author: HIGGINS, J.

text:
    No. 13,940
    Orleans
    GENERAL FINANCE CO. OF LA., INC., v. UNIVERSAL AUTOMOBILE INS. CO.
    (January 11, 1932. Opinion and Decree.)
    (March 7, 1932. Rehearing Refused.)
    (March 30, 1932. Writs of Certiorari and Review Refused by Supreme Court.)

      Prowell, McBride & Ray, of New Orleans, attorneys for plaintiff, appellant.
    Leslie P. Beard and C. A. Peyronnin, of New Orleans, attorneys for defendant, appellee.
   HIGGINS, J.

This is a suit by a finance company, which deals in notes secured by chattel mortgages on automobiles, against an insurance company, claiming that it is the beneficiary under a “loss payable clause” in a policy of theft insurance issued by the defendant on December 10, 1929, to one Michael F. Cross, covering an 8-cylinder Gardner automobile, upon which plaintiff holds a chattel mortgage in the sum of $1,057.72. The petition alleges that the automobile was stolen on December 15, 1929, and prays for judgment against the defendant for the amount of its chattel mortgage note of $1,057.72, with legal interest from judicial demand, and 25 per cent as. damages because of the defendant’s illegal refusal to pay plaintiff within sixty days after proof of loss was filed, and also a reasonable attorney’s fee, under the provisions of Act No. 59 Extra Session of 1921.

Defendant admits, the existence and issuance of the policy of insurance, but denied all of .the other allegations of the petition. Defendant also specially pleaded that the policy is null and void, due to the fact that it was obtained by fraud, as the insured made false statements of fact of a material character, which constituted a breach of warranties; that the false statements were made for the purpose of inducing defendant to issue the policy, and that, had defendant known that the statements of the said insured were untrue, the policy would no.t have been issued; that the said misstatements were that the car insured was. a new car, purchased during December, 1929, for $2,195, when in truth the automobile was a secondhand one, purchased during November, 1929, for the sum of $1,550.

The judge of the trial court dismissed plaintiff’s suit on the ground that it was the duty of Cross, the insured, when the policy came into his possession, to have read it and to have advised the insurance company of the errors contained in the policy, and, having failed to do so, he thereby lost all rights under it, and that plaintiff enjoyed no greater right than the insured. Plaintiff has appealed.

The record shows that Michael Cross was a trainman by occupation and had a friend by the name of G. B. Black, who was an automobile salesman, and formerly engaged as a life insurance salesman. Black was also a friend of one John Maher, who was an insurance salesman connected with the office of Miller & King, insurance brokers. When Black sold an automobile, he advised the purchaser to place the insurance of the car with Mr. Maher, who attended to the details of issuing the policy for the company. Black owed Cross $370, and had transferred to him a Chevrolet car in liquidation of the debt. Subsequent thereto, Black saw what he considered a good bargain in an 8-cylinder Gardner car and, on November 16, 1929, Cross, on Black’s suggestion, purchased the car from the Gardner Sales Company for .the sum of $1,550, paying' $100 cash, and being allowed on the purchase price a further credit of $550 for the used Chevrolet car. Cross signed a note secured by vendor’s lien and chattel mortgage for the difference, plus finance charges, or $1,057.72. The total amount that Cross paid for the car, including the finance charges, was $1,707.

It appears that the representative of the Gardner Sales Company called up an officer of the plaintiff company for the purpose of determining if the finance company would be interested in purchasing Cross’ note. Investigation into Cross’ credit standing and an inspection of the automobile proved satisfactory .to the plaintiff’s officer, and the note was purchased by the plaintiff from the Gardner Sales Company. Black suggested to Cross that the insurance be placed on the car through John Maher. There was some delay in effecting the insurance, and the officer of the finance company was constantly admonishing Cross that the insurance should be placed on the car. Cross directed Black to have Maher insure the car. Maher called at Black’s employer’s place of business and, after inspecting the car, issued the policy in question on December 10, 1929. The finance company paid the premium on December 12, 1929. The automobile was stolen from the driveway at Cross’ home on the night of December 14, 1929, or the morning of December 15, 1929.

The controversy arose over what Maher states that Black told him at the time that the application was made to secure the insurance. Maher testifies that Black called him on the telephone about insuring the car, and that he took one of the company’s application blanks and went over to Black’s employer’s place of business; that Black stated the car was a new one, purchased during December, 1929, and that Cross paid the sum of $2,195 for it; that he wrote down the information as Black gave it to him; that he and Black went and looked at the automobile in order to obtain .the serial and motor numbers; that an inspection of the engine and the car, inside and outside, convinced him that it was a new car; and that, based on Black’s representations, he caused the policy to be issued for the sum of $1,-500. He admits he fixed the amount of the insurance.

Black denies that he stated the automobile was a new car and that it had been purchased by Cross during December, 1929, for $2,195, but says he told Maher that the car was delivered for that price in December, 1929. He also states that, at the time he and Maher examined the car, the speedometer showed that it had traveled approximately 2,000 miles, and consequently was not a new car.

It further appears from the record that the automobile had been sold by the Gardner Sales Company to one of its salesmen by the name of Sam Bird on September 23, 1929, and thereafter it again became the property of the Gardner Sales Company, which used it as a demonstrator; that the automobile was sold to Cross on November 16, 1929, and had been used by him.

The law is clear that defendant had the burden of establishing its special defense. Valesi v. Mutual Life Ins., Co., 151 La. 405, 91 So. 818; Boisblanc v. Louisiana Equitable Ins. Co., 34 La. Ann. 1167; Corpus. Juris, vol. 33, page 107, par. 827.

As we view the record, we have a situation where the defendant seeks to establish by one witness the alleged fraudulent misrepresentations which are denied by the party who is said to have made the statements. It is significant that Maher admits that he inspected the car, but, when asked if he looked at the speedometer and saw that the car had traveled about 2,000 miles, denied that he had observed the speedometer. This, to say the least, is very unlikely. He further states that he did not ask Mr. Black the day of the month that the car was purchased; that it was customary merely to get the month that the car was purchased, and that, if it was purchased in any one month and used in that month, it would be considered a new car, without any inspection. He is uncorroborated in this statement, and it is difficult for us to believe the correctness of his testimony in this respect, because if a party purchased an automobile on the first of the month and abused it by failing to properly lubricate the machine and subjected it to rough driving, by the end of the month the car would have considerably depreciated. Furthermore, the young lady, who was placed on the stand for the purpose of corroborating Maher that Black had ’phoned in the information concerning the motor and serial numbers, on cross-examination stated that she did not remember whether the application, filled in. by Maher in his own handwriting, stated that the car was- a new one.

Finally, we note that the Gardner Sales Company was next door to the place where Black’s employer had its place of business, and any information concerning the history of the car, was readily obtainable. Maher admits that, in gathering information cpncerning the car proposed for insurance, he called on the dealer and also consulted the standard book used by the insurance company as to proper valuation of automobiles for insurance purposes.

In view of these circumstances and the fact that the law places the burden of proof upon the defendant, we conclude that defendant has failed to establish that Cross, through Black, was. guilty of any fraudulent misrepresentations. Gitz Sash Factory v. Union Insurance Society, 160 La. 381, 107 So. 232; Beene v. Southern Casualty Co., 168 La. 307, 121 So. 876.

But it is said that when Cross obtained the policy it was his duty to have read it and to have discovered the errors, and to have reported them to the insurance company, even if the insurance agent made the errors. The record shows that the policy was delivered on December 11, 1929, to Black, who, in turn, delivered it to Cross, who placed it with the plaintiff finance company. There were only four days intervening between .the delivery of the policy and the theft of the car. We do not believe that the failure of Black, Cross or the finance company to discover the errors in the policy annulled it and, caused Cross and the plaintiff to lose their rights under it. It is not even suggested that the officers of the finance company had any reason to suspect that there were any errors in the policy, or that any of its employees or officers were guilty of any misconduct at all. In fact, the record shows clearly that the plaintiff is a bona fide holder of the mortgage note for value, and held the insurance policy in good faith.

We feel that the errors in the application were made by the representative of the insurance company, and that these errors were carried into the policy when he caused it to be written. The failure of the insured to read the policy of insurance, even though it be conceded that he had a proper opportunity of doing so, does not amount to such laches on his part as will debar him from having the policy reformed. The insured has the right to rely upon the presumption that the policy he receives is in accordance with his application, and his failure to read it will not relieve the insurer of liability.

In Joyce on Insurance, volume 1, page 267, we find the following language:

“If the policy does not accord with the application the failure of the insured to read it does not relieve the insurer from the duty of so writing it and where the application is expressly made the basis on which insurance is effected it is of no consequence that the insured does not read the policy when delivered, or promptly object to its tenor.”

In Eckert v. Century Ins. Co., 147 Iowa, 507, 124 N. W. 170, the court said:

“Failure of insured to examine fire policy, as required therein, and to return it if not in accordance with his statements, will not avoid the policy or forfeit the right of insured to recover thereon.”

See, also, German American Ins. Co. v. Darrin, 80 Kan. 578, 103 P. 87; McElroy v. British American Can Co. (C. C. A.) 94 F. 990; Gristock v. Royal Ins. Co., 87 Mich. 428, 49 N. W. 634; Taylor v. Glen Falls Ins. Co., 44 Fla. 273, 32 So. 887; Fitchner v. Fidelity Ins. Co., 103 Iowa, 276, 72 N. W. 530; Dryer v. Security Ins. Co. (Iowa) 82 N. W. 494. See, also. Hardin Bag Co., Inc., v. Milwaukee Mechanics’ Insurance Co., 160 La. 439, 107 So. 298; Brodie v. Atlas Assurance Co., 158 La. 695, 104 So. 620; State Ins. Co. v. Schreck, 27 Neb. 527, 43 N. W. 340, 6 L. R. A. 524, 20 Am. St. Rep. 696; Parker v. Citizens’ Ins. Co., 4 La. App. 711; Willhite v. Hartford Ins. Co., 8 La. App. 538; Frasier v. Hartford Fire Ins. Co., 9 La. App. 622, 121 So. 666; Beene v. Southern Casualty Co., 168 La. 307, 121 So. 876.

