author: WESTERFIELD, J.

text:
    No. 11,623
    Orleans
    SUCCESSION OF VEZOUX
    (December 10, 1928. Opinion and Decree.)
    (January 7, 1929. Rehearing Refused.)
    J. T. Prowell, of New Orleans, attorney for plaintiff, appellant.
    Charles J. Rivet, of New Orleans, attorney for defendant, appellee.
   WESTERFIELD, J.

Joseph D. Hebert sued the Succession of Vezoux for a money judgment. His suit was dismissed and he obtained an order for a suspensive appeal in the following language:

“It is ordered that devolutive and suspensive appeals he granted to the said Joseph D. Hebert, plaintiff, returnable to the Court of Appeal for the Parish of Orleans on the 13th day of July, 1928, upon said party furnishing bond, with good and solvent security in the sum of Fifty Dollars for the devolutive appeal and according to law for the suspensive appeal.”

The Succession of Vezoux, through its administrator, August Vezoux, filed a motion in this Court to dismiss the suspensive appeal, on the ground that no valid bond was furnished, the Court having failed to fix the amount. In answer to the motion to dismiss, it is contended, on behalf of Hebert, that the motion of appellee should have been filed in the District Court, in accordance with the provisions of Act 112 of 1926, citing Hurry vs. Hurry, 144 La. 877, 81 So. 378.

The jurisprudence is settled and to the contrary. Pan American Bank & Trust Co. vs. Ranson, 150 La. 142; Church vs. Taylor, 3 La. App. 20; Rozan vs. Villere, 147 La. 749, 85 So. 899; Braun et al. vs. Veillon et al., 166 La. 564, 117 So. R. 719 (decided June 4, 1928).

For the reasons assigned the motion to dismiss the appeal is sustained and it is, therefore, ordered that this appeal be dismissed in so far as it purports to he suspensive.


source: Caselaw Access Project

license: Public Domain

text:
    No. 10,550
    Orleans
    RICHARDSON v. DASARA
    (December 10, 1928. Opinion and Decree.)
    (January 7, 1929. Rehearing Refused.)
    John J. Reilley, of New Orleans, attorney for plaintiff, appellee.
    Paul W. Maloney, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

Plaintiff, a sub-contractor, sued Carl Richardson, the contractor and Steve- Dasara, the owner, for the balance due him in the sum of $450.00, for work and material furnished on certain property owned by Dasara.

There was judgment below as prayed for, and defendant, Steve Dasara, has appealed.

The record is made up entirely of testimony, administered on behalf of plaintiff, and it establishes that the defendant, Carl Richardson, contracted with Dasara, the owner, under a written agreement to do certain work for the -sum of $2,193.60; that Tom Richardson, the plaintiff, was given a sub-contract for papering and painting amounting to $846.00, of which $390.00 was paid on account; that plaintiff finished his work on the 29th day of October, 1925, and that about eight days thereafter, on the 9th day of November, he recorded a lien and privilege in the Mortgage Office of the Parish of Orleans, and on the same day, caused a sworn account to be served on the owner; that the owner paid to the contractor the full amount due under the written contract, but failed to require any bond or security from the contractor.

The liability of the contractor is not disputed and he has not appealed. Dasara’s responsibility is based upon Act 139 of 1922, as amended by Act 2'30 of 1924, to the effect that the owner, who fails to require a bond from a building contractor is liable to sub-contractors and furnishers of materials for their unpaid accounts “to the same extent that a surety would have been.” Dixie Building & Material Company, Inc., vs. Chartier, 8 La. App. 469.

It is conceded that the application of the law cited, to the established facts in this case, sustains the position of plaintiff, but it is contended that the Acts of 1922 and 1924 are unconstitutional because of conflict with Article I, Section 2 of the Constitution of Louisiana of 1921, and with the 14th Amendment of the Constitution of the United States, in that the Act operates the taking of property, without due process of law. There has been no attempt to support this attack upon the constitutionality of the statute in counsel’s brief, and we were not favored with oral argument, the matter having been submitted on brief, consequently, we are not impressed with the sincerity of counsel in this regard. The mere assertion that an act of the Legislature is unconstitutional, without elaboration in argument, or brief, and without citation of authority, is insufficient to stimulate judicial scrutiny, and the Court will indulge the presumption that the law is constitutional.

The judgment appealed from is correct and for the reasons assigned it is affirmed.


text:
    No. 11,646
    Orleans
    MAISON BLANCHE CO. LTD., v. PUTFARK
    (December 10, 1928. Opinion and Decree.)
    (January 7, 1929. Rehearing Refused.)
    L. Wertheimer, of New Orleans, attorney for plaintiff, appellant.
    A. M. Curtis, of New Orleans, attorney for defendant, appellee.
   WESTERFIELD, J.

Plaintiff alleges that it sold certain merchandise to defendant aggregating in value $225.00, in payment of which defendant executed a promissory note, dated the day of the purchase, May 1, 1926; that there was paid on account of said note $112.50, leaving a balance of $112.50, for which a judgment was asked. Defendant, in his answer admitted his signature to the note and averred that the consideration therefor was a certain Radiola, purchased by him, which proved unsatisfactory. In other words, there was a failure of consideration.

Upon the trial of the case, plaintiff offered the note sued on in evidence, together with the affidavit attached to his petition, and the citation in the case showing personal service, and rested. Whereupon defendant rested, thus closing the case.

Defendant successfully contended in the lower court that plaintiff had failed to make out its case, the judgment being one of non-suit. Plaintiff has appealed.

It is argued that there is insufficient proof in the record to justify a judgment for ¡plaintiff upon the ground that where the existence of any consideration is challenged by a defendant, sued upon a promissory note, the burden is upon the plaintiff to establish the presence of consideration.

We are referred to the case of Freil vs. Murchison, Adm. et al., 3 La. App. 559. In that case it was held that while the execution of a note or check creates a presumption of just and valid consideration and places the burden upon -the debtor, pleading want of consideration, to establish it, that “when the existence of the consideration is expressly put at issue and doubt or suspicion is cast upon its reality, the burden of proving the consideration is shifted to the payee.”

In the cited case, the defense was the illegality of the consideration, alleging that the note was given for a gambling debt, as consideration contra bonos mores. Moreover, in the case at bar, there can be no question of the reality of the consideration, a legitimate sale and, delivery of merchandise. Partial payments were made upon the note subsequent to its execution and it was reduced in principal to the extent of one-half, a recognition of reality whatever may be said of subsequent failure. We think the case is within the rule requiring a defendant, making a special defense, to establish it. The burden of proof in this case rests upon the defendant to show,, if he can, the failure of consideration of the note sued on. The plaintiff having made a prima facie case, and there being no countervailing proof in the record, there must be judgment as prayed for.

For the reasons assigned, the judgment appealed from must be reversed and it is now ordered, adjudged and decreed that there he judgment in favor of the plaintiff, Maison Blanche Company, Ltd., and against the defendant, Fred Putfark, in the sum of $112.50, with interest thereon at the rale of 5 per cent per annum from August 30, 1928, until paid, together with 10 per cent of said amount as attorneys’ fees and for all costs.


author: ODOM, J.

text:
    No. 2970
    Second Circuit
    HEARD v. MONROE SAND AND GRAVEL COMPANY, INC.
    (June 28, 1928. Opinion and Decree.)

      Theus, Grisham and Davis, of Monroe, attorneys for plaintiff, appellee.
    Hudson, Potts, Bernstein and Sholars, of Monroe, attorneys for defendant, appellant.
   ODOM, J.

On September 20, 1922, a written contract was entered into between Mrs. Fay Piner Heard, through her husband as agent, and T. E. Stephenson, a resident of Caddo parish, Louisiana, under the terms of which said Stephenson acquired the right to mine, sever and remove sand and gravel from thirty acres of land belonging to Mrs. Heard near West Monroe, in Ouachita parish, this privilege to extend over a period of fifteen years.

The consideration for this contract was $250.00 cash and the obligation on Stephenson’s part to pay Mrs. Heard ten cents per cubic yard for all sand and gravel removed, the payments to be made as' the sand and gravel was removed.

On September 19, 1922, said Stephenson entered into a similar contract with Mrs. Josephine Faulk to remove sand and gravel from 280 acres of land adjoining that of Mrs. Heard, the only essential difference between the two contracts being that Stephenson was to pay Mrs. Heard 10 cents per cubic yard for sand and gravel removed from her land, and 7% cents per cubic yard for that which he might remove from Mrs. Faulk’s land.

These contracts were filed and recorded in the notarial records of Ouachita Parish on September 20, 1922. On that date, the said Mrs. Fay Piner Heard, through her husband, and said T. E. Stephenson, entered into a separate contract, in which it is recited that on September 19, 1922, said Stephenson had made a contract with Mrs. Josephine Faulk covering the sand and gravel on the land owned .by Mrs. Faulk, and that it was agreed in said contract that Stephenson should pay to Mrs. Faulk 7% cents per cubic yard for all sand and gravel mined and removed from her land, and article 3 of the contract reads in part as follows:

“It is now agreed and expressly understood that the said T. E. Stephenson shall pay to the said Mrs,-Fay Piner Heard the sum of two and one-half cents per cubic yard for each and every cubic yard of the said gravel, etc., removed from the said premises of the said Mrs. J. Faulk and that the said payments shall be made to her at each and every payment time, that is to say, on each month when the said T. E. Stephenson shall pay to the said Mrs. Faulk the seven and one-half cents for each cubic yard of gravel, etc., removed from her premises, he shall at the same time make a payment of two and one-half cents to the said Mrs. Fay Piner Heard on the same cubic yards of gravel, etc.”

