text:
    No. -
    First Circuit
    TERREBONNE GAS COMPANY v. HOTARD
    (May 4, 1926, Opinion and Decree)

      (Syllabus by the Editor.)
    1. Louisiana Digest — Judges—Par. 12, 14, 22.
    Section 3 of Act 40 of 1880 which requires that the order of appointment of a judge ad hoc be entered on the minutes of- the court does not apply to a judge ad hoc appointed because of-prior consultation or employment of the re'cused judge.
    Appeal from the Parish of Terrebonne, Hon. Robt. B. Butler, Judge.
    Action by Terrebone Gas Company against Charles Hotard. There was a judge ad hoc appointed to which defendant objected and appealed.
    Appointment declared valid.
    Wurtzlow and Watkins, of Houma, attorneys for plaintiff, appellee.
    Harris Gagne, of Houma, attorney for defendant, appellant.
   MOUTON, J.

The district judge recused himself of his own motion herein and appointed A. J. Caillout, an attorney of the Houma bar, as judge ad hoc to try the case. The judge gave as the reason for his recusation that this case was a mere continuation of the same controversy in which he had been consulted originally and had recused himself in the first trial. Counsel for defendant and appellant says the judge may recuse, himself because he has been of counsel, but only where the same parties in the same cause are before the court. As this was a continuation of the same cause, although other' parties had intervened, there was legal ground for recusation by the district judge.

Counsel says that the order of the court making the appointment of a judge ad hoc must be entered on the minutes of the court. When the case came up for hearing before the judge ad hoc, he ordered that the order of recusation of the district judge and his oath as judge ad hoc, be entered on the minutes of the court to which appellant objected claiming that this order should have been placed- of record by the judge of the court, and should have been rendered in open court. In support of this contention he refers us to Sec. 3 of Act No. 40, 1880, page 38; and Sec. 2, Act 70, 1876.

Section 3 of Act 40, 1880, which requires that the order of appointment be entered on the minutes of the court, applies to cases where the judge is recused for cause of interest. For the other causes for recusation provided for in that act, including that of previous consultation or employment of the recused judge, no such entry is required.

The other Act, No. 70 of 1876, has reference to cases where they are transferred from the parish where such suits are pending to an adjoining parish or district. The provisions of that Act have no application to the present contention.

Counsel also contends that such an order of appointment should be rendered in open court. This may be true as far as this contention relates to a recusation for cause of interest, as this requirement would be implied from the fact that in that class of cases, the section of the statute above referred to, provides for the entry of such orders on the minutes of the court. This is, however, inapplicable here as the question involved is as to the legality of the recusation of the judge because of prior consultation or employment.

We find that the recusation was authorized, and that the appointment of the judge ad hoc was valid.

As no other questions or complaints are urged by the appellant, the judgment is affirmed with cost.


source: Caselaw Access Project

author: MOUTON, J.

license: Public Domain

text:
    No. -
    First Circuit
    MOORE v. HEBERT
    (May 4, 1926, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Appeal—Par. 549.
    Where a counsel, on motion, asks that the case be postponed to give him the time to prepare briefs, if such is necessary, the case will be postponed.
    Appeal from the Parish of Calcasieu, Hon. Jerry Cline, Judge.-.
    . Action by Jules Moore and Mrs. Jules Moore against Felix Hebert.
    E. F. Gayle, of Lake- Charles, attorney for plaintiff, appellee.
    G. T. Hawkins and Cline and Plauche, of Lake Charles, attorneys for defendant, appellant.
   MOUTON, J.

Judgment was originally rendered in this case in favor of the plaintiffs on June 20, 1925. An appeal was taken to this court but as a portion of the note of evidence had been lost or misplaced, this court on December 22, 1926, annulled the judgment and remanded this case for a trial de novo. The case came up for trial under the order remanding it and as the lost notes of evidence had been found, the court below proceeded to render judgment without the formality of a trial de novo, holding that as the record had been completed the purpose for which the case had been remanded had been fulfilled. The defendant having taken the position tljat the original judgment having been annulled, a new judgment should be rendered, the court rendered and .signed another judgment for the amount originally decreed, stating that this wa¡? done without prejudice to the right of any parties to the suit, and to the jurisdiction of this court to decide the case on the original judgment rendered, by the district court on June 30 1925, and the appeal granted thereon.

The second judgment by the district judge was signed March 16, 1926. A suspensive appeal, on motion of defendant, was granted to him from the second judgment on March 16, 1926, returnable to this court on or before May 16, 1926. At pur last session in Lake Charles, on March 17, 1926, the record in this case was brought up for consideration. Counsel for defendant filed a motion asking that this case be continued to our next term claimihg they were in no position to argue the case, and had had no time to prepare briefs. The application is granted and it is therefore ordered that the record herein be returned to the clerk of court at Lake Charles, where this case will be heard at our next regular term of court at that place.


author: PHELPS, ’ Judge

text:
    No. 10,463
    Orleans
    STEVENSON v. LEWIS
    (June 21, 1926, Opinion and Decree)

      (Syllabus by the Court.)

    1. Louisiana Digest — Malicious Prosecution — Par. 3, 7, 17, 18.
    In an action for malicious prosecution, the circumstances that advice of counsel .'was obtained before making the charge will not avail as a defense unless it is shown that the facts known to defendant were fully and fairly communicated by him to counsel.
    Appeal from the First City Court of New Orleans, Section “B”. Hon. Val. J. Stentz, Judge.
    Action by Edwarda Julia Stevenson against Charles J. Lewis.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    • J. A. Woodville, of'New Orleans, attorney for plaintiff, appellee.
    Frank McLaughlin, of New Orleans, attorney for defendant, appellant.
   PHELPS, ’ Judge

Ad Hoc. Both parties ito this suit are colored persons. Plaintiff, Edwarda Julia Stevenson, and her husband occupied a house of defendant, Charles J. Lewis, on a month-to-month lease. The rent was payable in advance on the 27th of each month. On June 15, 1925, at which time the rent for May and June appears to have been unpaid, defendant notified plaintiff’s husband to vacate the premises. He complied with this demand by moving out two days later. In the process of moving a chandelier globe, a strip of plaster about two inches wide, and a window pane were broken. The total damage amounted to less than $5.00. Defendant knew of the damage shortly after it occurred. On August 11, 1925, he made written demand on plaintiff’s husband for the payment of rent for two months. On August 26, 1925, defendant filed an affidavit in the Criminal District Court for the Parish of Orleans, charging plaintiff with willfully and maliciously destroying defendant’s property in violatios of Section 829 of the Revised Statutes Plaintiff learned of the charge and ap peared and gave bond without being actually arrested. She was tried in the Criminal District Court and acquitted.

Plaintiff- claims the sum of $300.00, consisting of $150.00 for “mental pain and anguish” and $150.00 paid by her to counsel as his fee for defending the criminal case. It is shown that the latter amount was actually paid. There was judgment below for $200.00. Defendant appealed and plaintiff has answered the appeal and asked that she be allowed the full amount claimed.

We think it manifest that the criminal charge was made without probable cause and for the sole purpose of compelling the payment of the past due rent. Defendant sets up that the charge was made on the advice of an assistant district attorney; but he fails to state what facts were disclosed by him to the district attorney, and it is inconceivable that the charge would have been ■ made if the facts known to defendant had been fully and fairly communicated by him to that officer. It is well settled that the fact that a criminal charge is made on advice of counsel is no defense to an action for malicious prosecution unless it is shown that all of the material facts were fully and fairly stated to counsel by the party making the charge. (Decoux vs. Lieux, 33rd La. Ann. 392; Cointement vs. Cropper, 41 La. Ann. 303, 6 South. 127.)

Plaintiff was clearly entitled to recover from defendant the damages sustained by her as a result of the malicious prosecution. We think that the amount allowed by the court below does substantial justice between the parties. The judgment is, therefore, affirmed.


author: PHELPS, Judge

text:
    No. 9805
    Orleans
    HINTON COMPANY v. ROUSE
    (June 21, 1926. Opinion and Decree.)

      (Syllabus by the Court.)

    I. Louisiana Digst — Conflict of Laws— Par. 1, 4; Sales — Par. 324, 333.
    The seller of an automobile by a conditional sale made in Mississippi, under laws of which state the title remained in the seller with the right to repossess said car in case of nonpayment of the purchase price, even as against innocent purchasers, or pledgees, is entitled to recover the car from an innocent pledgee in Louisiana, to which state it had been removed by the purchaser, without the consent of the seller.
    Appeal from the Civil District Court for the Parish of Orleans, Division “B”. Hon. Mark M. Boatner, Judge.
    Action by R. W. Hinton Company against J. G. Rouse.
    There was judgment for plaintiff and intervenor appealed.
    Judgment affirmed.
    R. A. Tichenor, of New Orleans, attorney for intervenor and appellant.

      W. O. Hart, of New Orleans, attorney for civil sheriff.
    C. L. Walker, curator ad hoc.
    Wm. McClendon, Jr., of New Orleans, attorney for plaintiff, appellee.
   PHELPS, Judge

Ad Hoc. R. W. Hinton Company, plaintiff herein, is a Mississippi corporation. J. G. Rouse, defendant herein, is a citizen of Mississippi. Plaintiff sold to defendant a Ford car on terms of part cash and part credit under a conditional sales agreement entered into at Picayune, Mississippi, under the terms of which plaintiff retained title to, and had the right to repossess the car in case of non-payment of the purchase price. Defendant, without plaintiff’s knowledge or consent, brought the car to New Orleans and delivered, it in pledge to Oscar Cook to secure a loan of $100.00. Defendant failed to pay the credit portion of the purchase price. Plaintiff thereupon sequestered the car in the hands of Cook. Cook intervened and asserted his pledge and appeals from a judgment recognizing plaintiff as the owner of the automobile, maintaining the writ of sequestration, and dismissing the intervention of Rouse.