Plaintiff, in its petition, prays for 25 per cent damages and a reasonable attorney’s fee under section 3 of Act No. 59 Extra Session of 1921. We do not believe that plaintiff is entitled to these items, because the assignment by the insured to the finance company, as a holder of the chattel mortgage note on the automobile, is to the extent of its interest of $1,057.72. The loss payable clause reads as, follows:

“Subject to the Terms, Conditions, Limitations and Agreements of this policy, loss, if any, under Section 1 of the Schedule of Perils is made payable to General Finance Company of Louisiana, Inc., as their interest may appear.” j

Since the assignment or the loss payable clause does not expressly grant to the plaintiff, as a holder of the chattel mortgage note, the penalty and attorney’s fee provided in section 3 of Act No. 59 Extra Session of 1921, we cannot assume that it was the intention of the parties to divest the insured as assignor, of those rights.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be, and it is, annulled, avoided and reversed, and that there now be judgment in favor of the plaintiff, General Finance Company of Louisiana, Incorporated, and against the defendant, Universal Automobile Insurance Company, in the full sum of $1,057.72, with legal interest thereon from judicial demand until paid; appellee to pay all costs of court.


source: Caselaw Access Project

author: WESTERFIELD, J.

license: Public Domain

text:
    No. 13,778
    Orleans
    KERN v. SOUTHPORT MILL, LTD. (CHARITY HOSPITAL OF LA., Intervener)
    (July 20, 1931. Opinion and Decree.)
    (October 19, 1931. Rehearing Refused.)
    (November 30, 1931. Writs of Certiorari and Review Granted by Supreme Court.)
    (February 29, 1932. Opinion and Decree of Supreme Court.)
    John E. Fleury, of New Orleans, attorney for plaintiff, appellee.
    Spearing, McConnell & McClendon, of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

The Southport Mill, Limited, operates a cotton-seed oil refinery on Washington avenue near Hagan avenue in the city of New Orleans. Henry G. Kern, an employee, was injured on the 13th of April, 1929, by a motortruck on Washington avenue directly in front of the refinery. He brings this suit against his employer under the Compensation Law (Act No. 20 of 1914, as amended), claiming that there is due him 400 weeks’ compensation, at the rate of $21.45 (the maximum rate under the statute is $20 per week), together with $250 surgical and hospital fees, the whole subject to a credit of $858 previously paid to plaintiff by defendant. The defendant answered, denying that the accident which resulted in plaintiff’s. injury occurred in the course of, or arose out of, his employment. Defendant also claimed that plaintiff’s disability beyond the term for which it had paid compensation was not the result of the accident, but properly chargeable to a pre-existing disease having no relation thereto. The trial court held the defendant liable and rendered judgment as prayed for. Defendant has appealed.

At the time of the accident, li a. m., plaintiff was returning to the refinery to resume his. employment as a steam fitter. He had been directed by Mr. Monsted, the manager of the defendant company, to do some work at the residence of Mr. Rowley, an officer of the company, and had been to Mr. Rowley’s home earlier in the day for that purpose. Mr. Rowley, it seems, paid the refinery for Kern’s services, and some argument is made to the effect that Kern was in Rowley’s, and not defendant’s, employ, when injured. However, the contention is but feebly made and is unimpressive. The serious question in the case is whether Kern’s injuries were incidental to his employment, whether they arose out of it, to use the language of the statute. The argument on this point on behalf of defendant is that in crossing the public street in front of its plant, plaintiff was no more exposed to the danger of injury than other pedestrians, his employment at defendant’s plant adding no additional hazard or peril. Plaintiff contends .that the fact that the accident occurred on a public highway is unimportant, the determining factor being the propinquity of the scene of the accident:

“But the tes.t is: Where did the accident occur? How close was it to the place of employment? And was the employee at the time of the accident doing something for his employer in line with his employment that subjected him .to the danger of injury to which he would not otherwise have been subjected if it had not been for his employment?”

Before an injured employee can recover under the Compensation Law of this state, his injury must have arisen “out of and in the course of” his employment. The laws of some of the other states are not as exacting. See Conaway & Clark v. Marine Oil Co., 5 La. App. 134. In Louisiana, however, both conditions must be present. The injury must have been inflicted in the course of the employment and as an incident thereto; it must have arisen out of it. It is not sufficient .that the injury should have occurred in the course of the employment, but it must have been incidental thereto. No recovery can be had for an injury which cannot be traced to the employment as a causative factor. The question of whether the injury bears any causal relation to the employment and may be said to have been sustained in the course of and to have arisen out of the employment has been the subject of consideration by many jurisdictions and without harmonious result.

“Practically every court has offered an explanation for these words, but without success. The precedents of other courts are treated with suspicion, and later cases repudiate the labored explanations of the earlier ones, with the result .that the whole subject has been greatly. confused. Indeed, the opinions under the statute have, if such a thing were possible, intensified the common law maze of apparently conflicting and often unintelligible statements, observations, and reasonings, which thoughtful judges deplore.” Ruling Case Law, vol. 28, sec. 88, p. 796.

In Myers v. Louisiana Ry. & Nav. Co., 140 La. 937, 74 So. 256, 257, the court thus states, the principle:

“The test to determine whether injuries to a workman arise out of his employment is not whether the cause of the injury, that is, the agency producing it, was something peculiar to the line of employment, but whether the nature of the employment was such that the risk from which the injury resulted was greater for the workman than for a person not engaged in the employment.”

The plaintiff in the case at bar was- run down in a public street in front of his employer’s plant. He can only recover if the peculiar circumstances of his employment subject him to greater peril of street accidents of this kind than is. the common lot of other members of the general public.

“Concerning the peril of street accidents the rule is that an award for injury or death which resulted from peril common to all mankind will not be allowed.” Ruling Case Law, vol. 28, p. 804.

Was there anything in the nature of plaintiff’s employment as steam fitter which would subject him to greater peril on that account? His duties did not require him to be in the public streets, and it does not appear that as a steam fitter he had more occasion than other employees, or other persons, to traverse the highway in front of defendant’s plant. In coming to work on a street car it was necessary for plaintiff and other employees to cross Washington avenue in order to get to defendant’s plant, because of the fact that the street car tracks were on the opposite side of the street, or roadway; but in crossing the street in front of the plant, plaintiff was no more exposed to the danger of injury in traffic than if he had attempted to cross at a point more distant from the plant, or any other street with an equal amount of traffic, at any other point in the city. It does not seem to us that the fact that he was hurt in the vicinity of defendant’s plant has anything .to do with the situation. It was, of course, necessary for him to be in the vicinity, and if it be argued that if he had not been there, he would not have been injured, we reply in the language found in Ruling Case Law, vol. 28, at page 807:

“In answer to the argument that the employee would not have been injured unless he was at the place of employment, it has been said that ‘in the same sense, the fact that he was. born establishes a causative connection. If he had never come into being he could not have been struck by lightning. The same argument might be made for a claim against one who sold a carriage to one who was struck by lightning while riding in it.’ ”

In the case of Cudahy Packing Co. v. Parramore, 263 U. S. 418, 44 S. Ct. 153, 155, 68 L. Ed. 366, 30 A. L. R. 532, relidd upon by plaintiff, an employee was killed at a railroad crossing and recovery was allowed because “the location of the plant was at a place so situated as. to make the customary and only practicable way of immediate ingress and egress one of hazard. Parramore could not, at the point of the accident, select his way. He had no other choice than to go over the railway tracks in order to get to his work; and he was in effect invited by his employer to do so. And this he was obliged to do regularly and continuously as a necessary concomitant of his employment, resulting in a degree of exposure to the common risk beyond that to which the general public was subjected. The railroad over which the way extended was not only immediately adjacent to the plant, but, by means of switches, was connected with it, and in principle it was as though upon the actual premises of the employer.” In the cited case the Supreme Court of the United States refers to a number of English authorities, quoting with approval the statement of Buckley, L. J., in Pierce v. Provident Clothing & Supply Co., Ltd., 1 K. B. 997, as follows:

“An accident arises out of the employment where it results from a risk incidental to the employment, as distinguished from a risk common to all mankind, although the risk incidental to the employment may include a risk common to all mankind.”

This statement of the rule was provoked in a case where a collector, while riding a bicycle in the course of his employment, with the acquiescence of the company, was knocked down and killed by a tramcar. Recovery was permitted because, as a collector on a bicycle, the employee, by reason of his employment, was. subject to a peril greater than the general public, though it included a risk common to all mankind.

In Le Blanc v. Ohio Oil Co., 7 La. App. 721, plaintiff, who had been injured on the highway, recovered because:

“The evidence, as stated, show's that the premises where plaintiff was employed were bisected by the highway and that plaintiff, in the course of his employment had, from time to time, to cross the highway in performing his work, and had the accident occurred while he was so engaged there could not be any doubt as to his right to have recovered; but conceding that the fact of one being exposed to the risk of the • street or highway while actually performing his work would not necessarily entitle him to recover for injuries resulting from such risk when he was not engaged in the work of his employment, unless it could be said that the place of the accident was on the premises of the employer, wé do not think .the latter question is to be determined solely by reference to the fact of the accident having occurred on the highway, but rather with regard to the relation which the place of the accident bears ,to the premises where the person is employed.’’

In Lumberman’s Reciprocal Association v. Behnken et al., 112 Tex. 103, 246 S. W. 72, 74, 28 A. L. R. 1402, Behnken was killed and his dependents permitted to recover under the Texas Workmen’s Compensation Act. Behnken’s employer, the Hartburg Lumber Company, occupied the entire town of Hartburg, Tex., with its plant, which was spread out on both sides, of the Kansas City Southern Railroad. Behnken, in coming to work, was killed by a train at the crossing on the premises of his employer. In that case the court held that:

“The conditions of the employment necessarily and constantly subjected him .to special danger inseparable from the .regular movement over the crossing of railroad engines and cars, regardless of whether operated by his employer or by another. * * * Without subjecting himself to such dangers he could not do what was. required of him in the conduct of the lumber company’s business. * * * To hold that he was not acting in furtherance of the affairs or business of the lumber company would be to give a strict interpretation to this remedial statute, which should be liberally construed with a view to accomplish its purpose and to promote justice.”

