author: JONES, J.

text:
    No. 9900
    Orleans
    JAPHET & COMPANY v. SOUTHERN RAILWAY COMPANY
    (October 21, 1927. Opinion and Decree.)
    (November 28, 1927. Rehearing Refused.)

      (Syllabus by the Court)

    1. Louisiana Digest — Carriers of Passengers and Goods — Par.* 135.
    Where property is destroyed by fire while in the custody of a railroad company, to be relieved from liability the carrier must prove that it exercised due care.
    2. Louisiana Digest — Carriers of Passengers and Goods — Par. 135, 136.
    Where the evidence shows that railway company failed to exercise due care in protecting the property of plaintiff • from fire caused by a rioting mob, there must be judgment for plaintiff.
    Appeal from Civil District Court. Division “D.” Hon. Porter Parker, Judge.
    Action by Jajphet and Company against Southern Railway Co.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    Merrick, Schwarz, Guste, Barnett, and Redman, of New Orleans, attorneys for plaintiff, appellant.
    Hall, Monroe and Lemann, of New Orleans, attorneys for defendant, appellee.
   JONES, J.

This suit was filed on November 7, 1918, for one thousand two hundred two and 58/100 ($1202.58) dollars, the value of ten (10) barrels of whiskey shipped on June 29, 1917, from Louisville, Kentucky, over defendant railroad to plaintiff in Houston, Texas, but never delivered.

Plaintiff alleges that the whiskey was destroyed in East St. Louis, Illinois, on July 2, 1917, while in the custody of defendant and that the destruction was due solely to the negligence of the carrier. Plaintiff attached to the petition and made part thereof the bill of lading on which the shipment was made.

■ Defendant answered admitting the shipment and its destruction, but denying negligence.

The following defense is specially pleaded:

“Your respondent denies that the destruction of this shipment was due to any negligence, or fault, or want of care of your respondents or its agents, servants and employees, but avers and alleges that the said shipment and the said C. R. I. & P. car No. 40508 in which same was contained was destroyed by fire in a race riot in E. St. Louis, 111.; which occurred on the night of July 2nd and morning of July 3rd, 1917; the said car containing the said shipment being then located in what is known as Sixth and Broadway Freight Yards of the Southern Railway Company at East St. Louis, 111.
“That your respondent company used every effort as a carrier and all care and diligence to protect said car and to remove same from danger, but notwithstanding the said efforts, the said car and its entire contents were destroyed, and for which destruction, under Section I of the Bill of Lading or contract under which this shipment moved, your respondent is not. liable; and your respondent specifically sets up, as a defense herein, the said bill of lading or contract of shipment, and particularly Section I thereof.”

The record contains a stipulation of fact signed by both attorneys to the effect that the bill of lading under which the shipment moved was the standard bill of lading duly approved by the Interstate Commerce Commission and contained in the tariffs and schedules on file with said commission and that under the provision of said tariff a choice of rates was offered the shipper, whereby he might have obtained unlimited liability from the carrier by paying a higher rate.

The clause in the bill of lading relied upon by defendant reads as follows: “Except in case of negligence of the carrier or party in possession (and the burden of proving freedom from such negligence shall be on the carrier or party in possession) the carrier or party in possession shall not be liable for loss, damage or delay occurring while the property is stopped and held in transit upon request of the shipper, owner or party entitled to make such request, or resulting from a vice or defect in the property or from riots or strikes.”

About 270 pages of testimony were taken by commission in East St. Louis as to the conditions existing during the day of the fire and as to the steps that were taken by defendant to save this property.

There was judgment below in favor of defendant and the sole question before us is whether the defendant has proved that he exercised such care in protecting the property as an ordinarily prudent man would have, done under similar circumstances.

The evidence shows the following:

On July 1, 1917, a race riot broke out in East St. Louis, Illinois, continuing throughout that day and the next; on the 2nd the danger became so great that a contingent of the State Militia was sent to East St. Louis, Illinois, but apparently did nothing to ameliorate the situation; conditions steadily grew worse in the afternoon and looked worse still for the night, as the police were doing practically nothing while the fire was spreading. The avowed purpose of the mobs was destruction of the negroes and the burning of their residences. This purpose was generally known throughout the city, and one or two witnesses who resided near sections occupied by the negroes made efforts late that afternoon to move their household effects to preserve them from the anticipated conflagration. A similar riot had occurred on May 29th wh.en a couple of houses had been burned near the L. & N. tracks and the mob had thrown bricks through windows of a negro boarding house just across from 6th Street yard.

The first fire of the day started about four-thirty or five p. m. at the plant of the International Harvester Company, which is located about one' block from the northwest corner of the 6th Street yard, very close to the outbound freight house.

The second fire started about five-thirty or six p. m. at the corner of Rockroad and Railroad Ave., less than one hundred feet from their railroad yard in the district inhabited by negroes called “The Black Valley.” This fire extended up Rockroad as far as Walnut Avenue across Walnut uip 8th Street and back to the railroad, yards. The blueprint of the yard shows that the main line of the Southern Railway runs a little north of the 6th Street yard which' extends over three (3) squares from 4th Street to 8th Street, containing six tracks, numbered from North to South, 3 to 8 consecutively, track No. 8 being on the southern edge and track No. 3 the farthest north, just south of the outbound freight house.

Most of the cars destroyed were about the middle of the yards on tracks 7 and 8 between 5th and 6th Streets. That night about one hundred cars were on the different tracks, the yard being nearly full and of these twenty-six cars were burned.

The fire which destroyed this whiskey broke out just South of the 6th Street yard between seven and eight p. m. and by eight o’clock was already burning the cars on tracks 7 and 8.

Bennett, Southern Railway engine foreman, who pulled the cars from tracks 7 and 8, says that he received a telephone message from yardmaster Fritz about seven-fifteen p. m. that the fire was close to their 6th Street yard. He was at the main yard of the company, called Coapman Yard, three or four miles away; he started with his engine and crew, stopped at interlocking plant and sent word to a man that worked the West End Yard that he should come; he then went on to the Y. C. junction and side tracked his caboose; as he could not get into the yard at that time on West leg of Y on account of cars burning on track 3, he went back to 10th Street and came down on East leg of Y; he first took about eighteen or twenty cars off track 7 and then fifteen or sixteen off track 8; the fire coming from the North was already burning cars on tracks 3 and 4 when he reached the yard about eight p. m. (forty minutes after he received the telephone message); it would have been impossible to get another engine until he moved four or five cars away; that the regular assigned engine for the 6th Street yard got back while he' was moving cars from tracks 7 and 8 and he told them to move the cars already placed by him on main line further out, so he could have room for another cut; that after getting cars out he saw they had hose on Rock Road.

It is not shown where the regular 6th Street engine was or why it was not on hand promptly.

Meanwhile the regular yardmaster Fritz had gone home at the usual time, also the freight agent, Coffee. Neither of these officials considered there was any unusual danger, although Coffee had been to a conference that afternoon with other railroad agents and had actually been at the outbound freight house that afternoon when a “scattering of boys and girls” (as he mockingly described the mob) tried to enter the building. However, they both testify that they telephoned to various foremen to move the cars.

The absence of the yardmaster Fritz seems all the more remarkable, as Tom Hughes, the regular night yardmaster, was excused that night on account of his wife’s death and at six-forty-five ip. m. Sweitzer, foreman of the 6th Street engine, had been appointed night yardmaster.

Sweitzer’s testimony may be summarized as follows: There was smoke coming from a fire about three blocks above the I. C. depot when he reported for work about five forty-five p. m. at the 6th Street yard; that he left there at six-fifteen with his engine and crew for the Denverside yard and when he arrived there about six forty-five was appointed night yardmaster; at seven-ten he took his engine up to 10th Street for the bill clerk and when he reached 10th Street about seven-fifteen p. m. he saw the fire just south of the 6th Street yard.

He describes it then as follows:

“It looked like those houses were burning, bunch of negro shacks, and it looked as though they were all afire at the time.”

Then some rioters stopped him for a while, but he finally went back to Denver-side Yard and met Bennett coming out of the West End Yard and told him to move the cars out of the 6th Street Y; a block farther, he met the 6th Street crew and gave them the same instructions; he remained at the yardmaster’s office and Bennett phoned about nine o’clock that they had moved all the cars they could and he told Bennett to go elsewhere; that sixty-five or seventy cars were moved out and there were no other employees of the road in the yard, except the engine crews; that no efforts were made to place any guards around the freight house or standing cars and he knew of no efforts to put any hose on the burning cars; if cars in yard had been coupled they could have been moved in thirty minutes, if not, they could have, been moved in sixty to ninety minutes.

