text:
    No. 10,677
    Orleans.
    BOWLES v. McGLASSON, Appellant
    (January 17, 1927. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Automobiles—Par. 6 (a).
    However much or long a chauffeur may deviate from the course of his employment in order to serve his own purposes, yet his employer will be liable if, on returning to his employer’s garage and on his way there, his chauffeur negligently runs into and injures another automobile.
    2. Louisiana Digest — Automobiles—Par. 6 (a).
    Nor will the employer be released by the circumstance that the chauffeur, at the time of the injury, had taken two persons in the automobile to drive them to a point on his return route.
    (Civil Code, Article 2315. Edltor’3 note.)
    Appeal from First City Court. Hon. Yal J. Stentz, Judge.
    Action by Joseph Bowles against E. W. McGlasson.
    There was judgment for plaintiff and lefendant appealed.
    Judgment affirmed.
    Robert Sere, Jr., of New Orleans, attorney for plaintiff, appellee. <
    Jno. May, of New Orleans, attorney for defendant, appellant.
   CLAIBORNE, J.

Plaintiff claims of defendant $292.50 for damages done to his automobile by defendant’s automobile driven by defendant’s chauffeur.

The plantiff alleged that on January .31, 1926, at about 3:45 a. m.,#his automobile was parked near the curbing on the right-hand side of Dryades street, between Josephine and St. Andrew streets, facing-downtown in the direction of Canal street; that while so parked he was run into by an automobile owned by the defendant, McGlagson, and driven at the time by Riley W. Coleman, his chauffeur, acting in the scope of his employment and with the consent of defendant; that at the time of the accident the defendant’s automobile was proceeding up Dryades street on the left side of the street contrary to the traffic laws; that the damage to plaintiff’s automobile was caused solely by the negligence of defendant’s chauffeur; that the damage amounted to $212.50 and plaintiff was deprived of the use of his automobile, causing him a loss of $80.00.

The defendant admitted that plaintiff’s automobile was run into and damaged in the manner, and at the time and place, stated in the petition, but denied all the other allegations; he “specially averred that at the time of the accident Riley W. Coleman was not driving said automobile within the scope of his employment in that he was driving said machine on a mission of his own and for the accommodation of himself and some friends or relatives which had no connection with his employment as chauffeur for the defendant, and that on the night of the accident the defendant was confined to his bed as the result of an attack of pneumonia; that he was in an unconscious condition and that he did not grant Riley W. Coleman, his chauffeur, permission to use his, defendant’s, automobile”.

There was judgment for plaintiff for $212.50 and the defendant has appealed.

The facts of the case are as follows:

The defendant’s residence was at the corner of Washington and Prytania streets, where he lay sick and unconscious on the day of the accident; Riley Coleman was his chauffeur and still is; on the night of January 31, 1925, at about eight o’clock, he got into the defendant’s automobile to drive home the defendant’s nurse, Mrs. Gage, with the permission of the defendant; they stopped on Louisiana Avenue, between Carondelet and St. Charles streets, where Miss Gage bought some apples which she told him to take to his wife at the Charity Hospital; when' he got there his wife was feeling bad; he picked up there his brother and sister-in-law; on his way home he stopped at his cousin’s house on Dryades street, between Julia and Howard Avenue; it was some minutes after four in the morning when he left; he left to put the ear in defendant’s garage; he took in his car his brother and sister-in-law, as they asked him to take them to Dryades and Jackson streets where they were going to take the street ear and he was going out St. Charles street to put up the car; it was on his way to the garage that he struck the plaintiff’s car while they were all three in his automobile; after dropping his sister and brother-in-law he intended to put up his car and then go to his house on Jackson, between Josephine and Willow; he had no understanding with the defendant as to what he was to do with the car after he deposited Mrs. Gage on Louisiana Avenue near Carondelet, as the defendant was unconscious; he had been ill several weeks before; Mrs. Gage was the nurse attending the defendant.

The following question was put to the chauffeur:

“Q. Did you take her to her home?

“A. No; she went to a market and bought. some apples and oranges for me to carry to my wife and I took. them to her and from there I took her home and then I took the car and brought the apples to my wife.”

Coleman does not sleep on the defendant’s premises, unless the latter is sick, when he sleeps there to be at hand. At the time of the accident he was showing his sister where his step-sister lived

Miss Marie Gage testified that she is a registered nurse; that she was engaged on December 27 to nurse the defendant, who was sick with pneumonia; he was very ill; on the evening of January 31 the defendant did not know what was going on; when she was relieved from duty she took defendant’s car; Riley always drove her homo;, she went to Hill’s grocery and bought some fruit for Bertha, defendant’s maid and Coleman’s wife, who was sick at the Charity Hospital, and she told Coleman to take it to her; Coleman took her home and she sent him to the hospital with the; fruit.

“Q. While you were in attendance at Mr. McGlasson’s residence you had full charge of the ear and house?

“A. Yes, I had the car at any time.

“Q. It was understood Riley was under your instructions?

“A. Absolutely.”

The insurance company denied liability “on the ground there was no agency”.

It was admitted that if examined as witness Baker and his wife would testify that they met Coleman at the hospital and went with him to his cousin’s house on Dryades street, between Julia and Howard, and that they left there at about 3:30 in the morning and that Coleman left them out at Jackson and Dryades.

The sole question in the case is whether the defendant’s chauffeur, Coleman, at the' time of the accident as contended by plaintiff was driving the car for defendant as his servant and within the course of his employment. C. C. 2320. If he was, then the defendant is liable; if he was not then the defendant is not- liable, C. C. 2320, 110 So. 324; Cusimano vs. Durnin, No. 7457 Orl. App.; Rapier vs. Troxclair, 1 La. App. 763.

It must be admitted that when the chauffeur, Coleman, started to drive Miss Gage, the defendant’s nurse, from the defendant’s residence to her own home he was acting within the course of his employment and in the interest of the defendant and with his permission. It may be assumed that after he reached the nurse’s home and when he drove the automobile ■ to the hospital, and thence to his cousin’s ■ residence on Dryades street, that he ceased to be acting for defendant and began to act for himself. But as soon as he left his cousin’s house and turned his car back towards its garage at defendant’s home, then he resumed his employment, for it was ! his duty to return the car to the garage 1 at his. employer’s home and he was so doing. It was after he left his cousin’s house, and while h'e was driving the car back to the garage as it was his duty to do that he ran into the plaintiff’s car. For his negligence in so doin.|j the defendant is. liable. In Cusimani vs. Spies, 153 La. 551, the court said:

“Master not liable for acts of servants in own interest.

“Masters’ liability reattaches when servant resumes duties.

“Master held liable when servant had fulfilled own purpose, and was returning to resume duties.”

Affirmed in Glass vs. Wise, 155 La. 477, 99 South. 409, wherein it was said: “To re-enter master’s business after deviation servant need not have reached zone of employment.” .

Nor does the fact that Coleman, at the time of the accident, had his two relatives in the automobile and was conducting them to a point on his way home affect the situation. Coleman was still driving returning to his employer’s garage.

We consider the two cases quoted above as binding upon us.

See also 39 C. J. 1285; Duffy vs. Hickey, 151 La. 274, 91 South. 733; 190 Mo. App. 105; Berry on Autos, p. 721,, 741-97 S. C. 171, 218 Mass. 17.

The amount of the damage done to plaintiff’s automobile is sufficiently established by the witness, Ray Houston. He testifies that it would cost $212 to repair plaintiff’s car, according to á detailed bill made by Reuther annexed to the petition. The defendant did not attempt to show that the bill was not necessary or reasonable.


source: Caselaw Access Project

author: WESTERFIELD, J.

license: Public Domain

text:
    No. 10,599
    Orleans
    ROBT. P. HYAMS COAL COMPANY, LTD., v. WEBSTER AND GLOBE INDEMNITY CO. OF NEW YORK
    (January 17, 1927. Opinion and Decree.)

      (Syllabus ty tí¡,e Court)

    1. Louisiana Digest — Builders and Buildings — Par. 30.
    Where, in a suit by a material man against a contractor, proof of delivery of the materials depends upon the testimony of the contractor, alone, it will be deemed sufficient to hold the surety in the absence of countervailing testimony.
    Appeal from First City Court, Section “C”. Hon. Wm. V. Seeber, Judge.
    Action by Robt. P. Hyams Coal Company, Ltd., against George W. Webster and Globe Indemnity Company of New York.
    There was judgment for plaintiff and defendant appealed.
    Judgment amended and affirmed.
    Jno. C. Foster, of New Orleans, attorney for plaintiff, appellee.
    Eugene D. Saunders, G. B. Harrison, Jr., of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

This is a suit by a material man against a building contractor and his surety. There was judgment as prayed for and the defendant, surety, alone appealed.

