text:
    No. 13,871
    Orleans
    ST. PHILIP v. LUMBERMEN’S INS. CO. OF PHILADELPHIA
    (November 3, 1931. Opinion and Decree.)
    (November 30, 1931. Rebearing Refused.)
    (January 4, 1932. Writs of Certiorari and Review Refused by Supreme Court.)
    Normann, McMahon & Breckwoldt, of New Orleans, attorneys for plaintiff, appellant.
    St. Clair Adams, of New Orleans, attorney for defendant, appellee.
   WESTERFIELD, J.

This is a suit on a fire insurance policy covering certain household furniture belonging to plaintiff. The amount claimed is $2,000. The suit is defended upon the ground that Frank St. Philip, plaintiff, or someone at his instigation, set fire to the. premises in which the furniture was located for the fraudulent purpose of collecting the insurance.

There was judgment below in defendant’s favor and plaintiff has appealed.

St. Philip was indicted in the Criminal District Court with three others under section 1 of Act 211 of 1928 and charged with arson on two counts, one alleging that he personally set fire to his residence, No. 6037-39 Iberville street, and the other that he caused the house to be burned by someone else. There were two trials, with the result that St. Philip was convicted of procuring the burning, and the other three . defendants acquitted. On appeal to the Supreme Court it was held that an error of law had been committed and the verdict and sentence were set aside, whereupon the district attorney entered a nolle prosequi. In the meantime plaintiff instituted this suit in the Civil District Court and, upon the trial thereof, it was agreed that the case should be heard and determined on the record in the case of State of Louisiana v. Frank St. Philip (the criminal prosecution).

Our .brother below, after considering the record submitted to him, reached the same conclusion that the jury' in the criminal court had arrived at and denied recovery. From his able written reasons for judgment we excerpt the following:

“There is only one reasonable conclusion to be reached from the record, and that is that the plaintiff procured the ignition himself, as he was the only one with a sufficient motive, and the only one with a motive who had the facilities to make the preparations. There is no reasonable basis to reach any other conclusion. * * *
“Men are adjudged guilty” and hanged on circumstantial evidence less convincing than the proof at bar.”

Turning to the record in the criminal trial, which, by agreement of counsel, forms part of the transcript in this appeal, we find that the plaintiff, an Italian truck gardener, lived with his family in a home of his own, No. 6037-39 Iberville street; that on or about the 9th day of March, 1929, he, in company with his wife and three children, went to visit a friend of his by the name of Dimitry; arriving at the Dimitry home at 6:30 p. m., and remaining until 1:00 a. m., when 'they were driven home by Dimitry, and when it was discovered that their house was in flames. At least, this account is the statement of plaintiff and his family and of Dimitry and his wife, though its accuracy is not conceded by counsel for- defendant. At any rate, there is no countervailing proof. The fire, however, was of short duration and, though sufficient tq do considerable damage, was quickly extinguished by the firemen. An examination of the premises after the fire revealed the fact that there were a number of barrels of inflammable-oil on the premises, some of which were overturned and others with the bungs removed. Excelsior and other material calculated to feed the flames, were strewn about, and one keg of oil had been placed in the attic. St. Philip and the members of his family denied any knowledge of the presence of the barrels of oil and of the excelsior, but proof that this inflammable material had been placed upon the premises before the fire is conclusive, and plaintiff’s counsel -frankly concedes that the fire was of incendiary origin. He strenuously insists, however, that there is no proof connecting St. Philip with the fire and that the circumstantial evidence, upon which the jury in the criminal court convicted St. Philip, is insufficient to establish his guilt even in a civil suit, where the issues are determined by a preponderance. of the evidence, and certainly not sufficient in a criminal court, where one is found guilty upon evidence so strong as to exclude every reasonable hypothesis of innocence. It is not enough, say counsel, that an inference or presumption should arise from the proven facts creating suspicion. Adams v. Liverpool & L. & G. Ins. Co., 5 Orleans App. 301.

It must be conceded that there is no direct testimony in the record connecting St. Philip with the burning of his home, the evidence being entirely circumstantial, but we believe that, such as it is, it is sufficient to create a presumption so strong as to exclude any other reasonable hypothesis. The statement of St. Philip, corroborated by the other members of his family, to the effect that he locked his home at 6 p. m. of the evening of the fire, and that at that time there were no combustible materials such as were found after the fire, which occurred some six hours later, if true, means that someone during that interval put the oil and excelsior in the house in order to burn it do.wn. If this was done by a stranger, as St. Philip would have us believe, it would have been necessary for him to get his oil barrels and excelsior together and to wait until an opportunity should arise to plant them in the home in the absence of St. Philip and his family. But since there is a reason for all things, including the conduct of human beings, why would anyone take the trouble and assume the risk involved in the destruction of the home of an humble Italian truck farmer, without rhyme or reason? Perhaps, if it had been shown that St. Philip'had an enemy of a violent and criminal disposition, imbued with an irresistible desire to do him injury and wreak vendetta vengeance for a real or fancied wrong, the finger of suspicion might have been pointed in that direction with such emphasis as to unsettle the irresistible conviction of plaintiff’s guilt, which the record compels. But there is nothing of that kind in the testimony. On the contrary, the plaintiff is shown to have been a mild, peace-loving, quiet man of family and to have borne a good reputation and to have enjoyed the respect and good will of his neighbors.

Of course, it is possible that he was the victim of circumstances, and, however unlikely it may seem, someone unknown to him, acting independently and for some purpose of his own, may have started the fire. If such be the case, a grave injustice will have been done plaintiff, in his personal and property rights, and his good name will have been tarnished by the stigma of undeserved pollution. We have no doubt that instances have occurred in the past and will recur in the future, wherein the reliance upon circumstantial evidence has resulted in even greater and more grievous error. All judicial systems, being human, are imperfect, and their operation must inevitably result in certain vicarious sacrifices. All a court of justice can do is to hew to the line of correct judicial procedure and let the chips fall where they may.

Our conclusion is that, in view of the verdict of the jury in the criminal trial and the finding of our brother below upon the record and the testimony adduced in that court, together with our independent examination, no other result can be reached than that the plaintiff in this case was guilty, either directly or indirectly, of the incendiarism conceded to have been the cause of the fire which destroyed the property, for the value of which this suit is brought. The suggestion that a pyromaniac might have been responsible finds no support in the record, as there is nothing to indicate the presence of such a rare individual in the vicinity.

For the reasons assigned the judgment appealed from is affirmed.


source: Caselaw Access Project

author: WESTERFIELD, J.

license: Public Domain

text:
    No. 13,823
    Orleans
    MIORIANA ET AL. v. STAR CHECKER CAB CO., INC., ET AL.
    (July 1, 1931. Opinion and Decree.)
    (October 19, 1931. Rehearing Refused.)

      James N.. Brittingham, Jr., and M. C. Scharff, of New Orleans, attorneys for plaintiffs, appellants.
    •P. L. Fourchy, of New Orleans, attorney for defendants, appellees.
   WESTERFIELD, J.

Mrs. Rose Mioriana was run down by a taxicab at about 7:30 p. m. of the evening of April 2', 1930. She received injuries from the effect of which she died. Her major children bring this suit against Gilbert Rhodes, the driver of the taxicab, and the Star Checker Cab Co., Inc., his employer, claiming $22,896.50 as damages for the alleged negligent killing of their mother.

The case was tried before a jury which brought in a verdict in favor of defendants dismissing plaintiffs’ suit. Plaintiffs appeal from a judgment based upon that verdict.

The accident happened on Governor Nicholls street, between Marais and Villere streets. The taxicab, just prior to the accident was proceeding on Governor Nicholls street going from the river towards the lake. As it passed Marais street a truck moving in the opposite direction made it necessary for the driver of the taxicab to drive towards the right. As he did so, and when within four or five feet of the downtown curb of Governor Nich611s street, he struck Mrs. Mioriana who, according to some witnesses, had just entered the street from the downtown side with the intention of crossing over to the uptown side and, according to other witnesses, had almost completed the crossing from the uptown to the downtown side.

Plaintiffs’ counsel insist that Mrs. Mioriana crossed from the uptown side of Gov: ernor Nicholls and had almost succeeded in crossing the street, being within four or five feet of the curb when she was struck, and, that she was in plain view of the driver of the taxicab during the entire time in which she ivas slowly negotiating the crossing. Mrs. Mioriana was 75 years old, weighed 250 pounds and was five feet, four inches tall, consequently she was very slow in her movements. .

Defendants’ counsel insists that Mrs.- Mioriana did not cross from the upper to the lower but started to cross from the lower to the upper side and, that she was at no time within the vision of the driver of the taxicab until there was no opportunity to avoid striking her but, in any event, she was crossing in the middle of the block, and was guilty of contributory negligence which continued up to the moment of the accident and bars plaintiffs’ recovery.

Assuming that Mrs. Mioriana’s negligence in thus crossing the street, for it is admitted to have been negligent, was passive, as her counsel contend, and not an active and contributing factor in the accident, it is obvious that the case turns upon a question of fact, that is to say, whether under the prevailing circumstances the taxicab driver could or" should have seen Mrs. Mioriana at a time when there was an opportunity to avoid striking her. The witnesses differ in their estimate of the speed of the cab and also concerning the. distance from the parked automobile and the point where the accident occurred as well as the point from which Mrs. Mioriana started to cross the street. At least one of plaintiffs’ witnesses has been discredited. We cannot say that the testimony clearly preponderates in plaintiffs’ favor. The judge, jury and counsel visited the scene of the accident and according to the record, made a minute inspection of the locus in quo with photographs and tape line with the result that defendants were absolved of responsibility for the accident.