Manion, locomotive engineer, says he got his engine from roundhouse about six p. m. and went down to Coapman Yard for his crew, but none was there; that Sweitzer came in about six-thirty and asked him to take him down to 10th Street for bill clerk, as no street cars were running, that they went to 10th Street when Sweitzer said “the fire looks like it is near 6th Street yard;” that he could do nothing because he had no crew; that he went back to Coapman yard and waited, but no crew came that night; that on the way back about seven-forty or seven-fifty they met Bennett, and Sweitzer gave him orders.

Captain Johnson of the fire department says about forty-four cars caught from the fire in “The Black Valley,” just north of the yard and were burning by eight o’clock. The outbound freight house was saved by the fire department and if the cars had been moved from the yard or even from the vicinity of the colored district, he thought they would have been safe. He stayed there for thirteen hours and couldn’t tell how many houses were burned; all railroad companies have_ their own hose and water, but he had observed no such precautions that night.

Thomas, vice-president of the Hill Thomas Lime & Cement Company, whose plant was partly destroyed, left home at six p. m., as soon as he got word of the fire and he and all the officers of the company worked to save their property; all their houses were saved by their stablemen and a couple of drivers.

Coffee, the freight agent, testified they had hose connections at the inbound freight house, but only water barrels and pails at the outbound; that so far as he knew the fire might have been burning near the 6th Street yard when he went home at seven o’clock, but he saw no evidence of it.

Several citizens living near the yards assisted in dragging the hose to protect a car tagged “inflammables” from the fire that afternoon between; six and eight, but no employee of the defendant road made any effort to get hose or water.

The above digest of the testimony of the principal witnesses confirms the fixed impression first gained from a careful reading of the entire evidence, that the defendant company was negligent both before and after the fire reached tracks 7 and 8 and justifies the following conclusions:

The defendant’s agents knew of the rioting, and the serious conditions prevailing throughout the city, particularly in the neighborhood of their own yards, and that the animosity of the mobs was directed against the negroes. They also knew that alongside of their Sixth Street yards was a row of negro residences known at the time, because of the occupants, as the “Black Valley.” They knew that negro houses a block away from their yards had been set on fire between 4:30 and 5:00 o’clock, and that negroes were being maltreated and killed wherever found, but nothing was done by the defendant company, its agents or employees, until after the fire had been actually communicated to this property.

That no extra precautions of any kind whatsoever were taken to protect the defendant company’s property or the property of shippers in its possession in the Sixth Street yards; that all employees (except the negroes), and particularly those holding higher positions, left their work as usual; that no one was asked to remain and, in short, absolutely nothing was done to cope with the situation which had already developed, or to be ready to deal with emergencies which should have been anticipated in view of the whole situation throughout the city, and particularly in the vicinity of the railroad yards.

The Sixth Street yard, during this time, was congested with cars on from six to eight tracks, and the only way, according to the testimony of defendant’s witnesses, that these cars could be moved out of that yard was over single Y switch; as the tracks were so laid that only one engine could work at removing cars from the yards.

These yards were not equipped with any fire apparatus or even hose, and had no water connections in the yards adaptable to fire purposes.

There was not a single employee of the defendant company who made any attempt to assist the fire department, though one or two men living in the vicinity were rendering such assistance to prevent the explosion of inflammables.

The identical situation presented in this case has been passed upon by the Court of Appeal of Kentucky in the case of Southern Railway Company vs. Barbee & Co., 226 S. W. 376. The opinion of the Court reads in part as follows:

“Notwithstanding this, the railway company seems not to have taken any precaution whatever, at least none out of the ordinary, to protect the consignment of freight which is the subject of this litigation, nor in fact any freight of which there was a great quantity then in its custody in its yards in the mob-stricken city. While there may have been a few watchmen in their several yards about East St. Louis, no extra precaution commensurate with the fire situation and the imminent danger from the mob was exercised by the railway company, or its employes in charge of the yards, for the protection of the consignment of freight in litigation, or any freight in the custody of the railroad in said yards. In fact it appears from the evidence that the railroad officials in charge of the yards and whose duty, it was to look after the safety of the freight therein left their posts of duty early in the evening and went to their homes without having made any special arrangements or effort to inform themselves of the progress of the fires or the' threatened danger to the other freight in the yards, from the mob, although the rioting, shooting and burning was going on very near the Sixth Street railway yards of the company, in which this particular consignment was at the time, and in which large quantities of other freight was also standing. Some of the houses burned were within a few feet of the railroad tracks on which loaded cars were standing. This district was largely occupied by colored residents, the object of the mob, and it was common knowledge that the mob was attempting to kill the negroes and destroy their property, and in fact had been for hours burning their houses and the houses in which they lived.
“The railroad employees in charge of the yards were charged with the duty of protecting the freight consigned therein. In other words, if the railway company, by the exercise of ordinary care, could have saved the freight consignment from the fire after its danger from the fire was discovered, but failed to do so, it cannot be relieved of responsibility by showing that mob started the fire. It was charged with 'the duty of exercising ordinary care to save the freight consignment after the fire which threatened its destruction was discovered. If it failed' in its duty in this regard it is liable. Tbe accepted rule is that a railroad company may contract against liability for loss of goods while in transit through mobs or riots, but it cannot contract against its own negligence, and, although a fire may be started by a mob, the railroad company is not relieved of liability by merely showing that the fire was started by a mob, if the facts are sufficient to show, as in this case, that there was ample time between the starting of the fire and the destruction of the property in which the freight might, by the exercise of ordinary care on the part of the railroad company, have been removed from the danger zone to a safe place. For the purposes of this case, we might wholly disregard the fact that the mob started the fire. It is conceded that the fury of the mob was not in any degree directed toward the destruction of the freight cars or their contents, but only towards the shacks near the tracks in which the negroes lived.”

In these statements we heartily concur.

Attorney for defendant urges that we should follow the decision of the U. S. Circuit Court of Appeals in the case of Simmons Hardware Co. vs. Southern Railway Company, 279 Fed. 929, rather than the case above cited, because the shipment was interstate and the bill of lading governed by the Federal law.

Although this case grew out of the same fire, we cannot accept this argument of the learned attorney as conclusive, because the assignment of error urged before the U. S. Circuit Court was based on the refusal of the Court to give a certain special charge to the jury, as requested by plaintiff. The Federal Court held that the refused special charge had been substantially covered in the other charges and therefore refused to grant a new trial. In other words, this Court took the facts as found by the jury in the lower court and merely considered the legal question as to burden of proof of negligence.

We consider the law of the case settled in this state by the Supreme Court in the case of National Rice Milling Co. vs. N. O. & N. E. R. R. Co., 132 La. 615, 61 So. 708, in which the facts were closely similar to those involved at present. In that case two cars of rice had been burnt in the yards of the Southern Railway in Hamburg, S. C., the fire having been caused by the flood of the Savannah River reaching and igniting a car of unslacked lime in the same train with the cars of rice. Again the railroad pleaded due care and urged that federal decisions should be followed, because an interstate bill of lading was involved, but the Supreme Court decided in favor of plaintiff, using in part the following words:

“According to law and the jurisprudence of this State, to be relieved from liability the carrier must prove that the loss or damage has been occasioned by accidental or uncontrollable event, and this involves the proposition that the carrier must prove that it was free from fault.” National Rice Milling Co. vs. N. O. & N. E. R. R. Co., 132 La. 615, 61 So. 708.

A writ of error from this decision was granted to the U. S. Supreme Court, but the writ was dismissed after full hearing. See N. O. & N. W. Railroad Co. vs. National Rice Milling Co., 239 U. S. 80.

For above reasons the judgment is reversed and it is now ordered, adjudged and decreed that there be judgment in favor o’f plaintiff, Japhet & Company, Inc., and against the Southern Railway Company in the sum of one thousand two hundred two and 58/100 ($1202.58) dollars, with legal interest from November 7, 1918,' and all costs.


source: Caselaw Access Project

license: Public Domain

text:
    No. 10,381
    Orleans
    LIQUIDATORS OF PRUDENTIAL SAVINGS & HOMESTEAD SOCIETY v. NASSANS
    (July 7, 1928. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Judgment—Par. 9, 100.
    A deficiency judgment for balance of indebtedness, after sale of the mortgaged property, obtained without citation on the so-called confession of judgment in the original act, is null and void.
    Appeal from Division “A,” Civil District Court. Hon. Hugh C. Cage, Judge.
    Action by Liquidators of Prudential Savings and Homestead Society against Prank A. Nassans.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    U. Marinoni, P. Rivers Richardson, of New Orleans, attorneys for plaintiff, appellant.
    Daniel Wendling, of New Orleans, attorney for defendant, appellee.
   JONES, J.