The contract and bond are admitted and the sole defense consists in the contention that the material is not shown to have been delivered to and used in the building, the contract for the erection of which was guaranteed by the surety.-

Only two witnesses testified, both on plaintiff’s behalf, the secretary of plaintiff’s company and the contractor. Defendant offered no evidence. We are convinced, as was the trial court, that the record proves the material of plaintiff went into the building covered by defendant’s bond.

It is true that this proof rests on the evidence of the contractor alone, and also that defendant surety company is more or less at the mercy of a contractor, as suggested by defendant’s counsel, under such circumstances. There is no suggestion of fraud, and if an honest mistake has been made we know of no way in which, a surety can avoid the consequences.

The lower court allowed $178.00, the face of plaintiffs’ claim, plus a penalty of 10 per cent as attorney’s fees under Act 225 of 1918, because of the failure of defendant to pay plaintiff’s claim within thirty days after written demand. We do not believe this is a proper case to impose this penalty and, therefore, for the reasons assigned, the judgment appealed from will be amended in this respect and otherwise affirmed.


author: MOUTON, J.

text:
    No.-
    First Circuit
    PENN v. JONES
    (Dec. 7, 1926. Opinion and Decree.)
    (Jan. 7, 1927. Rehearing Refused.)

      (Syllabus by the Editor)
    1. Louisiana Digest — Pleading—Par. 62, 80, 90.
    A petition may be amended before issue joined or demurrer or exception sustained. Exception no cause of action overruled.
    2. Louisiana Digest — Evidence—Par. 47; Marriage — Par. 11.
    Officer or minister is presumed to have made the return of marriage ceremony to the clerk as required by law.
    3. Louisiana Digest — Evidence—Par. 47; Marriage — Par. 11.
    Where the name of the parties to a marriage and that of the person who is claimed • to have been a party to the marriage are different, the presumption is that there was no marriage.
    4. Louisiana Digest — Evidence—Par. 24, 337.
    Parol proof to overcome a presumption should be of a convincing character.
    5. Louisiana Digest — Marriage—Par. 13, 14.
    When one marries, knowing nothing of a previous marriage of the other contracting party, the marriage is contracted in goo.d faith and produces civil effects. Civil Code, Articles 117 and 118.
    6. Louisiana Digest — Bastards and Natural Children — Par. 7.
    Where a mother recognizes her child as such and he lives with her to her death, he was an acknowledged natural child and had the right of inheritance from his mother.
    7. Louisiana Digest — Bastards and Natural Children — Par. 18, 21.
    Under Article 924 of the Civil Code an acknowledged natural child inherits from his mother.
    8. Louisiana Digest — Bastards and Natural Children — Par. 18.
    A natural child can take possession of his mother’s succession only by the order of the court. Therefore his vendees have no greater right. Civil Code, Articles 925 and 949.
    Appeal from the Parish of East Baton Rouge. Hon. W. Carruth Jones, Judge.
    Action by James A. Penn, et als., against John Jones.
    There was judgment for defendant and
    plaintiffs appealed.
    Judgment reversed.
    Cross & Moyse, of Baton Rouge, attorneys for plaintiffs, appellant.

      Justin C. Daspit, of Baton Rouge, attor-' ney for defendant, appellee.
   MOUTON, J.

James A. Penn, T. Jones. Cross and Hermann Moyse, instituted this suit claiming the ownership and right of possession to the southern one-half of a lot of ground, with improvements, situated in the City of Baton Rouge, in the following undivided proportions, viz: One-sixth thereof to Cross, one-sixth to Moyse, and two-thirds to Penn. Since the institution of the suit Dr. Murray has acquired Penn’s two-thirds interest', and has been substituted in the place of Penn as a co-plaintiff. Cross and Moyse are also claiming, as purchasers from Penn, who it is contended by all the claimants acquired the property by inheritance from his mother, Clara or Clarissa Penn, deceased.

EXCEPTION.

Defendant filed an exception of no cause of action to the demand of plaintiffs, who were permitted to amend their petition. Defendant contends that the amendment came too late. As it was allowed before issue joined, and as no demurrer or exception had been sustained prior thereto the amendment was timely and permissible. Godchaux vs. Hyde, 126 La. 187, 52. South. 269; First National Bank vs. Moss, 41 La. Ann. 232, 6 South. 25; State vs. Douglas, 34 La. Ann. 523; Police Jury vs. Martin, 140 La. 848, 74 South. 170. There ■ is no merit in this ' contention.

MERITS.

Plaintiffs contend that James A. Penn, from whom they derived their title, was the issue of the marriage of William Penn and Clara or Clarissa Penn or Payne and was therefore a legitimate child and who, as such, .was the lawful heir of his mother. In proof of this contention they claim that Clara or Clarissa was legally married to William Penn in 1869. In support of their contention that a legal marriage was contracted between these parties they offered in evidence a bqnd and license certificate which were issued by the clerk of court of East Baton Rouge in that year. The bond was signed by William Penn as principal with Nelson Skinner as surety.

The license authorizes the celebration of a marriage between William Penn and Clarissa Skinner, not Clarrisa Penn or Payne, the name of the mother of William Penn, author in title of the plaintiffs in this suit.

The record fails to show that any marriage was celebrated between William Penn and Clarissa Skinner, Clara or Clarissa Penn or Payne as there was no return of any marriage celebration appended to the license as required under the provision of Act 251, 1855, now embodied in Article 105, Civil Code. The license, it will be noted, was issued to William Penn and Clarissa Skinner. This name of Skinner is strikingly different from that of Penn or Payne. It is true that the mother of William Penn was known under the name of Clara or Clarissa, which preceded the name of Skinner in the license, but there was such a marked dissimilarity between Penn or Payne and Skinner that it is reasqnahle to presume the minister or officer to whom this license was presented, if it was ever presented to any minister or officer, refused or declined to perform the celebration of a marriage between William Penn and Clara or Clarissa Penn or Payne. If marriage had been celebrated between these parties under the names of William Penn and Clara or Clarissa Penn or Payne, and fqr that, even under the name of Skinner for Penn or Payne, it .would have been the bounden duty of the celebrant to have appended his return of celebration on the license which had been issued by the clerk. As such would have the duty of any officer or minister it must be presumed he would have made due return to the clerk as was required by law, an officer always being presumed to have performed his duty. Green vs. N. O. S. & G..I. By. Co., 141 La. 120, 74 South. 717.

The striking dissimilarity between the names of Penn or Payne and Skinner, the fact that no return was made of a marriage, create a strong presumption that no marriage was contracted between William Penn and Clarissa Penn, the mother of William Penn. To overcome this presumption plaintiffs have offered parol evidence to establish the marriage. In order to destroy such a presumption, the court said in 141 La. 120 — “where the facts were in many respects similar to those here presented — the parol proof should be of convincing character that the parties had entered into their relations with the intention of permanently assuming the responsibility of the marriage”.

Another significant fact is that under a license issued in 1872, Clara Payne was married to the defendant, John Jones. This license was issued from the clerk’s office of East Baton Rouge and due return was made thereon by the minister who celebrated the marriage. This marriage was solemnized only three years after it is claimed by plaintiffs that these parties were married under the license issued to William Penn and Clarissa Skinner. If Clarissa Penn had been married under this license to William Penn, it is not likely that only three years thereafter she would have ventured into another matrimonial alliance with John Jones and without first obtaining a divorce from William Penn, as no one is presumed to violate the law and is rather expected to observe his social duties.

The proof shows that William Penn and Clarissa lived together between the years 1869 and 1872, during which time James A. Penn, from whom plaintiffs acquired, was-born. This short alliance between them is rather suggestive of an illicit connection than of a marriage entered into with proper consideration of all the obligation that such a status imports. The verbal proof introduced to prove the marriage is based on the testimony of two sisters of Clarissa Penn, who said that they had heard of the marriage having taken place between William Penn and Clarissa. One of the sisters was about four years of age in 1869, when this purported marriage is claimed to have taken place, and the other was younger. Such evidence is of little, if of any value.