It was proven by a certified copy of the laws of Mississippi and by the testimony of a Mississippi lawyer that the conditional sales agreement was a valid one under the laws of that state and that plaintiff thereby retained title to the car and could enforce same as against bona fide purchasers or pledgees. This case, therefore, falls squarely within the recent decision of the Supreme Court of Louisiana in Overland Texarkana Co. vs. Bickley, 152 La. 622, 94 South. 138, in which the court held that the purchaser under a conditional sale of an automobile made in Arkansas could not give good title to an innocent purchaser in Louisiana, to which state the car had been removed, for the reason that no title passed under the law of Arkansas to the purchaser under the conditional sale, and hence he had no title to transfer when he brought the car into Louisiana.

The judgment appealed from is correct and is affirmed.


text:
    No. 10,126
    Orleans
    CRUTTI v. NEW ORLEANS PUBLIC SERVICE INC.
    (June 21, 1926. Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Appeal—Par. 628, 629.
    The unanimous verdict of the jury in a case involving only questions of fact dependent entirely upon the credibility of witnesses will not be disturbed unless manifestly erroneous.
    Appeal from the Civil District Court for the Parish of Orleans, Division “D”. Hon. Porter Parker, Judge.
    Action by Mrs. Jacob Crutti against New Orleans Public Service, Inc., et al.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    P. E. Edrington; 'Jr., and L. R. Hoover, of New Orleans, attorneys for plaintiff, appellee.
    Benj. W. Kernan, of New Orleans, attorney for defendant, appellant.
   PHELPS, Judge

Ád Hoc. Defendant, New Orleans Public Service, Inc., appeals from a judgment based on the unanimous verdict of a jury, awarding the plaintiff, Mrs. Jacob Crutti, the sum of $2828.00 for personal injuries sustained by her while a passenger on a street car operated by defendant.

The case involves .only questions of fact. The question of liability depends entirely upon whether plaintiff, as contended by defendant, was injured as the result of her attempting to jump from the street car before it stopped or whether, as contended by plaintiff, she was thrown from the rear platform by the car being suddenly started by the motorman upon a premature signal by the conductor after it had come to a stop to permit her to alight therefrom.

Plaintiff’s contention is supported by her own testimony and also by the evidence of Dragon and Bagget, both of whom were nearby on the street, and of the motorman, who had been discharged by defendant and who was placed upon the stand by plaintiff’s counsel to whom the motorman had been tendered as a witness by counsel for defendant. The witnesses for defendant were Cino, the conductor, but who had left defendant’s employ before the time of the trial; Felder, an employee of defendant’s auditing department, who was at a point near the scene of the accident; and Deneve, a passenger, who was on the rear platform of the- car. All these witnesses testify squarely in favor of defendant’s contention.

The evidence of plaintiff and of Dragon and Bagget is. that Deneve alighted from the car as it stopped; that plaintiff was about to follow him when the car suddenly started and' threw her from the platform to the ground. Deneve, Felder and the conductor all testify that plaintiff rushed by the conductor and Deneve and fell in attempting to alight from the car before it had stopped and that Deneve jumped from the car to come to her assistance. The conductor testifies that as plaintiff fell he gave a signal of three bells for an emergency stop. The motorman denies this and states that he came to a full stop; that he received a signal of two bells from the conductor to go ahead; that he started the car; that he heard someone cry out: “Hold on, wait a minute”, and then stopped the car and saw plaintiff lying on the ground.

The testimony of plaintiff and her witnesses is sought to be impeached by the evidence of one of defendant’s claim agents as to verbal statements made to him by them shortly after the accident and inconr sistent with their testimony. He testifies that the substance of these verbal statements was embodied by him shortly after they were made in stenographic notes from which he had refreshed his memory at the time of the trial. On the other hand, plaintiff seeks to impeach the testimony of Deneve by the evidence of Feehan, who wasnear the scene but did not see the accident itself; that Depeve shortly afterwards stated to him that “the conductor was wrong but what is the use of knocking him, he will lose his job”.

It will be seen from the above that the issue is entirely one of veracity between plaintiff and her witnesses and the witnesses for defendant. There are no admitted facts or necessary conclusions from admitted facts which can aid the court in determining the truth of the matter. The case is peculiarly one where the jury which saw and heard the witnesses was in a much better position than an appellate court merely reviewing the cold record to decide upon the credibility of the witnesses. The jury evidently believed plaintiff and her witnesses and refused to believe defendant’s witnesses; and we are not prepared to say that this record shows that the conclusion unanimously reached by the jury is manifestly erroneous. We will not, therefore, disturb the finding that defendant was' responsible for the damages sustained by plaintiff as a result of the accident.

We think, however, that the amount awarded is excessive. Plaintiff at the time of the accident was thirty-seven years old and had had seven children. She sustained severe bruises of the arm and knee. She was pregnant at the time and the fall caused a miscarriage on the same night. The foetus was some two months old. She remained in bed about a week and was treated from time to time at his office by a doctor for some five or six weeks thereafter for the bruises sustained, but no ill effects appear to havq resulted from the miscarriage. There is no evidence to show payment of any amount for medical expenses or that she suffered any pecuniary loss as a result of the injury. Under these circumstances we believe that an award of one thousand ($1000.00) dollars will afford substantial justice between the parties.

The judgment appealed from is, therefore, amended by reducing the amount awarded from twenty-eight hundred and twenty-eight ($,2828.00) dollars to one thousand ($1000.00) dollars; and, as thus amended, is affirmed at the cost, of appellant.


author: LECHE, J.

text:
    No. -
    First Circuit
    LANGSTON v. U. S. NATIONAL LIFE & CASUALTY COMPANY
    (June 5, 1926. Opinion and Decree.)

      (Syllabus by the Editor.)
    1. Louisiana Digest — Insurance—Par. 20.
    An insurance policy under Act 227 of 1916 forms the entire contract between the parties.
    2. Louisiana Digest — Insurance!—Par. 80, 177.
    Under the provisions of Act 97 of 1908, even if an insurance policy was issued without any medical examination. the insurer cannot claim forfeiture of the policy for misrepresentation.
    3. Louisiana Digest — Constitutions and Constitutional Law — Par. 72, 95; Laws, Par. 28, 37.
    Act No. 310 of 1910 is not unconstitutional because it does not impair the obligation of contracts and its title clearly mentions the purpose of the act to provide a penalty for the violation of its provisions.
    Appeal from the Parish of Vernon. Hon. Hal. A. Burgess, Judge.
    Action by Arthur D. Lapgston against U. S. National Life & Casualty Company.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    S. I. Poster, of Leesville, attorney for plaintiff, appellee.
    Boone & Boone, of Many, attorneys for. defendant, appellant.
   LECHE, J.

Plaintiff sues for indemnity' or loss of time by sickness, under the terms of a policy issued in his favor on August 25, 1924, by defendant casualty Company. The District Court rendered judgment in his favor for three hundred and eighteen and 10-100 dollars indemnity, three hundred and eighteen and 10-100 dollars penalty under Act 310, p. 527, of 1910, and for the further sum of seventy-five dollars, as attorney’s fees. Prom that judgment defendant has appealed.

The defense to plaintiff’s demand is substantially that he made false statements in his application for the policy, that the injury complained of, if any, does not come within the provisions of the policy, that the infirmity from which such injury resulted, if any, was contracted and begun before the issuance of the policy and is not covered by its provisions, and finally that the Act 310 of 1910 is unconstitutional as violative of Article I, Section 10, of the Constitution of the United States because it impairs the obligation of contracts, and is violative of Article III, Section 16, of-the Constitution of Louisiana, because its body is broader than its title.

We were not assisted on the hearing of this case by argument, either oral or written, on the part of defendant. After the case had been argued and submitted by plaintiff at Lake Charles, where it was returnable, on the 17th of March, 1926, defendant filed a motion at the domicile of this court, in Baton Rouge, on April 1, 1926, asking that the case be ordered reassigned for argument at such, time and place as the court would find convenient; In this motion counsel pleaded in extenuation of their failure to appear that they were very busy with other matters in other courts, and also that they were not familiar with the rules of this court and were under the impression that they would be notified of the fixing of the ease. The members of this court knowing of no law or rule of procedure which would justify them in replacing the case on the docket, and ordering it reassigned for argument, regretfully refused to grant the prayer of the motion.

A careful scrutiny of all the evidence in the case seems to confirm the findings of the trial judge. Plaintiff first felt troubled with varicose veins the latter part of December, 1924, or the first part of January, 1925, when he consulted Dr. King Rand. On the 16th of January, 1925, he was suddenly attacked with acute appendicitis and operated upon the same day, and a few days later he was operated upon for the varicose veins. The defense is that these two afflictions were in existence before August 25, 1924. While plaintiff may have had a predisposition to appen-' dieitis and may have had slight suffering from same, it is unquestionable that he did not know that his appendix was unsound or had caused his previous suffering until the surgeon who operated on him on January 16, 1925, so informed him. Plaintiff also knew when he applied for the policy in suit that he had varicose veins. He so declared verbally to the agent of defendant who solicited the insurance. He did not suspect at the time that this would ever cause him any great inconvenience, and from the opinion of Dr. Rand ¡these .veins might exist for years in that condition without causing any trouble.

1. The application of plaintiff for insurance is on the back of the policy and the policy itself, under Act 227, p. 492, of 1916, forms the entire contract. That application does not require any specific information as to either of the two physical ailments from which the plaintiff has suffered and the policy was issued without any medical examination. According to the provisions of Act 97, p. 139, of 1908, the defendant cannot claim forfeiture of the policy for misrepresentation. As a matter of fact, it is also shown by his testimony that plaintiff who, we assume from his status as a minister of the gospel, is an honorable and truthful man, was sincere and candid and made no false statements in that application. See Cunningham vs. Penn Mutual Life Ins. Co., 152 La. 1024, 95 South. 110; Goff vs. Mutual Life Ins. Co., 131 La. 99, 59 South. 28; Cole vs. Mutual Life Ins. Co., 129 La. 705, 56 South. 645.