In Zabriskie v. Erie R. R. Co., 86 N. J. Law, 266, 92 A. 385, 386, L. R. A. 1916A, 315, Zabriskie was struck by an automobile on a principal street in the city of Patterson. At the time of his injury he was on his way to a toilet habitually used by employees with the employer’s, acquiescence. The court held that Zabriskie’s employment was such that the danger of injury at the crossing was not that of “an ordinary member of the public crossing a street on his own business, but was, the subjection of the employee to that danger by the conditions of his employment.”

Without unduly prolonging this opinion with citations, it will suffice to say that we have given our best consideration to the authorities cited by counsel and have concluded that the accident in this case cannot be attributed to any peculiar hazard incident to the plaintiff’s, employment, but one common to the general public, for which no remedy is given under the compensation statute. The sole ground upon which an argument may be predicated in plaintiff’s behalf is the one which he has stressed — .the fact that the accident occurred very near the plant of the defendant — but nearness alone is not sufficient. The courts have held, in those cases where injury or death has occurred by reason of an employee crossing a railroad track upon the premises of his employer, that recovery should be allowed because of the extra hazard involved by the presence of the-track upon the property of the employer and the necessity of its frequent crossing; but we know of no case involving a street accident where recovery was permitted simply because the street was adjacent to the premises, of the employer.

In Federal Rubber Co. v. Havolic, 162 Wis. 341. 156 N. W. 143, 144, L. R. A. 1916D, 968, the court has well stated the principle:

"The causative danger must be peculiar to the work, and not common to the neighborhood. It must be incidental to the character of the business, and not independent of the relation of master and servant. It need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence.”

It is said that to deny recovery in this case would be to narrow the construction of the Compensation Law, the terms of which are intended to receive the most liberal interpretation of which they are legally capable in the interest of the employee. We have consistently endeavored to so construe the provisions of this act as to further the purpose of the legislation. “The letter killeth, but the spirit giveth light.” See the case of Church of the Holy Trinity v. United States, 143 U. S. 457, 12 S. Ct. 511, 36 L. Ed. 226, for the greatest extension of this doctrine of which we have any knowledge. But the utmost liberality of construction will not justify interpolation of words or the addition of phrases. A workman is not entitled to compensation for accidental injury merely because he is a workman. Nor will it suffice for him to have been hurt in the actual discharge of his duties. There must be a causal relation between the accident and his. occupation. The law was not inspired by either philanthropic or eleemosynary considerations, but solely upon economic impulse. Each industry should bear the loss of its own casualties. The pursuit of hazardous, occupations entailed certain economic losses due to accidents, which, it was believed, was as much a part of the cost of operation as any other item of overhead expense. Prior to the enactment of Compensation Laws this expense was borne by the employee, unless fault could, be imputed solely to the employer. But the Compensation Law, with certain rare exceptions, unnecessary to mention, sweeps aside all Question of fault upon the part of either employer or employee, and treats his injury or death as entailing an expense of operation to the same extent as though part or all of the machinery in the plant had collapsed. But the accident must have arisen out of the employment. The ordinary perils of life and limb, the ills, which human flesh is heir to, are not within the purview of this legislation. Workmen, like other members of the public, must assume all risks incident to the conditions under which we live. The constant presence of a great number of automobiles in our public streets renders the crossing thereof by pedestrians a real adventure, taxing the agility of youth and exhausting the waning strength of age. The plaintiff in this case was unfortunate in that he failed to negotiate the street crossing in safety, as others, in increasing number, are constantly failing to do. But we can discover no causal relation between his occupation and his injury, and, consequently, no relief can be given him under the compensation statute.

For the reasons assigned the judgment appealed from is reversed, and it is now ordered that there be judgment in favor of the defendant, Southport Mill, Limited, and against the plaintiff, Henry G. Kern, dismissing plaintiff’s suit at his. cost. It is further ordered that the intervention of Charity Hospital of Louisiana be, and the same is hereby, dismissed.

MORENO and DUNBAR, JR., Judges, ad hoc, participating.


text:
    No. 13,975
    Orleans
    THOMPSON v. MORAN ET AL.
    (March 21, 1932. Opinion and Decree.)

      Normann, McMahon & Breckwoldt, of New Orleans, attorneys for plaintiff, appellant.
    Sam J. Tennant, Jr., of New Orleans, attorney for defendants, appellees.
   HIGGINS, J.

Plaintiff brought this action claiming damages for loss of wages, medical expenses, and personal injuries alleged to have been sustained as a result of vices and defects in the premises which she leased from defendant. The petition alleges that on May 22, 1930, while going from her room on the second floor to a lavatory situated in the rear on the same floor, plaintiff’s right leg went through the flooring of the gallery due to its rotten and decayed condition, causing the injuries complained of.

The defendants admit that the plaintiff was a tenant in the building, but denied that she was injured as alleged, and averred that, if she were injured, she had not sustained the injuries while on the leased premises; and, in the alternative, in the event that she was injured as she claims, she was guilty of contributory negligence in going upon the gallery after having been warned that it was in a dangerous condition and not safe to use.

There was judgment in favor of defendants dismissing the suit, and plaintiff has appealed.

The record shows that plaintiff had been occupying a room in defendants’ premises, paying a rental of $1 per week; that her room was on the second floor of the building; that in order to go to the lavatory it was necessary to use a side porch; that prior to May 22, 1930, the day of the accident, defendants had discovered the hole in the gallery floor, and had given their representative money to make the necessary repairs; that the representative placed over the hole a marble slab measuring 12" x 18"; that plaintiff, in going to get a pitcher of water, was compelled to use the gallery, and, while walking on it, her right leg, up to her knee, went through one of the boards due to its decayed and rotten condition, causing her to fall backwards; that she was. assisted into the house and the Charity Hospital ambulance summoned; and that she was taken to the hospital, where her injuries were administered to and then brought home by her sister in a taxicab.

The law is well settled .that a landlord is responsible for injuries, sustained by his tenant because of vices or defects in the premises, whether or not he had actual knowledge of the damaged condition of the premises. R. C. C. arts. 670, 2315, 2322, 2693-2695; Klein v. Young, 163 La. 59, 111 So. 495; Lasyone v. Zenoria Lumber Co., 163 La. 185, 111 So. 670; Ciaccio v. Carbajal, 142 La. 125, 76 So. 583; Boutte v. N. O. Terminal Co., 139 La. 945, 72 So. 513; Schoppel v. Daly, 112 La. 201, 36 So. 322; Glain v. Sparandeo, 119 La. 339, 44 So. 120.

It is also clear that the law places the burden of proving the case by a preponderance of the evidence upon the plaintiff in such matters. Prom the testimony of plaintiff, her sister, and defendants’ witnesses and the photographs offered in evidence, it is conclusively shown that the flooring of the gallery was in a decayed and unsafe condition. In fact, defendants, admit that they were apprised of the hole in the flooring and had authorized its repair, but, for more than a week after their instructions had been given, their representative had neglected to repair it. We have no difficulty in coming to the conclusion that the gallery was in an unsafe and defective condition.

The next question is: Did the plaintiff’s leg go through the flooring? She is the only witness who testified to that effect, but her evidence is corroborated by her sister, who also testified in her behalf and by the policeman who testified as a witness for defendants. These two witnesses state that they came to the scene of the accident immediately after it happened, and found the floor broken and that plaintiff was there complaining of being injured and in pain. Furthermore, the Charity Hospital ambulance had been summoned by the policeman and plaintiff placed in it and taken to the hospital, where she was treated and bandaged. Taking these circumstances into consideration, particularly in view of the fact that defendants offered no evidence to contradict or impeach the plaintiff’s testimony, we find that she did injure herself as the result of her right leg going through the flooring of the gallery.

But it is said that plaintiff was guilty of contributory negligence in going upon the gallery after having been warned of its dangerous condition. It is not easy to understand defendants’ position on this score, because they and their representative testified that the gallery was- in good condition except for the place where the marble slab was placed over the hole. Defendants do not contend that she was told not to use the gallery at all, but to be careful. If the gallery was in such a dangerous condition so that it would not bear the plaintiff’s weight, an adequate guard or barrier should have been placed across the gallery so no one could use it. The placing of the marble slab over the hole was an inadequate guard, and showed that defendants believed 'that the gallery was safe for use by the tenants. The plaintiff was compelled to use the gallery to go to the lavatory. In the case of Landry v. Monteleone, 150 La. 546, 90 So. 919, 920, the Supreme Court said:

“There is no merit in the contention that plaintiff was. guilty of contributory negligence. It is true, she knew that the floor was in bad condition, but she was not obliged to have its strength tested before she ventured to walk upon it. Wise v. Lavigne, 138 La. 219, 70 So. 104; Boutte v. New Orleans Terminal Co., 139 La. 945, 72 So. 513.”

We find that the plea of contributory negligence is without merit.

As to the quantum, it appears that plaintiff was painfully, but in no manner permanently or seriously injured. Her doctor saw her' several times, and rendered a bill for $20. At the time the ambulance came to the house, the doctor, after examining her, said she was able to walk to the ambulance, but, upon her protest, permitted some of her friends to assist her. We are convinced that the contusions, bruises, and cuts on her right leg below her knee were caused by her fall, but find that plaintiff had failed to prove causal connection between the accident and the alleged swelling and tenderness in the pelvic region, incontinence of the urine, and uterine hemorrhages.

In the case of Brown v. Losch, 8 La. App. 278, where a woman weighing 210 pounds fell through the decayed flooring of the gallery — a case very similar .to the instant one — the court reduced the judgment of the district court from $300 to $150. We have concluded to allow plaintiff the sum of $150 for pain and suffering, $42 for loss of earnings covering a period of seven weeks at $6 per week, and $20 medical fees.