Other witnesses, as was also said by the two sisters of Clarissa, testified that Penn and Clarissa lived together as man and wife from the time it was said they had been married in 1869, up to the time they separated and Clarissa was married to John Jones, defendant. Testimony of this character is altogether insufficient to overcome the strong and weighty presumption to which we have referred, and we therefore hold that the eivdence fails to establish the marriage between William Penn and Clarissa Penn or Payne.

The record shows that John Jones was lawfully united in wedlock to Clara Payne in 1872, and lived with her until the time of her death in 1924. Even if Clara or Clarissa Payne had, at a prior time, been married to William Penn, we are convinced from a careful examination of the evidence that Jones had no knowledge of such a marriage when he married her, and that his marriage was contracted in good faith as was held by the district judge. It therefore produced its civil effects. C. C. 117, 118; Miller vs. Wiggins, 149 La. 720, 90 South. 109; Succession of Buissier, 41 La. Ann. 217, 5 South. 668. It is shown that James A. Penn, the son of Clarissa, was born during the period she was living in concubinage with William Penn. It is not disputed that James A. Penn, author of plaintiffs, was her child, that she recognized him as such and that he always lived with her to the time of her demise. Hence, James A. Penn, was an acknowledged natural child and had the right of inheritance from his mother. Lee vs. Cooper, 145 La. 145, 98 South. 869 Briggs vs. McLaughlin, 134 La. 134, 63 South. 851; Succession of Lacoste, 142 La. 673, 77 South. 497.

The proof shows that the property in contest was acquired during the existence of the community between Clarissa Penn, deceased, and John Jones, defendant, her surviving spouse. One-half belonged to deceased, and the other half belongs to defendant. The half which James A. Penn inherited from his mother as her natural child had been transferred by him to plaintiffs. James A. Penn being an acknowledged child is a descendant of Clarissa within the meaning of Acts 1910, page 93; No. 80, 1916, page 201. As such he fell heir to her one-half of the property as an acknowledged natural child, C. C. 924; Childers vs. Johnson, 6 La. Ann. 642, and to the exclusion of the defendant, her surviving husband, having transferred to plaintiffs his share in the property, they are the owners thereof in the proportion claimed in their demands, and are hereby recognized as such.

Their vendor, James A. Penn, being called to the succession of his mother, Clarissa, as a natural child, could take possession of the succession which had fallen to him, only by the order of the court of this parish, Civil Code, 1925, 949. His vendees have no greater right. As there may also be an inheritance tax due on the property transferred to plaintiffs, they should take possession subject to that tax if any exists, Bluefields S. S. Co., vs. L. P. C. Steamship Co. 133 La. 431, 63 South. 96. Plaintiffs must therefore be put in possession by order of court.

It is therefore ordered, adjudged and decreed that the judgment rejecting in totq the demand of the plaintiffs be avoided and reversed. It is further ordered and decreed that plaintiffs have judgment recognizing them as owners in indivisión to one-half of the southern one-half of a certain lot of ground, together with the buildings and improvements thereon, situated in that part of the City of Baton Rouge known as Suburb Swart and being the southern one-half of lot six (6) of square two hundred and fifty (250), as shown by the official map of the City of Baton Rouge, said half lot having a front on McClop Street of thirty (30) feet by a depth of one hundred and fifty-five (155) feet between parallel lines; and in the following proportions of the one-half of the southern one-half of said certain lot, viz: Two-thirds undivided interest therein to Dr. William C. Murray, one-sixth undivided interest to T. Jones Cross, and one-sixth undivided interest to Herman Moyse, co-plaintiffs in this suit; that the defendant, John Jones, be decreed the owner of one-half of the southern half of said lot instead of being decreed owner of the southern one-half thereof as was decreed below; it is further ordered that plaintiffs be relegated to an action to be placed in possession of their undivided shares by order of the District Court, subject to the inheritance tax if any there be. The cost of this appeal to be paid by defendant, appellee, those of the lower court to be paid in equal proportion by plaintiffs and defendant.


author: CLAIBORNE, J.

text:
    No. 10,063
    Orleans
    TITCHE v. HILLER, Appellant
    (Jan. 31, 1927. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Injunction—Par. 84.
    An injunction cannot be dissolved on rule on the ground that the allegations of fact as to the merits are not true.
    2. Louisiana DigesW-Injunction — Par. 97.
    Attorney’s fees cannot be allowed to defendant in injunction when it is dissolved after trial on the merits.
    3. Louisiana Digest — Attorneys—Par. 60.
    There is no law and no absolute rule fixing the value of attorney’s fees.
    4. Louisiana Digest — Attorneys—Par. 60.
    Courts will be guided but not governed by the opinion of attorneys concerning the value of professional services; they will themselves fix that value.
    5. Louisiana Digest — Attorneys—Par. 60.
    There is an esprit de corps among men of the same profession which prompts them to value their services at the highest figure.
    6. Louisiana Digest — Attorneys—Par. 60.
    Courts are guided by three elements in estimating the value of services rendered by attorneys: their quality, their quantity, and the value of the subject matter concerning which the services were rendered.
    7. Louisiana Digest — Attorneys—Par. 60.
    The value of attorney’s fees is not tested by success or failure.
    Appeal from Civil District Court. Hon. Wm. H. Byrnes, Jr., Judge.
    Action by Bernard Titche against A. J. Hiller.
    There was judgment for plaintiff and defendant appealed.
    Judgment amended and affirmed.
    Jos. H. Brewer, A. J. Prymire, T. J. Bartlett, of New Orleans, attorneys for plaintiff, appellee.
    Geo. J. Untereiner, of New Orleans, attorney for defendant, appellant.
   CLAIBORNE, J.

This is a suit for attorney’s fees.

The facts of the case are as follows:

One June 2, 1920, A. J. Hiller sold to H. P. Campbell certain lands situated in the County of Pontotoe, Mississippi, said to contain 160 acres; the price of sale was $4168, which was paid as follows: By assuming a mortgage of $1000 upon said lands and by the transfer and delivery by Campbell to Hiller of a promissory note of $3168 made by N. T. and W. D. Willis.

On June 21, 1920, Campbell filed a suit against Hiller for the rescission of said sale and for the return of the note of $3168. In his petition he alleged that he had purchased the lands without inspecting them, and upon the representations made to him by Hiller and his agents that the lands were situated within one mile from Pontotoe and that they were all level and under cultivation; that he visited the lands and has discovered that the representations made to him by Hiller were false and fraudulent to the knowledge of Hiller; that the truth is that said lands are situated about eleven miles from Pontotoe, and are hilly, and only twenty acres thereof are under cultivation, and are worth only a small part of the price which they would have been worth had they accorded with the representations; that the sale made by Hiller to Campbell is therefore null for fraud on the part of Hiller and error on the part of Campbell, and Campbell desired to have the sale rescinded on those grounds, to be relieved from the assumption of the mortgage of $1000, and to have returned to him the note of $3168, and that Hiller be enjoined from negotiating said note.

The injunction was issued as prayed for on a bond of $500.

In a supplemental petition Campbell alleged that although the price of sale in the act of sale was stated to be ten dollars, the truth was that the price was as above stated; that' in addition to the false representations hereinabove mentioned, Hiller represented to Campbell that there was a large crop of growing alfalfa uipon the lands and that they were entirely fenced in; while the truth was there was no alfalfa at all and very little fencing.

Hiller employed Bernard Titche, the plaintiff herein, attorney at law, to defend the suit.

Titche topk a rule to dissolve the injunction upon two grounds.

1st. No cause for the writ;

2nd. Insufficiency qf the bond in amount.

The rule was dismissed.

Titche excepted to the petition on the ground of vagueness and that it disclosed no cause of action, and that' the supplemental petition charged the substance of the demand.

Titche filed a four-page brief “in support of the exception of no cause of action”, and quoted Article 1847 of the Civil Code, and State vs. Dozier, 33 La. Ann. 1364; 39 S. E. 593, 2 Day (Conn.) qwi, 136, and 13 Wall. 379.

The exceptions were overruled.

Hiller then filed an answer. He admitted the sale to Campltell, and the price set forth in the petition, but denied all the other allegations of the petition and supplemental petition.

The case went to trial upon those issues.