2. Plaintiff’s right to claim indemnity is clearly recognized in the contract under Paragraph H.

3. The defense of unconstitutionality of the Act of 1910, No. 310, p. 527, is not, in our opinion, well founded. We do not see how it impairs the obligation under the contract in this- case, and its title clearly mentions the fact that one of the purposes of the Act is to provide a penalty for violation of its provisions. The penalty is severe, but that is a matter within the discretion of the lawmaker and with which courts will not interfere except where there is great abuse of that discretion.

We believe the judgment appealed from should be affirmed, and it is so ordered.


author: CLAIBORNE, J.

text:
    No. 9801
    Orleans
    SPEARMAN v. TOYE BROTHERS AUTO AND TAXICAB COMPANY
    (May 24, 1926. Opinion and Decree.)
    (June 7, 1926. Rehearing Refused.)

      (Syllabus by the Oourt.)

    1. Louisiana Digest — Courts—Par. 126, 128.
    This court has appellate jurisdiction of damage suits in excess of $2000.00 only when the damages claimed result from physical injuries inflicted upon the person.
    2. Louisiana Digest — Courts—Par. 126, 128.
    This court has no jurisdiction of a suit for $15,000.00 damage for humiliation, mortification, mental pain and anguish suffered by plaintiff arising out of one of defendant’s drivers grasping and squeezing a part of her person without any physical injury thereto.
    3. Louisiana Digest — Courts—Par. 164.
    This court will transfer such a cause to the Supreme Court under Act 56 of 1904 and' amendments thereto.
    ' Appeal from Civil District Court. Hon. M. M. Boatner, Judge.
    Action by Mrs. Emma Spearman against Toye Brothers Auto and Taxicab Company, Inc.
    There was judgment for plaintiff and defendant appealed.
    Case transferred to Supreme Court.
    Woodville & Woodville, of New Orleans, attorneys for plaintiff, appellee.
    J. P. Sullivan and D. Sessler, of New Orleans, attorneys for defendant, appellant.
   CLAIBORNE, J.

This is a damage suit for humiliation and mental anguish.

The plaintiff alleged that in September, 1922, in company with her husband’s aunt and a child, she hoarded a sightseeing automobile owned by the defendant company and operated by its employee; that she and her husband’s aunt and the child occupied the front seat with the driver, she sitting next to him, then the child, and then her husband’s aunt; that as the auto proceeded on its way she felt the hand of the driver coming in contact with her left leg; that she thought it was accidental, and therefore moved away from him, leaving a space of about two feet between him and her; that when the car came down St. Charles avenue, near Louisiana avenue, ' the driver, “without any warning or notice to her, with his right hand grasped her left thigh, squeezing it, greatly to her humiliation, mortification, mental pain and anguish”; that plaintiff rebuked him for his insult; plaintiff averred “that she suffered the most intense humiliation, mortification, mental anguish, pain and suffering from the action of the driver, as she had given him absolutely no reason for his outrageous, conduct towards her, nor has she ever given any man any reason to take any liberties with her, and for the humiliation, mental anguish, pain and suffering that she has suffered and is suffering since this occurrence as the result of the insult and outrage she was subjected to, she should recover damages from the Toye Brothers Auto and Taxicab Co., Inc., in the sum of $15,000.00”, which she claimed from the defendant.

There was no exception. to the want of jurisdiction of this court “ratione materiae”; but this court is bound to notice it ex officio; State ex rel. Guillot v. Central Bank and Trust Co., 143 La. 1053, 79 South. 857; consent cannot give jurisdiction; the judgment of a court wanting jurisdiction ratione materiae would be null. 2 La. Dig., p. 425, S. 12; Lafayette Realty Co. vs. Poer, 136 La. 472, 67 South. 335; Henderson Iron Works & Supply Co. vs. Highouse, 141 La. 803, 75 South. 729; State ex rel. Long vs. Board of Deacons, 144 La. 413, 80 South. 608.

Section 10, p. 39, of the Constitution of 1921 provides that:

“It (the Supreme Court) shall have appellate jurisdiction in civil suits where the amount in dispute, or the fund to be distributed, irrespective of the amount therein claimed, shall exceed $2000.00 exclusive of interest, except in suits for damages for physical injuries to or for the death of a person, or for other damages sustained by such person or his heirs or legal representatives, arising out of the same circumstances.”

Section 29, p. 46, reads as follows:

“The Courts of Appeal, except as otherwise provided in this constitution, shall have appellate jurisdiction only, which jurisdiction shall extend to all cases, civil and probate, of which the Civil District Court for the Parish of Orleans or the District Courts throughout the state have exclusive original jurisdiction, regardless of the amount involved or concurrent jurisdiction exceeding $100.00, exclusive of interest, and of which the Supreme Court is not given jurisdiction, except as otherwise provided in this constitution, and all appeals shall be both upon the law and the facts.”

In interpreting these provisions of the constitution this court in Caramonta vs. De Salvo, No. 8968, decided on February 19, 1923, that “this court has appellate jurisdiction of suits for damages in excess of $2000.00 only when the damages claimed result from physical injuries inflicted upon the person”, and that slander did not cause •physical injuries.

A re-examination of the question has satisfied us that we were correct in our interpretation of the constitution. In the Century Dictionary we read the following definition of the word “physical”:

“Relating to what is material and perceived by the senses; specially pertaining to the material part or structure of an organized being as opposed to what is mental or moral; material, bodily; as physical force, physical strength, external, obvious to the senses, cognizable through a bodily or material organization; as the physical characteristics of a mineral, opposed to chemical.”

There is no allegation that when the driver grasped and squeezed the plaintiff's thigh that any physical pain or injury to the person resulted therefrom or that the part squeezed became black or blue.

The allegation is twice repeated that the plaintiff suffered “humiliation, mortification and mental pain and anguish from the insult and outrage”.

Had there been physical injury or pain sufficient to confer a cause of action, for that injury. and pain superinducing mental pain and anguish, then this court would have had jurisdiction to grant relief for the mental pain and anguish added to the physical pain; because, in the language of the constitution, the mental anguish arose out of the same circumstances of physical injury and was an accessory thereof. But where there is no “physical injury” to the person, but only mental pain or anguish to the mind, then this court is without jurisdiction of a claim in damages in excess of $2000.00.

-The - distinction between physical suffering and mental anguish has been ably considered in the case of Graham vs. W. U. Tel. Co., 109 La. 1069, 34 South. 91.

We have, therefore, come to the conclusion that consideration of this case belongs to the Supreme Court and not to this court.

It is therefore ordered, in pursuance of Act 56 of 1904, p. 135, as amended by Act 19 of 1912, p. 25, that this cause be transferred to the Supreme Court of this state, provided the appellant shall file in the Supreme Court within sixty days from this date a transcript of this cause prepared in accordance with the rules prescribed by the Supreme Court for transcripts of appeals from the District Courts to said court, together with a copy of this order; otherwise that the appeal herein be dismissed. The costs of this appeal to this court to be paid by the appellant.

Cause transferred to Supreme Court.


text:
    No. 10,446
    Orleans
    FEIBLEMAN & CO. v. COMMUNITY BURIAL SERVICE CORPORATION
    (May 24, 1926. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Appeal—Par. 691.
    In the absence of a defense, a judgment by default against a corporation on its note signed by its president will be affirmed. t

    Appeal from the First City Court. Hon. W. Alexander Bahns, Judge.
    Action by L. Feibleman & Co. against Community Burial Service Corporation.
    There was judgment for -plaintiff and defendant appealed;
    Judgment affirmed.
    Edward Dinkelspiel, of New Orleans, attorney for plaintiff, appellee.
    Van Burén Harris, of New Orleans, attorney for defendant, appellant.
   CLAIBORNE, J.

This is a suit upon a promissory note for $357.26, dated August 31, 1925, payable on October 1, 1925, made by the defendant to its own order, signed by J. W. Hodgkins, President, and likewise endorsed, with ten per cent attorney’s fees, subject to a credit of $82.26, leaving a balance due of $275.00.

Citation was served on Mr. Shroder, superintendent of defendant, on December 11, 1925. In the absence of an answer, •judgment by default was rendered on February 8, 1926, for $275.00, interest and attorney’s fees, subject' to a credit of $100.00. ■The defendant appealed.

In this court the plaintiff has not asked for an amendment of the judgment. We see no error in the judgment prejudicial to defendant, and it is therefore affirmed.


author: WEBB, J.

text:
    No. 2077
    Second Circuit
    EASTMAN v. AFRO-AMERICAN AID SOCIETY
    (June 30, 1926. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Appeal—Par. 625.
    The finding of the trial court on matters of fact, unless clearly erroneous, is affirmed.

      •Appeal from the City Court of the City of Shreveport, Louisiana. Hon. David B. Samuels, Judge.
    Action by D. W. Eastman against Afro-American Aid Society.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    T. Overton Brooks, of Shreveport, and Richard K. Boney, of Tallulah, attorneys for plaintiff, appellee.
    Murff, Mabry & Perkins, of Shreveport, attorneys for defendant, appellant.
   WEBB, J.

I. D. Eastman joined the Afro-American Aid Society on July 20, 1922; she died on January 1, 1923; and this action is brought by her husband, D. W. Eastman, assignee of the policy issued to I. D. Eastman by the society.

The parties in their briefs state that the sole question to be considered in this case is one of fact, that is, whether or not decedent had paid the assessments or premiums due under the policy.