For the reasons assigned, the judgment appealed from is reversed, and it is now ordered that there be judgment in favor of the plaintiff, Carrie Thompson, and against the defendants, Miss Cora Moran, Miss May C. Moran, Miss Clara C. Moran, and Frank C. Moran, in solido, in the full sum of $212, with legal interest from judicial demand until paid and all costs.


text:
    No. 13,926
    Orleans
    MOURNET v. SUMNER
    (February 15, 1932. Opinion and Decree.)
    (March 7, 1932. Rehearing Refused.)

      Henry W. Robinson and Henry M. Robinson, of New Orleans, attorneys for plaintiff, appellant. •
    St. Clair Adams, of New Orleans, attorney for defendant, appellee.
   HIGGINS, J.

This is a suit for damages by a widower against a dentist on the ground of malpractice, which is said to have caused his wife much unnecessary pain and suffering and resulted in her death.

The petition charges the defendant with being at fault in using unsterile instruments in extracting two teeth in the lower left jaw of the patient; in fracturing her jawbone in the process of pulling the teeth and failing to promptly discover this injury by not having an X-ray picture made; in not removing a portion of the root of the molar tooth that broke off and remained in the socket and a spicule of bone that lodged in the soft tissue of the jaw, resulting from the extraction of the molar tooth; and in failing, through lack of skill, care, and diligence, to discover and properly treat a serious infection, which caused pus to form in the sockets from where the teeth were removed, with the result that osteomyelitis and toxemia set in and caused the patient’s death.

The defendant denied liability and that he was at fault, and avers that he treated the patient with diligence, care, and skill, and with the proper methods used by dentists in this locality.

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

Our appreciation of the facts of the case, as we gather them from the voluminous record, are as follows:

The deceased was a woman about thirty-two years of age, and, because of ill health sought the advice of her family physician in April of 1929. The doctor found that she was anaemic and placed her on a nourishing diet and certain tonics, for the purpose of building up her body resistance and weight. After a number of visits, she responded favorably to the treatment to a slight degree.

Around April 1, 1930, being in a weak condition and pale looking, she returned to the doctor for further examination. He found that she had been suffering additionally from bronchitis, and continued to treat her for anaemia and the bronchial trouble, but without appreciable success, and, not finding any other focus for the trouble, on or about July 9, 1930, advised her to see a dentist for the purpose of determining if there were any infected teeth. She called upon the defendant, who caused X-ray pictures to be taken of all her teeth by the Tulane Clinic. These skiagraphs showed a considerable amount of bridgework and filled teeth, which work had been previously performed by another dentist. It also appears that there were six abscessed teeth, four in the upper jaw and two in the left lower jaw, consisting of a filled molar tooth and the bicuspid* tooth.

On July 14, 1930, defendant extracted the lower left molar tooth, and in doing so administered nitrous oxide as an antesthetic. The patient reacted very unfavorably to the anaesthetic. In removing the lower left molar, a portion of one of the roots broke off and remained in the socket, as well as a small piece of the jawbone that surrounded the tooth. The defendant discovered that a portion of the root of the tooth had broken off, but did not realize that a fragment of the bone also had done so. He curetted the cavity, and informed his patient that a small portion of the root of the tooth had broken off, but did not attempt to remove it.

Pour or five days subsequent thereto he took out the lower left bicuspid tooth, which adjoined the molar tooth previously removed. On this occasion the defendant did not administer the same anaesthetic used in the first operation on account of the patient not receiving it well, but used a local anaesthetic of novocaine by letting it seep into the soft tissue around the tooth, but without injecting it into the gum. After the extraction of the molar tooth, the patient’s face became swollen, and the cavity and the region around it were inflamed. This condition became more aggravated when the second tooth was drawn. The defendant treated the patient’s mouth with antiseptic washes,, syringing and mopping out the cavity with ST-37, sodiphene, metaphene, and stopain. These treatments were administered daily until August 28, 1930.

In the meantime the patient had visited her family doctor on July 22, August 4, August 12, and August 22, 1930. On August 28, 1930, her physician, Dr. Robin, advised that another dentist be called in consultation, because the condition of the jaw, inflammation, swelling, and some pus formation, was not yielding to the treatment administered by the defendant, and was becoming worse. The defendant, when apprised of the physician’s opinion, sent the deceased to Dr. Ben Matthews, a dentist, who also does X-ray work in connection with dental cases, for the purpose of having another photograph made of the patient’s mouth. Drs. Matthews and Sumner, the defendant, then called upon Dr. Robin and discussed with him this picture. The X-ray was read as showing a small portion of the root of the molar tooth that had broken off still lodged in the socket, with an abscess at the apex of the root and a chipped fracture of the alveolar process, the bone surrounding the tooth, about a sixteenth of an inch thick and approximately one-half inch in length. At that time the patient’s mouth was badly swollen and inflamed, but the doctors felt that there was no reason to be alarmed, as she was not running a temperature.

The patient continued her daily visits to defendant’s office, where the mopping and syringing of the cavities with antiseptic were continued until about September 4 or 5, when she refused to return. During the above period of treatments the patient was able to walk about, going to and from the doctor’s office, and driving her own automobile. From about August 28 to September 8, 1930, the patient expectorated considerable pus, both during the day and at night, and suffered severe pains, and had a swollen condition of the left lower jaw, which caused a protrusion towards the chin .and neck.

On September 8, 1930, the patient walked a distance of about four blocks to Dr. Robin’s office. The doctor found her to be suffering greatly, and incised the swelling under the chin and drained considerable pus from it. At the same time the lower front teeth were bulging from the swollen and inflamed gums and the doctor removed one of them with his fingers, because it was so loose. Dr. Robin became alarmed, and ordered the patient to the French Hospital.

On September 9, 1930, at 9 o’clock a. m., her husband drove her in an automobile 10 the hospital, and she walked into the institution and was immediately placed in bed.

A physical examination of the patient by Interne Staley showed that the patient was a well-developed female of about thirty-two years of age, with no abnormalities, but poorly nourished; that her neck and jaw were greatly swollen, and that she was suffering from severe pain in her jaw and the back of her head; that she vomited a great deal during the day; that there was some evidence of a chest cold, or a fluid in the large bronchi; that the heart was not enlarged, and there were no thrills or murmurs; that her temperature was 101 degrees; and that in other respects she appeared to be normal.

The urinalysis, showed that there was considerable pus, red blood corpuscles, and coarse granular and hyalin casts in the urine. The blood test showed 26,250 •white corpuscles and coagulation time two minutes and fifty seconds.

X-ray pictures were taken the same day by Doctors. Menville and Ane. These pictures were read as showing:

“Unextracted root in bicuspid region, with abscess at apex. Fracture along alveolar margin extending backward to molar region. Some bone absorption along alveolar margin.”

The patient spent an uncomfortable night in the hospital, and did not respond very well to the sedatives administered to ease her pain. There was the usual routine preparation for the operation, which was to be performed on September 10, 1930, at 7 a. m. '

Dr. Robin had called in consultation Dr. Sidney L. Tiblier, a dental surgeon, who recommended that the patient be placed under a general anaesthetic for the purpose of removing four of the front lower teeth, which had become involved and were protruding, and to make an' external incision of the floor of .the mouth for the purpose of giving adequate and proper drainage to the infected parts. At 7:15 a. m. the patient was brought into the operating room and ethylene gas administered as an ansesthetic. The patient reacted very badly, becoming blue. She was revived with oxygen and carbon dioxide. During a period of about a half hour, while the ansesthetist was attempting to properly anesthetize the patient, she turned blue, or cyanosed, three times. In the meantime Dr. Tiblier was able to remove four front teeth with forceps, without much effort, because they were very loose and protruding, due to pus which caused the gums to recede and the teeth to become loose in their sockets. The third time the patient cyanosed she stopped breathing, and for an hour every effort known to medical science was. made to revive her without effect, and the patient died on the table.

The attending physician and the dental surgeon provisionally diagnosed the case as osteomyelitis of the lower jaw, a disease which destroys the bone, following the extraction of teeth, and finally diagnosed it as osteomyelitis of the lower jaw following extraction of teeth, toxemia, and fracture of the alveolar process. They certified that in their opinion the patient died primarily from toxemia caused by osteomyelitis of the lower jaw following the extraction of teeth, aggravated by the anaesthetic.

At this point it may he well for us to inquire into the law covering the case. The suit is brought under the provisions of article 2315 of the Revised Civil Code, as amended by Act No. 159 of 1918, and article 2316 of the Code, which give a right of action to a surviving husband to recover damages for the pain and suffering endured by his deceased wife and her death, which result from another’s negligence, carelessness, imprudence, or want of skill.

The general rule with reference to the responsibility of a doctor for malpractice is stated in 30 Cyc., p. 1507, as follows:

“A physician or surgeon undertaking the treatment of a patient is not required to exercise the highest degree of skill possible. He is only required to possess and exercise that degree of skill and learning ordinarily possessed and exercised by the members, of his profession in good standing practicing in similar localities and it is his duty to use reasonable care and diligence in the exercise of his skill and the application of his learning and to act according to his best judgment.”

This principle of law was approved by our courts in the following cases: Roark et al. v. Peters et al., 2 La. App. 448; Id., 162 La. 111, 110 So. 106; Gouner v. Brosnan et al., 155 La. 1, 98 So. 681; Stern v. Lanng, 106 La. 738, 31 So. 303; Lett v. Smith, 6 La. App. 248; Comeaux v. Miles, 9 La. App. 66, 118 So. 786.

The duty and liability of a dentist to his patient corresponds with that of physicians and surgeons generally. Lett v. Smith, supra; Ruling Case Law, vol. 21, p. 386, verbo “Physicians and Surgeons.”

In the case of Gourner v. Brosnan, supra, in determining who bore the burden of proof in this class of cases, our Supreme Court said:

“The burden is upon the plaintiff to establish by a fair preponderance of the evidence the allegations of his petition charging Dr. Brosnan with ‘negligence, carelessness, want of skill and malpractice’ in the methods he employed and in the manner he treated plaintiff’s wound.” See, also, Roark v. Peters, supra.

