text:
    No. -
    First Circuit
    OPELOUSAS FINANCE COMPANY, INC., v. ROOS
    (January 5, 1928. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Appeal—Par. 283.
    Regardless of how many orders of appeal have been granted there is no appeal until the bond is given.
    2. Louisiana Digest — Appeal — Par. 510, 526.
    The court, having the right to dismiss an appeal ex proprio motu in which the court has not jurisdiction, it matters not if motion to dismiss was filed too late where dismissal is on jurisdictional matters.
    3. Louisiana Digest — Appeal—Par. 365.
    A mere service from the extract of minutes of the court showing that devolutive appeal had been taken does not conform to the requirements for a citation of appeal as provided by Articles 581,' 582, 583 of the Code of Practice.
    4. Louisiana Digest — Appeal — Par. 374, 375.
    Failure of appellant to have citation of appeal issued and served in accordance with Code of Practice, Articles 581, 582 and 583, entitled appenee to a dismissal of the appeal.
    Appeal from the Parish of St. Landry. Hon. B. H. Pavy, Judge.
    Action by Opelousas Finance Company, Inc., against Mrs. Emma Rocs, wife of Jonas Roos.
    There was judgment for defendant and plaintiff appealed.
    Appeal dismissed.
    Sandoz & Sandoz, of Opelousas, attorney for plaintiff, appellant.
    Dubuisson, Perrault & Burleigh, of Opelousas, attorneys for defendant, appellee.
   MOUTON, J.

An appeal was granted plaintiff in this case on July 15th, 1927, and was made returnable to this court September 14th, 1927.

On September 17th, 1927, three days subsequent to the return day of this appeal, another appeal was taken herein by plaintiff, and which was made returnable to this court on October 17th, 1927. The order granting this second appeal, as appears from the minutes of the court, is as follows: “On motion of counsel for plaintiff, a devolutive appeal is hereby granted to said plaintiff made returnable to the Honorable Court of Appeal, First Circuit of Louisiana, on October 17th, 1927, upon its furnishing bond in the sum of $25.00.”

The two orders of appeal were granted in open court but at different terms. Two motions were filed by defendant, appellee, to dismiss both appeals. Only one appeal bond was furnished and which was executed on September 17th, 1927, being three days after the expiration of the return day of the first appeal. Obviously, this bond was not intended and could not serve for that appeal which was therefore not perfected.

“There is no appeal until the bond is given, it matters not how many orders of appeal have ben granted.” Earhart vs. New Orleans & Carrollton R. Co., 17 La. Ann. 243; Gagneaux vs. Desornier, 104 La. 648, 29 So. 282; Mortee vs. Edwards, 20 La. Ann. 236.

As there was no appeal under the first order on account of failure on the part oí plaintiff to file the bond in proper time, this court can have no jurisdiction of the case under that order, thus presenting a jurisdictional fact of which we should take cognizance ex proprio motu. Gagneaux vs. Desonier, 104 La. 648, 29 So. 282.

Counsel for plaintiff contended in oral argument, as per notation in the' records, that the motion to dismiss the appeal on the first order had been filed too late for consideration.

There is no merit in this contention, as we can of our own motion, in such a case, dismiss the appeal for lack of jurisdiction. It also appears that the second order was filed in this court after the return day, fixed for the first appeal, had expired, which, independently of any other cause, offers a legal reason for its dismissal.

The reason urged for the dismissal of the second appeal is founded on the complaint that there was no citation of appeal prayed for by plaintiff, nor service of citation on appellee. The only document served on appellee consisted of a certified, copy of the minute entry of the lower court, above reproduced, which attested to the fact that a devolutive appeal had been taken by plaintiff returnable to this court on October 17, 1927. Code of Practice, Article 581, says: “The clerk shall deliver a copy of the petition of appeal to the sheriff, to be served on the appellee, together with a citation to appear before the Court of Appeal to answer with in the delay hereinafter prescribed.” The appellee must be cited to appear before the Court of Appeal at its next term, says Article 583, C. P., Article 582, provides for the service of the petition and citation on the appellee. It is evident that the mere service of the extract from the minutes of the court showing that a devolutive appeal had been taken to this court, did not conform to the requirements for a citation of appeal as is provided for in the articles of the Code of Practice above referred to.

The second appeal having been taken at a subsequent term of court, plaintiff and appellant should have obtained the issuance of a citation of appeal, and have had it served on the defendant as the law directs. Its failure to do so entitles appellee to a dismissal of the appeal. McKowen vs. Atkinson, 19 La. Ann. 136; Hermann vs. Rivers, 9 Rob. 2; State vs. Brunetto, 13 La. Ann. 50; McCarthy vs. Lewis, 5 La. Ann. 115; McGaw vs. O’Bierne, 124 La. 989, 50 So. 819; Frederick vs. A. Marx Picture Frame Co., 127 La. 149, 53 So. 474.

It is therefore ordered and decreed that the appeal be, and is hereby dismissed at the cost of appellant.


source: Caselaw Access Project

author: LECHE, J. LECHE, J.

license: Public Domain

text:
    No. -
    First Circuit
    SCARDINO v. WHITNEY MOSS TIE CO., Intervenor
    (December 6, 1927. Opinion and Decree.)
    (January 5, 1928. Rehearing Refused.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Sales—Par. 309.
    A privilege on movables does not follow them into the hands of an innocent third purchaser.
    ON REHEARING
    2. Louisiana Digest — Sales—Par. 309.
    Act No. 195 of 1912, creating a lien on telegraph poles, crossties, etc., does not make the lien follow the movable property into the hands of an innocent third purchaser.
    Appeal from the Parish of Iberville. Hon. W. C. Carruth, Judge.
    Action by Joseph Scardino against George E. Whitney. T. J. Moss Tie Company, Intervenor.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Schwing, Morrison, Schwing & Obier, of Plaquemine, attorneys for plaintiff, appellant.
    Laycock, Borron & Laycock, of Plaque-mine, attorneys for Intervenor, appellee.
   LECHE, J.

Plaintiff seeks to have some 2200 crossties, manufactured by defendant, recognized as affected with a lien and privilege to secure $536.63 advanced by him in money and supplies to enable defendant to manufacture the ties.

The T. J. Moss Tie Company intervened, claimed ownership of the ties, and contested the existence of plaintiff’s alleged lien and privilege.

The trial court held that the evidence failed to show with clearness and certainty that the advances were used by defendant for the purpose of manufacturing the ties, refused plaintiff’s demand, and adjudged intervenor to be the owner of the ties.

The evidence is clear to the effect that defendant was not an employee of intervenor, that the ties were manufactured by defendant for his own account, and that they were by him sold to intervenor; that delivery was made on the banks of Bayou Grosse Tete and that intervenor paid defendant the purchase price of the ties before they were seized by plaintiff. The evidence fails to show any privity between plaintiff and intervenor or any fraud or concealment on the part of intervenor towards plaintiff. According to the general tenor of the testimony, intervenor was an innocent third person and bought the ties in good faith. Under this state of facts, plaintiff’s asserted privilege, if it did exist, could not follow the ties, a movable, into the hands of intervenor.

For this reason the judgment of the District Court should be affirmed.

ON APPLICATION FOR REHEARING

LECHE, J.

In the original opinion, the writer thereof said: “The evidence fails to show any privity between plaintiff and intervenor, or any fraud or concealment on the part of intervenor towards plaintiff.”

This was mere surplusage and not necessary to a decision of the ease, as plaintiff did not charge fraud or concealment in his answer to the petition of intervention of the T. J. Moss Tie Company, and therefore might have been omitted from the opinion without affecting the reasons upon which the opinion was based.

Plaintiff in his application for rehearing admits the correctness of all the facts stated in the opinion of this court, hut contends that under Act 195, p. 382, of 1912, his alleged privilege followed the ties in the hands of intervenor after intervenor had purchased them from defendant. We see nothing in that act to justify that assumption. On the contrary, the last clause of the act, in Section 4, gives the privilege holder a right to seize the ties where they are about to be disposed of or removed from the parish. The obvious inference is that where the ties have been disposed of, as they were in this case, they may not be seized.

It must be kept in mind that this is not an action by a privileged creditor to avoid a sale as made in fraud of his rights. No fraud is alleged in plaintiff’s answer to the intervention, and none was proved.

The only purpose subserved by a privilege on a movable is to give the privilege holder a preference over other creditors of the debtor. Movables are not affected by registry and the only instances in which privileges follow them, so far as we know, are in the case of the erection of buildings and in the granting of chattel mortgages. See the case of Dreyfous vs. Cade et al., 138 La. 298, 70 So. 231, where the subject is thoroughly discussed.

Rehearing refused.


author: MOUTON, J.

text:
    No. -
    First Circuit
    INTERSTATE TRUST & BANKING CO. v. HEBERT ET ALS.
    (January 5, 1928. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Sequestration — Par. 4, 6, 8, 14.
    A petition for writ of sequestration, under Article 275 of the Code of Practice, must contain the allegation asking for ownership or possession of the movable seized, a lien thereon or the benefit of a special statute. In the absence of one of these allegations the writ must be dissolved.
    Appeal from the Parish of Vermillion. Hon. W. W. Bailey, Judge.
    Action by Interstate Trust & Banking Company against Odón J. Hebert et al.
    There - was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Broussard & Sampson, Abbeville, attorneys for plaintiff, appellant.
    J. E. Kibbe, of Abbeville, attorney for defendant, appellee.
   MOUTON, J.

