author: JONES, J.

text:
    No. 10,533
    Orleans
    BROWN v. UNITED MOTOR CO., INC.
    (February 11, 1929. Opinion and Decree.)
    Harry L. Hammett, of New Orleans, attorney for plaintiff, appellee.
    F. W. Gaudin, of New Orleans, attorney for defendant, appellant.
   JONES, J.

This is a suit for $450, alleged to be the unpaid balance of the selling price of plaintiff’s automobile, after paying a repair bill of $25.

Petitioner alleges that, desiring to purchase a Hupmobile coupe in the month of November, 1922, he left with defendant company his Liberty roadster for sale, on the request of the vice president, Joseph Ruhl. Later his wife, who was acting as his agent during his absence from this city, was informed by Hudson, salesman of the defendant company, that they had an offer of $475 for the roadster, after making repairs amounting to $25, leaving a net price of $450; that she accepted the said offer and the sale was completed. A short while thereafter, petitioner, when he returned to the city, called upon the defendant company for the Hupmobile coupe, but was informed that no such car was available at that time, although it had- been distinctly agreed between him and the vice president of the company at the time his roadster was left for sale that he should be furnished with a coupe promptly. Defendant then, in violation of his agreement, tried to persuade petitioner to buy a Hupmobile sedan, but he declined to do so, and, as he greatly needed a car at once, he demanded the $450, at the same time offering to pay any commission due for the selling of his car, but defendant refused to comply with his demand.

Defendant answered as follows:

That plaintiff had agreed to purchase a Hupmobile sedan after he had been credited with the net proceeds of the selling price of his Liberty roadster; that the said roadster had been sold for $475 and the selling charges amounted to $59.65, leaving a balance due of $415.35. It averred that it was ready at all times to deliver this Hupmobile sedan, which had been contracted for by plaintiff, and that' it declined to pay over the balance because plaintiff had breached the contract. It further averred that it had always carried in stock a complete line of Hupmobile cars, but that plaintiff had never made demand for the Hupmobile sedan, or any other model. It then prayed that the suit of plaintiff be dismissed and that the court order specific performance of the contract for the purchase of a Hupmobile car, but did not ask for any damages. There was judgment below for plaintiff for amount claimed, and defendant has appealed.

The above analysis of the pleadings shows that there is only a question of fact left for solution, namely, whether plaintiff contracted to buy a two-passenger Hupmobile coupe, or- whether he merely contracted to buy a Hupmobile as averred by defendant.

The record shows that plaintiff, a traveling man who was but rarely in the city for any length of time, owned a two'-passenger Liberty roadster, which he desired to trade in part payment of a new two-passenger Hupmobile coupe; that he called at the showroom of the defendant company some time in November, 1922, with his wife and friend, Mrs. Ellis. These three all testify that Mr. Brown then agreed to leave his roadster for sale with defendant, after stating positively that he wished .a Hupmobile coupe about December 15, when he expected to return to the city for his Christmas holidays. These three also testify that no car was looked at, or discussed, except a two-seated Hupmobile coupe.

The wife of plaintiff testifies that about 10 days after their visit, Hudson, a salesman of defendant, telephoned her one day that he had an offer of $475 for the Liberty roadster, and that the car would net her $450, as a repair bill of $25 would have to be paid; that she then and there accepted said offer and the roadster was sold.

The car order blank introduced in evidence by the defendant company showed that this sale was made by Hudson for $475 on December 11, 1922.

Plaintiff and his wife both testify that plaintiff returned to the city about the middle of December; that he then tried repeatedly, by calling at the place of business of defendant, and by telephone, to get delivery of the Hupmobile coupe, but was informed that they had none in stock and could promise no definite delivery thereof. Plaintiff then purchased, about December 22, a two-seated Dodge coupe.

Defendant’s salesman, Pludson, testifies that the Liberty roadster was sold by him, as alleged, for $475; that a repair bill was due thereon for $25; that Brown wanted a .Hupmobile (he does not specify any particular type); that Ruhl, the vice president of his company, refused to pay him a commission for selling the secondhand car until the Browns purchased a new car; that, accordingly, he saw Mrs. Brown several times after December 22, but before April 15, 1923 (when he left defendant company), vainly endeavoring to persuade her to purchase a Hupmobile sedan. He does not remember whether the defendant company had a two-passenger coupe on exhibition when the Browns called with Mrs. Ellis, or even whether the company was making this type of car at that time, but he does say that the Hupmobile factory could deliver any car in a short period, afterwards modifying this statement to apply only to the models which they were then carrying.

On cross-examination, he says that Brown wanted a four-passenger coupe, but that he tried to sell him a sedan, because in his estimation it was a better buy.

The vice president of the defendant company, Ruhl, testified that during the month of November, 1922, Mr. and Mrs. Brown had called at his place of business to buy a Hupmobile car (type not given); that he had then agreed to sell their Liberty roadster in part payment of the new car; that later (date not fixed), after this roadster had been sold, he had telephoned Mrs. Brown, and she had stated that they would buy the car as soon as they received some money, which was expected shortly; that - he was still willing to carry out his contract and furnish a Hupmobile car. He identified his signature to a letter offered in evidence by his counsel, of date July 18, in which he offered to credit a certain gentleman in this city with a balance due Brown amounting to $332.28 on this transaction, provided the gentleman would purchase a new Hupmobile from him; that Brown had never made any demand for any type of Hupmobile, though he carried in stock all types, and he had never seen either one of the Browns, or heard anything more after his telephone talk with Mrs. Brown, until the trial of the case; that he had sold, perhaps, 20 or 30 Hupmobile coupes in this city and was still waiting for plaintiff to make demand for delivery of the car.

The above analysis of the pleadings and the evidence convinces us that the preponderance of the evidence is with plaintiff, because plaintiff and all his witnesses tell a consistent, probable story when they say that plaintiff demanded throughout a two-passenger coupe, as, at that time, there were only two in his family, and he had always had such a type of car. On the other hand, defendant would have us believe that plaintiff contracted to buy a Hupmobile car without specifying any special type, and without saying when he wished it delivered. As plaintiff was a traveling salesman, and as the evidence shows that he spent his holidays of three weeks in the city at Christmas time, it is highly probable that he would particularly wish an automobile at that time and that he would know and state what type of car he wanted.

As the defendant in its answer and in its testimony does not state the type of car which was to be purchased, the price thereof, or the time of delivery, this court could hardly order specific performance of so indefinite a contract.

At the end of its brief, in the alternative, defendant asks that the court allow it a commission of $47.50 for selling the secondhand Liberty roadster, but there was no such demand in the answer, and the court properly excluded all testimony in reference thereto when an effort was made to show amount of commission claimed for selling a new Hupmobile. Furthermore, it is shown' above that Hudson, the man who sold the roadster, testified that he had never been paid any commission for doing so.

Defendant claims in its answer charges of $59.65, but there is no proof of these charges, which are stated differently in the letter of defendant above referred to. Furthermore, the defendant has already been allowed a repair bill of $25.

For above reasons, the judgment is affirmed.


source: Caselaw Access Project

author: ELLIOTT, J.

license: Public Domain

text:
    No. 402
    First Circuit
    DUCRE v. MILNER
    (February 13, 1929. Opinion and Decree.)

      For opinion on rehearing, see 11 La. App. 180.
    Hiddleston ICenner, of New Orleans, attorney for plaintiff, appellant.
    Harvey E. Ellis, of Covington, R. D. Jones, of Franklinton, and P. M. Milner, of New Orleans, attorneys for defendant, appellee.
   ELLIOTT, J.

Drauzin Ducre, alleging ownership of a tract of land containing 956 acres more or less, designated on the survey and maps prepared under the supervision of the United States Land Office as headright No. 43, Tp. 8 S., R. 13 E., situated in the parish of St. Tammany, and that Purnel M. Milner was in wrongful possession of a part of the tract, brought suit against Milner for the recovery of that part of the tract of which he was alleged to have possession. He alleged that the tract of land had been jointly and together acquired by himself and his brother, Toussaint Ducre, and his two sisters, Marguerite Ducre and Clarisse Ducre, from-Anatole L. Cousin by title passed before John J. Mortee, ex officio notary public, on May 25, 1866, recorded April 23, 1867, in Conveyance Book F, series 2, folio 631, etc., of the Conveyance Records of the Parish of St. Tammany, which record he made a part of his petition for reference.

He alleged ownership of an undivided one-fourth of the tract in himself by virtue of said title from Anatole L. Cousin, and of the other three-fourths of the same, by inheritance from his brother and sisters.

A certified copy of the act from Anatole L. Cousin to Drauzin Ducre, Toussaint Ducre, Marguerite Ducre, and Clarisse Ducre, declared upon in the petition, was filed in the suit.

This suit was entitled Drauzin Ducre vs. Purnel M. Milner, No. 4540 on the docket of the district court of the parish of St. Tammany. It was filed September 4, 1926. The defendant Milner excepted to the demand of the plaintiff in the case, on the ground that his petition disclosed no cause or right of action. The exception was sustained, and the suit dismissed.

The plaintiff appealed to the Supreme Court, and the judgment of the lower court was affirmed in Ducre vs. Milner, 165 La. 433, 115 So. 646. The Supreme Court, in deciding the case, referring to the petition of the plaintiff said:

“This is a petitory action and the title relied upon by plaintiff does not convey to him any part of the property he is suing to recover. The trial judge properly sustained the defendant’s exceptions of no cause and no right of action and dismissed the suit.”

The record of the previous suit was offered in evidence in support of the exception of res adjudicata, which defendant urges against plaintiff’s present demand. The petition in the previous suit shows that the plaintiff described the tract of land which he claimed to own as head-right No. 43, Tp. 8 S., R. 13 E., and alleged that the possession of said Milner of which he complained consisted of a portion of said tract. But the tract conveyed by Anatole L. Cousin to the plaintiff and his brother 'and sisters, and upon which he based his demand against said Milner, is said in the act of conveyance to be in section 36, Tp. 8 S., R. 13 E.

The Supreme Court held: That the title upon which the plaintiff declared governed his action in the matter of the tract which he claimed to own. That he must stand or fall, upon the recitals of the act upon which he declared. That no allegations in his petition, at variance with the deed on which he declared, could better his position.

