text:
    No. 13,944
    Orleans
    HUBER ET UX. v. AMERICAN DRUG STORES
    (March 7, 1932. Opinion and Decree.)
    (April 4, 1932. Rehearing Refused.)
    (April 25, 1932. Writs of Certiorari and Review Refused by Supreme Court.)

      Puneky & Barrios and Jas. J. Landry, of New Orleans, attorneys for plaintiffs, appellants.
    Jas. G. Schillin and Jessy B. Gessner, of New Orleans, attorneys for defendant, appellee.
   HIGGINS, J.

This is a suit by Mrs. Renee Schaff-Huber, a customer against the owners of a retail drug store for damages for physical injuries said to have been sustained when her left foot came in contact with the jagged edges o.f a broken glass jar, which had been swept in a pile on the tile floor in front of the soda fountain counter in defendant’s place of business. Mr. Huber, plaintiff’s husband, joins her in the suit, seeking reimbursement for certain medical and other expenses alleged to have been incurred in connection with the injuries sustained by his wife.

The defendants denied that they were in any way at fault, and in the alternative, pleaded contributory negligence on. the ground that plaintiff entered the store at the time the glass jar fell from the counter and saw an employee sweeping the glass into a pile at the edge of the counter and place the straw portion of the broom on top of the pile of glass, with the handle leaning against the counter on a 45-degree angle, and that, knowing of the presence of the glass, she was guilty of carelessness in stepping upon it.

There was judgment in favor of the defendants, dismissing the suit on the ground that the defendants were free from fault, and the plaintiff has appealed.

The record shows that on Sunday, December 22, 1929, about 4:30 o’clock p. m., plaintiffs drove in their automobile to the defendants’ place of business at the corner of Tulane avenue and Rampart street, this city, for the purpose of purchasing sandwiches. The wife got out of the machine and entered the front door of the drug store and walked towards, the counter, which faced her as she entered.

Prior to the time that she arrived at the store a large glass bowl, with an iron bottom, containing gum balls, fell from the counter to the tile floor and broke into pieces, scattering the gum on the floor. One of the partners of the business took a broom and began sweeping the glass into a pile. He was. interrupted by being informed that he was wanted to attend to customers in a gift shop which the defendants also operated in an adjoining building, whereupon he instructed Mrs. Jaeger, one of the employees, to complete the sweeping up and removing of the debris. Mrs. .Jaeger swept the glass and gum into a pile against the front of the counter," near the Rampart street end of it, where ' the cash register was located. She was also called upon to wait upon a customer and placed the straw part of the broom on top of the pile of glass, with the handle resting against .the counter, and directed one of the boys working in the store to get a box and remove the glass from the floor.

Mrs. Jaeger had walked about 25 feet away from the glass to serve a customer, and the boy had gone in the rear of the store ito secure the box, when Mrs. Huber entered the store. As she passed along the counter, her left foot struck the jagged edges of the glass which inflicted serious and painful cuts upon it. She was given first aid treatment in the drug store and removed to her home, where she received medical attention.

The law governing the case is fully and concisely stated in the case of Farrow v. John R. Thompson Co., 137 So. 604, 605, where this court said:

“We have been referred to numerous citations of authority bearing upon the questions of the responsibility of a storekeeper, or a restaurant proprietor, for injuries due to unusual or defective conditions in the floor of the storehouse or restaurant, and we have no difficulty in finding the law to be that the owner or proprietor of such place must exercise ordinary' care and prudence to keep the aisles, passageways, floors, and walks in a reasonably safe condition for his customers who are on the premises by his implied invitation. Thompson Grocery Co. v. Phillips, 22 Colo. App. 428, 125 P. 563; Bloomer v. Snellenburg, 221 Pa. 25. 69 A. 1124. 21 L. R. A. (N. S.) 464; Langley v. F. W. Woolworth Co., 47 R. I. 165, 131 A. 194; Lawson v. Shreveport Waterworks Co., 111 La. 73, 35 So. 390.
“However, as we said in Hendricks v. Maison Blanche Company, 5 La. App. 410, in order ‘to maintain an action by a customer against the owner of a store for apparent defects in the building, two elements must concur, viz., fault on the part of the master, and ignorance of danger on the part of the customer.’ ”

See, also, Norton v. Louisiana Ice & Utilities, Inc., 18 La. App. 564, 135 So. 717; Theodore v. J. G. McCrory Co., 17 La. App. 684, 137 So. 352; Fenasci v. S. H. Kress & Co., 17 La. App. 170, 134 So. 779.

Our first inquiry is whether or not the defendants were at fault. The evidence shows that the glass was swept in front of the counter, where customers were impliedly invited to walk and where they would necessarily have to go in order to be served. The defendants, as reasonable, prudent persons in the exercise of ordinary care, should have known that their customers would walk up to and alongside of the counter to be waited upon. Leaving the pile of glass in such a location without any one there to warn customers of its presence, and without an adequate guard to protect them from being injured by it, in our opinion constitutes negligence on the defendants’ part.

Was the plaintiff guilty of contributory negligence -in failing to see the glass and, as a result thereof, striking her foot against it?

In order for a person to be guilty of contributory negligence, he must “knowingly, or with negligent ignorance, voluntarily, and unnecessarily expose himself to it.” Thompson’s Commentaries on the Law of Negligence, vol. 1, p. 184.

In the case of Dennis Clements & Wife v. Louisiana Electric Light Co., 44 La. Ann. 692, 11 So. 51, 53, 16 L. R. A. 43, 32 Am. St. Rep. 348, the court said:

“Even in the presence of a known danger, to constitute contributory negligence it must be shown that the plaintiff voluntarily and unnecessarily exposed himself to it, unless it is of that character that the plaintiff must assume the risk from the very nature of the danger to which he is exposed.’’

In the cited case the claim was for damages for the death .of an individual who was killed by contact with an electric wire. In discussing the defense of contributory negligence, the court said:

“The electric wires gave no signal of danger. Listening would not have revealed any danger. It is hidden and silent. But they are disarmed of danger, if properly insulated. By looking one can see if there are evidences of insulation.
“If there are evidences of it, and no defects are visible after careful inspection, one whose employment brings him in close proximity to the wire, and which he has. to pass, either over or under it, is not guilty of contributory negligence by coming in contact with it, unless he does it unnecessarily, and without proper precautions for his safety.”

In the case of Theodore v. J. G. McCrory Co., 17 La. App. 684, 137 So. 352, this court held that the plaintiff was not guilty of contributory negligence in failing to see a large splinter, which protruded from the floor, and which stuck in his foot through a hole in the bottom of his shoe.

In the instant ease plaintiff, in approaching the counter, permitted her foot to strike the broom, which hid from her view the broken glass. There was no evidence of any apparent danger. The presence of the broom was no warning of danger. She cannot be held to be guilty of negligence upon the ground that she was lacking in due care, since the contact of her foot with the broom would, under ordinary conditions, have caused her no injury. As the glass was behind the broom it was a hidden hazard of which she cannot be charged with knowledge without a showing that she had been warned of its presence. As a reasonable and prudent person she cannot be condemned for having failed to anticipate or realize that the broom hid a dangerous agency. As a customer in defendants’ store, it was to be expected that she would approach the counter against which the broom rested, and in doing so she cannot be charged with contributory negligence because she permitted her foot to strike the broom, behind which was concealed the broken glass, since brooms do not ordinarily conceal broken glass or other dangerous substances. The plea of contributory negligence is untenable.

As to the quantum, it appears that Mrs. Huber’s foot was severely and painfully lacerated; there being four deep cuts, three on the bottom of her foot and one on top of it. She bled profusely and it was necessary to apply adhesive • bandages to stop-the hemorrhaging. The doctor saw her about twenty times. She was unable to do her housework for five weeks and suffered severe pain, leaving the injured area tender and sore, but there is no permanent injury. For the physical injuries we have concluded to allow the sum of $300.

As to the husband’s claim, we believe that $3 a visit for twenty visits, or $60, is adequate compensation for the medical fees. The medicines cost $4.35; domestic servant hire, five weeks at $8 a week, or $40,; and shoes and stockings ruined by the cuts, $7.65. These items we allow.

For the reasons assigned it is ordered, adjudged, and decreed that the judgment appealed from be and it is annulled, avoided, and reversed, and it is now ordered, that there be judgment in favor of the plaintiff Mrs. Renee Schaff, wife of George W. Huber, and against the defendants, the American Drug Stores, a commercial co-partnership composed of Walter Pynot and Roger L. Farnet, Jr., and the said Walter Pynot and Roger L. Farnet, Jr., individually and as partners, in solido, in the sum of $300, with legal interest from judicial demand until paid; and in favor of George W. Huber, plaintiff, and against the defendants the American Drug Stores, a commercial co-partnership composed of Walter Pynot and Roger L. Farnet, Jr., and the said Walter Pynot and Roger L. Farnet, Jr., individually and as partners, in solido, in the sum of $112, with legal interest from judicial demand, until paid, and all costs of court.


source: Caselaw Access Project

author: JANVIER, J.

license: Public Domain

text:
    No. 13,961
    Orleans
    FOSSIER v. D. H. HOLMES CO., LTD.
    (February 15, 1932. Opinion and Decree.)
    (March 3, 1932. Rehearing Refused.)
    (April 25, 1932. Writs of Certiorari and Review Refused by Supreme Court.)
    Prowell, McBride & Ray, of New Orleans, attorneys for plaintiff, appellee.
    William H. Talbot, of New Orleans, attorney for defendant, appellant.
   JANVIER, J.