In view of the careful consideration of the jury and the fact that the record does not indicate a marked preponderance either way we see no reason to disturb the findings of the jury and the judgment based thereon, consequently, and for the reasons herein given, the judgment appealed from is affirmed.

JANVIER and HIGGINS, JJ., absent and take no part.

DUNEÍAR, JR., Judge ad hoc, participated-.

ON MOTION TO DISMISS APPEAL

PER CURIAM. Appellees move to dismiss this appeal on three grounds:

• First, that no citation of appeal has been issued; second,' that in the petition for appeal the judgment is referred to as having been rendered and signed on February 27, 1931, whereas the judgment was in fact rendered on February 20, 1931, and signed on February 27, 1931; third, that the bond is defective because it refers to the judgment as having been rendered on February 20, 1931, but mentions no date on which the said judgment was signed.

First. The failure to issue citation is not chargeable to appellants, since, in the petition for appeal, they prayed that citation be issued, and in the said prayer set forth the names of the defendants on whom they desired citations of appeal served. Under sections 36 and 1907 of the Revised Statutes, and under article 898 of the Code of Practice, we are not permitted to dismiss an appeal because of any defect, error, or irregularity in the petition or order of appeal, or in the citation of appeal, or in the service thereof, unless it appears that the error is imputable to the appellants. The failure to serve citations of appeal on' defendants might be chargeable to appellants if the issuance of the citations had not been prayed for in the petition and if the names of the parties to be cited had not been set forth. Adams v. Dermody et al., 21 La. Ann. 238; Guilbeau v. Cormier et al., 21 La. Ann. 629; Gerodias v. Handy et al., 31 La. Ann. 334; McCutchen v. Hudson, 132 La. 178, 61 So. 157; Comire v. Schiro Amusement Co., 6 La. App. 441. But since the citation was prayed for, the fact that it was not issued cannot De said to be imputable to the appellants.

The complaint that the petition does not correctly describe the judgment from which the appeal is „taken is not sufficiently serious to justify our dismissal of. the appeal. Only one judgment was rendered in the case and the fact that it was referred to in the petition for the appeal as having been rendered and signed on February 27, 1931, was not prejudicial to the interests of appellees.

The situation is the same with reference to the failure in the bond to mention the fact that the judgment was signed on February 27th. In each case the error or omission was entirely harmless. We think that the decision of the Supreme Court in Phillips v. Phillips, 160 La. 815, 107 So. 584, is controlling here.

The motion to dismiss the appeal is overruled.


author: JANVIER, J.

text:
    No. 13,787
    Orleans
    HOURGETTE v. CITY OF GRETNA ET AL.
    (November 3, 1931. Opinion and Decree.)
    L. H. Gosserand, of New Orleans, attorney for plain-tiff, appellee.
    Henry P. Viering, of New Orleans, attorney for defendants, appellants.
   JANVIER, J.

There is in the city of Gretna certain real estate belonging to Hourgette, plaintiff. The improvements thereon having been damaged by fire, he undertook the repair and reconstruction thereof.

Acting under instructions of the “Mayor and Board of Aldermen of the City of Gretna,” the police of the said city ordered Hourgette to discontinue the said Work for the alleged reason that no building permit had been obtained, and thereupon he brought this proceeding to enjoin the said police and the said officials from interfering with him in reconstructing his property.

A temporary restraining order was issued, a preliminary injunction was granted, and later the matter was tried on its merits, and judgment was rendered permanently enjoining the said police and the said officials, from further interfering with the said work.

Prom that judgment respondents have obtained a devolutive appeal.

Wé are urged to dismiss this appeal on the ground that the amount involved exceeds our jurisdictional limit. It appears from the evidence that the- whole property is worth probably more than $2,000, but the entire value of the property is not here involved. The only amount in dispute is the value of plaintiff’s right to complete the work which he has started, and we are impressed by the fact that that value is less than $2,000.

While the record does not show the present status of the reconstruction work, we are told in the brief of counsel for Hourgette that the building is now completed and occupied and used for the purposes for which it was intended, and we are urged to dismiss the appeal on the ground that no live issue is now presented, since the purpose of the injunction was to protect plaintiff in completing the work, and that, since the reconstruction has now been fully accomplished, our opinion as to whether the injunction should -have -or should not have been granted will have no effect whatever. Hourgette was. within his rights in proceeding with the work pending the trial of this matter on appeal, since respondents, when the injunction was granted, sought neither a suspensive appeal nor the maintenance of the status quo by application to this court or to the Supreme Court for appropriate writs. However, ■the record itself does not show that the work has been completed,' and respondents, in the absence of any showing to that effect, are entitled to the exercise of their constitutional right of appeal.

The- officers of the city of Gretna claim that they were justified in attempting, through the police department, to prevent the reconstruction because of the failure of Hourgette, prior to the commencement of operations, to secure a building permit as required by Ordinance No. 150 of the mayor and board of aldermen of the city of Gretna. It is. true that that official body had, on May 24, 1920, adopted an ordinance under the terms of which no building could be erected without the pri- or issuance by the tax collector, on recommendation of the city engineer, of a building permit.

It is also true that, although Hourgette had obtained a permit for the original construction of the building a year or so before, he had not secured one before undertaking the contemplated repairs.

The record shows, however, that no building code or other standard regulations had been adopted to guide either the tax collector or the city engineer in determining whether or not permits should be issued, and that thus, in each case these officials were permitted to act each according to his own whim or fancy. What might be approved for one might be rejected for another, and thus an intolerable situation violative of the constitutional rights of citizens might result.

There can be no doubt that the governing aiithorities of a city may adopt zoning and other building regulations, but, in order to do so, they must fix upon standard plans and specifications, and cannot leave it to their own discretion, or to the discretion of some one appointed or selected* to determine whether, in each individual case, the building to be erected is such as should be permitted. If standard regulations are adopted, then it becomes the engineer’s duty not to use his discretion in determining whether any particular building would add to the beauty of the surroundings, or would be safe, or would be sufficiently costly, but his duty is limited to determining whether the plans and specifications comply with the standard regulations. In discussing the question of the constitutionality of city ordinances leaving matters of this kind to the discretion of delegated authorities, commissions, or individuals, the Supreme Court of the United States, in Yick Wo v. Hopkins, 118 U. S. 369, 6 S. Ct. 1064, 1071, 30 L. Ed. 220, said:

“When we consider the nature and the theory of our institutions of government, the principles upon which they are supposed to rest, and review the history of their development, we are constrained to conclude that they do not mean to leave room for the play and action of purely personal and arbitrary power. Sovereignty itself is, of course, not subject‘to law, for it is the author and source of law; but in our system, while sovereign powers are delegated to the agencies of government, sovereignty itself remains with the people, by whom and for whom all government exists and acts. And the law is the definition and limitation of power. It is, indeed, quite true that there must always be lodged somewhere, and in some person or body, the authority of final decision; and in many cases of mere administration, the responsibility is purely political, no appeal lying except to the ultimate tribunal of •the public judgment, exercised either in the ' pressure of opinion, or by means of the suffrage. But the fundamental rights to life, liberty, and the pursuit of happiness, considered as individual possessions, are secured by those maxims of constitutional law which are the monuments showing the victorious progress of the race in securing to men .the blessings of civilization under the reign of just and equal laws, so that, in the famous language of the Massachusetts bill of rights, the government of the commonwealth ‘may be a government of laws and not of men.’ For the very idea that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another, seems to be intolerable in any country where freedom prevails, as being the essence of slavery itself.”

In City of New Orleans v. Palmisano, 146 La. 518, 83 So. 789, 790, our Supreme Court dealt with a situation in which the city had prohibited the installation and operation of gasoline supply tanks, etc., without the payment of certain fees and without obtaining a permit from the commission council. The court held the ordinance to be violative of the Fourteenth Amendment of the Constitution of the United States, for the reason that “it does not prescribe any terms or conditions upon compliance with which a permit shall be granted, or without which it'shall be withheld.” The court further said: “Whether the ordinance was or was not intended to confer, it does in fact confer, upon the commission council, the arbitrary power to grant the permission to one and withhold it from another citizen in a like situation. * * *”

The same question was discussed in two other cases decided by the Supreme Court of Louisiana: State ex rel. Dickson v. Harrison, 161 La. 218, 108 So. 421, 422, and State v. Carter, 159 La. 121, 105 So. 247. In State v. Carter the court said:

“A statute or an ordinance which, instead of prescribing a uniform rule of action, undertakes to vest in a public officer or commission the authority to discriminate in favor of or against persons engaged in a legitimate business or occupation or enjoying a common right by granting or withholding a license or permit or approval, arbitrarily or according to the officer’s or commission’s favoritism or whim, is violative of the equal protection clause of the Fourteenth Amendment (referring to the Constitution of the United States). Yick Wo v. Hopkins, Sheriff, 118 U. S. 356, 6 S. Ct. 1064, 30 L. Ed. 220; State v. Mahner, 43 La. Ann. 496, 9 So. 480; State v. Dubarry, 44 La. Ann. 1119, 11 So. 718; State v. Kuntz, 47 La. Ann. 107, 16 So. 651; City of New Orleans v. Palmisano, 146 La. 518, 83 So. 789; City of Shreveport v. Herndon, 159 La. 113, 105 So. 244; 12 A. L. R. 1436.”