The exception of no cause or right of action in that case was therefore actually based on the Code of Practice, art. 15, which provides that an action can only be brought by one having a real and actual interest which he pursues.

The petition of the plaintiff in that case did not allege that the tract of land, which had been conveyed by Anatole L. Cousin to the petitioner and his brother and sisters, was through clerical error on the part of the officer, before whom the act was passed, said to he in section 36, Tp. 8 S., R. 13 E., when the tract was in fact head-right No. 43, Tp. S S„ R. 13 E.

So the question presented by the petition of the plaintiff in the first ease, was whether his petition, being governed by the recital of the title on which his demand was based, alleged a real and actual interest on the part of the plaintiff, in attacking the possession of Milner, alleged to be in headright No. 43. The court held that it did not.

The plaintiff alleges in the present suit:

“That Leandre Ducre, died in the Parish of St. Tammany about the year 1858, in full possession of, under a claim of title, a tract of land consisting of 956 acres more or less, lying and being in the Parish of St. Tammany, in the intersection of the Bayous Lacombe and Rouville, the eastern and northern bank of the said Bayou Lacombe, forming the western and southern boundary of the tract of land and the western bank of Bayou Rouville, forming the eastern boundary of the said tract of land. That the northern boundary of said tract of land was a line running from Bayou Lacombe in a direction south 70 degrees 15 minutes east to a point on Bayou Rouville. That Leandre Ducre, at the time of his death, had been in corporeal possession of the said tract of land lying in the intersection of Bayous Lacombe and Rouville in the Parish of St. Tammany for more than 30 years.”

He alleges, in article 2, that, on the death of Leandre Ducre, the above-described tract of land was sold in his succession, and on October 8, 1860, Anatole L. Cousin became the purchaser of the same.

In article 3, he alleges that Anatole L. Cousin, by authentic act before John J. Mortee, clerk of court and ex officio notary public of the parish of St. Tammany, conveyed the same tract of land to petitioner and to Toussaint Ducre, Marguerite Ducre, and Clarisse Ducre, jointly and in indivisión; your petitioner and his copurchasers becoming, by virtue of said title, each the owner of an undivided one-fourth interest in said tract of land.

And he alleges in article 4 that he has never sold or otherwise disposed of his undivided one-fourth interest in sai'd tract of land, but still owns the same.

In article 7 he alleges:

“That in writing out and preparing the act of sale dated May 25th, 1866, whereby petitioner, Marguerite Ducre, Clarisse Ducre and Toussaint Ducre, purchased from Anatole L. Cousin, jointly and indivisión, each a one fourth interest in the tract of land described in Article 1 of this petition, the Clerk of Court and Ex Officio Notary Public John J. Mortee, through clerical error or by some inadvertence or mistake, incorrectly stated in said act or deed, that the tract of land conveyed thereby, consisting of 956 superficial acres, was located in Section 36 T 8 S R 13 E. That the statement in said act of sale or deed above referred to, that said tract of land conveyed thereby was located in Section 36 T 8 S R 13 E, of said township, is necessarily wrong and erroneous, is shown conclusively by the physical fact, that Bayou Lacombe and Bayou Rouville, which in said act or deed it is further stated, form the natural boundaries of the tract of land, are not in, and do not pass through, or bound the Section 36 of T 8 S R 13 E; but the said Bayous form the boundaries of Section 43 T 8 S R 13 E. That the said statement is further shown to be erroneous by the fact, that on the United States Survey, Section 36 T 8 S R 13 E, is a fractional Section composed of 7 lots, containing in the aggregate 302.12 acres; therefore it would be physically impossible to locate a tract of land comprising 956 acres therein.”

He then alleges that P. M. Milner is in possession of a part of said tract of land described in article 1 of this petition; that the land of which he is in possession is part of the same tract which Anatole L. Cousin acquired from the succession of Leandre Ducre and part of the same tract of land which Anatole L. Cousin conveyed to petitioner and his brother and sisters, by said act before J. J. Mortee, recorded as above said.

He alleges further that the defendant has by suit and by various acts, recognized the fact that the land of which he has possession is part of the same tract, which your petitioner and his brother and sisters acquired by said title from Anatole L. Cousin.

The defendant excepted to this suit on four grounds. The third and fourth are as follows;

3. “No cause of action, founded upon the allegations of the petition, showing' that the plaintiff, although alleging to have acquired defendant’s property May 25th,_ 1866, shows that he has been out of possession of said property for sixty two years and has never made any claim to same during that period and has never -paid any taxes on same.”
4.. "Because in the proceedings entitled Drauzin Ducre vs. Purnel M. Milner 28571 of the Docket of the Supreme Court of Louisiana, this same plaintiff, brought a petitory action against your exceptor for the same property, on the same allegation that he had acquired same by Notarial Act May 25th, 1866, before John J. Mortee, Ex Officio Notary Public. This Honorable Court having rejected the plaintiff’s demand and the Supreme Court of the State of Louisiana having affirmed the judgment and dismissed the suit of the plaintiff, the same is now res adjudicata between the plaintiff, and exceptor and said judgment being final and res adjudicata, the plaintiff is now barred from bringing the same petitory action against your exceptor, on the same allegation of his acquisition of the property.”

The court, giving written reasons, sustained these exceptions and dismissed the present suit. The plaintiff has appealed.

In the former suit, the plaintiff claimed one-fourth interest in the land under the title from Anatole L. Cousin and the other three-fourths by inheritance from his brother and sisters. In the present suit he claims only the one-fourth interest conveyed to him by Anatole L. Cousin. The present appeal was therefore brought before this court.

It cannot be disputed that, if the owner of a tract of land by title duly recorded discovers an error of description in his title, which operates to his prejudice, he has a right to allege it and have it corrected contradictorily with the person whose claim is in conflict with his own. Palangue vs. Guesnon, 15 La. 311; Vignie vs. Brady & Charpaux, 35 La. Ann. 561; H. & C. Newman vs. Scarborough, 115 La. 860, 40 So. 248. There are situations involving the rights of third persons who have acted on the records in good faith, which cannot be changed to the prejudice of their rights; but matters of that kind appertain to the merits. Situations of the kind, when they, exist, are not grounds for an exception of no cause of action.

Defendant advances the contention in his brief that it appears from plaintiff’s petition that he has been out of possession for 62 years, and has never made any claim to the property in question during that time; that in such a situation the reformation now prayed for cannot be granted. As to the propriety of this deduction from plaintiff’s averments, we express no opinion. But suppose the deduction to be a proper one, it would not, even if true, render the petition amenable to defendant’s exception of no cause of action. Harang vs. Golden Ranch Land & Drainage Co., 143 La. 982, 79 So. 768; Bendernagel vs. Foret, 145 La. 115, 81 So. 869; Gahn vs. Brown, 160 La. 790, 107 So. 576.

Defendant seems to mainly rely on the authority of the thing adjudged. It was held in the lower court that, the former suit having been, and the present one being, based on the same title, the judgment in the previous suit, sustaining exceptions of no cause or right of action, constitutes res adjudicata to the present demand.

In the previous suit, the plaintiff did not allege in himself a right or interest which entitled him to any judgment against the defendant. In the present suit, he does allege a cause and right of action, against the defendant, and which will entitle him to a judgment, unless defendant can put forward a good defense.

And, as for tjie present demand, the authority of the thing adjudged, which takes place when the thing demanded is founded on the same cause of action, cannot take place under the Civil Code, art. 2286, when there has been no previous demand, founded on a cause of action. Therefore the judgment dismissing the former suit, on the ground that the plaintiff did not allege a cause or right of action, cannot be res adjudicata against a petition, which does allege a cause and right of action in the plaintiff, against the defendant. Laenger vs. Laenger, 138 La. 532, 70 So. 501; Interdiction of Giacona, 158 La. 148, 103 So. 721; Ducros vs. St. Bernard Cypress Co., 164 La. 788, 114 So. 654.

Defendant contends that the error which the plaintiff alleges in the present suit could have been urged in the previous suit; that the former judgment sustaining said exceptions of no cause or right of action is, on that account, res adjudicata to his demand in the present suit.

It is true, if a person has more than one right of action or defense tending to the same end, he must bring them all forward in time for them to be taken into account in the judgment to be rendered. But a question of that kind is not available as res adjudicata when there has been no previous demand founded on a cause of action under the terms of the law, which provides that, in order to constitute a thing adjudged, “The demand must be founded on the same cause of action.”

The judgment appealed from sustained exceptions of vagueness, indefiniteness, failure of plaintiff to annex a certified copy of his title to his petition, no cause of action, and res adjudicata. The record contains a certified copy of the title in question. We think the exceptions should have been overruled. The judgment appealed from is in our opinion erroneous.

The judgment appealed from is therefore annulled, avoided, and set aside. The exceptions are now overruled, and it is ordered that this case be remanded to the lower court in order that it may be there further proceeded with as the law provides; appellee to pay the cost of the exceptions in the lower court and the cost of appeal.


author: WEBB, J.

text:
    No. 3476
    Second Circuit
    BLACKMAN v. HOPE ENGINEERING & SUPPLY CO. ET AL.
    (March 12, 1929. Opinion and Decree.)
    Vernis Morgan and George T. Naff, of Shreveport, attorneys for plaintiff, appellee.
    J. S. Atkinson, Alex F. Smith, and Thigpen, Herold, Lee & Cousin, of Shreveport, attorneys for defendants, appellants.
   WEBB, J.

This is an action for compensation under the Employers’ Liability Act (Act No. 20 of 1914).

Plaintiff alleged that, while employed by the Hope Engineering Company (which was constructing a pipe line for the Dixie Gulf Gas Company), he sustained an accident arising in the course and out of his employment which had permanently totally disabled him to do work of any reasonable character, and he prayed for judgment accordingly against the Hope Engineering & Supply Company and the Dixie Gulf Gas Company, and the defendants in answer admitted that the construction of the pipe line had been as alleged, and otherwise pleaded a general denial, and the Dixie Gulf Gas Company also pleaded its contract with the Hope Engineering & Supply Company and that, in event of any judgment being rendered against it, there should be like judgment rendered in its favor against the Hope Engineering & Supply Company.