As stated by Campbell’s attorney, “the main issue in the case is, therefore, whether or not the representations were made as alleged, and if so, what is their legal effect upon the rights of the parties”. The testimony in the case as to the representations which the plaintiff claims induced him to purchase the land, and with which the land concededly did not comply, is directly conflicting, and it will be necessary for the court to determine which side of this conflicting testimony it will accept as true, and having thus found the facts, to make a proper application of the law thereto. It is conceded that the plaintiff and the defendant never met directly either in the negotiations leading up to the sale or in the consummation of same, communications being through plaintiff’s (Campbell’s) brother' as an intermediary.

The plaintiff’s, Campbell’s, testimony consisted of the deposition of himself; of his brother, B. J. Campbell, in the real estate business in Memphis, operating under the name of B. J. Campbell and Company; of J. B. Hyde, manager of the Farm Loan Department of B. J. Campbell and Company, and of J. Wiley Móore, a bank cashier in Pontotoe County, Mississippi.

The defendant’s (Hiller) evidence consisted of the testimony of himself, which was given in open court, and of the deposition of a Memphis lawyer named Loch.

Mr. Titche wrote a two-page brief upon the fact. He argued the rule to dissolve the exception and the merits.

The questions of law was the same in all three.

There was judgment in favor of Hiller rejecting Campbell’s demand.

In the suit'under consideration plaintiff, Titche, sues the defendant, Hiller, for five hundred dollars, subject to a credit of one hundred dollars received as a retainer, as a fee for services by him rendered to Hiller in the above suit of Campbell vs. Hiller.

The defendant Hiller for answer, admitted the employment of Hiller, as stated in his petition, but denied any indebtedness to him for three reasons.

1st. That he was compelled to employ counsel to defend himself in the suit of Campbell against himself to whom he owed attorney’s fees, and that he was damaged in the sum of $310 as interest on the mortgage notes enjoined, both of which Titche failed to claim against Campbell who was an absentee;

2nd. That the plaintiff, Titche, agreed upon a fee of $100 for all services to be rendered by him;

3rd. That the fee claimed is excessive.

Hiller claimed $410 in reconvention.

There was judgment in favor of plaintiff for $400 rejecting the reconventional demand.

Hiller has appealed.

1st. The injuncton could not have been dissolved on rule as the validity of the injunction depended upon facts, the truth of which could be denied only upon the merits. 4 La. Dig. S. 82; New Orleans Water Wks. Co. vs. Joseph Oser & Co., 36 La. Ann. 918.

Attorney’s fees cannot be allowed to defendant in injunction when it is dissolved after trial on the merits. 4 La. Dig. S. 97, p. 45; 8 Orl. App. 342 (344).

Only those fees are allowed which have been rendered to set aside the injunction proper. Aiken vs. Leathers, 40 La. Ann. 23, 3 South. 357; Lemeunier vs. McClearley, 41 La. Ann. 412, 6 South. 338; Levert vs. Sharpe, 52 La. Ann. 602, 27 South. 64.

The defendant has not shown that he has suffered $310 damages or any damages at all.

2nd. It is not proven that Titche agreed to defend the case for $100. Hiller and his mother-in-law testify to that. They may have mistaken the amount of the retainer for the entire amount of the fee. Titche denies it. One hundred dollars was not in proportion to the value of the services and this circumstance and the opinion of the trial judge lead us to believe the defendant was in error.

3rd. Plaintiff and the attorney of Campbell place a value of $500 upon the serv-: ices rendered by plaintiff.

There is no law and no absolute rule fixing the value of attorney’s fees. Every ease rests upon its own facts. 6 Orl. App. 225.

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

“It is a rule long settled by this court that it will not be implicity governed in regard to questions relating to the value of professional services rendered to their clients by attorneys at law, by the opinion of legal men taken in evidence, but will be guided by a conscientious estimate of tbe value of tbe services performed, and will of itself, fix tbe amount' without reference to opinions of witnesses.” Castille vs. Caffery Central Refinery & Ry. Co., 48 La. Ann. 322, 19 South. 332; State vs. Perkins, 49 La. Ann. 312, 21 South. 839; Cullom vs. Mack, 21 La. Ann. 687; Succession of Wells, 24 La. Ann. 163; Succession of Jackson, 30 La. Ann. 463; Succession of Rabasse, 51 La. Ann. 604, 25 South. 326; Dinkelspiel & Hart vs. Pons, 119 La. 236, 43 South. 1018.

The reason of the rule is “that there is an ‘esprit de corps’ prevailing among men of the same profession which prompts them to value their services at the highest possible rate”. Central Glass Co. vs. Ins. Co., 13 Orl. App. 16 (23), and authorities quoted there.

The very learned opinion of Judge Fred D. King in State ex rel. vs. Bank, 49 A. 1060, 22 South. 207, was adopted by the Supreme Court. He said on page 1075:

“* * * and said Judge Eustis in the same case State vs. Mex. Gulf Ry. Co., 3 La. Ann. 518: ‘The responsibility of determining the amount of fees for professional services is a matter of great delicacy, and under the rules on which our predecessors and the profession have acted for years, a court in fixing them, must be guided by a conscientious estimate of their value.’ State vs. Union Bank, 4 La. Ann. 503.

“The courts presided over by Judge Martin and Judge Eustis adopted the following rules: ‘The measure of the reward of professional services is the exercise of legal knowledge, the responsibility incurred, and the labor bestowed’.”

The court adopted this language in Dinkelspiel & Hart vs. Pons, 119 La. 236, 43 South. 1018. See also 2 Orl. App. 209; In re. Succession of Labauve, 34 La. Ann. 1188.

In Breaux et al. vs. Trancke, 30 La. Ann. 336, the court said:

“Two factors enter into the calculation o.f fees for services such as those rendered by the plaintiffs. One is the extent and kind of service and the labor incident to its rendition, and the other is the ability of the party who is liable >to pay."

This opinion was adopted in Interdiction of Leech, 45 La. Ann. 195, 12 South. 126.

These cases were affirmed in Lea vs. Hart, 47 La. Ann. 1125, 17 South. 593. The court said:

“Much the same rule was stated in Succession of Linton, 31 A. 130, and in Succession of Mager, 12 Rob. 413. It was said that ‘the labor of an attorney * * * ought to be rewarded according to its nature, extent and degree of skill and care it demands’.”

In State vs. Union Bank, 4 La. Ann. 503, the court said:

“Counsel fees are in point of fact from their very nature, honorary, and not susceptible of an accurate appreciation in money.”

In the Succession of Percival, 138 La. 543, 70 South. 505, the court said.

“In fixing the fees of attorneys employed by executors, administrators, and other representatives of successions, the exertion of legal knowledge, the responsibility incurred, the labor bestowed, and the amount involved, constitute the principal factors to be considered.” 4 Cyc. 994.

In the Succession of Roth, 12 Orl. App. 168, this court, in line With the above authorities, said:

“Courts are guided by three elements in estimating the value of services rendered by attorneys: their quality, their quantity, and the value of the subject matter concerning which the services were rendered.”

1st. In the case of Campbell vs. Hiller, no complicated, abstruse, or difficult questions were presented. There was only one question of fact: whether the defendant had made false representations concerning the extent and quality of the lands sold by him; and only one question of law: whether those representations, if made, gave rise to a cause of action, the false representations referring to a condition which was apparent and governed by principles of general law enunciated in our Civil Code in Articles 1847 (1841) and 2521 (2497).

2nd. The quantity of the service consisted in filing and arguing an exception of no cause of action, writing a brief of four pages in support of its and quoting four authorities; filing a rule to dissolve the injunction on the same grounds, filing an answer, crossing five commissions to take testimony with practically the same questions; applying for a commission to take the testimony of a witness for the defendant; examining the defendant himself as a witness on the trial of the case and arguing the case; the trial having consumed only a few hours, and writing a brief of two pages on the merits.

None of these services required the exercise of more than ordinary talent learning and experience as a lawyer, nor occupied any length of time, nor much physical exertion.

3rd. The value of the subject matter was apparently of the value of $4168. But in reality the notes of $3168 were not worth par. The evidence is that Campbell settled the note for $750. The judgment of $449.93 against Campbell was worthless as he was “judgment proof”. So that the subject matter was really $1750 and not $4168.

Although Campbell’s lawyer, the only witness as to value, testified that the services of Hiller’s lawyer were worth $500, he testified that he sent a bill to his client for $250, which was never paid. There is no reason why the services of Hiller’s attorney should be worth more than those of Campbell. It is true that Campbell lost his case, but the value of an attorney’s fees are not tested by success or failure, but by the intrinsic worth of his services. Spring vs. Beaman ____ La. 64; Lacy vs. Lanaux, 19 La. Ann. 153; Lea vs. Hart, 47 La. Ann. 1125, 17 South. 593; Fenner vs. McCann, 49 La. Ann. 600, 21 South. 768; 4 Cyc. 983.