And in State ex rel. Dickson v. Harrison we find the following language:

“What makes the ordinance objectionable is that it prescribes, no uniform rule of action, applicable to all similarly situated, under which the council is to act in granting or withholding permits, but leaves it to the whim and fancy of the council to grant or withhold them.”

That the council, which reserved to itself the right to exercise discretion unbiased by rules or regulations, or that the individuals upon whom such authority may be conferred might attempt to the best of their respective abilities to exercise discretion uniformly and with equal fairness to all, does not cure the defect, or give life to the ordinance. At its passage it was unconstitutional, and, however fairly it might be enforced by any officer or set of officers, life could not be given to it thereby.

But, even if the ordinance on its face did no violence to the constitutional rights of all citizens, the methods, followed by the mayor and board of aldermen in this case would have entitled plaintiff to the injunction, because it appears from the testimony of the city engineer himself, on whose recommendations permits were to be issued or refused, that, in this instance, the permit was or would have been refused without any good reason on his part, but solely because he was “instructed by the council, you might say, to ignore issuing any permit whatsoever to Mr. Hourgette until the council authorized me otherwise.” His further testimony on this point is as follows:

“Q. It was simply that you were told to refuse it by the' council?
“A. Yes, sir.
“Q. And you had no discretion in the matter?
“A. No discretion at all.”

For the reasons given, the judgment appealed from is affirmed, at the cost of appellant.


author: HIGGINS, J.

text:
    No. 13,803
    Orleans
    A. BALDWIN CO., INC., v. WALL
    (December 14, 1931. Opinion and Decree.)
    Sanders, Baldwin, Viosea & Haspel and Robert” Weinstein, of New Orleans, attorneys for plaintiff, appellee.
    A. H. Wagner and Edw. Fallon, Jr., of New Orleans, attorneys for defendant, appellant.
   HIGGINS, J.

This is. a suit on a note secured by a chattel mortgage for the sum of $107, representing the alleged balance due on the purchase price of a radio.

Defendant, in his answer, admits the execution of the note, hut pleads want or failure of consideration because the radio is said to have been mechanically defective and unfit for the use for which it was purchased.

There was. judgment in favor of plaintiff as prayed for, and defendant has appealed.

The record shows that on December 16, 1929, plaintiff sold to defendant a new B-15 radio for the sum of $130, $13 cash and the balance represented by a note for $117 payable monthly in equal installments. About a week or ten days after the radio was installed in defendant’s home he complained that the radio was not giving proper reception because it was tuning in on more than one station at the same time and humming. Within three days from the time of the complaint plaintiff’s mechanic called at defendant’s home and installed a new volume control. When he left the radio was said to be in perfect condition. A short time later defendant again sent for plaintiff’s mechanic, and this time be installed a new tube. During the month of January, 1930, the mechanic was again sent for, and on this, occasion adjusted the condenser, leaving, as he testifies, the radio in perfect conditon. Seven months later defendant refused to pay the past-due installments contending that the radio was not functioning properly and efficiently, with the result that a Mr. Harris, who was then head of the radio department of plaintiff’s, business, called and examined the radio thoroughly. He, found that it was necessary to take the radio to the store, where three new receivers were put in it and three tubes replaced. He then returned the radio to defendant’s home in proper working order. Still defendant refused to make payments, and this suit followed.

Plaintiff contends: First, that the warranty or fitness for the purpose for which the object is. purchased can be waived by the parties to the contract, and that they did so under the following provision of the contract: “No warranties have been made by the vendor unless endorsed hereon in writing.” Second, that the party who claims the rescission of a sale on account of a redhibitory vice must prove that the alleged vice existed at the time of the sale under article 2530, Rev. Civ. Code. And, third, that the party who pleads a redhibitory vice or defect has the burden of establishing such a vice or defect and the fact that some time after the sale repairs may be needed does not signify a vice or defect such as to justify a rescission of the sale on the ground of redhibition under article 2520, Rev. Civ. Code.

Taking up these points in their reverse order, we first observe that the defendant concedes that he bore the burden of proving by a preponderance of the evidence the plea of want or failure of consideration, but strenuously contends that the, evidence shows that the radio had vices and defects which rendered it useless to him.

On the trial of the case the plaintiff offered in, evidence the note and chattel mortgage and rested. Defendant testified that shortly after he purchased the radio he noticed a humming noise when it was playing, and that when he attempted to tune in one station the programs from other stations could be heard. In short, the machine was not capable of bringing in one station and eliminating all others. He admits that the mechanic called three times and worked on the radio, but denies that it was placed in proper working order. He states that his. daughter, who was not produced as a witness, used the radio more than he did, and was also unahle to make it function. His testimony is corroborated by two young men, Jessie Bell and Woodrow Wilson, who state that on the occasions of their visits to defendant’s home that they were unable to get the returns of the ball game without interference from other stations and that there was a humming noise at the time, of reception.

In rebuttal, plaintiff placed on the stand the mechanic who installed the volume control, new tubes, and adjusted the condenser. His testimony is to the effect that these were minor repairs, and that they were easily rectified. Three employees from the credit department of plaintiff testified that they were constantly calling upon defendant to pay his installments, but that he repeatedly put them off. Mr. Harris, head of the radio department, testified that seven months after the purchase of the radio he called and examined the radio, upon defendant’s complaint, took it to the store, and put three new receivers in it and replaced three tubes' and returned it to defendant’s home. He also testified that these were minor repairs and quickly made. The evidence shows that no complaint was made thereafter, and that when defendant was called upon. to pay the delinquent installments he asked for further •time because he had been confined to his home on account of an injury.

In the case of Bewley Furniture Co. v. McDaniel, 14 La. App. 243, 129 So. 418, 419, the plaintiff sued for the purchase price of a radio. The defense was that the machine was defective, made noises, and could not get out-of-town stations. Plaintiff examined the machine at his place of business and found defective tubes, which it replaced, and then found the machine to be in good order. In deciding the case in favor of plaintiff, the court held:

“It is a matter of common knowledge that many things can interfere with reception on a radio; a loose connection, a bad tube, or any one of the numerous electrical machines and things of that kind that cause local interference and mar perfect reception. This could all happen and the machine still be perfect. It was incumbent on defendants to show by proper testimony that the machine itself was defective and they cannot resist payment of the price of the machine until they have done that. It is not shown that any of defendants’ witnesses -were experts on radio or that any of them knew anything about a radio.” See, also, Philip Werlein, Ltd., v. Sallis, 8 La. App. 61; Radio Shoppe, Inc., v. Thompson, 10 La. App. 742, 122 So. 909.

The only evidence in the record as to the vices and defects in the radio is the testimony of plaintiff’s two experts, who both say that the repairs were of a minor nature and such as usually found in radios that are in operation. Defendant did not produce any witnesses or introduce any evidence to contradict this. u

After a careful reading of the record we believe that defendant has failed to prove by a preponderance of the evidence defects or vices of the nature and kind which would bring his case within articles 2520 and 2530 of the Revised Civil Code, giving him the right to rescind the sale on account of redhibitory vices or defects, and hence that he has not shown that there was a failure of consideration for the note on which the suit is based.

In view of our conclusion, it is unnecessary to consider, the other points raised by plaintiff.

For the reasons assigned, the judgment appealed from is affirmed.


text:
    No. 13,754
    Orleans
    GUEST & VIVIANO SHEET METAL WORKS, INC., v. HARDOUIN
    (December 14, 1931. Opinion and Decree.).
    Normann, McMahon & Breckwoldt, of New Orleans, attorneys for plaintiff, appellant.
    L. W. Cockfield, of New Orleans, attorney for defendant, appellee.
   WESTERFIELD, J.

This is a suit for $150, the balance alleged to be due on the purchase price of a hot air heating system, which was. installed in defendant’s residence. The suit is defended upon the ground that the heating system was defective, in that it smoked.

There was judgment below in defendant’s favor as prayed for, dismissing plaintiff’s suit. Plaintiff has' appealed.

The sole ’ question presented for our determination is one of fact: Whether the heating system sold defendant was affected with a redhibitory vice; in other words, did it smoke to the extent that its use would be accompanied by such inconvenience that it must be supposed that the defendant would not have purchased it had he known of the defect. R. C. C. art. 2520. The plant was installed in defendant’s. residence oh November 15, 1927, and this suit was filed June 12, 1930. At the time of its installation, $100 was paid on account. In January, 1928, about two months after its purchase, an additional payment of $50 was made, thus leaving a balance of $150, for which this suit was filed.

