text:
    No. 10119
    Orleans
    ARTHUR STEWART v. SECURITY INDUSTRIAL LIFE INSURANCE COMPANY, Appellant
    (November 30, 1925, Opinion and Decree)

      (Syllabus by the Court.)

    1. Louisiana Digest—Insurance—Par. 122.
    A provision in an indemnity policy against liability “for injuries of which there shall be no visible marks or evidence cannot successfully be pleaded in suit for recovery under the policy where a preponderance of expert evidence from physicians examining the assured is to the effect that such injuries are apparent.
    2. Louisiana Digest—Insurance—Par. 122.
    “An objective symptom is one which may be ascertained by a physician by any of his senses.”
    3. Louisiana Digest—insurance—Par. 122.
    Recovery for double indemnity and attorney’s fees will be disallowed where the appellate court is not satisfied that payment of indemnity has been delayed “without just and reasonable grounds such as to put a reasonable • and prudent man on his guard”.
    Appeal from the First City Court, Section “C”. Hon. William Y. Seeber, Judge.

      This is a suit for indemnity insurance against an insurance company and for reasonable attorney’s fees.
    Judgment for double indemnity for plaintiff and attorney’s fees in the sum of $25.00.
    Defendant appealed.
    Judgment amended and affirmed granting single indemnity and no attorney’s fees.
    Gordon Boswell and Milo B. Williams, of New Orleans, attorneys for plaintiff, appellee.
    William A. PorteouS, of New Orleans, attorneys for defendant, appellant.
   BELL, J.

Plaintiff sues the defendant, an indemnity insurance company, under a policy providing for weekly indemnity during period of disability at the sum of $7.00 per week. The claim is for fourteen weeks at $7.00 per week, but the amount for which this suit is brought is based upon double indemnity under Act 310 of 1910, and for reasonable attorney’s fees. There was judgment for the total amount claimed, and the trial court allowed attorney’s fees in the sum of $25.00. Defendant has appealed.

Plaintiff, who is a longshoreman, was injured while loading a vessel in the harbor of New Orleans. While so engaged, he was struck in the back by a sling of flour being loaded into the hold of the ship. It is contended that disability, due to his injuries, still existed at the time the suit was filed, and, under the terms of the policy, plaintiff prays for reservation of his rights to prosecute the claim for any additional benefits which may be due him during disability.

Defendant answers by admitting that assured is covered by the policy described, but denies all liability. It denies that defendant has sustained any injury, or that there are any visible marks or evidence of the injuries claimed by him. It is further contended that under the provisions of the policy plaintiff was obligated to permit physical examination by a physician of defendant’s choosing, and that having so refused examination, plaintiff is barred from recovery.

The claim made by plaintiff herein for double indemnity and attorney’s fees is contested on the ground that Act 310 of 1910 is unconstitutional. It is contended finally that if defendant is liable at all, it is only for the weekly indemnity, as stipulated in the policy.

The accident, as described, has been fully established by the evidence. Witnesses for the plaintiff consist of himself and two doctors who examined plaintiff immediately after the accident. Dr. F. T. Jones, a colored physician, testifies that plaintiff was brought to the Flint-Goodrich Hospital, in the city of New Orleans, of which witness has been the house surgeon for many years, and that upon examination he found plaintiff to be suffering from contusions of the back; that he complained of extreme pain in his right side, and that these pains were due, in his opinion, to the severe contusions caused by some severe blow to plaintiff’s back. This witness, as required by the terms of the policy, issued weekly certificates to the plaintiff, in which it was stated that the extent of his injuries were contusions and sprains. It is further testified by Dr. Jones that he reached this diagnosis by objective symptoms, and that there were positive physical evidences of the injury referred to at the time plaintiff was brought to the hospital and while he remained there. It appears that plaintiff’s back was strapped by the physician who later attended him, and that six weeks thereafter it was still strapped, when the president and also the general manager of the defendant company called at plaintiff’s residence for purposes of examining him in regard to his claim. It further appears that three weeks’ indemnity was recognized and paid by the defendant company, without contest of any sort.

Dr. Muir Bradburn, a graduate of Tulane University and a practitioner in New Orleans since 1912, corroborates Dr. Jones’ testimony as to the extent of the injury, and from his testimony we further gather that he found, as the physician subsequently treating plaintiff, that he was suffering from arthritis, superinduced by obvious contusions. Dr. Bradburn testifies that at the time of the trial in the city court, May 13, 1925, plaintiff was still under his treatment. Both of these expert witnesses are in accord as to the contusions from which plaintiff was suffering and which seem to us to have been the principal extent of his injuries. There is no evidence that the continued disability which both of these physicians declared to have existed up to the time of the trial of this case was otherwise than as stated by them, and we must take .the record in this respect as we find it.

Defendant’s witnesses were Dr. D. L. Watson, president of the defendant company and holder and owner of the majority of the stock of said company; also James E. Bell, general manager of the company. It appears from their testimony that some time after approving plaintiff’s claim for three weeks’ indemnity, these officers of the company called at plaintiff’s residence and requested of him that he permit them to examine his injuries, but that he was extremely surly to them and refused the examination, a fact upon which the defendant relies as one of its grounds for refusing to recognize or honor the other weekly claims made by plaintiff for indemnity. Dr. Watson and Mr. Bell both admit that they were unable to ascertain the extent of plaintiff’s injuries, and that they made no further effort to examine him. Plaintiff testifies that when these officers of the company called on him he refused examination by them simply because his back had been strapped by his own physician, and that he told each of them he would be willing to submit to an examination in the presence of or upon consent of his own physician. We think his refusal under these conditions was entirely justified. ■ On the other hand, while of the opinion that the defendant company might have made additional effort to examine the plaintiff, we do not conclude from their failure to do so that their refusal to pay the subsequent weekly indemnities was without just and reasonable grounds sufficient, to justify the award of double indemnities claimed in plaintiff’s petition. The refusal to recognize plaintiff’s entire claim appears to us to have been somewhat justified, for the reason that Dr. Jones’ weekly certificates were to the effect that plaintiff was suffering from not only contusions hut sprains. The latter injuries were specifically, nominated in the policy as injuries for which indemnity could not he recovered. Dr. Bradburn explains the payment of the first three certificates by stating that he had just taken over the company and become an officer therein when these certificates were presented for payment, and that the office was .in unusual confusion under the reorganization, and these claims were paid without serious investigation. The right to question the plaintiff’s injuries, or the extent thereof, at any time, is reserved by the terms of the policy.

Dr. Jones’ testimony, corroborated by Dr. Bradburn, convinces us that the contusions and disabilities complained of were obvious symptoms quite possible of determination by physical, if not visual, examination, and we conclude, therefore, that inasmuch as the testimony of these attending physicians has not been rebutted in any manner, plaintiff must recover for the indemnity allowed under the policy as long as proof of disability can be established. This court has previously determined, in the case of Virgin vs. Porkert, 7530 Orl. App., that an objective symptom may be ascertained by a physician through the exercise of his senses, either physical or visual. We have also decided, in the case of Mack vs. National Life Insurance Company, No. 9462, “that external evidence of injury means that the cause of the injury must be external but not necessarily the injury itself.”

We are of the opinion that the judgment should be amended, disallowing double indemnity and attorney’s fees. We find no occasion to pass upon the constitutionality of Act 310 of 1910. The claim for fourteen weeks’ indemnity at $7.00 per week should be allowed, with reservations as to future weekly indemnity, should disability continue.

It is therefore ordered that the judgment appealed from be amended to read as follows:

It is ordered, adjudged and decreed that there be judgment in favor of Arthur Stewart, plaintiff herein, and against the Security Industrial Life Insurance Company, in the sum of ninety-eight dollars ($98.00), with legal interest on each weekly payment from the date due until paid, with reservation to plaintiff of the right to prosecute claim for any additional benefits due under policy No. 32528 issued by the defendant, and covering continuing disability, if any, from February 26, 1925, until paid. Defendant to pay all costs.

Judgment amended and, as amended, affirmed.


source: Caselaw Access Project

author: BELL, J.

license: Public Domain

text:
    No. 10,210
    Orleans
    GLOBE CONSTRUCTION COMPANY, INC., v. DR. J. S. HUHNER, Appellant
    (November 30, 1925, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest—Bills and Notes— Par. 216.
    Where the maker of a note pleads that he was induced, to sign same by fraudulent misrepresentations made by the payee’s agent, the burden is upon him to establish such a defense by convincing proof.
    Appeal from the First City Court. Hon. William Alexander Bahns, Judge.
    This is a suit for the collection of a promissory note.
    Judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    H. M. Ansley, of New Orleans, attorney for plaintiff, appellee.
    Martin E. Kranz, of New Orleans, attorney for defendant, appellant.
   BELL, J.