Plaintiff company, the holder of a promissory note of defendant, Odón J. Hebert, obtained the sequestration of a Buick automobile in his possession. The issuance of the writ was obtained on the allegation that plaintiff feared Hebert would conceal, part with or dispose of the auto during the pendency of the suit. There is no demand by plaintiff for the ownership or possession of the auto. Plaintiff contends that averments of that character are not required for the maintenance of the writ, as he is entitled thereto on paragraph 8 of Article 275, C. P., which says that a sequestration may be ordered where “a party fears that the other will conceal, part with or dispose of the movable in his possession during the pendency of the suit”. This paragraph was added to the article by Act No. 39 of 1839. The court in State vs. Reed, 149 La. 175, 88 So. 783, in commenting on this amendment of that article, said that its only purpose was to give the right to the writ when the ownership of a movable in the possession of the defendant was in dispute, for the other paragraphs had given it in all cases where thé possession of personal property, a lien or privilege, etc., on property was claimed.

According to that decision which is supported by many adjudications referred to by the court, the mere allegation that plaintiff was a creditor of defendant without the averment asking for the ownership or possession of the auto, did not authorize the maintenance of the sequestration.

Counsel, in connection with his reference to Act 190 of 1912, cites the case of Gueydan vs. T. P. Ranch Co., reported in 156 La. 397, 100 So. 541. In that case the defendant had given a privilege on his rice crop to a furnisher of supplies, and the court merely held that it was not necessary for plaintiff to have reasonable ground to believe, under the provisions of Act 190 of 1912, that defendant intended to conceal or dispose of his crop, as the bare fact that it was in his power to do so entitled plaintiff to the sequestration. If, in this case, plaintiff was claiming the ownership or possession of the auto, or a lien upon it, or the benefit of some special statute, he would be entitled to the sequestration from the simple fact that it was in the power of the defendant to have concealed, parted with or disposed of the property during the pendency of the action. But as no such claim for the property, a lien thereon, or the benefit of a special statute, was urged in the petition, the writ was properly dissolved.


author: REYNOLDS, J.

text:
    No. 3032
    Second Circuit
    FLETCHER v. NUGENT & McLAUGHLIN
    (February 3, 1928. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Evidence—Par. 343, 352; Timber — Par. 10.
    In a suit for the value of standing timber cut and removed under contract, the unimpeached testimony of a competent scaler who counted and scaled all logs taken, is entitled to greater weight as to the number and contents of such logs than estimates by other witnesses arrived at by counting the stumps of the trees and measuring their diameter and the distance between them and the tree-tops on the ground four months after the cutting and removal. The word “estimate” implies inaccuracy and means to calculate “roughly” or form an opinion from imperfect data. Bautovich vs. Great Southern Lumber Co., 129 La. 857, 56 So. 1026.
    (Editor’s note: Refer to Louisiana Digest, Obligations, Par. 101.)
    Appeal from the Ninth Judicial District Court of Louisiana, Parish of Grant. Hon. R. C. Culpepper, Judge.
    Action by George Nelson Fletcher against Nugent & McLaughlin.
    There was judgment for defendants and plaintiff appealed.
    Judgment affirmed.
    Joel L. Fletcher, attorney for plaintiff, appellant.
    C. H. McCain, of Colfax, attorney for defendants, appellees.
    STATEMENT OF THE CASE
    This is a suit to recover $157.05 as the value of 52,150 feet, board measure, of timber alleged to have been cut and removed by defendant from plaintiff’s land under contract. Defendant denied liability and alleged that it had paid for all timber taken by it.
    On these issues the case was tried and there was judgment rejecting plaintiff’s demands and he has appealed.
   REYNOLDS, J.

OPINION

Defendant cut and removed certain timber from plaintiff’s land under a contract reading, in part, as follows:

“This sale is made for and in consideration of two hundred and eighty dollars cash in hand, paid and for three dollars per thousand for all such timber as is in excess of one hundred thousand feet to be paid for when cut after said one hundred thousand feet is cut.”

Defendants had the logs counted and scaled as they were loaded on their skid-way and found they contained 115,437 feet, board measure, and accordingly paid plaintiff for the excess of 15,437 over the 100,000 at the stipulated price of $3.00 per thousand.

Plaintiff contends that defendants really cut and removed 167,787 feet of timber from his land.

Four months after defendants had rendered plaintiff a statement of the amount of timber cut by them from his land and mailed him a cheek for $46.31 in payment of the excess of 15,437 feet over the 100,000, plaintiff had an estimate made for him by Jim Butts, Marshall Walker, W. D. Gardner and Doc Chandler, of the timber taken by defendants from his land.

As to this estimate, these witnesses testified as follows:

Jim Butts:

“Q. Now how did he (Marshall Walker) measure the stumps, were you present?
“A. He measured with a stick.
“Q. Is this the stick?
“A. No, sir. It was a square stick.
“Q. What did he measure with? He did the measuring. What else?
“A. Well, I stepped it off; just stepped it; that’s all.
“Q. Just stepped the lengths of the trees?
“A. Yes* where I could; and where I couldn’t, we just took an estimation of it. * * * *
“Q. In instances where you couldn’t exactly determine the original location of the old tops, what did you do in those cases?
“A. We estimated according to what the other trees of the same size stump.
sjs iH
“Q. Mr. Butts, do you want to say — you don’t mean to tell the court that you know how much timber was cut by McLaughlin & Nugent?
“A. No.
“Q. You don’t know if it is 100,000 --•
“A. (Interrupting.) No, no, I don’t know if it’s 100,000 or 1,000,000.”

Marshall Walker:

“Q. What did you do on that day?
“A. Well, Mr. Fletcher wanted us to count the stumps and tops and measure them and guess at the length like.
si* * * *
“Q. Well, what — did you do that as accurately as you could under the circumstances ?
“A. Well, we couldn’t get to them in places.
“Q. Well, you are a practical man, in cases where there was doubt — what did you do where you tried to scale this, what did you do in difficult places? Where you couldn’t tell did you make it exceedingly large or what did you do?
“A. Well, if I couldn’t measure I just guessed and went on.
“Q. Were you guessing conscientiously?
“A. I think so.
* # * *
“Q. In this measurement, you estimated the timber inside the lines that you understood to be on the place?
“A. There was a few that was too old for the cut, and I thought they was, but they seemed to think they wasn’t.
‡ ‡ *
“Q. Now you say that a good many of them looked too old? (Treetops.)
“A. Well, there was a big strip there that I thought looked too' old, but the rest didn’t think so.
“Q. A good big strip?
“A. About half an acre.
* * *
“Q. (Interrupting) I am not talking about Chandler.
“A. I don’t pretend to know anything about it; I went in there to measure the stumps.
* * * :¡:
“Q. Did you measure all the tops?
“A. No.
“Q. I believe you told Mr. Fletcher that you guessed at the tops?
“A. Large majority. We would guess a while and measure a while.
# ♦ !jt
“Q. What did you mean when you said you guessed at a large majority?
“A. Well, I didn’t — couldn’t swear to the tops but I could to the butts.
“Q. Then the point I am getting at is, when you say that you guessed at a large majority of the tops, did you mean Mr. Chandler guessed :
“A. Well, Mr. Chandler guessed sometimes.
“Q. Did Mr. Butts guess?
“A. We all guessed. *
jJj s|s
“Q. As to the tops, you every one guessed?
“A. We would have to guess at all, if we guessed at one.
“Q. Then I am going to ask you the question, and ask for a yes or no answer. The way you all measured and guessed and guessed and measured, could you testify to any accuracy as to the number of feet that was cut by Nugent & McLaughlin?
“A. Well, we did not go down to get — ■ down we went over there — I couldn’t do it for I don’t know what was in a- tree.
“Q. Your answer is no.
“A. Yes.”

W. D. Gardner:

“Q. Did you measure the tops, Mr. Gardner?
“A. Yes.
“Q. Measured all the tops?
“A. No, there was a few tops that was scattered around, I eventually found all of them, the way I would do that I would take a tree of the same diameter in the stump and average, and I always give the doubt. I said I would take a tree of the diameter in the stump where I failed to find the top.”
* # * *

Doc Chandler:

“Q. You heard these other boys testify?
“A. Yes; I put down the measurements as they gave them to me.
“Q. As they measured, you put it down?
“A. I didn’t see each stump; I didn’t see the measurements as they were made; they called it off to me and the amount.
* * * *
“Q. Does your record” show the size of the stumps?
“A. Size of the stump, top and length as we measured it. We had no real measure. Mr. Walker stepped it.
“Q. You don’t pretend to say that you know how much timber was cut off this land by Nugent & McLaughlin?
“A. Not in feet, no.
“Q. Now, Mr. Butts, when he was on the stand, testified that the biggest majority of the tops you all guessed at?
“A. Mr. Walker, you mean.
“Q. Mr. Butts did too.
“A. Well, the majority of them, no.
“Q. Now Mr. Walker also testified that a big majority was guessed at?
“A. Well, we guessed at some of them, but not a majority. I say “we” — they did. I was there and they had the measure. I wasn’t pretending to measure. It would come up like this, may be. The top was away in a briar patch or some more tops on top of it and we couldn’t get to it very easy; we would look in there and guess at what the top might be — ten, twelve or fourteen — as the case might be, but we didn’t do the majority that way.
“Q. Well, now, when you testify that they guessed at a majority of those tops, you put down what they guessed at?
“A. Yes; if they said ten inches, I put down ten inches.
“Q. Well, you can’t of your own knowledge testify as to any of these measurements being correct?
“A. I can only testify to what they told me.”

Estimates' of the amount of timber cut and removed by defendants from plaintiff’s land, arrived at in the manner testified to by these witnesses, is not, in our opinion, sufficient to overcome the calculation of such timber based upon the count and measurements of the logs made .by Mr. Monroe Nugent as they were hauled to the sawmill.

Our learned brother of the District Court, who heard the witnesses and observed their demeanor on the witness stand, accepted Mr. Monroe Nugent’s testimony as true, and so do we.

Plaintiff insists that defendants should have called as witnesses in their behalf Claude Guilliams and Johnnie Corley who hauled the logs for them from the woods to the mill. The burden was on plaintiff to make out his case, and if the testimony of these persons as witnesses was necessary to that end he should have had them summoned.

Defendants kept an actual count and scale of the logs taken from plaintiff’s land and could well afford to rely on that evidence.