On January 4, 1916, plaintiff filed a petition for executory process against defendant on a certain lot in Square 601 of this City. Petition with notice of demand was duly served upon defendant, hut he failed to pay and on February 24, 1916, property was sold by Sheriff to Solomon Stein for five hundred dollars ($500.00). After paying costs plaintiff received only, three hundred twenty-one and 27/100 ($321.27) dollars, leaving a balance due on his mortgage (with interest) of eight hundred seventy-one and 33/100 ($871.33). On June 8, 1917, plaintiff presented a petition to Judge Ellis of the District Court setting forth these facts and obtained from him at once, without any citation or service, on mere presentation of the act, the note and Sheriff’s return a judgment for eight hundred seventy-one and 33/100 ($871.33) dollars, with interest thereon from October 8, 1916, at the rate of seven and one-half percent.

Nothing further was done until September 14, 1925, when plaintiff filed a rule directing defendant to appear before Court and submit to an examination as to his assets.

To this rule exceptions were duly filed and on September 18, 1925, defendant sued to annul the judgment of June 8, 1917, on the ground that it' had been rendered without citation and without any legal confession of judgment.

The Homestead liquidators answered that judgment without citation was legal, because the authentic act of mortgage contained a confession of judgment on the entire indebtedness.

The trial judge declared the judgment of June 8, 1917, null and void.

In thorough reasons for judgment he uses the following language:

“As the matter now stands, a confession of judgment and a waiver of citation can only be had in an authentic act confected for the purpose of giving rise to the right to executory process, before the debt is due. The authentic act declared on in this case, was executed only for the purpose of authorizing the creditor to exercise his right in rem via executiva and plainly on it's face it was never intended to give authority for a personal judgment.
“Let us take the case of a man living in New York who would execute such an act in Louisiana. The right of the creditor to have a curator ad hoc appointed upon whom demand and notice of seizure and intended sale could, be served, is perfectly good, hut an attempt to go into some Court and obtain a ¡personal judgment against him for the deficiency, would be unheard of and in my opinion would come in conflict with the provisions of the Federal Constitution, as set down in Pennoyer vs. Neff.
“When an authentic act has performed its function permitting the seizure and sale in rem, it is functus officio. It is dead and no further benefit can he had from it. It i§ solely for the purpose of^an action in rem against the property and for nc other purpose. When it has performed this function the creditor has in his hands nothing more than an ordinary promissory note, subject to a credit and if desires to get judgment on that note, it is necessary, in my opinion, to cite, the maker of the note1 into Court and let him pie;a thousand and one defenses if he desires to, whether it be prescription; want of consideration; failure of consideration, or, any of the other defenses there are to paying on maturity a! ¡promissory note.
“If the position contended by the Homestead in this case was well taken, how foolish and silly would it he for any petitioner to resort to 'executory process. Why? Because he could come into Court, present his note and act, obtain a judgment for the full amounts of the note and immediately on the signing of the judgment he would become vested with the right to fieri facias and could seize not only the mortgage^ property, but anything else tliai the maker of the note possessed.
“If the position taken by the Homestead Society in this case .is correct, there never would be a case of executory process in Louisiana. I know if I were practicing law and could obtain a judgment by presenting my note and act of mortgage on the property and could go into the Clerk’s office and three minutes after obtaining my judgment could issue my writ of fieri facias, I certainly never would resort to executory process.
“The fact that it is not done and that the various members of the bar in Louisiana, in one hundred odd years have never seen this beautiful, smooth avenue of achievement, is proof ¡positive to my mind that it does not exist and I think that the action taken to annul is well taken for want of citation and want of citation is fatal to the validity of the judgment and, therefore, there will be judgment for the plaintiff in petition for nullity of judgment, as prayed for.”

The material paragraph in the Act of Mortgage reads as follows:

“Now, in the event of the purchaser’s failure to pay the aforesaid promissory note when it shall become due, together with interest, attorney’s fees and other charges, then in that case, the Commonwealth Building and Loan Association has been authorized to cause the property herein described and all the buildings and improvements then standing thereon, without notice and without putting in default, to be seized under executory ¡process, issued by any competent Court, and to be sold thereunder, without appraisement and for cash, to the highest bidder. The said purchaser has renounced the benefit of all laws or parts of laws relative to the appraisement of movable and immovable property and effects, seized and sold under executory or other legal process, and has-confessed judgment in favor of said Association, and its assigns for the full amount of said promissory note, together with all interest, premiums of insurance, taxes, attorney’s fees and all costs, charges and expenses whatsoever.”

It will be noted that the act reads “has confessed judgment.”

Attorney for plaintiff in nullity proceedings urges that this was not in itself a present confession of judgment, but required additional admission to make it usable even for the purpose of executory process. It is true that many if not most of such acts generally use the words “doe's hereby confess judgment,” thereby importing a present immediate act. While the language ahoye quoted does apparently refer to an antecedent confession, we think the whole intent of the act, as shown in the language quoted and in other relevant parts, was to confess judgment and to waive appraisement with reference to the lot sold but no further.

In the course of his brief attorney for the Homestead reasons as 'follows:

“Article 91 of the Constitution of 1898 provides:
“ ‘Service of citation shall not be waived for judgment confessed by a document under private signature executed prior to the maturity of the obligation sued on.’
“This article is pregnant with an affirmative, so that when the confession of judgment is made by notarial or authentic act the article does not apply.
“The trial court, in an exhaustive opinion, declared that the confession of judgment contained in the notarial act securing the mortgage note in question was simply executed for the purpose of authorizing executory process, and not as a notarial confession of judgment. In this position we beg leave to differ, and this is the entire question before the Court.
“We contend that when a man confesses judgment he confesses it for the entire amount due, and not for the part of the indebtedness which might be realized under executory process, but for the entire amount for which he has executed his obligation, and for which he has confessed judgment. Certainly there is nothing in the act of mortgage and confession of judgment which says that if the property so mortgaged fails to bring enough to satisfy the. mortgage, then this confession of judgment is at an end. On the contrary the defendant said that the confessed judgment for every part and parcel of the entire indebtedness, including interest, attorney’s fees and costs.
“Now having confessed judgment in notarial form for the entire indebtedness, how can he now say that he is entitled to- citation for the part of the indebtedness which the property mortgaged failed to satisfy?”

To support this contention he cites a number of decisions of the Supreme Court of this State, but he frankly admits that this procedure is entirely unknown and the issue — “res nova” in Louisiana jurisprudence.

None of the decisions cited are applicable.

We think the novelty of the procedure is in itself an admission of its invalidity, as it is well said by Judge Cage, Were such a proceeding possible, executory process and deficiency judgments would vanish like the witches of McBeth from our Courts.

In N. O. Canal & Banking Co. vs. Hagan, 1 La. Ann. page 68, the Supreme Court says:

“The clause of confession of judgment is much relied on by Hagan’s adversary. The clause is found in its usual position in the notarial act, to-wit, in that portion which provides safeguards and remedies for the enforcement of the mortgage. It follows the pact de non alienando, which is a clause intended to relieve the mortgagee from, the necessity and delay of action against a subsequent purchaser. The object of the confession clause is to give in distinct terms the remedy of executory process against the land. Such a clause does not authorize a fieri facias against the mortgagor’s other property, nor a registration in the nature of a judicial mortgage. It is, in our opinion, a mere provision that concerns the mortgagee’s remedy against the hypothecated property.”

All that this confession of judgment gives the creditor is the right to seize and sell one lot in satisfaction of the mortgage.

This was inferentially decided by the Supreme Court in Coquenheim vs. Troselair, 137 La. 987-989, 69 So. 800, cited with approval by this Court in Willis vs. Thomason, 1 Orl. App. 313.

Here this Court said:

“In executory proceedings only the property subject can be seized and sold.
“Neither the law nor the act under which the Homestead obtained its deficiency judgment contains such a declaration; and, there being no such declaration, there is no legal basis therefor.”

In Sladovich vs. Eureka Homestead Society, 161 La. 270, 108 So. 478, where the homestead instead of issuing executory process, sued the two Sladoviches on the mortgage note for $10,264.90, plus interest and attorney’s fees and for recognition of vendor’s lien and mortgage; they were both cited and served with copies of petition, although confession of judgment similar to that involved herein will be found in the acts. Judgment was obtained against both with recognition “of vendor’s lien and mortgage on the property.”