The consideration for this contract is set out in article 4 of the contract, which reads in full as follows:

“It is agreed that the consideration for the making of this contract is that the said Mrs. Fay Piner Heard has through her agent J. Faulkner Pleard, arranged and contracted an agreement and has done all of the work incidental thereto of the contract had by and between the said T. E. Stephenson and Mrs. J. Faulk signed on the 19th day of September, 1922, and the further consideration of the granting to the said T. E. Stephenson a like contract on her said land adjoining the said premises of the said Mrs. Faulk. And it is agreed that the said Mrs. Heard through her agent J. Faulkner Heard, has done and given other valuable services in the arrangements of selling the said gravel, etc., to the road building committees.”

This separate contract was also recorded in the notarial records of Ouachita parish on September 21, 1922.

On November 25th following, the said T. E. Stephenson, who had obtained these lease contracts from Mrs. Heard and Mrs. Paulk and who had entered into the separate contract with Mrs. Heard to pay her 2% cents per cubic yard on the gravel taken from Mrs. Paulk’s land, and J. A. Stephenson, said to be a resident of Shreveport, Louisiana, and Robert O. Randle, an attorney of Monroe, Louisiana, organized a corporation under the name and style of “Monroe Sand & Gravel Company, Inc.,” the objects and purposes of which were to “search for sand, gravel and other minerals * * * to drill, mine and excavate for such products * * * and to sell and dispose of the same.”

The capital stock was fixed at $25,000.00, divided into 250 shares of the par value of $100.00 — “and said stock shall be paid for in cash, in property or in services.”

The corporation was authorized to begin business when one-half of the capital stock was subscribed and paid for.

The stock was subscribed for as follows:

T. E. Stephenson — 119 shares--------$11,900.00

J. A. Stephenson — 4y2 shares-------- 450.00

Robert O. Randle — 6 shares------------ 600.00

T. E. Stephenson offered to and did pay for the stock which he took, in property which was appraised by J. A. Stephenson and Randle, the other stockholders, as follows:

The Heard lease, appraised at--------$1,050.00

The Faulk lease, appraised at-------- 9,800.00

Improvements on above leases-------- 2,560.00

On January 3, 1923, the three stockholders increased the capital stock to $125,: 000.00, and stipulated that the additional stock might be paid for' — “in cash, in property, in services, or by the enhancement in value of the property of this corporation.”

Whether this additional stock was ever taken and paid for is not disclosed by the record.

There is no definite statement as to when this corporation began business, but we gather it was about December 1st or 15th, 1922.

At any rate, the corporation immediately began to pay to Mrs. Heard the royalty of 2y2 cents per cubic yard on the gravel taken from the Faulkner lease, as per the contract which she had with T. E. Stephenson. The first payment was made to her on January 19, 1923, about a month and a half after the corporation was organized. It continued to make her monthly payments for , thirty-three consecutive months, the last payment being made on October 20, 1925. From and after that date, the corporation refused to make further payments.

On December 18, 1925, plaintiff, Mrs. Heard, filed this suit against the corporation, alleging that the defendant had taken over said leases and had continued to take sand and gravel from the Faulk lease and had paid the royalty under the separate contract with Stephenson until October, 1925, and was due the royalties for November and December, amounting to $501.37, for which amount she asked judgment.

Admitting that Stephenson had signed the contract alleged upon, that it had taken from the Faulk lease the amount of gravel alleged for November and December and had refused to pay for the same, the defendant corporation set up as a defense the following:

1. That in the acquisition of the Paulk lease, it did not assume or obligate itself to discharge any liability of Stephenson to Mrs. Heard under the separate contract alleged upon; alleging that T. E. Stephenson

“who is in active charge of the management and business and affairs of your respondent corporation, paid or caused to be paid, out of funds belonging to this respondent, an amount equal to the commission referred to and provided for in the said contract between the said Stephenson and the plaintiff herein.”

2. That said Stephenson was without right or authority to pay the same; that the contract between Stephenson and Mrs. Heard was personal, and defendant had not assumed the same; and that said Stephenson “under a mistaken sense of obligation, undertook to pay and did pay” certain amounts to Mrs. Heard.

3. In the alternative, if the court should hold that the acts of said Stephenson, its general manager, in making said payments, which are admitted, rendered defendant liable for future payments, upon the theory of implied assumption of the contract, then in that event defendant contends that the contract between Stephenson and Mrs. Heard was without consideration and was entered into through fraud and error and is therefore null and void.

3 We take up and consider these defenses in inverse order.

Enlarging upon the allegation that the contract between Stephenson and Mrs. Heard, by which he agreed to pay her 2yz cents per cubic yard for each cubic yard of gravel taken from the Faulk lease, was entered into without consideration and was procured by Mrs. Heard through error and fraud, counsel for defendant,- in answer, specified that 'the portion of the contract which stipulated that the consideration therefor was that Mrs. Heard had arranged the contract and agreement between Stephenson and Mrs. Faulk and had done all the work incidental thereto, was erroneous, and that said Mrs. Heard, by and through her husband as her agent, had falsely and fraudulently represented that he had done so, and acting upon the belief that he had done so said Stephenson had been induced to sign the contract and that said false and fraudulent representations constituted the principal motive for Stephenson signing the contract; and, further, that it is not true, as recited in the contract, that plaintiff, through her said agent, had done and given other consideration for the contract.

While it may be true that J. Faulkner Heard, plaintiff’s agent, did not perform all the services in getting Mrs. Faulk to make the lease to Stephenson, which he represented to Stephenson he had done, he had, nevertheless, taken an interest in the matter and had gone to see Judge Mc-Lendon, who represented Mrs. Faulk, on two occasions, discussed the- matter of the lease with him, and had ascertained from McLendon that Mrs. Faulk would lease, provided she got a royalty of seven and one-half cents per cubic yard.

Heard had tried to get the lease from Judge McLendon for himself, but Mc-Lendon refused to lease to him, but told Heard tht if he could get a contract stipulating a royalty of seven and one-half cents he would sign. McLendon says that Heard did not induce him to sign the contract for Mrs. Faulk, and that is no doubt true. But the fact is that Heard was doing what he could for Stephenson, at least to the extent of going to McLendon and finding out just what he wanted.

When Heard learned that McLendon 'would sign for Mrs. Faulk, he went back to Stephenson and told him what kind of a contract could be made, and told Stephenson to go to see McLendon. Stephenson went to see McLendon on the following day and closed with him for the lease on the terms which Heard had said could be made.

There was nothing said between McLendon and Stephenson as to what Heard had done. Stephenson personally closed the trade with McLendon. That was on September 19th. On the following day Stephenson voluntarily signed the contract with Mrs. Heard by which he obligated himself to pay her two and one-half cents per cubic yard for the gravel taken from the Faulk lease, in which contract he specifically recognized that Heard had been of some service to him in the negotiations. That service may have been slight, but evidently Stephenson recognized that it was of some value to him. He could not have been seriously misled by what Heard had told him.

Stephenson testified that he wanted the Heard property and the Faulk property, both or none. He went to the Heard property and found Heard there making some excavations. He told Heard he wanted the property, “and he, (Heard) told me I could get, he thought, 160 acres from Judge Mc-Lendon.” He adds that Heard told him that he, Heard, had an option on the Faulk property which would expire in a few days, and says Heard told him “though you better go to see — if you want the Judge’s property you had better go to see him yourself. And I told him I would.”

He says he sought McLendon and asked what he wanted, and McLendon told him, and the contract was closed.

Stephenson, as a witness, laid stress upon the fact, as he stated, that Heard told him he had an option on the Faulk land and he thought he had to pay Heard in order to get the Faulk lease. It can hardly be true that Stephenson thought, when he signed the separate contract with Mrs. Heard, that he had to pay Mrs. Heard a royalty on the Faulk lease, in order to get it, because he obtained the Faulk lease on the 19th and made the contract with Mrs. Heard one day later. If he had thought originally that Heard had an option on the Faulk land he later found that was not true, for in his negotiations with McLendon, Heard’s name was not mentioned; and Stephenson knew that even if Heard did have an option on the land he could not éxercise his rights under it after McLendon had signed the lease. Stephenson, therefore, when he made the contract with Mrs. Heard, was acquainted with all the facts, and it cannot be said that he was induced' to sign the contract through fraud and error.

Again referring to the consideration for the contract, we note that it recites that—

“* * * and the further consideration of the granting to the said T. E. Stephenson a like contract on her said land adjoining the said premises of ■ the said Mrs. J. Faulk.”