In support of the defense, the defendant ’himself, his wife, and son testified that every time the' heater was lighted the house would be filled with smoke. Mrs. Hardouin said that her children were nauseated by the smoke. According to the testimony on behalf of plaintiff, but one complaint wa.s ever received, and at that time a mechanic was sent to defendant’s residence, when it was discovered that dust and trash had been swept into the grill, or cool air inlet, which is on a level with the floor, and that, when the trash was removed, the plant was in first-class condition. Mr. Guest, who was president of plaintiff corporation, testified that 350 similar heating plants had been installed in the city of New Orleans, and all of them were in successful operation. Mrs. Hardouin denied that there was any dust in the cool air vent, and that therefore the smoke was not caused by sweepings into the grill, because, she testified, she had placed. over the grill a piece of linoleum, which entirely covered the vent, and that she kept this linoleum in place both summer and winter; but it appears that the heating system in question is what is known as a circulatory system, with the cool air vent leading from the grill on the bottom floor to the heater below, where it is warmed and returned to the rooms, and that, if this vent in the floor be covered, it would disrupt the circulation of air and prevent the furnace from functioning altogether. While Mrs. Hardouin denied the presence of dust in the heater, her husband admitted that dust was found by plaintiff’s mechanic “in the ventilating pipes.” The defendant was constantly dunned by a collector and, according to the collector’s testimony, frequently promised to pay the bill, without complaining of any deficiency in the system, until just prior to the institution of the suit. Both defendant and his wife admit having used the system two years. Defendant also testified that, though the system smoked enough to sicken his children, he made no effort to repair it on his own account, and used it, notwithstanding its sickening smoke, for two years.

Viewing the evidence as a whole, we are unable to agree with our brother below in his findings, and have concluded, with reluctance, that his judgment, though based upon a question of fact, is manifestly erroneous.

The cases relied upon by defendant, Stewart v. Mumme, 14 La. App. 458, 131 So. 683, and Colt Co. v. Seal, 4 La. App. 618, have, we believe, been correctly decided, but are of no avail to defendant here, because of our views upon the question of fact involved.

For the reasons assigned, the judgment appealed from is reversed, and it is now ordered that there be judgment in favor of the plaintiff, Guest & Viviano Sheet Metal Works, Inc., and against the defendant, Rudolph Hardouin, for the sum of $150, with legal interest from judicial demand, and all costs. '


text:
    No. 13,615
    Orleans
    BETTCHER BROS. v. ORIGINAL SWELLS AID AND PLEASURE CLUB (IROQUOIS CLUB, Intervener and Third Opponent)
    (November 16, 1931. Opinion and Decree.)
    (January 14, 1932. Rehearing Refused.)

      Prank William Hart, of New Orleans, attorney for plaintiff, appellee.
    Warren V. Miller, of New Orleans, attorney for intervener, appellant.
   HIGGINS, J.

Plaintiff, as owner and lessor of the premises 207 North Claiborne avenue, sued the defendant for several months’ rent, which was in arrears, and provisionally seized all of the movable property in the building. Defendant made no appearance and judgment by default was rendered' in favor of plaintiff.

Thereafter the Iroquois Club filed a petition of intervention and third opposition claiming the ownership of certain furniture and effects which were seized, and alleging that it had originally occupied the premises as a lessee of the plaintiff and had paid the rent in full; that thereupon plaintiff leased the building to defendant; that it was then agreed between defendant and intervener that in consideration of defendant allowing the furniture and effects to remain in the premises, defendant could have the use thereof; that at the time the sheriff provisionally seized the furniture and effects there were no storage charges due to defendant, and, therefore, the lessor’s lien of plaintiff • did not legally affect the intervener’s property.

There was judgment in favor of plaintiff and intervener has appealed.

The record shows that plaintiff is a commercial co-partnership composed of four brothers, who owned a two-story building which was leased from month to month to the Iroquois Club, which placed certain furniture and effects in the premises. After occupying the building for some time the Iroquois Club and plaintiff, by mutual consent, canceled the lease, the rent having been paid in full. At this time an officer of the Iroquois Club recommended defendant as a tenant and the property was rented to defendant under a month to month lease for $60 per month. The Iroquois Club then entered into an agreement with defendant that defendant could use the furniture and effects of intervener if defendant permitted them to remain in the building.

After occupying the building for some time defendant becáme indebted to plaintiff for more than four months’ rent amounting to $249, and plaintiff, after amicable demand, instituted the present suit and seized all of the movable property in the building.

There is some evidence in the record introduced by plaintiff, tending to show that the Iroquois Club contemplated selling or sold the furniture and effects to defendant, but the preponderance of the evidence is in favor of the intervener that the movables were hot sold but were simply left in the possession of defendant which kept them for the use thereof.

Article 2926 of the Civil Code reads as follows:

“Deposit Defined. A deposit, in general, is an act by which a person receives the property of another, binding himself to preserve it and return it in kind.”

Article 2928 of the Civil Code reads:

“The object of a deposit must be properly some movable thing.”

Article 2929 of the Civil Code provides:

“Gratuitous. The deposit is essentially gratuitous. If the person, with whom the deposit is made receive a compensation, it is no longer a deposit, but a hiring.”

Article 2940 states:

“Use of Thing Deposited. The depositary can not make use of the thing deposited, without the express or implied permission of the depositor.”

In the light of these articles of the Code, it is our opinion that the transaction between intervener and defendant was a deposit.

The question, therefore, is, under what circumstance shall the lessor’s lien affect the property of a depositor.

Article 3260 of the Civil Code declares:

“Lessor’s Privilege vs. Depositor’s Claim. If among the movables with which the house or farm, or any other thing subject to the lessor’s privilege, is provided, there should be some which were deposited by a third person in the hands of the lessor [lessee] or farmer, the lessor shall have a preference over the depositary [depositor] on the things deposited, for the payment of his rent, if there are no other movables subject to his privilege, or if they are not sufficient, unless it be proved that the lessor knew that the things deposited did not belong to his tenant or farmer. (As amended by Act 87 of 1871, p. 202.)”

In interpreting this article of the Civil Code, the Supreme Court in the case of Rose Mercantile & Mfg. Co. v. Stearns, 159 La. 958, at page 963, 106 So. 455, 458, said:

“Intervener also relies on article 3260 of the Civil Code. That article of the Code gives, by necessary implication, to one who deposits movables in the hands of a lessee,, a preference on the things deposited and found in the leased premises, superior to that of the lessor, provided it be proved that the lessor knew that the things deposited did not belong to his tenant.”

Did plaintiff, the lessor in this case, know that the movables in question did not belong to his tenant but were left or deposited there by the Iroquois Club? Emile A. Bettcher, one of the partners of plaintiff partnership, testified as follows:

“Q. But you did know that this property did belong to the Iroquois Club?
“A. Yes, sir.”

From this statement and the other testimony in the record we are convinced that plaintiff knew that the furniture in the leased premises was the property of the Iroquois Club.

In view of this circumstance and under the expressed provisions of article 3260 of the Civil Code as interpreted by the Supreme Court, tne lessor’s lien is not effective against the movable property of the intervener.

For the reasons assigned, the judgment appealed from is annulled, avoided, and reversed, and it is now ordered that there bé judgment in favor of intervener, the Iroquois Club, against plaintiff, Bettcher Bros., a commercial co-partnership composed of Emile Bettcher, Arthur Bettcher, Herman Bettcher, and Alfred Bettcher, and said individual partners, and Maurice Harts'on, civil sheriff for the parish of Orleans, recognizing the Iroquois Club as the owner of the property described in the petition of intervention and third opposition, and dissolving the writ of provisional seizure in so far as it affects the same, and ordering and commanding Maurice Hartson, civil sheriff for the parish of Orleans, to return the said property to the Iroquois Club; all costs of court to be paid by plaintiff.


text:
    No. 14,055
    Orleans
    BECKLEY v. BOURCY
    (November 18, 1931. Opinion and Decree.)
    J. A. Morales, of New Orleans, attorney for defendant, appellant.
   HIGGINS, J.

This is an application for alternative writs of mandamus sought by relator to compel the trial court to sign an order granting a suspensive appeal from a judgment of ejectment rendered under the provisions of Act No. 55 of 1926.

The Record shows that on October 22, 1931, Mrs. T. Beckley, as. landlord or agent of the owner, had a vacate notice served on Mrs. Ernestine Bourcy to vacate the premises 5533 Atlanta street, this city. On November 5, 1931, a rule was taken by Mrs. Beckley, as landlord, or agént of the owner, against Mrs. Bourcy to show cause why she should not be ejected from the premises for the non-payment of five months’ rent at the rate of $20 per month, the rule being returnable on November 10, 1931, at 1:30 p. m. The relator, in her petition for writs, alleges that she filed an answer and special defense, properly sworn to, to the rule denying that Mrs. Beckley was the owner of or agent for the owner of the property, and that relator was in possession of the property under a written authorization from her brother, the owner of the premises, dated October 5, 1929, which was annexed to her petition, and that the said answer to the rule was filed on November 10, 1931, at 11 o’clock a. m. Relator further alleges that she had employed an attorney to represent her, but, 'due to the fact that her attorney was engaged in a trial in the criminal district court, he was prevented from being present when the ejectment proceeding was tried, and that judgment was. rendered against her at about 1:45 p. m. November 10, 1931, by making the rule absolute. But the trial judge in his return to this court states that the answer was not filed at the time the case was called for trial, hut was filed after judgment had been rendered.

