author: HIGGINS, J.

text:
    No. 11,120
    Orleans
    GIBBENS & GORDON, INC., v. CRANE COMPANY
    (December 3, 1930. Opinion and Decree.)
    (January 5, 1931. Rehearing Refused.)

      Henry & Cooper and A. M. Suthon, of New Orleans, attorneys for plaintiff, appellee.
    Fred G. Yeith, of New Orleans, attorney for defendant, appellant.
   HIGGINS, J.

The plaintiff sued the defendant for damages for an alleged breach of contract resulting in the plaintiff incurring certain expenses for making the necessary changes in material furnished by defendant to make it comply with the ruling of the United States Steamboat Inspection Service. The petition alleged that the defendant had warranted that the material would be accepted by the steamboat inspectors, who rejected it after their inspection. The defense is that the rejection of the material was unwarranted because the Board of Supervising Inspectors had approved the Crane lap joint, which was the cause of the rejection of the material, by resolution in 1907 to the effect that the committee could see no objection to the Crane lap joint, when constructed according to the requirements of section 19 of rule 2. There was judgment in favor of the plaintiff and defendant has appealed.

A narration of the facts as we appreciate the evidence is as follows:

Plaintiff had a contract for the repair of a steamboat which was used by a railroad in a continuous service of transferring cars across the Mississippi river between Vidalia, Louisiana, and Natchez, Mississippi. This work consisted of the changing of all the boilers and other appurtenances and installing new boilers, and had to be done while the boat was in continuous operation, two boilers being used while two others were installed. On April 2, 1926, the plaintiff, in writing, ordered certain pipe bends and similar material, which it used in the installation of the new boilers on the boat. The plaintiff’s order contained the following provision:

1 “You are to furnish us with certificate showing all materials in the above have been manufactured and tested as required and will be accepted by the United States Steamboat Inspection Service.”

Defendant shipped the material from its Birmingham factory in apparent compliance with the order and the plaintiff used it in installing the boilers. The defendant furnished the following certificate in connection with the shipment:

“CERTIFICATE OF TEST.
“I hereby certify that the following material shipped to Crane Company, Birmingham, Alabama, account their order, B. A. 8301 and 8498 Atlanta orders 296 and 240 was manufactured and tested in accordance with U. S. Steamboat Inspection Service and that same stood test satisfactorily.
“Furthermore that same was tested in accordance with National Tube Company’s specifications A-53-24 A.S.T.M. and that same stood' test satisfactorily.”

On June 5, 1926, two inspectors of the United States Steamboat Inspection Service inspected the plaintiff’s work and material used therein, and on June 7, 1926, wrote plaintiff informing it that the flanges on the steam pipes connecting with the new boilers were not approved and could not be used until the flanges hau been changed and installed in accordance with the general rules and regulations of the Board of Supervising Inspectors (rivers), edition of April 4, 1924, rule 2, section 27. In short, the rejection was due to the flanges being flexible, instead of rigid on the pipe. Immediately upon receipt of this letter the plaintiff’s representative notified the defendant’s representative of the rejection and called his attention to the warranty that the material would be accepted by the II. S. Steamboat Inspection Service. On the same day, or the day following, the representatives of plaintiff and defendant held a conference with Captain Cobb, one of the inspectors, who explained that, under the existing regulations, the flanges attached to the pipe had to be made rigid in one of the three methods allowed in the general rules and regulations, which he showed them and of which he furnished a copy. The defendant’s representative, apparently convinced of the correctness of the ruling, suggested that the plaintiff return the material to the Birmingham factory and that new material would be furnished to comply with the regülations. Thereupon the plaintiff’s representative explained that, due to the fact that the boat had to remain in continuous operation, it was impossible to send back the material, and that the Crane lap flanges would have to be made rigid without disassembling and reinstalling them. The defendant’s' representative did not protest against this being done and plaintiff, at an expense of $582.04, the amount of this suit, made the flanges rigid by welding them to the pipe. The. work was then reinspected and approved. On July 19, 1926, plaintiff presented its bill and defendant refused to pay. This suit was then filed.

The Crane lap flange is a special, patented article which fits loosely at the end of a piece of pipe, so that two such flanges when the pipe ends are joined together form the Crane lap joint.