The Faulk contract was signed on the 19th and the Heard lease contract was signed the following day. Stephenson testified that he wanted a lease on both tracts or none. Having obtained a lease on the Faulk land, he went back to Heard, with whom he had closed no lease; but he did close with Mrs. Heard on the 20th.

The contract sued upon recites that one of the considerations for making it is that Mrs. Heard had agreed to lease her land also. The contract sued on being the voluntary act of Stephenson, we must give effect to its provisions as to the consideration upon which it rests.

Stephenson cannot repudiate the plain provisions of the act. Our conclusion is that he was bound under the contract.

(1-2), The defendant corporation’s main defense is that even though Stephenson may have been bound, it did not assume his contract with the plaintiff, and that its payment of the royalties to her under the provisions of the contract has not rendered it liable for future payments under the theory of an implied assumpsit of Stephenson’s obligations.

Our conclusion is, and we hold, that the defendant corporation is bound to the same extent that Stephenson himself was bound, not solely upon the ground, as argued by counsel for plaintiff, that there was an implied assumpsit or a quasi contract, but upon the ground that a consideration of all the facts and circumstances connected with the formation of the corporation, and its subsequent management, lead irresistably to the conclusion that the business carried on by the corporation was in fact but a continuation of Stephenson’s business under a new guise; a merger of his private business into a corporation of which he was the sole managing head and director and of which he was practically the sole owner.

In other words, in the formation of the corporation there was no more than a novation or substitution of the corporation for Stephenson. Stephenson was the directing mind in the formation of the corporation, and under his exclusive control and direction of the affairs of the corporation, it took up and made his contract its own.

Stephenson wanted to engage in the sand and gravel business, and in furtherance of his plans he procured the leases from Mrs. Heard and Mrs. Faulk. He placed machinery on the ground preparatory to the beginning of operations. He then organized the corporation, composed of three persons, himself, J. A. Stephenson and Robert O. Randle. The capital stock was placed at $25,000.00 and the company was authorized to begin business when one-half the stock was subscribed and paid for. T. E. Stephenson took 119 shares, or $11,900.00 of the stock and in payment therefor he tendered the Heard lease which was appraised at $1,050.00, the Faulk lease appraised at $9,800.00, and “improvements on the leases above described, opening pits, clearing, digging test holes, getting out ties and purchase of tractor, appraised at $2,560.00.”

J.. A. Stephenson subscribed for $450.00 and Robert O. Randle for $600.00 of the stock. Whether they paid cash or whether they rendered services for their stock is not disclosed, but we think it probable that Randle, at least, rendered services for his stock, as he was an attorney and the charter seems to have been prepared in his office.

But it is clear that the only assets which the corporation had when it was organized was the property which T. E. Stephenson carried into it, in lieu of which stock was issued to him. The business under the corporation was Stephenson’s business — he incorporated his business, and took charge of and continued the business as president and general manager. On the first pay day following the organization of the corporation, he, as manager, for and in the name of the corporation, paid Mrs. Heard the amount due her under the contract and made like payments for ' thirty-three consecutive months, the total payments amounting to upwards of $7000.00.

Under such circumstances, the conclusion that this was a Stephenson organization and that the business of the corporation was but a continuation or a “reincarnation” of Stephenson’s business under a new guise, is inescapable.

“With regard to liability for debts of the old corporation, the general rule is that a new corporation organized to succeed an old one is not liable for the debts of the latter. The new corporation, will, however, be liable for the debts of the old one (1) where the circumstances are such as to warrant the conclusion that the former is not a separate and distinct corporation, but merely a continuation of the latter, and hence the same person in law.”' 10 Cyc. 287.

In the case of Wolf vs. Shreveport Gas & Electric Light Co. et al., 138 La. 743, 70 South. 789, L. R. A. 1916B, No. 1138, where many authorities are cited, the court held that where a corporation makes a conveyance to a new corporation under circumstances which warrant the conclusion that the new company is merely a continuation or reorganization of the old company, a person who was injured in an explosion while working for the old company may recover against either, the evidence disclosing “the earmarks of transactions between persons dealing with themselves.”

The rule applies with equal force where individuals are in business and incorporate and carry on the same business under the same management.

We think the defendant corporation is bound.

The only other point urged by counsel for defendant is that the lower court erred in refusing to permit them to recall certain witnesses in rebuttal.

The plaintiff offered in evidence the contract sued on, and the admission in defendant’s answer, which made out a prima facie case.

Defendant then called its witnesses to show that the contract was obtained by Heard through error and fraud. Among the witnesses were Stephenson and Judge McLendon, who swore that Heard had nothing to do with the making of the contract. Plaintiff then called Heard, Sanders and others in rebuttal, and the case was ordered closed by the court. Counsel for defendant then asked to recall Judge Mc-Lendon and Stephenson to contradict the statements made by plaintiff’s rebuttal witnesses, and the court refused to permit them to do so.

Counsel for defendant concede that the court followed the rule laid down in Articles 476 and 477 of the Code of Practice, but they say that the court may and should under some circumstances relax this rule, and they cite many decisions in support of their argument.

The matter of permitting witnesses to be called in surrebuttal is within the discretion of the trial court. The court did not abuse its discretion in this case. Judge McLendon and Stephenson had already been examined and cross-examined and had testified fully on all the main points. If they had been recalled they could have done no more than reiterate their former statements.

The judgment appealed from is affirmed, with costs in both courts.


text:
    No. 10,415
    Orleans
    CANAL STEEL WORKS, INC., v. CITY OF NEW ORLEANS (P. B. R. R.)
    (November 13, 1928. Opinion and Decree.)
    Peitel and Peitel, of New Orleans, attorneys for plaintiff, appellant.
    W. McL. Payssoux, of New Orleans, attorney fbr defendant, appellee.
   WESTERFIELD, J.

Plaintiff sues the City of New Orleans, as the responsible authority for the Public Belt Railroad Commission, for the sum of $1,080.82, as damages to an automobile truck alleged to have been cause by collision 'with a train negligently operated by the Public Belt. The damages are itemized as follows:

Repairs to truck ____________________________________$600.45

Removal of wreckage ........................ 34.55

Hire of truck during time occupied in repairing plaintiff’s truck ........ 445.82

Defendant denied all negligence imputed to it and alleged that the accident was entirely due to the fault of plaintiff. There was judgment for defendant and plaintiff has appealed.

At the time of the collision plaintiff’s truck was parked on a switch-track of the Public Belt, within the private yard of plaintiff, a manufacturing concern located on the Industrial Cabal, in the City of New Orleans. ' The train which struck plaintiff’s truck consisted of nineteen freight cars, manned by an engineer, a fireman and 'two switchmen. It ws engaged in a backing movement and proceeded very slowly, some three or four miles per hour. After striking plaintiff’s truck, it proceeded some little distance, pushing the truck before it and crushing it against a pontoon tank, which was in the yard.

Pour witnesses, testifying for plaintiff, say, that there was no switchman on the lead car, at the timg of the. collision, but that the switchman came running to the scene of the accident after the train had collided with plaintiff’s truck.

The train crew testified that the switch-man was on the lead car, where he should have been, until the imminent danger of the collision made it necessary for him to jump. Mr. Ludwig, president of the plaintiff corporation, testified that the switch-man told him immediately after the accident that he had jumped from the train as it crossed Galvez Street, which is some 250 feet from the point where the truck was struck, after signaling the engineer to stop, and discovering that the brakes would not catch, because of the slippery condition of the track and failure of the sand brakes to operate. The switchman contradicted Mr. Ludwig and corroborated other members of the train crew. He also testified that the train was going very slow, and that when he observed the truck he first signaled the engineer to slow down and then gave him a “washout signal,” meaning an immediate stop signal; that he gave this washout signal when about fifty or seventy-five feet from the truck." The engineer testified that he got both signals, alleged - to' have been given him by the switchman, receiving the washout signal when about sixty feet from the truck; that when he got this signal he was going about three or four miles per hour, and at that speed, it was very easy to stop his train, notwithstanding its length, and that he could stop at that speed within twenty-five feet.

Without resolving the conflict of evidence concerning the position • of the switchman, just prior to the accident, we have no difficulty in finding that the train crew were negligent, in that they failed to stop the train in time to avoid the accident; notwithstanding the fact that the truck was in plain vjew for a distance nearly three times greater than that required for stopping the train. Defendant’s negligence is not seriously disputed, the contention being that plaintiff was negligent in parking his truck on the switch-track of the Public Belt, and leaving it there, without a driver, and that this negligence continued uip to the time of the collision and contributed to it; that in this situation the doctrine of last clear chance can have no application, the plaintiff’s contributory negligence barring recovery, citing Cowden vs. Shreveport Belt Railway Company, 106 La. 236, 30 So. 747; Wolf vs. N. O. Ry. & L. Co., 133 La. 891; Castile vs. O’Keefe, 138 La. 479, 63 So. 392; Chargois vs. M. L. & T. P. R. R. & S. S. Co., 148 La. 637, 87 So. 499; Vappi vs. M. L. & T. R. & S. S. Co., 155 La. 183, 99 So. 31, and others.