On trial, judgment was rendered in favor of the plaintiff against the defendants in solido for compensation at the rate of $18.20 per week for the period of disability, not exceeding 400 weeks, and a like judgment in favor of the Dixie Gulf Gas Company against the Hope Engineering & Supply Company and both defendants appealed.

There is not any complaint of the finding of the court as to the wages of plaintiff on which the weekly payments of compensation were based, but the sole contention is that the evidence did not establish that the injury sustained in the accident was the cause of disability.

The evidence established that plaintiff had been able to d,o laborious manual work prior to the accident, and that, at the time of the accident, which immediately disabled him, he felt a severe pain in his back, and there is not any evidence in conflict with plaintiff’s testimony that his back had been sore-since the time of the accident and that he had been unable to do any work since that time, where any strain was placed upon his back, without suffering severe pain, and his statement as to his inability to do any work at the time of the trial, which took place about ten months after the accident, is supported by the opinion of physicians who had examined plaintiff, but their opinion was based upon conditions found to exist at that time, which were that plaintiff had a slight sacroiliac sprain and that there was a condition of arthritis of the lumbar spine and sacroiliac joint; their opinion being that the condition of arthritis was the principal cause of disability.

The physicians did not express a positive, unequivocal opinion that the condition of plaintiff was the result of the accident, but, considering the fact of the plaintiff having been immediately disabled at the time of the accident, and his statement that he had at that time experienced a severe pain in his back, they were of the opinion that the condition was the result of the accident, as it was established that the injury or strain could have produced the condition, although as to the condition of arthritis it was admitted that it may have resulted from infection, as from infection thrown into the system from diseased teeth or gums, and, the physicians being unable to state positively that the condition of arthritis resulted from the accident, it is contended that plaintiff failed to establish his ease.

In compensation cases it is immaterial whether the continued disability directly resulted from the injury or from a condition resulting from the injury, or whether the injury was the sole cause or merely a contributing cause; and, it being established, as stated, that plaintiff was able to work before the accident, and that at the time of the accident which disabled him he felt a severe strain, and that his back had been sore since that time, and that he had been unable to work, we think it is logical to conclude that the accident caused the continuous disability; and, conceding that the continuity of disability was due to the condition found. by the physicians, yet, under the evidence that the strain experienced by plaintiff was sufficient to have caused the condition we are of the opinion that such evidence is sufficient, when considered with the fact that the disability was continuous, to warrant a finding that the condition was the result of the accident.

The judgment is therefore affirmed.


author: CLAIBORNE, J.

text:
    No. 8126
    Orleans
    CAILLIER v. NEW ORLEANS RY. & LIGHT CO. ET AL.
    (November 14, 1921. Opinion and Decree.)

      O. S. Livaudais and P. R. Livaudais, of New Orleans, attorneys for plaintiff, appellant.
    Dart, Kernan & Dart, of New Orleans, attorneys for defendants, appellees.
   CLAIBORNE, J.

Plaintiff was riding in one of the street cars of the defendant company, when, by accident or inadvertence, her hand was extended beyond the window of the ear; it came in contact with another car of defendant company going in an opposite direction, and was injured. Hence this suit in damages.

The plaintiff alleged that about 8:20 o’clock p. m. she was a passenger on a Tulane Belt car proceeding along Tulane avenue going towards the lake; that she “was seated in the third seat on the left hand side of the car, with her elbow on the window sill and her left hand resting' against her cheek; that upon reaching a point near the corner of Hagan Avenue,- the said ear, owing to the defective condition of the tracks of said street railway company, gave a sudden jolt and tilted or leaned towards the adjoining track which paralleled within very close proximity the track on which said Tulane Belt car was running; that upon reaching said defective spot and at the moment the said jolt occurred, a car of the St. Charles Belt Line was passing along the adjoining track going towards the river; that said jolt caused petitioner’s elbow to slip from said window sill, and her hand slightly protruded from the window of said car, and.came in violent contact with said car of the St. Charles Belt line, resulting in the tearing of the flesh of her left hand at the lower part of the thumb, causing an incised wound of the left hand, which made her suffer great physical and mental pain; that her said injuries were caused solely and entirely by the negligence and carelessness of the railway company, and that plaintiff did in no wise contribute to the accident; that at the time of the accident there was and is now a city ordinance requiring the cars on the Tulane Belt line to be provided with screens for the protection of passengers; that at the time plaintiff suffered her injury the car in which she was seated was not so screened; that petitioner would not have been injured had the car been so screened.” She prays for $1,000 damages.

The defendant answered that the plaintiff permitted her arm to go outside of the body of the car so that it came in contact with some object on the adjoining track, and by so doing plaintiff’s injuries were due to her own careless, negligent, and imprudent conduct.

There was judgment for defendant dismissing plaintiff’s suit, and she has appealed.

Plaintiff’s testimony is a practical reiteration of the allegations of her petition. She measures about 22 to 24 inches from her arm to the end of her fingers.

A. Brignae, a brother of the plaintiff, testified: “We were sitting on the seat talking and she had her elbow on the window with her hand on her cheek, and I happened to be looking out, and there was a jar of the car, or bounce, somehow or other, and it made an awful big bounce and her elbow must have slipped and her hand dropped, and just as soon as her hand dropped, I heard her holloa, and I reached for her arm and pulled it in, and it was done already; at that time I saw a car passing; the tracks at that point were in bad condition, it caused the car to tilt to the left; the distance from the ground to the window sill is about six feet; they repaired the track after the accident;” neither his sister nor himself made any complaint to the conductor of her injury.

Officer Shelter swears that he knows about where the accident occurred; the connections of the two tracks were loose; it made the cars jolt towards the left; the track was repaired some two weeks after that.

Officer Priess testifies that Mrs. Caillier came to him while on his beat and complained about getting her hand hurt, and he brought them to the Carrollton barn; the distance betweefi the two tracks is four feet six inches from track to track; the cars protrude about eighteen inches over the rails; the track was in bad condition and made the cars lean towards each other; he noticed how the cars rocked; the top of the car was brought six or eight inches apart, ~nd the windows aoout sixteen inches; the O. ,K. line of cars pass upon the same tracks; he did not examine the track; lots of people ride with their elbows out of the window; it is the first time he ever heard of any one getting hurt that way; when the cars go fast they swing very much from side to side.

W. P. Loan, chief clerk of the claim department of uefendant company, testified that he was riding on Lie rear platfo'rm of the car on which the accident occurred with his mother; that on reaching the bridge near the New Basin, she inforined him that an accident had occurred in the front-part of the car; he went to the front part of the car and informed the motorman and tried to collect witnesses, but every one said -they had not witnessed the accident; he noticed m, unusual jolt cf the car.

The witness produces sketches representing the measurements of the ca.-s, of the seats, and of the windows. Prom these sketches it appears that the distance from the face of the rails to the outside top of the car is 9 feet 5 inches; and the discance from the face of the rail to the molding below the windows is 5 feet 1% inches; the distance from back to back of seats, at the top, is 29 inches; the distance from the back of the seat to furthest side of the window in front is 22 inches; the distance from the top of the seat to the sill or arm rest of the window is 8% inches; the arm rest is 1% inches to the moulding or rain shed, which is 4 inches wide, so that the distance from the inside of the window of the arm rest to the extreme edge of the rain shed is 5% inches.

The witness further states that he travels four times a day on this line, as he lives in Carrollton; after the accident he took particular notice and did not perceive that the cars swayed to any extent more than the natural motion of the car; the distance between the cars at the molding board, as they pass each other, is about 16 inches.

Mrs. Mary S. Loan, mother of the last witness, says she was seated in the center of the car in which the accident occurred; she saw a commotion and was told a woman got hurt; she noticed no jolting of the car; it was running smoothly.

R. A. Ainsworth was a conductor on the car when the accident occurred; he noticed no unusual movement or swaying of cars on that occasion; no one made any complaint of an accident except Mr. Loan; the track was in very fair condition; no rough places; he did not notice any repairs going on after the accident; he noticed a lady going out with her hand tied in a handkerchief with some blood on it; she went to the barn foreman to make a complaint.'

Felix Desmare was the motorman; he knew nothing of the accident until Mr. Loan told him of it; he noticed no unusual jolting or swaying of the car; the road was in the usual condition; ' some places more or less rocking than others; no extensive repairs were made after the accident; they did work immediately after for several days.

It was admitted that J. Dunn, the track foreman of defendant, would testify that on July 17 there was work done on the Tulane avenue tracks, consisting of repairing joints, and that there was more work done on November 21st to 26th.

City Ordinance No. 12677 Council Series, to which plaintiff refers, is in the following words:

“That the Commissioner of Public Works be directed to require all street railroad companies to place wire screens on the windows of cars running on streets where the tracks are in-close proximity to trees, or on Canal Street where the tracks are in close proximity to Clay Monument, of sufficient height to prevent accident to passengers; provided, that this ordinance shall not apply to cars which are so constructed as in the opinion of said Commissioner to protect the passengers.”

The very language of this ordinance applies to “cars running on streets where the tracks are in close proximity to trees, or to Canal Street where the tracks are in close proximity to Clay Monument.’’ Therefore, the ordinance does not control the management of cars on streets like Tulane avenue, where there are no trees in close proximity to the tracks, nor to any part of Canal street, since the removal of the Clay Monument. The ordinance, however, serves the principle that, where cars run so close to any obstacle as to endanger the safety of passengers, it is the duty of the railroad, under common law, to screen the windows or to take other preservative precautions.

The judge of the district court decided the case on the following propositions of law: (1) That a passenger cannot recover damages from a carrier unless he can show that the carrier has been guilty of some act of negligence; (2) the test of that negligence was when an experienced carrier could and should have foreseen that a certain condition of things would possibly result in damage. The judge held that the two tracks of the railroad were not in such close proximity to each other as to suggest danger, and no accident had occurred during the many years during which the cars had been running under the same conditions. The judge further held that the testimony failed to prove that the tracks were in such bad condition as to injure a passenger. He failed to find negligence on the part of the defendant and decided in its favor.