Under the law and the evidence the judgment appealed from is correct and it is therefore affirmed.


text:
    No. 3100
    Second Circuit
    Jones v. McConnell
    (November 10, 1927. Opinion and Decree.)
    (December 21, 1927. Rehearing Refused.)
    (February 13, 1928. Certiorari Denied by Supreme Court.)

      (Syllabus by the Court)

    1. Louisiana Digest — Appeal—Par. 625.
    The finding of the trial judge on an issue of fact will not be disturbed unless manifestly erroneous.
    Colt vs. Willhite, 5 La. App. 151.
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo. Hon. Robert Roberts, Judge.
    Action by J. J. Jones against Strubbe McConnell.
    There was judgment -for defendant and plaintiff appealed.
    Judgment affirmed.
    Harry V. Booth, of Shreveport, attorney for plaintiff, appellant.
    Wilkinson, Lewis & Wilkinson, of Shreveport, attorneys for defendant, appellee.
   REYNOLDS, J.

Plaintiff sued defendant under the Workmen’s Compensation Act for $14.04 a week for a period of 300 weeks beginning January 3, 1927, with legal interest on each installment from its maturity until paid, and for the further sum of $250.00 for medical fees, alleging that he was employed by defendant at a daily wage of $3.60 and working six days in the week, and that on the date named, while performing duties in the course of his employment, carrying building materials down a runway in an excavation, his right limb, below the knee, was caught in a shafting which crossed the runway, tearing and bruising certain muscles, ligaments and tendons of his said right limb to such an extent as to temporarily totally disable him to perform work of a reasonable character.

The defense was a general denial.

On these issues the case was tried and there was judgment in favor of the plaintiff and against the defendant for compensation for two weeks at the rate of $14.04 a week with legal interest thereon from January 10, 1927, and for the further sum of $2.70 for medical expenses incurred by plaintiff and for the costs of suit, and the plaintiff appealed.

OPINION

Only issues of fact involved are presented, namely, the nature of the disability caused by the accident to plaintiff and the amount of medical expenses incurred by him therefor.

Plaintiff, J. J. Jones, testified (evidence, pages 2, 7, 10, 11);

“Q. Mr. Jones, what were you doing on the 3rd day of January, 1927?
“A. I was toting material * * * and in going in and out there have to stoop over, stoop under the water pipe, * * * and in stooping over caught my clothes, caught me and most jerked me into this shaft.
“Q. What part of the shaft caught you —what part of your body was caught?
“A. Caught me on the calf of my leg.
“Q. Right leg?
“A. Yes, sir. The set screw was the first thing that hit the leg, right below the knee. I think was the first thing that hit my leg and most jerked me into the shafting.
£ * *
“Q. Were you taken to the hospital?
“A. Yes, sir.
sfc ❖ %
“Q. Who took you there?
“A. Mr. McConnell.
“Q. How long were you there?
“A. Stayed there I don’t suppose more than an hour; taken me back home.
“Q. You stayed at the hospital about an hour and th'en they took you back home?
“A. Something like that.
“Q. Did you go to bed when you got home?
“A. Laying around.
“Q. How long did you stay in bed?
“A. Stayed in bed, off and on, laying around that way, something like about a week or ten days, up and down.
“Q. Have you paid your medical bills?
“A. No, sir.
“Q. Who paid for it?
“A. The company, X suppose.
“Q. You have not been put to any expense?
“A. No, sir.
“Q. Por doctor and medical treatment?
“A. Yes, I bought a little stuff to put on my leg myself; the doctor recommended that I put it on; I bought a rubber elastic.
“Q. That is all you bought?
“A. Yes, sir.
“Q. How much did you pay for the medicine?
“A. I think, if I am not mistaken, about, I think it was, don’t know, won’t be positive. I think I bought ten or twelve boxes of epsom salts.
“Q. How much did you pay for each box?
“A. Ten cents.
“Q. How much did you pay for the elastic?
“A. Dollar and a half.
“Q. All you have spent on account of this accident amounts to two dollars seventy cents.
“A. Yes, sir; about all I have paid out.
“Q. The rest of the treatment was furnished by the company?
“A. Yes, sir.”

On this testimony the court rendered judgment as stated.

At the time of the trial the plaintiff was suffering from varicose veins.

Doctor C. H. Potts, called by plaintiff, testified (evidence, pages 12-14):

“Q, What is your conclusion as to this case?
“A. Well, I think he has a considerable amount of varicose veins, both above and below the knee, and the majority of which, the largest of which, above his knee form a pretty fair size sac or vein cyst. * * *
“Q. To what extent is he affected with varicose veins now?
“A. Considerable; he has quite large varicose veins, that is what I brought out a minute ago, the largest one of which is this cyst, the largest varicose vein above the knee and extending below.”

Doctor A. J. Thomas, also called by the plaintiff, testified (evidence, page 23):

“Q. What was his condition upon your first examination, doctor?
“A. * * * Diagnosis made was varicose veins and peri phlebitis of right leg; periostits of middle third of tibia and fibula of right leg. * * *”

Doctor A. P. Crain, called by defendant, testified (evidence, pages 32, 33):

“Q. Did you examine the plaintiff in this case?
“A. Yes, sir.
“Q. Doctor, please state what you found to be his condition?
“A. * * * Mr. Jones has extreme varicosity, that is, varicose veins, in the veins of both limbs, extend above the knee, and the leg that was not hurt is almost as bad as the one injured. * * *”

And Doctors O. C. Rigby and W. S. Harmon, also called by defendant, testified to the same effect.

The testimony offered by plaintiff and defendant makes certain that at the time of the trial plaintiff was suffering from varicose veins and nothing else; and the only question to he decided by the court is, were the varicose veins the result of the accident?

Plaintiff’s witness, C. H. Potts, testified (evidence, page 16):

“Q. Do you think that the injury which he received caused these varicose veins?
“A. I do.
“Q. You don’t think he had them before that?
“A. May have had some, yes, but not to the degree he has got now.
“Q. Just what kind of injury would it have to be to cause varicosity?
“A. Any direct trauma to give him the symptoms he has here. * * *
“Q. If he had a trauma of that severe a degree, don’t you think a man would have been in bed more than a week or ten days?
“A. Yes; he should have been in bed longer than that.”

Plaintiff’s witness, A. J. Thomas, testified (evidence, pages 28-31):

“Q. Did you notice the varicose veins in the left leg?
“A. Yes.
“Q. Are those veins normal or abnormal?
“A. Abnormal.
“Q. To what extent is it abnormal?
“A. That I cannot answer — it is like the hair turning gray — time does that.
“Q. For a man of his age and station and condition in life is his left leg abnormal?
“A. Yes, sir; .it is.
* * * *
“Q. This man testified that he never had any trouble with varicose veins before the accident * * * would you have any reason to doubt that statement?
“A. No, sir, nothing unusual; you frequently see it — persons have veins in the same condition and don’t really know it until the doctor examines them and tells them — they don’t know they have them.
“Q. Do you think the lick that he got on the right leg produced those varicose veins?
“A. I would not say prodúce it — but certainly aggravated it.
“Q. Do you think this man had varicose veins before the accident, in the right leg?
“A. The veins were certainly abnormal, yes, sir.
“Q. To what extent do you think they were abnormal before the accident?
“A. Probably to the same extent they are in the left leg at present, prior to the injury.”

A. P. Crain, called by plaintiff, testified (evidence, pages 32-43):

“Q. Doctor, please state what you found to be his condition?
“A. * * * I can find no connection between the varicosity and the injury and I think all his trouble now is due to varicose veins. * * * I think all the trouble this .man has is due to an old varicosity which is now beginning to give him trouble and will always until he is operated on.
“Q. Doctor, when you say you think it is due to an old varicosity, do you mean to a varicosity that existed before the accident?
“A. I believe so, yes, sir.
“Q. What do you think the accident had to do with plaintiff’s condition today?
“A. I don’t think it has anything to do with it; I think the man is suffering from varicosity.
“Q. Well, doctor, you examined his leg?
“A. I did.
“Q. Did you find any evidence of such injury as could produce varicosity?
“A. I did not.
“Q. I believe you stated what kind of injury you found?
“A. Found a small scar on the inner side of the leg — could see a little discoloration.
“Q. Can you cover up that scar with your finger tip?
“A. Yes, sir.
“Q. Doctor, how could such an injury •produce varicose veins?
“A. It could not do it.
“Q. * * * In other words, your theory is that this accident has no connection with the trouble in that leg?
“A. It has absolutely nothing to do with his varicose condition.
“Q. Doctor, assuming that after a period of four weeks subsequent to that accident his leg was black over an area of four or five inches * * * tell the court * * * would you say 1(he accident had nothing to do with his present condition?
“A. As I have just said, I don’t think the accident had a thing in the world to do with the varicose veins.
“Q. Then coming back, you cannot say, as a matter of fact, that this trauma had absolutely nothing to do with the man’s condition at the present time?
“A. Absolutely and emphatically, my opinion is that the man’s accident had nothing to do with the condition of his limb, with the varicose veins.”