The court amended the judgment saying, (page 269):

“The judgment should not have gone further than to enable the plaintiff to seize and sell the property in satisfaction, as far as it would satisfy, the debt due the plaintiff. Neither of the defendants was liable on a conventional obligation for the amount of the note sued on. Our opinion is that the plaintiff was entitled to a judgment in rem only to reinstate the title in statu quo ante fuit, and thus undo the wrong.”

In State vs. Judge, 1 McGloin, 11, it was held that confession of judgment must be specific and uncopditional.

Executory process in a proceeding in rem, against the property, and if the property fails to bring a sufficient amount, the proceeding is to file suit, the defendant must be cited and served with a copy of the petition before deficiency judgment can be legally obtained. Unless one is cited, his property is taken without due process of law. If cited, he may plead prescription or other defenses to the deficiency judgment.

For above reasons the judgment is affirmed.


text:
    No. 11,005
    Orleans
    TARANTO v. ORLEANS KENNER TRACTION CO., INC.
    (July 7, 1928. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Automobiles—Par. 5, 7; Street and Interurban Railroads— Par. 24, 28, 29.
    One who drives his automobile in front of an approaching interurban street car, which could have been seen, if the chauffeur had stopped, looked and listened, is guilty of negligence and cannot recover damages resulting from the collision when the motorman did all he could to avert the impact as soon as he saw that the auto was going to cross.
    Appeal from the 24th Judicial District Court, Parish of Jefferson. Hon. L. Robert Rivarde, Judge.
    Action by Jos. Taranto against Orleans Kenner Traction Co., Inc.

      There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    P. A. Middleton, of New Orleans, attorney for plaintiff, appellant.
    C. A. Buchler, of New Orleans, attorney for defendant, appellee.
   JONES, J.

Here plaintiff claims four thousand ($4,000.00) dollars for damages to his automobile and personal injuries to himself, alleged to have been caused by the negligence of defendant’s motorman in running a street car of defendant into the rear of his Nash machine at an illegal speed, around a curve and on a crossing, just in front of the Jefferson Race Track entrance.

Defendant, after filing an exception of no cause of action, which was overruled, answered, denying all negligence on its part and in the alternative pleading contributory negligence.

The trial judge, after a careful analysis of the evidence, found that plaintiff had driven without stopping, looking and listening upon the track of defendant in broad daylight, so close to the approaching car, that the motorman, though he applied the emergency brakes and did all in his power to stop, could not avert the impact. He has supported his decision by citing many decisions of the Supreme Court of this State and of the U. S. Supreme Court.

The evidence shows that the accident happened about 4 p. m. on May 9, 1925, just in front of the Jefferson Race Track entrance, when plaintiff, who had been driving his Nash touring car alone in the.Jefferson Highway on the right hand side of the street car track toward Kenner, was crossing over the track toward the river. The street car was coming in the opposite direction and the crossing at that point was not used much then, as the racing season had closed and the road on the river side of the track, which was in fair condition, leads only to Cleary’s farm nearby.

Plaintiff, who admitted that he could not see at all out of his right eye, swears that he stopped, looked and listened before crossing the track in first speed, but could not see the approaching car on account of a curve on the track just above that point and also on account of high weeds on the right of way, which obscured his vision; that he heard nothing until the car was almost at the crossing; that he then tried vainly to speed up, but became nervous and was struck, just as his rear wheels were in the middle of the track. His statement as to his stopping, looking and listening is entirely uncorroborated. Even his two main witnesses, Washington and Gordon, do not confirm him in this statement and while they do not positively state the opposite, we agree with the trial judge in concluding that the gist of their entire testimony certainly leans to the negative view and rather tends to confirm the motorman, who swears that Taranto did not stop, look and listen, but drove upon the track suddenly, when the street car was sixty feet away.

Photographs in the record of the locality negative the assertion of plaintiff as to the proximity of the curve in the track to the crossing and the presence of obstructing weeds. These photographs are confirmed by the testimony of the Superintendent 'of defendant company.

Although plaintiff’s witnesses testify they heard no whistle, both motorman ánd conductor and two passengers say the whistle was blown and motorman applied emergency brakes suddenly. There is no proof of excessive speed.

We think the conclusion of the trial judge correct and it is, therefore, affirmed.

See the following authorities on the point that it is the duty of the automobile chauffeur to stop, look and listen before crossing a railroad track:

Cañedo vs. N. O. Carrollton Railroad, 52 La. Ann. 2149, 28 So. 287.

Heebe vs. N. O. Railroad Company, 111 La. 970.

Durbose vs. N. O. Railway & Light Company, 123 La. 1029, 49 So. 696.

McShane vs. N. O. Railway & Light Company, 137 La. 830, 69 So. 268.

Tucker vs. I. C. R. R. Co., 141 La. 1101, 76 So. 212.

Sammonds vs. N. O. Railway & Light Company, 143 La. 731, 79 So. 320.

Leopold vs. T. & P. Railway Company, 144 La. 1000, 81 So. 602.

Nolan vs. I. C. Railway Company, 145 La. 483, 82 So. 590.

Improvement Company vs. Stead, 95 U. S. 161.

Railroad Company vs. Houston, 95 U. S. 697.

Gibbons vs. Terminal Company, 1 La. App. 371.

Gelbke vs. R. R. Co., No. 7405, Court of Appeal (Orleans).

Maxwell vs. R. R. Co., No. 8595, Court of Appeal (Orleans).

Heideman vs. N. O. Public Service Co., 1 La App. 275.

Carlino vs. N. O. Public Service Co., No. 10,558 Court of Appeal (Orleans).


text:
    No. 11,333
    Orleans
    STATE EX REL. FLEURY AND TOLEDANO v. CONWAY
    (May 26, 1928. Opinion and Decree.)
    (May 8, 1928. Writ of Certiorari and Review Granted by Supreme Court.)
    (July 17, 1928. Writ of Certiorari and Review Recalled by Supreme Court.)

      (Syllabus by the Court)
    1. Louisiana Digest — Laws—Par. 72, 76.
    The words, “A majority in number of land owners in the said district,” as used in Sec. 7 of Act 85 of 1921, means a majority of those actually signing petitions.
    Appeal from District Court for Jefferson Parish. Hon. Robert L. Rivarde, Judge.
    Quo warranto by State ex rel. John E. Fleury and Weaver R. Toledano (realtor) against J. J. Conway.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    C. A. Buchler, Jno. E. Fleury, of New Orleans, attorneys for plaintiff, appellee.
    A. C. Higgins, of New Orleans, attorney for defendant, appellant.
   JONES, J.

This is a quo warranto proceeding to test title to the office of drainage commissioner of the Fourth Jefferson Drainage District of the Parish of Jefferson, a district created under Act 85 of 1921.

Two questions are (presented, one of law, the meaning of Section 7 of Act 85 of 1921, and one of fact, whether the petitions for appointment of J. J. Conway as a commissioner contain a majority of the total acreage of said Fourth Jefferson Drainage District.

We shall consider the legal question first, as our interpretation of the controverted section renders a decision on the question of fact unnecessary.

It is admitted by both parties that the total number of land owners in the district was 5,138, that of these 1,023 signed the Toledano petitions and 743 signed the Conway petition, neither having a majority.

Section 7 of Act 85 of 1921, the controlling law, reads as follows:

“In the ordinance creating a Drainage District under this Act, the Police Jury or Police Juries creating such District shall appoint the five (5) Commissioners who shall constitute the governing authority of such Drainage District, and who shall possess the qualifications, as provided in Section 6 of this Act. The appointments of Commissioners by the Police Jury shall be made upon the recommendation of a majority in number of acres of land owners of said proposed Drainage District, or a majority in numbers of the land owners of such district where the district contains forty or less land owners; where the proposed district has more than forty land owners embraced therein, then the said appointments shall be made upon the recommendations of twenty-five of the land owners of said district. When there is a contest over the appointment of Commissioners, the Police Jury shall give the appointment to those Commissioners who are recommended by land owners owning the majority in number of acres of land in said district, or who are recommended by a majority in number of the land owners in said District, in the discretion of the Police Jury.”

Relator contends that this section means that the Police Jury has the right to appoint the applicant whose petition is signed by the majority of participants, whereas defendant contends that Conway has a majority of the acreage and Police Jury must appoint the applicant having such majority, when neither applicant has the recommendation of a majority of the land owners in the district.

Counsel for relator and appellee argues that the general rule applicable to elections and contests • should be applied in this case, to the effect that a majority of those who (participate in the contest must decide the result thereof, irrespective of the total number of persons who have a right to participate in the said contest.