The personal injuries, which form the basis of this litigation, were sustained when the automobile delivery truck which plaintiff was driving was struck and turned over by a similar vehicle owned by defendant and driven by one of its employees in the course and within the scope of his employment.

The scene of the accident was the intersection of French and Louis XIV streets in Lakeview — that section of the city of New Orleans lying along the so-called New Basin canal and limited by City Park avenue on one end and Lake Pontchartrain on the other.

The time at which the collision occurred was just before dark in the very late afternoon or early evening of July 23, 1930.

The district court rendered judgment for plaintiff in the sum of $1,585 and from that judgment defendant has appealed.

The truck driven by Fossier, plaintiff, was proceeding on French street, that of defendant on Louis XIV street and since the latter approached the intersection from the left side of the former, the former, that is the one driven by plaintiff, was, under the pertinent provisions of the traffic ordinance C. C. S. 7490, given the right of way.

Defendant’s truck is shown to have entered the intersection at a speed considerably in excess of that permitted by the ordinance. In fact, one witness, driving an automobile in the rear of defendant’s truck, attributed to that truck a speed of 50 miles per hour.

With commendable frankness counsel for defendant concedes that his client’s employee was at fault in the matter of speed and also that had the two trucks reached the intersection at about the same time, the other, the one driven by plaintiff, would have been entitled to proceed, but he asserts that the proximate cause of the accident was neither the speed of defendant’s truck nor the violation by its driver of the right of way provision of the ordinance and he maintains that the accident, regardless of those faults, would not have occurred but for the carelessness of plaintiff himself in driving his truck into, the intersection without looking ahead and directly into the path of defendant’s truck when its driver no longer had an opportunity to stop.

In such case the evidence concerning the alleged negligence of plaintiff himself becomes all important and we turn at once to a consideration thereof.

On each truck were two persons. Those on that driven by plaintiff were himself and a delivery boy. They both testify that that vehicle was proceeding slowly and had moderated its speed before entering the intersection.

Those on defendant’s truck were a driver and a delivery boy. Though the delivery boy stated that the other truck entered the intersection without stopping, he did not attempt to fix the speed thereof. Dooley, defendant’s driver, estimates the speed of the other truck at 25 miles per hour and the speed of the truck he was driving at from 20 to 24 miles per hour.

One witness for defendant, Mrs. Neichel, was not available at the time of the trial, but it was admitted that if she had been placed on the witness stand she would have testified that she lived about 280 feet from the scene of the accident; that as the truck driven by plaintiff passed in front of her house she was impressed by its excessive speed; that she remarked to friends who were with her on the porch, “It is a wonder that some of these trucks going through here, some of these truck drivers and the people in the trucks don’.t get killed.” However, this witness was nearly a square away and both persons on the truck to which she was referring said that it had slowed down before it reached the intersection. . .

The record in its entirety is not convincing as to the excessive speed of the truck driven by plaintiff and we find ourselves unable to come to any other conclusion than that the proximate cause of the accident was the speed of defendant’s truck, combined with the failure of the driver thereof to accord to plaintiff the right of way and combined also with his failure to stop his truck after the danger was or should have been apparent.

An expert, placed on the witness stand by defendant, testified that the truck of defendant, if going at a speed of 25 miles per hour, could be stopped in three feet. This seems to us impossible, but nevertheless, we feel that it could and should have been stopped in at least 20 cr 25 feet and, according to both persons on that truck when the other appeared in the roadway ahead it was 25 or more feet away. The driver, Dooley, says “I saw him crossing the road about twenty-five feet from me.” The delivery boy fixes the distance at 37 feet.

The fact that the truck on which plaintiff was riding was seen in the intersection at least 20 or 25 feet before defendant’s truck reached it conclusively proves two things: First, that the former truck had entered the intersection first and had preempted it and second, that it could not have been going at the excessive speed charged by defendant because if it had, and if it was 25 or more feet ahead of defendant’s truck, it would have crossed the intersection and entirely departed from the roadway on which defendant’s - truck was approaching before the latter arrived there.

QUANTUM

Although defendant’s counsel seeks to persuade us that the amount allowed plaintiff below was excessive, plaintiff’s counsel has answered the appeal and asserts that the award is inadequate and should be increased.

The cost of the x-ray picture and medical charges were correctly fixed at $85 and the remainder of the amount fixed in the judgment, $1,500, was intended as compensation for physical suffering and for alleged permanent injuries.

After the accident plaintiff was first treated by Dr. Emile Bloch, who stated that the injuries consisted of “a lacerated wound of the scalp and forehead, contused left chest wall with traumatic neuritis, intercostal neuritis * * * contused left side of the face, region of the jaw.” Such injuries do not appear particularly serious or lasting, but, shortly after 'the accident, it was found that the contusion on the left side of the face and region of the jaw had resulted in so affecting, either the muscles which operate the jaws or in so bruising the bones of the jaws that it was thereafter impossible for plaintiff to open his mouth more than to about one-third of normal. Several doctors attempted to remedy this condition and the preponderance of the expert medical testimony on the subject is to the effect that the condition of which plaintiff now complains is more psychic than real and that if the sufferer could be persuaded that the jaws are all right and that they could be used the disability would, after a period of use, disappear.

The experts do not contend that plaintiff is shamming or malingering, but that since he really believes that he cannot use his jaws and since he has not used them normally for some time, such belief and such non-use has brought more or less into reality a condition which, at first, was largely imaginary. It also appears probable that if the plaintiff had continued to permit the administering of treatment, which he refused because of pain, the abnormality would in time have disappeared.

An injured person may not Tefuse to accept treatment which the best medical ad-visors believe tq be necessary and then claim compensation for the additional disability which, in such case, has resulted not so much from the original injury as from the refusal to submit to treatment.

“Where one has been injured, but is advised by competent physicians that the injury can be remedied by an operation that is ordinarily not dangerous, but refuses to submit to the operation, she is not minimizing her damages, and cannot recover for the sufferings which would be avoided by the needed operation. It is incumbent upon the injured person to submit to reasonable treatment, and to follow the advice of competent physicians.”

Donovan v. N. O. Ry. & Light Co., 132 La. 239, 61 So. 216 (syllabus), 48 L. R. A. (N. S.) 109.

But, on the other hand, it cannot be said that a person who has been injured and because of his bona fide conviction that his injury has rendered him incapable of performing some normal physical function, has actually lost his ability to perform such function, has not sustained a real damage.

It may be that plaintiff may never recover the normal use of his jaws, in which event the amount awarded would seem to be most moderate. On the other hand, we believe that the expert opinion preponderates that the treatment, if submitted to, will in time effect a cure and if so, an increase in the award would not be justified.

Our brother below no doubt considered all these matters and, in an effort to do substantial justice, fixed the amount of the judgment at a figure which we are unable to say is manifestly incorrect.

The judgment appealed from is affirmed.


author: JANVIER, J. PER CURIAM.

text:
    No. 14,174
    Orleans
    CAMBRE v. BRIGNAC ET AL.
    (March 16, 1932. Opinion and Decree.)
    (April 21, 1932. Opinion Corrected.)
    Guión & Upton, of New Orleans, attorneys for plaintiff, appellee.
    Martin, Woods & Woods, of Lutcher, attorneys for defendants, appellants.
   JANVIER, J.

Elize Cambre and Fortuna Brignac are rival candidates, each seeking selection by the Democratic Party as. nominee to enter the general election to be held for justice of the peace of ward 1 of St. James parish. In the first primary held during January, 1931, the two parties named were the sole remaining contestants and a second primary was held.

The St. James parish Democratic committee, having canvassed the returns of the second primary, and having declared that the two candidates each received 187 votes, and that no nominee had been selected by the party, Cambre brought this suit within the time permitted by law and seeks to have himself declared nominee because of the fact that one Pierre Poche, an alleged qualified and registered voter, who desired to vote for Cambre in the said second primary election, had been, by the commissioners of election, refused a ballot and denied permission to vote.

The St. James parish Democratic committee is also made party defendant by service upon Henry L. Himel, chairman.

The main defense is twofold, and there is also and in the alternative a reconventional demand in which it is contended that a certain Leonard Ordineaux, who is alleged to have voted for Cambre in the said primary election, should be declared ineligible as not duly qualified as an elector in ward 1 of the parish. It is thus, demanded, by way of reconvention, that the total number of votes received by Cambre, even if he be entitled to the vote of Poche, should be reduced by the deduction of the vote of Ordineaux.