Relator further alleges that, as judgment was rendered and signed on November 10, 1931, between 1:45 p. m. and 2 p. m., she had twenty-four hours thereafter in which to take a suspensive appeal as provided by Revised Statutes, art. 2155, as amended by Act 55 of 1926; that the motion for suspensive appeal was presented to the judge a quo between the hours of 9 and 9:30 a. m. of November 12, 1931, and therefore within twenty-four hours, because November 11, 1931, was a legal holiday or dies non, but that the said trial judge arbitrarily and illegally refused to grant the order for the suspensive appeal; and' that relator was also ready to furnish a proper and solvent bond for a suspensive appeal at the same time the motion for the appeal was presented.

The proposed motion and order for the suspensive appeal is. marked “Filed between the hours of 2:30 and 3:00 o’clock P. M. November 12th, 1931” by the deputy clerk of the city court who. also made notation that the bond, which is in the record, was also filed at the same time.' On the motion and order for the appeal, the judge wrote the following: “Appeal refused as coming too late, November 12th, 1931.”

Taking up first the question of relator’s failure to timely file the answer and special defense, under oath, in the ejectment proceedings, it is plain that we must take the return of the trial judge as being accurate because the affidavits of relator and her two witnesses that the answer was filed timely is not supported in any way by the records of the clerk of the city court. We therefore conclude that the answer was filed after the judgment was rendered on November 10, 1931.

What effect would this have upon relator’s right to a suspensive appeal? Revised Statutes, sec. 2157, reads as follows:

“No appeal from any such judgment shall suspend-execution unless the defendant has filed a special defense, supported by his oath, that all the facts contained in his answer are true, and entitle him to retain the possession of the premises, and unless further, he give bond with good and sufficient security for all such damages as the appellee inay sustain.”

In the case of Audubon Hotel Company, Ltd., v. Braunig et al., 119 La. 1070, 44 So. 891, the Supreme Court held that, where an answer by a defendant in an ejectment proceeding under Rev. Statutes, secs. 2155 to 2157 was not sworn to until after judgment was rendered, the judge a quo was without authority to grant an order for a suspensive appeal from the judgment of ejectment. In short, the court held that, in order for the defendant, in an ejectment proceeding, to be entitled to a suspensive appeal from an adverse judgment, it is. necessary that he comply strictly with the provisions of Rev. Statutes, see. 2157. See, also, Parcel Transfer Co. v. Robert E. Lee, 5 Orl. App. 125; Doullut v. Rush, 142 La. 479, 80 So. 665.

But even if the first contention had been resolved in favor of relator by holding that the answer had been filed timely, it appears to us that the motion for the suspensive appeal came too late. Relator, in her petition, states that the judgment was. rendered and signed between 1:45 and 2 o’clock p. m. November 10, 1931, and that the motion and order for the suspensive appeal, together with the appeal bond, were presented to the trial judge between the hours of 9 and 9:30 a. m. November 12, 1931. But the records of the clerk’s office show that the motion and order for the appeal and the appeal bond were filed between 2:30 and 3 o’clock p. m. November 12, 1931. So, therefore, allowing relator the full twenty-four hours, not including November 11, 1931, which was a legal holiday or a dies non, the motion for the suspensive appeal was. filed too late, because the time expired at 2 o’clock p. m. November 12, 1931, and the motion was not filed until 2:30 or 3 o’clock of the same day, which was more than the full twenty-four hours which the law allowed relator to apply for a suspensive appeal. Audubon Hotel Co. v. Braunig, supra.

As the motion wns for a suspensive appeal only, wha,t we have said in the premises does, not affect relator’s right to apply for a devolutive appeal.

For the reasons assigned, the alternative writ of prohibition which we granted on November 14, 1931, is recalled and vacated, and the rule to show cause why a writ of mandamus should not be issued compelling the trial judge to grant a suspensive appeal to relator is dismissed, all at relator’s cost.


author: WESTERFIELD, J. JANVIER, J.

text:
    No. 13,725
    Orleans
    LEIDENGER v. PACIFIC MUT. LIFE INS. CO. OF CALIF.
    (June 8, 1931. Opinion and Decree.)
    (July 1, 1931. Rehearing Refused.)
    (October 6, 1931. Writ of Certiorari and Review Granted by Supreme Court.)
    (January 4, 1932. Opinion and Decree of Supreme Court.)
    Benjamin Y. Wolf, of New Orleans, attorney for plaintiff, appellee.
    Eugene J. McGivney and Solomon S. Goldman, of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

The plaintiff in this case, the beneficiary in a life insurance policy upon the life of her deceased husband, Ferdinand H. ' Bernier, brings this suit for $2,000, the face value of the policy. Ferdinand Bernier died April 5, 1930, as the result of an aeroplane accident -which occurred at a point somewhere between Dallas and Houston, Tex.

The defendant denies liability upon the ground that the policy contained a clause limiting its liability to the return of premiums paid, which, in this instance, amounted to $94, when the death of the insured occurred in aerial navigation except as a fare-paying passenger in a licensed commercial aircraft, operated by a licensed pilot, and flying in a regular civil airway between definite established airports. It is averred that Bernier was. hilled under circumstances not within the exception mentioned; consequently it is claimed that plaintiff is entitled to a judgment for not more than $94, the amount of premiums paid.

There was judgment below in favor of plaintiff as prayed for, and defendant has appealed.

There is no dispute as to the facts. The policy which the defendant company issued which, of course, was the contract between the parties, stipulated that, in the event of the death of Ferdinand H. Bernier, the Pacific Mutual Life Insurance Company of California would pay plaintiff, as widow and beneficiary, $2,000. The policy, however, contained certain stipulations qualifying this main undertahing. For example, if within five years from the date of the policy the insured should engage in any military or naval service in time of war and should die in the service within six months thereafter or during the war, the liability of. the company was limited to “any outstanding dividend additions, together with any dividends left to accumulate and accrued interest thereon, and to the return of the premiums paid hereon.”

There was also a suicide clause stipulating that, in the event the insured should, within one year of the date of the policy, commit suicide, whether sane or insane, the liability under the policy should be limited to an amount equal to the premiums paid thereon.

' There was also a stipulation that, in the event of non-payment of premiums within a certain period mentioned in the policy, it should be' void and “without value” except as set forth in the paragraphs marginally headed “Non-Forfeiture” and “Automatic Non-Forfeiture.”

The policy also contained the clause relied on by defendant, reading as follows:

“It is hereby agreed and understood, in the event of the death of the insured arising, in whole or in part, directly or indirectly, from engaging in aerial navigation, except while riding as a fare paying passenger in a licensed commercial air craft provided by an incorporated common carrier for passenger service, and while such -air craft is operated by a licensed transport pilot and is flying in a regular civil airway between definitely established air ports', the only liability under this policy shall be for a sum equal to the premiums paid hereon,- and the policy shall thereupon be terminated.”

There was also an “incontestable clause” relied upon by plaintiff, which reads, as follows:

“This policy and the application therefor constitute the entire contract between the parties and such contract .shall be incontestable after it shall have been in force, during the lifetime of the insured, for one year from the date of the policy, except for non-payment of premium or for violation of the conditions of the policy relating to military or naval service in time of war.”

It must be conceded that, unless tbe incontestable clause saves, tbe situation, plaintiff’s repovery cannot exceed the amount of premiums paid under the policy, because it is admitted that the circumstances under which he was killed was not within the exception to the limitation of liability affecting death in aerial navigation.

Able counsel for defendant argues that the policy as issued did not cover the risk of death in an aeroplane except as a fare-paying passenger, etc., and that the coverage of Bernier’s policy was thus limited initially, and that the incontestable clause did not affect the situation, for the reason that it could not be construed to mean an extension of the original coverage of the policy. They cite in this connection Metropolitan Life Ins. Co. v. Conway, 252 N. Y. 449, 169 N. E. 642, in which it was -said, referring to the incontestable clause :

“It means only this, that within the limits of the coverage the policy shall stand, unaffected by any defense that it was invalid in its inception, or thereafter became invalid by reason of a condition broken.”

We have the highest respect for the views of the court which rendered the opinion in the cited case, but we find that case irreconcilable with an opinion of this court in the matter of Brady v. Fidelity Mutual Life Ass’n, 13 Orl. App. 35. In the latter case the policy under consideration contained a clause providing that, if the insured resided or traveled south of the Tropic of Cancer without obtaining the written consent of the president, recovery by the beneficiary in the event of death should be reduced to 80 per cent of the face value of the policy. The plaintiff’s husband, Dr. Brady, without obtaining the necessary permission, journeyed south of the Tropic of Cancer, and it was claimed that the limitation of the policy should apply notwithstanding the' presence of an incontestable clause in the policy reading as follows:

“After three years from the date hereof, if the payments hereunder have not been paid when due, this policy, in the event of the death of the member shall be incontestable for the sum payable hereunder.”

The court, however, held that the liability under the policy was absolute after the expiration of the three years.

“A clause in a life insurance policy providing that if the assured shall reside or travel south of -the Tropic of Cancer he shall receive only eighty per cent of the face of the policy, ceases to have any force or effect at the expiration of three years when the policy further provides that after three years after its date it shall be incontestable for the sum payable thereunder.”