In this particular case under defendant’s interpretation, Conway must be recommended by the owners- of more than 15,500 acres of land in the district or more than 2500 land owners before he can be appointed.

The more practical and common sense solution is that the general rule applicable to elections and contests should1 be applied in this case, namely, that the majority of those parties participating in the contest should decide the result thereof irrespective of the total number of parties having a right' to participate.

The general rule of law is well stated in the 20th C. J., p. 205, under the head “Elections,” as follows:

“In the absence of a statute expressly requiring more, a plurality of votes is sufficient to elect.
“Qualified electors who failed to vote at an election are presumed to acquiesce in the expressed will of those who did. Hence a law requiring that an officer shall he chosen or a question decided by a specified majority of the votes of a county or other civil division is generally construed to mean that the election shall he decided by the required majority of votes actually cast.”

And in Volume 9, Ruling Case Law, page 1115, Sec. 117, as follows:

“Ordinarily, therefore, voters who do not choose to participate in an election are not, to he taken into consideration in declaring the result. If the law requires a question to be decided or an officer to be elected by the votes of the majority of the voters of the county, this does not require that the majority of all the persons in the county entitled to vote shall actually vote affirmatively, but only that the result shall be decided by a majority of the votes cast. And so a constitutional provision requiring the assent of two-thirds of the qualified voters of the county, at an election lawfully held for that purpose, to a proposed issue Of municipal bonds, means the vote of two-thirds of the qualified voters present and voting at such election in its favor, as determined by the official return of the result. Voters not attending the election or not voting on the matter submitted are presumed to assent to the expressed will of those attending and voting, unless the law providing for the election declares otherwise. This is true whether the matter is submitted at a meeting under a statute requiring the assent of a majority of all the inhabitants entitled to vote to be ascertained by taking and recording the ayes and nays of such inhabitants attending the meeting, or whether it is submitted to a decision of a majority of the voters of the polls.”

In the case of Citizens and Taxpayers of DeSoto Parish vs. Williams, et als., 49 An., p. 421, the Supreme Court of this State was called upon to interpret the language of Article 242 of the Constitution relative to the voting of a special tax in aid of the construction of a railroad through DeSoto Parish.

The article in question stated that the election should be carried “by a vote of the majority of the property taxpayers in numbers and in value” and plaintiffs contended that it was necessary to obtain a majority of the total number of votes and a majority of the total taxable acreage of the parish.

Judgment was rendered in favor of the plaintiffs in the lower court, hut the Supreme Court after considering the language of Article 242 of the Constitution in connection with the language used in Article 209 of the Constitution relative to the voting of special taxes for public improvements used the following language:

“But pretermitting all reference to Article 209, and confining the discussion, arguendo, to the provisions of Article 242, let us consider the phrase, ‘by a vote of the majority of the property taxpayers, in numbers and in value,’ and ascertain its true meaning. It is quite significant, indeed, that the phrase is, ‘by a vote of the majority of the property taxpayers,’ etc., instead of ‘by a vote of the majority of all the property taxpayers,’ etc. Between such phrases as these two, a difference has been taken by nearly all of the courts whose opinions we have examined on the subject, and with the proximate result that, in cases where the word ‘all’ is omitted, the decisions have been that a majority of those actually voting carries the election in favor of the tax, those not voting being presumed to have acquiesced in the result, while in those cases in which the word ‘all’ occurs an affirmative vote of all the property taxpayers is requisite for that purpose. The following decisions of some of the courts of other states will serve to illustrate the foregoing propositions. They are founded upon the iprecepts of text writers of the first ability, the trend of which may be summarized thus: That the rule to guide those to whom the question is submitted is, to take the majority of votes cast as a test, those who remain away from the. polls being presumed to assent to what is done by a majority of those who vote. Their silence, when they had an opportunity to speak and change the result, is taken for consent to the result; that this is the settled doctrine in this country in respect' to the election of officers at a general election, and also at elections for the purpose of deciding any special propositions. McCrary, Contest. Elec., p. 114.”

See also 253 U. S. 350, National Prohibition cases decided June 7, 1920, where the following language is used, “The two-thirds vote in each house which is required in proposing an amendment is a vote of two-thirds of the members present, assuming the presence of a quorum and not a vote of two-thirds of the entire membership present and absent. 248 U. S. 276, Missouri Pacific Ry. Co. vs. Kansas.”

This interpretation not only makes the controverted section practical and effective but reconciles it with the great majority of decisions in the Appellate Courts of this country.

Furthermore, it is interesting to note that the interpretation of Art. 242 of the Constitution of 1879, made by the Supreme Court in Citizens & Taxpayers of DeSoto Parish vs. Williams, et al., 49 La. Ann. 422, 21 So. 647, has been subsequently embodied in the Constitutions of 1898, 1913 and 1921, all of which required that special taxes for drainage purposes be voted by a majority of those actually voting at the election.

It will be noted that the words to be interpreted, namely, “are recommended by land owners owning the majority in number of acres of land in said district or who are recommended by a majority in number of the land owners in said district” are no more universal in their connotation than those quoted in the cases cited above, for the word “all” is not used therein.

As defendant’s able attorney has cited no authority holding to the contrary and as the decision of the lower court, which makes the application of law practical and effective, is in accord with the views of the highest courts of this country, it is hereby affirmed.


author: CLAIBORNE, J.

text:
    No. 10,280
    Orleans
    DAY v. ARMOUR FERTILIZER WORKS
    (May 28, 1928. Opinion and Decree.)
    (June 4, 1928. Rehearing Refused.)

      (Syllabus by the Court)

    1. Louisiana Digest — Evidence—Par. 166, 168.
    The testimony of a witness that an agent of the defendant had admitted to him that he had injured the plaintiff is (properly excluded as hearsay. The agent himself should be produced.
    2. Louisiana Digest — Evidence—Par. 343, 344.
    Although a party may not impugn the credibility of his own witness he may contradict his statement.
    3. Louisiana Digest — Evidence—Par. 79.
    “Res gestae” are the spontaneous and contemporaneous declarations made by the parties at the time of the occurrence or soon thereafter, and as such admissible.
    4. Louisiana Digest — Evidence—Par. 79, 85.
    Dying declarations, as such, find no place in Civil law practice.

      5. Louisiana Digest — Evidence—Par. 88; Witnesses — Par. —.
    Testimony should not be admitted as to the color of a witness with a purpose of affecting his credibility.
    Appeal from Civil District Court. Hon. Porter Parker, Judge.
    Action by Clara Hynes, Widow Robert Day against Armour Fertilizer Works.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed and case remanded.
    Sidney F. Gautier, of New Orleans, attorney for plaintiff, appellant.
    Denegre, Leovy and Chaffe, of New Orleans, attorneys for defendant, appellee.
   CLAIBORNE, J.

Plaintiff claims under the Employers’ Liability Act.

She averred that in the month of July, 1924, her husband was employed by the defendant; that on July 12th or 13th, while on night duty as plant watchman, he accidentally stepped upon a nail left in a plank about the platform which penetrated his foot; that he continued at work until July 14th when he consulted his physician who directed him to stay home; that he thereafter developed tetanus from the wound inflicted in his foot by the nail upon which he had stepped; that he was then taken by his employers, the defendant herein, to the Illinois Central Hospital where he died from lock jaw on July 22, 1924;' that her husband had been getting a salary of $26 per week; that she is entitled to compensation on a basis of 30 per cent of that salary during 300 weeks and to $150 for burial expenses.

The defendant admitted that Day had been in its employ in July, 1924, and that he died at the hospital of lockjaw on July 22, 1924.

Further answering defendant averred that on July T8, 1924, Day called on his physician and complained of trouble with his throat; that the physician advised him that he had lockjaw and that he should go to the hospital. The defendant denied all the other allegations of the petition.

There was judgment for the defendant. In his reasons for judgment the judge stated that there was “no proof whatever, to show that the nail from which Day derived the infection was picked up by him on the plant of the defendant company, and the record further shows that he never made complaint to his superiors of an accident, but only when an apparently serious condition developed he asked to be relieved from duty on account of tonsilitis.”

The plaintiff appealed.

It is true, as stated by the learned trial judge, that “there was no proof to show that the nail from which Day derived the infection was picked up by him on the plant of the defendant company.” But the reason of that is that the trial judge, on objections, refused to admit the testimony by which plaintiff attempted to establish her case. If that evidence was properly exciuded, then the judgment is correct; if erroneously shut out, then the ruling must be reversed, and the case remanded.