The two main defenses to which we have referred are as follows: That prior to the said primary the' registrar of voters had, for legal cause and in the manner provided by law, removed from the registration rolls of ward 1 the name of the said Poche, and that, regardless of whether the said removal had been legally effected or. not, the primary election laws and the registration laws of the state do not permit an attack of this kind, but provide another and an exclusive method by which an elec-, tor, illegally deprived of his registration, may obtain redress.

The district court rendered judgment for plaintiff, ordering that his name be certified to the secretary of state as the party nominee, and the contest is now before us. on appeal from that judgment.

In opposition to the reconventional demand of Brignac, in which he maintains that the vote of Ordineaux should be deducted from the total cast for Cambre, Cambre has filed a plea of prescription founded on section 27 of Act No. 97 of 1922, under which section it is provided that “no contest shall be entertained unless .brought within two days after the official promulgation of the result of the election.” The reconventional demand in which the vote of Ordineaux was. contested was not filed until March 5, 1932, and, as the returns were promulgated on February 27, 1932, it is evident that more than two days elapsed between the time of the promulgation and the time at which the contest as to Ordineaux’s vote was instituted. But Brignac contends that the prescriptive period does not apply when the contest appears by reconventional demand, and, in support of this view, he cites. Thornhill v. Wear, 131 La. 479, 59 So. 909, 910, in which, in a contest for party nomination, the defendant, Wear, who had, by the committee, been declared the nominee, set up, in answer to an attack by plaintiff, Thornhill, a reconventional demand in which he contested the legality of certain votes which had been cast for Thornhill.

In overruling a plea of prescription to the reconventional demand the court said that:

“Plaintiff would scarcely have time to present his reconventlonal demand within the two days allowed to institute this suit. Plaintiff could not well institute a suit without knowing whether the action of the judicial executive committee would be questioned by contestant.”

We are not at all certain that the reasons given in that case are applicable here because there Wear, the defendant and contestee, had been declared the party nominee and, manifestly, there was no reason, however illegal may have been some of the votes cast for his, opponent, for him to initiate a contest over those votes. Thus, if with only two days provided for the filing of a contest, the unsuccessful candidate should wait until the last moment to file his contest, the successful party would, if the prescriptive period be applicable, be deprived of the right to attempt to eliminate illegal votes against him. In such case his attack on the illegal votes of his opponent is not a move of aggression, hut one of defense, and it is easily understood why his right to use such contest purely as a defense should not he denied under a plea of prescription. Here, however, defendant is no more the successful party than is plaintiff, and in his reconventional demand he does not limit himself to defense, but becomes the aggressor when he asks that the vote of Ordineaux be rejected, not only for the purpose of defeating the claim of Camhre, but also for the purpose of permitting him (Brignae) to be declared nominee.

But whether the plea of prescription be good or hot, it appears to us that, since the vote of Ordineaux has been cast and counted, and since the right of Ordineaux to cast the said vote was never questioned prior to nor at the election, it cannot be questioned now, and we base our views on this point largely on the decision of the Supreme Court in Perez v. Cognevich, 156 La. 331, 100 So. 444, 447, in which, after an election, it was sought to have the courts reject certain votes already cast. The court said:

“If these persons had no right to vote because they were not entitled to a place upon the registration rolls, or because they were not entitled to registration as voters in the precinct in which they registered as such, or because their registration did not comply with the law in other respects, the proper proceeding should have been taken to purge their names, from the rolls. Both the Constitution and the enactments of the Legislature contemplate direct proceedings against a voter to strike his name from the rolls, except, of couse, when it appears that the voter has died, or it appears that since his registration he has been convicted of a felony, or has been declared insane. Section 5, art. 8, Constitution of 1921; sections 8, 9, 11, 12, and 13 of Act No. 122 of 1921.
“Were we to give our sanction to the attack hei'e made, we could do so only by ignoring the methods provided by law for purging the rolls, and by permitting what is equivalent to a collateral attack upon the registration of the voters in question, which, of course, we cannot do. See Turregano v. Whittington, 132 La. 454, 61 So. 525, and Smith v. Police Jury, 125 La. 731, 51 So. 703.”

True enough, this reasoning seems to be in conflict with the views expressed in Marrero v. Middleton et al., 131 La. 372, 59 So. 791; Marrero v. Middleton et al., 131 La. 432, 59 So. 863, and Edrington v. Chenet, 131 La. 439, 59 So. 866, in all of which cases the court permitted an investigation, after election, into eligibility of persons who had voted, or who had desired to vote in the election, and in the second of which cases, on page 434 of 131 La., 59 So. 863, 864, the court said:

“We hold in our former judgment that the objections to evidence attacking collaterally the registration of particular voters were properly overruled by the trial judge as to qualifications necessary for registration; and we now adhere to that ruling. We also hold in our former opinion that under the primary statutes of this state a candidate does not lose his right to object to illegal votes because he did not challenge the voters at the polls. * * *”

However, it must be remembered that the last three cases to which we have referred were all decided prior to the adoption of the Constitution of 1921 and before the passage of Act No. 122 of 1921 (Ex. Sess.) and of Act No. 97 of 1922, the purpose of which enactments, so far as the point now under discussion is concerned, seems to be to require that illegal registrations, be erased by direct action prior to election and not by collateral attack afterwards. The case of Perez v. Cognevich, supra, was, on the other hand, decided in April, 1924, after the various enactments of 1921 and 1922 became effective, and, as appears from the above quotation from that decision, was largely based on those enactments.

If we are correct in this view, it follows that, since the attack on the eligibility of Ordineaux is directed at the fact that, many months prior to the election, he had removed from the precinct in which he later voted, such an attack cannot at this time be considered.

Thus, the question raised by the reconventional demand is disposed of, at least to our own satisfaction, and we shall now address ourselves to the controversy presented by the main petition.

At the very beginning of the consideration of this question, our attention naturally focuses itself upon section 5 of article 8 of the Constitution of 1921, because it is. that section which provides the method by which a name illegally registered may be stricken from the rolls, as well as the method by which a qualified elector, illegally denied registration, may obtain redress.

If, then, as we have held, no objection to an illegally registered voter may be made collaterally and after election, it would seem logical to apply the other provisions of the same section to a collateral attempt to count, after election, an uncast vote of a person whose name was not on the rolls.

But, whether such collateral effort to count a vote not actually cast may be made, it is not essential that we determine, because after a consideration of the facts pertaining to the qualifications of Poche, we have come to the conclusion that he had lost his status as a qualified elector in ward 1 of St. James parish, and that the registrar of voters was. within his rights and was performing his ministerial duty in removing the name from the registration rolls of that ward.

It satisfactorily appears from the evidence that, although Poche had, for some years, resided in ward 1, he had, more than three months prior to the primary election of February 23, 1932, removed to another ward in the same parish with the intention of residing in that other ward.

Exactly when the removal was. effected is difficult to ascertain, but that it was more than three months before the date of, the said primary seems certain.

Act No. 122 of 1921 (Ex. Sess.) is a general statute governing the qualifications of voters and providing for their registration, and in that statute, in section 10, it is provided that, “in order to be registered as. a voter, a person shall have been an actual bona fide resident * * * of the precinct in which he offer to vote, three months next preceding the election.”

It also appears from the last paragraph of section 10 of that act that, after Poche had removed from ward 1, he could, after a delay of 30 days, have registered in the new ward to which he had removed. He was, therefore, not deprived by the action of the registrar of the right to vote. He was merely required to register in the other ward to which he had removed and to east his vote there.

But, says Cambre, the registrar had no right, without a hearing, to erase Poche’s name, which, admittedly, had been originally properly placed on the registration rolls of ward 1, and he bases his argument that the registrar had no right to remove the name without notice and without a hearing on the fact that, under sections 8 and 9 of Act No. 122 of 1921 (Ex. Sess.), notice and hearing are required before erasure of a name from -the rolls.

Section 8 provides a method by which any two bona fide electors may initiate proceedings looking to the removal of an alleged illegally registered person.

Section 9 provides- a method by which the registrar may himself initiate such proceedings.

It is true that in both of these sections it is provided that notice shall be given, and that hearing shall be had, hut section 18 of the act was inserted in order to provide a method hy which a registrar, within 30 days next preceding an election, may, even without notice and without hearing, on his own motion, erase a name which he has reason to believe is illegally on the rolls.

We see no conflict between sections 8 and 9 on the one hand and section 18 on the other. Nor do we agree with counsel for Cambre that section 18 is intended merely as a summary or restatement of the provisions of the other two mentioned sections. Section 18 seems intended to serve a special purpose when there is no longer time for the formal notice and hearing provided for in the other methods set forth in sections 8 and 9. The erasure here was admittedly made exactly 30- days prior to the primary election.