Thomas Ragan, called by defendant, testified (evidence, pages 46-50):

“Q. Doctor, the plaintiff claims that on January 3rd, 1927, * * ® he received a lick on his right leg just below the knee, and that as a result he is unable to do work; from your observation and examination of this man this morning are you prepared to state what his trouble is?
“A. He just has varicose veins — is all I can see.
“Q. Did you hear him describe his symptoms?
“A. Yes.
“Q. Doctor, taking the injury as he has described it, and as you see it here, and from your examination, what effect, if any, did the accident and injury which the plaintiff received have on his present condition?
“A. I don’t think it had any at all.
“Q. What connection is there between his injury and the varicose veins?
“A. None at all.
“Q. Doctor * * * from your observation of this man, do you think he had this varicose condition before he was hurt on January 3rd, 1927?
“A. Yes.'
“Q. Do I understand you to testify, doctor, that varicose veins develop gradually?
“A. Yes.
“Q. Did the injury which he received contribute to the varicosities found?
“A. It could not have done so.
“Q. Now, doctor, * * * only in rare cases where there was infection, or phlebitis, where a wound or bruise could cause varicose veins, can you tell from looking at his leg whether he received such wound or injury?
“A. It looks to have been a minor injury, and if it had caused any trouble at all it would have been in a little area in the immediate vicinity of that * * * but since he has it extending even on the outside of the same leg and the other leg, it shows a systematic condition, which is the usual way those things develop.
“Q. State if you can to the court how long the duration of the varicose veins of any pronounced manner on this man’s right leg?
“A. Well it just looks to me from the condition I see now that he has had varicose veins for at least ten years.
“Q. Now, doctor, your theory is that a trauma could not cause the varicocele he is troubled with?
“A. Well, I don’t see how it could, and there are no medical authorities that are of the opinion that it does.”
O.C. Rigby, called by defendant, testified (evidence, pages 56-58):
“Q. Examined plaintiff?
“A. Yes.
“Q. Doctor, the plaintiff claims that he received an injury to his leg just below the knee on January 3rd, 1927, and that on account of the present condition of that leg he is unable to do any work of a reasonable character — what do you find the condition of his right leg to be.
“A. I saw him here just a few minutes ago, only time I have seen him to know him at all, and at this time I find general varicosity of all the superficial veins of the right and left leg too, extending as far as he pulled his socks down and as high up as he pulled his breeches up — and I find a general varicose condition.
“Q. I will ask you, did that injury and accident on January 3, 1927, from your observation of this man and what was stated, has that got any connection with this varicose condition?
“A. I would say, has none, because the varicose condition is general, not only, in the right leg but the left leg as well; and if it had been connected with any injury at all there would have had to be infection, which would have caused him to have fever, chills and swelling and things like that, and possibly some breaking down of the veins; if there had been a lick or a blow to burst a vein right there, there would be some evidence there; but being down so far below and high up as you can go, the dilated blood vessels, why it could not have been caused from that particular lick or blow or whatever it was that stuck in there.”

W. S. Harmon, called by defendant, testified -to the same effect that Doctors Ragan and Rigby did.

We have read the record carefully and are unable to conclude that the finding of the trial court, that the disability from which plaintiff was suffering at the time of the trial, was not traceable to the accident and injury of January 3rd, 1927, is erroneous.

Plaintiff vigorously complains that he had been offered $250.00 by plaintiff by way of compromise of his claim against him and that he wanted to accept it but that the District Court refused to approve a settlement on that basis.

Be that as it may, this court is without authority to remedy that situation, however much it might desire to do so.

We are convinced that the judgment ap-“ pealed from is correct under the law and the evidence and accordingly it is affirmed.


author: ELLIOTT, J.

text:
    No. -
    First Circuit
    MARSH v. SINGLETARY
    (Feb. 15, 1928. Opinion and Decree.)

      (Syllabus by the Editor)

      1. Louisiana Digest — Automobiles — Par. 4 (a), 4 (b).
    The timely holding out of the left arm when about to make a left turn on a highway is, by custom, the law of the road. Therefore, where the driver of an automobile turns without giving the customary warning, he is negligent and responsible for the damages sustained in the resulting collision with another car trying to pass him.
    2. Louisiana Digest — Automobiles—Par. 9.
    $90.47 is considered sufficient quantum of damages to automobile as a .result of collision. No damages are allowed for loss of use of car because evidence on that point uncertain.
    Appeal from the District Court, Parish of St. Tammany. Hon. P. B. Carter, Judge.
    Action by Howard W. Marsh against Gus Singletary.
    There was judgment for defendant and plaintiff appealed.

      Judgment reversed.
    Morgan & Simmons, Covington, attorneys for plaintiff, appellant.
    Miller & Heintz; Covington, attorneys for defendant, appellee.
   ELLIOTT, J.

Howard H. Marsh claims of Gus Singletary $H0.47 as damages to his automobile, sustained as a result of a collision 'with the defendant on the highway between Talisheek and Pearl River.

The plaintiff alleges that the collision was due solely to the fault and negligence of the defendant in operating his car. He claims that his automobile was damaged to the extent of $90.40 and claims $30.00 on account of the loss of its use for five days.

He alleges that the defendant and himself both were driving west on the highway; that defendant was ahead and going about 10 miles an hour, and that plaintiff came up behind him driving about 20 miles an hour. That wishing to pass, he sounded his horn repeatedly, signifying his desire, in accordance with the rules of the road. That' defendant swerved to the right and plaintiff thinking that he meant for him to pass, speeded up and endeavored to do so; but as he drew up close to defendant’s car and was about to pass on the left hand side of him in the highway, the defendant unexpectedly and without giving notice or warning of what he was about to do, suddenly swerved his car around to the left across the road immediately in front of plaintiff, and so close, that plaintiff in order to avoid striking defendant’s car in the center, turned out further to the left hand side. That by so doing he managed to strike defendant on the front end of his car, but at the same time struck a stump on the side of the road, injuring his car to the extent stated.

The defendant denies that he heard plaintiff’s horn and denies the negligence alleged against him. He alleges that he reached a, turn in the road and turned over to the right side in order that he could make the' turn to the right as the law provides. The evidence indicates that he meant by this averment to say that he reached a point in the road, at which he wished to turn out of it into an intersecting road leading south. He alleges that the collision was due solely to the fault and negligence of the plaintiff. That his car was damaged to the extent of $13.70, which he claims in reconvention against the plaintiff.

Plaintiff's demand against the defendant and that of the defendant in reconvention against the plaintiff were rejected in the lower court, and the plaintiff appealed.

There is a conflict in the evidence as to whether or not plaintiff sounded his horn as. alleged, but not as to what we regard the decisive fact in the case.

The defendant was driving a sedan with the doors closed, at the rate of 8 or 10 miles an hour, going west. The plaintiff came up behind him at the rate of about 20 miles an hour and wished to pass. The plaintiff testifies that as he came up within about 50 feet of the defendant he repeatedly sounded his horn, giving notice of his approach and desire to pass. That defendant apparently in response to his signal, swerved over to the right, and plaintiff thinking it was done in response to his horn, speeded up for the purpose of passing him; that when he got up close, the defendant unexpectedly and without giving notice as to what he was about to do, suddenly swerved across the road to the left immediately in front o'f him and so close that it was impossible to avoid striking him. That he tried to check his car but could not, and to avoid striking defendant’s car in the middle, he quickly swerved his car to the left and by so doing he was forced across the ditch on the left hand side of the road, striking the ■front énd of defendant’s car, but striking at the same time a stump on the side of the road, damaging his car to the extent claimed.

If plaintiff had struck defendant’s car in the middle it would have been turned over and defendant, his wife and baby, might have been killed.

Mr. Dunn, on the back seat of plaintiff’s car, corroborates him as to the speed of the twp cars, and as to plaintiff sounding his horn, and as to what defendant did. Defendant contends that the following testimony of this witness in which he says that he was talking to Toledano, “and when we were just about even with him (defendant), I heard him (plaintiff) blowing the horn and defendant cut his fore wheels to the left and crowded us in the ditch,” is in conflict with that of the plaintiff. But the conflict is more apparent than real. He testifies further as follows:

“Q. How far was he approximately from Singletary when Marsh began to blow his horn?
“A. I have no idea. I was talking to Mr. Toledano and did not' pay any attention.”

Mr. Dunn does not distinctly state that the plaintiff did not blow his horn until he had gotten up even with the defendant; he, in effect, says that he did not' notice the blowing until then. He testifies, as does the plaintiff, that defendant gave no signal or indication of what he was about to do when he swerved his car across the road in plaintiff’s immediate front', and that the collision was unavoidable on the part of the plaintiff.

Mr. Toledano also, on the back seat of plaintiff’s car,' corroborates plaintiff as to the speed of the two cars and as to defendant’s action in swerving his ear to the left across the road immediately in front of plaintiff without giving any notice or signal as to what he was about to do, and that the collision on plaintiff’s part was unavoidable.

Defendant says that he was on the right hand side of the road, driving about 8 miles an hour. That coming to an intersecting road leading south, into which he wished to turn out of the highway, he swerved his car to the right in order to make his turn, and that just as he started to make the turn, the plaintiff hit him. That he did not see plaintiff’s car until it hit him, did not hear plaintiff’s horn, and did not look to the rear before turning to see if a car was close behind him.

Mrs. Singletary, defendant’s wife, with him in the car, says that Mr. Singletary was already on the right hand side of the road and pulled over further in order to make his turn. That the doors of their sedan were closed and that she did not hear any horn.

Mr. Crow standing on the side of the road about a block distant, saw the collision. He did not hear any horn, but would have heard it, he says, if any had been sounded.

Assuming that defendant did not hear plaintiff’s horn, the fact remains undisputed and established, that defendant driving with the doors of his sedan closed, swerved to the right of the road, and then suddenly, and without giving any signal or indication of what he was about to do, turned his car to the left across it for the purpose of turning out of the highway into an intersecting road, and was struck while in his turn, by plaintiff’s car which had come up behind him, and was trying to pass.

The defendant before swerving across the road, should have looked behind to see if anybody was near, or else should have timely held out' his left arm as a signal to anybody close behind him, indicating what he was about to do. The closed doors of his sedan prevented him from hearing, consequently, it was all the more necessary that he either look back before turning, or first hold out his left arm, so that it could he seen by cars coming up behind him, as a signal that he was about to turn across the road.

Timely holding out the left arm when about to turn in a highway, has, since the advent of automohiles, become a law of the road by custom. Plaintiff had a right to this warning by the custom of the road. Defendant was therefore responsible for the collision and liable for the damages sustained.

The plaintiff’s car was damaged to the extent of $90.70.

Plaintiff testifies that he lost the use of his car for five days, and claims damages on that' account. His damage' on account of lost use, is, however somewhat uncertain, and we do not feel able to say that any definite amount has been established on that account.