In the case of Bellington vs. Pointevent, 52 La. Ann. 1397, 27 South. 725, for dissolving an attachment for $2224.70 after appeal to the Supreme Court, the court allowed $200 fees.

We conclude, therefore, that' the amount allowed by the trial court is excessive.

It is therefore ordered that the amount of the judgment herein be reduced from four hundred dollars to two hundred dollars with five per cent per annum interest from February 21, 1924, till paid, and that in other respects said judgment • be affirmed. The costs of the District Court to be, paid by the defendant, and the cost's of appeal by the plaintiff.


author: LECHE, J.

text:
    No.-
    First Circuit
    GOTTLIEB v. SCHLOSS
    (December 7, 1926. Opinion and Decree.)
    (January 7, 1927. Rehearing Refused.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Evidence—Par\ 17. The court takes judicial notice of an identical question involved in another case between the transferee of this plaintiff and the same defendant.
    2. Louisiana Digest — Landlord and Tenant — Par. 118.
    In a summary proceeding for ejectment of tenant under Section 2155 of the Revised Statutes it is not necessary for plaintiff to allege that he had tendered to the defendant the unpaid and unmatured rent notes.
    3. Louisiana Digest — Landlord and Tenant — Pa’r. 44.
    A lease is not terminated by non-payment of the rent when due if the tenant had previously paid the rent upon demand made at his place of business and did not make the last payment because he was waiting for the collector, even though the rent notes were payable at a certain bank.
    4. Louisiana Digest — Landlord and Tenant — Par. 30.
    In a suit to recover possession of leased premises the rights of parties are gauged by the lease and not by the rent notes which had been assigned.
    5. Louisiana Digest — Landlord and Tenant — Par. 30.
    Under Article 2643 of the Civil Code, in order that an assignment of rent notes be effective against the debtor, the debtor must be notified of the assignment.
    6. Louisiana Digest — Landlord and Tenant — Par. 30.
    The assignee of a lease has no greater right than an assignor.
    7. Louisiana Digest — Landlord and Tenant-Par. 118, 119.
    A tenant is only bound to pay the rent notes when due if the landlord had presented them after they became due on previous months. . If the landlord afterwards institutes ejectment proceedings with rule to show cause under Revised Statutes, Article 2155, he exacts strict compliance with the written contract. Therefore, immediate payment by the tenant after being notified of the legal proceedings is a payment in due time.
    Appeal from the Parish of East Baton Rouge. Hon. Wm. Caruth Jones, Judge.
    Action by Lewis Gottlieb against Edward Schloss.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed.
    Cross & Moyse, of Baton Rouge, attorneys for plaintiff, appellee.
    Benton & Benton, Porter, Loret & Brooks, of Baton Rouge, attorneys for defendant, appellant.
   LECHE, J.

Plaintiff instituted the present ejectment proceedings under Section 2155, R. S., as amended by Act 45, p. 71, of 1918, obtained judgment in the District Court, and the defendant has appealed from that judgment.

Plaintiff filed in this court a motion to dismiss the appeal on the ground that the transcript of the testimony was not filed in this court with the original record upon which the appeal must be heard here, on or before the return day. In other words, we understand that he urges as ground to support his motion that, though the record was filed in due time, it was not at the time of its filing complete. It appears that, subsequently, the transcript of testimony was filed in this court and was made part of the record before the appeal was heard and submitted. It appears further from an affidavit on the part of the appellant that the delay was caused by the stenographer’s failure to transcribe his notes of the testimony in time to annex them to the record previous to the return day. The affidavit further shows that appellant used due diligence and, in fact, it is not questioned that the delay is not attributable to the fault of the appellant. See Franek vs. Brewster, 141 La. 1031, 76 South. 187. We do not believe that there is any merit in the motion, and it is therefor overruled.

The statute under which the present proceeding is instituted provides a remedy which is exceedingly summary and whicn is harsh in character. In order to avail oneself of it, as a condition precedent, it must appear that the lease has been terminated, whether by limitation, by nonpayment of the rent when due, or by some other cause. Mr. Justice Spencer, as quoted in plaintiff’s brief, said in Prudhomme vs. Walmsley, Manning’s U. C., p. 374:

“There are but three things to be considered in a suit for ejection of a lessee— is defendant the lessee, has the lease expired, was due notice given?”

In the present case the only question to be determined is whether the lease has expired.

We take judicial notice of the fact that this identical question is involved in the case of Mrs. Tobias (the present plaintiff being transferee and subrogee of Mrs. Tobias) vs. Ed Schloss, also defendant in this case. See Lambreth vs. Sentell et al., 38 La. Ann. 693; Paland vs. R. R. Co., 42 La. Ann. 291, 7 South. 899; Raymon vs. Villere, 42 A. 491, 7 South. 900.

In the case of Mrs. Tobias vs. Schloss the District Court maintained an exception of no cause of action and upon an appeal taken to this court by Gottlieb that judgment was reversed and the case remanded to the District Court for trial on its merits. The opinion and decree was rendered on October 4, 1926, at the same session when the present appeal was heard and submitted, and presumably that case is still pending and undetermined. There were grounds alleged by plaintiff for' annulment and avoidance of the lease, in the Tobias case, which are not pleaded in the present proceeding and, of course, whatever decree we enter in this case cannot become res adjudicata as to them.

After being served with a copy of the rule taken by plaintiff, ordering him to show cause why he should not vacate the leased premises, defendant properly and in accordance with the well-established rule that in summary proceedings a defendant should file all of his defenses at one time, appeared, excepted that plaintiff’s rule showed no cause of action, and at the same time filed his answer.

The exception was aimed at the fact that plaintiff had not alleged in his rule that he had tendered to the defendant the unpaid and unmatured rent notes. The district judge held that such an allegation was ' not necessary in an ejectment proceeding. Plaintiff in brief and argument suggests additionally that the want of tender must be pleaded in limine. The latter argument can have no application in a summary proceeding where a defendant must file all of his defenses at the same time. We are, however, of the opinion that the ruling of the district judge was correct. It may be that in the other case, tlxat of Mrs. Tobias vs. Schloss, an ordinary proceeding, it might be necessary for plaintiff to tender to the defendant the unmatured notes before he can obtain a decree to avoid and annul the lease, but upon that question we express no opinion. The present proceeding is not one to have declared and recognized the termination of the lease, but one which is instituted upon the theory that the lease has already actually been terminated for non-payment of the rent when due.

Upon the merits ot the present case the only question, as before stated in this opinion, is whether the lease has actually been terminated by non-payment of the rent when due.

The lease was entered into August 23, 1922, for five years, commencing September 1, 1922, and ending September 1, 1927. The cash consideration was represented by sixty promissory notes, each for one hundred dollars, payable respectively on the first of each month, beginning October 1, 1922, at the Union Bank and Trust Company in Baton Rouge. Plaintiff alleges non-payment of rent for the months of April and May, 1926, and upon that ground and under an express stipulation to that effect in the act of lease alleges that the lease has actually been terminated, and he prays that defendant be ordered to vacate the premises. The testimony shows that defendant, who is the nephew by marriage of Mrs. Tobias, the original lessor, had never paid any of his rent notes at the Union Bank and Trust Company on the first of the month as stipulated in the lease. It shows further that' Mrs. Tobias was in the habit of presenting the notes to defendant for payment at his office or place of business, at irregular times,’ from the first to the fourteenth of the month. That this course of conduct on her part was induced by the fact that defendant was her nephew and she never exacted of him the prompt and regular payment of the notes which she held as lessor, either at the time or place designated in the contract of lease.

Defendant offered and filed in evidence fifteen checks issued by him in payment of rent notes, previous to the months of April and May, 1926, at which time plaintiff alleges default in payment of rent. These payments were made subsequent to the first of the month, generally from nine to fourteen days after maturity of the notes. It is not alleged or shown that the rent notes were ever deposited in the Union Bank and Trust Company, but, on the contrary, it appears that Mrs. Tobias always retained custody and possession of same, presenting them for payment at defendant’s place of business at various times, as above stated.

The property under lease was transferred to Gottlieb, the present plaintiff, on April 1, 1926, and he was at the same time subrogated to all of Mrs. Tobias’ rights as lessor, became owner of the rent notes and was given possession of same.