It appears that, sometime after the work was completed arid approved, the defendant obtained a ruling from the supervising inspector-general at Washington to the effect that the Crane lap joint which was formed by the Crane lap flange, had been approved by resolution of the board in 1907 and that the United States Local Inspectors, therefore, erred in rejecting the work.

There are two questions involved in this case, namely:

First: Whether the warranty of the defendant covered an unauthorized and improper rejection of the joints formed by the Crane lap flanges, and,

Second: If not, whether the rejection of such joints by the local inspectors was duly authorized by law, i. e., whether the ruling of the local inspectors, or the supervising inspector general was in accordance with law.

We shall discuss these issues in the above order.

The plaintiff contends that the language of the certificates should be construed as an absolute warranty and that all materials furnished by the defendant would be accepted, as a fact, by the United States Steamboat Inspection Service. Defendant contends that the language of the certificate should be construed as a limited warranty covering only a test as to tensile strength of the material.

Prom the nature of the businesses carried on by plaintiff and defendant, it is apparent to us that they were both familiar with the fact that the work and material in question required the approval of the inspectors before the boat would be permitted to operate. In order to obviate any trouble or difficulty, as far as materials were concerned, the plaintiff placed the warranty clause, above recited, in its written order. The defendant, without in any manner indicating that this stipulation of warranty was unsatisfactory to it, furnished the material and issued its own certificate of warranty, which, while somewhat differently worded, appears intended for the same purpose, which the plaintiff had in mind, i. e., insuring the approval of the inspectors in due course.

If there is any ambiguity in the stipulations of the certificate of warranty of the defendant, the doubt must be resolved against it, under the well established rule of the interpretation of contracts that all ambiguities are construed against the party who writes them. In this connection we note that after the inspection on June 5, 1926, the inspectors wrote a letter to the plaintiff on June Y, 1926, and set up the specific reasons for the rejection of the Crane lap joint and the particular rules that they considered applicable. Plaintiff immediately notified the defendant, resulting in a conference between the representatives of each and the inspectors. The inspectors apparently convinced defendant’s representative that their ruling was correct because he did not make any suggestion that the plaintiff should appeal from the ruling of the local inspectors, as either plaintiff or defendant would have had a right to do, but stated that if the material were returned to the Birmingham factory, satisfactory material would be furnished in lieu thereof. The resolution of the Board of Supervising Inspectors, said to have been adopted during the year of 1907 and approving the Crane lap joint, was not contained in the pamphlet containing the rules and regulations of the board, and no mention of it was in anywise made. The representative of the defendant company, even after the second conference with the local inspectors and plaintiff, did not inform them that such a resolution was in existence. It was only after all of the work was done, whereby the nonrigid feature of the flange was made rigid, to comply with the requirements of the local inspectors, that any mention was made of the fact that the Crane lap joint was approved by the alleged resolution of the board in 1907.

The conduct o.f the defendant’s representatives, after having had the conferences with the local inspectors, in requesting that the plaintiff return the material, in stating that other material would be furnished in lieu thereof, and in not mentioning the alleged resolution of 1907 and in not suggesting that an appeal be taken from the ruling of the local inspectors, indicates that the representatives of the defendant company considered that the stipulations of the certificates were an absolute warranty that the material would be approved by the inspectors in fact.

We, therefore, find that the plaintiff must prevail and it is entitled to recover the damages claimed.

In view of our opinion on the first issue, which disposes of the case, it is unnecessary to pass upon the second issue.

For the reasons assigned the judgment is affirmed.


source: Caselaw Access Project

author: JANVIER, J.

license: Public Domain

text:
    No. 13,284
    Orleans
    DEVERGES v. NATL. DYERS & CLEANERS, LTD., ET AL.
    (November 17, 1930. Opinion and Decree.)
    (December 15, 1930. Rehearing Refused.)
    Lubin F. Laurent, of New Orleans, attorney for plaintiff, appellant.
    F. A. Middleton, of New Orleans, attorney for defendants, appellees.
   JANVIER, J.

This case presents issues identical with those which confronted us in the matter of Item Company, Ltd., v. National Dyers & Cleaners, Ltd., et al., page 108, herein, 130 So. 879, in which we, this day, rendered an opinion and decree.

The parties defendant are the same except that here Augustus E. Massey is not included among those against whom judgment is asked.