The judge’s appreciation of the facts and his statement of the law are both correct. The defendant company can be held only for negligence. 6 Cyc. 590-595; 10 C. J. 863, 867; Stokes vs. Saltonstall, 13 Pet. 181, 10 L. Ed. 115; Weber vs. New Orleans & C. R. Co., 104 La. 367, 28 So. 892; Jones vs. Canal & C. R. Co., 109 La. 213, 33 So. 200.

“Negligence” has been defined to be the failure to use such care as is necessary to avoid a danger which should have been anticipated, by reason of which the plaintiff has suffered injury. Lopes vs. Sohuque, 114 La. 1011, 38 So. 810; Baltimore & P. R. Co. vs. Jones, 95 U. S. 439, 441, 24 L. Ed. 506; 6 Cyc. 591.

A defendant can only be required to guard against a probable or anticipated danger. New Orleans & N. E. R. Co. vs. McEwen & Murray, 49 La. Ann. 1184, 1196, 22 So. 675, 38 L. R. A. 134; Sjogren vs. Hall, 53 Mich. 274, 18 N. W. 812; Ball vs. Middlesboro Town & Lands Co. (Ky.) 68 S. W. 6; Groarke vs. Laemmle, 5 App. Div. 61, 67 N. Y. S. 409; Lane vs. Atlantic Works, 111 Mass. 136; Keffe vs. Milwaukee & St. P. R. Co., 21 Minn. 211, 18 Am. Rep. 393; Philadelphia & Reading R. Co. vs. Hummell, 44 Pa. 375, 84 Am. Dec. 457; Hoffart vs. West Turin, 90 App. Div. 348, 85 N. Y. S. 472; Gallaher vs. Crescent City R. Co., 37 La. Ann. 288; 1 Thompson on Neg. Secs. 50, 58; Wallis vs. Morgan’s L. & T. R. & S. S. Co., 38 La. Ann. 159; Atchison, T. & S. F. R. Co. vs. Slattery, 57 Kan. 499, 46 P. 941; St. Louis, V. & T. H. R. Co. vs. Bell, 81 Ill. 76, 25 Am. Rep. 269; Gould vs. Slater Woolen Co., 147 Mass. 315, 17 N. E. 531; Sjogren v. Hall, 53 Mich. 274, 18 N. W. 812; Lopes vs. Sahuque, 114 La. 1011, 38 So. 810; Chicago. K. & W. R. Co. vs. Bockoven, 53 Kan. 279, 36 P. 322; Moore vs. Edison Electric Illuminating Co., 43 La. Ann. 792, 9 So. 433; Arkansas M. R. Co. vs. Canman, 52 Ark. 517, 13 S. W. 280.

“Evidence that no accident had followed for a long time after the existence of a certain fact would not b^ determinative of its not being actually by a concurrence of special facts dangerous, but the existence of the fact without injury for a long time, with factors constantly present calculated to produce injury if really dangerous from those factors, would go far to do away with the anticipation of resulting injury.” Lopes vs. Sahuque, 114 La. 1005, 1017, 38 So. 810, 814.

In Harbison vs. R. R. Co., 9 App. D. C. 60, the court held that a space of four feet between inner rails of a double-track street car was not too close.

The distance between the two cars was about 16 inches; if we add to that the width of the window sill, 5% inches, we have nearly 24 inches separating a person’s body in one car from the side of an adjoining car. The plaintiff testifies that she has a long reach, and that the distance from her arm to the end of her fingers is from 22 to 24 inches. It would be the height of imprudence for any passenger to extend her arm out of the car at full length; and the company could not anticipate that a passenger’s arm resting on a sill of the window would be extended to that length even when slipping from the sill. If it slipped owing to the passenger’s fault, certainly the company could not be held liable; and if the slipping was caused by an ordinary jolting or jar of the car, incident to its operation, the company cannot be held liable. The passengers assume the risks of those unavoidable conditions. Aiken vs. Southern Pac. Co., 104 La. 157, 29 So. 1; Phillips vs. St. Charles St. R. Co., 106 La. 592, 31 So. 135; Vincent vs. New Orleans R. & L. Co., 134 La. 654, 64 So. 654; Viator vs. New Orleans R. & L. Co., 139 La. 439, 71 So. 733; 10 C. J. 973. As a rule, it is negligence to put one’s arm out of the window. 6 Cyc. 651.

The plaintiff relies upon the cases of Summers vs. Crescent City R. Co., 34 La. Ann. 139, 44 Am. Rep. 419, and Clerc vs. R. Co., 107 La. 370, 31 So. 886, 90 Am. St. Rep. 319. But in the first case the defendant was held liable because the distance between the two cars on its lines was so small as to cause the cars almost to collide with each other in the curves, and that plaintiff’s elbow projected out of the car only “a few inches.” In the second case, the defendant had left a door of an adjoining box car open in such proximity to the passenger car as to collide with and break plaintiff’s arm.

The court said on page 379 (31 So. 890):

“In this case it is not claimed that the plaintiff threw his hand or arm out of the car, and in so doing struck some object on the outside. * * * At the utmost the plaintiff inadvertently or forgetfully permitted his elbow to project somewhat beyond the outer edge of the sill.”

In the case of Moore vs. Edison Co., 43 La. Ann. 796, 9 So. 434, which was a case of a passenger who put his head out of a car and was struck by a post standing at eight inches from the car window, the court said:

“Although, to some extent, as the Courts have held, he might, owing to custom and local exigencies of climate, have allowed his elbow reasonably to protrude ‘from the inside out of the window. * * * If a passenger has the right of putting out, besides his elbows, his. head and chest, why should he not, also, have that of stretching out his arms, legs, and even hanging out his whole body.”

In Kird vs. R. Co., 105 La. 229, 29 So. 729, the court said:

“Whether she (the plaintiff) had her arm full length out of the window, at the time of the accident, is a matter of proof. If the latter, it might well be she was guilty of such negligence as to bar recovery.” 10 C. J. 957-971.

It is immaterial whether this stretching out of the arms is done intentionally or accidentally. The crucial question is whether a reasonable distance was maintained between the cars so as to secure immunity from injury to the passengers under normal conditions, or whether injury could have been reasonably foreseen or anticipated from the relative distance of the cars. We think not, and the judgment is therefore affirmed.


author: JANVIER, J.

text:
    No. 10,712
    Orleans
    MONTELEONE v. BLACHE
    (March 18, 1929. Opinion and Decree.)
    Guión & Upton and W. Ogden, of New Orleans, attorneys for plaintiff, appellee.
    Dufour & St. Paul, of New Orleans, attorneys for defendant Blache, appellant.
    P. Rivers Richardson, of New Orleans, attorney for defendant McWilliams, appellant.
   JANVIER, J.

Plaintiff, desiring to purchase certain property in New Orleans, employed R. McWilliams, a real estate agent, to attempt to secure it for him on certain terms and conditions which were set forth in a written offer. A deposit made with McWilliams by plaintiff was turned over by McWilliams to J. H. Blache, defendant, as he was the listing agent for the property.

One of the conditions contained in the offer reads:

“Corner half (3135) to be used as grocery, and inside half (3133) to be used as a residence, subject to zoning ordinances covering this section.”

Another condition set forth in the offer is as follows:

“Cash to owner, Homestead terms.”

The offer was accepted by the owner, S. Mortellaro, whose name is sometimes given in the record as Sebastian Montelaro, but the sale was never consummated for two reasons: First, because the city authorities refused to permit a grocery business in the premises; and, second, because the prospective purchaser was unable to obtain a satisfactory homestead loan.

Plaintiff thereupon brought this suit to recover the amount of his deposit.

The suit, as originally filed, was directed against J. H. Blache. He filed exceptions of no cause of action, no privity of contract, and nonjoinder. He argued in support thereof that R. McWilliams should have been joined as defendant. These exceptions were overruled. Nevertheless plaintiff, by supplemental petition, made both R. McWilliams, agent, and Mortellaro, the owner of the property, parties defendant.

After filing various exceptions all defendants filed answer except Mortellaro, the owner. He filed no pleadings, but testified in the case, and it was shown that on June 18, 1924, he had written a letter to Blache directing him to return the deposit. Blache now contends that the owner Mortellaro was not properly made a party defendant and that he (Blache) would therefore not be safe in returning the deposit or any part of it, because of a possible right of Mortellaro thereto. In view of the fact that a citation was issued to Mortellaro and of the further fact that he disclaims any interest in the deposit and has directed its return, it is manifest that this contention of Blache is not well founded.

It is true that in Maloney vs. Aschaffenburg, 143 La. 509, 78 So. 761, the Supreme Court said:

“Where a broker is employed to sell property and closes an agreement for its sale, he becomes agent of both the seller and the purchaser; and where, as a result of such agreement, the purchaser deposits with him .10 per cent of the amount of the purchase price, the seller may not sue the broker to recover such deposit, without properly impleading the purchaser and making him a party to such suit.”

However, in the case at bar, the owner was impleaded and was called on to assert any rights he might have had. He asserted none and, on the contrary, disclaimed any interest. Hence Blache was fully protected against any possibility of a subsequent claim or contention by the owner to the effect that the deposit should not have been returned.

Defendant contends that the conditions which we have quoted were not such as to deprive the document of its binding effect, but were in fact merely conditions precedent.

We have repeatedly held that such conditions as “subject to homestead loan,” etc., are potestative and deprive an otherwise valid contract of binding effect.

The offer in this case is therefore unenforceable.

On this point the case at bar is controlled by the decision of this court in Titus vs. Cunningham et al., 7 La. App. 37, 114 So. 86. In that case we said:

“A contract to buy and sell real estate under which the buyer agrees to buy subject to homestead loan enables the buyer to prevent or hinder the happening of the event upon which his obligation depends and is therefore void as containing the potestative condition.”

Therefore, since Blache effected no valid agreement of sale, he is entitled to no commission.

“It was as if no sale had been effected, in which ease plaintiff under his contract was not entitled to any commission.” Harvey vs. Loup, 4 La. App. 556.

The requirement that the permission of the city authorities be obtained seems to us to be not a potestative condition because the granting of the necessary permission depended, not upon the will of either of the parties, but entirely upon the discretion of the city authorities.