That in some cases such power as is thus conferred upon the registrar may lead to abuse cannot be denied, but it appears here that there was no such abuse, since we find from the record that Poche himself had verbally informed the registrar of his removal to the other ward, and, although it is conceded that he did not, along with the giving of this information, make a request for transfer of registration, the purpose of informing -the registrar of removal could only have been to assist, in maintaining the correctness of the registration records.

Since the registrar had the right to remove the name of Poche, and since Poche took no steps to reinstate his name, and since, even if such steps had been taken, it appears that, as a result of his prior removal, his efforts should not have been successful, it follows that the vote which Poche says he would have cast for Cambre cannot be added -to the total.

In passing, we remark that defendant’s contention that it is not proper, in such cases, to place upon the witness stand parties who were denied the right to vote, in order that they may testify as to how they intended to vote, does not seem to be well founded in view of the decision of our Supreme Court in the two cases of Marrero v. Middleton et al., supra, and in the case of Edrington v. Chenet, supra.

A rejection of both the demand of plaintiff and of that of the defendant and plaintiff in reconvention leaves the promulgation of the parish committee unaltered and shows that the primary election resulted in an even vote, 187 for each candidate.

Our attention is not directed to any constitutional or statutory provision pointing out a course to be followed where, by reason of an equal vote for each candidate in a second primary, neither is nominated. In section 31 of Act No. 97 of 1922, which is the general primary election law in force at this time, it is required that, where a contest pending in court “shall not be finally decided in time to print the name of the nominee of the party upon the ticket at election, then the political party committee shall certify the name of the person who is the contestee in the suit filed.” '

It is evident that that section can be of no assistance here, for we have no means of knowing whether there is time for the purpose mentioned to be accomplished, and, even if we had such knowledge, surely a court before which such a contest is pending could not apply such a provision and thereby avoid a decision of the matter. Furthermore, that portion of section 31 did not contemplate a situation in which neither of the parties to the suit had been declared nominee by the party committee. It is easy to understand the reason for declaring that, where one person had been declared nominee and his right has been challenged, but there is not time for final judicial action, the contestee who has been named by the committee should be the standard bearer of the party. But such reasoning has no foundation where neither has been selected.

In the absence of a showing that there is not time, before the general election, for the holding of another primary, we deem it in conformity with the spirit and purpose of the primary laws of the state that another primary be held. In this view we agree with what, in a situation somewhat resembling this, was said by Judge Odom, then of the Second Circuit Court of Appeal, in Parker v. Democratic Executive Committee of Franklin Parish, 5 La. App. 712, when, in ordering another primary, he, as organ of the Court of Appeal for that circuit, said:

“Considering the returns made by the commissioners and all the testimony in the record,” it is “utterly impossible for the court to determine which of the candidates was nominated.
“The underlying principle of all elections is to ascertain the will of the majority.
“Where * * * it is impossible to ascertain this will the matter should be referred back to the voters.”

DECREE

The judgment appealed from in so far as it rejects the reconventional demand is affirmed, but in so far as it is in favor of plaintiff, Elize Cambre, ordering the certification of his name as Democratic nominee as justice of the peace for ward 1, St. James parish, it is annulled, avoided, and reversed, and his suit is now dismissed at his cost.

PER CURIAM.

The suggestion contained in our opinion in this case, to the effect that a third primary may be necessary, was inadvertent, and we desire to retract it because of its possible misleading character. That issue was not before the court.


author: PER CURIAM.

text:
    No. 14,118
    Orleans
    STATE OF LOUISIANA v. CHARLES E. WERMUTH CO.
    (March 21, 1932. Opinion and Decree.)
    Charles J. Rivet, of New Orleans, attorney for plaintiff, appellee.
    E. Howard McCaleb, of New Orleans, attorney for defendant, appellant.
   ON MOTION TO DISMISS

PER CURIAM.

For the reasons given in State of La. v. Moore, 19 La. App. 364, 140 So. 516, decided March 7, 1932, this cause is transferred to the Supreme Court.

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


text:
    No. 14,092
    Orleans
    BURGESS v. AMERICAN SAFE DEPOSIT CO., INC.
    (March 7, 1932. Opinion and Decree.)
    (April 4, 1932. Rehearing Refused.)
    (April 25, 1932. Writs of Certiorari and Review Refused by Supreme Court.)-
    Puneky & Barrios and Gerald A. Rault, of New Orleans, attorneys for plaintiff, appellee.

      Prank T. Doyle and Harry M. Mayo, Jr., of New Orleans, attorneys for defendant, appellant.
   JANVIER, J.

Transito Burgess, a window washer in the employ of American Safe Deposit Company, Inc., claims that on September 24, 1930, while engaged at his work, he had disengaged from the building, in which he was washing a window, one of the two straps which was attached to his safety belt, when he slipped on the window sill, causing the entire weight of his body to be thrown on the said safety belt, and that his back, while he was swinging suspended by the belt and the strap attaching it to the building, struck a part of the radiator, or some other object inside the structure.

He maintains that the said blow to his back, or the sudden strain on his abdomen, caused by the unexpected and violent throwing of his. weight on the safety belt, ruptured the abdominal wall of his body, causing a hernia. Contending that he has been permanently and toally disabled, he seeks to recover compensation for 400 weeks at $9.75 per week, as well as $24.99 claimed to have been expended for medicines.

The district court rendered judgment in his favor for $3,900, and defendant has appealed.

On the day of the accident, September 24, 1930, or immediately after it, Burgess called at the office of Dr. W. R. Brewster, a physician designated by defendant, and, according to Dr. Brewster, complained only of an injury to his back. The physician found a contusion of the back and applied adhesive straps. Burgess was under the care of Dr. Brewster until October 8, at which time he was discharged as able to return to work, and he thereafter continued to perform his duties, until December 24, more than two and one-half months later, at which time he was discharged by his employer for causes not associated with his physical condition.

On the next day, December 26, he returned to Dr. Brewster, and on that day, for the first time, according to Dr. Brewster, complained that he was suffering from hernia.

Examination disclosed the complaint to be well founded.

Burgess maintains that the hernia had come into existence on September 24, when he first sustained the injury to which we have referred and that, at that time, Dr. Brewster was told by him of its existence.

We cannot believe that Dr. Brewster would have forgotten so important a fact as the existence of a hernia, and it is incredible that he would not have noticed such a thing, even had he not been told of it, if, in fact, it really existed, because he states that, while he did not particularly examine for hernia, “had one been present, I would have seen it during the process of strapping which included a complete circular strapping.”

We find the facts of the case remarkably similar to those which were present in Cooper v. Dennis Sheen Transfer, Inc., 17 La. App. 682, 137 So. 383, 384, in which, with regard to the probability of experienced doctors, overlooking a hernia, we said:

“* * * No man suffering such an injury as Cooper is said to have sustained, and with a hernia so large as that which the witnesses, claim to have seen, would have visited a doctor without at once calling such a thing to his attention; and, second, because, even without his attention having been directed to it, we cannot believe that an experienced, capable'physician would have overlooked such an obvious extreme abnormality. We, therefore, say without hesitation that when Dr. Gessner discharged Cooper on March 9th, no hernia had exhibited itself.’’ ,

If, as we believe, no hernia had manifested itself when Burgess, on October 8, was discharged by Dr. Brewster, and if, as no effort is made to disprove, no other accident was later sustained, the hernia which now disables him must have come, not from trauma, but from congenital weakness.

In the Cooper case we stated that, since the hernia had not previously made itself evident, and since, at the time of the last medical examination, there could be no doubt of its existence, we would have found it difficult to overcome the very natural conclusion that it had been caused by the accident, had it not been for the fact that long after the first accident Cooper had struck himself in the side with an axe while chopping wood at his. home. Here there was no such second accident, but, in the light of the expert advice which is in the record, there is no room for doubt that such hernias are rarely caused by external blows and that, in nearly all such cases, the abdominal wall, deficient in strength due to congenital defect, is subjected to sudden stress such as violent coughing, sneezing, or straining at defecation, and that the last named is the most frequent cause of all.

That, prior to being engaged by defendant, Burgess was apparently in perfect physical condition, may well be, and, in fact, that no hernia previously existed is quite evident from Dr. Brewster’s examination on September 24th.

We cannot, however, place much credence in the statements of the, two friends of Burgess, who testified that, immediately after the accident of September 24, the hernia was apparent even' to an inexperienced eye, and that they saw it almost every day, because, as we have already said, had such been the case, Dr. Brewster could not have failed to see it.

Peculiarly enough, in this regard also, this case resembles the Cooper case, in which two witnesses testified that they were in daily contact with the plaintiff and that they themselves saw the hernia often. We found there, as we did here, that, had such hernia existed and had it been apparent, no doctor could have overlooked it.

The two doctors who testified on behalf of plaintiff had no knowledge of his condition prior to the time at which the hernia actually made its appearance.

In such cases as this we well realize that it is quite impossible for courts to determine with mathematical certainty whether hernia actually resulted from accident or from congenital weakness, but we would certainy err more often than we do were we to substitute for what appears, to he the preponderating medical opinion any conjecture which we might ourselves make were there no medical opinions in the record.