Conceding, for the sake of argument, that the plaintiff was negligent in placing its truck upon the switch-track of the defendant railroad ■ within its private yards, the doctrine invoked and more or less sustained by the authorities cited can have no application. The case at bar, we believe to be within the exception of the contributory negligence rule and within the doctrine of the last clear chance. Plaintiff’s truck was without an attendant and was left standing upon the track of the defendant railroad. It was, therefore, an inanimate object, without the capacity of locomotion and incapable of exercising any discretion called for by any impending emergency. In McClanahan vs. V. S. & P. Ry. Co., 111 La. 781, 35 So. 902, and in Blackburn vs. L. R. & N. Co., 144 La. 520, 80 So. 708, the Court permitted the heirs of a drunken man to recover, though when struck and killed by the train, both plaintiffs were either sitting or lying upon the tracks of the railroad in a condition sometimes referred to as “dead drunk.”

In the latter case, Justice Dawkins, after first denouncing the conduct of plaintiff in getting drunk and placing himself on the track as the grossest negligence, said “his active negligence in placing himself upon defendant’s track was spent, and he was then in a state of what we would term, passive negligence.”

In Alexandria Refining Co. vs. Mo. Pac., 1st Louisiana Appeal 470, a case strikingly similar in its facts to the case at har; a case in which a truck unattended hy a driver was run into hy a backing train, Judge Carver on rehearing, after quoting the McClanahan and Blackburn cases and others, said:

“We think this case governed by the doctrine of those decisions and not by that applied in th.e cases cited by defendant; believing as we do that the truck was and for some time had been halted on the track when backed into by defendant’s train whose crew was negligent in not discovering it and actively so in backing against it, when such negligence, therefore, being the proximate cause of the accident, while the negligence of the truck driver, though continuing down to the moment of the accident, was at that time merely passive and hence not the proximate cause but only a condition of the accident.”

In our opinion, this case turns upon the failure of the train crew to stop the train in time to avoid the accident. The truck was seen, or it should have been seen (the accident occurring in broad daylight), in time to avoid colliding with it. The engineer testified that he received the washout signal in ample time to stop the train, and not only failed to do so, but did not stop until he had pushed the truck some little distance, jamming it against an obstruction in the yard. Whether plaintiff was or was not negligent in leaving his truck upon the rails of the defendant railroad, there was ample opportunity, after the discovery of the position of the truck, to avoid the accident. The defendant had the last clear chance to avoid the accident.

No discussion of the quantum of damages was indulged in, in argument, nor do. we find any in the briefs. The amount asked for by plaintiff seems to us to have been properly proven, and it will, therefore, be allowed.

For the reasons assigned the judgment appealed from is reversed, and it is now ordered ttíat there be judgment in favor of the plaintiff, the Canal Steel Works, Inc., and against the defendant, the City of New Orleans, in the sum of $1,080.82, with legal interest thereon from judicial demand until paid.


text:
    No. 2452
    Second Circuit
    HALL ET AL. v. H. E. & W. T. RY. CO. ET AL.
    (March 14, 1928. Opinion and Decree.)
    (June 28, 1928. Rehearing Refused.)
    (January 2, 1929. Writ of Certiorari and Review Refused by Supreme Court.)

      Parsons and Colvin; of Mansfield, attorneys for plaintiffs, appellees.
    Wise, Randolph, Rendall and Freyer, of Shreveport, attorneys for defendants, appellants.
   ODOM, J.

On October 9, 1923, the plaintiffs purchased from the Ross Brothers Horse & Mule Company at Fort Worth, Texas, twentjr-eight head of livestock, consisting of horses and mares. Ross Brothers delivered the stock to the Houston & Texas Central Railway Company, a Texas corporation, for shipment to plaintiff at Keaehie, Louisiana. The stock were.- loaded by said railway company ’in a 36-foot stock-car late in the afternoon, and that carrier issued to Ross Brothers, the shipper, its through bill of lading, with plaintiffs as consignees, the stock to be delivered to them at Keaehie, Louisiana.

The initial carrier transported the car over its line of railroad to Nacogdoches, Texas, and there delivered it to the Houston East & West Texas Railway Company, which carrier in turn hauled the car over its line of road to Logansport, Louisiana, where it was delivered to the Houston & Shreveport Railroad Company, by which the car was delivered to the plaintiffs at Keaehie.

The stock, when delivered at Keaehie, were in bad condition, some of them being bruised, crippled and scarred, and two of them died.

Plaintiffs brought suit against the Houston East & West Texas Railway Company and the Houston & Shreveport Railroad Company, the terminal or delivering carrier, for $376.00, the alleged damage to the stock.

Plaintiffs, as a cause of action, specifically allege that “through the fault, negligence and carelessness of, the defendant companies, their servants, agents and employees in hauling and handling said animals” they were injured and damaged to the amount of $376.00.

Defendants, in answer, admit they handled the stock as connecting and delivering carriers in the capacity of agents for the initial carrier with whom the contract of shipment was made,

“but that the terms and provisions in such contract inured to their benefit and there is specially urged in defense herein section 1, paragraphs A and B and section 2, paragraph C of said contract * * * and defendants allege that whatever damage was so suffered by said shipment was the result of causes set forth in said contract as above referred to, for which defendants are not liable by the terms thereof.”

And they further plead, in the alternative, that whatever damage was occasioned to said shipment in route did not occur while the animals were in the custody and possession of defendants or through their negligence or that of their employees but was occasioned prior to the receipt of said shipment by defendants.

There was judgment in the lower court for plaintiffs as prayed for and defendants have appealed.

OPINION.

There is practically no dispute as to the condition of the animals when delivered at Keachie, Louisiana. Some of them were bruised, scarred and crippled and as a result, two of them died.

Plaintiffs proved to our satisfaction that on account of the injuries to the animals they were damaged to the extent of $376.00, the amount claimed; so that the only question for us to determine is, whether these defendants are liable for that damage.

These defendants were not the initial carriers. The car of live stock was received by the Houston & Texas Central Railway Company at Fort Worth, Texas, which contracted with the shipper to deliver the live stock to plaintiffs at Keachie, Louisiana, as consignees, using the defendants as connecting and delivering carriers.

Plaintiffs do not seek to hold the initial carrier for the loss and damage, but sue the connecting and delivering carriers and, as a cause of action, allege that the injury to the stock was due to the fault, carelessness and negligence of the latter.

As this was an interstate shipment, it is governed by the Carmack amendment to the Interstate Commerce Act.- Under that amendment, liability for goods damaged or destroyed is imposed upon the initial carrier, no matter where the loss occurs, and it is well settled that other carriers en. route are not primarily liable unless the loss or damage occurred on their lines.

10 Corpus Juris, 544, and authorities cited in notes.

Among them;

Duvall vs. Louisiana Western R. Co., 135 La. 189, 67 South. 104.

Thompson vs. Southern Pacific Co., 122 La. 994, 46 South. 993.

Hudson vs. Railroad Co., 226 Fed. 38.

Houston Railroad Co. vs. Richards, 212 S. W. 208.

Lancaster vs. Smith et al., 226 S. W. 460.

■ And many other authorities which might be cited.

We do not understand that counsel for plaintiffs contend against this law as recognized by all the courts, and from the fact that they ground their action upon alleged fault and negligence of these defendants in handling the shipment, they concede that unless the record discloses that the injury to the stock occurred while in possession of these defendants and on their lines and through their negligence plaintiffs cannot recover.

We find and hold that the record does not show that these defendants were careless or negligent in the handling of the shipment. To the contrary, the undisputed testimony is that the shipment was carefully and prudently handled by the defendants. They picked up the car at Nacogdoches, Texas, and carried it to Keachie, Louisiana. There was but little switching of cars along the lines and no unusual jarring or bumping such as would cause the animals to be thrown against each other or against the sides of the car or cause them to fall and be trampled upon by each other.

The conductor testified that he examined the car at Nacogdoches and at each other place where the train stopped and that at each place the animals were all standing and seemed to be in good condition. They were not unloaded anywhere along the line and he had no opportunity to observe them except through the open spaces in the sides of the car; but through these open spaces he could and did observe that they were all standing. He could not and did not testify that the animals were all in good condition and free from bruises or internal injuries when he received the car on defendants’ line of road. But his testimony that the animals were all standing when he received the car, that they stood up all along the line, and that the car was carefully handled when in his possession, is positive and not disputed.

Plaintiffs therefore failed to prove either that the defendants were careless and at fault in handling the animals or that they were injured while in their possession.

But counsel say plaintiffs were not required to make that proof, but that they had a right to rely upon the well recognized rule to the effect that freight “received in good order by the initial carrier is presumed to have been received in like good order by the succeeding carrier, and that a delivery of freight by the terminal carrier in damaged condition raises a presumption that the damage occurred on the delivering carrier’s line.”

The case of Duvall vs. Louisiana Western Railway Company, 135 La. 189, 65 So. 104, recognized the rule that under the Carmack amendment the intermediate or delivering carrier is liable for only such loss or damage as may have occurred on its or their lines; but it was there held that said amendment did not abrogate the rule of evidence “that goods received in good order by the initial carrier are presumed t'o have been received in like good order by the succeeding carrier and that a delivery by the terminal carrier in bad order raises a presumption that the injury occurred on the delivering carrier’s line.”