For the reasons contained in the opinion rendered by us in that case, to-wit: Item Company, Ltd., v. National Dyers & Cleaners, Ltd., it is ordered, adjudged and decreed that the judgment appealed from be and it is affirmed at the cost of appellant.


text:
    No. 13,369
    Orleans
    NESTOR v. THE ITEM COMPANY, LTD.
    (December 15, 1930. Opinion and Decree.)
    (January 5, 1931. Rehearing Refused.)
    (February 2, 1931. Writs of Certiorari and Review Refused by Supreme Court.)

      Puneky & Barrios and L. Walter Cock-field, of New Orléans, attorneys for plaintiff, appellee.
    Henry & Cooper and A. M. Suthon, of New Orleans, attorneys for defendant, appellant.
   JANVIER, J.

This suit results from an intersectional collision between a Ford car owned and driven by plaintiff and an International truck owned by defendant, Item Company, Ltd., and driven by its employee in the course and within the scope of his employment.

Plaintiff, at about 4:15 in the morning, was driving his Ford on Washington Avenue towards the Mississippi river. Defendant’s truck was being driven down Howard street towards Canal street. After plaintiff’s Ford crossed the neutral ground of Howard street and entered the riverside driveway of that street the collision occurred.

Plaintiff contends that he had the right of way; that defendant’s truck was proceeding at too rapid a speed; that it gave no warning of its approach; that its headlights were poor; and that the brakes were not in working order.

The trial judge came to the conclusion that defendant’s truck was being carelessly operated or was in a defective condition and that there was no contributory negligence on the part of plaintiff and rendered judgment in plaintiff’s favor for $184 as prayed for.

Under the traffic ordinance which is involved and which has been introduced in evidence, to-wit: Ordinance No. 7490, C.C.S., both Washington Avenue and Howard Avenue, at that point, are right of way streets and, in this situation, since the truck of the Item Company was approaching from plaintiff’s right, the truck should have been given the right of way, assuming that both vehicles reached the intersection at approximately the same time and that it' had not been pre-empted by plaintiff.

We also find that article 1, paragraph 7, subdivision (d) of the' Ordinance should be taken into consideration because under that subdivision plaintiff should have stopped and sounded his horn when he arrived on the neutral ground of Howard street and before he attempted to cross the riverside driveway. He admits that he did not do this.

Accepting as true plaintiff’s entire version of the matter we cannot escape the conclusion that he, himself, was guilty of contributory negligence without which the accident could not have occurred. His statement is that he was proceeding across the intersection at a very slow rate of speed, eight or ten miles per hour; that he had his car under perfect control and that his brakes were in perfect working order and that he saw the Item truck approaching at a speed of 35 or 40 miles per hour when it was yet 25 or 30 feet from him. There is no doubt whatever that had he stopped as he should when he arrived on the neutral ground he would have been able to see the truck at a considerable distance away, even assuming that its lights were poor as he contends they were. Had he done this we know of no reason why he could not have remained in his safe position instead of darting out into the roadway when the truck was approaching.

We find it unnecessary to discuss the details of the evidence with reference to the charges of negligence hurled at defendant because, as we have said, whatever may have been the fault of defendant, it is manifest that the accident could have been avoided had plaintiff himself complied with the provisions of the traffic ordinance and had he exercised due caution. His own contributory negligence bars his recovery.

The judgment appealed from is annulled, avoided and reversed and there is -now judgment dismissing plaintiff’s suit at his cost.


author: WESTERPIELD, J.

text:
    No. 13,474
    Orleans
    SIMPSON v. PARDUE ET AL.
    (January 19, 1931. Opinion and Decree.)

      See, also, 130 So. 843, 15 La. App. 328.
    B. J. Allen, of New Orleans, attorney for plaintiff, appellee.
    Milling, Godchaux, Saal & Milling, of New Orleans, attorneys for defendants, appellants.
   WESTERPIELD, J.

Plaintiff sues for compensation for damages to his Buick automobile caused by a collision with a Packard automobile owned by the defendant Sherman Pardue, and at the time of the accident driven by the defendant William Banker. He asks for judgment in so-lido against both defendants.

Prom a judgment as prayed for in the sum of $212, defendants have appealed.

The accident happened in the intersection of State and Preret streets at about 10:30 p. m., December 6, 1928. Plaintiff, driving his Buick in State street, approached Preret street from the direction of the Mississippi river. He stopped before entering the intersection, and having looked in both directions, proceeded across. After having almost succeeded in effecting the crossing, his car was struck in' the rear right side by the Packard driven by the defendant Banker from the direction of Canal street.

