took up her abode with Sylvia Sebury; that petitioner herein has since 1911 continuously resided with her granddaughter, Sylvia Sebury, in the city of New Orleans, Louisiana, and that Mack Kelly has during this time continuously lived separate and apart from his grandmother; that Mary Jane Grant, grandmother of Mack Kelly, is his only living ascendant; that he sent money to his grandmother from the time that he left home to go to work up until the time of his death; that at the time he was working for the Louisiana Saw Mill Company he was sending regularly from eight to fifteen dollars per month, in cash, to his grandmother for her support; that the said Mary Grant is an ex-slave, 84 years of age and unable to support herself.
“That if petitioner, Mary Grant, is entitled to recover at all under the compensation laws of Louisiana, she is entitled to recover thirty-two and one-half per cent of $19.50 for a period of three hundred weeks, as prayed for in plaintiff’s petition.”

On these issues the case was tried and there was judgment rejecting plaintiff’s demand and dismissing her suit and she has appealed.

OPINION

The agreed statement of facts leaves for decision by the court only the question, was plaintiff a “member of the family of the deceased” within the meaning of paragraph (h) of subsection 2 of section 8 of the Workmen’s Compensation Law as amended by Act Nq. 216 of 1924, so much of which as is important here reads as follows:

“If there be neither widow, widower nor child, nor dependent parent entitled to compensation, then to the brothers and sister and other members of the family of the deceased, employee not hereinabove specifically provided for, if such brother or sister or other member of-the family not otherwise specifically provided for was actually dependent on the deceased employee for support to any extent at the time of the injury and death * * * ”

(Italics ours.)

Plaintiff was the grandmother of the deceased and at the time of his death she was dependent and he was regularly contributing money to her support.

Deceased was unmarried and resided at Glenmora, in Rapides .parish, Louisiana.

Plaintiff resided in New Orleans with a married daughter.

We have been furnished by learned coun-' sel with able - briefs in which numerous enlightening authorities are cited or quoted from. In last analysis the correct decision of the question turns upon the meaning the legislature intended should be given to the word “family” in the law quoted. Does it include a grandmother not living with but receiving support from a grandson? We think it does.

Webster’s New International Dictionary, edition of 1927, defines “family” as:

“3. a Those descended (really or putatively) from a common progenitor; * * * ”

Civil Code, Art. 3556, last part of paragraph 12, says the word signifies—

“all the relations who descend from a common root.”

These definitions of the word “family” satisfy us that a grandmother is a member of her grandson’s family whether she actually resides with him or not.

Counsel for defendant insist that to construe the word as including all persons descending from a common ' root would be to read into the law a meaning the legislature never intended to give it.

We cannot concur in this contention. In our opinion to exclude grandmothers from the definition of the word would give it too narrow a meaning and so exclude from the beneficiaries of the Workmen’s Compensation Law persons clearly intended to be included therein.

“Liberal interpretation of the law is the rule of reason governing courts in compensation cases * * * ”

Rome vs. Mexican Petroleum Co., 3 La. App. 523.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and it is now ordered, adjudged and decreed that, (plaintiff, Mary Jane Grant, do recover judgment against defendants, Louisiana Saw Mill Company, Inc., and Southern Casualty Company, in solido, for compensation at the rate of six and 34-100 dollars per week for a period of three hundred weeks, the first payment being decreed due August' 6, 1925, with legal interest on each installment from its maturity until paid,- and all costs.


text:
    No. 2859
    Second Circuit
    BREAZEALE v. PETERS
    (June 28, 1927. Opinion and Decree.)
    (June 30, 1927. Application for Rehearing.)

      (Syllabus by the Court)
    i. Louisiana Digest — Judgment—Par. 100, 125, 129.
    Where citation was through a curator ad hoc, the condemned must prove the non-existence of the condition authorizing the appointment of such curator, and this must be raised in an action to annul and not in a collateral attack on the judgment.
    Code of Practice, Art. 606; Hamburger vs. Purcell, 139 La. 455, 71 South. 765.
    Appeal from the First Judicial District Court of Louisiana, Parish of Bossier. Hon. E. P. Mills, Judge.
    Action by W. O. Breazeale against Joe Peters.
    There was judgment for defendant and plaintiff appealed.
    Judgment amended.
    Frank A. Blanchard, of. Shreveport, attorney for plaintiff, appellant. e
    Harry Y. Booth, of Shreveport, attorney for defendant, appellee.
   STATEMENT OF THE CASE

REYNOLDS, J.

This is an action of trespass to recover damages in the sum of $1390.75 for the alleged illegal seizure and sale of plaintiff’s property.

The petition alleges that the seizure and sale were under a fi. fa. issued upon a judgment rendered by, the City Co.urt of Shreveport, Louisiana, in an action brought therein by defendant against him and wherein he was cited through a curator ad hoc.

It is further alleged that plaintiff— “had no notice of said suit or seizure and had no knowledge that his property had b'een seized until long after the same had been .sold.”.

and further,

“that said seizure and sale was illegal and that the affidavit supporting said seizure was false and untrue.”

Defendant filed an exception of no cause of action, which was overruled, and, reserving its rights under the exception defendant answered denying the allegations of the petition and alleging that the proceedings under which plaintiff’s property was seized and sold were regular and according to law.

The case was tried on the merits and there was judgment in favor of the defendant rejecting plaintiff’s demand and dismissing his suit and plaintiff has appealed.

OPINION

The petition does not allege that defendant was not cited in the action wherein his property was seized and sold or that 'the court was without jurisdiction ratione materiae or any other fact rendering the proceeding void; it merely alleges that the plaintiff had no notice of the seizure or sale until after the sale had taken place, which is nqt an allegation of want of' citation.

It is possible for a defendant to be legally cited through domiciliary service or through a curator ad hoc or other legal representative without his being aware of the pendency of the suit.

The presumption, is that a judgment rendered by a sworn officer is based upon the conditions required by law, and that presumption is not rebutted by an allegation that defendant in the suit had no notice of its pendency.

Hamburger vs. Purcell, 139 La. 456, 71 South. 765.

In our opinion the exception of no cause of action is good and should have been sustained.

It is therefore ordered, adjudged and decreed that the judgment appealecj. from be amended and that the exception of no cause of action be sustained and plaintiff’s suit dismissed at his cost.