This is a suit brought on a ninety days’ promissory note which defendant admits having signed and executed in favor of plaintiff for the sum of $210.00, with interest and attorney’s fees, as therein stipulated. The consideration of the note is the unpaid balance of the purchase price of twenty-eight shares of stock in the plaintiff company at par value of $10.00 per share, or the total sum of $280.00, upon which cash payment of $70.00 was made by the defendant at the time of the execution of the note on March 14, 1923. Defendant filed exceptions of no cause of action, and at the same time, by way of special defense, pleaded that he was induced to execute the note and to buy the stock aforementioned upon false representations of plaintiff’s sales agent, who, with plaintiff’s knowledge and authority, represented to defendant that the plaintiff company was about to be taken over by another corporation or syndicate, and that the latter would purchase, at date of the contemplated consolidation, all outstanding stock of the plaintiff1 company at $14.00 per share, that is, at an advance price of $4.00 per share over that which defendant, as a subscriber, would have to pay; that this agent further advised defendant that the plaintiff company was only offering its stock to old stockholders, and that the placing of a deposit in cash on the stock, and the signing of a promissory note for the balance of the purchase price, would place the stock in the name of purchaser and that, consequently, the syndicate taking over said stock at the time of the transfer would be bound to pay the holders, in accordance with the plan, a profit of $4.00 on each and every share purchased prior to the amalgamation, and that the names of those stockholders appearing on the books at the time of the merger would secure this benefit; that the agent further represented to defendant that the plaintiff company would never attempt to collect the unpaid balance due on the stock subscribed for, and as represented by the note as given, but that said company would hold said note simply for the purpose of displaying to the syndicate company proof of the purchase' of the stock. It is finally alleged that these representations as made by the agent of the plaintiff company were fully vouched for and approved by the -president of said company.

Defendant’s own testimony is the only evidence which we are able to find in the record in any manner supporting the defense here offered. Three other witnesses for defendant testified that agents offering stock for sale made such representations similar to those contended for by defendant, but none of those witnesses are able to give the names of such agents, nor do any of them undertake to state that the particular agent, Mr. Mazur, whom defendant says solicited him, was the agent who also solicited them, for purchase of stock. This evidence, in our opinion, is immaterial and irrelevant and of no' probative value whatever.

Both the president and vice-president of the plaintiff company swear positively that they never authorized or knew of such representations being made in respect to the sale of the company’s stock. The burden of proving the alleged fraudulent misrepresentations lies wholly with the defendant, and the law requires that in such cases abundant and convincing proof of such fraud must be established. The charge, if fully substantiated, would not, in our opinion, redound to the credit of defendant. He admits that he signed a negotiable instrument which, under the conditions contended for, he would feel at liberty to repudiate. In Harvey vs. Nolan, et al., No. 8105 Orl. App., this Court has held:

“One who voluntarily affixes his signature to a written instrument obligates himself to the very tenor thereof, and he will not be permitted to say that he did not intend to so obligate himself, but, meant to bind himself only conditionally, or even not at all. Signatures to obligations are not mere ornaments, and parties will not be relieved therefrom, simply because they did not know or did not intend what they signed.”

It is a significant fact that though defendant was a stockholder in the plaintiff company at the time he was solicited concerning the purchase of additional shares, he never availed himself of the opportunity or privilege accorded him as a stockholder to investigate the company’s affairs or to verify the alleged plan for amalgamation of the company. As already noted, it is alleged in defendant’s answer that the president of the company vouched for, approved and corroborated the representations of the agent. Defendant offers no evidence whatever to support this averment; on the contrary, he testifies, on cross-examination, as follows:

“Q. You signed the note and gave it to Mr. Mazur?
“A. Yes, sir.
“Q. At the same time you signed that subscription blank you signed the note?
“A. Yes, sir.
“Q. And you gave it to Mr. Mazur?
“A. Yes, sir.
“Q. Did you at any time from the date that you gave that note until that note fell due—did you go to see the Globe Construction Company or consult with any of its officers with reference to the statements of this salesman?
“A. No, sir, I did not.
“Q. You'waited until the note was due?
“A. Positively.
“Q. And then you made this statement to the company?
“A. Yes, sir.”

The judgment appealed from should be affirmed. It is so ordered.


author: WESTERFIED, J.

text:
    No. 9145
    Orleans
    J. BODINGER REALTY CO., INC., v. TULANE INVESTMENT CO., INC., ET AL., Appellant
    (January 4, 1926, Opinion and Decree.)

      (Syllabus by the Court.)

    1.Louisiana Digest—Petitory and Possessoi—Par. 69, 70.
    A plaintiff in a possessory action will be allowed reasonable rent as damages, when it is shown that the defendant was responsible for the unlawful occupancy of the premises.
    Appeal from the Civil District Court. Hon. Percy Saint, Judge.
    This is a possessory action coupled with a demand for damages. There was judgment for plaintiff maintaining its possession and awarding damages for rent alone. The defendant, Tulane Investment Company, alone appealed. The defendant, Green, did not appeal.
    Judgment amended and affirmed.
    W. J. Hennessey, of New Orleans, attorney for plaintiff, appellee.
    F. F. Teissier, of New Orleans, attorney for defendant, appellant.
   WESTERFIED, J.

This is a possessory action coupled with a demand for damages itemized as follows:

1. Loss of rental from June 1, 1922, to May 31, 1923, at $20.00 per month ................................................$240.00
2. Attorney’s fees expended in this suit to regain possession of said property ................. ........................ 100.00
3. Damages done by William Green, Agent of the Tulane Investment Company, Inc., in breaking partition, wall, doors and other parts of the property ________________________________ 100.00
4. Punitive damages ____________________________ 200.00
Total_________________________________________$640.00

The court a qua found for plaintiff maintaining its possession and awarded damages for rent alone at the rate of $20.00 per month from June 18, 1922, to April 16, 1925, the date of the judgment. The defendant, Tulane Investment Company, has appealed and plaintiff has answered asking for the items of damages rejected by the trial court. However, in argument these rejected items were abandoned and plaintiff’s claim reduced to the amount awarded by the judgment. The defendant Green has not appealed, and we shall hereafter refer to the Tulane Investment Company as the defendant.

The right of plaintiff to the possession of the property is not disputed. The only question for decision is whether defendant was guilty of trespass involving its liability for damages, and if so, the quantum.

It appears that the defendant sued out a writ of possession in the Civil District Court under the Number 143,164 of the docket of that Court In order to cause its vendee, Green, co-defendant herein, to be put in possession of a certain lot, No. 13, Square 216, Algiers. In the execution of this writ, the Sheriff, either through his own fault, or by the fault of the defendant, as we shall presently determine, placed Green in possession of plaintiff’s property, which is located in the same square and consists of lots 17 to 20, both inclusive. The property which was vacant just prior to Green’s entry, was subsequently rented by plaintiff for a rental of $20.00 per month for one year, and when the tenant undertook to take possession, he found Green installed and insisting upon his right to remain by virtue of his purchase agreement with the defendant. Several demands were made upon the defendant for possession of the premises, resulting in evasive replies, but Green continued to remain in possession.

Defendant disclaims any responsibility for the admitted trespass of Green and insists that it was due to the error of the Sheriff that Green was put in possession of plaintiff’s property originally, and that Green’s subsequent detention of the property was upon his (Green’s) sole responsibility. The lot sold to Green, it is pointed out, was lot 13 and not lots 17 to 20. The writ of possession so reads and it is claimed that defendant cannot be held responsible for Green or for the Sheriff’s action. But when the Sheriff called at the office of defendant for information necessary to the execution, he saw Mr. Morales, defendant’s president and according to the Sheriff, Mr. Morales sent a negro by the name of Dosier, who was then present, to point out the property to him. Dosier accompanied the Sheriff across the river and was present when Green was put in possession, though he claims that Green pointed out the property. Defendant says that Green was a volunteer and that he happened to be in the office when the sheriff called and offered to show the property, because he was familiar with the locality; that Dosier was not an employee and not connected with the company in any way; that if the sheriff chose to follow Dosier, well, it was the sheriff’s responsibility. We do not think so. In the first place, it was defendant’s duty to direct the sheriff in the execution of the writ as well as to its interest to. have it executed. We are not at all sure that Dosier was entirely disassociated from the defendant, and the secretary of the defendant when placed upon the stand by defendant, seemed equally uncertain .in that respect, for after stating that Dozier was not an officer or employee of defendant, he says “he was employed but not an officer” and “from what I have in mind, he was working for the house, but he was no officer of the company”, and finally, when asked, “will you say that he was or was not an employee of the company”, he answers, “I would rather say he was not. I cannot tell that he was”.

We are convinced that Dozier acted as the agent of the defendant in this transaction, whatever may have been his reíation with the defendant company. Every probability supports this conclusion weakens the contrary contention of defendant. We also think Dozier entirely responsible for the trespass upon plaintiff’s property, for even if Green did dir.ect the sheriff, Dozier appointed by defendant and charged with that duty, should not have permitted Green to interfere.'

Counsel says that in any event, the judgment appealed from must be amended, because defendant cannot be held liable for “any rent prior to November 20, 1922, the date on which the sheriff made his return nor subsequent to March 29, 1923, when Green vacated the premises”.

It is true that the sheriff’s return indicates that defendant was put in possession on November 20, 1922, but Green was in possession of plaintiff’s property under authority from the defendant long before the date mentioned in the sheriff’s return, if as a matter of fact the date given by the sheriff in his return is not erroneous, as seems probable. Defendant, under date of September 26, 1922, wrote Mr. Hennessey, plaintiff’s counsel as follows:

“Your letter of the 22:
“In re: J. Bodenger vs. Tulane Invst. Co.
5th District.
“I am directed by our Board of Directors to say that your claim is untenable. It seems if anybody is liable for any such damages as you claim it would be the Civil Sheriff of the Parish of Orleans.
‘We sued out a writ of possession on which we were placed in possession of this property, and if any mistake was made in the matter it was not made by us.
“William Greene who was placed there to take care of the property only occupied said premises about three weeks, and we understand he has made arrangements with the owner to pay for this and his future occupancy of the said premises.
“Very respectfully,
“(Sgd) J. P. Breaux,
“Sec.”