Preret street is a right of way street under the traffic ordinance because of the street car lines thereon, and all vehicles are required to come to a full stop before crossing. Article 1, section 1, Traffic Ordinance 7490, C. C. S.

Plaintiff contends that the accident was due to the excessive speed of defendant’s car and his failure- to avoid the accident, having the last clear chance. Defendants’ able counsel, with much elaboration in brief and argument, place the blame with plaintiff because of his alleged failure to respect the right of way accorded the Packard car under the traffic ordinance.

It is conceded, at any rate, clearly proven, that plaintiff stopped before entering the intersection, but, it is argued, he should not have started again when he did because he saw defendant’s car in Preret street about seventy yards from State street — too close to prudently undertake the crossing. Besides, seventy yards was only an estimate, and the Packard may have been nearer. Answering this argument, plaintiff explains his action in crossing the street when he did by saying that, when he saw the Packard, he assumed that it was traveling at a normal rate of speed, which would have permitted him to cross in safety.

The evidence clearly preponderates to the effect that the speed of the Packard car was excessive, and,' according to the estimate of its driver, no proper lookout was maintained, because he says he did not see the plaintiff’s Buick until within ten or fifteen feet of it. No explanation of his failure to see the Buick sedan is given, but it is apparent that, if his headlights were in good order, and he was looking in the direction he was going, he would have seen it at a much greater distance, and, if his headlights were not good, he should have moderated his speed accordingly. In driving too fast and in failing to look ahead, he was negligent.

Was plaintiff guilty of contributory negligence? It is said that he should have waited for the Packard to have passed because it was traveling on the favored street, a street given an extraordinary right of way, as is evidenced from the provision in the traffic ordinance requiring vehicles to come to a full stop before attempting to cross. Plaintiff is said to have been contributorily negligent in failing to wait until the Packard had crossed the intersection, because he admits having seen it approaching at a distance, which he estimated to have been about 200 feet. It is argued that it was not sufficient to bring the car to a stop before entering the intersection. The rule that the automobile which first enters the intersection is entitled to proceed as announced in Vance v. Poree, 5 La. App. 109; Item Co. v. Checker Cab Co., 9 La. App. 397, 120 So. 509, and other cases, does not apply here, it is said, because the defendant enjoyed an extraordinary right of way. He had the right to assume that other vehicles would recognize that fact and to govern himself accordingly. Any other ■ view, we are told, would destroy the right of way accorded him under the ordinance.

It must be conceded that the primary duty of avoiding the collision rested upon the plaintiff, since he was driving his car on the less favored street. He was required to keep a lookout for vehicles on the favored street. He should have had his car under control, and should have exercised more care and caution than the driver on the favored street. However, he was not required to wait before attempting to cross until there was no vehicle in sight on the favored or right of way street, and it was only necessary that it should appear that there was a reasonably safe opportunity to proceed. His action in crossing the intersection must be considered in the light of the surrounding circumstances, and, if the Packard, which was on the favored street, was at such a distance from the intersection as would suggest to the mind of a reasonably prudent person that the crossing might be undertaken without danger of collision, -he was justified in doing so. . The only evidence in the record on this point is that given by the plaintiff himself, who says that when he started across, the Packard was about 210 feet or 70 yards away. We realize that this statement is necessarily inaccurate, since it involves simply an estimate, and that by an interested witness, but, such as it is, it represents all of the testimony that we have on this point upon which to base our conclusion in this regard. As to the propriety of plaintiff’s conduct, we are of the opinion that in attempting to cross under the circumstances prevailing he was not guilty of contributory negligence. Our conclusion is that the accident was solely- due to the excessive speed of the Packard car and the failure of its driver to maintain a proper lookout. Lanphier v. D’Antoni, 14 La. App. 441, 131 So. 628.

A.s to the quantum which the trial court fixed at $212, the evidence is not as satisfactory as it might be. The mechanic who repaired plaintiff’s car seems to have been confused in his testimony. However, we believe that, with the exception of a few items which do not appear to have been necessitated by the accident, amounting to $15.35, the plaintiff may be said to have reasonably established the extent of his damages.