In the present case it will be observed that, the effect of the incontestable clause is to select from -the original conditions of the policy only two qualifications affecting the principal obligation of the defendant, which was to pay to the insured’s beneficiary ?2,000 in the event.of his death, providing the policy has been in force for more than one year; -these two exceptions being non-payment of premiums and the violation of the military and naval service clause. In other words, before the lapse of one year all the conditions and qualifications mentioned in the policy affect the agreement of the company, but after the policy has been in force for one year only -two . of these conditions have any force, and the condition relative to aerial .navigation is not found among these two. It therefore appears that, under the plain terms of the policy, plaintiff must recover, since its obligation is absolute; it being admitted that the premiums were paid and the clause relative to military and naval service adhered to. In other words, it is quite clear that the purpose of the incontestable clause was to enhance the value of the policy to the policyholder after one year by removing all conditions affecting the payment of the principal sum save two. Before that time suicide, military or naval service, aeroplane trips, non-payment of premiums, etc., all affected the company’s liability, but afterwards only non-payment of premiums or military and naval service made any difference. A policy one year old was obviously more valuable than one not so old, and policyholders were thus encouraged to continue their policies in force. We believe the case is with the plaintiff.

For the reasons assigned, the judgment appealed from is affirmed.

JANVIER, J.

(concurring). I feel that Brady v. Fidelity Mutual Life Insurance Company, 13 Orl. App. 35, cannot be distinguished and is, therefore, controlling here and, though I believe that the views expressed in Metropolitan Life Insurance Company v. Conway, 252 N. Y. 449, 169 N. E. 642 (Court of Appeal of New York) are more logical; I prefer to follow what seems to be the established jurisprudence of my own state since no question of fundamental right is involved.

After all, the question at issue is not whether there exists the right to limit liability by contract, which right, of course, does exist, but whether, in this -case the intention with reference to the limitation of liability has been clearly expressed.

I concur in the decree rendered by the majority.


text:
    No. 13,910
    Orleans
    TROPEZ-KING v. CRESCENT UNDERTAKING & EMBALMING CO., INC.
    (December 14, 1931. Opinion and Decree.)
    Charles J. Mundy, of New Orleans, attorney for plaintiff, appellee.

      Lester Pailet, of New Orleans, attorney for defendant, appellant.
   HIGGINS, J.

Plaintiff sued defendant on a promissory note, dated November 14, 1929, for the sum of $300, bearing 4 per cent interest from date until paid and 10 per cent for attorney’s fees.

In its answer, defendant admits executing and signing tbe note and that tbe amount thereof is correct, but specially pleads that plaintiff, on November 8, 1930, agreed to extend payment of the note for another year upon payment of $12 accrued interest.

There was judgment in favor of plaintiff as prayed for and defendant has appealed. Plaintiff has answered the appeal and asks for 10 per cent damages for frivolous appeal.

The record shows that the defendant corporation became financially embarrassed and the president prevailed upon some of the stockholders to loan the company certain sums of money for which promigsory notes were given. When these notes fell due the company was unable to meet them and the holders of the notes renewed them for an additional year upon the payment of accrued interest. When the new notes were about to mature the president called a meeting of the stockholders, at which meeting he requested the holders of the notes to renew them for another year upon payment of accrued interest, as . the company was unable to pay the principal. Some of 'the stockholders agreed to this plan, but it appears that plaintiff objected to the renewal of her note and demanded settlement in full.

The testimony of plaintiff’s witnesses and defendant’s witnesses is hopelessly in conflict on this point. Defendant’s witnesses testified that plaintiff agreed to extend the note and accept payment of the accrued interest. Plaintiff’s witnesses denied the alleged agreement and insisted that plaintiff had demanded payment of her note in full. Prom the testimony of the various witnesses we gather that they are about of equal intelligence and credibility. ' We note, however, that the president and the stenographer of the defendant company corroborate the plaintiff in. stating that after the alleged stockholders’ meeting of November 8, 1930, she callgd at defendant’s office on November 14, 1930, and demanded payment of her note. Such action and ’conduct on her part was entirely inconsistent with any previous agreement to renew the note upon' the payment of accrued interest. This circumstance makes us feel that the weight of the evidence is with the plaintiff. The trial judge Who heard and saw the witnesses decided the case in favor of plaintiff, and, since the defense is a special one, and defendant bore the burden of proving it by a •preponderance of the evidence, we believe that his finding is correct.

Prom a careful reading of the record we are convinced that the appeal was taken in good faith and not solely for the purpose of delay and, as a serious question of fact was presented, we have decided to refuse the plaintiff’s request for 10 per cent damages for frivolous appeal.

Por the reasons assigned the judgment a'ppealed from is affirmed.,


text:
    No. 13,787
    Orleans
    BUCCOLA v. NATL. FIRE INS. CO. OF HARTFORD, CONN.
    (November 3, 1931. Opinion and Decree.)
    (January 14, 1932. Rehearing Refused.)
    (February 1, 1932. Writs of Certiorari and Review Refused by Supreme Court.)
    Michel Provosty and Oliver P. Carriere, of New Orleans, attorneys for plaintiff, appellant.
    Stirling Parkerson, of New Orleans, attorney for defendant, appellee.
   WESTERFIELD, J.

Buceóla, the plaintiff in this case, on October 17, 1928, obtained from the defendant, the National Fire Insurance Company of Hartford, Connecticut, a fire insurance policy in the sum of $1,000, covering, for a period of three years, a one-story frame building known as No. 6058 General Haig street in the city of New Orleans. On March 24, 1930, while the policy was in force, the building was damaged by fire in an amount admittedly exceeding the face of the policy. Payment of the loss being refused by the insurance company,, this suit was brought for $1,000, the amount of the policy.

There was judgment below in favor of defendant dismissing the suit and plaintiff has appealed.

Plaintiff’s claim is resisted upon three grounds:

First, because under the express terms of its policy the property was insured against fire only “while occupied as a dwelling,” and when the loss occurred the property was not so occupied, but used for commercial purposes; that is, for the •manufacture of intoxicating beverages.

Second, there was a change of occupancy with increase of hazard, contrary to the provisions of the policy, with resulting forfeiture thereof.

Third, the (policy was annulled by false swearing on the part of the insured in connection with the execution of proof of loss.

The evidence is to the effect that Buceóla had caused a rental sign to be placed 'upon the property reading as follows:

“For rent. Apply next door.”

Observing this sign, a party by the name of Smith called next door and made inquiry of Miss Margaret Ritter, the occupant of the adjoining property, which was also owned by Buceóla, concerning the renting of the premises. Miss Ritter directed Smith to Buceóla, who lived at some distance from the Haig street property on Second street, whereupon Smith called upon Buceóla and rented the property for the sum of $10 per month. About 'two* months after taking possession the fire occurred, resulting in the total destruction of the property. Among the ruins were discovered a number of partially destroyed wooden barrels and a quantity of five-gallon cans and a large tank, also other odds and ends, which, it is claimed, were used in the manufacture of alcohol. Some of the barrels contained cracked corn and other ingredients which were said to emit an alcoholic fragrance.

The first point raised by the defendant is based upon the provision in the policy to the effect that the property is insured while occupied as a dwelling, clearly importing, it is said, that the property was not covered if not so occupied. This clause has been construed as a mere representation and not a warranty:

“But in those cases, where, from the stipulations of the contract, such statement amounts to a warranty, the warranty must be referred to the time of making the proposal, it is not a continuing warranty that it shall be continued to be used and occupied as stated during the entire risk, or that the use and occupation shall not be changed.” Joyce on Insurance, vol. 4, p. 3618, section 2103, and authorities there cited.

However, in the case before us the exclusive commercial occupancy of the dwelling is by no means established by the proof in the record. Miss Ritter, who lived next door to the property, testified that she saw Smith more in, .accompanied by a woman whom she assumed to be his wife; that she saw a load of furniture delivered on the premises; and that, thereafter, frequently, she saw Smith and his wife about the place, sitting upon the front porch and otherwise conducting themselves as would be expected in the case of a married couple occupying the dwelling. The very night before the fire, she says, .she saw • the couple about the premises. Miss Ritter’s testimony is attacked as unworthy of belief because ■ of her statement to the effect that she knew of no still being operated in the premises and had not noticed any odor of fermenting liquids. Miss Ritter, however, conducted a dairy, and it was her practice to leave her home very early in the morning to bring milk to her customers, returning in the early afternoon, and retiring shortly thereafter. If the still was in operation, it is possible that Miss Ritter would not have been made aware of its presence because of her unusual occupation, and, so far as the odors which emanated from fermenting .alcoholic liquors are concerned, the prevailing winds during her waking hours may have wafted thei.r fragrance in the opposite direction, or, perhaps, the operator of the still may have taken some precaution to prevent the escape of these odors; and then, too, it may be that Miss Ritter is not familiar with and could not recognize the odor of alcohol, even though such odors were actually within the scope of her nostrils. From the state of the record we are unable to conclude that the property was not occupied as a dwelling at the time of the fire, whatever may be ■ said of the presence of the still, and the increased hazard which its operation would involve.

On the second point raised by defendant’s counsel, two provisions of the policy are pertinent:

(a) “This entire policy * * * shall be void; * * * if the hazard be increased by any means within the control or knowledge of insured. * * *”
(b) “This entire policy * * * shall be void; * * * if any change other than by death of the insured, take place in the interest, title or possession of the subject of insurance (except change of occupants without increase of* hazard) whether by legal process or judgment or by voluntary act of the insured, or otherwise.”