We can find no evidence connecting the Tulane Investment Company with Green’s occupancy of the property prior to three weeks before the date of this letter. We have no means of knowing when the possession of the property was restored to plaintiff. The trial court allowed rent up to the date of its judgment, April 16, 1923, and we will accept that date.

The judgment must, therefore, be amended so as to allow damages at the rate of $20.00 per month beginning September 1, 1922, and terminating April 16, 1923, and as thus amended, it is affirmed.


author: CLAIBORNE, J.

text:
    No. 10,215
    Orleans
    GEO. A. GITZ v. E. B. MASON, Appellant
    (November 30, 1925, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest—Pleading—Par. 41.
    A defendant who files a general denial when sued, upon a written document alleged to be signed by him admits his signature thereto.
    2. Louisiana Digest—Appeal—Par. 512.
    Damages allowed for frivolous appeal.
    Appeal from the First City Court. Hon. W. Alexander Bahns, Judge.
    This is a suit for money loaned. There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Conrad Meyer, Jr., of New Orleans, attorney for plaintiff, appellee.
    Clancey H. Latham, of New Orleans, attorney for defendant, appellant.
   CLAIBORNE, J.

This is a suit for money loaned.

The plaintiff alleged that he loaned to the defendant the sum of $240 evidenced by the following checks payable to the defendant, endorsed by him, and used for his personal uses, viz:

1st Check No. 383 on Whitney Bank by petitioner dated February 3, 1924, for the sum of___________________________$ 50.00
2nd Check No. 382 on Whitney Bank by petitioner dated March 1, 1924, for ------------------------------------------------------- 50.00
3rd Check on Marine Bank and Trust Co. dated July 19, 1924, signed by defendant through defendant’s corporation for__________________________ 140.00
Making a total of___________________$240.00

Defendant denied each and every allegation of plaintiff’s petition.

On the trial of the case defendant was absent and not represented.

There was judgment in favor of plaintiff and against the defendant as prayed for.

A rule for a new trial was taken upon the ground that “owing to serious illness in the family of the defendant’s attorney, defendant was not represented in court”. A few days later the judge recalled the rule. There is nothing in the record to indicate that the judge erred. The general denial filed was not suggestive of any serious defense, and the failure of the defendant to deny his signature to the check was an admission that he had signed it.

C. P. 325, 1 H. D. 223; Tyler vs. Marcelin & Depas, 8 La. Ann. 312.

The defendant took a suspensive appeal. In this court defendant failed to suggest any defense to the suit.

The plaintiff has prayed for ten per cent damages for frivolous appeal. We think he is entitled to them. C. P. 907.

It is therefore ordered that the judgment appealed from be affirmed with ten per cent damages for frivolous appeal.


author: WESTÉRFIELD, J.

text:
    No. 10,170
    Orleans
    WILLIAMS RADIATOR CO. v. F. N. MILLER, Appellant
    (December 14, 1925, Opinion and Decree.)
    (January 4, 1926, Rehearing Refused.)

      (Syllabus by the Editor.)

    1. Louisiana Digest—Appeal—Par. 625, 630.
    The judgment of the trial court on questions of fact will be amended only ■ where clearly erroneous.
    Appeal irom the First City Court. Hon. W. Alexander Balms, Judge.
    This is a suit brought for the contract price of radiators.
    There was judgment for plaintiff as prayed for and defendant appealed.
    Judgment amended and affirmed.
    Emerson Bentley, of New Orleans, attorney for plaintiff, appellee.
    Geo. B. Eberle and E. A. O’Sullivan, of New Orleans, attorneys for defendant, appellant.
   WESTÉRFIELD, J.

Plaintiff agreed to deliver to and install in the home of defendant certain radiators which it guaranteed would properly heat defendant’s premises for the sum of $169.00. The radiators were delivered and installed but defendant refused to pay therefor upon the ground that the radiators would not heat his home as agreed. This suit is brought for the contract price of the radiators. There was judgment for plaintiff as prayed for and defendant has appealed.

We are convinced that plaintiff’s guarantee as to the efficiency of the radiators was not lived up to. Defendant made repeated efforts to have the plaintiff remedy whatever may have been the cause of the trouble without success. At one time it appears that plaintiff’s agent practically agreed with defendant to remove the radiators from plaintiff’s house but no agreement could be reached concerning the value of the pipe and connections which defendant desired to retain. Plaintiff asked $35.00 and defendant offered $5.00.

But defendant sold his house with the radiators in it and we think this fact influenced the judgment of the trial court. At the bar of this court in argument, counsel stated that his client was able to deliver the radiators should the court determine that plaintiff was not entitled to recover the contract price. We do not think plaintiff should recover the price of the radiators if they can be returned to him. As to the pipe the defendant according to the evidence has used it for another heater and must pay for it. Plaintiff fixed the value of the pipe . at $35.00 and we will allow that sum.

The judgment appealed from is amended so as to allow the defendant a credit of $134.00 provided he shall deliver to plaintiff the radiators for the purchase price of which this suit is brought within 30 days from the finality of this decree. Plaintiff to pay costs of appeal. In all other respects it is affirmed.


author: WESTERFIFELD, J.

text:
    No. 10,325
    Orleans
    MAURICE PAILET v. PETER YOUNG, Appellant
    (February 1, 1926, Opinion and Decree)

      (Syllabus by the Court.)

    1. Louisiana Digest—Evidence—Par. 41, 343.
    Where a defendant, testifying in his own behalf, is evasive and improbable and otherwise lacking in candor and frankness, his testimony cannot prevail over or neutralize plaintiff’s testimony which is not subject to such criticism, notwithstanding the burden of proof.
    Appeal from First City Court of New Orleans, Section “A”. Hon. W. Alexander Bahns, Judge.
    This is a suit brought by plaintiff, the assignee, for the balance of the purchase price of a diamond ring.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Herman Barnett, of New Orleans, attorney for plaintiff, appellee.
    S. F. Gautier, H. Rauvicli, of New Orleans, attorneys for defendant, appellant.
   WESTERFIFELD, J.

Plaintiff, alleging that he is the assignee of one P. M. Stein, brings this suit for $262.00, which he says is due by defendant as a balance on the purchase price of a certain diamond ring alleged to have been sold defendant by the said Stein.

Defendant prayed for oyer of the assignment, and in this court insists that though oyer was ordered by the trial judge, plaintiff has not complied with the order. It is sufficient to say in this connection that the assignment was admittedly not in writing, consequently cannot be exhibited. Moreover, the evidence clearly shows a recognition of the assignment on the part of defendant.

The answer is in effect a general denial. Defendant is shown to have made thirty-four payments to plaintiff on the diamond ring, one of two dollars and thirty-three of one dollar each. He admits making some payments but claims to have acted for a friend of his by the name of Segretto, whom defendant declares was the purchaser of the ring and alone responsible for the payment of the purchase price.

Segretto did not testify and the case must be determined upon the contradictory evidence of plaintiff and defendant, for neither of the other two witnesses whose evidence is in the record is of any assistance. Plaintiff’s testimony is to the effect that he bought out the jewelry business formerly conducted by P. M. Stein and among the open accounts was this claim against defendant appearing in the name of defendant; that he advised defendant of his purchase and made the collection. of $35.00 on account in thirty-four payments and could make no further collection on the account. Defendant’s testimony is not impressive. He denies buying the ring or anything else from Stein. He admits having made payments to plaintiff but didn’t know how many payments nor how much money he paid; kept no account and did not intend to seek reimbursement from Segretto, for whose account he paid the money and on whose suggestion he claims to have stopped the payments “because Segretto was a particular friend of mine”. When asked how many payments he made to plaintiff, he answered: “I never kept account, three or four payments”, though he would not deny that he had made thirty-four payments when asked the question. He had no arrangement with Segretto and took no receipt from plaintiff. Segretto was his “bosom friend” and their relations were “like brothers”. When asked on cross-examination why he sold his house to his wife, he replied that he sold it for-money he owed her, though he couldn’t remember how much money when he sold it or what notary passed the act of sale. Segretto, the bosom friend, who was like a brother to the defendant, was in the city on the day of trial, and summoned by de fendant did not appear and testify.

“Q. You know where Segretto is?
“A. Yes.
“Q. Did you summon him?
“A. Yes.
“Q. Is he here?
“A. No.
“Q. Is he in the city?
“A. He is.”

If defendant is a simple, ignorant, honest man, telling the truth, but embarrassed and confused by his unaccustomed appearance as a witness, which his counsel would have us believe, he is most unfortunate for considering his evidence by the usual methods which courts employ in weighing testimony. We find it most unreliable and riot altogether unsophisticated. Besides, the lower court, with the advantage of hearing and seeing defendant, found against him. We are unable to reach any other conclusion. The judgment appealed from is, for the reasons assigned, affirmed.


text:
    No. 10,350
    Orleans
    WOODVILLE & WOODVILLE v. JORDAN THOMAS, Appellant
    (February 1, 1926, Opinion and Decree)

      (Syllabus by the Oourt.)