This condition was therefore not potestative, but suspensive, and the obligation to (purchase did not come into existence until the happening of the event on which it was conditional. C. C. 2021.

Under such a contract the obligee bears the burden of showing that the event has happened and that as a result of such happening the obligor is bound.

The obligee has not sustained this burden, nor has he attempted to do so.

Even had the contract not contained the potestative condition as to the homestead loan, no rights could flow from it until the party claiming the rights could show affirmatively that the event on which the obligation was made conditional had happened.

It is therefore ordered, adjudged and decreed that the judgment appealed from be and it is affirmed, at the cost of appellant.


text:
    No. 10,705
    Orleans
    BRODTMANN v. COOPER ET AL.
    (February 25, 1929. Opinion and Decree.)

      Sanders, Baldwin, Viosca & Haspel, of New Orleans, and Edward Dubuisson, of Opelousas, attorneys for plaintiff, appellee.
    Lemle, Moreno & Lemle, of New Orleans, attorneys for defendants, appellants.
   JONES, J.

Plaintiff sues solidarily Cooper, a real estate broker, and the New Amsterdam Casualty Company, surety on his bond, under Act 236 of 1920, for $2000 of which $1500 is alleged to be an unreturned cash deposit on the purchase price of a lot of ground at Vincent and Lopez streets, in this city, for which title was never given, and the. additional sum of $500 as attorney’s fees.

Cooper answered admitting receipt of the $1500 from plaintiff, but denied it was the cash deposit on purchase price of lot. He averred that it had been paid on a contract for the erection of a residence on the lot at Vincent and Lopez streets, and that he had performed his part of the contract, but plaintiff had failed to do so. He admits amicable demand, but denies any putting in default and avers that title was never transferred to plaintiff because plaintiff failed to carry out his contract, thereby absolving him from all indebtedness.

The surety company answered admitting the signing of the bond, but denied all indebtedness.

There was judgment below as prayed for, and the surety company alone has appealed.

The original receipt, though offered in evidence, was lost. It was copied in the record as follows:

“April 27, 1923.
“Received from A. C. Brodtmann $1,-500.00 deposit on lot corner Lopez & Vincent.
“O. V. Cooper (Signed).”

Attached to the record as a part of the evidence are the following documents:

(1) A real estate contract, the pertinent parts of which read as follows:

“4 — 26 1923.
“O. V. Cooper Agent, New Orleans, La. “Dear Sir: I offer to buy the 60x120 Feet of Grounds Cor. Vincent and Lopez Square B & K and____or as per title for the sum of Twenty Nine Hundred ($2,900) Dollars, on terms of all cash, balance on ________ year’s credit as per vendor’s lien notes bearing ________% interest per annum, payable ____________, secured by all usual and customary clauses.
“Purchaser to pay all cost of act of sale and $37.00 of Commission.
******
“Joint acct. of A. C. Brodtmann and J. Modenbach, Jr.
“This offer to remain good and irrevocable through _____________
“Jos. Modenbach Jr.
“We submit the above.
“O. V. Cooper, Agent,
“By ________________________
“New Orleans, La. 4 — 26 1923. “O. V. Cooper, Agent.
“I accept the above offer and agree to pay you $50.00 commission on purchase price.
“A. J. Krelle.”

The words “Joint acct. of A. C. Brodtmann and J. Modenbach, Jr.,” appearing therein, are written in a different ink from that which is used in other parts of the same document.

On the back of this paper is the following:

“5 — 30—1923.
“I hereby transfer this offer to purchase the property described on reverse side to J. Palmisano, it being understood that there is to be erected a building on 60 .feet of this ground for my account and a like building for A. Brodtmann on the other 60 ft., at a cost of $6350 for the buildings each in addition to the cost of ground and at completion is to be homesteaded for the full or total cost ($7850) less than $1500 paid at time lot was purchased.
“(Signed) Jos. Modenbach, Jr.”

(2) Check of O. V. Cooper, real estate agent, for $660, dated May 30, 1923, made payable to the order of John Palmisano. On the bottom of this check is written the following words: “Advance on Lots Vincent & Lopez” — and on the back of the check, above the indorsement of J. Palmisano, is written, in the same hand: “Advance on lots Vincent & Lopez for account of Brodtmann and Modenbach.”

(3) A certified credit from the American Bank & "Trust Company of this city, stating that Cooper’s account had been charged with $240 because it had certified that day a check made payable by him to A. J. Krelle.

(4) A blank sheet of paper on which the name “Joseph Modenbach, Jr.,” is written five times.

(5) A contract between O. V. Cooper and A. C. Brodtmann, of date June 1, 1923, in which Cooper agrees, in accordance with plans and specifications (attached) to be acknowledged and signed by both parties, to erect a building for $6,350, on the downtown woods corner of Vincent and Lopez streets. Attached to this contract are certain unsigned specifications for a double, one-story frame cottage, and also- a rough, unsigned plan on which is written in lead pencil the name “Cooper,” but there is nothing to show the architect or the location, and there is no date on either document.

The record shows that on April 27,1923, the day Brodtmann gave Cooper $1,500, he was then engaged to the sister of the wife of Joseph Modenbach, Jr., and that he expected to and did marry her shortly thereafter. While Brodtmann testifies that Modenbach’s contract for purchase of lot was entirely distinct from his, that his contract evidenced by the $1,500 receipt only covered the purchase price of the lot 60x60 feet at the corner of Vincent and Lopez, and that at the time he had absolutely no idea of building thereon, but was merely making an investment, his testimony is so improbable and so inconsistent with subsequent developments that we cannot give it full credence.

His testimony is corroborated by that of his brother-in-law, Joseph Modenbach, Jr., who likewise testifies that the transactions of the two were intended to be entirely separate, and that building was an afterthought. In support of this statement Modenbach says that the signature on the back of his contract, quoted in full above, was forged, and that the words “joint account of Brodtmann and J. Modenbach, Jr.,” had been inserted after he signed the original. To test his accuracy on this point, he was asked to sign his name on a blank sheet of paper in court, and a careful examination of the three signatures convinces us that the signature on the back of the original document is far more like that on the front than those he wrote in court.

The record further shows that a lot 60x120 feet at the corner of Lopez and Vincent streets was transferred by the owner, Krelle, to contractor, John Palmisano, who erected two frame cottages on the lot, allowing 60 by 60 feet to each cottage. The cost price of each of these two cottages was $7,850. Brodtmann and his wife and Modenbach and his family moved into these cottages and lived there for two or three months until October, 1923, when they moved out. In explanation of the abandonment of their houses, both Brodtmann and Modenbach say that they did so because they were told by Palmisano that the title to the ground was in his name, whereas they had thought that title to the land was already transferred to them. They give as additional grounds for their move the fact that the houses were improperly built, and failed to conform to the specifications in many important particulars, and Martin Manion, an attorney of this city, who represented Palmisano in his attempt to collect from Cooper and from Brodtmann, for the purchase price of these houses, says that Brodtmann abandoned the house because he found the purchase price too high for his means.

Cooper testifies that the transaction was joint between Brodtmann and Modenbach, and that the sole and only purpose of buying the lot was to have houses erected thereon for each party.

The documents quoted above, and the improbability of Brodtmann’s and Modenbach’s statements, convince us that the transaction was joint, and that the lot was purchased by the two men for the purpose of building adjoining houses thereon. Cooper claims, and we think the record sustains him in this, that he paid $900 of the amount deposited with him as follows: $660 to Palmisano, and $240 to Krelle. The balance of the deposit price of $290 on the lot would be covered by the $50 commission which was to be paid by Krelle, as shown in his quoted acceptance. He frankly admits that he spent the remaining $600 for his own purposes, and he seems to have recognized some indebtedness to Brodtmann, as he admits on the stand that he had placed Brodtmann on his bankruptcy schedules for a certain amount, though he does not fix that amount, and there is nothing to show it.

The attorney for the surety company argues that the transaction was intended to be a joint one between Cooper and Brodtmann. In this contention we agree with him.

He further argues that Brodtmann’s loss was entirely due to his failure to live up to the building contract with Cooper, and that the company can be liable only for Cooper’s failure to perform his real estate contract, and that to extend its liability in this case to cover the breach of a building contract would be a gross injustice. We do not find this contention valid, for the record convinces us that Cooper has failed to account for $600 of the amount deposited with him by Brodtmann, and that the contract, taken as a whole, was such a real estate contract as to come within the purview of the act.

The title of Act 236 of 1920 reads in part as follows:

“To regulate the mode and manner of conducting the affairs and business of Real Estate; * * * to require a bond for the conduct of the business of Real Estate. * * *”

Section (2) of this act defines a real estate broker as follows:

“That a real estate broker within the meaning of this Act is any person, firm, partnership, association, co-partnership or corporation, who for a compensation or valuable consideration sells or offers for sale, buys or offers to buy or negotiate the purchase or sale or exchange of real estate. * * *”

Section (16) reads in part as follows:

“That before any person * * * shall be permitted to open, engage in, * * * or conduct any real estate agency, or office or deal in real estate, or rent collecting as agent or broker, either in an office or otherwise, in the State of Louisiana, such person, * * ® shall furnish bond with good and solvent surety in favor of the Governor of the State of Louisiana in the full sum and amount of one hundred dollars for every thousand population or fraction thereof of the parish in which the applicant proposes to do business as shown by the last available U. S. Census. * *

Section (17) provides that the Louisiana real estate board, authorized by the act, shall have the power to investigate complaints made by any person against a real estate broker, and shall have under subsection (f), the power to suspend or revoke any license at any time where the licensee has failed to account for any moneys coming into his hands which belonged to others, and, under subsection (g), for any conduct, whether specified therein or not, which constitutes dishonest dealings.