Justice William Howard Taft, as the organ of the United States Circuit Court of Appeals, in the case of Ewing v. Goode (C. C.) 78 F. 442, 443, used the following language:

“A physician is not a warrantor of cures. If the maxim, ‘Res ipsa loquitur,’ were applicable to a case like this, and a failure to cure were held to be evidence, however slight, of negligence on the part of the physician or surgeon causing the bad result, few would be courageous enough to practice the healing art, for .they would have to assume financial liability for nearly all the ‘ills that flesh is heir to.’ ” See, also, Cassingham v. Berry, 67 Okl. 134, 150 P. 139, 168 P. 1020; Ayala v. King-Ryder Lumber Co., 146 La. 536, 83 So. 799; Stern v. Lanng, supra; Lett v. Smith, supra; Nixon v. Pfahler, 279 Pa. 377, 124 A. 130.

The rule is well established that a physician or dentist cannot be held liable for the death of a patient under his treatment, where there is no evidence to show negligence or lack of skill on his part, sufficient to overcome the prima facie case in his favor made by the evidence that the treatment adopted by him was the usual and customary one. The fact that a patient died under such circumstances does, not raise any presumption of negligence or lack of skill on his part. Hoover v. Buckman, 194 Ill. App. 308; Edwards v. Uland, 193 Ind. 376, 140 N. E. 546; Moore v. Smith, 215 Ala. 592, 111 So. 918; McGraw v. Kerr, 23 Colo. App. 163, 128 P. 870; King v. Belmore, 248 Mass. 108, 142 N. E. 911; Loudon v. Scott, 58 Mont. 645, 194 P. 488, 12 A. L. R. 1487; Hoffman v. Watkins, 78 Wash. 118, 138 P. 664; Miller v. Toles, 183 Mich. 252, 150 N. W. 118, L. R. A. 1915C, 595; Woodlawn Infirmary v. Byers, 216 Ala. 210, 112 So. 831; Beckwith v. Boynton, 235 Ill. App. 469; Wilt v. McCallum, 214 Mo. App. 321, 253 S. W. 156; Niebel v. Winslow, 88 N. J. Law, 191, 95 A. 995; Kuehnemann v. Boyd, 193 Wis. 588, 214 N. W. 326, 215 N. W. 455; McCoy v. Buck, 87 Ind. App. 433, 157 N. E. 456, 160 N. E. 46; Nixon v. Pfahler, supra; Blodgett v. Nevius, 189 Ill. App. 544; Wilkins v. Ferrell, 10 Tex. Civ. App. 231, 30 S. W. 450.

It has also been held that, in order for a plaintiff to succeed, it is not sufficient to make his case probable, but he must prove it with reasonable certainty. Furlow v. Maison Blanche Co., Ltd., 2 La. App. 351; Roche v. Hotel Grunewald Co., 7 Orleans App. 65; Giarruso v. N. O. Ry. & Lt. Co., 131 La. 559, 59 So. 979; Adams v. Germaine & Boyd Lumber Co., 130 La. 920, 58 So. 815.

Turning our attention again to the record, which consists in the main of medical testimony, we will first take up the charge that the forceps and the instruments used in pulling the patient’s teeth were contaminated. The only evidence in the record on this point is the testimony of the defendant and his assistant. They both state that the instruments were first put in boiling water, after they had been used in a previous case, and placed on aseptic gauze in the cabinet, where they remained until they were to be used again. Immediately preceding the use of these instruments on another patient, they were dipped in a sterilizing chemical solution, and placed upon a freshly laundered towel on the dentist’s table. Counsel for plaintiff strenuously contends that, as the towel from the laundry was not sterile due to the fact that it was handled by those employed by the laundry, the placing of the instruments upon it had the effect of causing them to become unsterile. Dr. Chai-les Duval, pathologist expert, witness for the defendant, on cross-examination testified that, in his opinion, the instruments would lose their proper sterilization by being placed upon any portion of the towel that had come in touch with the human hand, but that, if they were placed upon any other portion of .the towel, the instruments would remain sterile. He further stated that it might be dangerous to follow such a practice in a dental office.

Drs. Jacob A. Gorman, Joseph M. Woodward, Herman B. Gessner, and Charles Du-val, however, pointed out that it was impossible to obtain perfect sterilization in any case, especially in dental work, because the oral cavity is filled with millions of germs, and the mere breathing of the patient would cause the instruments, when placed in the mouth, to become contaminated. In any event, the plaintiff has failed to show causal connection between any infection that the instruments might have carried into the jaw and the subsequent pain, suffering, and death of the plaintiff’s wife. 'This, is particularly true in the light of the testimony that the deceased had six abscessed and diseased teeth in her mouth before she went to the dentist and had been in an ansemic condition for more than a year preceding her first visit to his office.

On the second issue, the evidence is. clear that the jawbone was not fractured in the sense that the bone was broken in two, but there was a fracture of that portion of the bone known as the alveolar process, which surrounds the teeth. There was a chipped fracture of this portion of the bone, leaving a sliver of bone very nearly a half-inch in length imbedded in the tissues of the gum. All of the doctors agree that in extracting a tooth, particularly a molar, where the roots extend to a greater circumference than the opening in the alveolar process, when the roots pass through this opening of the bone, neither being flexible, either the bone or the roots of the tooth must quite often be broken.

The evidence shows that the defendant did not discover the fracture until August 28, 1930, when the X-ray picture was made by Dr. Matthews, but he says that he felt that there might be some small fragments of bone, because that was the common experience in cases of that kind. The preponderance of the evidence of the experts shows that it is not the practice to make X-ray pictures after a tooth is extracted, because these small portions of bone become exfoliated, and, by natural process, are eventually discharged from the gums.

As to the third alleged ground of liability, there is some difference of opinion among the dentists and the physicians and the pathologist as to whether or not the piece of bone and the portion of the root of the tooth should have been removed at the time the .tooth was extracted.

All of the experts agree that, where there is an infected area, it is the standard and accepted practice not to disturb it by doing further surgical work in that area, because the infection would thereby be spread to a greater extent; the exception being where the involved parts will not yield to treatment because the drainage is inadequate and the patient’s condition becomes more aggravated and alarming.

Sidney L. Tiblier, dental surgeon, and Charles S. Tuller, dental surgeon, plaintiff’s witnesses, both testified that in their opinion, when the swelling and inflammation did not subside and there was no response to the antiseptic treatment, radical surgical interference should have been resorted to by the patient being placed under a general anesthetic, and the portions of bone and root of the tooth removed, particularly since there was an abscess, at the apex of the root of the tooth, before the molar was extracted. But on cross-examination both of these experts admit that their opinions are based upon what an experienced dental surgeon would have done in such a case, and not what an ordinary dentist, in this locality, would have done.

Jacob A. Gorman and Joseph M. Woodward, dental surgeons, Ben B. Matthews, dentist, and Herman B. Gessner, physician and surgeon and former dentist, witnesses for the defendant, were of the opinion that, since the X-ray picture taken by Dr. Matthews on August 28, 1930, did not show any grave condition as to bone necrosis, or osteomyelitis, and as the patient was free from fever, Dr. Sumner, the defendant, was justified in continuing the local treatment, and that his conduct in so doing was in keeping with the usual and accepted method of practicing dentistry in this locality.

Dr. Sumner testified that he did not attempt to remove the portion of the root of the tooth because the patient had previously reacted so unfavorably under the ansesthetic of nitrous oxide; that, under those conditions, it would have been exceedingly dangerous, to attempt to continue the operation; that in his practice of thirty years, in which he had extracted over one hundred thousand teeth, it was his experience that small portions of roots of teeth in such cases were eliminated by natural processes, being shoved to the sur-face of the gum, where they could be easily removed. This, he says, is also true of the splintered portion of the alveolar process, or bone, which is absorbed by natural processes and sometimes discharged through the gum. His testimony in this respect is corroborated by the above experts, who testified in his behalf.

We are of the opinion that plaintiff has failed to establish that defendant was guilty of lack of skill in not removing the root of the tooth and the fragment of bone under the circumstances.

Finally, plaintiff contends that the defendant, Dr. Sumner, through lack of care, diligence, and skill, failed to recognize ■that the patient had developed a serious disease, osteomyelitis, which attacks the medulla, or inner or soft tissue of the bone, and then spreads to the hard, bony part, causing necrosis or degeneration of the bone, and, having failed to properly diagnose the ease, he did not apply the proper remedy, and, therefore, the patient developed toxemia as a result of the osteomyelitis, which caused her death.

The evidence is conflicting as to whether or not the patient suffered from osteomyelitis and that her death was. caused thereby. Drs. Tiblier, Robin, and Tuller were of the opinion that the patient was suffering from such a malady, and that it was the primary cause of her death. Drs. Du-val, Gorman, Woodward, Gessner, Matthews, Menville, Ane, and the defendant, were of -the opinion that the deceased was not afflicted with osteomyelitis. Drs. Du-val, Woodward, Gessner, and Matthews were of the opinion that she died as a result of the anaesthetic. The record discloses that, as a whole the experts who testified for the defendant had superior training and greater experience than those who testified for the plaintiff, and, as they were in the majority, as far as numbers are concerned, it would appear that the defendant, to say the least, successfully rebutted the plaintiff’s evidence tending to show negligence and lack of skill on defendant’s part, and that the lady’s death was caused through the defendant’s improper treatment.

Furthermore, all the evidence shows that, while the X-ray picture will not reveal os.teomyelitis in its incipient state, it will plainly do so in its advanced stage, because the bone is destroyed by necrosis. Now it is clear that the X-ray picture taken on August 28, 1930, by Dr. Matthews, and those taken by Drs. Ane and Menville on September 9, 1930, do not show destruction of the bone, as would be the case if the patient had suffered from osteomyelitis. As we have already said, the testimony of the experts for defendant confirmed Dr. Sumner that the treatment he administered was in keeping with the accepted practice of dentists in this locality. Defendant also successfully showed that the toxic condition of the patient might be the result of the abscesses at the roots of her teeth, which condition prevailed before the deceased had called upon the defendant for treatment. The evidence on this point was convincing, because it was pointed out that the patient had been in an ansemic condition for about eighteen months before she was, treated by the defendant, and that the anssmia did not respond to the treatment of her family physician, within a period of at least one year.