It is apparent that these two clauses in the policy are inconsistent, because, to provide that the policy shall be void if the hazard be increased by any means within the control or knowledge of the insured, is equivalent to saying that an increase in the hazard without the control or knowledge of the insured'will not invalidate the policy; whereas, to stipulate that the policy shall be void if any change, except death, occur in the interest, title, or possession of the property, except change of occupancy without increase Of hazard, is equivalent to stipulating that a change m the occupancy, of whatsoever nature, which involved an increase in hazard would invalidate the policy with or without the knowledge of the insured.

Defendant’s counsel contends, as we understand his argument, that the phrase “by any means within the control or knowledge of the insured” cannot be used to qualify or to detract from the emphasis of the other clause declaring that the policy “shall be void if any change other than death of an insured takes place, etc.” This clause is claimed to be “an explicit statement that changes of occupants, with increase of hazard shall render the*policy void, even though it shall occur as the result of some act beyond the control of the insured. It is a' declaration in' clear, positive and unequivocal language that if such a change in occupancy occurs, no matter how, and even if the insured is powerless to prevent it, it shall annul the policy.” “The phrase ending ‘within the means, control or knowledge of the insured,’ ” the argument continues, “is only pertinent to a situation involving changes other than those which necessarily affect the interest, title or possession of the subject of insurance.” In other words, one clause attempts to specify in detail the hazardous changes affecting the property, whereas the other clause is intended to supplement it by declaring in general terms that all other changes which may affect the hazard would invalidate the policy only if “within the knowledge or control of the insured.” To quote again from counsel’s brief: “If, however, the insured has knowledge of some act or thing that increases the hazard, other than those specifically enumerated in the policy, and if that act or thing is also' under his control, the obligation is imposed upon' him to put an end to it.” ' This constructión, it is contended; is reasonable and warranted under the circumstances, because the former rule, to the effect that insurance contracts- should be construed liberally in favor of the insured and strictly against the company, no longer has any application in this state for the reason that, in 1898, by Act No. 105, the Legislature introduced the New York standard form of fire. insurance policy and prohibited all others. St. Landry Wholesale Mercantile Co. v. New Hampshire Fire Ins. Co., 114 La. 146, 38 So. 87, 3 Ann. Cas. 821.

It is conceded that the adoption of the New York form has had the effect claimed for it^by defendant’s counsel; that is to say, .that since all other forms of fire insurance are prohibited in this state, no liberality of construction' should be indulged in behalf of an insured and no rule of strict construction operates against the insurer. The policy must, therefore, be construed according to principles of statutory construction, without any leaning toward one side or the other. Viewed in this light and considering both of the clauses under discussion together, we find ourselves in disagreement with defendant’s counsel as to their effect. Indeed, we can hardly conceive of a situation which would require knowledge on the part of the insured of an increase in hazard which would be without the clause where an enumeration is attempted and within the other clause, which plaintiff regards as an omnibus provision. The construction contended for, it seems to us, does violence to the text and has the effect of deleting the requirement that an increase in hazard be within the knowledge or control of defendant, before forfeiture of the policy should result, We think counsel has been misled by authorities applicable to a situation which is not presented in the case before us. In a note found in 12 L. R. A. (N. S.) p. 485, we find the following discussion, which we believe explains the confusion 'which has come to counsel in this regard:

“Where the provision of a fire-insurance policy, avoiding the same if certain conditions are not complied with, is couched in absolute and unqualified language, the authorities are almost unanimously in accord with the above decision in holding the violation of any such conditions by a tenant of the assured to be a violation by the assured himself. Thus, in Liverpool & L. & G. Ins. Co. v. Gunther, 116 U. S. 113, 6 S. Ct. 306, 29 L. Ed. 575, reversing 20 Blatchf. 362, 85 F. 846, in which the policy in suit stipulated for its avoidance if the assured should keep or use upon the insured premises certain articles, and this prohibition was unconditional and unlimited, it was held that a violation by anyone permitted by the assured to occupy the premises was a violation by the assured himself.
“And in Kelly v. Worcester Mut. F. Ins. Co., 97 Mass. 284, in which the policy sued on provided for its avoidance if the insured premises were occupied or used for unlawful purposes, which provision stopped there and added no qualifying words, it was held that the policy was avoided by the insured’s tenant storing barrels of intoxicating liquors in the building with intent to sell the same in violation of law. The court said that this use of the building for an unlawful purpose by the tenant, even if unknown to the owner, avoided his policy by its very terms, the manifest object of which was to define certain risks which the insurers would not assume, without regard to the question whether they arose or existed by the act, or with the knowledge of the assured.
“This rule is approved, also, by the following cases: [Citing numerous authorities.]
“The present form of standard fire-insurance policy, however, usually contains a stipulation avoiding the policy for specified things ‘within the control or knowledge of the assured,’ or language of similar import; and it has accordingly been held in Merrill v. Insurance Co. of N. A. [C. C.] 23 F. 245, that, to defeat a recovery upon a policy providing that any change increasing the hazard, within the control of, or known to, the assured, and not reported to the copipany and agreed to by it, will render the (policy null and void, the insurer must affirmatively prove . that changes made by a tenant, which increased the hazard, were made by the consent of the owner or his agent. [Authorities.]”

On the question of law involved in the second point, we conclude that to avoid a policy upon the ground that the hazard 'has been increased, the increased hazard must be shown to have taken place “within the control or knowledge of insured.” Nor do we believe that the phrase “within the control,” which, as counsel points out, is separated by the disjunctive “or,” contemplates such control as flows from the dominion of owner alone, and cannot agree that the mere fact that an owner has a right to inspect the insured property and to threaten his tenant with dispossession as a means of controlling his occupational activities, and fails to exercise that authority, is sufficient to avoid the policy. We believe the words “control or knowledge” are equivalent to consent, or knowledge, and imply a negative participation in the increased hazard.

It is conceded that Smith, the tenant, who is alleged to have operated the still, was in the property only two1 months, and that during that time neither the owner nor his wife, both of whom testifies that they knew nothing' whatever of the existence of the still, visited these premises. There is no suggestion that Buceóla participated in the alleged nefarious' occupation of Smith, and the low rent ($10 a month) is eloquent testimony to the effect that Buceóla did not know that Smith rented the property for any purpose except residential. There is, therefore, no evidence whatever connecting . Buceóla with the alleged still. Applying the law, as we understand it, and the facts, as we find them, we conclude that the second point is not well taken. Fayle v. Camden Fire Ins. Co., 85 Mont. 248, 278 P. 509; Phila. Fire & Marine Ins. Co. v. English, 232 Ky. 785, 24 S. W. (2d) 616; Joyce on Insurance, par. 2222; Cooley Law of Insurance, p. 1639.

The final contention of defendant is based upon the following provision in the policy:

“This entire policy shall be void * * * in case of any fraud or false swearing by the insured touching any matter relating to This insurance or the subject thereof, whether before or after a loss.”

It is said that this provision was violated because in the proof of loss submitted by plaintiff to the defendant on the 7th of April, 1930, two weeks after the fire, it was stated that the property, at the time of the fire, was occupied by Charles Smith, and, in a second proof of loss submitted in compliance with the request of defendant it is stated that “this building was used for purposes contemplated by the policy and for no other purpose.” The contention-is that, in the first place, the building at the time of the fire was not occupied by Charles Smith, as a residence, and that, in any event, as plaintiff should have known, having visited the ruins before making the second proof of loss, .the building was used for other purposes than those contemplated by the policy. Consequently, having made affidavit to the contrary, Buceóla has voided his policy and deprived himself of all benefit thereof. Claflin v. Commonwealth Ins. Co., 110 U. S. 81, 3 S. Ct. 507, 28 L. Ed. 76; Richard D’Aigle Co. v. Western Ins. Co., 136 La. 777, 67 So. 827. Answering the argument of defendant’s counsel on this point,' plaintiff points out that the proof of loss was (pro forma and, in the words of the policy, that it could not deceive defendant, since it is admitted that the company was in full •possession of all of the facts before requiring the second proof of loss that Buceóla had no intention to deceive anyone and that, consequently, the clause invoked cannot operate a forfeiture. Our attention .is called to the following text found in the Second Edition of Joyce on Insurance, volume 5, at page 5548, section 3339:

“The provision in a policy that any fraud or attempted fraud or false swearing on the part of the insured in making the preliminary proofs shall forfeit all claim against the compahy is q, valid stipulation. An intent, however, must exist, and the general rule seems to be that the statement must be a willfully false one concerning some material matter, and made with the intent to deceive the insurer, in order to work a forfeiture.”

And the following in Cooley’s Briefs on Insurance (2 Ed.) vol. 7, p. 5846:

“As a rule, no attempt has been made to draw any distinction as to the meaning of the various phrases used, such as ‘fraud or false swearing,’ ‘fraud and false_ swearing,’ and ‘fraud by false swearing.’ Whatever the particular phrase, the holding has almost without exception been, as already pointed out,, that the element of fraud must be present.”

And, also, to. the following language in Strauss v. Insurance Co., 157 La. 662, 102 So. 861:

“For false swearing in proofs of loss to prevent recovery on fire policy assured must have made false statements knowingly and willfully, with intent to deceive insurer concerning matter material to insurance.”