The judgment appealed from is erroneous. It must, therefore, be reversed and judgment rendered in favor of the plaintiff for the amount of damage sustained.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from herein be annulled, avoided and set aside, and it is now ordered, adjudged and decreed that there be judgment in favor of Howard H. Marsh and against Gus Singletary for ninety dollars and forty-seven cents ($90.47), with legal interest thereon from November 30th, 1926, until paid.

Defendant’s demand in reconvention is rejected. The defendant and appellee to pay the cost in both courts.


author: LECHE, J.

text:
    No. -
    First Circuit
    DAIGLE v. PLAISANCE
    (Jan. 5, 1928. Opinion and Decree.)

      (Syllabus by the Editor)
    1. Louisiana Digest — Automobiles—Par. 4, 4 (a).
    A person driving an automobile, seeing a parked vehicle obstructing the right side of the road, should exercise extraordinary care and prudence before steering to the left and blocking the apparently clear right-of-way of another automobile coming towards him. His failure to do so shows negligence.
    2. Louisiana Digest — Automobiles—Par. 9.
    Three hundred dollars is a sufficient quantum of d.amages, for injuries, resulting from an automobile accident, to the head, arm and shoulder, from which she suffered for about two months.
    Appeal from the Parish of Lafourche. Hon. R. B. Butler, Judge.
    Action by Mrs. Dominique Daigle against Eugene Plaisance.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Howell, Wortham & Howell, of Thibodaux, attorneys for plaintiff, appellee.
    J. A. O. Coignet, of Thibodaux, attorney for defendant, appellant.
   LECHE, J.

This suit is for damages for personal injury suffered by plaintiff as a result of an automobile collision.

Dominique Daigle, his wife and their five children were traveling north in a Ford touring automobile and defendant was going south with his son in a Buick automobile, when the two automobiles collided at at point about opposite another Ford automobile parked on tbe west side of tbe highway approximately one-half mile above the village of Larose. The accident took place in the Parish of Lafourche on the public road, on the right descending bank of Bayou Lafourche, about seven o’clock on Sunday morning, September 5, 1926. Mrs. Daigle, the plaintiff, was seriously injured, the Ford automobile in which she was riding, was badly damaged and was turned upside down. Defendant’s Buick was also, slightly damaged, the left front fender was bent and the tube and casing were jerked off the left front wheel. The question in the case is by whose fault, if any, was the collision caused.

The undisputed facts are that the road where the accident happened is twenty-four feet wide, is graveled in the center, the packed gravel being about fifteen feet in width, and the sides of the road, four and a half feet along each drainage ditch, be-ing covered with loose gravel and grass. A Ford automobile, headed south, was parked on the west side of the road near the ditch and was obstructing the right of way of defendant, who was also headed south.

After the collision, plaintiff’s husband’s Ford, with two. wheels completely wrenched off and a third wheel somewhat damaged, was found turned over, about ten feet north of a point opposite the parked Ford, and defendant’s Buick was headed in the drainage ditch east 'of the road, and about fifty feet south of the parked Ford. The preponderance of the testimony is that the collision occurred almost abreast of the parked Ford, and that the momentum of the two colliding automobiles brought them to the points where they were stopped by their damaged condition. According to the testimony, defendant’s Buick weighed about three thousand pounds, the Ford in which plaintiff was traveling weighed about fifteen hundred pounds, and this accounts for the varying distances at which they were stopped after the collision.

The speed at which the- parties were moving is merely a matter of guess. Each claims that the other was running at great speed, but no one in a moving automobile can say with any degree of accuracy at what speed an oncoming automobile is traveling. For that reason a person driving an automobile and seeing a parked vehicle obstructing his right of way along the right side of the road, should exercise extraordinary care and prudence before steering to the. left and blocking the apparently clear right of way of another automobile cqming towards him.

It is evident from the facts and circumstances, as above summed up, that defendant failed to use proper care and caution in steering his Buick towards the left of the road along the right of way which, according to the well known custom and rule of the road, belonged to plaintiff. Defendant claims that his view was obstructed by an automobile, driven by Clement LeBlanc, also going south about one hundred feet ahead of him. This is not a justifiable excuse. If LeBlanc’s automobile which met that of plaintiff about one hundred feet below or south of the parked Ford, obstructed his view, it was the more incumbent on defendant to be prudent and cautious even to the point of stopping, if necessary, in order to be able to see and make sure that he could pass to the left of the parked Ford without obstructing the right of way of an oncoming automobile.

Defendant in his testimony attempts to show that the road was wide enough to permit him to meet Daigle’s automobile at the place where the Ford was parked, and on a line with it. That may be possible, but automobile drivers, be they ever, so careful, are not such experts as to be able at ordinary traveling speed to safely pass between obstructions with only two or three inches to spare on each side. The reasonable conclusion to be drawn from the facts of this case, is that the collision was caused by the fault and want of care of defendant.

After the collision plaintiff was extricated from under the automobile. She was injured on the head, her arm and shoulder, and was taken to a physician, who dressed her wounds. She was later taken to New Orleans to be x-rayed and she suffered for a couple of months from these injuries. The District Judge allowed her three hundred dollars, and while this amount may appear inadequate, it is the judgment of a painstaking and fair-minded judge, familiar with the condition of the parties, and possibly better situated than this court, to do substantial justice on this branch of the case.

For these reasons the judgment under review is affirmed at the cost of defendant and appellant.


text:
    No. 2801
    Second Circuit
    TRAVELERS INDEMNITY CO. v. ROBINSON-SLAGLE LUMBER CO., INC.
    (Feb. 24, 1927. Opinion and Decree.)

      (Syllabus by the Court)

    1.Louisiana Digest — Automobiles — Par. 4 (a), 4 (b).
    In the absence of regulative ordinance, it is a general rule that where two automobiles are approaching the intersection of two streets that one of them first reaching the* intersection is entitled to the right of way; and under such circumstances it is the duty of the driver of the automobile secondly reaching the intersection to proceed with such care as to permit the exercise of this right of way without danger of collision.
    Johnson vs. Worley, 3 La. App. 675. Spainhour vs. Dulaney, 4 La. App. 552.
    2. Louisiana Digest — Automobiles — Par. 4 (b), 7 (c).
    In the absence of ordinance to the contrary where two automobiles are approaching the intersection of two streets at right angles to each other, the automobile first entering the intersection is entitled to the right of way, generally speaking; and where the driver of the automobile secondly reaching the intersection fails to see the automobile first reaching it until he is right on the automobile, his negligence in so entering the crossing and not keeping a lookout ahead of him, constitutes the proximate cause of the collision.
    Berry on Automobiles, 834.
    3. Louisiana Digest — Automobiles — Par. 7 (c); Negligence — Par. 26, 27.
    A defendant is liable in damages resulting from his negligence if by proper care he could have avoided the damage, even if the person injured was originally guilty of negligence and created the situation of danger to himself.
    Dill vs. Colley, 3 La. App. 305.
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo. Hon. E. P. Mills, Judge.
    Action by The Travelers Indemnity Co. against Robinson-Slagle Lumber Co.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Melvin F. Johnson, Shreveport, attorney for plaintiff, appellee.
    Thatcher & Webb; Alex F. Smith; of Shreveport; attorneys for defendant, appellant.

      STATEMENT OP THE CASE.
    A motor truck owned by defendant and driven by its employee in tbe scope of bis employment collided witb an automobile belonging to Ivy Watson and driven by bis daughter and damaged it to tbe extent of $1665.00. Tbe automobile was insured by plaintiff against damage in such manner and tbe plaintiff paid to Ivy Watson tbe amount of bis loss and took from him a subrogation of bis claim against the defendant and brought this suit to recover from defendant tbe amount it bad paid to Ivy Watson. Plaintiff alleged that tbe collision and resulting damage to Ivy Watson’s automobile was tbe result of negligence on tbe part of tbe driver of defendant’s motor truck, and that at tbe time of tbe accident tbe driver was acting' within tbe scope of bis employment.
    Defendant denied that tbe driver of its motor truck was negligent, and for want of information also denied that at tbe time of tbe collision its employee was acting within tbe scope of bis employment'. And in tbe alternative it alleged that if its driver was negligent that tbe driver of the damaged automobile was guilty of concurring and contributory negligence and that plaintiff was barred of recovery thereby.
    On these issues tbe case was tried and there was judgment in favor of tbe plaintiff for tbe full amount claimed and defendant appealed.
   REYNOLDS, J.

OPINION.

Tbe amount of damages sued for is abundantly established by tbe evidence and is nowhere disputed by defendant. It, therefore, follows that tbe only question in controversy is whether tbe driver of defendant’s motor truck was negligent and if so, whether bis negligence was tbe proximate cause of tbe collision.

Tbe fact that tbe driver of tbe damaged car reached the intersection of tbe two streets first is not denied and is clearly established by tbe evidence.

W. L. Endsley testified, page 52:

“Q. Who reached that intersection first?
“A. Before tbe wreck?
“Q. Yes.
“A. Why Miss Watson got there first and would have gotten by if be bad kept the way be was coming or turned to his-right, but be followed her in- — don’t you see?”

Miss Watson is the daughter of Ivy Watson and was driving tbe automobile that was damaged by defendant’s motor truck; and the other person referred to by tbe witness is tbe driver of defendant's motor truck.

Sam Rountree testified, page 84:

“Q. Who reached that intersection first?
“A. Miss Watson.
“Q. And if tbe darkey bad gone straight ahead be would have missed her, is that true?
“A. I guess so.”

Prom this evidence it is clear that Miss Watson bad tbe right of way over tbe intersection.

Tbe evidence also makes it clear that she bad driven her car beyond tbe center of tbe intersection before tbe collision occurred.

She testified, pages 2, 5, 6, 13.