Defendant, relying upon the well-established custom of his aunt, waited, for his notes to be presented to him for payment at his place of business and did not call at the Union Bank and Trust Company, nor did he make any offer of payment until June 4, 1926, two days after he had been served with the rule ordering him to show cause why he should not vacate the premises. No notice of any kind was given to him by Gottlieb and no demand was made upon him for payment of the notes previous to the service of the rule.

Plaintiff does not seriously contest the fact that Mrs. Tobias had, by her conduct, tacitly waived the stipulation in the lease requiring the payment of monthly rent to be made on the first of each succeeding month at the Union Bank and Trust Company and substituted therefor payment on demand at the defendant’s office, as might suit her own convenience. But he contends that this tacit change in the contract of lease does not affect his rights as an innocent third party.

It must be remembered that this is not a suit to recover the value of or penalties under the notes which are negotiable instruments, but a proceeding to recover the possession of leased premises; that the lease is not a negotiable instrument and that plaintiff’s rights must be gauged not under the notes but under the lease, an incorporeal right and a non-negotiable contract, which was expressly assigned to him. Such an assignment in order to be effective against the debtor must be notified to the latter. C. C. 2643. It is not pretended that defendant was notified of the transfer of the lease, and he was, therefore, justified in relying upon the custom established by Mrs. Tobias when she granted him the indulgence of paying his notes only when presented to him at his place of business.

We do not believe there is any doubt that Mrs. Tobias could, not have had the lease avoided and annulled for non-payment of the rent notes due May 1 and June 1, 1926, without having previously presented them for payment or without having notified defendant of her intention to require him thenceforth to make payment at the Union Bank and Trust Company, in strict accordance with the stipulations of the contract of lease. See Brewing Co. vs. Anderson, 121 La. 935, 46 South. 926. Plaintiff, as assignee of the lease, has no greater rights than his assignor. Gray vs. Thomas, 18 La. Ann. 412.

The fact that defendant paid the April rent note thirty-four days after it was due and the May rent note four days after its maturity is not relevant. He was under the change °of the terms of the contract only bound to pay when the notes had become due and were presented to him or when notified that the lessor demanded strict compliance with the original stipulations of the contract. When notified by the rule to show cause, that the landlord exacted strict compliance with the written contract, he immediately paid and.the payment was made in due time.

We do not believe that the lease was terminated by non-payment of the rent when due, as assumed by plaintiff for the purpose of this proceeding, and for that reason the judgment appealed from is avoided and reversed and this proceeding is dismissed at the cost of plaintiff.


author: W. CATESBY JONES, J.

text:
    No. 9505
    Orleans
    BENNETT v. BIJOU AUTO REPAIR CO.
    (January 17, 1927. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Reoonvention—Par. 19; Evidence — Par. 351.
    .When plaintiff admits indebtedness for one-half of the amount claimed in defendant’s reconventional demand and the preponderance of evidence is in favor of defendant as to remaining one-half, there will be judgment in favor of defendant for full amount claimed.
    2. Louisiana Digest — Sequestration—Par. 11.
    Sequestration will be dissolved where defendant proves that he has a lien on the automobile for an unpaid repair bill.
    Appeal from Division “A”, Civil District Court. Hon. Hugh Cage, Judge.
    Action by Clarence J. Bennett against Bijou Auto Repair Company.

      There was judgment for plaintiff and defendant appealed.
    Judgment amended.
    Arthur B. Leopold, Gerald Netter, of New Orleans, attorneys for plaintiff, appellee.
    H. W. Kaiser, of New Orleans, attorney for defendant, appellant.
   W. CATESBY JONES, J.

This is a suit filed December 21, 1922, by the owner for sequestration of a Premier Sport automobile, said to be worth $1250.00.

Defendant answers admitting ownership, but claiming a repair lien on the car for $319.45, under a verbal contract to overhaul running gear made about three months prior to sequestration.

Under the agreement defendant was to receive $100.00 for all labor involved and plaintiff was to pay for all parts and machinery work.

Defendant also filed a reconventional demand for that amount with recognition of its lien.

Attached to the answer is a bill in longhand on the letterhead of defendant addressed to plaintiff for $319.45, the chief item of which is machine work for $155.00. and also a bill on the letterhead of BishopEdell Machine Works, Inc., totaling $155.30, and reading: “To labor and material covering the machine work on Premier Motor as below specified.”

The judge below dissolved the sequestration and dismissed the reconventional demand of defendant as of non-suit with reservation of his right to file a new suit thereon and also to claim damages, if any, for wrongful issuance, of writ.

After this judgment was signed on November 14, 1923, defendant on January 10, 1924, took a rule against plaintiff to show cause why the automobile should not be returned to its custody. To this rule plaintiff filed exceptions, which were maintained on January 28, 1924.

On January 30, 1924, defendant took a rule against the civil sheriff to show cause why he should not restore the seized automobile to his custody. To this rule the civil sheriff filed exceptions, which were overruled.

On January 31, 1924, the civil sheriff filed a rule against plaintiff to show cause why he should not restore the automobile to that official, because plaintiff’s bond was defective. To this rule defendant filed an exception, which was maintained by the lower court on February 11, 1924.

Meanwhile on February 11, 1924, the rule of defendant against the civil sheriff was made absolute and he was ordered to deliver forthwith the automobile to defendant, and as this official failed to carry out the order on February 13, a rule for contempt was filed. Then on February 15, 1924, the civil sheriff took an appeal to this court from the decision of the lower court ordering him to restore the car to custody of defendant. This appeal is still pending in this court.

Plaintiff has filed an answer to the instant appeal asking that the judgment below be reversed insofar as it dissolves the sequestration.

Mr. Palms, a partner in defendant company, testifies that he made a verbal contract with Boudreaux, agent for plaintiff, for taking down and overhauling the running gear from top to bottom that he was to be paid $100.00 for labor and reassembling, but plaintiff was to furnish the parts and machine work; that defendant had no facilities for doing the machine work necessary; had employed the Bishop-Edell works and had paid them for their work on the car, $155.30;' that the car left the shop in perfect running order; that he lost money on the job.

Mandella, an employee of defendant for the past year, testified that he had operated machine shops of his own and had been engaged in automobile repairing for twelve years; that the bill of the BishopEdell Company for the machine work was reasonable.

Eumont, a witness for plaintiff, testifies that he had painted the car and been paid therefor; that he brought Boudreaux, plaintiff’s agent, into defendant’s shop and was present when contract was made.

Pages 2 and 3 of his testimony read as follows:

“Q. What was agreement?

“A. One hundred dollars for labor and they were to pay for all repair work.

“Q. Was anything else said?

“A. I do not remember.

By the court:

“Q. That is practically denying your other statement?

“A. If it was said I would have heard it and remember it?

“Q. How do you know you remember it?

“A. Well, he asked me if I remembered it and if I was present at the time and I said ‘yes’.

By the court:

“That kind of interrogation does not impress me. Ask the witness what took place.

By Mr. Leopold:

“Q. Was there not another agreement about painting?

“A. Yes, I made it.

By the court:

"That has been testified to. It has nothing to do with this ease on a contract.

By Mr. Leopold:

“Q. We want to refresh the witness’ memory. Tell us exactly who was present and what was said when Mr. Boudreaux brought that machine up to the Bijou Auto Repair Company?

“A. I went in and got Mr. Palms and he came out and made a contract with Mr. Boudreaux. They would pay for all labor and Mr. Boudreaux would pay for all parts.

“Q. Was that all you heard?

“A. Yes, sir.

“Q. And then you left?

“A. Yes, sir. "

“Q. With whom was that agreement made?

“A. Mr. Palms.

“Q. Was it made with Mr. Boudreaux?

“A. Yes, sir.

“Q. And you left?

“A. Yes, sir.

“Q. Was it $100.00 for parts?

“A. No, for labor.

“Q. How much for parts?

“A. They were to pay for all parts.”

On rebuttal Mr. Palms testified that Eumont was present, but did not hear the whole conversation and that *Boudreaux, who wanted to know the price before he touched the car, said: “We cannot make prices before we tear car down.”

Boudreaux testified that Eumont called Palms out about machine work and Palms said he could not fix price until he took engine down and then he asked him how much he would charge to do the work, if he (Boudreaux) furnished all parts at the factory and Palms said he would do the work for $100.00; that nothing was said about machine work, but all parts were to be gotten from factory, as Premier people had no agency here; that he had owned automobiles for several years; had done some little repairing in Bennett’s in back years; that defendant could have bought these parts cheaper from factory than he had them made at Bishop-Edell’s place.