The policy provides for the payment of annual dues of fifty cents and state tax ten cents in September of each year, of me dollar burial tax in January and widow tax of ten cents and orphan- tax of :ive cents in May, and quarterly dues of one dollar within the first ten days of jacli quarter.

The defendant organization is what is commonly known as a burial society, ísually organized for the purpose of payng the burial expenses of the members md paying to their heirs or assigns or ceneficiary a small sum of money, and as lsual in cases where a contest arises it is luite difficult from the lax business nethods of such organizations and their members to determine when and how the deceased paid dues.

In the present instance, the policy or certificate issued to decedent .does not show whether or not the premiums or dues were paid at the date of the issuance of the policy, but a card was given to the newly initiated member and on this card it appears that decedent paid one dollar burial tax, twenty-five cents state tax, and quarterly taxes of one dollar and twenty-five cents in July and October, and that she made payments of fifty cents each in July, August, November and December, which payments appear to have been placed under the head of “monthly dues” and which payments do not appear to have been called for under the policy.

The grand master and treasurer of the society states, however, that she had remitted fifty cents for dues in September, which we assume was for the annual dues of fifty cents made payable on that date under the policy.

The plaintiff states that the memoranda of payments shown on the card were made by the grand master, and defendant does not question the authority of the grand master to have accepted the payments or to have remitted the payment of fifty cents called for by the policy.

The grand master’s testimony is not by any means clear but indicates that he was of the opinion that decedent had not paid the dues called for under the terms of the policy or certificate, although it appears from letters and telegrams written by the grand master immediately after the ■ death of the policy holder that he was at that time of the opinion that decedent was in good standing.

The memoranda shown on the card which was given to decedent at the time the certifjicate was issued, considered in . connection with, the testimony of the grand master of the remission by him of the annual dues of fifty cents payable in ‘ September, accounts for all dues called" for' by the policy or certificate, and plaintiff’s test!-' mony that the memoranda was made by the' grand master, whose ' authority' is not questioned, we think warranted the judgment against defendant, although the extract taken from the books of the society does not show the payments indicated on the card.

The judgment is affirmed.


text:
    No. 10,521
    Orleans
    CITY OF GRETNA v. SOUTH NEW ORLEANS LIGHT AND TRACTION CO.
    (May 24, 1926. Opinion and Decree.)

      {Syllabus by the Court)
    1.Louisiana Digest — .Municipalities—Par. 59, 60.
    Section 13 of Act 136 of 1898, p. 228, provides that the mayor and board of aldermen of every city, town and vil- .... lage shall have the care, management and control of the city, town or village, and its property and finances.'
    2. Louisiana Digest — Municipalities — Par. 210, '217.
    The streets within the limits of the incorporated cities are the property of said cities and the sums paid by street railroads for the- use of said streets belong to the several cities as the owners of said streets.
    3. Louisiana Digest — Municipalities—Par. 1, 18, 19.
    A political corporation is only a state functionary. It has no vested rights protected by the constitution.
    Appeal from Twenty-fourth Judicial District Court, Parish of Jefferson. Hon. L. Robert Rivarde, Judge.
    Action by City of Gretna against South New Orleans Light and Traction Company, et al.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    Andrew H. Thalheim, of New Orleans, attorney for plaintiff, appellant.
    E. Howard McCaleb and John E. Pleury, of New Orleans, attorneys for defendant, appellee.
   CLAIBORNE, J.

This is a suit for the payment of sums due by defendant as compensation for its franchise.

The plaintiff alleges that it is a municipal corporation organized under Act 136 of 1898; that the South New Orleans Light and TVaction Company is a corporation operating electric railways exclusively within the limits of the City of Gretna; that it obtained its franchise from the Parish of Jefferson, prior to- the incorporation of the plaintiff; that the City oi Gretna has succeeded the Parish of Jefferson in all governmental matters within its limits; that the franchise of the defendant Light and Traction Company provided for the payment to the Parish of Jefferson of one-half of one per cent of its gross annual receipts from its franchise; that the sums due for this franchise should now be paid to the plaintiff, the City of Gretna. The plaintiff makes the police jury of the Parish of Jefferson a party defendant with the Traction Company and prays that the latter be commanded to pay over to plaintiff the sums due under its contract for the exercise of its franchise.

The Police Jury of the Parish of Jefferson admitted that plaintiff was a municipal corporation, admitted that its co-defendant, the Traction Company, operated its railway exclusively within the limits of the City of Gretna, and admitted the sums due by the Traction Company for the exercise of its franchise, but denied that plaintiff was entitled to the same; it admitted that the Police Jury for the Parish of Jefferson had previously received the same. Further answering, it alleged “that it is entitled to the amounts collected by it under a certain franchise granted to the said South New Orleans Light and Traction Company, formerly the Algiers Railway and Lighting Company, and that any disposition of the amounts paid to it under said franchise to any other governmental subdivision would be tantamount to impairing the validity of the contract between itself and said railroad company”.

The Traction Company admits all the allegations of the petition except that the plaintiff is entitled to the franchise dues, and further answering avers “that it has no interest to whom said moneys should be paid, save that it cannot be compelled to pay twice, and that upon payment of the amount due by it that it be relieved-from further responsibility”.

The district judge dismissed plaintiffs’ demand upon the following grounds:

1st. That the relator failed to prove that the City of Gretna, as an incorporated-town or city, has succeeded the Parish of Jefferson in all governmental powers within the jurisdiction and limits of said city, although specially denied by respondents, the Police Jury; and

2nd. Section 15 of Article Y' of the Constitution of 1921 provides as follows:

“No ex post facto law, nor any law impairing the obligations of contracts shall be passed; nor shall vested rights be divested, unless for purposes of public utility and for just and adequate compensation- previously paid.”

The plaintiff has appealed.

1st. The first is a question of law.

Section 15 of the Act of 1898 provides:

“That the mayor and board of aldermen of every city, town and village shall have the care, management and control of the city, town or village, and its property, and finances, and shall have power to enact ordinances for the purpose hereinafter named, and such as are not repugnant to the laws of the state, and such ordinances to alter, modify, and repeal, and they shall have power, etc.”

Then follow in thirty-two paragraphs, enumerated powers, and Section 16 with eleven paragraphs and Section 17 with five paragraphs, covering, in all, seven pages, of all the powers ordinarily exercised by municipal corporations. Subsection 6 of Section 15 authorizes “to provide for and regulate the construction and passage of railways and street railroads through the streets, avenues, alleys or lanes and public grounds of the municipaldty”, and S. 32 “to license ferries and to regulate the same and the landing thereof within the corporate limits”.

The defendant parish is not interested in knowing, as far as this case is concerned, how far the City of Gretna has succeeded the Parish of Jefferson “in all governmental powers within the jurisdiction and limits of said City of Gretna. Suffice that it knows for the purposes of this case that S. 6 confers upon the City of Gretna exclusive jurisdiction and powers to regulate the construction and passage of street railroads through its streets”.

In doing so it has recognized the streets and the ferries within its limits as the property of the 'City of Gretna and of its inhabitants. It is the text of the Civil Code, Article 499, that:

“The fruits of the earth, whether spontaneous or cultivated civil fruits, that is, the revenues yielded b¡y property from the operation of the law or by agreement, and the young of animals belong to the owner by right of accession.”

This principle was recognized by the Act of 1836 dividing the City of New Orleans into three municipalities.

The fifteenth section of the Act provided that each municipality should become the owner of the property of the old corporation within its limits. Municipality No. 1 vs. Barnett, 13 La. 344; Municipality No. 1 vs. Brothers, 15 La. 128.

“The real property which belonged to it (City of New Orleans) at the time of its dissolution belongs to the municipality in which it is situated.” First Municipality vs. Commissioners of General S. Fund, 1 Rob. 279.

In the case of Municipality No. 1 vs. General Council of New Orleans, 5 La. Ann. 761, the court decided that “the parish prison, being situated' in the First Municipality, became the property of that municipality by the Act of March 8, 1836, and was entitled as such to the rents produced by it”.

It would seem that' the rent was due by virtue of a contract of lease made prior to 1836.

The sums due by the defendant Traction Company of a percentage upon its annual receipts for the exercise of its franchise over the streets of the plaintiff city may be assimilated to rent for the use of those streets, and inasmuch as the streets belong to the plaintiff the revenues of those streets belong likewise to it as owner during the period of its ownership.

2nd. There is no force in this second defense made by the Police Jury that the taking away of these franchise funds would divest it of vested rights. There might be some force in this contention if the purpose of this suit was to compel the Police Jury to pay to the City of Gretna the sums it had received from the Traction Company prior to the incorporation of Gretna, but such is not the case here. The plaintiff demands the sums due during the time of its incorporation.

The Traction Company, considered as a person, might plead divestiture of vested rights. But a political corporation is only a government functionary. Arnoult vs. City, 11 La. Ann. 54; Moore vs. City of New Orleans, 32 La. Ann. 726.

It has no vested rights protected by the constitution. “Laws establishing and regulating municipalities are not contracts, but ordinary acts of legislation. The powers they confer are not franchises as originally meant, but mandates; they may be repealed at pleasure except as to rights acquired by third persons.” Reynolds vs. Baldwin, 1 La. Ann. 162.

“The act of March 20, 1839, incorporating the town of Shreveport and giving the municipal authorities exclusive right to establish ferries across Red River, did not create a contract or vested rights in that corporation which the Legislature could not constitutionally change or annul. The Act of March 16, 1848, entitling the Police Jury of the Parish of Bossier to a participation in the management of the ferry established by the town of Shreveport across Red River, and to share in the revenues thereof is not unconstitutional. The prohibitions contained in Article 109 of the Constitution of Louisiana and in Article I, Section 10, of the Constitution of the United States, apply only to contracts or vested rights of individuals or private corporations, and not to municipal corporations established for public purposes which are entirely subject to the legislative will, except so far as the rights of third persons may be affected thereby.” Police Jury vs. Corporation, 5 La. Ann. 661. Affirmed in Crescent City vs. New Orleans, 29 La. Ann. 133 (148), and authorities there quoted. City of New Orleans vs. Hoyle, 23 La. Ann. 740; Moore vs. City of New Orleans, 32 La. Ann. 726 (738).