A very careful reading of the record and the splendidly prepared briefs by able counsel of both parties leave us with -the conviction that the deceased’s pain and suffering and subsequent death were not the result of the defendant’s negligence, carelessness, imprudence, or lack of skill, either primarily or contributorily.

For the reasons assigned', the judgment is affirmed.


text:
    Nos. 13,985, 13,986
    (Consolidated)
    Orleans
    DYER v. WARWICK COLLENS v. WARWICK
    (March 21, 1932. Opinion and Decree.)
    F. Carter Johnson, Jr., of New Orleans, attorney for plaintiffs, appellees.
    Herbert W. Kaiser, Thomas Tomeny and John H. Hammel, Jr., qf New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

Miss Lillian A. Col-lens and Mrs. Isidore Dyer, the plaintiffs in these two suits, which have been consolidated for convenience, claim, respectively, $600 and $3,552 from the defendant, Warwick, as damages said to have been caused by a collision between Miss Collens’ Dodge and defendant’s Ford automobile. The accident happened at about 5 p. m., on Sunday, February 22, 1931, at a point on the Chef Menteur highway, about nine miles distant from the city of New Orleans.

The trial court awarded Miss Collens $200 and Mrs. Dyer $1,000. Defendant has appealed.

Defendant’s version of the accident is that it was due to the fact that a car driven by Mr. Fred Eckstein emerged from a portion of the road, which, at the time, was closed to traffic, and which, in the testimony, is described as the “condemned” road, and darted suddenly across his path; that because of the sudden appearance of the Eckstein. car he was unable to avoid striking it in the rear, with the result that his own car was thrown out of control and crashed into the Dodge. No fault is imputed to Miss Collens, who was driving her Dodge on the right-hand side of the road at a moderate speed, but the responsibility for the accident is imputed to Mr. Eckstein because of his alleged sudden maneuver in coming from the condemned road across and in front of defendant. There were four passengers in defendant’s car and all but one of them, a young lady who did not see the accident because her attention had been focused in some other direction, support the position of the defendant.

On the other hand, Miss Collens, Mrs. Dyer and two disinterested witnesses, if Mr. Eckstein may be so described, support the plaintiffs’ version to the effect that the accident was caused by the excessive speed of the Warwick car, which was threading the heavy traffic with which the road at the point of the accident was crowded, and which, in attempting to (pass the Eckstein car, struck it in the rear, causing defendant’s car to become unmanageable. One of these witnesses, a Mr. Chavin, testified that at a point about a mile distant from the accident, the defendant passed him in his Ford car at a speed of about fifty miles an hour and swerved into his path so close to his automobile, that it was necessary for him (Chavin) to drive to the side of the road to avoid striking the Warwick car. Chavin estimates Warwick’s speed at 50 miles an hour because he was traveling at the rate of 45 miles per hour when Warwick passed him. Mr. Eckstein, who is an electrical engineer by profession, denied having driven in front of defendant’s car in the manner claimed and denied that he had been driving on the condemned road anywhere near the scene of the accident. His testimony has impressed us with its sincerity and fairness and, in conjunction with the other testimony offered by the plaintiffs, has convinced us that plaintiffs’ version of the accident is the true one. Consequently, the fault must be imputed to the defendant. Miss Collens, who sued for $600, was awarded $200 by the court below. She has clearly established her claim for one-half of that amount as the damage which was suffered by her Dodge automobile, the other $100 being allowed for nervous shock. She was not injured in .any way, except such as may have been sustained by her nerves, which, under the circumstance, must have been somewhat affected. We believe, however, that a nominal sum, say $50, would be sufficient to cover this item of damage.

Mrs. Dyer suffered “severe bruises on the left side of the chest, involving the breast,” and “considerable extravasation of blood into the breast and into the tissues of the chest wall, covering a very extensive area, (possibly one-half the coverings of the chest wall.” One of her eyes was blackened and there were some scratches about her face and some brush burns. There were some bruises on her hip and legs. She suffered considerable pain, but no bones were broken and no permanent injury resulted. Fifty-two dollars of her claim is made up of medical expenses $40, and a ruined blouse $12. These items we will allow. We believe the amount awarded Mrs. Dyer to be excessive and it will be reduced from $1,000 to $552'.

For the reasons assigned the judgment appealed from in the case of Miss Lillian A. Collens against Edwin Warwick is amended by reducing the amount awarded plaintiff from $200 to $150, and, as thus amended, it is affirmed.

It is further ordered that the judgment appealed from in the case of Mrs. Isidore Dyer against Edwin Warwick is amended by reducing the amount awarded plaintiff from $1,000 to $552, and, as thus amended, it is affirmed.


author: DREW, J.

text:
    No. 4187
    Second Circuit
    PRICE ET AL. v. TOWN OF RUSTON
    (January 14, 1932. Opinion and Decree.)
    (February 16, 1932. Rehearing Refused.)

      Argued before DREW, McGREGOR and STEPHENS, JJ.
    J. W. Elder, of Ruston, attorney for plaintiffs, appellants.
    Barksdale, Warren & Barksdale and Walton E. McBride, of Ruston, attorneys for defendant, appellee.
   DREW, J.

Plaintiff instituted this suit against the Town of Ruston to recover the sum of $1,769.28, alleged to be due plaintiffs by the defendant for rent on the third story of the Price building, located in the town of Ruston, for a period beginning January 25, 1930, and ending March 5, 1931, at the monthly rental of $125, being the amount alleged by plaintiffs that was lost to them by the illegal possession of said building by defendant.

They alleged that in suit No. 8389, entitled Frank S. Price et ais. v. Town of Ruston et al., on the docket of the Third Judicial District Court of Louisiana, the plaintiffs in this suit were recognized as the owners of the third story of the building known as the Price building, and, as such, entitled to the use and possession thereof. That the judgment in that suit bears date of April 9, 1930. It is further alleged that the Town of Ruston took a suspensive appeal from said judgment and that on February 2, -1931, the Supreme Court of Louisiana affirmed the judgment of the district court (see 171 La. 985, 132 So. 653). They further alleged that said property was sold by the sheriff of Lincoln parish at a forced sale on January 25, 1930, in the suit of Ruston Building & Loan Association v. Ruston Lodge No. 1134, Benevolent & Protective Order of Elks, being No. 8364 on the docket of the Third Judicial District Court of Louisiana, and that at the time and place of the said sale they (the plaintiffs) made a tender of the sum of $3,100 to the sheriff of Lincoln parish and to the Town of Ruston, the successful bidder at said sale, and demanded that the deed he made to plaintiffs, instead of the Town of Ruston, and that the sheriff and the Town of Ruston, through its mayor, refused the tender, and the sheriff illegally executed deed to defendant and delivered possession of the property to it, and that said illegal possession continued until March 5, 1931. That on account of the refusal of the defendant to accept the tender of the amount bid for the property on January 25, 1930, and on account of its illegal possession and use of the property from March 5, 1931, thus depriving plaintiffs of the use and benefit thereof during said period of about fourteen months, plaintiffs are entitled to recover from said defendant a fair rental value on said property from January 25, 1930, to March 5, 1931, which value is alleged to be $125 per month, the amount they claim to have lost, due to the illegal possession and failure to deliver possession by defendant. They further alleged that the Town of Ruston is responsible for all damages done to said property while in the possession of the town, and for said damages they claim $19.28.

Before answering to the merits, the defendant filed a plea of res judicata, which plea was overruled, also an exception of no cause of action, which was overruled; and set out in its answer that the Ruston Building & Loan Association and Ruston Lodge No. 1134, B. P. O. E., were its warrantors in title, and prayed that they be cited as warrantors and that in the event judgment should he rendered against said defendant, it have judgment against said warrantors in solido for a like judgment. The defendants called in warranty filed exceptions of no cause or right of action, which exceptions were sustained by the lower court.

The Town of Ruston in answer admitted its ¡possession of said property from January 25, 1930, until March 5, 1931, but denied that it owed plaintiffs rent thereon in any amount. The town alleged that it acquired said property in good faith at a public sale made by the sheriff of Lincoln parish and that it held possession thereof under an apparently valid deed executed by the sheriff. In reconvention, the defendant claimed the sum of $300 for cost of repairs and improvements made by it on the property while in its possession.

The judgment of the lower court rejected the demands of plaintiffs and also the demands of defendant in reconvention. Plaintiffs have appealed from the judgment of the lower court and defendant has answered the appeal praying that its exception of no cause of action and plea of res judicata be sustained; and in the alternative, that the judgment of the lower court be amended by assessing the costs of court to plaintiffs, except the cost incurred by defendant in proving its reconventional demand. Defendant did not appeal from the judgment of the lower court sustaining the exception of no cause of action to the call in warranty of the Ruston Building & Loan Association and Ruston Lodge No. 1134, B. P. O. B., therefore, we are not justified in passing on the right of defendant to call them in warranty.

' The plea of res judicata is not well founded. The original suit, No. 8389 on the docket of the Third Judicial District Court, was one to have plaintiffs declared to have the right tg take the property in' question upon paying the price paid by the last and highest bidder at a public sale of said property, in accordance with the stipulations in the contract between the seizing debtor and plaintiffs, made at a time prior to when the seizing creditor became a creditor of the seizing debtor. The issues raised in that suit were entirely different from the issues in the present suit, and the issues in the present suit could not have been raised in suit No. 8389. Furthermore, at the time suit No. 8389 was filed, defendant, Town of Ruston," had been in possession under a deed from the sheriff less than twenty-four hours, and certainly no rent was due then; and the damages sustained by plaintiffs at that time were at least nominal.