Here we are well convinced that the preponderance of the expert testimony is with defendant, and we, therefore, must be guided accordingly.

The judgment appealed from is reversed, and plaintiff’s suit is dismissed at his cost.


text:
    No. 13,978
    Orleans
    LOUISIANA HIGHWAY COMMISSION v. GIACCONE
    (March 7, 1932, Opinion and Decree.)
    L. L. Morgan and A. S. Cain, Jr., of New Orleans; J. K. Gaudet, of Gretna, and D. M. Ellison, of Baton Rouge, attorneys for plaintiff, appellee.
    Brian & Brian, of New Orleans, attorneys for defendant, appellant.
   JANVIER, J.

For the purpose of providing a right of way for a hard-surfaced state highway, Louisiana Highway Commission seeks to expropriate a strip of land 100 feet wide by 192 feet long.

A jury of freeholders fixed the value of the land taken at $63.80, and from a judgment based on that verdict, defendant has appealed.

Whether there was necessity for the particular land is, of course, not before us, and we are called upon to consider only the correctness or inadequacy of the award.

Defendant complains on three counts, as follows:

First, that the amount allowed for the land actually taken is inadequate.

Second, that no allowance was made for the depreciation in value suffered by a small strip of land 15 feet wide lying immediately alongside the larger strip actually taken, which depreciation is said to result from the fact that such small strip cannot be cultivated, but must be reserved by the landowner for a so-called “headland,” on which mules drawing plows or other agricultural implements, or on which mechanical tractors may turn around.

Third, that no allowance was made to reimburse the landowner for the costs of court and attorney’s fees in another proceeding, by which it was sought to prevent, by injunction, the Highway . Commission from appropriating by force and without lawful means, the land which was later the basis of this expropriation proceeding.

We will describe briefly the character of land which is involved and the conditions, agricultural and otherwise, which surround it.

The entire tract owned by defendant has a frontage of 191 feet 11 inches and extends in depth to the township line; in all between 40 and 50 arpents. At the end towards the Mississippi river, it is crossed by the right of way of Louisiana Southern Railway Company. On the river side of the railroad tracks lies the old highway. On the other side of the tracks is the strip needed for the new highway. The land is about seven or eight miles below the city of New Orleans and is used for truck farming, as is nearly all the land in that immediate vicinity, except a large tract occupied by an oil refinery. (We notice, but attach tq it no importance, that, though the strip taken is said to be 192 feet in length, defendant’s property is only 191 feet 11 inches in frontage, so that there is an error of one inch in one measurement or the other.)

The depreciation in value claimed to result to the 15-foot strip immediately alongside the actual highway right of way is said to be caused by the fact that heretofore, in cultivating his land, defendant’s mules have used the railroad right of way to turn around, whereas under the new arrangement that railroad right of way is no longer available and a headland on defendant’s own land must now be reserved for that purpose and cannot be devoted to cultivation.

Assuming that the facts in this regard are as stated by defendant, the loss which has been caused is not such as must be compensated for. If, by forbearance, the railroad company allowed defendant to use its right of way for such purpose, that was his good fortune, so long as the proximity of his land to the right of way made that practice possible but if, now, by legal means, his land is no longer left immediately adjacent to the railroad right of way, and if, as a result, he is deprived of that privilege, such deprivation is not an item or element of damage for which courts may award compensation. Furthermore, such small damage — defendant himself fixes it at $28 — has been many times offset by the appreciation in value which has resulted to the entire remaining tract by reason of the construction of the highway. It is well settled that, though appreciation in value of what remains may not be taken into consideration as an offset to the value of land actually taken, nevertheless, such appreciation may properly be considered as an offset to a claim for consequential damages claimed to result to other land than that actually expropliated. In Louisiana Society for Prevention of Cruelty to Children v. Board of Levee Commissioners of Orleans Levee District, 143 La. 90, 78 So. 249, 254, the Supreme Court said:

“In Shreveport R. Co. v. Hinds, 50 La. Ann. 782, this court, at page 785, 24 So. 287, 289, had said:
“ ‘The question of the value of the land to be taken is distinct and separate from the question of damages.’
“It is thus seen that at the time article 312 came to be drafted, our jurisprudence had made a' clear distinction between property actually taken and property not actually taken but merely damaged — holding the latter to be compensable by bonefits, but the former, not.”

To the same effect see New Orleans Pacific Railway Co. v. Gay, Tutor, 31 La. Ann. 430, in which the Supreme Court said:

“The true question for the jury was. to what amount would the Augusta Plantation be enhanced in value by the building of plaintiff’s railroad? The amount of that enhancement could be set off against any damages which that plantation suffered by the building of the road.”

The claim for special damage to the small 15-foot strip was properly rejected.

Defendant claims $100 as attorney’s fees and $10 for court costs incurred in the injunction proceeding. He asserts that, before the expropriation suit was filed, he learned that it was the intention of the officials of the highway department to force their way over his land, without first paying therefor and without first bringing condemnation proceedings, and he contends that, since the injunction proceeding was brought to frustrate and prevent such illegal action, he is entitled, in this condemnation suit, to be reimbursed, as an item of damage, the said costs and fees necessarily expended.

Here, again, we are unable to agree. The injunction proceeding was never terminated either favorably or unfavorably to him. That proceeding was different from the one now before us, and we cannot see that, as an element of value in an expropriation proceeding, such cost should be taken into consideration.

In the proper proceeding, no doubt payment of such fees and costs would be resisted on the ground that, if they were made necessary by the officials or employees of the highway commission, then those acts which made them necessary were in the nature of torts, since those employees and officials are not authorized by law to take property by force. And it is contended that, if those items expended resulted from torts, then there is no redress, since the highway commission may not be sued for torts of its officials or other employees. See Orgeron et ux. v. Louisiana Power & Light Co. et al., 19 La. App. 628, 140 So. 282, decided by us today.

There remains for our consideration only the inadequacy, vel non, of the award for the land actually taken. The amount of land involved was 44/100 of an acre. The amount of the award, as we have stated, was $63.80.

There immediately come to mind two principles of law applicable to condemnation proceedings: First, that the amount of the award should be based on the fair market value of the property taken; and, second, that appellate courts should, only with great reluctance, set aside or amend awards made by juries of freeholders.

The rule for determining the fair market value is well stated in Ruling Case Law, volume 10, page 128, Eminent Domain, sec. 112, in which it is said:

“When a parcel of land is taken by eminent domain, the measure of compensation to be awarded the owner is the price which would be agreed upon at a voluntary sale between an owner willing to sell and a purchaser willing to buy; in other words the test is the fair market value of the land.”

That this is the Louisiana rule we find by reference to Louisville & Nashville R. Co. v. De Montluzin Co., Inc., 166 La. 211, 116 So. 854, 855, in which the court said:

“It is well settled that the criterion of value is the market value of the property at the date of the institution of the expropriation suit, in view of any use to which it may be applied and of all the uses to which it is adapted. * * * The market value means the fair value of the property between one who wants • to purchase and one who wants to sell, under usual and ordinary circumstances. Market value does not mean speculative value.”

This language is found repeated almost verbatim in Texas Pacific-Missouri Pacific Terminal Railroad v. Elliott, 166 La. 350, 117 So. 275. See, also, Louisiana Ry. & Nav. Co. v. Baton Rouge Brickyard, 136 La. 833, 67 So. 922, L. R. A. 1917A, 402; Orleans & J. R. Co. v. Jefferson & L. P. R. Co., 51 La. Ann. 1616, 26 So. 278; Louisiana Ry. & Nav. Co. v. Xavier Realty, Ltd., 115 La. 328, 39 So. 1.

That the court should be most reluctant to change an award of a jury of freeholders has been many times asserted by our appellate courts, notably in New Orleans & Gulf R. Co. v. Frank, 39 La. Ann. 707, 2 So. 310, in which it was said that:

“In expropriation proceeding we place great reliance upon the verdict of the jury. Being taken from the vicinage and landowners themselves, and presumed to be thoroughly acquainted with the character of the land -and its value, a court should not disturb the estimate of value fixed by the verdict, unless it is found inconsistent with or entirely unsupported by the evidence.”

This same principle was announced in New Orleans Ry. & Light Co. v. Lavergne et al., 138 La. 949, 70 So. 921, 924, in which the court declared that in repeated decisions it had been held:

“* * * That the amount of compensation allowed by a jury in expropriation proceedings should not be reduced unless it is manifestly excessive (N. O., F. J. & G. I. R. R. v. McNeely, 47 La. Ann. 1298, 17 So. 798; T. & P. Ry. Co. v. Wilson, 108 La. 3, 32 So. 173; Shreveport v. Youree, 114 La. 184, 38 So. 135, 3 Ann. Cas. 300) it follows that the award should be reduced if it is manifestly excessive.”