In Zerlin vs. Louisiana Real Estate Board, 158 La. 111, 103 So. 528, the Supreme Court held:

“The object and purposes of the act under consideration was to regulate the business of real estate brokers, and in order to protect the general public interest and welfare, to permit no one to engage in such a business except those who may be found after due and proper investigation to be honest, truthful, and of good reputation. No unfair or improper discrimination is made, and every person, whether a resident or nonresident of the state, who may possess the qualifications required, and who complies with the terms of the act, is permitted to engage in the business.
“That the statute comes within the legitimate exercise of the police power of the state we entertain no doubt.
“The creation of real estate boards, or commissions, and the licensing, regulation, and control and supervision of real estate agents and brokers is of very recent origin in this country. We were informed in oral argument of counsel at the bar that the law under consideration is similar in all essential respects to the «statutes of California, Michigan, Tennessee, and perhaps a few other states we do not now recall.”

It will be noted that the. title of Act 236 of 1920 provides for the business of real estate, and that a broker is defined as one who “offers to * * * negotiate the purchase or * * * exchange of real estate,” and that the bond is required from all those “who deal in the business of real estate.” The plain purpose of the act, therefore, seems to be to extend the business of real estate agents, to widen the scope of their duties, and to promote the confidence of the public by requiring financial responsibility of all persons engaged in this occupation.

Unquestionably the contract in this case involved the purchase of real estate, and it also involved putting a building on that real estate, and it seems to us that the two purposes are so closely allied that they are properly and justly covered by the bond of a real estate broker’s surety under this act. That it is public policy today to extend the scope and responsibility of the business of real estate agents is clearly shown by the above extracts from the decision of the Supreme Court in the Zerlin case. To limit the surety’s liability on its bond to the extent argued by the able attorney of the surety company would be inconsistent with the spirit and purpose of the act, and within the modern trend of legislation on the subject. In 1928 the Legislature of this state passed Act 269, requiring all real .estate firms or corporations to file a certified copy of their bond with the clerk of court for every parish in which they did business.

Real estate agents, in their effort to secure purchasers, often agree to embellish property so as to make it more attractive to the prospective buyer, and they frequently erect houses as an additional method of promoting sales. The record shows in this case that Cooper and Palmisano had had many transactions, a number of which were presumably similar to this, and these two purposes in this contract are so closely bound together as to make the agreement, taken as a whole, come under the bond of the surety.

However, Cooper has accounted for $900 of this money, and the surety company is not liable for that. It should return to Brodtmann that portion — namely $600— which Cooper used illegally.

The statute does not provide for attorney fees, and there is clearly here no liability for that item. Judgment will therefore be amended to read as follows:

It is ordered, adjudged and decreed that there be judgment in favor of plaintiff, Alex C. Brodtmann, and against defendant O. V. Cooper in the full sum of $1,200, and in favor of plaintiff, Alex C. Brodtmann, against defendant New Amsterdam Casualty Company in the full sum of $600, with legal interest from April 27, 1923, until paid. Costs to be paid by appellee.


text:
    No. 11,327
    Orleans
    PLICK ET AL. v. TOYE BROS. AUTO & TAXICAB CO., INC.
    (February 25, 1929. Opinion and Decree.)
    (March 18, 1929. Rehearing Refused.)
    (October 9, 1929. Opinion and Decree of Supreme Court on Writ of Certiorari and Review.)

      Normann, Breckwoldt & Schwartz, of New Orleans, attorneys for plaintiffs, appellants.
    John P. Sullivan and David Sessler, of New Orleans, attorneys for defendant, appellee.
   JANVIER, J.

This is a suit in compensation brought by the parents of a taxicab driver for the death of their son. A large number of defenses are urged by defendant company. Among these defenses we find one which to our mind bars recovery by claimants. This defense is based on the fact that the compensation laws of Louisiana do not apply to employees of less than minimum age prescribed by law for the particular trades, businesses or ocpupations in which the minor may be engaged at the time of his death or injury. Since this defense is based on the nonapplication of the state compensation laws, we see no necessity for discussing the question of whether or not any of .the other defenses urged would be good, because we are not concerned with what may or may not have been good defenses under the laws had they been applicable.

The boy, at the time of his death, was not yet 21 years old. This fact was admitted by his parents. And his parents also admitted that he had given his age at the time of his application for employment as 21 years.

Ordinance No. 4755, C. C. S. Calendar No. 4857, adopted November 13, 1917, as amended by Ordinance No. 6555, C. C. S. Calendar No. 6734, adopted November 10, 1921, provides in part as follows:

“Section 2 — Be it ordained, etc., that no person shall be entitled to such certificate to act as chauffeur or driver of a motor vehicle of any kind operated for a fee, charge or profit or reward until he be at least twenty-one years of age.”

It thus appears that the deceased was plainly employed in violation of the minimum age law, since section 3, par. 6, of the State Workmen’s Compensation Act (Act No. 20 of 1914, as amended by Act No. 85 of 1926), contains the following:

“Provided, that this act shall not apply to employees of less than the minimum age prescribed by law for the employment of minors in the trades, businesses or occupations specified in Paragraph 2 of Section 1 or that may be determined to be hazardous under the operation of Paragraph 3 of Section 1.”

Taxicab driving is not one of the trades, businesses or occupations specified in paragraph 2 of section 1, as amended, nor, argued • defendant, is it a hazardous occupation such as is intended to be included within the omnibus provisions of paragraph 3 of section 1, as amended.

If it is not one of these hazardous occupations then the act has no application, because it includes only such employments as are specifically set forth or as may be declared by the courts to be hazardous. If, on the other hand, the statute has application, and taxicab driving is intended to be included under the provisions of paragraph 3 of section 1, and, in passing, let us say that, in spite of the vehement argument of counsel to the contrary, it does' appear to us to be such an occupation, then the act by its very terms does not apply, as it excludes specifically any person employed in violation of the minimum age law; so that it seems no matter which way claimants turn there is no escape from the provisions of the law which they themselves invoke.

Among the defenses urged, to which we have above referred, we find the following: That the contract of employment was null ab initio, because the boy represented himself to be white, when, as a matter of fact, he was colored, in violation of the company’s rules of employment.

It is further argued that under the act recovery should not be allowed because the boy deliberately failed to use a safety device, to-wit: the brake on the taxicab.

Another interesting defense, though not requiring discussion, since we feel that the act does not apply, is that the boy, at the time of his death, was not performing services incidental to or growing out of his employment, because, although he was carrying passengers in his taxicab, he was not allowing the meter or register to work, it being his intention to keep the money collected from the passengers for himself.

As we have already stated, these defenses and others urged are interesting, but, since we are of the opinion that the act itself has no application, we see no reason to discuss the merits of what may or may not have been good defenses had the act been applicable.

For these reasons, it is ordered, adjudged and decreed that the judgment Appealed from be, and it is, affirmed, at the cost of appellant.


author: REYNOLDS, J.

text:
    No. 2995
    Second Circuit
    SCRIPTURE v. T. & P. RY. CO.
    (March 12, 1929. Opinion and Decree.)
    Murff & Perkins, of Shreveport, attorneys for plaintiff, appellant.
    Wise, Randolph, Rendall & Freyer, of Shreveport, attorneys for defendant, appellee.
   STATEMENT OF THE CASE

REYNOLDS, J.

By this action plaintiff seeks to recover from defendant damages for an alleged breach of contract of carriage.

On September 14, 1924, he delivered to defendant, at Fort Worth, Tex., 22 mules and horses to be transported, under the uniform live stock contract prescribed by the Interstate Commerce Commission, to Shreveport, La.

He alleges that when the animals were delivered to him by defendant, one of them, a mare mule, was weak and breathing fast, indicating that she had been injured in transit by being jammed, and that she died three or four days thereafter, although during that time it received proper attention.

Defendant denied that the animal was in good condition when received by it, and denied that it was injured in transit by being jammed or otherwise.

On these issues the case was tried, and there was judgment rejecting plaintiff’s demands and dismissing his suit, and he appealed.

OPINION

Numerous interesting questions of law are presented in the briefs filed by plaintiff and defendant; but we only find it necessary, in order to. a correct decision of the case, to determine whether the evidence shows defendant failed in any duty to plaintiff.

G. W. Powers testified that he was a conductor in the employ of the defendant and was in charge of the train that brought the animals to Shreveport; that he inspected the car in which the animals were when the train was ready to leave Port Worth, and that none of the animals were down and all were apparently in good condition; that the train was a through one and there was no switching of it; that there were no jolts or jars of the cars composing the train and that none of the animals was down during the journey; and that the ear in which the animals were loaded was that one of the train immediately next to the locomotive, and that that is the least jolted or jarred car in a train.

The evidence shows that the animal was free of lesions and bruises when delivered to plaintiff by defendant, and that the only indication she gave of being then unwell was that she appeared drawn up.

W. B. Burris, a veterinarian, testified that he examined the animal three times; once in the defendant’s stock pen in Shreveport, La., and:

“Q. What was its appearance?
“A. Pulse weak; breathing very rapid; droopy. Diagnosis withheld for the time being, until further examination by me.
“Q. Did you make an examination at that time to ascertain whether there were any marks about the mule?
“A. Yes, sir; found no evidence of external bruises.
“Q. No scratches or skinned places at all?
“A. No, sir.
“Q. Did you examine the mule subsequently?
“A. Yes, sir.
“Q. Where?
“A. T. & P. stock pen, and again at Benton.
_ “Q. How long after the first examination was the second examination at the Stock pen?
“A. I don’t remember exactly; a day or two.
“Q. Did you make a diagnosis on this second examination?
“A. Yes, sir.
“Q. What was your diagnosis?
“A. Pneumonia at that time.
“Q. Did you see the animal subsequent to that?
“A. Yes, sir.
“Q. Where?
“A. I saw her at Benton.
“Q. What was its condition?
“A. I diagnosed it as pleuro-pneumonia; a combination of pneumonia and pleurisy.
“Q. Was there anything about its condition in its development from your examination that suggested any traumatic injury?
“A. None, whatever.”

Asked what caused the death of the mule, he said:

“Well, the mule died from pleuro-pneumonia, due to lowered resistance from having had influenza, or from some other respiratory disease, previous to the time shipped; that was my conclusion; that was typical among mules during this time in 1924 we had a condition among mules in the form of influenza which assumed a very violent type and for the time we were at a loss as to what treatment should he used, and until great research work was done we hardly knew how to handle them.”
“Q. When you examined that animal, was Mr. Scripture present?
“A. Yes, sir.
“Q. Did you at that time state to him that your conclusion was, that it had been, the injured condition was caused by reason of being jammed in transit?
“A. No, sir.”