    1. Louisiana Digest—Attorneys—Par. 72; Appeal—Par. 625.
    Where the amount allowed by the trial ■■ judge to an attorney-at-law for professional services is not manifestly insufficient or excessive, the judgment will be affirmed.
    Appeal from the First City Court, Parish of Orleans. Hon. William V. Seeber, Judge.
    This is a shit for compensation of an attorney on a basis of a quantum meruit for services rendered. Defendant filed exceptions of vagueness and no cause of action, and denied the allegations of the petition. The exceptions were overruled and there was judgment for plaintiff as prayed for.
    The defendant appealed.
    Judgment affirmed.
    J. A. Woodville, of New Orleans, attorney for plaintiff, appellee.
    Ernest J. Robin, of New Orleans, attorney for defendant, appellant.
   BELL, J.

Plaintiffs sue defendant in the sum of $150.00 claimed as reasonable compensation on a basis of quantum meruit for services rendered. The petition sets forth that the services were for representing the present plaintiff in a certain partition suit brought by one of defendant’s daughters against him and defendant’s other daughter, and for various consultations had with the defendant and with counsel for plaintiff in the partition suit, and also for the preparation of documents looking toward the sale of the property involved in the partition proceedings.

The defendant filed exceptions of vagueness and of no cause of action, and denied generally the allegations of the petition. It is apparent from the pleadings that the trial court properly overruled all exceptions. There was judgment in the amount prayed for, and defendant has appealed.

The total estimated value of the properties involved in the partition suit are admitted to be about $7500.00. ^ Defendant testifies that he consulted plaintiffs at their office on many occasions, sometimes as often as twice a week, for several weeks; that these consultations were held in regard to his interest in the properties sought to be partitioned, and that' he employed plaintiffs to represent him in the partition suit; that plaintiffs attended to the payment of taxes on the properties involved.

The lawyer of the daughter who was plaintiff in the partition suit, corroborates plaintiff’s testimony regarding correspondence and consultations had between him and plaintiffs, and that plaintiffs did for defendant “all necessary work which ran over a year”. This same witness states that he considered the fee as claimed very reasonable. The record shows that plaintiff’s services before the court in the partition proceedings were limited to filing exceptions, and that same were fixed twice for hearing. There is proof that plaintiffs endeavored to have the partition suit amicably settled, and that the several conferences between counsel of record were to that end. It also appears that plaintiffs were discharged by defendant without cause, and before negotiations looking toward a settlement of the partition suit or the arrangements of the sale of the property could be consummated. This evidence is in no way rebutted by the defendant.

The fee as allowed by the trial judge does not in any way appear to be excessive. It has been frequently held that an appellate court will accept the estimate as to value of professional services fixed by the judge a quo where same seem reasonable and fair. Phillip vs. Stewart, 24 La. Ann. 152; Succ. of Percival, 138 La. 543, 70 South. 505; Dinkelspiel vs. Pons, 119 La. 236, 43 South. 1018; Succ. of Richards, 49 La. Ann. 1115, 22 South. 317.

This court has held, in the case of Woodville vs. Hegarty, 11 Orl. App. 335, that in fixing the value of an attorney’s services, those rendered out of court are to be taken into consideration quite as much as those rendered in open court. Tempelman Bros. Lumber Co. vs. Sinnot, 9 Orl. App. 305.

We see no error in the judgment appealed from, and same should be affirmed.

Judgment affirmed.


text:
    No. 9147
    Orleans
    COMMERCIAL CREDIT COMPANY, INC., v. MELBA CANDY COMPANY Appellant
    (January 18, 1926, Opinion and Decree)

      (Syllabus hy the Court.)

    1. Louisiana Digest—Executory Process— Par. 11.
    In proceeding via executiva, nothing can be left to conjecture. The order of seizure and sale must be supported by authentic evidence exclusively.
    2. Louisiana Digest—Executory Process— Par. 5.
    On appeal, where the particular mortgage note is described in the petition and therein alleged to be a note upon which executory proceedings are predicated, is not shown by the record to have been offered or filed, the order of seizure will be set aside and the proceedings dismissed as of non-suit.
    3. Louisiana Digest—Executory Process— Par. 4, 5, 11.
    A note filed after issuance of the writ and after appeal has been taken and transcript of appeal lodged in the appellate court cannot there be considered as authentic evidence justifying the order appealed from.

      Appeal from the Civil District Court for the Parish of Orleans, Division “D”. Hon. Porter Parker, Judge.
    This is an appeal taken by defendant in executory proceedings claiming that the proceedings based upon a chattel mortgage were issued without adequate or authentic evidence.
    Order of seizure and sale set aside and proceedings dismissed as of non-suit.
    Marx & Levy, of New Orleans, attorneys for plainitff, appellee.
    Azzo J. -Plough, of New Orleans, attorney for defendant, appellant.
   BELL, J.

This appeal is prosecuted by defendant in executory proceedings. It is contended that the fiat issued without adequate or authentic evidence, and that the order of seizure and sale should therefore be annulled and set aside.

In this court plaintiff and appellee answers the appeal, and avers that it is frivolous and was taken for purposes of delay, and he prays the affirmation of'the judgment appealed from with ten per cent damages.

Appellant assigns as error, apparent upon the face of the record, that there was no authentic evidence before the lower court at the time it granted the order of seizure and sale of the particular note as described in the petition, and further, that there is no evidence of which this court can take cognizance that the particular note was ever filed or offered at the time stated.

In the first paragraph of plaintiff’s petition it is alleged that plaintiff is the holder and owner for valuable consideration before maturity of a certain promissory note made and subscribed by the defendant and payable “to the order of petitioner”. The remaining allegations of this paragraph contain the description of the note and affirm that it contains notarial paraph for identification with a certain act of sale and mortgage made by the defendant and given in security for the payment of an unpaid balance of the purchase price of a certain automobile.

The petition was filed in the Civil District Court for the Parish of Orleans on April 25, 1923, and presumably an order, on the same day, was issued and signed by the Honorable William H. Byrnes, a judge of said court. The order, in fact, bears no date indicating when it ,was issued or signed, but under the authority of Huber vs. Jennings-Heywood Oil Syndicate, et al., Ill La. 747, 35 South. 889, it must be presumed, in the absence of proof to the contrary, that the order was signed at the time arid place contemplated by law.

Considering the other and more serious ground for 'annulling the judgment appealed from and which has already been noted, we are of the opinion, under innumerable authorities, that the contention of appellant is well-founded, and that the judgment or order appealed from must be annulled and set aside.

The alleged chattel mortgage note, upon which executory process was taken and issued in these proceedings, is not found in the record. The lack of this authentic evidence is fatal. The transcript of appeal indicates that on April 25, 1923, a note was filed, and upon examination of this document we find it to be no note at all. The document in question bears no signature, but the words, “Melba- Candy Company”, appear in typewriting at the usual place for signing a note, and this document is made up entirely of printed matter, and across the face thereof there appears in printed red ink the words, “Copy—Not Negotiable”.

The petition, as already noted, sets forth that the note sued upon is paraphed “Ne Varietur” to identify it with an act of sale and chattel mortgage passed before Stamps Parrar, notary public, but no paraph appears upon the document found in the record, nor is any signature of the notary in ink or in print found upon the offered note. This document, in fact, contains the stamp and signature of the clerk of court and shows that it was filed on the date mentioned, to-wit, April 25, 1923. It requires no further discussion to establish the conclusions that this document could not have constituted in law the authentic evidence upon which the order of seizure and sale could have issued.

At the hearing of this cause, another document, which appellee contends is the true note upon which the suit is based, was presented to this court. This note, however, appears to have been filed by the clerk of the district court two days after the appeal in this case was taken, and after the transcript of appeal was lodged in the clerk’s office of the appellate court. It follows from these facts that the court can take no cognizanace of the document in question, but even if it were considered it is shown to be a note payable “to the order of Jarreau Motor Company”, and not to petitioner, as alleged in the pleadings.

In Bass vs. Barthelemy, 134 La. 322, 64 South. 126, the court said:

“Under the law', as it stood prior to the enactment of the statute, No. 67 of 1908, the two witnesses to an authentic act, importing confession of judgment, were required to be ‘free, male and aged not less than 14 years’; hence, where one of the witnesses was a female, the act was not authentic, did not import confession of judgment, and executory process could not lawfully issue thereon, nor could, nor can, such writ issue to enforce payment of a note purporting to be secured by an act, otherwise authentic, in case of a discrepancy between the- note sued on.”

In Ricks vs. Bernstein, 19 La. Ann. 141, it was held:

“It is probable that there was error in the drawing of the note; but in a proceeding via executiva, nothing can be left to conjecture. 1 Hen. Dig. 646, Sec. 1. Every fact must be patent upon the face of the papers, and if there is any matter in pais, some other proceeding than one via executiva must be resorted to to prove it. In the present case, there is a want of identity between the note annexed to the petition and that described in the authentic act, and the judge erred in granting the order.”

See also Bank of Leesville vs. Wingate, 123 La. 386, 48 South. 1005.

Taylor and Husband vs. Deodicker, et al., 21 La. Ann. 171.

Burns vs. Naughton, 24 La. Ann. 476.

Miller, Lyon & Co. vs. Cappel & Curry, 34 La. Ann. 264.

Van Raalte vs. Congregation, 39 La. Ann. 618, 2 South. 190.

In Hackemuller vs. Higueroa, 125 La. 307, it was said in the court’s syllabus that, “where there is a discrepancy between the note and the authentic act relied on in the obtention of an order of seizure and sale, the creditor cannot proceed via executiva.”