I. The plaintiff attempted, to introduce in evidence statements made “to a witness by a representative or agent of the defendant company.” To this testimony the defendant objected and was sustained by the trial judge. The ruling was in accordance with decisions of the Supreme Court.

In the case of Rousseau vs. T. and P. Rrd., 4 La. App. 691 (695), the defendant was sued in damages because a guard by the name of Prudhomme employed by it was charged with having killed the plaintiff’s son.

The trial judge admitted the testimony of (Sheriff) Vial that Prudhomme had admitted to him that he had shot Ursin (the plaintiff’s son). Held: this was error. Toca vs. Rojas, 152 La. 320, 93 So. 108.

II. Owing to the difficulty of proving his case the plaintiff summoned and examined as his witnesses, several of defendant’s employees. He attempted to prove by them and by other witnesses that these several employees had made different and contradictory statements on previous occasions.

The defendant objected to this testimony on the ground that the plaintiff could not contradict his own witness. The trial judge maintained the objection. In this he erred. In 1874 in the case of Boedicker vs. East, 26 La. Ann. 209, the Court said:

“We understand the rule to be that although a party introducing a witness is not (permitted to impugn his -character for veracity, and ''to show that he is not worthy of belief, he may nevertheless introduce evidence to rebut a statement made by the witness of a particular fact.” State of La. vs. Simon, 37 La. Ann. 569; State vs. Boice, 114 La. 856, 38 So. 584; 23 C. J., S. 1793.
“It is well settled rule that one calling a witness is not absolutely bound by his testimony.” State vs. Johnson, 47 La. Ann. 1229, 17 So. 789.
“A party has a right to contradict his own witness by independent evidence showing the facts to be different from those testified to by such witness although the incidental effect of the introduction of such evidence is to materially discredit the witness.” 40 Cyc., p. 276-6 (b); 1 Greene, S. 442, 443.

III. The testimony shows that the gate of the plant where, plaintiff’s husband was employed was about two blocks from his home; that immediately on quitting his work and returning to his home in the morning about 7 a. m., he made a statement of the time, place and manner of his injury to his wife and to a woman who assisted in giving him first aid. He said to the latter: “I stuck a nail.” Objection was at once made and sustained that it was hearsay.

In addition to the above the plaintiff herself was asked by her counsel:

“While you were attending to your husband’s foot on the morning of the 14th, did he make any statement to you as to where he had sustained the injury?”

To which objection was immediately made on the ground, among others, that it was “purely hearsay.” The objection was sustained and the testimony excluded.

We are of the opinion, that the question and answer form part of the “res gestae” and were admissible, and that the ruling was erroneous. “Res gestae” are the spontaneous and contemporaneous declarations made by the parties or by a witness at the time of the occurrence or soon thereafter. What is res gestae is not defined by any arbitrary rule, but depends upon circumstances, and rests very much urpon the discretion of the Court. Wharton, Crm. Ev., Sec. 262.

In this case considering that plaintiff’s husband was employed at night, that the plant was only two blocks from his home, that he left' his work at about seven o’clock in the morning, and walked directly to his home; that there he immediately removed his shoe and had his foot treated by his wife and a neighbor, and that he made to them a declaration concerning the manner of the injury to his foot, we are of the opinion that the declaration made to them by the plaintiff’s husband at that time and under those conditions constitutes the very “res gestae” described by the law, and that his declarations at that time and place should have been admitted to be weighed as other testimony in that case. 22 C. J. 449, Sec. 543-545-549; 1 H. D. 502; No. 9293 Ct. App.

“A declaration to be a part of tbe res gestae need not be coincident in time with the main fact proved, if the two are so closely connected with the declaration and can, in the ordinary course of affairs, be said to be a spontaneous explanation of the real cause.” State vs. Maxey, 107 La. 799, 32 So. 206 (801); 131 La. 988.
“Res gestae consist of circumstances or declarations made admissible as original evidence by reason of their connection with the particular fact under investigation; and the test is whether the fact or circumstances put in evidence is so connected with the main facts under consideration as to elicit its character, to further its object, or to form, in connection with it, one continuous transaction.” State vs. Donelson, 45 La. Ann. 745 (753), 12 So. 922; 1 Greenleaf, Sec. 108.

Of course, we have no reference to “dying declarations” which find no place in Civil law. Bionto vs. I. C. R. Co., 125 La. 149, 51 So. 98.

The defendant propounded questions to its witness to establish that the plaintiff and her deceased husband and all her witnesses, were colored, while the defendant’s witnesses were all white. The tendency of such testimony was to affect the credibility of plaintiff’s witnesses and to improve that of the defendant’s witnesses in this Court on the color line.

Such testimony should not have been admitted. It was not a method recognized by law of affecting the credibility of witnesses or of assisting the administration of impartial justice. See State vs. Washington, 136 La. 859, 67 So. 930.

For the above reasons the judgment herein is reversed and set aside; and it is now ordered that this case be remanded to be tried according to law and to the views herein expressed; the costs of appeal to be paid by defendant and appellee and the costs of the trial court to await the final determination of this suit.


text:
    No. 10,040
    Orleans
    CASTELLUCIO, ET AL. v. CLOVERLAND DAIRY PRODUCTS CO., INC.
    (May 2, 1928. Opinion and Decree.)
    (June 18, 1928. Rehearing Refused.)

      (Syllabus by the Court)

    1. Louisiana Digest — Judgment—Par. 89, 91; Death by Wrongful Act — Par. 11.
    A judgment in favor of a beneficiary will be reduced in ease of his death to the amount of his probable loss at that date.
    Appeal from Civil District Court. Hon. E. K. Skinner, Judge.
    Action by Salvador Castellucio, et al. against Cloverland Dairy Products Co., Inc.
    There was judgment for plaintiff and defendant appealed.
    Judgment amended and affirmed.
    Scott E. Beer, of New Orleans, attorney for plaintiff, appellee.
    J. C. Henriques and F. T. Doyle, of New Orleans, attorneys for defendant, appellant.
   CLAIBORNE, J.

The facts of this case are related in 115 So. Rep. No. 11, p. 796.

The wife of the plaintiff and mother of the minor, co-plaintiff, was killed by the fault of an employee of defendant. They sued the defendant in damages. There was judgment in favor of each for $2500. From this judgment the defendant appealed suspensively. Pending the' appeal the plaintiff, Salvador Castellucio, died leaving six major children who claimed the $2500 as heirs of their father. This Court affirmed the judgment in favor of the minor, but dismissed the claim of the six major heirs on the ground that the right of action of the father perished with him. Castellucio, et al. vs. Cloverland Dairy Prod., 7 La. App., No. 22, p. 534. This judgment of the Court of Appeal was reversed by the Supreme Court who held that “where beneficiary after recovering judgment in personal injury action dies pending appeal, his heirs inherit the judgment.”

The Court ordered “that this case be remanded to the Court of Appeal for the Parish of Orleans for the purpose of making the heirs of Salvador Castellucio parties plaintiff and appellee to the proceedings in that Court, and that after making said heirs parties, the case as to the judgment in favor of Salvador Castellucio be proceeded with and be decided in due course.”

■ It is agreed therefore that the only, question for this Court to decide is the quantum of damages to which said heirs are entitled. ,

Is it to remain the same as was allowed by the trial court in favor of the father or must it be reduced by reason of the death of the father and beneficiary, Salvador Castellucio?

The ground of action of the plaintiff Salvador Castellucio, as set forth in his petition and according to Act 159 of 1918, p. 270, was three fold: the pain and suffering of his deceased wife, $5000, the deprivation of her companionship. $5000, and third, loss of her support, $5000.

He alleged in his petition that his deceased wife was injttred on January 10, 1924, when she was 61 years of age and in vigorous health; that the blow inflicted upon the right side of her head a wound three inches long which fractured her skull; that she was immediately taken to the hospital where she remained until January 18th, when she was removed to her home and died on February 6, 1924; that from the. date when she received the blow she suffered great physical pain and mental agony; that from his marriage with his deceased wife he had six children, all now of age, except one the co-plaintiff, who is now 17 years of age; that the plaintiff was an old man absolutely dependent for maintenance and support' upon the labor of his wife; that he is almost totally blind and cannot work or earn a living; that he depended upon his wife for all his wants; that by her industry and labor his wife earned about $2 a day which constituted the support of plaintiff and of his daughter.

The learned trial judge found that the deceased wife was aged and partly incapacitated from severe work and was a peddler of vegetables from which she earned about $2 a day which she applied to the support of her husband.

The trial judge in rendering judgment in favor of Salvador Castellucio for $2500 did not divide the amount for each separate cause of action, but gave judgment for a lump sum, without even mentioning the separate causes of action, for suffering of the deceased, loss of companionship, and loss of support.