For the reasons assigned, it is ordered, adjudged, and decreed that the judgment appealed from be and it is amended by reducing the judgment awarded plaintiff from $212 to $196.65, and, as thus amended, it is affirmed; costs of this appeal to be borne by appellee and costs of lower court by appellant.


text:
    No. 13,520
    Orleans
    WILLIAMS v. PICKWICK-GREYHOUND LINES, INC.
    (January 19, 1931. Opinion and Decree.)
    Claude W. Duke, of New Orleans, attorney for plaintiff, appellee.
    Edw. Rightor and W. H. Sellers, of New Orleans, attorneys for defendant, appellant.
   JANVIER, J.

This is a suit against a long-distance autobus line for the value of a suitcase and certain personal articles said to have been contained therein when it was lost en route between Detroit, Mich., and New Orleans, La.

Plaintiff and his suitcase were being transported in an autobus of defendant under a contract of carriage entered into in Detroit, Mich.

The suitcase seems to have been located at each main junction point, or stop, until the bus reached Jackson, Miss., at which place it could not be found. Some time after making claim for the articles lost, plaintiff was tendered a suitcase and certain contents which had been discovered by defendant and which had not been claimed by any one else, and which, it was presumed belonged to plaintiff'. However, according to plaintiff, this suitcase was not his, although it was shown to contain certain articles which he identified as belonging to him, and although certain clothing therein was of the proper size to fit him. It was intimated by defendant that the list of articles claimed by plaintiff to have been in the lost suitcase when it disappeared contains clothing more expensive and more numerous than would reasonably be found in the wardrobe of a man of plaintiff’s earning capacity. He, however, maintains that the list as prepared by him is correct, and, in the absence of any evidence to the contrary, we find ourselves unable to do other than accept his testimony.

The amount claimed was $166.48 and the judgment rendered by the trial court awarded plaintiff $100, the judge, a quo, having apparently been of the opinion that too high a value had been placed upon some of the articles.

Defendant has appealed from this judgment, and plaintiff has answered the appeal asking that the judgment be increased to the amount originally prayed for.

In addition to the contention that the suitcase tendered plaintiff is the one actually lost by him, defendant maintains that, at all events, recovery should be limited to $25, because of a printed clause alleged to have been contained in the ticket, or agreement of carriage, and also alleged to have been contained in printed tariffs said to be on file with the railroad or public service commission in each of the states in which defendant operates. The printed clause reads as follows:

“Baggage Liability (b) Pickwick-Greyhound Lines, Inc., is not responsible for baggage unless properly checked at time passengers board bus. The Company’s limit on all baggage liability in the event of loss or accident is Twenty Five ($25.00) Dollars.”

Defendant thus contends, first, that the stipulation limiting liability was actually made known to plaintiff by reason of the fact that it was contained in the ticket, or agreement of carriage, and that, even in the absence of such actual knowledge, plaintiff had constructive knowledge thereof by reason of the fact that it was contained in the printed tariffs on file in the various states, and particularly in that state in which the agreement of carriage was entered into.

In Lawes v. N. O. Transfer Co., Inc., 11 La. App. 170, 123 So. 144, we considered a cáse in which a person had intrusted to a local express company baggage for transportation from the- railroad station to her residence. The receipt given her contained a stipulation limiting liability to a fixed amount. We held that, in the absence of a showing of actual knowledge of the existence of the stipulation limiting liability, it was not binding on the owner of the baggage. We felt that the case presented there was different from that in which an interstate carrier by rail is permitted to limit its liability to a fixed amount, regardless of whether the other party has knowledge of the stipulation. Boston & Maine R. R. Co. v. Hooker, 233 U. S. 97, 34 S. Ct. 526, 58 L. Ed. 868, L. R. A. 1915B, 450. In the Lawes case the document presented to the owner of the baggage was nothing more than a receipt and could not be considered as a contract containing special stipulations, unless those stipulations were actually brought to the knowledge of the owner of the baggage, and we based our conclusion in this regard, to some extent, on the reasoning in the matter of Zimmer v. New York, etc., R. R. Co., 137 N. Y. 460, 33 N. E. 642, 643, in which the court said:

“Cases where parties proposing to have articles of property transported by a common carrier deliberately enter into some necessary contract relating to the transportation, differ materially from those cases of travelers who commit their trunks or articles of baggage to an agent of some express or transfer company, and receive at the moment some paper, which, as it has been said, amounts simply to a voucher enabling them to follow and identify their property. Madan v. Sherard, 73 N. Y. 329 [29 Am. Rep. 153]. The difference is very obvious in the circumstances, which, in the one case, usually admit of no negotiation or discussion, while, in the other, the shipment of the property is a matter of arrangement, with full opportunity for deliberate action.”