The thing demanded in this suit is not the same as that- in suit No. 8389 and is not founded on the same cause of action. In fact, the cause of action set out in the suit at bar had not arisen at the time suit No. 8389 was filed. The ruling of the lower court in overruling the plea of res judicata is correct. A full discussion of the plea of res judicata is to be found in the case of General Outdoor Advertising Co., Inc., v. Hollander, 9 La. App. 339, 120 So. 490, wherein the cases of State v. American Sugar Refining Co., 108 La. 603, 32 So. 965; Woodcock v. Baldwin, 110 La. 270, 34 So. 440, and numerous other decisions of our court are discussed, all of which hold to the view above expressed. The same doctrine is expressed in Roussel et al. v. Railways Realty Co., 165 La. 536, 115 So. 742, and in a late decision of this court, namely, Mrs. Julia McDonald v. City of Shreveport, 18 La. App. 407, 137 So. 568, and in Krotz, etc., Co. v. Shirk et al., 172 La. 194, 133 So. 442.

The exception of no cause of action is based on the following reasons, as set out in appellee’s brief:

“The Price heirs obtained title to the property in question, according to the judgment, when the judgment of the Supreme Court became final and the Clerk paid the Town of Ruston the $3100.00, less the costs of court. According to the allegations of plaintiffs’ petition the judgment became final ‘on or about the 19th day of February, 1931’, and nowhere in the petition, or in the' record for that matter, is it alleged or shown when the money was paid to the town.
“Now, this suit is not a petitory action, but simply a damage suit. The first suit referred to was not a petitory action but a suit for specific performance of a contract between the plaintiffs and the Elks Lodge. We submit that an action to recover the rental value of property must be coupled with a petitory action in the first place, and in the second place such a recovery is a penalty to be paid by the bad faith possessor of the title or interest of another. We submit that the Town of Ruston did not possess the title or interest of the Price heirs in bad faith but possessed the property under a valid deed in its favor. It possessed under its own title, the Price heirs had no title, and the result of the first suit was to force the Town to relinquish that title, for a consideration, to the Price heirs. Nowhere in our law is there any foundation or authority for a suit to recover the rental value under the allegations of plaintiffs’ petition which does not allege bad faith possession and does not allege a state of facts constituting bad faith possession. * * *
“If these plaintiffs have any further fight of action since the termination of the first suit it can only be under Civil Code Article 1926, et seq., which authorizes damages for the breach or in-execution of a contract. But even so, such an action can only be directed against the party breaching or failing to execute that coutract, and the Town of Ruston cannot be involved therein because it has had no contractual relations with these plaintiffs. If the contract has been breached, it has been breached by the Elks Lodge who was the only other party to contract, the provisions of which plaintiffs sought and obtained the specific performance.
“Since plaintiffs had nq title to the prop-' erty, and they do not allege that they had title to it, by what right and for what reason are they entitled to recover the rental value thereof? The Town of Ruston had a valid deed to the property and should not be penalized ,for having insisted on a judicial interpretation of the ambiguous provisions in a contract between plaintiffs and the Elks Lodge, after it had been declared the successful bidder at public sale. Const, art. 1, sec. 6.”

The exception was properly overruled by the lower court, and a discussion of the exception necessarily involves a discussion of the merits, so we will discuss them together. The lower court held that defendant was a possessor in good faith under a title translative of property, and therefore not liable for rent during the pendency of the suit filed for specific performance by plaintiffs against defendant. If defendant was in good faith on January 25th, the date of the sale, and on January 27th, the date of the sheriff’s deed — which we think he was not — it could not have been in good faith under the jurisprudence of this state after the suit was filed, which was on January 28th. R. C. C., art. 503; Dufour v. Camfranc, 11 Mart. (O. S.) 675; Woodcock v. Baldwin, 110 La. 270, 34 So. 440; Brugere v. Heirs of Slidell, 27 Ann. 70; Pecot v. Prevost, 117 La. 776, 42 So. 263; Moore v. Pitre, 149 La. 910, 90 So. 252.

Defendant contends that rents are due under article 503 of the Revised Civil Code only where the action to recover the property is a petitory action and are not due where the suit was for specific performance. In Cooke v. Gulf Refining Co., 135 La. 609, 65 So. 758, the court held that article 503, R. C. C., has application to one claiming as owner and not as a lessor, and a suit thereunder referred to is a petitory action, citing Huyghe v. Brinkman, 38 La. Ann. 836, in which ease the court, in discussing article 503 of the Revised Civil Code, said:

“We understand that to mean a petitory action, or an action in nullity of the possessor’s title. A possessory action cannot accomplish that result.”

However, the direct question that is raised in the case before us was passed on by the court in Manning v. Cohen, 124 La. 870, 50 So. 778, holding that the vendee in a suit for specific performance was entitled to recover as damages the amount of rent lost to him during the period when he was entitled to possession.

Plaintiffs were the owners of a legal, binding option from the Ruston Lodge No. 1134, B. P. O. E., to purchase the property, as was held by the Supreme Court of this state in the case of Price et al. v. Town of Ruston et al., supra. The time fixed for the right to exercise the option to purchase was whenever the Ruston Lodge, B. P. O. E., desired to sell. It was held by the Supreme Court that the option was good as to a judicial sale, as well as to a private sale. When the property was sold at judicial sale in the foreclosure of a mortgage against the lodge by the Ruston Building & Loan Association, plaintiffs attempted to exercise their option by making a legal tender to the sheriff and defendant, Town of Ruston, of the amount of said Town pf Ruston’s bid, namely: $3,100, and demanded that the deed be made to plaintiffs, instead of to the Town of Ruston. Both the sheriff and defendant refused the tender, and the sheriff 'executed the deed to the Town of Ruston. The sale was made January 25, 1930; deed passed January 27, 1930, and on January 28, 1930, plaintiffs filed suit demanding title under their right given in the option, and deposited in the registry of the court of Lincoln parish the amount of $3,100. (See Supreme Court decision: Price et al. v. Town of Ruston et al., supra.)

An option has been held to be an unaccepted offer. It states the terms and conditions on which the owner is willing to sell or lease his land, if the holder elects to accept them within the time limit. If the holder does so elect, he must give notice to the other party, and the accepted offer thereon becomes a valid and binding contract. McMillan v. Philadelphia Co., 159 Pa. 142, 28 A. 220.

Our Supreme Court has said that an option is not an actual or existing contract, but merely a right reserved in a subsisting agreement. In a certain sense, an option is a mere pollicitation, a promise without mutuality, not yet ripened into a perfect agreement. It is a proposition by one party to a contract which must be accepted in precise terms by the other, in order that it may be binding upon both parties. Rivers v. Oak Lawn Sugar Co., 52 La. Ann. 762, 27 So. 118; Schleider v. Dielman, 44 La. Ann. 462, 10 So. 934.

When plaintiffs accepted the terms fixed by the option, the contract to sell became complete and binding. It was then a promise to sell that had been accepted and therefore a contract of sale. Moresi v. Burleigh, 170 La. 270, 127 So. 624, and cases cited therein; also 27 R. C. L. 339.

The obligation required of plaintiffs by the option had been fulfilled when they tendered the amount of the highest bidder to the sheriff and the Town of Ruston. The [promise to sell having been fulfilled, the right under the option to buy having been accepted, and the conditions and terms fulfilled, the legal title passed to plaintiffs as of date January 25, 1930. Lehman v. Rice, 118 La. 975, 43 So. 639; R. C. C., art. 2041; Crochet v. McCamant, 116 La. 10, 40 So. 474, 114 Am. St. Rep. 538; Girault v. Feucht, 117 La. 276, 41 So. 572.

The contract which became binding upon the acceptance by plaintiffs under their rights under the option gave to plaintiffs the right as owners to demand specific performance of the obligation to deliver and transfer to them the property in question.

The language in the case of Lehman v. Rice, cited supra, is applicable to this case. In the case at bar the defendant was bound to take notice that plaintiffs had the legal right to enforce specific performance of the promise of Ruston Lodge, B. P. O. E. A contrary doctrine would render all options or promises to sell real estate nugatory as to third .persons. Defendant purchased subject to the prior recorded right of plaintiffs to have the property conveyed to them on their complying with the conditions of the agreement. Plaintiffs complied with the conditions of the agreement before deed was passed from the sheriff to defendant, and defendant’s deed, in so far as plaintiffs were concerned, was without effect; and when plaintiffs were declared the owners of the property by the Supreme Court of this state, their ownership dated back to the time of the acceptance and tender of the price to defendant and the sheriff. Therefore, the rent claimed by plaintiffs is for a term when the ownership of the property was in them, and they are entitled to recover as damages the amount of rent lost by them during the period they were deprived of their rightful possession by defendant.

The proof of the rental value or value of rent lost by plaintiffs, as disclosed by the record, is very unsatisfactory and is not sufficient upon which to fix the value and amounts due plaintiffs, and, due to the fact that the lower court held plaintiffs were not entitled to a rental value of the property illegally possessed by defendant for nearly fourteen months, we believe that justice will be done in non-suiting the demands of plaintiffs. Defendant has not appealed from the judgment rejecting its reeonventional demand, therefore we cannot disturb the judgment of the lower court thereon. Defendant in answer to the appeal prays that the judgment for costs to be paid half and half by plaintiffs and defendant be amended. We find that defendant would ordinarily be bound for the cost incurred on its reeonventional demand, its exception of no cause of action and plea of res judicata, and its call in warranty of the Ruston Lodge No. 1134, B. P. O. E., and the Ruston Building & Loan Association, and that plaintiffs would ordinarily be bound for costs on their original demand. We realize the difficulty in splitting the costs, as prayed for by defendant, and believe an equitable distribution of the cost burden has been fixed by the lower court, and we will not disturb the judgment in that respect.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court wherein it rejected the demands of plaintiffs, be reversed, and that plaintiffs’ demands now be rejected, as of non-suit; and in all other respects that the judgment be affirmed.


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    No. 13,876
    Orleans
    LOCHTE v. MAGGIORE
    (February 15, 1932. Opinion and Decree.)
    Julius Howard Wiener, of New Orleans, attorney for plaintiff, appellant.
    Giuffre & Gillane, of New Orleans, attorneys for defendant, appellee.
   HIGGINS, J.