The defendant and appellant now contends before this Court that by reason of the death of Salvador Castellucio on December 28, 1925, about 22 months after the injury to his wife., .the judgment should be reduced by some amount.

It must not be forgotten, indeed it must be kept in mind as the pivotal point in this case in fixing the amount of damages in favor of the major children and heirs of their father, that they are not claiming in their own right, under the statute of 1918 amending Article C. C. 2315, hut that they are standing before this Court at this time as the children and heirs of their father under the decision of the Supreme Court in their favor, and under the article of the code.

This is the fundamental error, it seems to us, the learned counsel of the defendant has fallen into in his argument before this Court and in his brief. He treats the children, who have been substituted in the ©lace of their father in this Court, as claiming in their own right, while in truth they are entitled as heirs of their father to all which he could claim. It is therefore immaterial whether these children supported their mother, or were supported by her, or whether they entertained any affection for her, or whether they suffered from the want of her love and affection.

We are not to ascertain how much the children suffered and lost by the death of their mother, because they are not her beneficiaries; but how much she suffered by the accident, and how much her surviving husband, as her beneficiary, suffered and lost by his wife’s death, and how much, as .such beneficiary, he. transmitted to his children, whose only right of action is as heirs of their father.

I.As far as the pain and suffering endured by the deceased wife are concerned, we cannot see how that element of damage can be affected by the subsequent death of the plaintiff, her husband. Pier husband acquired her right of action under the statute, and his children inherited his right of action.

II. We presume that the probable duration of plaintiff’s life, and the deprivation of his wife’s companionship and assistance, during that length of time were factors in estimating plaintiff’s loss. But there is nothing to show that any reasoning of that kind influenced the judge in his judgment.

III. If we consider that the plaintiff died 22 months or 660 days, after his wife, and that she earned $2 a day during that time, then we reach a certainty that he lost at least one-half of $1320 by the death of his wife in the nature of support.

Allowing $750 for the last item, and $500 for each of the other two items, we reach a total sum of $1750 which is the amount of plaintiff’s loss at the moment of his death, and the amount which he transmitted to his children by right of succession or inheritance.

For the above reasons we are of the opinion that the judgment should be reduced.

It is therefore ordered that the defendant herein', the Cloverland Dairy Products Company, Inc., 'be condemned to pay to the heirs of Salvador Castellueio, plaintiff herein, namely: Peter Castellueio, Jennie Castellueio, wife of Saverio Leauzia, Mary Castellueio, wife of Thomas Sciortina, Lena Castellueio, widow Edward Barbe, Emanuel Castellueio, and Lucia Castellueio the sum of one thousand seven hundred and fifty ($1750) dollars with five per cent per annum interest from March 22, 1924, till paid and all costs of suit.


text:
    No. 11,217
    Orleans
    DOLAN v. REVOL
    (July 2, 1928. Opinion and Decree.)

      (Syllabus 6y the Court)
    1.Louisiana Digest — Obligations—Par. 1, 74.
    Agreements legally entered into have the effect of laws on those who have formed them.
    Appeal from First District Court. Hon. Val J. Stentz, Judge.
    Action by Edward P. Dolan against Gus D. Revol.
    There was judgment for plaintiff and defendant appealed.
    Judgment amended and affirmed.
    B. Y. Wolf, of New Orleans, attorney for plaintiff, appellee.
    Chas. McCabe, of New Orleans, attorney for defendant, appellant.
   CLAIBORNE, J.

This is a suit for commissions on sales of automobiles.

Plaintiff alleged that' he was 'employed by the defendant as a salesman of automobiles by a written contract for a compensation of five per cent on all sales made by plaintiff.

I. That on November 30, 1926, pláintiff sold to Geddes and Moss an automobile hearse for $5500 for which he is entitled to a commission of $275 less freight, leaving a balance due of $264.34.

II. That on July 10, 1926, he sold to Harding an automobile for $2250 upon which he is entitled to a commission of $112.50, upon which he accepted a reduction of $25 on the representation of Revol that he was losing $200 on the sale; but that plaintiff has found the statement untrue, and now claims $25.

III. That plaintiff sold to Can and Llopis an automobile for $450 upon which he is entitled to a commission of $22.50.

IV. That plaintiff is also entitled to a commission of $294.90 for sales according to account rendered to him by Revol on December 31, 1926, upon which Revol has paid him $200, leaving a balance due of $94.90.

That all of said four commissions amount to $406.74; but that plaintiff owes defendant $130.85 for articles purchased from him by plaintiff and for work done, leaving a balance due plaintiff of $275.89.

The defendant admitted the employment of plaintiff, admitted the sale of the hearse, admits the sale of Can and Llopis but avers that they have not paid the price of this sale, admits the purchase of articles by plaintiff and work done for him, but denies all the other allegations of the petition.

Further answering defendant alleges:

I. That for the sale of the hearse to Geddes and Moss it was verbally agreed that plaintiff’s commission would be two and a half per cent .commission for which he accepted credit, as in four other‘sales.

II. That plaintiff also agreed to accept the reduction of $25 in the Harding sale, on account of certain concessions made to Harding and a loss to defendant of $162.55.

III. That Can and Llopis have not yet paid defendant the price of sale, and until then ¡plaintiff is not entitled to any commission.

IV. That the plaintiff is entitled to $96.22' as a balance in full which defendant has offered to plaintiff who refused it.

There was judgment in favor of plaintiff for $250.89, comprising all his claims with the exception of the Harding item of $25.

The plaintiff, in his petition, alleges that he sold a hearse to Geddes and Moss. In his testimony, however, he admits that he did not sell the hearse to Geddes and Moss. He said:

“Mr. Moss came in on my floor-day and said: ‘I am going to buy a hearse,’ and ■I had been calling on Mr. Moss about two years and I had never talked hearse to him because I knew it was an agreement between the undertakers they were not going to buy any hearse and I took Mr. Moss into Mr. Revol’s office and we wired the factory, etc.”

Plaintiff’s theory and his cause of action are that Moss came into the place of business of Gus D. Revol to buy a hearse on his “floor day,” and that he is entitled to full commission on any sale made to a customer who came in on that day.

We think plaintiff’s contract entitles him to the commission claimed by him.

It is the law of the case as to him and as to the defendant. C. C. 1901-1945. It stipulates:

“Prospects received during floor-day, not previously assigned, shall be given to the salesman on duty, and he shall be privileged to follow up said prospect for a period of 30 days from date of inquiry; at the end of which time, if in the opinion of Gus D. Revol, sufficient progress has not been made, Gus D. Revol, or one appointed by him, shall be privileged to reassign said prospect to another salesman in like manner.”

The contention of the defendant is that the above clause refers alone to cases in which the prospect has applied to a salesman on duty and not to cases, as in this one, where the prospect has not applied to any salesman, but has applied directly to the employer with whom exclusively the sale was initiated and consummated.

We do not think this clause has this restricted meaning. We are of the opinion that the salesman on duty on his floor-day is entitled to a commission on any sale made to a prospect who has presented himself on his floor-day, whether the prospect applied to the salesman on duty or directly to the employer, and whether the employer initiated and consummated the sale.

C. C. 195.6 (1951):

“When the intent of the parties is doubtful, the construction put upon it by the manner in which it has been executed by both, or by one with the express or implied assent of the other, furnishes a rule for its interpretation.”

C. C. 1957 (1952):

“In -a doubtful case the agreement is interpreted against him who has contracted the obligation.”

C. C. 1958 (1953).:

“But if the doubt or obscurity arises for the want of necessary explanation which one of the (parties ought to have given, or from any other negligence or fault of his, the construction most favorable to the other party shall be adopted, whether he be obligor or obligee.”

The answer of the defendant and his argument differ materially.

His answer was as follows:

“That in the sale of Geddes and Moss under date of November 24th, 1926, it was specifically agreed verbally between plaintiff and respondent that plaintiff’s commission would be two and a half per cent, and that the plaintiff accepted credit of the said commission at the rate of two and a half per cent and is now estopped from claiming an additional two and a half per cent.”

In his brief defendant’s attorney says:

“The defense of Gus D. Revol is as follows:
“ ‘That on the Geddes and Moss sale Dolan had nothing to do with same, that the said sale was closed by respondent himself, and that only for the reason that plaintiff had charge of the undertakers’ territory Mr. Revol, as a matter of courtesy, allowed him two and a half per cent on the sale, that Dolan accepted the two and a half per cent commission and the matter was closed.’ ”

la other words, Revol’s position is that he gave two and a half per cent commission or $137.50 to Dolan as a gratuity. Dolan says: “Revol would not give God a prayer.” A donation is not presumed. Nemo facile praesumitur donare. 1 H. D. 487, N. E. 8. The delivery of a sum of money raises the presumption of the payment of a debt, rather than a donation. Succ. Hymel, 48 La. Ann. 737, 19 So. 742.