On page 10 of Boudreauxs’ testimony, plaintiff’s counsel makes the' following admission:

“What I am trying to bring home to the court is this: The bill has been rendered for three items; one for $100.00, which we agreed to' pay; one for $59.85 for parts which we say we owe them; and when it comes to $155.00 for machine work, we say we do not owe it. The defendant is trying to shift his position now. He is charging for machine work and not for parts.”

On page 12 he testifies as follows:

“Q. You are not prepared to show the parts shown on this Bishop-Edell bill could be bought cheaper than repairing it and you are not prepared to say, are you?

“A. You could not buy new cylinders cheaper, but you could 'buy new sleeves cheaper.

“Q. Would not a new sleeve have to be ground?

“A. We fixed two in Covington in our front yard for $8.00.

“Q. There is nothing in the bill about sleeves?

“A. No. It says regrinding cylinders.

“Q. How do you know?

“A. Because it would be positively six or eight inches across there?

As plaintiff admits indebtedness of $159.85, defendant is clearly entitled to a judgment for that amount. This leaves a balance due of $159.50, and there is no dispute about the item of $4.50.

The sole question before us is whether contract covered the machine work done by Bishop Edell for $155.00.

We think the preponderance of the evidence and also of probability is with defendant on this point for three reasons:

1.Because plaintiff has failed to show that it would have been cheaper to buy all parts new from the factory than to have these parts repaired here, defendant lost money on job.

2. Because the evidence shows that defendant refused to make any estimate on cost of parts and confined his price of $100.00 strictly to ‘labor”, which must by all the dictates of common sense and every-day experience be held to mean only the labor furnished by him.

3. Because' the bill for the machine work is proved reasonable; the work was satisfactory.

For above reasons the judgment below is now amended and it is ordered, adjudged and decreed that there be judgment in favor of defendant, recalling and setting aside and dissolving the writ of sequestration therein issued and reserving to defendant all rights to claim such damages, if any, as issuance of writ may have caused him.

It is further ordered, adjudged and decreed that there be judgment in favor of defendant on his reconventional demand against plaintiff in the sum of $319.45, witn legal interest from judicial demand, and all costs.


text:
    No. 9483
    Orleans
    LONATRO, Appellant v. PALACE THEATRE COMPANY
    (November 29, 1926. Opinion and Decree.)
    (December 13, 1926. Rehearing Refused.)
    (February 1, 1927. Writs of Certiorari and Review Denied by Supreme Court.)

      (Syllabus by the Court)

    1. Louisiana Digest — pleading—Par. 80.
    A prayer by appellee to amend the judgment comes too late when filed on the day fixed for the argument of the case.
    2. Louisiana Digest — Pleading—Par. 62.
    A petition which charges injury to a patron sitting in the parquette of a theatre from a bottle falling from an upper tier disclosed a cause of action under proper allegations.
    3. Louisiana Digest — Theatres and Exhibitions — Par. (not yet listed); Hotels and Innkeepers — Par. 2; Carriers— Par. 28; Negligence — Par. 10.
    Theatres may be compared to innkeepers and as such are liable in the same manner as carriers.
    4. Louisiana Digest — Carriers—Par. 42) Negligence — Par. 41.
    The burden is upon them to prove that the injury occurred without negligence on their part.
    Appeal from Civil District Court, Division “B”. Hon. M. M. Boatner, Judge.
    Action by Mrs. Sal Lonatro against Palace Theatre Company, Inc.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    U. Marinoni, Jr., M. Provosty, of New Orleans, attorneys for plaintiff, appellant.
    P. M. Milner, of New Orleans, attorney for defendant, appellee.
   OPINION

CLAIBORNE, J.

This is a damage suit filed April 30, 1920, for an injury suffered in a theatre.

The plaintiff alleged that on May 4, 1919, she purchased a ticket and entered the theatre of the defendant company and occupied a seat assigned to her by the management in the parquette to witness a continuous show of vaudeville presented by the theatre company; that a short time after being seated and while looking at the performance -she was suddenly struck upon the head by an empty pop bottle falling from above without warning; that the severe blow provoked a flow of blood from which she suffered greatly, causing her damage in physical suffering to the extent of $10,000.

“Petitioner further represents that the defendant, as owner and operator of the theatre to which the public is invited, must use reasonable care not to create or permit conditions which endanger the persons of visitors or spectators who are in their proper places in seats provided for their use; that an accident in which a spectator, while sitting in the place provided by defendant and without any fault on the spectator’s part, is injured by a glass bottle falling from above, is of such a nature which' a prudent management of a theatre would have foreseen as a likely result of the condition created by defendant by which it sold, or caused, or allowed to be sold to other visitors and spectators in the balcony and higher tiers and in the proscenium boxes pop and soft drinks in heavy glass bottles; that defendant could easily have guarded against an accident such as the one in question, which common knowledge and experience shows is likely to result from a condition such as the one created or permitted to be created' in its theatre, by requiring the peddlers or sellers of the pop and soft drinks not to deliver the bottle itself to the purchaser, but to first empty the contents into collapsible paper drinking cups, and to give to the purchaser the contents and cups only, as was in fact done by the defendant after the happening of the accident in question. Plaintiff further averred that the accident was the direct result of the wanton negligence and carelessness of defendant, its servants and employees, in creating and permitting a cohdition which resulted in the injury to plaintiff, and that an accident such as the one in question, resulting from conditions such as the one existing in the defendant’s theatre is of itself proof of negligence on the defendant’s part.”

The defendant excepted to the petition on the ground “that this, the same suit, by the same plaintiff against exceptor filed August, 1919, under the number 12817, entitled Mrs. Sal Lanatro vs. Palace Theatre Co., Inc., which was dismissed by the Hon. Hugh C. Cage, Judge of Division "A” of this court upon an exception of no cause of action on the — day of-, 1920; that the cause' of action and the facts alleged áre the same, exceptor pleads res adjudicata as the plaintiff has never appealed from said judgment, and the same is now final by the lapse of over one year”.

Judgment was rendered November 15, 1923, overruling the exception of res adjudicata, and maintaining the exception of no cause of action.

Prom this judgment the plaintiff alone has appealed.

This appeal was fixed for trial in this court for November 16, 1926. Upon that same day the defendant appellee filed in this court an answer praying “that the judgment rendered be amended by sustaining the exception of res adjudicata as well as the exception of no cause of action”.

This answer comes too late.

C. P. 890. But if he (the appellee) demand the reversal ’ of any part, or damages against the appellant, he shall file his answer at least three days before that fixed for the argument, otherwise it shall not be received. Act 103 of 1908, p. 161, La. Dig. S. 499, p. 521; Bonnin vs. Town of Crowley, 112 La. 1023, 36 So. 842; Hammond Oil & Development Co. vs. Feitel, 115 La. 132, 38 So. 94; Gartner vs. Richardson, 123 La. 195, 48 So. 886; Union Sawmill Co. vs. Arkansas Southeastern R. R. Co., 126 La. 555, 49 So. 173; La. Land Co. vs. Blakewood, 131 La. 539, 59 So. 948; Crusel vs. Brooks, 133 La. 477, 63 So. 114; Stevens Co. vs. Board of Education, 136 La. 1013, 68 So. 109.

“A prayer by the appellee to amend the judgment comes too late when filed the day fixed for the argument of the case.” Reed vs. Corbin, 115 La. 137, 38 So. 942; Shreveport Natl. Bank vs. Maples, 119 La. 43, 43 So. 905; Union Sawmill Co. vs. Ark. S. E. Ry. Co,. 123 La. 555, 49 So. 173.

There remains only one question; whether the petition discloses a cause of action. In considering this question we must assume that all the allegations of fact of the petition are true.

. The petition alleges as a legal proposition which cannot be controverted “that the defendant as owner and operator of a theatre to which the public is invited must use reasonable care not to create or permit conditions which endanger the persons of visitors or spectators who are in their proper places in seats provided for their use”. Schmidt vs. N. O. Rys. Co., 116 La. 323, 40 So. 714; 138 N. Y. S. 34; 84 C. C. A. 126; 156 Fed. 100; Law of Motion Pictures by Frohlich 102; 31 Ind. App. 695, 68 N. E. 909; 116 N. Y. S. 1051; 83 Minn. 40; 78 Misc. Pep. 383, 138 N. Y. S. 364; 69 Wash. 638; 42 L. R. A. A. N. S. 1070; 125 Pac. 941; 84 C. C. A. Stair vs. Kane, 126 Fed. 100; 3 H. and C. 596, 139 Fed. 528; 1 L. R. A. N. S. 533; 74 Misc. (N. Y.) 463; 132 N. Y. 373.