Bearing in mind, then, these two principles, that we should be very loath to amend such an award and that the fair market value is the criterion, let us “read, mark, learn and inwardly digest” all the evidence.

There has been but one sale of neighboring land within a period of time sufficiently recent to assist in solving the problem. In 1929 one John Boe purchased a tract having a frontage of IV2 arpents and a depth of 40 arpents, or containing 60 arpents in all. This land is about two squares from Giaccone’s, is very much the same kind of land, and was purchased for $13,-250. This sale cannot be used to determine the actual value of the unimproved land because, on the Boe land, there were various buildings which have considerable value. However, merely to afford one basis of calculation, we will analyze the figures in connection with that sale, which figures we think justified by the evidence.

From what the various witnesses have said, the value of the Boe property was about equally divided between the land itself and the improvements situated thereon. Therefore the value of the land may be said to be $6,625. From the evidence as to the character of the front lands, as distinguished from the rear, or swamp, lands, it appears that there are about 35 arpents of swamp land in the rear of the Boe tract, which have a value of only a few hundred dollars — as near as we can arrive at, in the neighborhood of $600 or $625, so that the remaining 25 acres would have an average value of $400 per acre. It is true that these figures are not conclusively shown by the evidence to be correct, but, strangely enough, the final result is remarkably close to the assessed value of those front lands, to-wit, $370 per acre. Whether the assessed value may be considered we will later discuss, but for the present we merely mention it in passing to show that the figure, $400 an acre, is not entirely unreasonable.

The opinions of the various witnesses -are so divergent that we find it difficult to give to any one statement primary consideration. The witnesses produced by defendant, Giaccone, seem to be convinced that the land taken is worth at least $800 an acre, ■ whereas those witnesses tendered by the highway commission would have us believe that $140 to $150 an acre is a proper valuation.

Mr. Nunez, president of the Lake Borgne basin levee district, states that the entire Giaccone tract is. worth about $11,500, and that of that sum about $7,500 should be taken as the value of the .improvements. This, he says, leaves $4,000 as the value of the land. There are about 17 arpents of front land, those in the rear having, as we have stated, little value, apparently not more than $500 in all. This would, even according to Nunez, give to the front lands a value of something over $200 an arpent. There can be no doubt that those lands nearest the front are most valuable; consequently the. strip taken is the most valuable of all, and such difference in value may — nay, must — be taken into consideration, because, whatever may be the average value per acre of the whole tract, it is plain that those front lands are worth more than the rear.

In Green et al. v. Board of Commissioners, 163 La. 118, 111 So. 619, 620, our Supreme Court said:

“* * * xt does not follow that each acre of land in a single tract must be taken to have exactly the same value. as every other acre therein; that acres of arable land and acres of marsh land, acres of wooded land, and acres of bare land, all have the same value; that orchards and vineyards are not to be distinguished from stonelands and pastures merely because they are all included in the one tract.
“On the contrary, we think that the relative worth of the lands taken, as compared to that of the rest of the tract, should be considered, and proper allowance made for the difference in values.”

An effort was made by defendant to show that a certain Mrs. Lund had offered to purchase a portion of the strip of land here involved, and his counsel argues that the price offered by Mrs. Lund should be used to fix the market value of the whole strip.

Evidence of this kind is of very doubtful value. Actual sales are, of course, of great assistance, and are, in fact, determinative, but, where no sale has resulted, evidence of an offer to purchase should be given scant consideration because, although in any particular ease such evidence might be bona fide, the practice of admitting it. would render it too easy to obtain fraudulent testimony of fictitious offers, against which the other ¡party would have no defense whatever. In fact it has been held that such evidence should not be accepted at all. American & English Encyclopedia of Law, vol. 10, p. 1154. In Louisiana Ry. & Nav. Co. v. Morere, 116 La. 997, 41 So. 236, 238, the Supreme Court of Louisiana said:

“The evidence as to offers of purchase was properly rejected. Offers of purchase are a class of evidence safer to reject than to receive.”

The offer of defendant to prove that the lands in question had been for some years assessed at $370 per acre and the ruling of His Honor below that such evidence was not admissible raises an interesting question. The evidence was ordered excluded (though it is actually in the record in several places) on the supposed authority of several decisions, notably Louisiana Ry. & Nav. Co. v. Morere, supra, in which the court, at page 1000 of 116 La., 41 So. 236, said:

“Until assessments shall be made in this state at the market value of property, they will not be reliable evidence of value, and the offer of them for showing value will be a useless incumbering of the record, unless accompanied by proof that the appraisement was made by the owner himself.”

It will be noted that, in the Morere case and in the other cases which we have examined, it was sought to use the assessment figure as the maximum value, whereas here all that defendant contends is that the assessment is the minimum, below which the state itself, which, through its own officers, has made the assessment, cannot be permitted to go in actually taking land.

While it is true that lands in this state are'seldom, if ever, assessed at their true value, we feel that it can be safely said that the assessment value never exceeds the actual value, and it is for this reason that it would be unfair to a landowner to force the acceptance of the assessed value as the basis for condemnation, but where the landowner himself desires to use the assessed value, not as the actual value, but as the minimum below which the condemnation price shall not go, it seems reasonable to permit him to do so where the state itself, which, through one department, made the assessment, is, through another, attempting to take the lands for less than the assessment.

If the state has for years accepted taxes based on the assessment, it hardly lies in the mouths of its own officials to attempt to deprive the owner of his property for less than the amount at which it has been valued for the purpose of fixing those taxes. In the Morere case the Supreme Court recognized that an assessment might be used against an owner, if there Were proof that it “was made by the owner himself”; in other words, that an assessment made by one party may be used as evidence against him who made it. Why, then, since it is presumed that the state itself, in assessing the property, did not assess it at full value, may not the assessment be accepted against the state as representing at least minimum' value? In Board of Levee Commissioners v. Jackson’s Estate, 113 La. 124, 36 So. 912, 915, the Supreme Court held that a landowner, who for years had paid taxes based on an unconscionably low assessment, could not later, in an expropriation ¡proceeding, contend that the assessment should not be the basis of condemnation. The court said:

“If the valuation stated was the proper standard by which the owners should pay money to the state, it certainly should not be ignored when they call upon the state to pay money for it.”

The rule of law should, to some extent, work both ways, and while we do not feel that an assessment should be accepted as final in a condemnation suit between a state agency and a citizen, still we cannot agree that it is not admissible as evidence, because, to some extent, it is of assistance in determining what is actual market value.

After a careful reading of the record, we are of the opinion that the award was so inadequate as to require our interference therewith.

Just what is the correct market value of the land can no more be answered by us than it was answered by the various witnesses. We have reached the conclusion that $400 per acre for the front land is as near the correct value as any one can determine, and shall adopt that figure as the basis of calculation. The award should have been $176, and we shall amend the judgment accordingly.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be and it is amended by the increase of the amount thereof to $176, and that, as thus amended, the said judgment be, and it is affirmed.


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    No. 13,891
    Orleans
    LEET v. JONES
    (February 15, 1932. Opinion and Decree.)
    (March 7, 1932. Rehearing Refused.)
    (April 25, 1932. Writs of Certiorari and Review Refused by Supreme Court.)

      Dart & Dart and Louis C. Guidry, of New Orleans, attorneys for plaintiff, appellee.
    Ridgely Moise, of New Orleans, attorney for defendant, appellant.
   JANVIER, J.

On October 1, 1927, Clyde W. Leet, a public accountant, entered into a contract with Jones, Eversmeyer and Winkler, a firm of accountants composed of William B. Jones, Walter H. Eversmeyer and M. M. Winkler, under which he was employed by the firm “For one year from October 1st, 1927 to October 1st, 1928, at a guaranteed monthly salary of $250.00 per month, payable monthly and 5% of the net profits of the firm during the fiscal year ending October 1st, 1928.”

At the expiration of the year fixed in the contract there was a verbal renewal for an additional year, to-wit: to October 1, 1929, and on October 1, 1929, the contract was again verbally renewed for an additional year.

During the first two years Leet received all that was due him under the contract.

As of March 15, 1930, when the contract, as last renewed, had been in effect five and one-half months, the partnership of Jones, Eversmeyer and Winkler was dissolved by consent of the three partners who, among other things, agreed that Jones should continue the business formerly conducted by the partnership, should retain the services of Leet and should assume the obligation of paying him the salary and percentage of earnings stipulated for in the original contract.

In the agreement of dissolution it was also set forth that on March 15, 1930, the net profits of the partnership were such that 5 per cent thereof amounted to $226.45.

Leet, unwilling to continue in the employ of Jones, notified him to that effect and then brought this suit to recover from Jones the said $226.45 together with certain other small amounts representing his alleged unpaid salary for a few days and certain traveling expenses.

The total amount claimed is $263.68.