It is therefore ordered that the judgment appealed from be reversed and set aside, and it is now ordered that there be judgment in favor of relator making the writ of mandamus herein peremptory, commanding the South New Orleans Light and Traction Company to pay to the relator, the City of Gretna, the sums due under its franchise from the Police Jury , of the Parish of Jefferson and enjoining the Police Jury of said parish from asserting any claim to said sums.

It is further ordered that the Police Jury of the Parish of Jefferson pay the : costs of both courts.


author: WESTERFIELD, J.

text:
    No. 9765
    Orleans
    BABST v. HARTZ
    (October 5, 1925, Opinion and Decree)
    (November 2, 1925, Rehearing Refused)
    (December 4 1925, Writ of Certiorari and Review Granted.)
    (June 2, 1926, See Decree Supreme Court.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Reconvention—Par. 2.
    A defendant in a promissory action cannot set up by way of reeonventional demand a claim for specific performance of an agreement to sell real estate, the subject of the possessory action, the reeonventional demand being neither incidental to nor necessarily connected with the main demand as required by Code of Practice Art. 375.
    Appeal from the Civil District Court for the Parish of Orleans, Div. “A”, Hon. H. C. Cage, Judge.
    Action by Charles J. Babst against Mrs. Cora E. Hartz. There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Francis P. Burns, of New Orleans attorney for plaintiff, appellee.
    Charles Louque, of New Orleans attorney for defendant, appellant.
   OPINION

ON THE MERITS

WESTERFIELD, J.

The only question not disposed of in our opinion on the motion to dismiss is the propriety of the reconventional demand. In other words, can a suit for specific performance of an agreement to sell real estate be presented in the form of a reconventional demand in a suit for possession of real estate alleged to liave been the subject of the agreement to sell?

Articles 374 and 375 C. P., read as follows:

Article 374: “The demand which the defendant institutes in consequence of that which the plaintiff has brought against him is termed a demand in reconvention.”
Article 375: “In order to entitle defendant to institute a 'demand in reconvention, it is requisite that such demand, though different from the main action, be, nevertheless, necessarily connected with and incidental to the same, as for instance the demand instituted by the possessor in.good faith against him who sues in order to evict him or for the purpose of obtaining the payment of the improvements made on the premises.”

In this case the reconventional demand is neither incidental to nor necessarily connected with the main demand.

Plaintiff alleges himself to be the owner and defendant admits he was the owner of the property described in the petition, but defendants assert title to the property by reason of the agreement to sell and buy entered into between plaintiff and defendant. We have held that this agreement conveyed no title to defendant. Plaintiff’s right to possession of the property is, therefore, absolute since it is not pretended that defendant’s claim of the possession of the premises under any other authority.

. If plaintiff has wrongfully declined to carry out his agreement to sell the property, he will be condemned to make title to the defendant, but we cannot prejudge his case. He is entitled to his day in court and in the meantime to the possession of his property. We know no law which authorizes defendant to retain possession of plaintiff’s property until such time as their misunderstanding of their agreement shall be given judicial interpretation and decision. We are reminded that the law abhors a multiplicity of suits and we observe in reply that there are other things held in greater abhorance, the perpetration of an act of injustice for example.

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


author: ELLIOTT, J.

text:
    No. -
    First Circuit
    LEESVILLE SLAGEL & EASTERN RY. COMPANY v. C. B. L. LUMBER COMPANY
    (May 4, 1926. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Pleading—Par. 32, 33.
    An answer which is not signed, although sworn to by attorneys, if not objected to, will be. considered signed by the defendant. ■

      &. Louisiana Digest — Pleading—Par. 38, 46.
    A plea of remission under 2199 et seq. of the Civil Code has the effect of nul: lifying the defendant’s denial that the indebtedness existed, and if the remission is not proved.’ the defendant’s áre liable for the debt.
    Appeal from the Twelfth Judicial District,. Paris}; Qf Vernon. Hon. J. H. Boone, judge. .
    Action by Leesville Slagel & Eastern By: Company against C. B. L. Lumber Company.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Hardin & Hardin, of Leesville, attorneys for plaintiff, appellee.
    P. L. Ferguson and S. I. Foster, of Leesville, attorneys for defendant, appellant.
   ELLIOTT, J.

Leesville Slagel & Eastern Ry. Co. alleges that at the request of C. B. L. Lumber Co., Inc., it prepaid the freight on a car of lumber from Slagel, Louisiana, to East Columbia, Texas, and that same amounted to $164.75.

That at the time of the shipment, J. J. Guess, C. B. Lindsey, J. J. Beeson and G. T. McCullough were the sole stockholders of C. B. L. Lumber Co., Inc., that after the shipment they personally took charge of all the assets of the C. B.. L. Lumber Co., Inc., and appropriated the same in specific portions to their own private ownership, recognizing at the time said indebtedness to petitioner.

That sáid Guess’, Lindsey, Béés'oá ánd McCullough and C". B. L! Lumber Co:’, Inc., are, by. reason of ,sai.d_ appropriation, indebted in solido to. petitioner ,for . the amount of said freight

, The defendants, C. B. L., Lumber Cp., Inc., J. J. Guess, J. Jl Beeson and C. T McCullough, appeared and for answer deny the liability alleged against them by the plaintiffs. That the C. B. L. Lumber Co., Inc., is able to pay its debts and concludes with the following:

“Your appearers would now show that the indebtedness sued on has been remitted by the plaintiff prior to the institution of this suit, and the defendant owes nothing to plaintiff.”

The district judge rendered judgment in favor of the plaintiff against the appearers as prayed for.

Defendants appealed.

Defendants’ answer is sworn to by one of their attorneys. It is filed in the record as their answer to plaintiff’s demand; and the case was tried on the issues thus made, but the answer is not signed.

No objection has been urged to it on that account; we, therefore, look on it as if it had been signed for all practical purposes.

The plea of “Remission”, C. C. Art. 2199, et seq., urged as a defense in the concluding part of the answer, does away with defendants’ denial that the alleged indebtedness existed and judicially admits that the defendants were all indebted to plaintiff on account of said prepayment of freight, but not so at the time of demand because plaintiff had remitted the alleged indebtedness to them. ,

The defendants on the trial did not claim that plaintiff ever remitted the debt.

In the testimony there is no pretense on tlieir part that such was ever done.

The evidence shows that plaintiff did not remit the alleged indebtedness but has claimed the amount all along.

Th,e judgment appealed from is correct.


text:
    No. 9033
    Orleans
    ALEXANDER v. MAJORS
    (May 10, 1926, Opinion and Decree)

      (Syllabus by the Court.)

    1. Louisiana Digest — Suretyship—Par. 20, 62, 66, 73.
    When several persons have become sureties for the same debt each one of them is primarily individually liable in solido, for the whole debt; however, any one of them may demand that the creditor shall divide his action by reducing his demand to the virile proportion due by each surety; but the surety must make an express plea by exception or answer; it will not be sufficient to do so by argument.
    2. Louisiana Digest — Suretyship—Par. 71, 73.
    The plaintiff may then defeat the plea of division by proving the insolvency of any .one of- the sureties.
    Appeal from the Civil District Court, Division “C”, Hon. E. K. Skinner, Judge.
    Action by Lester F. Alexander against Albert Majors et al., E. Marx. There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    J. Zach Spearing, of New Orleans, attorney for plaintiff, appellee.
    A. A. Moreno and J. D. and M. A. Grace, of New Orleans, attorneys for defendant, appellant.
   OPINION

CLAIBORNE, J.

The sole question in this case is whether the appellant, one of two sureties on a charter party, is liable jointly or in solido.

The plaintiff alleged that by an act under private signature he chartered and leased to Albert Major the barge “Alexander 12” for the price of eleven dollars for each calendar day for thirty days or until returned; that Major retained possession of said barge until February 13, 1920; that he has not paid the charge therefor for one hundred days, or $1100, and that he owes the towage for same or $93.00; that Edward Marx and George Schwartz bound themselves in solido with said Albert Major for all his obligations under said lease, in the following words: “The undersigned hereby guarantee the payment of all obligations of Albert Major under the above charter”.

Plaintiff prayed for judgment for $1193 and interest against all three defendants in solido.

The defendant Majors, filed no answer.

The defendant Marx denied all thé allegations of the petition; he admitted that he signed the charter and lease sued on, but denied that he made himself liable in solido thereby.

The defendant Schwartz, pleaded a general denial.

There was judgment for plaintiff against all three defendants in solido. The reasons for judgment were as follows:

“The evidence shows that the charter was granted only and because signed by the guarantors and the negotiations were that the guarantee was individual and that Schwartz was a signer not required but voluntary. I feel that the obligation was intended by all parties to be individual and separate not joint, and shall (so) hold.”

The defendant, Marx, alone has appealed. His sole defense is that he is not liable in solido with his co-surety George Schwartz.

It is contended by the plaintiff that by the contract itself the defendants have bound themselves in solido by the use of the words in the singular: “The under signed hereby guarantee, etc.”, indicating that each of the sureties obligated himself personally for the whole. Such was the opinion of the district judge which we do not find it necessary to examine.

Our Civil Code, Article 2093 (2088) provides as follows:

“An obligation in solido is not presumed, it must be expressly stipulated. This rule ceases to prevail only in cases where an obligation in solido takes place of right by virtue of some provision of the law.” 33 Dalloz Rep., p. 299. 1352-1357.