In the present case the record eloquently establishes valid grounds for the appeal herein taken, and therefore appellee’s prayer for damages because of the frivolous appeal is denied.

Our attention is called to the case of Learned vs. Walton, 41 La. Ann. 233, 6 South. 125, where it was held that in executory process the fact that the order of the judge indorsed on the petition, and authentic evidence attached thereto, was made before the documents were filed in court, affords no ground for relief. We find upon examination of this case that it has no application to the instant case, for the reason that the bona fide note and act of mortgage describing the note were filed on the same date on which the order was issued. In the instant case counsel for appellee makes the erroneous statement in his brief that the real note sued upon and the act of chattel mortgage were made part of the petition and filed with the petition. It is plain, from the record disclosures already noted, that the actual note described in the petition was not filed or offered either before or on the date upon which the order of seizure and sale was issued.

Upon the authorities above cited, we are of the opinion that the order of seizure in this matter has been improvidently granted.

It is therefore ordered that the order appealed from be annulled and set aside, and that the executory proceedings be dismissed as of non-suit, all costs to be taxed against plaintiff and appellee.


text:
    No. 9526
    Orleans
    HARRY JONES, Appellant, v. JAHNCKE SERVICE, INC.
    (October 5, 1925, Opinion and Decree)
    (October 19, 1925, Rehearing Refused)
    (December 1, 1925, Writ of Certiorari and Review denied by Supreme Court.)

      (Syllabus by the Court.)

    1. Louisiana Digest—Negligence—Par. 21, 22, 25.
    Where the employees of the defendant were engaged in operating a crane in loading shells upon a gondola car, and plaintiff, not employed by defendant, was acting as trolley man of the motor car moving the gondola and had so acted for several years previously and was well acquainted with the locality and with the operation of the crane, stood upon' the ground near the crane with his back turned to it, and the crane, while moving at the rate of a mile an hour, overtook him and caught his foot and mashed it; held, the danger was so obvious and so well known to plaintiff that his act in exposing himself to it and his failure to avoid it amounted to negligence barring recovery.
    2. Louisiana Digest—Negligence—Par. 2, 14.
    In the use of machinery the owner is only bound to use such precautions as are ordinarily used by men of ordinary care and prudence or by men generally engaged in the same business.
    3. Louisiana Digest—Negligence—Par. 2, 14.
    The owner is not required to furnish the newest, safest and best machinery; it is sufficient that he furnishes such as are reasonably safe and are in common use by others in the same business.
    4. Louisiana Digest—Negligence—Par. 42.
    Where the danger was manifest and understood by plaintiff, the fact that it might have been made safer by guard is immaterial.
    (Civil Code, Art. 2315. Editor’s note.)
    Appeal from the Civil District Court, Division “D”,' Hon. Porter Parker, Judge.
    This is a damage suit for the loss of a foot brought by a laborer who was injured while working on a construction car.
    The New Orleans Public Service, Inc., intervened, praying ■ for reimbursement of compensation paid to plaintiff.
    There was judgment in favor of defendant dismissing the demands of plaintiff and intervenor.
    The plaintiff alone has appealed.
    Judgment affirmed.
    A. B. Booth, H. W. Robinson, of New Orleans, attorneys for plaintiff, appellant.
    Gordon Boswell,- L. P. Bryant, of New Orleans, attorneys for defendant, appellee.
   CLAIBORNE, J.

This is a damage suit for the loss of a foot.

The plaintiff, who was 40 years of age, alleged that he was working as a laborer for the New Orleans Public Service, Inc., on a construction car which was receiving gravel loaded on said car by the Jahncke Service Inc. at the head of the New Basin canal at Howard avenue and Rampart street; that at about 10:40 a. m. on that date he was standing alongside of the rail on which one leg of the traveling crane of the defendant was situated with his back to the crane, signaling the motorman who was operating the flat cars of the New Orleans Public Service Inc. to back the first car so that the second car could be loaded; that while in said position the engineer of the Jahncke Service Inc. caused said crane to be moved forward without warning so that a large cogwheel and chain which set the forward wheel of the crane in motion moved up to plaintiff from the rear and caught his trousers at the bottom and drew his foot to the track beneath the wheel, crushing his left foot; that plaintiff was taken to the Goodrich Hospital where his leg was amputated above the ankle; that he was confined to the hospital for one month, and was unable to do any work thereafter for six weeks; that the said Jahncke Service Inc. was guilty of gross negligence which caused the accident and particularly in operating a cogwheel and chain on an open highway of the city without having same covered, and setting said crane in motion without any warning to him and striking him in the rear. For the loss of his foot and for suffering plaintiff claimed $10,000.00.

The defendant admitted that plaintiff’s foot had been amputated but denied the other allegations of the petition.

Further answering, they averred that their crane was of an up-to-date and approved pattern; that it was in charge of, and operated by, a skillful and careful man; that the injuries of plaintiff were not caused by any negligence or lack of skill on his part, but resulted solely from the negligence of the plaintiff, which was the proximate cause of the accident.

The New Orleans Public Service Inc. intervened praying for judgment against the plaintiff and the defendant praying for reimbursement of amount of compensation, $1389.00, paid by it to the plaintiff.

There was judgment in favor of defendant dismissing the demands of plaintiff and of intervenor.

The plaintiff alone has appealed.

The New Orleans Public Service has not appealed.

We find the facts to be as follows:

At the head of the New Basin canal near Rampart street the defendant company accumulates shells; in order to transfer these shells from the bins they operate a crane which moves along a rail about 12 feet from the bank of the canal; a cogwheel about 30 inches high is used to move the crane up and down the rail; the cogwheel itself is about three to four inches from the ground; it is propelled by a sprocket chain that goes around the cogwheel and a shaft chain worked by electricity; there is another wheel inside that runs on a rail that has a flange on each side. The New Orleans Public Service Company runs flat cars on a spur track extending from Rampart street back which are loaded with shells from the bins by this crane by means of buckets or dippers.

On the day of this accident the railway company had backed two trains consisting of a flat car and of a motor car, each one behind the other, for the purpose of receiving shells. The plaintiff in this case was the trolley man on one of the motor cars. His duty was to remain upon the end of the motor car and to hold the rope in case it happened to jump in going around a curve. The plaintiff had been in the employ of the railway company and engaged as trolley man on cars in getting shells from that particular place for two years or three and knew the location, the buckets, the crane, the track upon which it moved, the railroad tracks, the shells, and the mode of operation of all the machinery and appurtenances with which the shells were taken from the bins and loaded upon the cars. From the time the car was backed into position and the crane began to work it took seven minutes to load a car; during that time the trolley man had nothing to do and was at liberty to remain at his post upon the rear end of the motor car, or to step down and walk upon the ground between the railroad tracks and the canal traversed by the rail upon which the crane moved up and down four and one-half feet from the canal. Upon this occasion the plaintiff left his motor car and stood upon or' near the crane rail, with his back towards the crane looking towards Eampart street; no duty called him there.

The crane in motion crept towards him until it reached the heel of his left ■ foot which it drew in and crushed. The crane moved at the utmost at the rate of 100 feet a, minute, or about a mile an hour; the crane moved as the bucket dropped the shells; every time a bucket was dumped the crane moved two feet; it took seven minutes to load a car, so that in seven minutes the crane moves twenty-seven feet the length of the car; the place where the crane works is not a public place or street, and is not opened to the public; it is inclosed; the operator of the crane gave no warning when he started, but the operation of the crane is noisy. No accident has ever been caused by the crane.

We think the plaintiff brought the injury upon himself by his own negligence and want of care. The crane presented but little element of danger. But if it was dangerous it was visible. It had been in operation for five years without any accident, because it was apparent and easily avoided. It was well known to the plaintiff. He had worked on those premises for three or four years. He knew that the crane traveled upon that track up and down in distributing the shells upon the cars. He had seen the cog-wheel, and the sprocket, and the chain at work and knew where they were, and what were their functions. He came to the shell yard as trolley man upon a car for the purpose of loading it up with shells; he helped run the car next to the crane, and he knew that in the process of lifting the buckets or dippers the crane moved upon the rail as each bucket was emptied into the car. Yet he negligently placed his foot near the rail or directly upon it, and turned his back upon the crane, until it reached the heel of his foot, and the cog-wheel drew it under and crushed it; he did not heed the noise of the crane in operation.

In the case of Johnson vs. N. O. Terminal Co., 154 La. 515, 97 South. 795, the plaintiff was struck by a swinging chain dangling from a derrick. The court said:

“The danger being visible and obvious, the failure of the plaintiff to avoid it or to reasonably attempt to do so was such negligence or contributory negligence as will bar recovery.” 20 R. C. L. 112; 29 Cyc. 515; 117 La. 587, 42 South. 148, Branch vs. Del Valle.
“While it is the duty of the master to keep his premises in a safe condition so as not to endanger the life of the servant, yet the servant will be denied relief against the master for injuries arising out of the unsafe condition of his premises, if with ordinary prudence the servant could have avoided the injuries.” McCarthy vs. Whitney, 48 La. Ann. 978, 20 South. 171.

In Pavey v. Texas Ry. Co., 149 La. 504, 89 South. 634, the court said:

“He had every opportunity to have seen these cars moving on the main line and he was charged with the knowledge in all probability the cars would be moved as just such an operation was performed from day to day to the knowledge of the deceased who had worked there for several months.”

Also Mills vs. Illinois Central R. R. Co., 148 La. 217, 221, 86 South. 750.