But that decision was expressly overruled in Henderson vs. K. C. S. Ry. Co., 147 La. 647, 85 So. 625, where the court held that the common law rule above referred to had been abrogated by the Carmack amendment adopted subsequent to the Duvall decision.

The court, in support of its decision, cited Charleston & Western Carolina Ry. Co. vs. Varnville Furniture Co., 237 U. S. 597, 35 Sup. Ct. 715, 59 Law Ed. 1137.

However, since the latter case was decided by the Supreme Court of the United States, that court has had occasion to deal further with the subject, and in the case of Chicago & Northwestern Ry. Co. vs. C. C. Whitnack Produce Co., 258 U. S. 369, 42 Sup. Ct. 328; decided April 10, 1922, that court specifically held that said common law rule was not abrogated by the Carmack amendment. In the latter case, the court said:

“The single question now presented foi consideration is whether, since the Car-mack amendment (Comp. Stats. secs. 8604a, 8604aa) a presumption arises that the injury occurred on the delivering carrier’s line where goods moving in interstate commerce upon a through bill of lading are delivered in bad condition and the evidence shows they were sound when received by the initial carrier but does not affirmatively establish where the loss occurred.”

In holding that said common law rule was not abrogated by the Carmack amendment, the court held that there was no conflict between its holding and the ruling in the Charleston, etc., Ry. Co. vs. Varnville Furniture Co., case cited by our court in the Henderson case, supra.

In the Henderson case, supra, our court, referring to the Duvall case, supra, said:

“Since that decision was rendered, however, the Supreme Court of the United States has ruled otherwise.”

And it cites the Charleston case.

. Now that the Supreme Court of the United States has held in its latest expression on the point, that the common law rule as to the presumption was not abrogated by the Carmack amendment and has stated that the Charleston case, supra, does not support the contrary view, we take it that the quesion is settled and accord to plaintiff the benefit of the presumption.

In order for plaintiffs to get the benefit of the presumption, it was, of course, incumbent upon plaintiffs to prove that the initial carrier received the animals in good condition. This the plaintiffs failed to do.

Both of the plaintiffs, Hall and Wyatt, .testified that they purchased the animals from Ross Brothers at Fort Worth, presumably at their stock pen; that they observed no indications of external injuries; that the animals seemed to be in good conditon. But they did not say that they made a minute inspection of them, and in the very nature of things they could not have done so, because the animals were all western Colorado stock, about half of them ■ being wild and unbroke. Plaintiffs did not see the animals loaded into the car; that is, they do not say they did.

But Mr. F. H. Shaw, live stock inspector for the Western Weighing Inspectors Bureau, did inspect the animals on the loading dock at Fort Worth at the time they were loaded. He says they were wild, unbroke, range stock.

“I saw that they were crowded and the horses were scrambling and falling and one or two got down, and I saw that they were not in condition to go as they, were and I went and called Ross Brothers, the ship,pers, and notified them and they had a man to come and look at them.”

He says that the car was overloaded' — ■ too many in the car.

Mr. E. J. Ward, connected with Ross Brothers, whose testimony was taken by commission, said he did not see the animals personally and did not see them loaded, but said he saw them and that “there were no noticeable bruises or injuries noticed.” He said the animals were shipped from Denver, Colorado, on October 4th, and that “part of them seemed to have been broke or halter broke and others green.” He admitted that Mr. Shaw, the inspector, called Ross Brothers and asked them to send a man down and that he went, but he did not say that the conditions found by Shaw as to overcrowding and some of the animals being down in the car did not prevail. Shaw would have had no occasion to call Ross Brothers while the animals were being loaded if the conditions had not been as he stated them.

Shaw’s testimony that the animals were wild and unbroke, “scrambled” and ran over each other while being loaded and that some of them got down in the car and that the car was overcrowded, being uncontradicted,' must be accepted.

As already stated, that animals had just arrived in Fort Worth from Denver, .Colorado. When they arrived at Keachie, they were bruised, cut, one or two had broken bones and one had internal injuries. These are the kinds of injuries they would naturally receive in getting down' in the car, running over each over, etc., while being loaded at Fort Worth or from being overcrowded in the car.

Our conclusion is that the plaintiffs have failed to show that the animals were in good condition when finally received by the terminal carrier.

Our conclusion is, further, that the defendants have proved that the animals were delivered in the same condition in which they were received. This is shown by the uncontradicted testimony of • the train conductor, who said that none of them got down in the car on defendants’ lines and that there was no bumping or jarring of the cars sufficient to injure them. •

The bill of lading under which the stock were shipped contains this sentence:

“Unless caused by the negligence of the carrier, or its employees, no carrier shall be liable for or on account of any injury or death sustained by said live-stock, occasioned by any of the following causes: overloading, crowding one upon another, escaping from cars, pens or vessels, kicking or goring or otherwise injuring themselves or each other.”

That stipulation is binding upon plaintiffs.

In Simms & Sons vs. N. O. & N. E. Railroad Co., 122 La. 268, 47 South. 602, it was held that where a carload of mules were shipped under special contract similar to this one and one of the mules was injured in transit in some unexplained way, “the proof that the carrier was not negligent in any respect in handling the car is a sufficient defense.”

Under this decision and under the special contract in this case, even if it were shown that plaintiffs’ animals were injured while on defendants’ lines in some unexplained way, defendants would not be liable in view of defendants’ proof that they were not negligent.

' The record discloses that the chute through which the animals had io pass from the car to the stock-pen at Keachie was in bad order and that some of the first animals which went out of the car fell through the floor and that others ran over them as they were being unloaded. Defendants are unquestionably liable for whatever damage, if any, was' caused on that account. But there is no proof that the animals were injured in the unloading; but, on the contrary, the testimony of Mr. Hall is to the effect that the animals most seriously injured were the last to get out of the car. They were not the ones which fell through the floor and were run over.

For the reasons assigned, the judgment appealed from is reversed and plaintiffs’ demands rejected at their cost.


author: REYNOLDS, J.

text:
    No. 2452
    Second Circuit
    HALL ET AL. v. H. E. & W. T. RY. CO. ET AL.
    (November 8, 1928. Opinion and Decree.)
    (January 2, 1929. Rehearing Refused.)

      Parsons and Colvin, of Mansfield, attorneys for plaintiffs, appellees.
    Wise, Randolph, Rendall and Freyer, of Shereveport, attorneys for defendants, appellants.
   REYNOLDS, J.

On the urgent representations of plaintiffs, appellees, that there was error in our opinion and judgment, we granted a rehearing in this case. On ■ reviewing our opinion and judgment we are constrained to adhere to the opinion, that the case is controlled by that of Simms & Sons vs. N. O’. & N. E. R. R. Co., 122 La. 268, 47 So. 602, cited and approved in McHenry Horse Exchange vs. 111. Cent. R. R. Co., 148 La. 49, 86 So. 649.

It is therefore ordered that our former opinion and decree be and it is hereby reinstated and made the opinion and judgment of the court.

WEBB, J., dissents.


author: WEBB, J.

text:
    No. 3375
    Second Circuit
    BELCHER v. D. R. SARTOR SONS & CO. ET AL.
    (December 19, 1928. Opinion and Decree.)
    (January 21, 1929. Rehearing Refused.)
    Theus, Grisham and Davis, of Monroe, attorneys for plaintiff, appellant.
    Ellis and Ellis, of Rayville, and Shotwell and Brown, of Monroe, attorneys for defendant, appellee.
   WEBB, J.

D. R. Sartor Sons & Company proceeded by executiva to foreclose a mortgage on property belonging to Ann Brown, and after the property had been seized and advertised for sale, J. S. Belcher, plaintiff here, filed the present suit against D. R. Sartor Sons & Company and the Sheriff, in which he set up the proceedings which had been taken by D. R. Sartor Sons & Company and that he was the owner of one-half of the mineral rights in the property seized, having acquired same through mesne conveyances from Ann Brown, under transfer made by her subsequent to the date of the mortgage under which the foreclosure proceedings were had.

Plaintiff alleged that he had the right to pay the mortgage indebtedness due by Brown, and to be subrogated, and that he had offered to pay said indebtedness with subrogation, and that in order to protect his rights, it was necessary that a writ of injunction issue restraining the sale of the property, and he prayed for the issuance of an injunction, and for judgment authorizing him to pay the indebtedness, that on his paying same, together with interest, attorney’s fees and cost, he be decreed the owner of the note and that same be delivered to him with full subrogation of all the rights of the mortgagee and for all orders and decrees necessary and for general relief.

A restraining order having been issued and the Sheriff and D. R. Sartor Sons & Company ordered to show cause why a writ of injunction should not issue the former answered alleging that he was without interest in the suit but admitted that the property had been seized and advertised for sale, and D. R. Sartor Sons & Company answered, admitting the seizure and advertisement of the property as alleged, and that the plaintiff had acquired the mineral rights on the property as alleged, but denied that plaintiff had offered ',o pay the note, alleging however, that \e had offered to purchase the note if defendant would subrogate him to its rights thereunder, and praying that the restraining order be recalled, and plaintiff’s suit be dismissed.