Jones resists payment on several grounds, principally because he asserts that Leet, without just cause, refused to comply with his contract of employment and thus, according to the contention of Jones, not only forfeited his right to salary and earnings, but rendered himself liable to return the total amount received by him under the contract. This contention is founded on the alleged applicability to the situation of article 2750 of the Civil Code which reads as follows:

“But if, on the other hand, a laborer, after having hired out his services, should leave his employer before the time of his engagement has expired, without having any just cause of complaint against his employer, the laborer shall then forfeit all the wages that may be due to him, and shall moreover be compelled to repay all the money he has received, either as due for his wages, or in advance thereof on the running year or on the time of his engagement.”

Jones, claiming that the above quoted codal provision governs the situation, has, by reconventional demand, claimed from Leet $1,754.21.

The trial court rendered judgment for plaintiff, Leet, as ¡prayed for and rejected, in its entirety, the reconventional demand. Prom that judgment Jones has appealed.

There is a dispute of minor importance as to certain qf the lesser sums claimed by Leet, but in the main the facts are not in controversy. The only point o'f importance which confronts us is the question of whether the original partnership, when it dissolved, could assign to Jones the contract with Leet and thereby force Leet to continue in the employ of Jones. Article 2007 of- the Civil Code provides in part as follows:

“All contracts for the hire of labor, skill or industry, without any distinction, whether they can be as well performed by any other as by the obligor, unless there be some special agreement to the contrary, are considered as personal on the part of the obligor, but heritable on the part of the obligee.”

If then, under the contract here involved, Leet is the sole obligor it must necessarily follow that his services can be assigned by the partnership because, although personal as to Leet, the contract, under the precise terms of the said article, would be heritable, that is to say, transferable or assignable on the part of the partnership, Jones, Eversmeyer and Winkler.

In the usual contracts of hire, whether of labor or of skilled workmen or of professional men, the employee is the obligor and the employer is the obligee as contemplated by article 2007 of the Code, because the employee is obligated to furnish his services and the full obligation of the employer or obligee is complied with when he pays the salary or recompense stipulated for. Ordinarily the employer owes nothing more. But where the employee has contracted to perform services for others in the same business or profession, and is to receive not only a salary, but a percentage of' the net earnings of all, the employee is interested, as are all the others, in the earnings of the entire group and in such case the obligation of each member of the group is to retain his membership therein and, by his personality and acquaintances and reputation in the community, to add to the income of all.

Thus, each of the employers in such a case is also an obligor, because each owes to the employee, not only the salary stipulated for, but also the duty of augmenting, each to the extent of his ability, the income of the entire group. If each employer is an obligor, then as to each the contract is personal and may not be assigned.

While the agreement to share profits did not necessarily make Leet a partner (Shushan Bros. & Co. v. Hillcoat, 158 La. 480, 104 So. 214) it did, at least to the extent of his interest in the profits, give him certain rights which are possessed by partners. It is contemplated in partnerships, particularly between professional men, that each will give to the partnership his skill and experience and his ability to obtain business for the firm. In entering into such an association, each member takes into consideration and is much influenced by the personal characteristics of the others and it is for this reason that the framers of pur Code in the same article from which we have quoted, Civ. Code art. 2007, provided also that “Contracts of * * * partnership are mutually personal.”

The thought which we have in mind was well expi-essed by Lord Denman in Humble v. Hunter, 12 Q. B. 310:

“You have the right to the benefit you anticipate from the character, credit and substance of the party with whom you contract.”

Here, it must be presumed, that in entering into the contract Leet was moved to a considerable extent by the fact that he knew of the experience, industry and business producing ability of Eversmeyer and Winkler and, whatever may be the qualifications of Jones in these particulars, it would be manifestly unfair to Leet to force him, whether he consented or not, to fore-go his share of such business as may have been produced by the other members of the former firm and to rely entirely on the earning capacity of Jones.

In fact, Jones’ contention that he can produce as much business as the old firm would have produced cannot even be given consideration. In discussing the effect of a contract which is personal, Judge Saunders in his Lectures on the Civil Code, cited the case of a son who, after the death of his father, undertook tq perform a contract which the father- had made and which was personal as to him. In stating his opinion, of which he seemed to have no doubt at all that the son could not undertake such contract, Judge Saunders said:

“The son would not be permitted to show that he was as successful as his father or that he had been all the time conducting his father’s business.”

See Saunders’ Lectures on the Civil Code, page 412.

Counsel for Jones contends that even if Leet was justified in refusing to remain in the employ of Jones, still he was not entitled to the amount shown on March 15th, as being 5 per cent of the net earnings, because, under the contract, he was entitled to his percentage of the net earnings only as shown at the end of the fiscal year and, since, at the end of the fiscal year, to-wit, on October 1, 1930, there were no net earnings, Leet could not claim the amount which, on March 15, 1930, represented 5 per cent of what at that time were the net earnings.

It is very true that had Leet remained in the employ of the partnership or had he acquiesced in the assignment of his contract, he would not have been entitled, until the end of the fiscal year, to his percentage of the net earnings, but since by the action of the partners his contract was terminated on March 15th, it would manifestly be unfair to him to hold that he had the right to discontinue his employment, but that he had no right to withdraw from Jones the amount shown to be due him at that time and that he must leave that amount in Jones’ custody subject to the possibility of loss. If he was unwilling to remain with Jones and if he was justified in deciding to leave, surely he should not be forced to leave his funds in Jones’ possession.

It is also true that had Jones not assumed, so far as the other partners were, concerned, responsibility to Leet, Leet could not have held him liable for the full amount, but when Jones undertook to continue the operation of the business and agreed to take over certain assets and liabilities, among which was the obligation to pay Leet the amount due him, he thus made himself liable to Leet for the whole amount shown to be due at that time.

Whether the smaller items which are involved should be allowed to plaintiff depends uipon questions of fact. We have carefully considered the evidence which was adduced in connection therewith and cannot say that the judgment rendered by our brother below is manifestly erroneous, consequently we have decided to make no alteration in his finding.

The judgment appealed from is affirmed.


text:
    No. 13,896
    Orleans
    TASSIN v. NEW ORLEANS PUBLIC SERVICE, INC.
    (February 15, 1932. Opinion and Decree.)
    (March 7, 1932. Rehearing Refused.)
    (April 25, 1932. Writs of Certiorari and Review Refused by Supreme Court.)
    Arthur B. Leopold and M. C. Scharff, of New Orleans, attorneys for plaintiff, appellant.
    Ivy G. Kittredge, of New Orleans, attorney for defendant, appellee.
   JANVIER, J.

At about 3 o’clock in the morning of April 30, 1929, Elvin Tassin, a young boy 14 years of age, lying asleep on the neutral ground of St. Claude avenue, lost his right foot when it was run over hy a street car of New Orleans Public Service, Inc.

Young Tassin’s father brings this suit on behalf of his minor son and, for his use and benefit, seeks to recover the sum of $25,000.

The charges of negligence, as we find them outlined in plaintiff’s brief, are: That the motorman of the car failed to keep a proper lookout ahead and that he was not using proper care and caution; he did not have the car under control and he gave no warning signal of the approach of the car.

Defendant maintains that young Tassin was lying asleep some 50 feet or more from the street intersection and in a spot so completely obscured by a shadow that his presence was not noticeable; that the car was being operated carefully and prudently, that no part of the boy’s body was on the track as the car approached, and that he did not place his foot on. the rail until the car reached a point some five or six feet from that at which the boy was lying and after it was too late for the car to be stopped.

The district judge rendered judgment dismissing the suit and plaintiff has appealed.

The boy, for a short time prior to the day on which the accident occurred, had been an inmate of the Waifs’ Home, from which he, together with certain other young fellows about his age, had escaped on the morning before the fateful day.

These boys had, for nearly twenty-four hours, been wandering in different parts of the city, and, at about 2:50 or 2:55 a. m., had reached the corner of St. Claude and Frenchmen streets.

They were, no doubt, tired and sleepy, and, finding a grassy spot in the center of the neutral ground of St. Claude avenue 50 feet or so from the intersection, they made the best of the opportunity for rest, assumed reclining positions, and almost immediately fell asleep.

At that time there were four of them.

On the corner there was a brilliant city street light and, directly between that light and the boys, there was a traffic semaphore signal, the lights in which were, at the time, turned off, which signal box cast a deep shadow over the spot in which they lay.

It so happened that at that point there was a very large wood post, which, to some extent, screened from view some of the boys, and which also, no doubt, increased the darkness at that point.

There is some dispute as to how long they lay asleep, and it may he well to state at this time that from the testimony of the boys themselves, as well as from other circumstances, we have concluded that they had been there only a few minutes, and that between the time at which they lay down and the time at which the accident took place, no other street car had passed.

The street car was on its way downtown, towards the lower end of the city, and, upon leaving Frenchmen street, the motorman had just begun to increase its speed, when, according to his testimony, he for the first time noticed, about five feet ahead of his car, an object which he discovered was a boy’s foot, and which object was moving from a position nearer the post towards and over the left rail of the track on which the car was approaching.