“Q. Did you have a collision at tbe corner of Garden and Allen streets?
“A. Yes, sir; after I had passed tbe center of tbe street.
“Q. Just describe that accident in your own words?
“A. Well, -I started from home on Allen avenue going south up the street and 1 changed gears up the street; I always slow down there because there is a ‘slow’ sign there and I have lived out there„ almost twenty years so that it is a habit that I have always to slow down for the corner —this comer. There were cars on the left hand side by the store and I could not see up Garden street and I got to the intersection of the streets and then I saw this car coming at me fast and I saw that it was going to hit me in the middle so I speeded up my machine and it hit me just as I passed the center, hit me in the back, when he could have gone straight on or turned and avoided the collision.
“Q. At the time of the accident or collision, Miss Watson, where was your car as regarded the intersection?
“A. It was past the intersection of the street almost to the other side of the corner. It' was past the intersection.
“Q. Were you about in the middle of the intersection of the two streets- when he struck you?
“A. No; I saw him when I was in the middle; just before I got to the corner.”

W. L. Endsley testified, pages 48 and 49:

“Q. I wish you would look at that piece of paper on the table there marked P-3 and testify to the best of your knowledge where the actual collision took place?
“A. Marked which?
“Q. This is marked P-3. There is the corner and here is Castle’s store.
“A. (Witness examining document): Here is Garden street. Well, she was more past the center of the street on into Allen across Garden than she was back the other way — do you want me to go on?”

Sam Roundtree testified, pages 80 and 83:

“Q. He ran into the side of the car striking the rear part of the left fender?
“A. Yes, sir.
“Q. In other words, she had almost gotten across?
“A. Yes, sir — just a little more, yes, sir.”
“Q. You testified that Miss Watson’s car had gotten beyond the center of the street?
“A. Yes, sir.”

From this evidence it is clear that' Miss Watson’s car was run into by defendant’s motor truck after it was beyond the center of Garden street and that defendan’ts motor truck was on the wrong side of the street for the direction in which it was moving at the time of the collision.

The evidence further makes it clear that the driver of defendant’s motor truck was not looking ahead at the time of the collision and that he entered the intersection of the two streets at a high rate of speed.

As to this, Miss Watson testified, pages 2 and 6:

“* * * * * i saw this car coming at me fast and I saw that it was going to hit me in the middle so I speeded up my machine and it hit me just as I had passed the center, hit me in the back, when he could have gone straight on or turned and avoided the collision.”
“Q. Miss Watson, I will ask you to take the paper which has been handed to ■us by the court and to roughly indicate on that plat, if you can, the position of the cars at the moment of collision?
“A. He was coming right up here and I was coming across here and I saw him right here and I saw he was going to hit me in the center and I speeded up my car and just before I got right he swerved around and followed me and hit me in the back; right here in the back on that wheel. And if he had gone this way or this way he could have avoided it.”

O. D. Roshton testified, page 37:

“Q. Did you see the Ford truck in that block?
“A. Yes, sir.
“Q. Under what circumstances?
“A. When I crossed the railroad track the Ford truck passed me going at a high rate of speed and the reason I noticed him he cut in ahead of me and I had to go into the curb to keep him from hitting me, hitting- my front fender. That is why I paid attention to him. He went on up Garden street towards Allen avenue.
“Q. You did not see the collision?
“A. No, sir; I happened to be looking the other way and I did not see until after they had hit'. Then I heard the racket, and looked up and it was right in front of me.”

W. L. Endsley testified, page 49:

“Q. Was there any reason that you saw why he could not have proceeded straight on ahead?
“A. No, sir; he could have went straight ahead or wheeled to the right and missed her if he had knowed what he was doing.”

Z. P. Green testified, pages 24 and 25:

“Q. Mr. Green, what did the darkey tell you?
“A. He said that he was going so fast until he didn’t se.e her until he was right on her and then he said, T done all I could to stop’, which the evidence showed that he did. He skidded his wheels about five feet (50 from where he hit the car.”

R. J. Mehan testified, page 32:

“Q. How fast were you driving, James?
“A. Twenty-five • (25) or thirty (30) miles an hour.
“Q. When did you first see the other car?
“A. When it was right to the corner.
“Q. How far was it from you?
“A. I was right up on her when I seen her.”

From this evidence it is clear that' defendant’s motor truck entered the intersection of the two streets where the accident occurred at a reckless rate of speed and without the driver looking ahead.

From all the evidence, we are convinced that Miss Margaret Watson, the driver of the damaged automobile, was without fault and that at the time of the accident she showed a cool head and unflinching nerve, and that the proximate cause of the accident was the conduct of the driver of defendant’s motor truck in driving the truck into the intersection of the two streets at a reckless rate of speed and without looking ahead of his truck.

In its answer defendant denied that at the time of the collision the driver of its motor truck was acting within the scope of his duty to it, but it does not press this defense in its brief, and the evidence makes it perfectly clear that the driver of the motor truck was in defendant’s employ and that at the time of the accident he was acting within the scope of his employment.

For these reasons, it is ordered, adjudged »nd decreed that the judgment appealed from be affirmed.


author: MOUTON, J-.

text:
    No. -
    First Circuit
    BROWN v. WEBER-KING LUMBER COMPANY
    (Jan. 5, 1928. Opinion and Decree.)

      (Syllabus by the Editor)
    1. Louisiana Digest — Master and Servant —Par. 160, 160 (i), 160 (j).
    In suits for recovery of compensation under the Workmen’s Compensation Act No. 20 of 1914 as amended, in eases of death of the employee, the nonexistence of persons entitled to a priority of action must be affirmatively shown in order to bring plaintiff’s claim with the statute.
    2. Louisiana Digest — Master and Servant —Par. 160, 160 (j).
    Dependency is not shown within the meaning of the Workmen’s Compensation Act No. 20 of 1914 as amended where the money paid by the deceased employee to a sister appeared to be nothing more than for board and not a contribution to her support.
    (Editor’s Note: See Section 8 (h) of Act' 20 of 1914 and Section 18, Subsection 2 (e), Par. 8, of Act 85 of 1926.)
    Appeal from Vernon Parish. Hon. H. A. Burgess, Judge.
    Action by Annie Brown against Weber-King Lumber Company.

      There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Ferguson & Newman, of Leesville, attorneys for plaintiff, appellant.
    C. E. Hardin, of Lake Charles, attorney for defendant, appellee.
   MOUTON, J-.

L. J. Bowie was killed in a railway collision in August, 1926, while in the employ of defendant company. Plaintiff, the sister of L. J. Bowie, brings this suit for compensation under ‘the provisions of the Employers’ Liability Act, on account of her alleged total dependency on decedent. She appeals from a judgment rejecting her demand.

Plaintiff was married twice and had five children by her first husband. Three of the children were living with her at the time of the trial, her husband having deserted her about a year prior thereto. She testified that her deceased brother gave her five dollars a week to buy groceries. He lived in her house, she cooked and washed for him, and she says he ate his three meals a day; that she fixed “his bucket to go to the woods”. Upon the foregoing facts is based the claim of dependency on deceased. On this phase of the issue, the trial Judge said that what the deceased was doing for plaintiff appeared to him “to be nothing more than board he paid her, and not support”. So it appears to us. The fact' is, he was paying a moderate amount per week for the benefits he was receiving from plaintiff. Besides, the proof shows plaintiff to be a hard-working woman who washed and ironed for others. It is not to be believed she was doing that kind of work without remuneration. With evidence of the character above referred to, plaintiff was not, within the meaning of the statute, a dependent on her deceased brother.

The following questions were asked plaintiff:

“What relation, if any, were you to L. J. Bowie?
“A. He was my brother.
“Are your father and mother living?
“A. No, sir.
“Was your brother married?
“A. No, sir.”

This is all the evidence in the record that was offered by plaintiff on the “relation of dependency” on which her claim for compensation is grounded. On this subject the statute reads, as follows: “The relation of dependency must exist at the time of the injury and at the time of the death.” The injury and death occurred August 13, 1926, and the case was tried the year after, in 1927. Plaintiff, in answer to the question as to whether her father and mother were living, as above referred to, said they were not. This answer had reference to the time of the trial. They might have been living when the accident and death occurred. The proof should have • shown they were dead at that time to bring the claim of the plaintiff within the requirements of the statute. In the Gross et al. vs. Millers Ind. Underwriters, 153 La., p. 257, 95 South. 709, the court held that to recover in such cases, the non-existence of persons entitled to a priority of action, must be affirmatively shown. In that respect plaintiff has failed to make the required proof; also, to establish her dependency.

Judgment affirmed.


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    No. -
    First Circuit
    KENNEDY v. CONSUMERS ICE CO.
    (Jan. 5, 1928. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Attorneys—Par. 22.
    Although, an attorney is not authorized by a resolution of the board of directors of a corporation to act as such, nevertheless, where the president authorized him and the directors and stockholders availed themselves of his services and (profited from these services, he is entitled to remuneration for his work from the corporation.
    2. Louisiana Digest — Attorneys—Par. 62 c.
    $1060.00 is considered a sufficient quantum meruit for services of an attorney to liquidate the affairs of a corporation although his advice was not followed after the property was acquired by one stockholder.
    Appeal from the Parish of Lafayette. Hon. W. W. Bailey, Judge.
    Action by John L. Kennedy against Consumers Ice Company.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    ' Voorhies & Labbe, Lafayette, attorneys for plaintiff, appellee.
    G. E. Garner, Little Rock, Ark., attorney for defendant, appellant.
   LECHE, J.

Plaintiff, an attorney at law, brought this suit to recover fifteen hundred dollars as an honorarium for professional services in the matter of the liquidation and dissolution of the defendant corporation and the sale of all it's ¡property and other assets.

The defense is summarized in the brief of counsel, who says that the issues before this court are:

“(1) Did the plaintiff have a contract to dissolve the corporation and what would be a reasonable fee for so doing?
“(2) What would be a reasonable fee for the services actually rendered by the plaintiff on a quantum meruit?”