It alleges as a question of fact and as a corrollary of the above legal 'proposition “that an accident in which a spectator, while sitting in the place provided by defendant and without any fault on the spectator’s part is injured by a glass bottle falling from above is of such a nature which a prudent management of a theatre would have foreseen as a likely result of the condition created by defendant by which it sold, or caused or allowed to be sold to other visitors and spectators in the balcony and higher tiers and in the proscenium boxes, pop and soft drinks in heavy glass bottles, that defendant could easily have guarded against an accident such as the one in question which common knowledge and experience shows is likely to result from a condition such as the one created or permitted to be created in its theatre”.

We must therefore assume as true that the defendant “sold, or caused or allowed to be sold,” within the theatre and in the higher tiers pop in heavy glass bottles, and that an accident such as the one described in the petition from common knowledge and experience was likely to result from such a practice”. These allegations, in our opinion, disclose a cause of action. If they are not true it is a matter of defense in an answer to the merits. The burden would then lie with the defendant to prove that the pop in bottles was not sold by them or with their authority, or, if so sold, that no accident of the sort had ever occurred, or could have been reasonably anticipated.

The responsibility of managers of theatres may be compared to that of lessors or innkeepers, and the responsibility of a carrier is compared to that of innkeepers. C. C. 2751.

The converse of the proposition must be true. It is the jurisprudence that when a passenger'is hurt upon a train the burden is upon the carrier to prove that the injury was not caused by its negligence. Hopkins vs. N. O. Ry. & Lt. Co., 150 La. 61, 90 So. 512; Gooman vs. N. O. Public Service, No. 9041 Orl. App.

“It is an implied condition on their (railroad) part with each passenger that the latter will not be put in jeopardy of life or limb by any fault, even the slightest, of the servants of the company”. Idem.

In cases where the plaintiff cannot be expected to have any information as to the cause of the accident, whereas the defendant must be presumed to be fully informed on the subject, and when the accident is of the kind which ordinarily does not occur when due care has been exercised, the rule of evidence is that the accident speaks for itself, res ipsa loquitur, that is to say that a presumption of negligence arises from the fact itself of the accident. In such cases the plaintiff not only need not allege the particular acts of omission or commission from which the accident has resulted, but need not even prove them. The accident itself makes out a prima facie case, and the burden is on the defendant to show absence of negligence. Idem; Lykiardopoulo vs. N. O. & C. R. Light & Power Co., 127 La. 309, 53 So. 575; 166 N. Y. 188; 52 L. R. A. 992; 73 Wash. 338; 132 Pac. 39; 2 Cooley on Torts 1424, 30 Ed.

The judgment is therefore reversed and the case remanded for trial upon its merits.


text:
    No. 10,637
    Orleans
    UNION TITLE GUARANTEE CO, Appellant, v. PERKINS
    (Jan. 17, 1927. Opinion and Decree.)

      (Syllabus by the Court)
    1. Louisiana Digest — Prescription — Par. 87.
    The claim of plaintiff herein for preparing an abstract of title and issuing a title guaranty policy in favor of a mortgagee is not prescribed by three or five years.
    Appeal from City Court. Hon. W. V. Seeber, Judge.
    Action by Union Title Guarantee Company against Robert J. Perkins.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed and case remanded.
    Dufour, Goldberg & hammer, of New Orleans, attorneys for plaintiff, appellant.
    C. A. Latham, of New Orleans, attorney for defendant, appellee.
   CLAIBORNE, J.

This suit for $252.50 is based upon the following instrument:

“New Orleans, La., March 31, 1921.

“The undersigned hereby applies to the Louisiana Abstract and Title Guarantee Co. for a guaranty of title in its usual form in the sum of $8000, to the lands hereinafter described, and agrees to pay therefor its published schedule rates.

Guaranty fees __________________________$250.00

R. S____________ 2.50

$252.50”

Then follow a description of the property and other conditions not necessary to this case.

“Party to be guaranteed Industrial Homestead Assn, as mortgagee.

“(Signed) ROBERT J. PERKINS.”

Plaintiff alleged that its corporate name was then the Louisiana Abstract and Title Guaranty Co.; that it prepared an abstract covering said property, examined the same, and in due course, issued its mortgage guarantee policy No. 3641 in its usual form for the sum of $8000, which policy was on June 9, 1921, delivered to and received by the Industrial Homestead Association to • whom it was sent pursuant to the aforesaid directions of defendant; that defendant has failed to pay said $252.50.

Defendant excepted “upon the ground the plaintiff’s claim is barred by the Statute qf Limitatiqns; and exceptor especially urges, the exceptions of five years prescription under C. C. 3542, and three years prescription under C. C. 3538, in bar of plaintiff’s demand”.

The trial court maintained the plea of prescription of three years and dismissed plaintiff’s suit.

The plaintiff appealed.

The prescription of five years is clearly inapplicable, as there is no demand here for the nullity or rescission of any contract, testament or other act, nor for the reduction of a donation, nor for the rescission of any partition.

Nor does Article 3538 apply as to a suit on an open account.

The contract between the parties to this suit was that in consideration of $252.50 the plaintiff would guarantee defendant’s title in favor of the Industrial Homestead Association as mortgagee. It was a contract of guarantee. The consideration of defendant’s obligation to plaintiff was not for labor, nor for the price of goods, nor for the services, nor for any of the considerations mentioned in C. C. 3538.

Prescription cannot be extended by analogy from one subject to another. Police Jury vs. McDonough, 10 La. Ann. 395; Cooper vs. Harrison, 12 La. Ann. 632; Garland vs. Estate of Scott, 15 La. Ann. 143; Flash, Hartwell & Co. vs. N. O. J. & G. N. R. R. Co., 23 La. Ann. 353; Knoop, Hanneman & Co. vs. Blaffer, 39 La. Ann. 23, 6 South. 9; John Chaffe & Sons vs. Walker, 39 La. Ann. 39, 1 South. 290.

The prescription pleaded must come clearly under one of the provisions of the law.

In the case of N. O'. I. and G. N. Rrd. vs. Estlin, 12 A. 184, defendant was' sued for a balance of subscription to the stock of the company. The defendant pleaded prescription of three years on “open accounts”. The court rejected the plea and said:

“But that defendant was not sued upon an ‘open account’; the demand is based upon an express and written contract. The defendant’s subscription bound him to pay a liquidated sum.” Idem. 388-527; 4 Wall. 650.

In Reddick vs. White, 46 La. Ann. 1198, 15 South. 487, the court in passing upon the plea of prescription of three years said, on p. 1207:

“That prescription refers to accounts for goods sold, and merchants’ accounts against their principals, and generally to those business or other relations in which accounts are usually kept.”

The following claims are not prescribed by three years:

Commissions due an agent or broker. Sullivan vs. Williams, 2 La. Ann. 878; Police Jury vs. Succession of McDonough, 10 La. Ann. 395.

Expert fees. Dunbar vs. Murphy, 11 La. Ann. 713. A loan of money evidenced by a due bill. Campbell vs. Nicholson, 3 La. Ann. 461; Garrahan vs. Curley, 11 La. Ann. 462; Dyer & Stevenson vs. Drew, 14 La. Ann. 657; Collins vs. Roy, 15 La. Ann. 639; Garland vs. Estate of Scott, 15 La. Ann. 143; Boedicker vs. East, 26 La. Ann. 213.

A claim for board by one not in the business. 33 A. 621. Amounts due to a contractor. Brown vs. Staples, 138 La. 242, 70 South. 529.

The assumption of a debt. Bryson Lbr. Co. vs. Kerlin, 143 La. 242, 78 South. 482; Succession of Guillemin, 2 La. Ann. 636.

Architect fees. 13 Qrl. App. 293.

It is therefore ordered that the pleas of prescription of three and five years be overruled; that the judgment appealed from be reversed and set aside, and that this case be remanded for trial according to law.

The costs of appeal to be paid by the defendant and appellee, and the costs of the trial court' to await the final judgment herein.