The case was called for trial and the minutes show that the allegations of the petition were admitted, and the judgment rejecting plaintiff’s demands indicates that the case was submitted not only on the rule, but also on the merits, and the only error assigned by plaintiff, appellant, is that the decree should have recognized plaintiff’s right to pay the amount due and be subrogated to the rights of the plaintiff.

The law, we think, clearly recognizes the right of plaintiff having a real right in the property, which was covered by the mortgage, to have paid same, and, on payment to become legally subrogated to the rights of the holder of the note against the mortgagee (Art. 2161 C. C.; Duchamp vs. Dantilly, 9 La. Ann. 247; In re D. R. Sartor Sons & Co., 164 La. 849, 114 So. 709; Pomery Equity, 2d Ed. Vol. 5, page 5190, No. 2346), but the petition does not allege when the offer to pay was made nor the amount due at that, time, neither does it appear that the amount was deposited, and considering the right of the holder of a special mortgage to proceed against the property and to be paid from the proceeds of the sale, it is apparent any decree restraining the sale which did not provide for the payment of the amount due the mortgagor from an amount deposited by plaintiff and under the control of the mortgagee or the Court, might cause an injury to the mortgagee and involve him in litigation, which we do not think could have been contemplated by the law giving plaintiff the equitable right to pay the mortgage, and to become legally subrogated to the rights of the mortgagee

Therefore, we are of the opinion that, as the allegations of the petition do not show the amount due at the time the offer to pay was made, or that any amount had been deposited which could have been ordered by the Court to be delivered to the defendant, mortgagor, the rights of all parties could have been best conserved by the recall of the restraining order, and the dismissal of plaintiff’s demands as of non-suit.

It is therefore ordered that the judgment appealed from he set aside and it is now ordered, adjudged and decreed that the restraining order issued herein be recalled and that plaintiff’s demands be dismissed as of non-suit; the appellees, D. R. Sartor Sons & Company to pay the cost of appeal, and all other costs to be paid by appellant, J. S. Belcher.


text:
    No. 3314
    Second Circuit
    PARKER v. SUMMERS
    (December 19, 1928. Opinion and Decree.)
    (January 21, 1929. Rehearing Refused.)
    Thompson & Berry, of Winnsboro, attorneys for plaintiff, appellant.
    Warren Hunt, of Rayville, attorney for defendant, appellee.
   REYNOLDS, J.

We are unable to form an intelligent opinion of the merits of this case on the record before us. The first debit on defendant’s account is a balance of $30.00. r It should be shown what this amount represents and how much cotton and cotton seed of the remnant of the crop of 1925 defendant received from plaintiff.

The testimony of plaintiff and defendant is diametrically opposed to each other, and evidence should be introduced, if it existed and can be obtained, corroborating or discrediting the testimony of one or the other of them.'

The books and sheets of paper said to give information as to the cost of picking the eleven bales of cotton raised by plaintiff and gathered by defendant are not in the record although it otherwise ap-pears therefrom that they were introduced in evidence. They should be put in the record.

It should also be shown in detail how it cost $390.15 to have the ten bales of cotton picked. And there should be evidence introduced to show what disposition was made of plaintiff’s undivided half of the seed from the ten bales of cotton gathered by defendant.

The judgment appealed from is therefore set aside and the case is remanded to the District Court for the completion of the record and such other proceedings as either plaintiff or defendant may wish to take.


text:
    No. 3374½
    Second Circuit
    LANIER ET UX v. M. P. R. R. CO.
    (January 21, 1929. Opinion and Decree.)
    Philo Coco, of Marksville, and John R. Hunter, of Alexandria, attorneys for plaintiffs, appellants.
    Hawthorn and Stafford, of Alexandria, and Hudson, Potts, Bernstein and Sholars, of Monroe, attorneys for defendant, appellee.
   STATEMENT OP THE CASE

REYNOLDS, J.

The plaintiffs, J. R. Lanier and his wife, sought by this action to recover from the defendant, the Missouri Pacific Railroad Company, damages for the death of their daughter, Virginia, who was killed in a collision between a fast moving passenger train owned by defendant and operated by its servants, and an automobile in wbicb plaintiffs’ daughter was riding and which was being operated by Mrs. T. L. Watson.

The collision occurred early in the afternoon on January 13, 1927, at a crossing of defendant’s railroad by a public street in the town of Selma, Louisiana.

It is alleged that the collision was caused by defendant’s negligence in that (1) the train was being operated at an unusual and excessive speed; (2) that the bell on the locomotive was not rung nor the locomotive whistle blown or other warning given of the approach of the train to the crossing, and (3) that the crossing was imperfectly constructed and therefore a menace to the lives of those using it in that (a) the approaches to the track, which was of considerable elevation, were so steep and sudden that the continuous motion of motor vehicles was arrested and brought to a dead stop by the necessary change of gear from high to low, which change of gear plaintiffs allege occurred in the instant case and contributed largely to the collision, and (b) that the traffic sign of the defendant failed to comply with the “Stop Law” of this State and was misarranged and in no manner conformed to the legal requirements, in distance from the defendant’s tracks or its relation to the highway approach thereto.

The defendant admitted the collision but denied that it was occasioned by any negligent act of commission or omission on its part, and denied the existence of the physical conditions at the crossing alleged, and alleged that if they really existed they were open and obvious to the plaintiffs’ daughter and such as required that she should insist that the driver of the car in which she was riding should proceed over the approach to and defendant’s tracks more carefully and stop, look and listen for the approaching train before driving upon the track, and that the deceased could and should have heard and seen the train approaching in ample time to have prevented the collision and that her failure to do so was negligence that caused or contributed to cause the collision and is a bar to plaintiffs’ right to maintain the action even though the defendant was negligent.

And defendant further alleged that the collision and consequent death of plaintiffs’ daughter was not due to any neglect of itself, but was caused wholly by the fault and carelessness of the driver of the car in which the deceased was riding and of the deceased herself, both of whom well knew the existence of the crossing and of the passage of trains thereover frequently and of the existence of the warning signs erected in accordance with the law, and that notwithstanding these facts both the deceased and the driver of the car failed to comply with the law and neither stopped, looked nor listened for the approach of a train before driving on the crossing, and that the driver of the car and the deceased were not paying the slightest heed to the | existing condition and that had they been paying such heed they could have seen and heard the approaching train by the blowing of its whistle and ringing of its bell and the noise its motion was making in ample time to have been aware of the danger of attempting to cross the track, in consequence of which they were guilty of such negligence as bars recovery by plaintiffs in this action.

On these issues the case was tried and there was judgment in favor of the defendant. and against the plaintiffs rejecting their demands and dismissing their suit and plaintiffs have appealed.

OPINION

Of the many issues presented by, the record it is only necessary for us to determine whether defendant was negligent and if so whether its negligence was the proximate cause of the collision.

Plaintiffs’ action is bottomed upon Article 2315 of the Civil Code and to maintain it they must prove negligence on the part of defendant and that its negligence was the proximate cause of the death of their daughter.

They contend that the train was being operated at an unusual and excessive speed, but the evidence shows that its speed was less than usual and had been reduced after the train had passed the crossing next preceding the one at which the collision occurred.

Besides this, no state law or city ordinance was shown to exist fixing a speed limit for trains less than that at which the train in question was moving.

A high rate of speed has always been a great desideratum, and engineering skill has always been taxed to the utmost to attain it; and we conceive the reasonable and established rule to be that no conceivable rate of speed consistent with the safety of passengers is per se negligence.

What mattered it at what rate of speed the train was moving if the automobile was driven upon the track so close ahead of the locomotive that it was impossible to stop the train before striking the automobile?

The engineer in charge of the locomotive testified that he became aware of the danger of a collision with the automobile by his fireman emitting a shrill scream, and that knowing from this that something was wrong he instantly applied the emergency brakes' but could not stop before the collision.

The fireman testified that as the train approached the crossing in question his attention was attracted to the automobile by the fact that it was approaching the track; that it turned in at a slow speed and he was expecting it to stop for the train to pass; that it did not stop, but shot forward toward the track at an increasing speed to get over the tracks before the"' locomotive reached the crossing and that when he became aware that it was not going to stop he gave a scream of alarm to the engineer.

Both the engineer and- the fireman testified that the brakes were in good working order.

In our opinion the proximate cause of the collision was not the speed of the train but the driving of the automobile upon the track when the locomotive was so close to the crossing that the train could not be stopped before striking the automobile.

The contention that the crossing was defective, or, if it was that defendant was responsible for it, or that the stop, look and listen sign was not properly stationed, is not stressed and we infer that it is abandoned.

This leaves for our consideration only the allegation that proper warning signals of the approach of the train to the crossing were not given. Plaintiffs assert that the bell on the locomotive was not rung nor the whistle blown as the train approached the crossing and they cite the testimony of ten witnesses as proof.