Art 2080 (2075):

“When several persons join in the same contract to do the same thing, it produces a joint obligation on the part of the obligors.”

Art. 2082 (2077):

“When several persons oblige themselves to the obligee by the terms in solido, or use any other expressions, which clearly show that they intend that each one shall be separately bound to perform the whole of the obligation, it is called an obligation in solido on the part of the obligors.”

The law governing the case is found in C. C., 3049, under the title of Suretyship, which reads as follows:

"When several persons have become sureties for the same debt, each of them is individually liable for the whole of the debt, in case of insolvency of any of them, any one of them may however demand that the creditor should divide his action by reducing his demand to the amount of the share and portion due by each surety, unless the sureties have renounced the benefit of división.” C. A. 51.

The corresponding Articles 2025, 2026, 2027 of the Code Napoleon differ in some respect.

C. N.-2025:

“When several persons have become sureties of the same debtor for the same debt, they are liable each for the whole debt.”

C. N„ 2026:

“Nevertheless each one of them may require that the creditor shall previously divide his action and reduce it to the share and portion of each surety, unless the surety shall have renounced the benefit of division.
“When, at the time one of the sureties has obtained the division, there were some who were insolvent, this surety is held for the portions of those who were insolvent; but he cannot be pursued for the insolvencies which have accrued since the division.”

The interpretation put upon the above articles of our Code of our Supreme Court is the law of this case.

In the rase of United States vs. Hawkins’ Heirs, 4 N. S. 317, decided nearly a cen-. tury ago, the court said:

“There is an express provision in our late Code that where' there are several sureties, each is individually liable for the whole debt in case of insolvency of any of them. The special statutes which provide for the manner of taking bail bonds make no exception to the rule. C. C., 430, Art. 12; 1 Mart. Dig., 474, 475, 476. If this article stood alone, there can be little doubt that the creditor' would be obliged to show the insolvency before he could recover the whole debt from one of the sureties, because it is only in that event he is responsible. But the next section declares: ‘that any of them may, however, demand that the creditor should divide his action by reducing his demand to the amount of the share and portion due by each surety unless they have renounced the benefit of division. C. C. 430, Art. 12. This confusion has arisen from copying the second section literally from the Napoleon Code, and changing the first. It is certainly no easy matter to give satisfactory construction..to such enactments. The first declares the surety only responsible for the whole amount on a certain event. The next provides that he may nevertheless claim the benefit of division if sued for the whole, that is, that he may exercise a right which the preceding section would seem to have rendered useless. C. C. 430, Art. 12; C. N. 2025, 2026. And yet this provision must have been introduced for some purpose. The soundest rules of construction require us to presume so, and so to construe laws, that no part of them, if possible, should be vain and without effect. We conclude, therefore, it was the intention of the legislature to make the co-surety responsible for the whole amount: 1st, If any of those bound with him were insolvent; 2nd, if, when sued, although that had not taken place, he failed to claim the benefit of division. Any other construction would leave the second section without effect. The division was not demanded here, nor could it have been successfully, for the obligation made the sureties responsible in solido. We therefore think the judgment bound each for the whole amount.”

In the case of McCausland vs. Lyons, 4 La. Ann. 273, the-Court said:

‘.‘In the present case there has been no demand of división" by the sureties. ' They were attacked by the plaintiff as debtorin’ solido, and pleaded-the-general'issue.- The; exception is a peremptory one, which must, be pleaded specially; and this has not been, done in the court below, nor even in this ’ court. It is not an exception which can be supplied by the court. * * * It is obvious that it presents a mixed question of law’ and fact. Suppose that Lyons or Smtih had pleaded the exception of ■ division, the plaintiff might have met the plea by proving the insolvency of the .other surety.” See Troplong Cantionnement, 297, and Marlin Rep. Verbo Cantion, 4 No. 2; Pothier Oblig. No. 253, 416, 417; 6 Toul. No. 728.

In the case of Metropolitan Bank vs. Muller et ah, six endorsers of a promissory note were sued and condemned. as debtors in solido. The court held that they were accommodation endorsers and as such liable as sureties; that having demanded the division of the debt among the defendant sureties, and no insolvency of any of the sureties having been pleaded or shown, the defendants as sureties were entitled to a division of the debt as prayed for. The court said:

“If the defendants are to be deemed sureties for the Brewing Association they are entitled to the rights arising out of their contract. The code declares that several persons who become sureties for the same debt are liable in solido, but they have the right on being sued to demand that the creditor shall reduce his demand to the share or portion of each of the sureties. This right of division is excluded only when the sureties have renounced it, or when one or more of the sureties are insolvent, and their insolvency has occurred before the division of the debt has been demanded by the other sureties, C. C. 3049, 3050. McCausland vs. Lyons, 4 La. Ann. 273; Gordon vs. Suc. of Diggs, 9 La. Ann. 422; Rawlins Duncan & Co. vs. Barham, 12 La. Ann. 630. In this case there is no renunciation by the sureties of the benefit of division nor is there any issue of the insolvency of any of them. The right of division. is wholly distinct from the exception of discussion to which reference is .made in plaintiff’s argument. To • preserve the benefit of division, it suffices in our opinion, that on being sued the sureties demand that division. To exact more, is to go beyond the requirements of 'the code. We find in each of the answers of the defendants the demand' that the plaintiff be restricted in his recovery to the virile share of the defendants. In the case from the 4th Annual we cite, the suit was on a promissory note against two parties deemed to be irregular endorsers and hence sureties. The court in that case epitomized the law thus: ‘Sureties for the same debt are. liable in solido, but that solidarity ceases when, being sued, the sureties claimed the division of the debt. It was solidarity tempered with this right of division’.”
“The right was in faeultate, as the court expressed it, and was to be allowed whenever the sureties chose to claim it. In that case the sureties made no such demand except in argument and, as a consequence, lost the right. Here the division is claimed and under the imperative requirement of the law must be allowed.” See also Parker & Co. vs. Guillot, 118 La. 223, 42 South. 782; Holmes & Savanwick vs. Steamer Belle Air and Owners, 5 La. Ann. 523.

The judgment in solido against the six defendants was therefore reversed and avoided, and defendants were condemned to pay each one-sixth of the amount of the note.

But in the case under consideration, as we have seen, the defendant Schwartz merely “denied all and singular the allegations of the petition”, and the defendant, Marx, denied “all and singular the allegations in said petition contained”, denied that he had, made himself liable in solido upon any obligation to be performed by Major, but did not demand the benefit of division.

According to the decisions just quoted he cannot demand it in argument only. 21 Baudry-Lac. 516, 1063.

The necessity of this plea in answer or exception is made evident when it is considered that the plaintiff may then ■ defeat it by proving! the insolvency of any of the' other sureties, C. C. 3049; which he could not do if the defense could be' asserted in argument qnly.' Parker vs. Scogin, 12 La. Ann. 629; Gordon vs. Succession of Diggs & Sykes, 9 La. Ann. 422; McCausland vs. Lyons, 4 La. Ann. 273.

The question of the. solvency of any one of the sureties does not arise here, as the failure of either one of them to demand a division fixes the liability of each as a solidary debtor irrespective of the' solvency of the other.

Considering therefore that the defendant and only appellant, Marx, has not pleaded, by answer or exception, the benefit of division, we must hold him liable in solido.

It is therefore ordered that the judgment be affirmed.


text:
    No. 10,462
    Orleans
    BORDEN AICKLEN AUTO SUPPLY COMPANY, INC., v. MID CITY, INC.
    (May 24, 1926, Opinion and Decree)

      (Syllabus by the Court.)

    1. Louisiana Digest — Sales;—Par. 218, 219.
    A vendor warrants that the thing sold is fit for the particular purpose for which if was -bought.

      2. Louisiana Digest — Sales—Par. 218, 238.
    The purchaser who has made payments since he discovered the defects is not debarred from refusing to pay the balance nor recovering payments already made.
    Appeal from First City Court, Hon. W. V. Seeber, Judge.
    Action by Borden Aicklen Auto Supply Company, Inc., against Mid City Inc. There was judgment for plaintiff and defendant appealed.
    Judgment reversed.
    R. F. McLoughlin, of New Orleans, attorney for plaintiff, appellee.
    Wm. H. Norman, of New Orleans, attorney for defendant, appellant.
   CLAIBORNE, J.

Plaintiff alleges that it is owner of two promissory notes made by defendant to the order of plaintiff dated July 27, 1925, payable on September 27th and October 27th, 1925, each for $50 with interest.

Defendant admits that plaintiff is the holder of the two notes sued on but denies any liability therefor.

Further answering defendant alleges that some time prior to July 27, 1925, an agent of the plaintiff called at defendant’s place of business for the purpose of selling a “Tridex Automobile washing and cleaning machine” and represented to him that said machine was “fool proof” and easy to handle; that it is simply connected to the water supply, the burner lighted, and immediately there is super-abundance of wet steam for cleaning; that it will get up fifty pounds of steam in fifty seconds from the time of firing and will hold any desired pressure from 25 to 60 pounds, all day long, with the steam line and hose wide open spouting steam; that it cleans chemically with warm water and soap, and wet steam in combination, no hand labor being required; that the Tridex machine is designed' to supply an enormous quantity of wet steam without much heat; that the machine can easily handle twelve cleaning jobs a day; that plaintiff’s agent stated that a trial was unnecessary as plaintiff would warrant anything it sold; that on those representations defendant agreed to buy a Tridex machine, and on delivery thereof on July 27, 1925, defendant made and delivered to plaintiff six promissory notes each for $50 payable respectively on August 27, 1925, and on the 27th of each succeeding month; that defendant connected the Tridex machine with the water supply but could not get up steam, until one of plaintiff’s mechanics came to defendant’s place of business and got up steam, but the pop off valves kept throwing water around the place; that defendant was unable to raise any steam the next day until a mechanic from the plaintiff again came to his assistance and succeeded in raising steam sufficient to clean several motors at intervals with time to cool off; that defendant some time later again attempted to clean four cars, but that by reason of the fact that the machine would not produce an unlimited, continuous supply of wet steam, defendant was able to clean only two cars between the hours of 10 a. m. and 6 p. m., and the mud had to be removed with knives; that on defendant’s complaint the plaintiff sent to defendant a factory representative who made certain adjustments and after getting up steam promised to return and to show the defendant how to operate the machine in order to obtain the best results; but that said representative has failed to show defendant how to operate the machine; that the defendant paid the first note maturing on August 27th. because of the representations first made by plaintiff and his reliance thereon; that defendant thereafter ■refused to pay any further notes and called on plaintiff to accept the return of the machine and to return the unpaid notes and to refund the $50 paid on the first note, which plaintiff refused to do.