It was not negligence on the part of the defendant not to have protected or guarded the crane. It was plainly visible. Its condition was not suggestive of danger. It had been in use for five years without accident. The speed of the crane was at the utmost a mile an hour.

“Negligence consists in a failure to provide against the ordinary occurrences of life, and the fact that the provision made is insufficient as against an event such as may happen once in a lifetime, or perhaps twice in a century, does not make out a case of negligence upon which an action in damages will lie.”
“It is not enough to prove that the accident is the natural consequence of the negligence. It must also have been the probable consequence. A mere failure to guard against a result which could not have been reasonably anticipated is not actionable negligence.” New Orleans & N. E. R. Co. vs. McEwen & Murray, 49 La. Ann. 1184, 22 South. 675; C. J. 467 S. 18; Gilliam vs. T. & P. Ry. Co., 114 La. 272-1004, 38 South. 166; Givens vs. De Soto Bldg Co., 156 La. 381, 100 South. 534.

S. 3770:

“Applied to the case where a workman is injured by machinery furnished by his. master, the rule of ordinary care directs the jury to consider, not whether the machinery was dangerous, but whether it was of the kind ordinarily used for similar work.”

S. 3774:

“In applying this doctrine of reasonable care, it was well held that a master is not liable for injuries to his servant resulting from an accident of such a character that reasonable men, proceeding with reasonable caution, would not ordinarily have foreseen and anticipated it—such as an injury happening under very exceptional circumstances, although the proper precautionary measures, if taken, would have prevented it.”

In 4 Thompson on Negligence, S. 3767, this rule is laid down:

“In the discharge of these obligations, that of maintaining safe premises where the servant is to work, that of selecting and maintaining safe machinery, tools and appliances wherewith he is to work, the obligation of the master is not absolute in the sense that he is an insurer or war-' rantor of results in its performance. He does not warrant the safety or sufficiency of his premises, machinery, tools and appliances * * * or the adequacy of the system which he may have devised to prevent accidents * * " but in all these and other risks the limit of his duty and obligation is the exercise of reasonable or ordinary care. Therefore, an instruction to a jury which imposes upon a railway company the duty ‘to do everything that can be reasonably done’ for the safety of its employees, and ‘to have the structures along its line reasonably safe’ is erroneous. Its duty is to use such care as a person of ordinary prudence would use in like circumstances, to furnish structures and appliances which are reasonably safe, and to use such care to maintain them in that condition.” Ford vs. Tremont Lbr. Co., 123 La. 742, 49 South. 492.

S. 3768:

“He is not bound to furnish the safest and best appliances known or in use, yet he is bound to furnish such as are reasonably safe for the purposes intended.”

In the use of machinery the owner is only bound to use such precautions as are ordinarily used by men of ordinary care and prudence or by men generally engaged in the same or similar business under the same or similar circumstances. 29 Cyc. 472.

A more severe rule obtains as regards the master towards his servant. Yet the law is:

“The master is not required to furnish the newest, safest and best machinery, appliances, and places for work, but his obligation is met when he furnishes such as are reasonably safe and suitable for the purpose had in view.” (26 Cyc. 1107.)
“Or such as are in ordinary and common use by others in the same business.” (Id. pp. 1108-11.)

It is true that T. H. Roberts, a machinist of varied experience for forty-five years, says that the cog-wheel could have been guarded by building a box around it some six feet in size. But that would have been cumbersome and of doubtful success. He says that he never saw such a guard applied anywhere to a similar machine.

On the other hand, E. A. Hutchinson, a supervising engineer of equal opportunities, testifies for the defendant. He served his time in the shops as a machinist, as an engineer, also as a locomotive engineer for about ten years, chief marine engineer about five years, and now safety supervising engineer for the Ocean Accident Guarantee and the Columbia Casualty. He says he inspected the crane in question; he saw cranes of the same kind elsewhere; the crane is of the most up-to-date pattern in that line of machine propelled by sprockets and endless chain; it is the usual type used for that sort of work; it would not be practicable to box the machine; it would be possible to box the sprocket, but it would cause a serious trouble if it was left the way it is; the only way would be to change the propeller to a direct drive shaft, and that would require a change in the model; they have not been building those machines that way, except this style of crane with the sprockets and the chains.

In Schoultz vs. Eckardt, 112 La. 571, 36 South. 593, the court said;

“As to the third ground, nothing shows that it is negligence not to gear machines like the one in question with' a counter-shaft. The testimony would go to show that machines which run continually are not usually so geared, and that the machine in question ran continually.
“Where the danger was manifest and understood hy a servant using a machine, a fact that it might have been made safer by a guard is immaterial.” 26 Cyc. 1134 notes.

The judgment is correct and it is therefore affirmed.


author: CLAIBORNE, J. CLAIBORNE, J.

text:
    No. 9137
    Orleans
    BESSIE BENTON v. N. E. JACOBS, Appellant
    (October 15, 1923, Opinion and Decree on Motion to Dismiss.)
    (December 14, 1925, Opinion and Decree.)
    (January 4, 1926, Rehearing Refused.)

      (Syllabus .by the Court.)

    ON MOTION TO DISMISS
    1. Louisiana Digest—Appeal—Par. 158.
    An appeal will be dismissed only where the appellee shows himself clearly entitled to that relief; in case of doubt the constitutional right of appeal will be maintained.
    2. Louisiana Digest—Appeal—Par. 436.
    The rights of litigants cannot be jeopardized by slight inaccuracies of counsel or clerks.
    ON THE MERITS
    3. Louisiana Digest—Landlord and Tenant —Par. 46.
    When the tenant of premises abandons them before the expiration of his lease and fails to pay the rent, the lessor may take possession of them and - sublease them for the benefit of the tenant.
    4. Louisiana Digest—Landlord and Tenant —Par. 46.
    But the lessor, if he thinks proper, may leave the premises wholly unoccupied.
    5. Louisiana Digest—Landlord and Tenant —Par. 46, 78.
    When the lessor takes possession of leased premises abandoned by the lessee and assumes to rent them for account of the lessee, he cannot refuse to rent them for the same price as that fixed by the lease; and if he refuses he cannot recover the rent from the former tenant.
    6. Louisiana Digest—Landlord and Tenant ■—Par. 64.
    The tenant is liable for any damages done to the leased premises by him or members of his family.

      7. Louisiana Digest—Landlord and Tenant —Par. 63.
    The tenant cannot recover from the lessor the value of improvements he has made without the consent of the lessor.
    Appeal from the Civil District Court, Division “B”. Hon. M. M. Boatner, Judge.
    This is a suit for rent and damages to the leased premises.
    Defendant filed a reconventional demand.
    There was judgment for plaintiff as prayed for and in favor of defendant for a small sum of money.
    Defendant appealed.
    Judgment amended and affirmed.
    Spencer, Gidiere, Phelps, Dunbar and S. D. Marks, of New Orleans, attorneys for plaintiff, appellee.
    J. H. Wiener and L. H. Yarrut, of New Orleans, attorneys for defendant, appellant.
   CLAIBORNE, J.

The defendant obtained an order of appeal herein returnable on the 18th day of May, 1923. The transcript was filed August 9.

A motion is made to dismiss the appeal on the ground that on May 18 the appellant secured an order granting an extension of time to June 18, 1923; that appellant did not obtain an order granting a further extension of time, nor did he file the transcript on June 18.

The clerk’s docket shows the following entries:

1923:

May 18—Motion for extension of time to complete transcript.
May 18—Order.
June 18—Motion for further extension.
June 18—Order to July 18.
July 17—Motion for additional time to August 18.
July 17—Order.
August 9—Record file.
August 11—Motion to dismiss.

But the documents in the transcript show:

A motion and order filed May 18 extending the return day to June 18.

A motion to extend the return day to the 18th day of July.

This motion appears to have been “filed” on July 17 and the order thereon is dated August 14. It is this motion which is the ground for the dismissal of the appeal as it should have been filed on June 18.

The clerk of this court states that the filing of “July 17” was an error on his part, and that the motion, as appears by his fee docket, was in reality filed on June 18; that he mistook the date of the extension for the date of the filing of the motion.

One of the attorneys for appellants, in their answer to the motion to dismiss, state under oath “that on or before the 18th day of May, June and July, 1923, your respondent filed in this Honorable Court a motion and the necessary accompanying affidavit with the clerk of the Civil District Court for the Parish of Orleans, all as is required by law”.

We think the error of the filing of “July” instead of “June” is satisfactorily explained. But if we entertained any doubt on the subject we should give the appellant the benefit of the doubt in the interest of the constitutional right of appeal. Sampson vs. Gillis & Ferguson, 22 La. Ann. 591; Smith vs. Vanhill, 11 La. 382; Brickell vs. Conner, 10 La. Ann. 236.

“An appeal will be dismissed only where the appellee shows himself clearly entitled to that relief. In cases of doubt, the interpretation will be liberal in favor of the appellant.” Gilmore vs. Brenham, 1 La. Ann. 414 (417); Isabella vs. Pecot, 2 La. Ann. 387 (390); Guion vs. The Creditors of the Succession of George Guion, 19 La. Ann. 81; Ludeling vs. Frellsen, 4 La. Ann. 534.

While the evidence shows that the motion to extend the return day was filed in time, there is not sufficient evidence to show that it was not. John M. Parker & Co. vs. Succession of Griffin, 117 La. 977, 42 South. 473.