We also felt that the Lawes case was distinguishable from the case of the limitation contained in the tariff filed- by the interstate carrier with the Interstate Commerce Commission, because, under the Car-mack Amendment of June 29, 1906 (49 USCA sec. 20), such interstate carriers are expressly given permission to stipulate for limitation of liability and to make such stipulation effective by filing tariffs containing them with the Interstate Commerce Commission. Thus the filing of the tariff with that commission constitutes constructive notice to all the world, and actual notice is not necessary.

It is argued that the filing of the tariffs by defendant here with the commissions of the various states through or in which it operates should be held to constitute constructive knowledge to all persons purchasing tickets within states in which the tariffs are filed, and that, in the case now before us, plaintiff himself, by accepting and using the ticket containing the stipulation for limitation of liability, acquiesced therein and was bound théreby. We are impressed witfy the thought that, if such a limitation is on file in the various states, to permit it to be enforced against one person to whose knowledge it may be brought, and to permit its waiver in the case of another person who may not have actual, knowledge of its existence, would place it in the power of the carrier to effect unjust and unfair discrimination.

We find it, however, unnecessary to pass upon the question of whether the filing of such a tariff with the local commission would constitute such constructive notice as would be effective against a person without actual notice because the evidence is not sufficient to justify us in holding that such tariffs were actually filed in the present instance, except in the state of Louisiana. The testimony of Mr. Moore, the district passenger agent, is not, in our judgment, sufficient to warrant a finding that, at the time the ticket was sold to' plaintiff, such a tariff was on file in Michigan. Mr. Moore’s statement is nothing more than a general averment that it is the custom of the company to file its tariffs with the various' commissions, but, since the entire contention of defendant depends upon the actual proof that the tariffs were filed in this case, it seems to us that it would have been a very simple matter to obtain from the proper official of the state of Michigan proof such as was obtained from a similar official in the state of Louisiana, and which proof, if obtained, would have made it certain that the tariffs were on file in that state. Limitation of liability is a special defense, and on defendant rests the burden of satisfactorily proving the existence of those conditions on which it depends.

Nor is there sufficient evidence to show that the ticket sold to plaintiff contained such a stipulation. Here, again, all that the evidence of Mr. Moore shows is that it was the custom of the company to print such stipulations on its tickets. It is contended that the ticket sold to Williams was signed by him. The ticket was collected by the company and should be in its possession, or its absence properly accounted for. Here, again, defendant was under the burden of proving the facts on which its defense depended and it did not do so to our satisfaction.

We find ourselves entirely unable to form an opinion with regard to the value of the articles lost and must rely upon the fact that the trial judge saw and heard the witnesses and was in better position than are we to determine that question of fact.

The judgment appealed from is affirmed at the cost of appellant.

HIGGINS, J., takes no part.


text:
    No. 13,449
    Orleans
    ASTUGUE v. AMERICAN RAILWAY EXPRESS CO.
    (December 1, 1930. Opinion and Decree.)
    (January 5, 1931. Rehearing Refused.)
    R. A. Dowling and W. R. Kinsella, of New Orleans, attorneys for plaintiff, appellee.
    Hunter C. Leake and Lemle, Moreno & Lemle, of New Orleans, attorneys for defendant, appellant.
   HIGGINS, J.

This is a suit by the consignee of a dqg expressed from New York to New Orleans, against the American Railway Express Company, a carrier, claiming damages by reason of the death of the dog.

It is alleged that the dog was shipped C.O.D. from New York City; that it was in good health at the time, having been examined by a veterinarian at the point of origin; that upon the arrival of the dog in New Orleans, the consignee requested permission to have the dog examined by a veterinarian before paying the C.O.D. charges, but this was refused by the express company until after he had paid the charges, and taken (possession of the dog; that he took it home on May 4, 1928, at which time it was sick, and died nine days later; and that the illness of the dog was the result of mishandling and negligent exposure of the dog by the defendant.