Defendant prays for judgment in his favor rejecting plaintiff’s demand and condemning plaintiff to refund to him $50 and to return the five notes unpaid.

There was judgment in favor of plaintiff and against the defendant for $100 and dismissing defendant’s reconventional demand.

The defendant has appealed.

It would serve no useful purpose to reproduce the testimony in this case. Suffice it to say that the printed circular distributed by the Triplex Equipment Co. promised that the machine would do all that the plaintiff’s petition alleges its agent represented to the defendant that it would do; that the defendant bought the machine on those representations made to the defendant by the plaintiff’s agents; that after-thirty-day trial the defendant could not get the machine to do the work represented, although assisted by a mechanic of the plaintiff on two occassions and by a mechanic of the factory on one occasion; that this failure was not owing to the fault of defendant inasmuch as its vice-president was a licensed steam engineer of 14 years’ experience. On October 10, 1925, after the defendant had rejected the machine and c'alled on plaintiff to return the $50 and the five notes and after plaintiff’s refusal so to do, the defendant made to the plaintiff the following offer:

“We will furnish 12 average cars to be steam-cleaned between the hours of 7 a. m. and 5 p. m. less one hour for lunch. You furnish the man to do this work with the machine in our possession.
“If he can do a satisfactory job on twelve machines in. above length of time we will pay him for his time and accept the machine. If the machine does not do the work we will expect you to pay the man and accept return of machine.”

This offer the plaintiff rejected.

This case must be decided on the authority of Bohanan vs. Stewart, No. 10,304, of this court, March 29, 1926. In that case we said:

“A vendor, unless warranty is waived, warrants that the thing sold is fit for the the particular purpose for which it was bought” and authorities there quoted. United Motor Car Co. vs. Drum, 3 La. App. 741; Berrin vs. Guarino, No. 8157; Tessier Digest, p. 151; Standard Motors Finance Co. vs. Yellow Bayou Gin Co., 1 La. App. 424.

Nor will the fact that the defendant has made payments since the discovery of the defects debar him from refusing to pay the other notes or recovering payments already made. Holcomb vs. Theodora, 1 La. App. 445; 129 La. 983 (1004).

It is therefore ordered that the judgment be reversed and set aside; and it is now ordered that plaintiff’s demand be rejected at his cost. It is further ordered that there be judgment in favor of the defendant. on its reconventional demand cancelling the contract for the purchase of the Tridex machine and condemning the plaintiff the Borden Aicklen Auto Supply Company, Inc., to pay the defendant the Mid City, Inc., fifty dollars with five per cent per annum interest from this .date until paid, and to return to the said Mid City, Inc., five promissory notes of $50 each drawn by the Mid City, Inc., to the order of Borden Aicklen Auto Supply Co., Inc., all dated July 27, 1925, payable respectively on September 27th and on the 27th day of each succeeding month.

. Tire plaintiff and appellee to pay all the 'e'osts of this’'Suit in both courts.


text:
    No. 10,211
    Orleans
    FISHER v. PFEIFER & COMPANY
    (June 7, 1926, Opinion and Decree)

      (Syllabus by the Court.)

    1. Louisiana Digest — Evidence—Par. 349, 351.
    Where the evidence of a fact is not conclusive but leaves no other hypothesis it will be considered sufficient to establish the fact.
    2. Louisiana Digest — Master and Servant —Par. 154.
    Section 8 (e), page 400, of Act 216 of 1924 amending the Workmen’s Compensation Act 20 of 1914 applies only to cases not falling within any of the provisions already made in the section under Sections (a), (b) and (c), and to the cases specially mentioned in Section (e).
    Appeal from Civil District Court, Hon. E. K. Skinner, Judge:
    Action by. Jacob Fisher, for the use of minor Moise Fisher against S. Pfeifer and Company. There was judgment for plaintiff and defendant appealed.
    Judgment amended and affirmed.
    Feitel and Feitel, of New Orleans, attorneys for plaintiff, appellee.
    Edward Rightor 'and E. V. Parham, of New Orleans, attorneys for defendant, appellant.
   CLAIBORNE, J.

This is a suit under the Employers’ Liability Act.

The plaintiff, suing for the use of his minor son, Moise Fisher, age 14, alleged that on November 10, 1924, while his said son was in the employ of the defendants and in the course of his employment and while descending a spiral staircase in the building of the defendant company at 431 Poydras street, his said son slipped and fell down the stairway and received serious injuries; that he was immediately placed by the Employers’' Liability Insurance Corporation, defendant’s insurer, under the care of their physician Dr. Battalora, who is still attending to him; that he had several weak spells and on December 27th, fell in Lafayette Square and was taken home in a cab; that on January 5, 1925, an x-ray picture disclosed that Moise Fisher’s left hip was fractured; that his left leg was in a plaster cast for about eight weeks, and he was put in a rolling chair for about one month and on crutches for about two weeks; that he returned to work on April 27th though limping and suffering; that at the time of the accident Moise Fisher was earning eight dollars a week; that he was entitled to be paid 65% thereof or $5.20 from November 10, 1924, to April 27, 1925, or 24 weeks at $5.20 or $124.80; that his left leg is permanently impaired and shorter than the right leg and that he is entitled to compensation' therefor at the same rate for 100 weeks or $520; that Jacob Fisher has received the following bills occasioned by the accident to his son, Moise Fisher, viz:

Doctor to April, 1925-______ $140.00

Touro Infirmary room _______ 9.00

Invalid chair ________________________________________ 6.50

Drugs -------------------------------------------------------- 5.30

Ether ____________________ 10.00

Tóuro operations, etc..................... 40.00

$210.80

He prays for judgment for his son for 24 weeks ______________________________________$124.80

For 100 weeks _______________________ 520.00

For medical expenses ...... 210.80

$855.60

The defendants admitted that plaintiff, Moise Fisher, while in their employ met with an accident as alleged, but that his injuries consisted merely of bruises and a laceration of the ligament of his right knee, they admitted that Moise Fisher returned to work on April 27th and has continued to work ever since; they admit that at the time of the accident Moise Fisher was earning $8 a week; further answering defendants allege that on December 27, 1924, Moise Fisher while crossing Lafayette Square, on his way home, fell and fractured his left hip. They deny all the other allegations of the petition.

The plaintiff amended his petition by alleging that the defendants were engaged in the wholesale grocery business and conduct warehouses; that Moise Fisher was employed as an errand boy and collector; that defendants paid Moise Fisher his weekly wages during the time he failed to work up to April 27th and furnished a doctor and paid for the x-ray and other medical expenses, and he reduces his claim to $730.80.

The defendants denied that they conducted a warehouse business or that Moise Fisher’s duties required him to go into places of danger. ■ ' ■

The plaintiffs (defendants) then waived defenses that the employment of Moise Fisher was not hazardous within the Employer’s Liability Act or that it was not covered by that Act.

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

The admission, made by plaintiff that the defendants had paid the injured boy the whole of his salary from the time of his first accident on November 10, 1924, to April 27, 1925, reduces plaintiff’s claim to $210.80' for doctor’s bills and other charges and to the compensation claimed by plaintiff undér Section 8 of Act 216 of 1924 for $520.

These claims are denied by the defendants on the ground that they did not result from the accident of November 10th. A reading of the testimony satisfies us that they did. From that day on the injured boy complained of his hip. On December 27th while crossing Lafayette Square he collapsed, fell to the ground, was unable to rise, was carried to his house in a cab, was put to bed in intense suffering, was subjected to an examination by an x-ray, when the true cause of his suffering from November 10th was discovered in a fractured hip bone. There was no other possible suggestion of the injury to the hip except his previous fall.

Under those conditions his fall must be attributed to the injury he received in the stairway, and the broken hip a consequence of that fall. Where the evidence of a fact is not conclusive but leaves no other hypothesis it will be. considered sufficient. Dixon vs. Pittsburg, & G. Lumber Co., 52 La. Ann. 1109; 7784 Ct. App; 13 Orl. App. 374; 10 Orl. App. 284; Boynton vs. Equitable Life Assur. Soc., 105 La. 202, 29 South. 490; Buechener vs. City of New Orleans, 112 La. 599, 36 South. 603; Castille vs. Cormier, 144 La. 640, 81 South. 210.

At the bottom of page 402 of Act 216 of 1924, S. 5, reads as follows:

(5) “The employer shall in every case coming under this Act furnish the employee reasonable medical, surgical and hospital services and medicines not to exceed $250 in value.”

The charge of $210.80 is proven.

But we are of the opinion that plaintiff’s injuries are not covered by Section 8 (e), p. 400. This section reads as follows :

“In cases not falling within any of the provisions already made, where the employee is seriously permanently disfigured about the face or head, or where the usefulness of a member or any physical function is seriously permanently impaired, the court may allow such compensation as is reasonable in proportion to the compensation1 hereinabove specially provided in cases of specific disability above named, not to exceed 65 per cent of wages during 100 weeks."