Mrs. Taylor Jones and Mrs. Charles Montgomery were driving in closed cars on the public highway parallel to the defendants’ railroad as the train approached the crossing and did not hear the whistle or bell; but neither was ¡paying particular attention to the train.

A. L. Mayson, whose testimony was most favorable to plaintiffs, said:

“Q. About how far from a point opposite this crossing where you when you first saw this train?
“A. Well, I was about even with the crossing when I first saw the train.
“Q. About how far was the train from the crossing when you first saw it?
“A. I saw it when it come around the curve, about a half mile from where I was, and you could see it from there.
“Q. About how far is the curve from the crossing?
“A. Close to half a mile, I judge.
“Q. You mean by a curve, a curve in the railroad track?
“A. Yes, sir. Might not be quite half a mile, but it don’t lack much.
‘‘Q. What attracted your attention to the train at that point?
“A. I heard him blow the whistle at the crossing at Mr. Rambo’s.
“Q. About how far is that from the curve ?
• “A. Well, that is just a little above the curve in the track; the track is practically straight on the other side from there and is open and you can see.
“Q. About how far is Rambo Crossing from the crossing where the accident occurred ?
“A. I rather think it is about half a mile.
“Q. Did you observe the train from the time you saw it or heard it blow for the Rambo Crossing utnil it reached the crossing where the accident occurred?
“A. Well, I wasn’t particularly watching, but I remarked that ‘it was leading them to Alexandria’- — a slang expression.
“Q. From the time that that train blew for what you call Rambo Crossing to the time it reached the crossing where the accident occurred, did it blow again?
“A. No, sir; it did not.
“Q. If it had blown, could you have heard it?
“A. Yes, sir.
“Q. From the time the train blew for the Rambo Crossing up to the time that it reached the crossing where the accident occurred, did the train ring the bell?
“A. I never heard it.
“Q. If the bell had rung would you have heard it?
“A. Yes, sir.”

His testimony is considerably weakened by that of another of plaintiffs’ witnesses, Floyd Fullerton, who testified:

“Q. Did Mr. Mayson come to your house about the time of that accident?
“A. We were together.
‡ ‡ ‡ #
“Q. Where did you get with A. L. May-son?
“A. Somewhere near the commissary.
“Q. You and he walked over home together ?
“A. We did.
“Q. Walking along talking?
“A. Well, as usual.
“Q. Was Mr. Mayson walking any faster than you were ?
“A. No; by my side.
“Q. Where were you when you heard the crash?
“A. I was between my back, porch and my car barn; some sixty or seventy feet to my car barn: I was between there and my car barn; I don’t know exactly.
“Q. When you were walking along there with Mr. Mayson, did you see this train coming?
“A. Well, I don’t recall it if I did.
“Q. Did you hear any whistle or warning signals given?
“A. I don’t recall that if I did.
“Q. Was that because you didn’t pay any attention?
“A. No; because I am accustomed to trains (passing back and forth in front of my house day and night.”

Fullerton’s testimony puts Mayson elsewhere than Mayson puts himself.

The testimony of W. E. Jackson, another of plaintiff’s witnesses, is also at variance with that of Mayson.

He testified:

“Q. Mr. Jackson, did you witness all or any part of an accident that occurred about noon January 13, 1927, at Selma? I refer to the. accident where Mrs. Watson and Virginia Lanier were killed.
“A. I did.
‡ ‡ ‡ $
“Q. Now, what caused you to observe the approaching train?
“A. Heard the whistle.
“Q. Where was this train when you heard the whistle?
“A. The engine was in the curve.
“Q. About how far is that curve from the crossing where the accident occurred?
“A. Between fifteen and twenty telephone poles.
r‘Q. Could you express that in terms of yards and feet?
“A. No; I don’t know the distance between those poles.
“Q. Did you have an unobstructed view of the railroad and train?
“A. I did.
“Q. Now, when did you first notice the car that Mrs. Watson was driving — where was it when you first saw it?
“A. There about even with the little store and I was practically on the model road'.
“Q. Well, you had an unobstructed view of the car as well as the train?
“A. I could see them both plain.
“Q. Now, did you see the car as it approached the crossing?
“A. I did.
"Q. Was there any change in the speed of the car from the time you first saw it until it approached the crossing?
“A. It was.
“Q. What was the change?
“A. Slowing down and going into the curve.
“Q. What kind of a curve was that that the car was going into, Mr. Jackson?
“A. Well, as it being on her side — the way the car was travelling — it is a short curve.
“Q. About how far is that curve from the Missouri Pacific?
“A. Judging, thirty-five.
”Q. Thirty-five feet you mean?
“A. Yes, sir.
"Q. Now, did the car, after it had decreased its speed, as you testified, increase it before going on the crossing?
“A. As it started up the incline.
:¡« ❖ # $
“Q. From the time you heard the train blow in the curve, until the automobile started on the crossing, did you hear the train blow any more?
“A. I did.
“Q. Where was the train then?
“A. The train was ' out of the curve.
“Q. About how far from the crossing?
“A. I am judging a quarter of a mile.
“Q. Now, was that the last time you heard the train blow?
“A. Yes, sir.
‘‘Q. Now, as the train approached the crossing, and after giving this blast that was a quarter of a mile away, did you hear the train ring a bell?
“A. I didn’t pay any attention.
‘‘Q. You couldn’t tell whether it rang a bell or not?
“A. I couldn’t say.”

C. C. Parker, another witness for plaintiffs, is also at variance in his testimony with that of Mayson.

He testified:

“Q. Did you drive down the road behind Mrs.. Watson as she came south towards the crossing?
“A. I did.
“Q. About how far behind?
“A. I don’t know how far; must be about thirty or thirty-five feet.
* # * _ * *
“Q. As you were driving down the highway, did you become aware of the presence of an approaching train?
“A. Not until it passed.
“Q. About where were you north of this crossing when the train passed?
“A. About eight or ten lengths, rail lengths, north. The rail lengths were thirty-three feet.
“Q. What attracted your attention to the train, Mr. Parker?
“A. ‘ The engine passed and blew two short whistles.”

Roy Wise, another of plaintiffs’ witnesses, testified:

“Q. Did you see or hear anything of the accident?
“A. I heard the accident.
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“Q. Had you seen the train from the time you left the schoolhouse and got home?
“A. No, sir.
“Q. But you heard the impact?
“A. Yes, sir.
* * * * # #
“Q. Prom the time you left the school building till the impact, did you hear the train give any signals — ringing of hell or blowing of whistle?
“A. No, sir.
“Q. Did you hear the rumbling of the train?
“A. I was talking to my mother and didn’t notice the rumbling of the train and didn’t pay no attention to it. It might have blown.”

Page Mahaffey, another of plaintiffs’ witnesses, testified:

“Q. Well, where were you when you did see or hear this train?
“A. I was at the first house.
“Q. What attracted your attention to the train?
“A. The whistle.
“Q. How many blasts did you hear?
“A. One.
”Q. What kind of whistle was it, long or short?
“A. Long.
”Q. When you heard this blast, did you turn to look at the train, and see it?
“A. Yes, sir.
“Q. Where was the train at the time or just after you heard that blast?
“A. Right in the curve.”

James Fullerton, another of plaintiffs’ witnesses, testified:

“Q. Now where was the train when you first got notice of the train?
“A. It was in the curve, up—
“Q. About how far is that curve, James, from the point of the accident, at the crossing?
“A. I guess about half a mile.
“Q. Now, what caused you to notice the approach of the train?
“A. Heard the whistle.
“Q. What kind of blast did you hear, one whistle or two?
“A. I don’t remember; I just heard it blow.
“Q. When you heard the blast of the whistle, did you turn and look at the train?
“A. I did.
3! * * 3: * *
“Q. Now, from the time that you heard the train blow up at the curve, up until the time the train passed you, did you hear the train blow again?
“A. I did not.
“Q. When the train passed you, was it ringing the bell?
“A. I don’t know.
“Q. If it had been, could you have heard it?
“A. I could have if I had been paying any attention to it.”

Mrs. S. R. Rambo, another witness of plaintiffs, testified:

“Q. Did you hear the train or any signals that the train was giving before you saw it?
“A. I didn’t hear any.
“Q. How did you happen to observe the approach of the train?
“A. I reached down to pull the brake of the car up, and as I raised up I happehed to notice the train. '
“Q. Now where was the train when you saw it?
“A. Right in the curve at the schoolhouse.
3= 3: * * » *
“Q. Now, from that time, did you observe the train until it got as far north as the north crossing in Selma?
“A. I didn’t notice it after it passed. I was looking the other way, and didn’t notice the train any more.”

The testimony of these witnesses indicates that they were too engrossed in their own affairs and were too little interested in the approaching train to notice that the whistle was blown and the bell was ringing for the crossing where the accident occurred. Having heard the whistle blow when the train was in the curve they were no longer interested in it.

As against the negative testimony of these witnesses we have the testimony of the engineer and fireman on the locomotive who swore positively that the whistle was blown for the crossing where the accident occurred and the bell was ringing when the crossing was reached. The bell rings automatically and was still ringing after the train had been stopped.