The defense of the express company was that it was forbidden by its tariffs,, approved by the Interstate Commerce Commission to permit an inspection of any C.O.D. shipment without the consent of the shipper; that, in this case there was no such consent and, therefore, it could not permit the inspection. The defendant further denied that the dog was in good health when shipped from New York, denied that it was guilty of any mishandling or negligent exposure of the dog, and alleged that the death of the dog was due entirely to natural causes for which it was not responsible.

There was judgment in favor of plaintiff in the sum of $473.48 and defendant has appealed.

It is uncertain whether plaintiff is suing for the amount of the C.O.D. and express charges which he paid to the express company, on the theory that it wrongfully refused to permit him to examine the dog as it should have done, and thereby prevented him from discovering the dog was sick before he paid the charges which he would not have paid if he had had such knowledge; or for the value of the dog on the theory that the defendant was guilty of negligence in handling the dog.

Treating the petition as a suit for the return of the C.O.D. and express charges, it is admitted, by the defendant, that it refused to permit plaintiff to have a veterinarian examine the dog at the point - of destination because the tariffs of the Interstate Commerce. Commission prohibit it from doing so unless written instructions .to that effect are printed or written on the C.O.D. envelope or upon subsequent written authority from the shipper.

The applicable tariff is I. C. No. 3280, a copy of which, duly certified under the seal of the Interstate Commerce Commission is filed in evidence. Section 14(c), page 21 of the tariff, provides:

“Examination, trial, or one partial delivery of C.O.D. shipments will be allowed only when instructions to that effect are written or printed on the package and on the C.O.D. envelope, or are enclosed within the C.O.D. envelope which accompanies the shipment, or upon subsequent written authority from the shipper endorsed by the agent at shipping point..”

Such instructions were not written or printed on the package or C.O.D. envelope and, therefore, the express company was required to refuse the inspection as it was obligatory upon it to abide by the rule established in the tariff on file with the Interstate Commerce Commission.

In this situation,, the consignee had the option of doing one of two things, paying the charges and accepting the shipment, or getting permission from the shipper to make an inspection. Plaintiff chose to exercise the first option. He paid the charges and took possession of the dog aúd he cannot now sue the express company to recover this money on the theory that it should have permitted an inspection and was wrongfully deprived of his right to do so.

However, treating the petition as a suit for the value of the dog, the record shows that the plaintiff purchased two greyhound dogs, which were shipped from Tipperary, Ireland. After an ocean voyage they arrived in New York whence they were crated and shipped to New Orleans on or about May 1, 1928, and arrived in New Orleans on May 4, 1928. The plaintiff was notified of the arrival of the dogs and requested permission to examine them before accepting them, which permission was refused as above recited.

Plaintiff and his witness testified that the dog appeared to be sick the day it was accepted, May 4, 1928. Defendant’s witnesses state that the dog appealed to be well. , It is conceded that neither dog showed any evidence of rough handling or injuries. One of the dogs is admitted to have been in good sound condition and health at the time of its arrival and it further appears that the dogs were crated and shipped together.

It is admitted that on May 9, 1928, at 3:30 p. m. the express company received notice from the plaintiff that the dog was sick. Dr. Kyle, a veterinarian, a witness for the plaintiff, was called in to see the dog on May 7, 1928, in the afternoon and he testified that he found the dog suffering from high fever, with a temperature of 104 degrees and very weak; that fever in such cases usually comes on within 24 hours and that the dog died of bronchial pneumonia. He further testified that the dog died of natural" causes and that the disease was common in this locality and might attack a dog whether it had been shipped or not.

Dr. Upton, a veterinarian, also a witness for the plaintiff, testified that he saw the dog on May 11, 1928, and found it suffering from bronchial pneumonia and distemper from which it died; that he found no evidence of rough handling or injury and corroborated the testimony of Dr. Kyle that the dog died of natural causes and that the disease was common in this climate.

There is some doubt as to whether plaintiff bore the burden of showing that his loss or damage was caused by the negligence of the carrier because of a provision in the bill of lading to the effect that the shipper agreed, as a condition precedent, to recovery of damages, to prove that the carrier was at fault. But, treating the case as if the carrier bore the burden of proving that the death of the dog was not caused through its negligence or fault, which is the general rule in such cases, we pass to a consideration of the question of whether or not the evidence shows that the carrier was free from fault in causing the dog’s death.