It cannot be said that plaintiff’s case does not fall within any of the provisions already previously made in Section 8, S. (a) provides for injury producing temporary total disability to do work of any reasonable character. S. (b) for injury producing permanent total disability, and S. (c) for injury producing partial disability.

Plaintiff’s injury certainly was covered by one of those paragraphs and we believe by S. (a) “temporary total disability” from November 10th to April 27th for which he has been paid in full by his employer, Mack vs. Leglai, 144 La. 1017, 81 South. 694. He is not disfigured and the “usefulness of a member or any physical function is not seriously permanently impaired”.

Dr. Battalora testifies:

“I do not consider it (his left leg) seriously, permanently impaired.”

The boy, Moise Fisher, testifies:

“Q. What is your condition right now with reference to your ability to work, how do you feel?
“A. I can’t do much walking or running or anything, as when I do much walking I have to sit down, my leg hurts.
“Q. Do you walk in your regular walk or do you walk any other way?
“A. I walk with a little limp, not much.”

The boy’s father testifies:

“Q. What is his present condition?
“A. It’s almost normal now. It’s not exactly normal yet, either.
“Q. You notice how he walks?
“A. He has a little limp in the morning when he gets up from laying in bed.
“Q. You ever hear him say anything as to his present feelings?
“A. No, sir.”

Moise Fisher testified that he was “at this time and have been- since April 27th working for S. Pfeifer and Co. doing the same work, and has been paid his full salary each week.

It thus appears that the boy, Moise, was employed and paid from the date of the accident, November 10, 1924, to the day of the trial, June, 1925.

It cannot therefore be said that his physical function is seriously permanently impaired.

There is no evidence that one leg is shorter than the other; that he will not be able to continue to work and earn a salary. He. is therefore not entitled to wages under the Employer’s Liability Act. Mack vs. Leglai, 144 La. 1017, 81 South. 694; Garr vs. Wyatt Lbr. Co., 147 La. 689, 85 South. 640; Craft vs. Gulf Lbr. Co., 151 La. 281, 91 South. 736; Quane vs. Latt-Batson Lbr. Co., 151 La. 1052, 92 South. 678.

It is therefore ordered that the judgment herein be reduced from seven hundred and thirty 80-100 dollars to two hundred and ten 80-100 dollars with five per cent per annum interest from May 22, 1925, till paid, and as thus amended that it be affirmed, defendant to pay costs in both courts.


text:
    No. 2238
    Second Circuit
    GREEN v. MOORE
    (June 30, 1926, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Automobiles—Par. 4.
    It is a duty of one driving an automobile to have his car under control and maintain such a lookout as would enable him to turn out of the road or to stop his car before striking another.
    2. Louisiana Digest — Parent and Child— Par. 12.
    Under Civil Code Article 2318 the father is responsible for the damages occasioned by his minor child residing with him.
    Appeal from the Second Judicial District Court of Louisiana, Parish of Webster, Hon. ■ Robert Roberts, Jr., Judge.
    Action by Will Green against Matt Moore. There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    L. K. Watkins, of Minden, attorney for plaintiff, appellee.
    C. M. Roberts, Stewart and Stewart, of Minden, attorneys for defendant, appellant.
   WEBB, J.

The plaintiff brings this action to recover judgment against defendant in the sum of two hundred and fifty-eight 01-100 dollars, damages (repairs of an automobile, depreciation in value, and loss of the use of the automobile while it was being repaired) alleged to have been sustained as the result of the negligence of the minor son of defendant while driving an automobile belonging to his father.

Plaintiff alleges that while he was driving an automobile on the public road going in a northerly direction, defendant’s son, who was driving an automobile traveling in a southerly direction, willfully and negligently drove the automobile into collision with plaintiff. That defendant’s son was a minor, residing with his parents, and at the time was driving the car on a mission for defendant.

The plaintiff noted the reckless manner in which defendant’s son was driving, and in order to protect himself plaintiff drove his car as far to the right of the road as it was possible for him to do, but that defendant’s son came on down the middle of the road driving in a reckless manner at a high rate of speed and drove the car into collision with plaintiff’s car, although there was ample room for defendant’s son to. have, passed plaintiff’s car to the left.

The defendant excepted that plaintiff’s petition failed to state a cause of action, and the exception. being overruled, defendant answered denying responsibility, and alleged that the collision was due to the negligence of plaintiff and reconvened for judgment against plaintiff.

On trial, judgment was rendered in favor of plaintiff in the sum of one hundred and thirty-three and 01-100 dollars and rejecting defendant’s reconventional demand, from which judgment defendant appeals.

OPINION

The evidence shows that the road on which the collision occurred was eighteen to twenty feet in width, and that in the course of vehicles passing over the roadway, “ruts”, the width of the vehicles and several inches in depth, had been cut, which were approximately in the center of the road, and that the drivers of the respective automobiles were driving in these ruts. At the time of the collision, it was raining and the roads were slippery.

In this situation, each of the drivers, if not paying too strict attention to the center of the roadway, were bound to concede to the other a part of the roadway between the ruts and to take action looking to this concession at a time when it would be possible to do so or to stop their cars.

Both of the drivers state that they attempted to concede a part of the way, but it appears that defendant’s son wholly failed in his attempt and plaintiff succeeded only to the extent of getting the' front wheels out of the ruts and placing his car diagonally across the roadway before the collision. ■

The evidence shows that plaintiff had stopped his car for an appreciable time, and that defendant’s son did not see the plaintiff’s car until it was toó late for him to turn out of the roadway or to stop his -car.

The rights of the parties were the same, each being bound to anticipate the presence of the other, and while driving in the ruts in the center of the roadway they were bound to have their cars under such control an.d to maintain' such a lookout as would enable them to concede a part of the roadway or to stop their cars • in time to avoid the collision; and we are of the opinion that the judgment which found that defendant’s son was negligent in that he did not have his car under such control and that he did not maintain such lookout as enabled him either to turn out of the road or to stop his car, is supported by the evidence.

As to the liability of the defendant for the negligence of his minor son, the evidence shows that the child was living with his parents and was at the time of the collision driving the. automobile in obedience' to their instructions, and the defendant is liable under Article 2318 of the Civil Code.

“The father, or after his decease, the mother, are responsible for the damages occasioned by their minor or unemancipated children, residing with them,* * *.”

The judgment is affirmed.


text:
    No. -
    First Circuit
    CARAMELLA BROTHERS v. SHERIDAN
    (June 26, 1926, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Appeal—Par. 625; Obligations — Par. 183.
    The finding of the trial court that there was a contract entered into and the defendant actively breached the contract being eminently correct is affirmed.
    2. Louisiana Digest — Damages—Par. 107.
    The amount of damages for a breach of contract allowed by the trial court being insufficient according to the evidence is increased by the appellate court.
    Appeal from the Parish of Washington, Hon. Prentiss B. Carter, Judge.
    Action by Caramella Brothers against Mrs. Martha Sheridan. There was judgment for plaintiff and defendant appealed.
    Judgment increased and affirmed.
    Miller and Richardson, of Bogalusa, attorneys for plaintiff, appellee.
    Ott and Rich, of Bogalusa, attorneys for defendant, appellant.
   LECHE, J.

Plaintiffs sue for damages in the sum of two hundred and seventy-five dollars, for the breach of a contract whereby they were to build a house for defendant, in the town of Bogalusa,' in consideration of three thousand eight hundred and forty-seven ' dollars: They allege that they had moved part of the .material necessary to begin the erection of the building, had made excavations for the foundations, when without notice to them, defendant entered into a contract with one A. LeBlanc to erect the same building, put said LeBlanc in possession of the premises and started him in the construction of the building. The .claim for damages is based upon the work of plaintiffs for drawing a plan and making specifications, hauling material, for labor, and loss on material.

Defendant excepted to plaintiff’s petition on the ground that it did not allege a putting in default. Default is only necessary before suing on a passive breach of contract. C. C. 1932. We can imagine of no violation of a contract more specifically active than that alleged in plaintiffs’ petition, ' whereby the contractors were practically as expressed colloquially, shut out from undertaking the work that defendant had agreed for them to perform. A putting in default would have been a mere vain formality.

The evidence shows that a contract was entered into between plaintiffs and defendant as alleged in the petition. That plaintiffs prepared to undertake the erection of a building in accordance with the terms of the contract; that they hauled material on the grounds and made the excavations necessary to build the foundations and that defendant through her son-in-law requested plaintiffs to hold up a little while and' not start until notified. The evidence further shows that plaintiffs were never notified to proceed with the work and that defendant then made a contract with one A. LeBlanc who at once, started to build the house and who was engaged in that work when this suit was filed.

It is thus shown beyond doubt that the contract was made and signed as alleged by plaintiffs and that defendant actively violated the same.

The only other question determined in the judgment is the amount of damages which the district judge fixed at ninety dollars. Defendant appealed from that judgment, and plaintiffs have answered the appeal and pray that the judgment be increased from ninety dollars to two hundred and seventy-five dollars as demanded ip their petition. We have no means of ascertaining how our learned brother of the district court reached his finding on the quantum of damages, but it appears to us from the evidence that plaintiffs are entitled to recover, for plans and specifications, twenty-five dollars, for preparing ground and making excavations, twenty-five dollars, for hauling, forty dollars, and for loss and deterioration of material, one hundred dollars, or altogether the sum of one hundred and ninety dollars. We therefore believe that plaintiffs damages should be increased to that amount.

For these reasons the judgment appealed from is amended by increasing the amount of damages due to plaintiffs from ninety dollars to one hundred and ninety dollars and as thus amended, it is ordered that said judgment be affirmed.