And the testimony of the engineer and fireman that the whistle was blown is corroborated by that of J. E. Ferguson and Mr. A. L. Toliver, both of whom were passengers on the train as employees of defendant for the purpose of ascertaining whether signals required to be given of the movement of trains were given and properly given, and both of whom testified that the whistle for the crossing was blown.

L. W. Kennedy, conductor; A. R. Setzler, brakeman, and George Frazier, porter on the train, were not sworn and did not testify in the 'case, but it was admitted by plaintiff and defendant that if they were sworn and testified their testimony would corroborate that" of the engineer, Bolen, as to the operation of the train generally, its speed and the • warnings sounded on approaching the crossing where the collision occurred, except as to the ringing of the bell at the time the emergency brakes were applied, and that conductor Kennedy was working his train for tickets, and was in the first Pullman; brakeman Setzler had been on the steps of the rear car and was in the rear car where the witnesses Ferguson and Toliver were, and that the porter Frazier was in the colored coach. That none of them recall hearing the bell ringing but that all knew that when the train stopped and they got off the bell was then ringing.

The evidence satisfies us that as the train approached the crossing where the collision occurred the bell of the locomotive was ringing and the whistle was blown for the crossing and that after the engineer and fireman discovered the peril of the occupants of the automobile they did everything possible to stop the train before it struck the automobile. The evidence shows that the automobile was driven upon the railroad tracks when the locomotive was too close to the crossing for the train to be stopped before reaching the crossing, and it shows also that the fireman warned the engineer of the danger as soon as the driver of the automobile turned the car to go upon the railroad track and that the engineer instantly applied the emergency brakes and that the brakes were in good order and worked, and that the collision was unavoidable.

There was no fault on the part of the persons in charge of the operation of the train, and therefore plaintiffs cannot recover.

It is therefore ordered, adjudged and decreed that the judgment appealed from be affirmed.


author: JANVIER, J.

text:
    No. 11,059
    Orleans
    WORSHAM v. GEBELIN
    (December 10, 1928. Opinion and Decree.)
    (January 7, 1929. Rehearing Refused.)
    (February 13, 1929. Writ of Certiorari and Review Denied by Supreme Court.)
    Borah, Himel, Bloch and Borah, of New Orleans, attorneys for plaintiff, appellee.
    Legier, McEnerny and Waguespack, of New Orleans, attorneys for defendant, appellant.
   JANVIER, J.

This ease resulted from an automobile collision, which occurred November 14, 1925, at about eight o’clock in the morning at the intersection of Freret and Pine Streets. Mr. Worsham, the plaintiff, was driving his Paige touring car down Freret Street. Miss Gebelin, sixteen-year-old daughter of defendant, was driving defendant’s Nash car out Pine Street in the direction of Lake Ponchartrain. When she reached the corner of Freret Street she attempted to turn to the left in an uptown direction. Worsham’s car crashed into the left side of the Gebelin car and both cars were substantially damaged.

Mr. Gebelin filed a reconventional demand. The trial court dismissed both the original suit and the claim in reconvention.

Worsham contends that he was driving his car at a reaspnable speed and that just before he reached the corner of Pine Street, Miss Gebelin, cut around the corner to the left, close to the curb, and immediately in his path. He states that he put on his brakes as fast as he could and swerved his car to the right, and that after it stopped it was partially on the sidewalk. He contends that Miss Gebelin did not stop before entering Freret Street, which was a right of way street, and that she was on the left side and made a short turn instead of a long one in compliance with the Traffice Rules of the City.

There is some dispute as to whether Miss Gebelin stopped her car and blew her horn before entering the intersection. It was plainly her duty before entering a right of way street to make certain that it was safe for her to do so and surely she did not do this. It is also qiuite plain that she. entered a right of way street in a wrong position and her negligence in these two particulars is sufficient to render her father liable unless the other party cam be said to have been guilty of contributory negligence.

It appears to us that the other party, Mr. Worsham, was guilty of contributory ■negligence. We are led to this belief by the testimony of various witnesses.'

Mr. Weiss says that Worsham was going at about thirty-five or forty miles an hour, and that, after the accident, he saw skid marks which extended about forty feet. Mr. Haney, a police officer, who was directing traffic a block away said he heard the squeaks of Mr. Worsham’s brakes and went to the scene as fast as possible. When he arrived there he saw skid marks for forty or fifty feet. A delivery boy, Clarence Smith, who' was more than a block away from the accident, had seen Mr. Worsham’s car pass him a few moments before the accident. Smith makes the following statement, “When he passed me he was speeding.”

Some attack is made on the credibility of the police officer and it was attempted to show that he was removed from that location on account of complaints made about him. Whether this is true or not is not clear, but at any rate the testimony of the police officer merely corroborates the other witnesses.

We are of the opinion that the accident would have been avoided had the speed of Worsham’s car been within legal limits and had he had his car under such control as should .have been exercised by an ordinarily prudent driver.

It seems to us that both parties were at fault and that the negligence of each contributed to the accident. Under such circumstances neither can recover. The Court will leave them where it finds them.

It is therefore, ordered adjudged and decreed that the judgment appealed from be affirmed.


text:
    No. 3362
    Second Circuit
    TAUNTON v. REEVES
    (December 19, 1928. Opinion and Decree.)
    Edw. Everett, Jr., of Parmerville, and J. W. Elder, of Ruston, attorneys for plaintiff, appellant.
    B. K. Watson, of Marion, and H. E. Dawkins, of Parmerville, attorneys for defendant, appellee.
   WEBB, J.

In this action, the plaintiff, Mrs. A. R. Taunton, sought to obtain judgment against the defendant, S. L. Reeves, for the sum of two hundred forty-seven & 68/100 dollars, with eight per cent' per cent attorneys' fees, represented by one promissory note drawn by defendant on September 15, 1925, payable to her order, for the amount above, with interest, and attorneys’ fees as stated; and she appeals from a judgment rejecting her demands.

The defense interposed hy defendant was that the note was without consideration in that it was a mere simulation. In support of which, the defendant testified that at the time the note sued upon was given, A. R. Taunton, husband of plaintiff, owed defendant $102.28, and, desiring to protect the indebtedness by a crop lien, and also to shield the crop against claims of other creditors, A. R. Taunton had given defendant a note for $850.00, secured by a lien on the crop, and, in order to protect A. R. Taunton against the difference between the amount actually due defendant and the amount of the note, defendant had given the note sued upon, with the understanding that when A. R. Taunton had paid the defendant the sum due and owing of $102.28, that the note of $350.00 would be surrendered to A. R. Taunton, and that he would surrender to defendant the note sued upon.

The defense is unusual,' but it is supported by the testimony of the defendant, and, although it does not appear with certainty that Mrs. Taunton was a party to the transaction, she had knowledge of the plan, and, as neither A. R. Taunton, nor plaintiff, deemed it necessary to testify, we may accept the version of defendant as to the transaction, and, without regard to the suggestion as to whether or not the plan was or not legal, or what would have been the rights of the plaintiff if the consideration of the note had been an assumption of an indebtedness due by the husband to the wife in consideration of defendant’s receiving security for a debt due him by the husband, the fact remains that, under the evidence, the note sued upon was given to offset the difference between 'the amount of the note given to defendant by A. R. Taunton and the amount actually due, and with the understanding that it, the note sued upon, would be surrendered for the note given by A. R. Tauton after the payment of the amount actually due defendant, and, plaintiff having knowledge of the agreement, she should not be permitted to recover, the evidence showing that defendant had offered to comply with the agreement by surrendering the. note of A. R. Taunton, on which he • had not collected more than the amount actually due him.

The judgment appealed from is therefore affirmed.


text:
    No. 11,307
    Orleans
    LOCANTRO v. KELLER
    (October 29, 1928. Opinion and Decree.)
    (November 26, 1928. Rehearing Refused.)

      W. A. West, Jr., of New Orleans, attorney for plaintiff, appellee.
    Daniel A. McGovern and Paul Maloney, of New Orleans, attorneys for defendant, appellant.
   JANVIER, J.

In a suit for rent plaintiff seized certain property of defendant located in the leased premises. Defendant tendered a forthcoming bond on which Gus Turner was surety. The Sheriff refused to accept the surety and the trial court maintained the objections of the Sheriff. Thereupon the defendant in order to secure release .of the property seized, deposited with the Sheriff, $1,000.00 in cash, this being the amount of bond required. Plaintiff secured judgment against the defendant and when he attempted to execute this judgment discovered that the property seized had been sold. Thereupon plaintiff took a rule on the Sheriff and the defendant to show cause why the money deposited with the Sheriff should not be turned over to him in part settlement of his judgment. Gus Turner appeared in this rule and claimed that the funds deposited with the Sheriff belonged to him and should be surrendered back to him. He also contended that as the court had refused to accept him as surety on the forthcoming bond the Sheriff should not have accepted his cash in lieu of a bond and that the question of his right to the money on deposit with the Sheriff was “res adjudicata.”

This contention is manifestly absurd. We cannot countenance any such tactics as seem to have been attempted in this matter. The judgment appealed from is, therefore, affirmed. All costs to be borne by appellant.