Although plaintiff’s employment is not shown by resolution of the Board of Directors or other governing authority of the defendant company, the evidence is over-, whelmingly to the effect that the president of the company did employ him, that the directors and stockholders availed themselves of his services and that the corporation itself treated with him as its employed attorney and made use of and profited from his professional services, so that the first part of the interrogatory propounded by defendant may be answered unequivocally in the affirmative. Berlin vs. Cusachs, 114 La. 741, 38 South. 539; Mayville Canal Co. vs. Lake Arthur Rice, Mill, 119 La. 459, 44 South. 260.

Plaintiff does not allege nor does he attempt to prove that any fixed remuneration was stipulated between himself and' defendant when he was employed, and therefore the amount of his demand must necessarily be fixed as in the ease of a demand based on a quantum meruit. The amount was fixed by the trial judge in accordance with the fees usually charged for such services as were rendered by plaintiff, as shown by the testimony of local members of the bar, and we believe it is fair to both parties.

It appears from the record that the defendant company had agreed to accept from a Mr. S. R. Morgan of Little Rock, Arkansas, an offer to purchase its ice plant together with all the accessories of the plant. The president of the company, Mr. G. A. Rodemacher, and Morgan, the prospective purchaser, called on plaintiff for legal advice as to the proper mode to pursue, in order to carry out the offer and complete the sale. In this interview it was agreed that plaintiff would proceed to draw up all the necessary papers and documents, to liquidate the affairs of the corporation with a view of transferring all its assets to Morgan and dissolving its incorporation. In the meanwhile Rodemacher transferred enough of his stock to Morgan, to give the latter a controlling interest in the company. Meetings of the Board of Directors and of the stockholders were held, and at these meetings resolutions drawn up under the guidance and instruction of plaintiff were adopted. It seems that Morgan was buying with a view of reselling the plant to the Louisiana Public Utilities Co., Inc., and the latter company’s attorneys, in order to safeguard their client’s interest, and that they might acquire a valid title, had a good deal of correspondence with plaintiff pending the transfer of the property to Morgan. After Morgan had acquired the property, he refused to carry out the plan of liquidation mapped out by plaintiff and consented to by the Board of Directors and the stockholders. From that time plaintiff’s connection with the transaction was terminated. Such are the facts as we gather them from the evidence in the record.

The trial judge rendered judgment in favor of plaintiff for one thousand and sixty dollars and we see no error in that finding.

For these reasons the judgment appealed from is affirmed.


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    No. -
    First Circuit
    WILLIS v. WORD ET ALS.
    (Jan. 5, 1928. Opinion and Decree.)

      (Syllabus by the Editor)
    1. Louisiana Digest — Courts—Par. 126, 128.
    Regardless of how an action is classified, if the money demand is within the appellate jurisdiction of the Court of Appeal, it has jurisdiction of the case.
    2. Louisiana Digest — Judgment—Par. 134.
    The doctrine that the acts of a defacto officer cannot be attacked collaterally does not apply to the defendant in an action brought under the intrusion into office Act No. 156 of 1868 (R. S. 2593) and Act No. 19 of 1879; the demand being similar to one based on judgment which is null.
    Appeal from the Parish of Vernon. Hon. Hal. A. Burgess, Judge.
    Action by Dr. J. D. Willis against Dr. Brown Word et als.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Ferguson & Newman, Leesville, attorneys for plaintiff, appellant.
    Thompson & Ferguson; A. B. Cavanaugh, Leesville, attorneys for defendant, 'appellee.
   LECHE, J.

This action was instituted in the name of the State of Louisiana on the relation of Dr. J. D. Willis, and its purpose as averred in the petition, is to have Dr. J. D. Willis recognized as parish health officer for the Parish of Vernon, and to enjoin Dr. Brown Word from interfering with him' in the exercise of the functions of that office or in the enjoyment of its emoluments. Relator’s demand was rejected by tbe District Court, and he bas appealed.

Tbe action is not brought under tbe intrusion info office Act 156 of 1868 (R. S. 2593) nor is it one to remove a person from office under Section 6 of Article IX of tbe Constitution, both of which must be instituted by the District Attorney or the Attorney General, but relator assumes in bis petition that be is tbe actual incumbent of tbe office of Parish Health Officer for tbe Parish of Vernon. Proceeding under such assumption, be seeks to enjoin Dr. Brown Word from interfering with him in tbe exercise of tbe functions of that office, to enjoin tbe Police Jury of tbe Parish of Vernon and tbe Parish Treasurer of that parish from paying tbe salary of that office to Dr. Brown Word, .and be prays for personal judgment against Dr. Brown Word for two hundred dollars, alleged to have been collected by tbe latter for two months’ salary.

It matters not bow tbe action be classified or denominated, we nevertheless believe that it comes within our appellate jurisdiction under tbe moneyed demand contained in tbe prayer of tbe petition and we see no- ground to dismiss tbe appeal as prayed for in appellee’s motion.

Assuming that an- action of this kind is sanctioned by tbe law of this state, it is only logical and reasonable that plaintiff should, as a condition precedent to obtain tbe relief which be seeks, allege and prove bis muniments of title to tbe office which be claims to bold. Tbe District Court held, and we believe properly, that relator bad failed to do so, and accordingly rejected bis demand.

Relator does allege that be is tbe duly appointed health officer of tbe Parish of Vernon, for having been elected to that office by tbe Board of Health of said Parish on February 1, 1927, but be does not allege that be ever qualified for that office by taking the oath required by tbe Constitution. It is true that on tbe trial of tbe case on May 20, 1927, be offered in evidence an oath of office taken April 21, 1927, not shown to have been filed or recorded, but this oath was taken more than two months after bis alleged election. Under the provisions of Act 19, p. 43 of 1878, be bad already forfeited bis right to that office. He alleges that be was elected February 1, 1927, and be should have taken bis oath of office' within 30 days thereafter.

According to tbe provisions of Act 296, p. 530, of 1926, Parish Boards of Health are elected by Police Juries for their respective parishes, and such Parish Boards of Health appoint with tbe advice and consent of tbe State Board of Health, a Parish Health Officer, who must be a licensed physician. It appears further that tbe members of tbe Parish Board of Health by whom relator claims to have been appointed, bad like relator, also failed to take tbe official oath, -so that when they appointed relator, they bad no official standing and did not constitute an organized legal body. Relator argues that defendants bad no right to collaterally attack the official standing of tbe members of tbe Board of Health by whom be bad been appointed. Tbe doctrine that tbe acts of a de facto officer cannot be attacked collaterally bas no application here, for tbe act which is attacked in this case forms tbe very basis of relator’s demand. Tbe demand in this case may be assimilated to one which is based on a judgment which is null. A defendant in such a case may always attack tbe validity of tbe judgment'. Paxton vs. Cobb, 2 La. 139.

We believe tbe District Court properly rejected relator’s demand, and for that reason, tbe judgment appealed from is affirmed.


author: ' ELLIOTT, J.

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    No. -
    First Circuit
    BLANCHARD v. GILMORE
    (Jan. 5, 1928. Opinion and Decree.)

      (jSyllabus Vy the Editor)

    1. Louisiana Digest — Evidence—Par. 53, 59; Obligations — Par. 23.
    Under Article 2232' of the Civil Code, the burden of proof is on the plaintiff to prove according to Article 2245 of the Civil Code, that the document sued on was signed by the party supposed to sign it.
    2. Louisiana Digest — Evidence—Par. 53, 59; Obligations — Par. 38.
    Where plaintiff sues on a supposed assignment of a debt due a third party, the burden of proof is on the plaintiff to show that the defendant owed this third party money. Where there is no evidence to that effect, judgment cannot be granted.
    3. Louisiana Digest — Evidence—Par. 53, 59.
    The burden of proof to show that the first agreement was changed and a second entered into concerning the same matter, is on the plaintiff who desires to recover on that agreement'.
    Appeal from the District Court, Parish of St. Mary. Hon. James D. Simon, Judge.
    Action by C. A. Blanchard against W. T. Gilmore.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    C. A. Blanchard, Morgan City; and Elm-met Alpha, New Orleans; attorneys for plaintiff, appellant.
    W. T. Gilmore, Morgan City; and James Parkerson, Franklin; attorneys for defendant, appellee.
   ' ELLIOTT, J.

C. A. Blanchard sued Walter T. Gilmore in his own name and behalf for $131.00 on a written order which purports to have been signed by Edith Campbell, addressed to Walter T. Gilmore. The order states that he is holding said amount for her account, and authorizes him to turn it over to Mr. Blanchard, attorney of Addie and Lizzie Wesley. It is also stated in the order that the understanding is, that when Mr. Blanchard receives the above money, he will dismiss suits Nos. 15,065 and 15,069, on the docket of the District Court of the Parish of St. Mary.

Plaintiff alleges that Edith Campbell assigned to him all her rights in the money called for in the order. He further claims that defendant owes him $44.85, as his share of a fee which the defendant withholds from him.

Defendant denies that he is indebted to the plaintiff. He denies that plaintiff is the owner of the order sued on.* He alleges that plaintiff has no right or authority to prosecute a suit thereon in his own name and for his personal benefit; he alleges that the $131.00 claimed by plaintiff belongs to him; that it represents a fee charged Edith Campbell by him for expenses and services rendered. That he is not indebted to, and has no money in his possession belonging to her.

The parties urged numerous exceptions to the admissibility of evidence, but the only one urged on appeal, is by the plaintiff. His stenographer was asked to say whether plaintiff betrayed surprise, anger or disappointment, after conversing with defendant over the telephone about the amount due him. The defendant objected to the question as calling for the opinion of the witness. The court ruled that the witness could be asked what plaintiff did or said, and what she saw, but that whether plaintiff manifested surprise, anger or disappointment was opinion evidence, and therefore not permissible.

The ruling was correct.