This is a suit on a written contract by the principal to recover from his agent the sum of $200.90, alleged to be due for certain automobile tires delivered by the plaintiff to the defendant under the contract for the purpose of sale.

The defense is that the document sued upon is a contract of bailment and that, ag the automobile tires were destroyed in the defendant’s place of business by fire through no fault or negligence on his part, he is not liable.

There was judgment dismissing the suit and. the plaintiff has appealed.

The contract sued upon reads as follows:

“Contract and agreement entered into by and between Alvin H. Lochte, hereinafter referred to as the Principal, and L. Maggiore, hereinafter referred to as Agent, Witnesseth:
“Whereas, the said Principal agrees that he will, from time to time, consign to his said agent, Mohawk tires and automobile accessories, in the quantities and in the amounts as Principal may see fit so to do, and entrust the same to the care of his said Agent to sell and dispose of, in the manner hereinafter set forth, now it is hereby agreed as follows:
“1. The said Principal will consign, from time to time, in the quantities and in the amounts as the said Principal may see fit, to his said Agent, Mohawk automobile tires and accessories, and will invoice chem to him, delivering the invoice along with the merchandise so consigned, the agent shall be permitted to sell, in the most advantageous manner possible to himself, the said merchandise, and shall be permitted to retain, as his commissions, from the said sales, any amounts over the invoice price of the said merchandise.
“2. The agent warrants and understands that title to this property shall always remain with the Principal, and that upon the sale of such property the title to the invoice price of the said merchandise shall remain in the Principal.
“3. The agent further agrees that no sales will be made- of this merchandise for other than cash upon delivery, and that should he sell for other than cash he will be illegally disposing of property entrusted to him, unless he shall always keep on hand and promptly turn over to the said Principal immediately following said sale, the sum sufficient to cover any such property sold for a credit.
“4. The said agent agrees to render the said Principal just and proper accounts of any and all sales effected by him, and of all sums received and paid by him in respect to goods, and shall keep books and accounts covering all of such transactions, which said books shall be deemed the property of the said Principal.
“5. The said agent agrees not to confuse the merchandise to be - consigned to him with any other merchandise, and acknowledges that such a confusion by himself will amount to illegal conversion if the said merchandise is not accounted for or produced as is hereinafter set forth.
“6. It is mutually agreed that the Principal shall, at all times, be at liberty, either personally or by agent duly authorized by him, to inspect or carry away all or any part of said goods, remaining unsold wherever the same may then be, and all books and accounts kept by the said agent, as above provided, and all securities, documents, vouchers, and writings held by him relating to his said agency, or to make and carry away any copies of or extracts from such books and writings.
“7. The said agent agrees that promptly upon any inspection made, immediate payment will be made to the said Principal for any goods checked short and not present in his premises for any reason whatsoever.
“8. The said agent takes cognizance of the law which makes it embezzlement for the agent to use, as his own, the money due his principal for any merchandise consigned hereunder, and acknowledges that should be ever fail to so account to his principal, immediately upon demand, that the said principal shall be warranted in taking action, either civilly or criminally as he may see fit, on account of such action by the said agent.”
(Signatures)

It is agreed between the parties that the contract was entered into between them; that the tires in question were delivered to the defendant’s place of business and were destroyed by fire, while there, through no fault or negligence on the part of defendant; and that the agreement sued upon is a contract of bailment.

The sole question in the case is: What is the proper interpretation and meaning of paragraph 7 of the contract?

The plaintiff contends that the parties intended that the defendant would be responsible" for the value of the merchandise in the event of its loss or destruction "for any reason whatsoever.” Defendant argues that the true meaning of the contract and intention of the parties was that the defendant would' be responsible for any merchandise checked short and “not present in his premises for any reasons whatsoever” due to his fault or negligence.

This court has held that, in the absence of a special contract, an ordinary bailee for hire is not an insurer of the loss of the property through fire, theft, or inevitable accident, without negligence on his part. Hartford Fire Ins. Co. v. Doll, 5 La, App. 228. So that, if the defendant is to be held liable, it can only be done under the provisions of paragraph 7 of the contract.

We do not believe that the language relied on by the plaintiff is clear and definite enough to say that it was the intention of the parties that the defendant would assume responsibility for the loss of the goods through fire, theft or inevitable accident, with or without fault on his part. If the parties had intended to place such a serious and severe responsibility upon the bailee, then language clearly and unequivocally conveying that meaning should have been used. Since the clause relied upon is not clear and definite enough in its wording to clearly indicate the intentions of the parties, resort can be had to other provisions of the contract to ascertain what was the true intention of the parties. See articles 1948, 1950, 1956 and 1958 of the Revised Civil Code. From a reading of the contract it is clear that the defendant was to be solely and only agent for the sale of the tires furnished by the plaintiff; that title to the merchandise and the money derived from the sale thereof was to remain in the plaintiff and that, should the defendant appropriate any of the goods for his own use, or confuse them .with his own, it would be an illegal conversion and, in the event that he used any of the funds covering the invoice price of the tires, he would be guilty of embezzlement. The contract is silent as to who should insure the merchandise against loss by fire, theft or inevitable accident and, as the plaintiff was the one who clearly had the right to protect his interest against such events by insurance, it is very difficult for us to believe that it was the intention of the parties to place the heavy responsibility and burden, as an insurer against such risks, upon the defendant, who was simply acting as agent. ,

Furthermore, as it appears that the contract was prepared by the plaintiff, any ambiguity or uncertainty therein should be construed against him under well recognized rules of interpretation of contracts.

We conclude that the parties intended and contemplated that the defendant would be responsible for the loss of the merchandise through fire only in the event that he was at fault, or negligent. Since it is admitted that he was blameless, the judgment will be affirmed.

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


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    No. 14,102
    Orleans
    STATE v. MOORE
    (March 7, 1932. Opinion and Decree.)
    C. J. Rivet, of New Orleans, attorney for plaintiff, appellee.
    E. M. Heath, of New Orleans, attorney for defendant, appellant.
   ON MOTION TO DISMISS

WESTERFIELD, J.

Appellee moves to dismiss this appeal on the ground that this court is without jurisdiction for the reason that the issue presented involves the legality of a tax which, under section 10, article 7, of the Constitution of 1921, the Supreme Court alone has jurisdiction regardless of the amount involved.

The issue presented here is the right of the state of Louisiana to collect a license tax from the defendant, a practicing dentist in the city of New Orleans, based upon his gross annual receipts without deduction of expenses incurred by him for laboratory work and X-ray examinations, the defendant contending that these expenses should be deducted because not essential to the practice of dentistry and more appropriate to the calling of a mechanic. It is not denied that some tax is due but the amount of the tax is in dispute.

In the case of Downs v. Dunn, 162 La. 747, 111 So. 82, it was held that where the applicability of a taxing statute to an entire class is in dispute its legality is in contest though it is otherwise in a case where the application to an individual defendant is challenged. Here all dentists are affected by the construction to be -placed on the law since the testimony shows that it is customary in the profession to undertake laboratory work and , X-ray examinations in connection with dental work proper usually regarded as confined to the oral cavity.

In view of the provisions of Act No. 19 ;of 1912 it is ordered, adjudged and decreed that this appeal be and it is transferred to the Supreme Court of Louisiana to be disposed of according to law; the transfer to be made within sixty days after this judgment becomes final and, if not so made, then the appeal to be deemed dismissed; defendant and appellant to pay the costs of appeal in this court, the remaining costs to await final determination of the matter.


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    No. 13,970
    Orleans
    COLONIAL COUNTRY CLUB v. PAUL
    (March 7, 1932. Opinion and Decree.)

      Rolf I. Seeberg, of New Orleans, attorney for plaintiff, appellee.
    Eugene S. Hayford, of New Orleans, attorney for defendant, appellant.
   HIGGINS, J.

This is a suit by a private club against one of its members for annual dues for the year 1930 in the sum of $137.50. It is defended upon the ground that the club is the beneficiary of gambling devices, in that it operates four slot machines, out of which it derives some profit and that, therefore, no recovery can be had upon a claim based upon a gambling transaction.

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

The record indicates that the plaintiff maintains a golf course and clubhouse, and that in the men’s locker room there are four slot machines, the profits derived from the operation of which are turned in to the general fund of the club.

It must be conceded that the operation of a slot machine is contrary to the law of this state. See Act No. 57 of 1898, as amended by Act No. 107 of 1908; State v. Abrams, 121 La. 550, 46 So. 623; Tonahill v. Molony, 156 La. 753, 101 So. 130. If this suit grew out of the operation of those machines, or had any relation to such operation, the plaintiff would have no standing in court, because gambling is contrary to the settled public policy of this state, is reprobated by law, and courts will not concern themselves with transactions contra bonos mores. Cooper v. Thompson, Adams & Thayer, 20 La. Ann. 182, 96 Am. Dec. 392; Fox v. City of New Orleans, 12 La. Ann. 154, 68 Am. Dec. 766; Louisiana State Bank v. The Orleans Navigation Co. et al., 3 La. Ann. 294.

But, however objectionable the practice of permitting slot machines upon the club’s premises may be, this suit has no relation to the slot machines. It is one brought by a private club against a member for dues, which, in the aggregate, are used for the maintenance of the golf course and clubhouse in connection therewith. The revenue derived from the operation of the golf course, according to the record, amounts to the sum of $100,000 per year, whereas the revenue from the slot machines is about $3,600 a year, so that the slot machines are but incidental and in no way connected with the main purposes of the , club, which are athletic, social and recreational, as stated in its charter. Defend-; ant, or any other member who objects to ’■ the slot machines, should either resign, or,. if he wishes to retain his membership,' appeal to the governing authorities of the club to correct objectionable or illegal' practices. In the instant case the defendant is shown to have been a member of the club for four years. He remained in the j club, had the privilege of using its facilities; and did not resign or request the officials; of the club to have the slot machines removed. Therefore, he must pay his share of the club’s maintenance represented by the annual dues. :

For the reasons assigned the judgment ' is affirmed.