The rights of litigants cannot be jeopardized by slight inaccuracies of counsel or clerks. Pasley vs. Ann McConnell, 40 La. Ann. 609 (612), 4 South. 501.

Motion denied.

CLAIBORNE, J.

This is a suit for rent.

The plaintiff alleged that she leased to the defendant the lower apartment of No. 2105 Octavia street for a term of three years beginning October 1, 1919, and ending September 30, 1922, for the price of $55.00 per month, for which the defendant made thirty-six notes dated July 1, 1919, each for the sum of $55.00, payable to his own order and by himself endorsed, numbered from 1 to -36, payable respectively on November 1 and on the first of each succeeding month except the last note, No. 36, which was payable on September 30, 1922; that the defendant bound himself to keep said property in good order; that it was stipulated in said lease that in case the lessee violated any of the conditions of the lease that the rent for the unexpired term of the lease should at once become due and the lessor would have the option to demand payment of the entire rent or to cancel the lease; that the defendant violated the lease in the following particulars: 1st, that he failed to pay the note for the month of January, due February 1, 1922; that he damaged the property with pencil marks upon, and holes in, the walls, breaking the doors, windows and window panes, and electric light shades, and leaving trash upon the premises; that in the exercise of her right under the lease plaintiff cancelled the lease on April 12, 1922, and returned to the defendant his' five notes for the months of May, June, July, August and September, 1922; that the defendant ■ abandoned the premises on December 12, 1921; that plaintiff advertised for another tenant at a cost of $30.96.

The plaintiff therefore claims:

First: The rent for the four months of January, February, March and April, up to the 12th, 1922, at $55.00 per month, or....................... $187.00
Second: Damages to walls,
doors and windows__________________$80.00
Four broken glasses.............._. 11.00
Cleaning and hauling trash10.00
Four electric light shades 4.45
•- 105.45
Third: Advertising _______________ 30.96
Making a total ....................................$323.41

With interest and ten per cent attorney’s fees under the lease and costs and for judgment cancelling the lease.

Defendant admitted the allegations of the petition but denied any indebtedness and alleged that in the month of January, 1922, he agreed with plaintiff to cancel the lease with the understanding that the plaintiff was to secure a new tenant at the same rental; that plaintiff demanded a rent of $85.00 per month for the remaining term of the lease and for that reason was unable to secure a new tenant within a reasonable time; that the plaintiff took possession of the leased premises early in January; that before and since the defendant vacated the property he had tendered to plaintiff to replace himself a tenant financially and morally responsible for whom he agreed to be surety.

Defendant claims in reconvention $9.00 for a front door glass and $5.00 for an electric transformer which he had put in the property.

There was judgment in favor of plaintiff as prayed for and in favor of defendant for $9.00.

Defendant has appealed.

The material facts of this case are that the defendant removed fr.ojn the leased premises on December 12, 1921, but that lie delivered the keys to the plaintiff only on January 24, 1922; that the lease prohibited the subleasing or transfer of the lease; that the plaintiff refused to the defendant the privilege to sublease or to turn the apartment over to his mother-in-law after he had removed.

Under date of January 10, 1922, the defendant, through his attorneys, wrote to the plaintiff “that it is perfectly agreeable to our client to have Mrs. Benton lease the property”; that the plaintiff employed a real estate agent to rent the property with instructions to dema,nd $85.00 per month rent; that the agent advertised the property for rent at that price, and that it w'as finally rented at $75.00 per month; that the defendant offered his mother-in-law as a tenant at the rate of $55.00 per month and to serve as surety, which the plaintiff refused; that the defendant could have found other tenants at the same price which the plaintiff also refused; and that plaintiff finally rented the premises at $75.00 a month from April 15, 1922.

When the tenant of premises abandons them béfore the expiration of his lease and fails to pay the rent, the lessor may take possession of them and sublease them for the benefit of the lessee; he then acts as negotiorum gestor for the lessee, and it is his right to sublease the premises to the best advantage to minimize the loss to himself. Reynolds vs. Swain, 13 La. 193; Holden vs. Tanner, 6 La. Ann. 74; Succession of John O’Loghlen, 27 La. Ann. 364; Orr & Laubenheimer Company vs. John Wilson & Co., 48 La. Ann. 1313 (1320), 20 South. 724; O’Kelly (O’Kelley) vs. Ferguson, et al., 49 La. Ann. 1230, 22 South. 783; Vincent vs. Frelich, 50 La. Ann. 378, 23 South. 373; Wolf vs. Cuccia, 144 La. 336, 80 South. 581.

But while the lessor has this right, is he under the obligation to do so? During the argument of this case the writer of this opinion was of the opinion that he was bound to do so under general principles, in order to minimize the loss to the lessee. But the Supreme Court has decided differently in the cases of Holden vs. Tanner, 6 La. Ann. 76, and Ledoux vs. Jones, 20 La. Ann. 539. We must yield to their decisions.

But we are of opinion that the plaintiff has committed herself to the obligation of renting the premises.

In a letter dated January 10, 1922, defendant’s attorney writes to plaintiff’s attorney:

"To confirm our conversation in reference to the property that Mr. Jacobs is leasing from Mrs. Bessie Benton, this is to inform you that it' is perfectly agreeable to our client to have Mrs. Benton lease the property and we will, upon the return of our rent notes, cancel the lease. This proposition should be accepted as soon as possible, as we do not wish to have the premises vacant for a long period of time at our expense.”

To which letter defendant’s attorney answered:

“We have your letter of January 10; Mrs. Benton accepts the proposition outlined in your letter, that is, -Mrs. Benton is to secure a tenant for the property, and, upon securing a tenant, is to return Mr. Jacobs’ rent notes and cancel the lease. Please let us have a key to the apartment as soon as possible. We would appreciate your sending this key direct to Latter & Blum, notifying us when you have done so.”

The defendant then sent the key; the plaintiff accepted it and employed an agent to lease the property.

The agent advertised the property for rent for $85.00 per month and plaintiff later rented it for $75.00.

The question remains, did the plaintiff have the right to demand a higher rent than $55.00 per month and was she bound to rent to a prospective tenant who offered $55.00? We are of the opinion that she was so bound.

The lease or the right of occupancy of the leased premises was the property of the defendant as long as the plaintiff chose to hold him to the lease. In her letter of January 12 she had asserted her intention to hold the defendant to the lease until she secured a new tenant.

In undertaking to rent the property the plaintiff was acting as the agent of the defendant. There was no price fixed in the letters of January 10 and 12. Plaintiffs’ counsel says he purposely refrained from doing so. It was plaintiff’s duty then to rent the property for such a price as would extinguish defendant’s obligation under the lease. She had no right to speculate upon what was his property, or to attempt to recoup herself for imaginary past or future losses, nor to go against his interest or his direction. He had tendered her one -or more tenants at $55.00; she had declined them; she should have accepted them. Her failure to do so relieves the defendant from his obligation to pay her the rent. It was only after she had agreed to cancel the lease that it would have been optional with her to demand any lease she might have decided upon, because then the right of occupancy became hers.

But considering that the defendant returned the keys only on January 24, we think he should pay the rent for that month.

Second: The evidence is that at the time the defendant took possession of the leased premises they were painted insid" and the doors varnished by an experienced painter at a cost of $254.00. The preponderance of the testimony is that at the time the ■ defendant removed from the premises some two years after, some plaster was broken, nails had been driven in the walls, and the walls were scratched and pencil-marked to an extent that made it necessary to paint the inside again. Some window panes were also broken. The cost of those repairs amounted to $91.00.- A.laborer was employed to gather debris of paper, barrels and excelsior and to remove them at a cost of $10.00. An electric light shade was broken, worth $4.45. C. C. 2710; 11 Orl. App. 46; Briede vs. McClellan, No. 7599, Orl. App., Bk. 55.

The plaintiff cannot recover $30.96 for advertising, as we have come to the conclusion that she could have rented the premises for $55.00 without advertisement.

The defendant is entitled to a. judgment for $9.00 as plaintiff has not appealed. He cannot recover $5.00 for the electric transformer as he made no prior demand for it upon the lessor. 1 H. D. 799 No. 10; 4 R. 376.

It is therefore ordered that the judgment herein in favor of plaintiff be reduced from three hundred and twenty three and 41-100 dollars to one hundred and sixty and 45-100 dollars with five per cent per annum interest from February 1, 1922, till paid, an-’ ten per cent attorney’s fees thereon; and that in other respects said judgment be affirmed. The costs of the District Court to be paid by the defendant and the costs of appeal by the plaintiff.


text:
    No. 10,214
    Orleans
    MRS. STELLA TOLLIVER, ETC., v. CHECKER CAB CO., INC., Appellant
    (November 30, 1925, Opinion and Decree)
    (December 14, 1925, Rehearing Refused)
    (February 1, 1926, Writ of Certiorari and Review Denied by Supreme Court.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Automobiles — Par. 4 (d).
    It is the duty of courts to rigidly enforce the traffic ordinances in order to insure public safety.' Those who violate them must pay damages caused by their violation.
    (Civil Code, Art. 2315. Editor’s note.)

      Appeal from First City Court, Division “B”. Hon. Val J. Stentz, Judge.
    This is a damage suit arising out of an automobile accident which .injured a child.
    Judgment for plaintiff and defendant appealed.
    Judgment amended and affirmed.
    Geo. Piazza, of New Orleans, attorney for plaintiff, appellee.
    Paul Fourchy, of New Orleans, attorney for defendant, appellant.
   CLAIBORNE, J.