. The authorities quoted by plaintiff seem to be in/point and applicable to the facts of this case. Those relied upon by defendant all refer to a situation which is not analogous to that obtaining in the cáse at bar. We might add, however, that it would be expecting a great deal of the plaintiff to require him by affidavit to certify that at the time of the fire the house was being used for the manufacture of alcoholic liquors, since his entire case is predicated upon his lack of knowledge of the presence of a still in the house. Of course, he could' qualify an assertion that a still was in the house by saying that he had only discovered it after the' fire, but here, again, he would be destroying another position he has taken in this suit to the effect that, as a matter qf fact, there was no still on the premises. In any event, all that he could truthfully .say, which is all that any of the witnesses have said, is that a number of barrels and cans, a funnel, and other odds and ends were discovered in the debris. He certainly could not have been asked to swear that these materials formed part of, or were the accessories to, the operation of an alcohol still.

Sixty days having elapsed since the submission of proof of loss, without payment, and the provisions of Act No. 168 of 1908 being invoked, a penalty o.f 12 per cent must be imposed and a reasonable attorney’s fee fixed and charged as a penalty; the act relied on gives us no alternative. We fix the attorney’s fee at $200. .

For the reasons assigned, the judgment appealed from is reversed, and it is now ordered that there be judgment in favor of plaintiff, Carmelo Buceóla, and against the defendant, the National Fire Insurance Company of Hartford, Conn., in the full sum of $1,000, together with 12 per cent penalty, the whole. subject to interest at •the rate of 5 per cent per annum from .judicial demand until paid.

It is further ordered that there be judgment in favor of the plaintiff and against the defendant in an additional sum of $200', as attorney’s fees, and all costs.


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    No. 13,820
    Orleans
    BETZ v. MENVILLE
    (November 16, 1931. Opinion and Decree.)
    (January 14, 1932. Rehearing Refused.)
    (February 1, 1932. Writs of Certiorari and Review Refused by Supreme Court.)
    William H. Talbot, of New Orleans, attorney for plaintiff, appellee.
    Edward Rightor and William H. Sellers, of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

This suit is brought for the damage to plaintiff’s Cadillac automobile resulting from a collision with defendant’s Chevrolet automobile at the intersection of Willow and Robert streets. The defendant in his answer denied all responsibility for the accident but, subsequently, in argument and in brief before this court admitted that he was negligent, insisting, however, that no recovery can be had because plaintiff’s son, who was driving plaintiff’s car at the time of the collision, was contributorily negligent in that, at a time when he might have avoided the accident, he failed to do so.

Defendant’s negligence consisted in his failure to retard his speed when approaching a right of way street and in failing to yield to plaintiff’s automobile, which was well in the intersection at the time and, admittedly on a favored street. His explanation of his conduct given immediately after the impact to the effect that he could not stop at all right of way streets and “get where he was going” speaks eloquently of his fault. Nor do we believe the driver of plaintiff’s car had any opportunity to avoid the accident. He says he saw defendant’s car when about 30 feet distant on Robert street, just before entering the intersection of Willow street, but believing he would stop as the traffic ordinance required him to do in deference to his (plaintiff’s) right of way, he continued on across Willow street. When it appeared that defendant would not stop and the danger of an accident imminent there was no opportunity to avoid striking him.

As to the quantum our brother below allowed $700. Plaintiff’s claim consists of an item of $698 alleged to be due on account of the damage to his Cadillac and the remainder, $144, because of the deprivation of the use of his car. In support of the latter claim it is shown that plaintiff is an undertaker and that the Cadillac car was used in connection with funerals he conducted; that for a period of 30 days he was unable to use this car in some eighteen funerals; that the customary charge for the car was $8, consequently he should be paid $8 for each funeral in which he was unable to use the car. The only proof submitted in connection with this item is the testimony of plaintiff, giving the names of certain individuals at whose funerals he says he had an opportunity to use the car. The explanation given as to the reason for plaintiff being without his car for 30 days is that he was without any satisfactory assurance of a settlement and he did not care to undergo the expense of the repairs under the circumstances. As a matter of fact, the car was not repaired and plaintiff subsequently purchased another for $700 to replace it. We do not believe the proof in support of the claim for loss in connection with funerals handled by plaintiff to be sufficiently established and it will not be allowed.

In regard to the damage to plaintiff’s car, there is in the record the testimony of an experienced automobile mechanic giving in detail an estimate of repairs which amounts to $698. There is also another estimate of $177 given by another mechanic placed on the stand by defendant. The trial judge evidently believed that the mechanic who made the higher estimate was more worthy of belief and rendered judgment accordingly. We are unable to say in this respect that he was in error.

For the reasons assigned the judgment appealed from is affirmed.


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    No. 13,905
    Orleans
    BOYD v. SERVICE DRAYAGE CO., INC.
    (November 30, 1931. Opinion and Decree.)
    Jewell A. Sperling, of New Orleans, attorney for plaintiff, appellant.
    Milner & Porteous. and W. A. Porteous, Jr., of New Orleans, attorneys for defendant, appellee.
   WESTERFIELD, J.

This is an action ex delicto. Plaintiff claims to have been injured due to the negligence of defendant’s employees, in that the driver of a large drayage truck, to which was attached a trailer, prematurely started it at a time when .plaintiff was assisting in the uncoupling of the trailer, with the result that plaintiff’s leg was fractured. The defendant denied that plaintiff had anything to do with the uncoupling of the trailer from the truck, and maintains that, as. the truck started off, the plaintiff made a run for it with the intention of climbing upon it, placing his foot upon one of the springs, which was covered with grease, causing him to slip and fall under the truck.

The sole issue, one of fact, was decided adversely to plaintiff in the court below, and, after carefully considering the testimony in the record, we see no reason to disturb the judgment, since it seems to be amply supported by the record.

For the reasons assigned the judgment appealed from is affirmed.


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    No. 13,749
    Orleans
    TUNG v. CASSAGNE
    (November 3, 1931. Opinion and Decree.)
    (November 16, 1931. Rehearing Refused.)
    Arthur B. Leopold, of New Orleans, attorney for plaintiff, appellant.
    John B. Fisher, of New Orleans, attorney for defendant, appellee.
   HIGGINS, J.

Plaintiff seeks to recover the sum of $134.74, the alleged balance due for laundry service performed by defendant during the first week of July, 1929. The defense is payment. There was judgment in favor of plaintiff in the sum of $.35, and he has appealed.

The law is clear that he who pleads payment admits the existence of the debt and must prove payment. 5 Louisiana Digest, Payment, page 890, sec. 21; Smith v. Turner, 3 La. App. 91; Hitt v. Herndon, 7 La. App. 87; Brown v. King, 7 La. App. 546; Johnson v. Jones, 5 La. App. 220.

The record shows that plaintiff was engaged in the laundry business under the name of “Oriental Laundry.” The defendant conducted a linen supply busines's under the name of “Royal Linen Supply.” Defendant collected linens that needed laundering from his customers, and had the work done by plaintiff. It appears that rthe, account was . settled , between these parties weekly. This relation existed for some time, and on or about September 14, 1929, defendant discontinued' patronizing plaintiff. On August 19, 19'29, plaintiff rendered defendant an itemized statement for the week of August 12th-17th, showing an indebtedness of $138.86. On August 26, plaintiff rendered a statement to defendant for services for the week of August 17th-24th, in the sum of $141.36. On this statement appeared a balance of $138.86 for August. On August 31st, another statement was rendered for the week of August 24th-29th, for $3.61. On September 14, 1929,. a statement' was rendered showing a balance of $138.74 and $146.66 for the week of September 7th and $117.17 for services performed during the week of September 9th-14tk. The first three statements were stamped paid on September 11, 1929, and the last statement marked paid October 16, 1929,. Defendant’s canceled checks covering these items were offered in evidence, and showed that they were deposited by plaintiff.

Plaintiff testified that some time after defendant had discontinued doing business, with him, his auditor went over his books and discovered that an error- had been made in not billing defendant for services rendered from July 1, through July 6, 1929, amounting to $134.73; that he and the bookkeeper took the matter up with defendant, who stated that he would check his records with reference to the bill, and that defendant thereafter refused to pay him. Plaintiff admitted, however, on cross-examination that he did not keep the books, and that the information which he testified about was given him by ’ the auditor and bookkeeper. Neither of these parties were produced to corroborate plaintiff’s statements.

Defendant testified that he checked his records, and they showed that he did not owe plaintiff the alleged balance due for services performed during the first week of July.

We think it is significant that in none of the statements of August 19, 26, 31, September 14 and October 15, did plaintiff make demand for payment of the bill in question. Further, on September 17, 1929, plaintiff wrote defendant a letter inclosing the statement of September 14, 1929, and nothing was said about the bill in question. Plaintiff again wrote defendant on October 26, regretting the loss of his patronage, and quoting him more favorable prices, and in this letter nothing was said about the amount sued for.

It is our. opinion that the preponderance of the evidence is, with the defendant on the question of payment, because plaintiff did not testify froln his own knowledge but^from information furnished him by his bookkeeper and auditor, while defendant testified from his own knowledge that all bills were paid, and he is corroborated by the statements sent to him- by plaintiff from time to time and two letters, in none of which the amount -in controversy was mentioned. Plaintiff explains that this, omission was an oversight on the part of his bookkeeper, but neither the bookkeeper nor the auditor were produced as witnesses, to verify his version of the matter.

Since the defendant neither appealed nor answered the appeal, the correctness of. the judgment against him for $.35 cannot be questioned by him.

For the reasons assigned, the judgment of the lower court is affirmed.