There is nothing in the record impeaching this testimony, and the trial judge, who saw the witness and heard him testify, accepted it as correct, and no good reason appears for our not doing so.

The evidence satisfies us that the death of the animal was not caused by any fault or neglect of the defendant, but to purely natural causes for which the defendant was not responsible.

The judgment appealed from is correct, and accordingly it is affirmed.


text:
    No. 3496
    Second Circuit
    CORY v. ASKEW
    (March 12, 1929. Opinion and Decree.)
    Harry Y. Booth and George T. Mc-Sween, of Shreveport, attorneys for plaintiff, appellant.
    John B. Files, of Shreveport, attorney for defendant, appellee.
   REYNOLDS, J.

This is a suit under the Workmen’s Compensation Act (Act No. 20 of 1914, as amended). Plaintiff seeks judgment again,st defendant for $20 a week for 400 weeks and for $250 for expenditures for medical attention.

He alleges that he was employed by defendant at a daily wage of $5.50 and working seven days in the week, and that on August 15, 1927, he was accidentally injured in the course of his employment by a piece of iron pipe, which he was pushing, striking him on the left side of the lower part of the stomach, as he slipped and fell to the floor of a derrick on which he was standing.

He further alleges that the blow caused him injuries which will prevent him for the remainder of his life performing work of any reasonable character.

He alleges that he has already spent $100 for medical attention and will be required to expend at least $150 more for the same purpose.

The defendant admitted the employment, the wage paid, and the accident, but denied that plaintiff was injured to the extent alleged, and denied that he had expended or would be required to expend the sums claimed for medical attention.

On these issues the case was tried, and there was judgment in favor of plaintiff and against defendant for $20 a week for five weeks, • beginning August 22, 1927, with legal interest on each installment from its maturity until paid, and fixing the fees of the experts who testified at $25 each, and taxing their fees as costs.

Plaintiff prayed for an order of appeal from the judgment “only insofar as same rejects his demands,” and was granted an order of appeal, “restricted to that part (of the judgment) that rejects his demands.”

The defendant has filed in this court a motion to dismiss the appeal on the ground that the plaintiff had voluntarily executed the judgment and thereby acquiesced in it.

OPINION

Attached to and in support of defendant’s motion is a certified copy of a writ of fieri facias issued upon the judgment and of the sheriff’s return thereon, reading as follows:

“James E. Cory v. J. H. Askew.
“No. 48004.
“In the First District Court, State of Louisiana, Parish of Caddo.
“The State of Louisiana, to the Sheriff of the Parish of Caddo — Greeting:
“We command you, that by the seizure and sale of the property, real and personal, rights and credits, of J. H. Askew, in the manner prescribed by law, you cause to be made the sum of $20.00 per week for a period of five weeks, with the first payment being due August 22, 1927, and 5 per cent interest from October 17, 1928, until paid, and also the sum of one hundred forty-six dollars and 00 cents, cost, as well as your own charges, to satisfy judgment rendered against the said defendant in our said court for the parish of Caddo, in favor of the said plaintiff. And how you have executed this writ you make return to our said court in seventy days, as the law directs.
“Witness the honorable judge of the said court this 5th day of November, 1928.
“V. G. Simmons,
“Deputy Clerk of the Court.
“Received of T. R. Hughes, sheriff, the sum of $105.00, in full settlement of the proceeds of the sale on within writ, after deducting costs amounting to $146.00. James E. Cory, by H. V. Booth, Agent and Attorney for Cory.”
“Filed January 3, 1929.
“R. W. Sloane, Deputy Clerk.”

And upon this showing defendant asks us to dismiss the appeal without remanding the case to the lower court for trial of the question • of acquiescence in the judgment, on the authority of Mohawk Oil Co. vs. Layne, 147 La. 895, 86 So. 322.

That case is' contrary to the general rule that appellate courts are without authority originally to pass on questions of fact asserted to constitute acquiescence in the judgment appealed from.

There the court accepted ex parte evidence of judicial allegations by the appellant in another suit as proof of acquiescence, and dismissed the appeal on that ground. We think such evidence of greater probative force than ex parte evidence of the issuance of a writ of fieri facias on the judgment appealed from and its return fully satisfied. The writ may have been inadvertently issued, or other facts may exist showing the issuance and execution of the writ to be not an acquiescence in the judgment, and the appellant is entitled to opportunity to show this, if he can.

In the case of Zwikel vs. Zwikel, 154 La. 532, 97 So. 850, rendered since Mohawk Oil Co. vs. Layne, supra, wherein the' defendant appealed from a judgment granting the plaintiff an absolute divorce, and the appellee, answering a motion to dismiss the appeal on the ground that, subsequent to the judgment, the spouses had resumed marital relations, admitted that he and the appellant had cohabitated together as man and wife pending the appeal, the court held that the case should be remanded to the district court for trial of the issue of whether or not there had been a reconciliation between the parties, under articles 152 and 154 of the Civil Code.

In James vs. Fellowes & Co., 23 La. Ann. 37, where a motion to dismiss an appeal on the ground of acquiescence in the judgment was presented, the court said:

“Having, however, no original jurisdiction, we must remand the case to try the issue raised by the motion.”

And in State ex rel. St. Martin vs. Police Jury, 28 La. Ann. 272, the syllabus reads as follows:

“A motion is made to dismiss the appeal on the ground that the police jury, who are the only appellants, have voluntarily executed the judgment of the lower court. The counsel for the appellants answer that this court cannot take cognizance of the documents annexed to the motion and which appear here for the first time and as originals. This court, in the absence of consent, express or implied, to consider new evidence before it, must adhere to what it believes to be the settled jurisprudence of the state. * * * This court has jurisdiction of a cause as tried, but not of facts not passed on in the lower court, and can receive no new evidence. Consent cannot give jurisdiction, but, having jurisdiction of a cause, this court may it seems, consider facts presented by consent. This has not been done in this instance. The case must be remanded.”

In Ryland vs. Harve M. Wheeler Lumber Co., 146 La. 787, 84 So. 55, a motion was made to dismiss the appeal on the ground that it was taken out of term time and the appellee not cited, and the court said:

“As this court is without original jurisdiction to consider and pass upon the letters annexed to the petition for rehearing and filed as evidence of the alleged acquiescence in the judgment of the district court, the question of acquiescence should be determined by the district court; and for that purpose the case must be remanded.”

In J. R. Watkins Co. vs. S. A. Bankston et al., 2 La. App. 530, the court said:

“Plaintiff has filed in this court, a motion to dismiss the appeal on the ground that defendants have acquiesced in the judgment. Acquiescence is a question of fact which can only be determined after hearing evidence, and we are therefore constrained to remand this case in order that such evidence may be adduced.”

Under the authorities quoted, other than that of Mohawk Oil Co. vs. Layne, the case must be remanded for the purposes of the motion.

It is therefore ordered, adjudged and decreed that the case be remanded to the district court for the trial of the issue of whether plaintiff has acquiesced in the judgment appealed from or not.


author: WESTERFIE'LD, J.

text:
    No. 10,908
    Orleans
    STULB v. STATE BOARD OF HEALTH
    (June 10, 1929. Opinion and Decree.)
    P. B. Preeland, of New Orleans, attorney for plaintiff, appellant.
    Luther E. Hall, of New Orleans, attorney for defendant, appellee.
   WESTERFIE'LD, J.

Plaintiff sues on a quantum meruit for $715. He alleges that he is a specialist in contagious and infectious diseases and that, as such, he was employed in August, 1923, by the defendant board of health, acting through its president, Dr. Oscar Dowling, for the purpose of supervising and handling leprosy cases in the city of New Orleans, and acted in that capacity for a period of 47 days; that a fair and reasonable compensation would be $25 per day.

The defendant admits the employment and that the services were performed during the period alleged. It sets up a contract under which it was agreed that plaintiff’s compensation wouíd be $10 per day. A reconventional demand is made for the sum of $50, an amount said to have been advanced plaintiff for expenses. There was judgment below dismissing plaintiff’s demand and rejecting defendant’s reconventional demand. Plaintiff has appealed.

Two witnesses testified in defendant’s behalf: Dr. Dowling, president of the defendant board at the time the services of plaintiff were rendered, and his secretary, Miss Fannie Nelkin. The testimony of Dr. Dowling is to the effect that he was without authority to pay plaintiff more than $10 per day, and communicated that fact to plaintiff, who accepted compensation on this basis. Dr. Dowling is corroborated by Miss Nelkin.

On plaintiff’s behalf, besides his own testimony, we find that of a number of doctors, all of whom appraise the value of his services at $25 per day or more. Several of these doctors are members of the defendant board of health, each of whom testifies that the question of plaintiff’s compensation had never been presented to the board for consideration. Mr. Daniel Wendling, a member of the bar, who represented plaintiff in negotiations with defendant, prior to the filing of this suit, testified that Dr. Dowling had told him, at the time the negotiations were under way, that he was limited to the sum of $10 per day by resolution of the board, but that he would be glad to see plaintiff get more, either from the city of New Orleans or the board itself, and that Dr. Dowling had approved a letter prepared by him and sent by the Attorney General to the city of New Orleans, demanding payment of a bill calling for additional compensation, which plaintiff had sent to the defendant board.

We are convinced from the evidence that, whatever may have been the value of plaintiff’s services, he was employed on a basis of $10 per day, which amount he admits having received; that whatever Dr. Dowling may have said with reference to assisting plaintiff in recovering further compensation from the city of New Orleans, or from the defendant board, can have no effect upon plaintiff’s claim against the present defendant.

The trial court was of this opinion and .the voluminous record fails to indicate that he was manifestly wrong.

As to the reconventional demand, no appeal has been taken by defendant and no answer has been filed to plaintiff’s appeal.

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


author: WESTERFIELD, J.

text:
    No. 11,753
    Orleans
    SOUTHERN DEMOLISHING CO. v. ALLEN
    (March 4, 1929. Opinion and Decree.)
    Gerald Netter, of New Orleans, attorney for plaintiff, appellee.
    Eugene Thorpe and Hugh Morrison, of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

This is a suit on an open account for $206.91, the alleged value of certain lumber sold and delivered to defendant. The sale and delivery are admitted, but it is claimed that the proper credit was not allowed defendant for the value of material returned by him, which was found to be unsuitable, and not as represented by plaintiff.