When plaintiff offered in evidence the order for $131.00 sued on, the defendant objected to it on the ground that it purported to be a private act and contained hearsay statements made out of defendant’s presence, by one, not a party to the suit, and that the signature of Edith Campbell had not been proved. The order is dated New Orleans, December 2nd, 1922, and purports to have been witnessed by P. L. Winchester and C. A. Blanchard. The name of Edith Campbell and that of •the witness Winchester, and the words “her x mark”, are written in green ink. Mr. Blanchard’s signature as a witness is written with black ink. Mr. Blanchard, speaking of the document, says that it came to him in the mail from New Orleans, and he attached his name to it as a witness, but admits that he did not witness it being signed. He started to say, as we understand it, that subsequently she had admitted to him that she had signed it, but before the statement was made, the defendant' objected. The court sustained the objection to what he was about to say, and no further proof on the subject was ever offered. This ruling is not urged in plaintiff’s brief. There is nothing in the record with which her mark cán be compared, supposing a mark to be susceptible of satisfactory proof in that way.

'The burden of showing that this document was executed and signed by Edith Campbell was upon the plaintiff, C. C. Art. 2232. Her signature to the document sued on was not proved in either of the ways provided for by law, C. C. Art. 2245.

There is also another reason why the judgment appealed from must be affirmed. Defendant testifies that the $131.00 claimed by plaintiff under said order represents a fee charged Edith Campbell by him for expenses and services rendered, and that he is not indebted to Edith Campbell and has no móney in his possession belonging to her.

In order for plaintiff to recover, he must show that defendant holds this money for Edith Campbell. She was not called as a witness against defendant to substantiate that he owed her. The record contains no evidence contradicting Mr. Gilmore, as to what he says on the subject, and showing that he in fact holds this money for account of Edith Campbell. Such being the case, the judgment rejecting plaintiff’s demand on this order was correct. It is no use to consider the further defense that plaintiff has no right to institute suit on this order in his own name and to collect for his personal use and benefit.

Coming now to the claim for $44.85, plaintiff alleges and testifies that this amount is due him by defendant, by virtue of a change made in an agreement between him and the defendant concerning the division of a fee.

Plaintiff wrote defendant a letter on this subject, January 29th, 1924. This letter closes with the following statement: “I am, however, enclosing you check for the sum of $2'24.23 and if you are willing to let the last agreement stand, in view of the work I did in the matter, you may remit me the difference in the sum of $44.85.” Plaintiff testifies that in writing this letter, he thought that defendant might have forgotten their second agreement, in which event it was his intention to not insist on it, but that meeting defendant, he handed the letter to him in person, at the same time mentioning the matter to him. That defendant informed him that he remembered the agreement, and in compliance therewith, would return him $44.85.

The burden of proof to show that this first agreement was changed and a second one entered into concerning the matter, taking the place of the first, was on the plaintiff. .

The defendant testifies that the first agreement was. not changed; that the amount belongs to him and that he is not indebted to plaintiff on said account.

In view of plaintiff’s explanation as to how he came to write defendant, submitting the matter to him to be acted on as he saw proper and was willing, the letter may be left out of view and not taken into account, and there remains no corroborating evidence supporting either side. But the burden of proof is on the plaintiff, and his claim is not established by a preponderance of evidence on the subject.

The judgment appealed from is correct.


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    No. -
    First Circuit
    U. S. SLICING MACHINE CO. v. GONDOR JOSEPH
    (Feb. 15, 1928. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Sales—Par. 4, 309.
    The sale of a movable by a contract of sale in which the purchaser supposedly rents the machine until the purchase price is paid, is in effect, a credit sale, and the purchaser, therefore, can give clear- title to third party. See Act 52 of 1877, Section 2.
    Appeal from the District Court, Parish of Lafayette. Hon. W. W. Bailey, Judge.
    Action by U. S. Slicing Machine Company against Gondor Joseph.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Sandoz & Sandoz, Opelousas, attorneys for plaintiff, appellant.
    Debaillon & Meaux, Lafayette, attorneys fqr defendant, appellee.
   ELLIOTT, J.

U. S. Slicing Machine Co., Inc., claims of Gondor Joseph a slicing machine described in the petition, alleging that it is the owner, that said Joseph has possession of it, and withholds same from the petitioner.

Plaintiff alleges that its ownership results from a written contract entered into between it and W. B. Broussard. The contract is annexed to and made part of its petition.

The defendant for answer alleges that he is the owner of the machine. That the document set out by the plaintiff as showing its ownership, shows instead that the plaintiff sold the machine to said Broussard, and he alleges that he purchased it from Broussard.

The controversy is as to the legal effect, meaning an intendment of the parties to the contract in question. The District Court held that it was in fact a sale and that Broussard became the owner by purchase from the plaintiff, and that defendant was the owner of same by purchase from Broussard. From a judgment rejecting its demand, the plaintiff appealed.

The document is called, in the body of the document itself, by the plaintiff and by said Broussard, a lease. It says that U. S. Slicing Machine Co., Inc., has rented the machine to W. B. Broussard for the term of ten months in consideration of which the lessee agrees to pay the' lessor the sum of $250,00 as rent for the machine. The sum of $25.00 was to be paid at the time the agreement was entered into and $25.00 per month was to be paid on the first of each month thereafter until the total sum amounted to $250.00, upon which it provides that “The lessee may elect to become the owner of the property and such election shall vest title .to said property in the lessee.”

It contains a further provision to the effect that it shall not be cancelled by the lessee; that it covers all the agreements of the parties and that the property is not placed on trial. There are other stipulations in the contract but they have no bearing on the question of ownership.

The $25.00 which Broussard paid at the time he received the machine is all that he ever paid. He, not long afterwards, sold and delivered it to Joseph. The contract between the Slicing Machine Company and Broussard was in effect a sale and was so intended by them at the time it was entered into. Broussard paid $25.00 and bound himself unconditionally in the contract to ¡pay $25.00 each month thereafter, in addition, until the total sum paid amounted in the aggregate to $250.00, upon which, he, as a result' and without further agreement or payment became the absolute owner. What the parties called rent was in effect the price of a credit sale. Bulkley vs. Whited & Wheeless, 104 La. 125, 28 South. 922; Forsman vs. Mace, 111 La. 28, 35 South. 372; Barber Asphalt Paving Co. vs. St. Louis Cypress Co., 121 La. 152, 46 South. 193; Act 52 of 1877, Section 2.

The judgment appealed from is correct. Judgment affirmed, plaintiff and appellant to pay the cost in both courts.


text:
    No. 3147
    Second Circuit
    ADAMS v. LA. RY. & NAV. CO.
    (Feb. 3, 1928. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Railroads—Par. 86, 88.
    Act No. 70 of 1886 provides that in suits against railroad companies for killing or injuring live-stock plaintiff need only prove the killing or injury in order to recover, unless the defendant shows that the killing or injury was not the result of its negligence; and Act No. 110 of 1886 provides that there shall not be any responsibility on the part of railroad companies for killing or injuring live-stock where they have their line of track fenced in and and kept in good order and have erected and maintained in good order suitable, cattle-guards at crossings; and the only effect of a railroad company’s failure to fence its tracks and maintain such fences in good condition and to erect and maintain in good order suitable cattle-guards at crossing, is to place upon it the burden of proving that the killing of or injury to livestock was not caused by its negligence.
    Sanders vs. 111. Cent. R. R. Co., 127 La. 917; 54 South. 147.
    Appeal from the Ninth Judicial District Court of Louisiana, Parish of Raipides. Hon. R. C. Culpepper, Judge.
    Action by Jessie Adams against Louisiana Railway & Navigation Company.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Gus A. Voltz, Alexandria, attorney for plaintiff, appellant.
    Peterman, Dear & Peterman, Alexandria, attorneys for defendant, appellee.

      STATEMENT OF THE CASE.
    Plaintiff sues defendant for $300.00 as the value of two mules struck and killed hy one of defendant’s trains on December 11, 1925.
    Defendant admitted the killing of the animals but denied liability, alleging that the animals were struck in the night time, and that a dense fog existed at the time and place they were killed, and that this prevented the engineer from seeing the animals in time to stop the train before hitting them.
    On these issues case was tried and there was judgment for defendant and plaintiff appealed.
   REYNOLDS, J.

OPINION.

Defendant introduced the testimony of W. T. McDermott, the engineer, and Walter Lucine, the fireman of the locomotive attached to the train that killed plaintiff’s mules.

They testified that they were at their respective posts of duty and keeping a constant lookout ahead for foreign objects that might be on the track; that the speed of the train was between forty-five and fifty miles an hour; that the animals were struck at about 3:30 o’clock a. m. and during a dense fog; that the train equipment was in good working order and the locomotive headlight shining brightly; that the darkness of night and the fog made it impossible for them to see farther than from ten to fifteen feet ahead of the locomotive; .that the train could not be stopped in that distance; that the mules were not seen until within from ten to fifteen feet of the pilot of the locomotive and that it was impossible then to stop the train before striking them.

Plaintiff made no effort to contradict this testimony but sought to show that defendant had fenced its track and had allowed the fence to decay and fall down, and in his brief he says:

“It is plaintiff’s contention that the witnesses for the defendant company testified that the train was run properly and that there was no negligence in the operation of the train. Even though this be correct the proper operation of the train would not relieve the railway company from liability for permitting a. fence to remain down that had been deliberately taken down by its employees.”

We cannot concur in this conclusion.

We know of no law requiring railroad companies to fence their tracks or, where they have done so, to keep the fences up. If they do these things the effect is to put upon a plaintiff suing for the killing or injuring of live-stock the burden of proving it was negligent in the operation of its train (Act No. 110 of 1886), whereas if it does not do these things, the effect is to put upon the defendant in such case the burden of proving that the killing or injury was not the result of its fault.

The Supreme Court so held in Sanders vs. Ill. Cent. R. R. Co., 127 La. 917, 54 South. 147, and that decision has not been overruled or modified.

Under the law and the evidence the judgment appealed from is right and accordingly it is affirmed.