Here, again, we may as well state a conclusion to which we have come, which is that the motorman’s statement that the foot was not on the rail until just before the car reached it is true. The statement is not contradicted and we find no reason to doubt its correctness. Restless as the boy no doubt was in that uncomfortable location, and possibly somewhat disturbed by the noise of the approaching car, we find nothing improbable in the motorman’s statement.

In the case of Moses v. The New Orleans Great Northern Railroad Co. et al., 132 La. 1010, 62 So. 124, a negro had gone asleep in a dark spot adjacent to the rails of a railroad company. The noise of the train disturbed him and he threw out one of his arms, with the result that it fell on the rail after the front wheel had passed. We cite this case merely to show that it is not improbable that an approaching heavy vehicle will disturb a sleeper and cause just what seems to have happened in this case.

As soon as the motorman saw the foot move into a position of danger, he did all that he could to stop the car, but his efforts were fruitless and the car did not come to a stop until it had traveled some 25 or 30 feet, and had, in passing, crushed the foot so badly that amputation thereof was necessary.

Shortly after the accident the city authorities removed the traffic signal box which had cast the shadow, but later the same, or an identical box, was temporarily replaced, so that tests could be made to determine the extent of visibility of persons located under conditions substantially similar.

As a result of these tests, the district judge, who was present at one of them, seems to have been satisfied, as we are, that it was extremely difficult to discover the presence of a person located as was young Tassin at the time of the approach of the car.

Counsel for plaintiff attempt to belittle the results of the test and they contend that no satisfactory proof has been offered to show that, at the time the tests were made, the surrounding conditions were the same as at the time of the accident. The record satisfactorily discloses that, in making the experiment, every effort was made to reproduce the conditions as they originally existed, and we feel that the results may fairly be taken into consideration. The law in this state, as elsewhere, seems to be well settled that:

“* * * to render experiments permissible, or to admit evidence of experiments made out of court, the conditions need not be identical with those existing at the time of the occurrence, but that it is sufficient if there is a substantial similarity.” 8 A. L. R., page 18.

In State of Louisiana v. Dunn, 161 La. 576, 109 So. 56, 72, our Supreme Court said:

“Ordinarily the conditions under which the experiment is made must be similar to the conditions that existed when the result contended for occurred, or, at least, substantially similar to them.”

Although on behalf of plaintiff an effort was made to show that the clothing worn by the youth at the time of the accident was light in color, and therefore noticeable, we gain from the evidence the impression that the true fact is that the young fellow wore dark clothing, which in the darkness would have escaped detection, even by the most observant. There is no doubt that when he escaped from the Waifs’ Home he was dressed in the usual garments furnished hy that institution, which garments, we are informed hy the record, are blue, and the story told by the boy that some other boy, whom he scarcely knew, had exchanged clothing with him, is not satisfactory, nor consonant with reason.

We find, then, these facts: A motorman operating his car at 3 o’clock in the morning at a moderate speed; young boys asleep and obscured by shadows on the neutral ground and not at a street intersection. To those boys what measure of duty was owed by defendant company? What precautions should the motorman have taken? It was his duty to use ordinary care to discover them. Surely it cannot be said that there was any reason to expect persons to be lying on the neutral ground at 3 o’clock in the morning, and if it can be argued that there was a duty to expect persons near intersections, surely such duty would not extend to places between street crossings and in the neutral ground, where (persons seldom are seen.

The rule of law applicable is well stated in Tyer v. Gulf, C. & S. F. Ry. Co., 143 La. 177, 78 So. 438, as follows (syllabus):

“Where a person recklessly places himself in a situation of great and imminent danger, as by lying down on a railway track in such a position, at such a time, and at such a place that the locomotive engineer, while exercising ordinary care, could not recognize and discern his presence in time to avoid running over him, his widow and heirs may not recover from the railroad company damages resulting from his death.”

In Brooks v. Texas & P. R. Co., 141 La. 809, 75 So. 731, the rule is again well stated, as follows:

“While a right of recovery may exist in the event of the killing by a train of a person who lies asleep or intoxicated upon a railroad track, the evidence in support of the action should be clear and satisfactory to the effect that, by the exercise of ordinary diligence by the person in charge of the train, the peril of the other might have been discovered and the killing avoided.”

Counsel for plaintiff would persuade us that the doctrine announced by us in Grennon v. N. O. Public Service, Inc., 10 La. App. 641, 120 So. 801, is apposite; but in this we cannot agree. Grennon, who had been seen by the conductor of a street car lying intoxicated and helpless on a passenger platform immediately alongside the track of the railway company, was soon after run over by another car of the same company. In the Grennon case we followed Kramer v. N. O., City & Lake R. Co., 51 La. Ann. 1690, 26 So. 411, in holding that it was negligence, after discovering a helpless inebriate in a position of imminent danger, to leave him there. No such facts are shown here. Tassin had not been seen by another employee and his location was so obscure that even a most observant (person would not have noticed him. Had he been first seen in his dangerous location and left there to be run over by another car later, the facts would have brought such a case squarely within the protection of Kramer v. N. O., City & Lake R. Co., and there could have been a recovery.

The fact that the motorman had been in the employ of defendant for only something more than a month has no bearing on the case, since we are convinced that he was at least reasonably skillful and ordinarily observant, and that is all that was necessary. He seems to have done everything that. could have been done had he been in the employ of the company for years.

We find remaining only a contention to the effect that the headlight of the car should have been more efficient and should have been of sufficient power and penetration to dispel the shadow and disclose the presence of the sleeping boy. It is said that we. should apply to this case the legal principle stated in Raziano v. Trauth, 15 La. App. 650, 131 So. 212, 214, to the effect that:

“Reasonable care requires in many cases that the driver of a motor vehicle drive at a slower speed at night than during the day. One restriction on his speed is that he shall keep the machine under such control and operate it at such a speed that he can stop the machine and avoid an obstruction or danger or another traveler within the distance that the highway is illuminated by his lights.”

City street cars, operating where, at almost every corner and in many cases between corners, there are brilliant electric lights, should not be required to maintain headlights such as are properly required of automobiles, which must operate in the darkness of country and suburban roads.

Our attention is not called to any ordinance or statute fixing a standard with which trains and street cars must comply in the matter qf headlights and, since the evidence shows that the light on the car with which we are now concerned was equivalent to those used on all other similar cars, defendant, in this particular, has not been negligent. That the rule with reference to the standard of efficiency required of automobile headlights under the decisions mentioned does not apply to all vehicles and in all circumstances, is very apparent from a reading of the decision of the Supreme Court in Bridges v. Kinder & N. W. R. R. et al., 149 La. 417, 89 So. 309, 15 A. L. R. 1525, and in Gilliam v. Texas & Pac. Ry. Co., 114 La. 272, 38 So. 166, 168.

In the Gilliam case, the negligence charged was that the defendant “failed to place a light on the forward moving car, such as would enable a brakeman standing at the end of that car to see objects in front of the track in sufficient time to stop the train and to avert threatened injury.” It was argued that the lights should have been sufficient to enable “the brakemen or other employees upon those leading cars by means of those lights to discover objects upon the tracks in time to stop the train and avert injury.” The court dismissed the suit, thereby holding that no such standard of efficiency should be set, and said:

“We do not think that the widow and child of the deceased could reasonably require that the defendant should have taken greater precautions than it did for his protection.”

Nor do we think here that plaintiff in the case at bar can be heard to demand a headlight more efficient than that commonly in use on similar vehicles and under similar conditions.

Montgomery Light & Traction Co. v. Baker, 190 Ala. 144, 67 So. 269, is not analogous because there plaintiff was caught between parts of the rail and was lying upon the track itself and attempting to extricate himself before the car reached him, and, in fact, when it was still about two blocks away. Thus it is evident that even ordinary care would have averted the tragedy.

Nor is the doctrine announced in Peart v. Orleans-Kenner Traction Co., 11 La. App. 11, 123 So. 822, controlling here because there the situation which existed was most dangerous as the result of a fog, which covered the entire surrounding territory, and it is very evident that under such circumstances the utmost care should be exercised and that a motorman should not drive at a speed beyond that which will permit of his making an immediate stop.

Here there was no condition which existed generally which prevented his seeing, and it was only in the particular spot, which was shadowed by the signal box that his vision was obscured. This shadow covered a very small area and was not at a place where persons might be expected. While it is true that one witness testified that this condition had existed for some time and that in that little spot on the neutral ground there was always a shadow, we think it would be going too far to say that there was a duty thereby created in defendant to have asked the city authorities to remove the box, or to have required them to install an unusually bright light, so that this particular shadow might have been dispelled.

The charge that no warning signal was given seems not to have been seriously urged, and we do not see that there was any negligence on the part of the motorman, even if he did fail to ring his bell before he reached that spot. It must be remembered that that spot was not at a crossing and that the motorman had no reason to suspect that there was any person located there, for whom a warning should be given.

Viewing the record as á whole, we fail to see that there was any negligence chargeable to the defendant company in any particular.

The judgment appealed from is affirmed.