This is an automobile damage suit.

The plaintiff, as tutrix of her child, aged seven years, alleged that on February 19, 1925, at 6:30 p. m., her child, Lawrence, was crossing the intersection of N. Rampart and Iberville streets, lake side, going up Rampart street; that while he was in said intersection a taxicab operated by defendant backed from Rampart into Iberville, and while so backing struck and knocked down plaintiff’s child; that Iberville street is a one-way street for traffic going towards the river; that said cab while backing was going towards the lake in violation of City Ordinance 7490 C. C. S., adopted August 11, 1923; that the wheels of the cab passed over the child’s abdomen, causing contusions and much pain; plaintiff claims $20.00 for herslf for doctor and medicine and $280.00 for the child for physical pain and mental anguish.

The defendant denied all the allegations of plaintiff’s petition and further averred “that if any accident occurred at the time and place mentioned it was the result exclusively of gross negligence of the alleged injured party in running across the street in violation oi the traffic laws and regulations of the city of New Orleans”.

There was judgment for plaintiff for $75.00 and the defendant has appealed.

In this court the plaintiff, as tutrix, has asked for an increase of the judgment to the amount claimed, $300.00.

The testimony in this case is wofully conflicting.

There are only two witnesses for the plaintiff, the child itself and one Archambeault.

The child testified that in company with another boy eleven years old, not produced as a Witness, he was going up the lake side of Rampart street towards Canal; that when they reached Iberville street and were in the act of crossing it, a cab that was parked on Rampart backed to turn into Iberville towards the lake and knocked him down, and that two of its left side wheels ran over him.

Archambeault was standing on the downtown river corner of Rampart and Iberville. He saw the accident, although it was after 6:30 p. m. in February. He corroborates the child, and repeats that two wheels of the cab passed over the child’s stomach-

Joseph Bistes, the president of the Checker Cab Company, testifies that the weight of the car is 3300 pounds, net weight, that is without the accessories, which include extra tires, lights, etc.

Three witnesses testified for the defendant. Percy Marchadie, who is chauffeur for the defendant company and who was driving the cab that ran down the child; Alex Smith, chauffeur for Toye Bros., and Maurice Baccarat, automobile salesman for Baumley Service Station. They all three testify that defendant’s cab was parked on the downtown side of Iberville street, or on the left side of the street in the direction of traffic at about fifteen or twenty feet from the corner of Rampart street, not discharging passengers; that several children were playing in Iberville street, running back and forth; that accidents are very frequent at that place; that the telephone rang and Marchadie, who was driving the second car from Rampart' street, answered the phone and returned to his cab; he backed in order to avoid the first car; while so doing the plaintiff child rah behind his car and was struck and knocked down; that the wheels did not pass over the child; that they picked the child up and carried him to the hospital; that the police arrested Marchadie and charged him with reckless driving and causing injury; his license was taken away; he was tried and put under bond. At the time of the accident the witness, Alex Smith, was engaged in conversation with Mr. Abadie and Mr. Gillard. Neither was produced as a witness.

We do not' find it necessary to reconcile the conflict in the testimony. We prefer to rest our opinion upon the clear viola tion by the defendant of the traffic ordinance which caused the accident.

We quote from Ordinance 7490, C. C. Series, adopted August 11, 1923:

Article 1 S. 1 p. 2: “A vehicle, except when passing a vehicle going in the same direction, shall keep to the right and as near the right-hand curb as possible.”
S. 15, p. 14: “The following are designated one-way streets, and traffic shall move on said streets only in the direction herein designated: * * * Iberville street, east, N. Franklin to N. Peters.”
Article III, S. 3, p. 21: “On all other streets it shall be unlawful for any vehicle to stop or stand except with the right-hand side of such vehicle not more than one foot from sidewalk curb and heading in the direction of traffic.”
5. 4: “On one-way traffic streets vehicles will be permitted to stop only on the right-hand side of the street, except where necessary for loading and unloading, in whicli case vehicles may be permitted to stand closely against the left-hand curb for such length of time as may be reasonably necessary.”
6. 5: “No vehicle shall park within twenty-five feet of a street intersection measured from the intersection of the sidewalk curb, nor within sixty feet of any intersection of boulevards.”
"Section L S. 1, p. 1: “Boulevard: Any street or avenue with a neutral ground or ■parking in its center and roadway to either side thereof.”

We find that the defendant violated each one of the above sections. They were parked upon the left hand of the street instead of upon the right, and stood nearer Rampart Boulevard than the ordinance permitted. If they had not occupied that prohibited position the accident would not have happened.

In Bianchi vs. Mussachi, 1 La. App. 291, this court said:

“It is the duty of courts to rigidly enforce the traffic ordinances in order to insure public safety. Those who violate them must pay for the damage resulting from a collision.”

The only remaining question is the amount of the damages.

After the accident the child was taken to the hospital by defendant’s chauffeur and put to bed; he remained there until the next afternoon when he was taken home; his left side was bruised and his left leg was injured; he complained of his side and was restless at night for about a week; he w"as kept away from school for two months; there is no evidence of his injury; there were no doctor’s fees.

We will increase the amount allowed by the City Court to one hundred dollars.

It is therefore ordered that the judgment appealed from be amended by increasing the same to one hundred dollars; as thus amended the judgment is affirmed at the cost of defendant in both courts.


text:
    No. 10,276
    Orleans
    MERTZWEILER & REYNOLDS v. O. M. GWIN CONSTRUCTION CO., Appellant
    (February 1, 1926, Opinion and Decree)

      (Syllabus by the Court.)

    1. Louisiana Digest—Appeal—Par. 630.
    Conclusions of the trial judge as to issues of fact will be reversed on appeal where plainly erroneous.

      Appeal from Eirst City Court, Parish of Orleans. Hon. William Y. Seeber, Judge.
    This is a suit under a verbal contract for construction of certain cement flooring and-for the relaying of brick sidewalks.
    There was judgment for plaintiff.
    Defendants appealed.
    Plaintiffs did not answer the appeal.
    Judgment reversed.
    Martin E. Kranz, of New Orleans, attorney for plaintiff, appellee.
    P. M. Milner, of New Orleans, attorney for defendant, appellant.
   BELL, J.

Plaintiffs sued defendants under a verbal contract for construction of certain cement flooring and for the relaying of brick sidewalks, all appertaining to a building on which defendants were working as general contractors. The amount claimed was $300.00.

Defendants answered by admitting the contract, but alleged that plaintiffs failed to complete the job, abandoned samé, and that defendants were therefore compelled to complete the work after putting plaintiffs in default; that plaintiffs agreed that defendants should complete the job; that credits for this work, together with a certain item of repairs to a gasoline concrete mixer, loaned to plaintiffs, should offset the amount claimed in this suit.

The lower court rendered judgment for $114.48, the exact amount which defendants claimed was due them for necessary repairs to the mixer. Defendants appealed. Plaintiffs have not answered the appeal. There are no written reasons for judgment in the record, but >we find in appellee’s brief the following admissions and conclusions as two reasons for judgment:

“The judge was not satisfied as to the amount due, and felt that insufficient evidence was offered by plaintiff in support of his claim for the amount sued on, and that the defendants did not prove to his satisfaction that plaintiff and appellee was to be condemned for the damages, if any, to the concrete mixer.”

It is not denied that defendants loaned the mixer to plaintiffs or that it was damaged while being used by plaintiffs. We can only surmise that the trial judge, in rendering judgment for the above amount, concluded from the evidence adduced that some portion of the main demand was due plaintiffs, at least to the extent or value of the repairs placed upon the mixer, and that they were not liable in any manner for damages to the mixer.

Only issues of fact are involved in this proceeding, and we find nothing in the record before us which supports the judgment as rendered.

Robert E‘. Reynolds is the sole witness for plaintiffs; there is nothing in his testimony which establishes with any certainty the claim or account sued upon, and nearly all his evidence is devoted to questioning the correctness of the carefully itemized account of defendants. We are unable to find any proof offered by plaintiffs or any admissions made by defendants which could establish plaintiffs’ main demand beyond the amount which has been allowed. However, plaintiffs’ failure to answer the appeal confines the main demand to this amount, and resolves the issue on appeal to defendants’ counter demand for repairs to the damaged mixer.

Defendants have established, by four witnesses, that the mixer was operated only by plaintiffs’ employee up to the time it was damaged; that failure of this employee to properly lubricate the mixer caused it to be broken and rendered useless, and that the expenses for labor necessary to repair the mixer was $114.48, an amount actually disbursed by defendants, as shown by payrolls and time checks. There is no rebuttal testimony to overcome this evidence except Reynolds’ statement that the mixer was in charge of defendants’ engineer both before and after it was broken. The preponderance of evidence is against this statement.

We are satisfied that the mixer was broken while plaintiffs were using it, and that the damage was due to carelessness of the plaintiffs’ operator. It follows, therefore, that plaintiffs must reimburse defendants for the amount expended by them in necessary repairs, to-wit, the sum of $114.48. This amount should have been credited against a like sum due plaintiffs, with the result that the plaintiffs can recover nothing from the defendants.

It is therefore ordered that the judgment appealed from be reversed and set aside, and that there be judgment for defendants, dismissinig plaintiffs’ claim, at plaintiffs’ cost, in both courts.