The burden was upon defendant to prove that plaintiff was not entitled to any commission, or that being entitled to one, he had agreed to accept one half of it. No one is presumed to give or to renounce a right. We think Revol has failed in his defense.

It is therefore ordered that the judgment herein be affirmed.


text:
    No. 11,453
    Orleans
    C. C. ELMER TANK BOILER CO., INC. v. ART CLEANER AND DYERS, ETC.
    (May 28, 1928. Opinion and Decree.)
    (June 4, 1928. Rehearing Refused.)
    (July 20, 1928. Writ of Certiorari and Review Denied by Supreme Court.)

      (Syllabus by the Court)
    1. Louisiana Digest — Trial—Par. —.
    It is lawful for the plaintiff to proceed with the trial of the case in the absence of defendant and of his counsel, after the case has been properly fixed.
    2. Louisiana Digest — Appeal—Par. 564, 572; New Trial — Par. 21.
    Defendant who complains of a judgment against him when he was absent should justify his absence in an application for a new trial and not by appeal.
    Appeal from First City Court. Hon. W. Alexander Bahns, Judge.
    Action by C. C. Elmér Tank Boiler Co., Inc., against Art Cleaner and Dyers, etc.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Thomas Tomeny, of New Orleans, attorney for plaintiff, appellee.
    Geo. Sladovich, of New Orleans, attorney for defendant, appellant.
   CLAIBORNE, J.

The plaintiff sues the defendants for $102 the price of a boiler and stack sold to them. The defendants admit having ordered and received a boiler from the plaintiff; but they aver that there were missing parts to the boiler and that it leaked; that the defendants notified the plaintiff of these defects and that the boiler stood out of order in the yard for several months; that with plaintiff’s consent the defendants employed other workmen who repaired the boiler and put it in perfect condition at an expense of $35; that the plaintiff refused to deduct that-amount from their bill; that they have offered to return, the boiler to the plaintiff who has refused to accept it. The defendants pray that plaintiff’s demand be rejected and that it be ordered to receive its boiler.

The case was fixed for trial for March 27th and the defendants were notified.

On March 25th the defendants filed a motion in which they alleged that they would be “busy in other legal matters in other Courts,” and that they would ask for a continuance. No action appears to have been taken on that motion.

On March 27th the case was taken up for trial “Present Thomas Tomeny, attorney for plaintiff; defendant absent and not represented.”

Charles Elmer was heard as a witness and established plaintiff’s case. Judgment was rendered in favor of plaintiff.

The defendants have appealed. They complain that the case was tried in their absence, and in the. absence of their counsel.

A iparty who would obtain a continuance of a case should address the Court at the moment of trial and make a proper showing. In the absence of either the opposite party is entitled to a trial of the case.

The appellant has not' pointed out any error in the judgment which is therefore affirmed.


text:
    No. 10,251
    Orleans
    LOPEZ v. PAMPALONE
    (May 21, 1928. Opinion and Decree.)
    (June 18, 1928. Rehearing Refused.)

      (Syllabus by the Court)

    1. Louisiana Digest — Alimony—Par. 13.
    Where a husband has paid to the wife alimony substantially as fixed by the trial court, during the pendency of a separation suit, her failure to pay for board and lodging during the time, does not render the husband liable therefor.
    2, Louisiana Digest — Marriage—Par. 29, 173, 182.
    Under Civil Code Art. 1786, husband is liable for necessaries furnished wife, where he does not provide them.
    Appeal from Division “E,” Civil District Court. Hon. Wm. H. Byrnes, Judge.
    Action by Mrs. Clara Lopez against Jos. Pampalone.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Jos. T. Deynoodt, of New Orleans, attorney for plaintiff, appellant.
    Legier, McEnerny and Waguespack, of New Orleans, attorneys for defendant, appellee.
   JONES, J.

Plaintiff sues for one hundred thirty-eight ($138.00) dollars, alleged balance due for four months’ board and lodging furnished three minor children and wife at regularly assigned domicile while suit for separation from husband was being prosecuted in District Court.

The defense is two-fold — one legal, the other factual.

The former denies liability of husband on ground that the husband had ¡paid, during the period from April 14, 1924, to August 18, 1924, under a judgment of the Civil District Court fixing alimony, the sum of two hundred seventy ($270.00) dollars.

The latter denies that the board and lodging was furnished as alleged and specially avers that any assistance rendered to the wife and children by plaintiff was purely gratuitous, as plaintiff was the mother-in-law of defendant’s daughter and was then living next door to defendant.

There was judgment below for defendant and plaintiff has appealed.

The record in the separation suit shows the following;

The wife was allowed seventy-five ($75) dollars per month by the trial judge; that she was paid by the husband during the four months embraced in this suit the sum of two hundred seventy ($270.00) dollars; that the trial judge dismissed after hearing, several rules for contempt filed by the wife against husband on the ground that the husband had been slow in paying the alimony or had paid less than the allotted amount.

The record in this suit shows the following:

The total amount originally claimed by plaintiff was two hundred three ($203.00) dollars, but the wife had paid out of the alimony money furnished by the husband the sum of sixty-five dollars ($65.00), the minor children on account of proximity to their old home divided their time to some extent during these four months between their father’s house and the home of plaintiff.

Our conclusion on the legal question makes it unnecessary to consider the question of fact.

In the case o.f Schaeffer vs. Trascher, which had gene to the Supreme Court on a writ of review of this Court, decided on January 18, 1928, So. Rep. vol. 115, p. 574, a similar question was decided adversely to plaintiff. In that case plaintiff was endeavoring to collect from the husband a bill for furniture sold the wife during pendency of a separation suit on the ground that the husband was liable for necessaries furnished the wife.

Justice St. Paul, the writer of the opinion, after finding that the husband had vainly offered to the wife out of the common dwelling all necessary furniture, reaches the following conclusion:

“We do not think, that plaintiff is entitled to recover from the husband. Article 120, R. C. C., provides that the husband is obliged to furnish his wife with ‘whatever is required for the convenience of life, in proportion to his means and conditions.’ This, however, is simply the announcement of a principle of universal law as old as the dawn of creation and founded on the law of nature.
“Prom which it follows that a husband is liable for necessaries supplied to his wife when he himself fails or refuses to supply them. Van Horn vs. Arantes, 116 La. 130, 40 So. 592. But the reverse of this is equally true, to-wit, that the husband is not liable for supplies furnished to the wife when he himself is ready and willing to supply them. In the language of Chief Justice Best in Seaton vs. Benedict, 5 Bing. 28, 2 Smith’s Leading Cases, 491:
“ ‘A husband is only liable for debts contracted by his wife on the assumption that she acts as his agent. If he omits to furnish her with necessaries, he makes her impliedly his agent to purchase them. If he supplys her properly, she is not his agent, for the purchase of an article, unless he sees her wear it without disapprobation.’
“For, in such case, there is no necessity entitling the wife to pledge the husband’s credit. 30 C. J. 590. And it is quite immaterial that the authority of the wife to purchase necessaries on her husband’s credit, as well as the liability of the husband therefor, need not be based on any theory of agency on her part, express or implied, and that it suffices to say that it results from the duty to furnish necessaries, imposed on the husband by law as an incident of the marriage relation, and of his failure or refusal to perform that duty. For the authority for any one to perform that duty in his behalf, ex humanitate, towards the wife, can only arise when he himself fails or refuses to perform that duty. This rule compels the husband to pay in a proper case, and at the same time affords him some protection against the extravagance of a wife in purchasing what she does not need. Wanamaker vs. Weaver, 176 N. Y. 75, 83, 68 N. E. 135, 65 L. R. A. 529, 98 Am. St. Rep. 621.”

This view of the law is sustained by Article 1786 of the Revised Civil Code which provides that' the husband is presumed to authorize contracts of the wife for necessaries for herself and family where he does not provide them.

As the husband in this case has furnished to the wife what the trial judge evidently considered a reasonable amount for necessaries, after full consideration of all attendant circumstances, we do not think that the failure of the wife to pay her charge for board and lodging out of the money furnished her for that purpose makes the husband liable therefor. To hold otherwise would open the door to useless extravagance.

For above reasons the judgment is affirmed.