There was judgment for plaintiff as prayed for, subject to a credit of $188.75. Defendant has appealed.

There is sufficient evidence in the record to support the findings of the trial court upon the question of fact involved, and from our study of the record we are unable to say that there was any manifest error in the judgment complained of.

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


author: WESTERFIEBD, J.

text:
    No. 11,551
    Orleans
    HARVEY v. DEUTCHMAN
    (December 10, 1928. Opinion and Decree.)
    J. L. Warren Woodville, of New Orleans, attorney for plaintiff, appellee.
    Bond, Curtis, Hall & Foster, of New Orleans, attorneys for defendant, appellant.
   WESTERFIEBD, J.

This is a suit by a real estate broker for a commission. There was judgment for the plaintiff as prayed for, and defendant has appealed.

The defendant entered into a contract of mandate under date of November 15, 1922, the pertinent provisions of which are as follows:

“I hereby appoint S. A. Harvey, his heirs or successors, my Agent, and authorize him to sell or exchange my property known as (description of property given) more fully described on the reverse side of this paper, for the price and' sum of Seventy Five Hundred cash Dollars ($7,500.00) net. Owner agrees to pay all mortgages. Interest and taxes for 1922 to be paid by the vendor. If property is sold for this amount or less, owner agrees to pay his Agent three per cent commission. I give my Agents sole control of same from date, and to put up signs; and further agree not to interfere in the sale of said property during the term of this Contract. I also bind myself to refer all applicants for the purchase of said property to my Agent. I will notify my Agent in writing and give him ninety days’ notice if I desire this Contract discontinued.
“When this property is sold, I agree and bind myself to pay my Agents all over $7,500.00 for their commission, no matter by whom the property has been sold, or if any of the preliminaries of sale are made during the term of this Contract, and sale itself is consummated thereafter, I agree and bind myself to pay my Agents all over $7,500.00, and if sold for less than this amount owner agrees to pay three per cent commission."

Acting under the authority conferred on him, plaintiff endeavored to effect a sale of the property by the usual methods. He inserted a number of advertisements in the daily papers, and listed the property with other properties which he had for sale.

In July, 1925, more than two years after the agreement with plaintiff had been made, the defendant sold the property mentioned in the agreement, through another agent, without the knowledge of plaintiff, notwithstanding the fact that no notice in writing of the intention of defendant, to revoke the mandate, had been given.

Defendant relies upon an alleged verbal agreement revoking plaintiff’s authority, to which plaintiff’s assent is claimed to have been given by silent acquiescence. This alleged verbal agreement is said to have been arrived at during’ a visit to plaintiff’s office by defendant and his wife. At that time, defendant expressed dissatisfaction with the failure of plaintiff to obtain a purchaser for his property, as he expressed it:

“We went to his office around June, 1923, about the early part of June, and we had a little run in, and I says you got it six months and you can’t sell it, and he showed me where he advertised it a few times and he said it ain’t right to take it away. I said I am going to get somebody else and give them a chance, and he begged me so much I give him six months, and then I give it to Rhodes & Symmes and then to Danziger and Danziger sold it in 1925, and I did not hear from Plarvey since except coming to court from his lawyer.”

Mrs. Deutchman corroborates her husband in this version of what transpired on the occasion of their visit.

Plaintiff denies substantially everything that is testified to by the defendant and his wife, as having occurred on the occasion of their visit, except the fact that they had called upon him. He is, in a measure, supported by the fact, as it appears from the record, that out of 24 advertisements of defendant’s property, inserted by him from time to time in the newspapers, 17 of them appeared after the date of this call, and 6 of them after the property had been sold by another. It will be noticed that defendant’s account of his interview with plaintiff does not contain a definite claim of verbal notice of cancellation of the contract of mandate, and, in view of plaintiff’s evident understanding that he was still authorized to sell the property as shown by his continued efforts to do so, even after it had been sold by another agent, we conclude that there was no verbal revocation to which plaintiff’s assent was given, either expressly or by necessary implication due to a continued silence, when he should have spoken, consequently this case is not within the doctrine of Columbia Weighing Machine Co. vs. J. T. Balter, No. 11431 of our docket, not yet reported; Porter vs. Ledoux, 6 La. Ann. 377; Corpus Juris, volume 1, page 906, cited by defendant.

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


text:
    No. 10,535
    Orleans
    KRON v. LA BELIA
    (January 7, 1929. Opinion and Decree.)

      Bond, Curtis & Hall, of New Orleans, attorneys for plaintiff, appellee.
    Gordon Boswell, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

Plaintiff sues defendant for damages resulting from personal injuries, and a loss occasioned by damages to his wagon, resulting from a collision between his ice wagon, and the defendant’s automobile.

From a judgment awarding plaintiff $500, defendant has appealed.

Liability is admitted by defendant; the sole contention being that the quantum is excessive. We have read the record, and without itemizing in detail the several elements of damages, we have reached the conclusion that the sum of $300 would do substantial justice in the premises.

For the reasons assigned, the judgment appealed from is amended by reducing the amount awarded plaintiff from the sum of $500 to the sum of $300 and, as thus amended, the judgment is affirmed.


author: LECHE, J.

text:
    No. 362
    First Circuit
    BASS ET AL. v. WEBER-KING MFG. CO.
    (January 9, 1929. Opinion and Decree.)
    (February 13, 1929. Rehearing Refused.)
    (May 20, 1929. Reversed by Supreme Court on Writs of Certiorari and Review.)

      A. B. Cavanaugh, of Leesville, attorney for plaintiffs, appellees.
    Thompson & Ferguson, of Leesville, attorneys for defendant, appellant.
   LECHE, J.

Plaintiffs are the widow and minor children of Mose J. Bass, .and their demand is for compensation under the Employers’ Liability Law. They allege, in substance: That Mose J. Bass died on or about September 26, 1927. That his death was caused by injuries which he received while performing duties, and in the course of his employment, as an employee of the defendant. That defendant owns a sawmill which is supplied with logs cut in a forest, where its employees are daily conveyed on a logging train which is operated for that purpose. That on the morning of September 26, 1927, while thus being carried to his place of employment, the trailer on which he was riding was partially wrecked by some obstruction on the track. That plaintiff was violently thrown forward on the platform of the flat car provided by defendant for his conveyance, into a pile of angle bars and scrap iron, causing him to suffer a fatal nervous shock, inflicting severe injuries to his heart and other vital internal organs from which he never recovered. That on his way, returning to the sawmill, after performing his day’s labor, he had to pull himself up into a caboose and, while lying on a bench therein, the train to which the caboose was attached, suddenly lurched, and he was thrown to the floor, causing total paralysis of the heart, from which he immediately died.

As a result of the death of said Bass, the plaintiffs, his widow and minor children, demand compensation at the rate of $20 for 300 weeks and $150 additional for funeral expenses.

Defendant excepted to plaintiffs’ petition on the ground that it failed to show a cause of action. This exception is predicated on the ground that, at the time Bass is alleged to have died, there was no law fixing the amount of compensation in favor of the dependents, where the employee’s injury resulted in death. The number of weeks is as essential in fixing total compensation as is the rate per week. If either the one or the other is not fixed by the lawmaker, then the amount of the compensation cannot be determined, and that is what defendant contends is the condition of the present claim.

The Employers’ Liability Act, at page 51, Act of 1914, provides for compensation for injury causing death within one year after the accident, during a period of three hundred weeks. The amendment of 1922 (page 76, Act of 1922) and that of 1924 (page 400, Act of 1924) contain similar provisions, but in 1928 the law was again amended and re-enacted (Acts of 1926, pp. 116, 118), and the re-enactment is couched in the following language: “For injury causing death within one year after the accident there shall be paid t'o the legal dependents of the employee, actually and wholly dependent upon his earnings for support at the time of the accident and death, a weekly sum as hereinafter provided.” But the act does not contain any further provision on the subject, and we find nothing “hereinafter provided” as to the length of time during which weekly compensation should be paid. There seems to be a hiatus in the law, and the court is confronted with the question as to whether it has the right and power to fix the duration of compensation in the absence of any legislative provision on that subject. At pages 119, 120, of the Act of 1926, we find, under subparagraph (J), that, where payments of compensation have heen made to the employee before his death, the compensation for dependents as provided for in this section shall begin on the date of the last of such payments, and shall not continue for more than 300 weeks from the date of the accident. But, where no compensation has been paid to the deceased employee before his death, the statute is silent as to the length of time during which it should be paid to his dependents after his death.

These provisions are all contained in section 8 of the act, which is divided and subdivided into numerous paragraphs and subparagraphs. It might be asserted, though not suggested in argument, that the Legislature from the terms of subparagraph (J) intended that weekly payments of compensation in favor of the depend-ants of an employee who had died as the result of an accident should continue for a period of 300 weeks; but that is merely an inference, as the court might with equal propriety and without violating the terms of the provision fix the duration at 100 or at 200 weeks.

The apparent hiatus in the act of 1926 is conceded by the lawmaker, as being fatal to the operation of the statute, for in 1928 (Acts of 1928, p. 358) the provision of the act of 1926, herein already quoted, was again re-enacted, and this time the words “for three hundred weeks” were actually inserted therein. The re-enactment of this provision of the statute shows that the Legislature considered that the period of 300 weeks contained in the Acts of 1914, 1922, and 1924 were repealed by the act of 1926, and that the inserted period was necessary in order to fix the total amount of compensation. Where the provision of a statute is re-enacted, all parts of the former provision not contained in the reenactment are repealed. State ex rel. Brittain vs. Hayes, 143 La. 39, 78 So. 143; Flournoy vs. Walker, 126 La. 489, 52 So. 673.

There being no amount fixed by law for compensation in favor of the dependents of an employee who was killed as the result of an accident, at the time Bass died, as alleged in this case, defendant’s exception of no cause of action should be maintained, the judgment of the district court should be reversed, and plaintiff’s demand rejected, and it is so ordered.