While it is true, that the defendant did not offer any evidence to show that the trip was uneventful nevertheless it did offer evidence tending to prove that the dog was in apparent sound good health at the time it arrived in New Orleans and was tendered to the plaintiff. The testimony of the' veterinarians who were witnesses for the plaintiff, show that the dog bore no evidence of injury or rough handling. It is admitted by the plaintiff that the other dog was uninjured and in good condition when accepted. The only evidence we have tending to show that the dog was sick at the time of its delivery to the plaintiff is the testimony of the plaintiff and one witness, who state that the dog appeared to be sick. The evidence of Dr. Kyle, who saw the dog on the afternoon of May 7, 1928, was to the effect that fever in such cases evidences itself within 24 hours after contracting the disease. If this be true, it seems to us that the dog contracted pneumonia after it was delivered to the plaintiff.

Section 5 of the bill of lading specifically provides that the carrier would not be liable for “damages arising from the conditi‘n of the animals themselves.’’ The disease which, killed the dog is shown to have been common in this climate and a natural one and, therefore, comes within this exception or limitation of liability.

We conclude that the evidence establishes that there was no causal connection between the disease contracted by the dog which caused its death and any fault or negligence on the part of the carrier. This risk was expressly assumed by the shipper under section 5 of the bill of lading.

For the reasons assigned it is ordered, adjudged • and decreed that the judgment appealed from he and it is annulled, avoided and reversed and it is now ordered that, there be judgment in favor of the defendant, the American Railway Express Company, dismissing the plaintiff’s suit at his cost.


author: WESTERFIELD, J.

text:
    No. 13,384
    Orleans
    DUNCAN STEELE, INC., v. LABATT
    (November 17, 1930. Opinion and Decree.)
    (December 15, 1930. Rehearing Refused.)
    (February 2, 1931. Writs of Certiorari and Review Refused by Supreme Court.)
    Isaac S. Heller, Wilbur W. Heard and Leslie Moses, of New Orleans, attorneys for plaintiff, appellant.
    Edward Rightor, of New Orleans, attorney for defendant, appellee.
   WESTERFIELD, J.

The plaintiff is a corporation engaged in the real estate business, and brings this suit upon an instrument in writing addressed by the defendant to it, the purport of which was to authorize plaintiff to obtain a purchaser for defendant’s property, upon certain terms and conditions therein stipulated, and agreeing that “if this offer (being the offer of prospective purchaser) is accepted I agree to pay your commission amounting to Three Hundred eighty and no/100 ($380.00)- Dollars and all fees and costs incurred in enforcing collection. The commission is earned on the signing of this agreement, and shall not be affected by any subsequent agreement of the parties hereto or by annulment of this contract by any court.”

The plaintiff did procure a purchaser who was willing to purchase on the terms mentioned in the mandate, but, because of some difficulty in connection with a second mortgage on the property, the sale did not take place.

The defendant resists the plaintiff’s claim upon the following grounds: First, that plaintiff was not a party to the instrument sued on; and, second, that there was a prior verbal agreement between the parties to the effect that plaintiff’s commission was dependent upon the actual consummation of the sale of the property.

As to the first defense it cannot prevail for the reason that a tacit acceptance of a mandate is inferred from the mandatary acting under it. Rev. Civ. Code, art. 2988 et seq.

When evidence was sought to be introduced in support of the second defense, it was objected to on the ground that its effect would tend to contradict the contents of the written instrument sued on. This objection was overruled and the evidence is in the record. Without discussing its effect, we are of opinion that this ruling of the trial court was erroneous. The contract sued on seems perfectly clear and unambiguous, and the parol evidence offered was certainly in contradiction of its terms. A prior verbal contract declaring that plaintiff was to obtain his commission only after the consummation of the sale is in flat contradiction of the clause in the written contract that “the commission is earned on the signing of this agreement, and shall not be affected by any subsequent agreement of the parties hereto, or by annulment of this contract by any court.” See 22 Corpus Juris, secs. 1459 and 1468, pages 1098 and 1110, where the parol evidence rule is well stated.

Finally, it is contended, in the alternative, that, if the plaintiff .is entitled to recover, it should not be allowed more than one-half of the $380 claimed, because the contract sued on contained a clause “one half of the commission of $380.00 was to be paid by the defendant to Roy L. Calamia, Inc.” It is said Roy L. Calamia, Inc., could demand of defendant one-half of the commission, and plaintiff is not entitled to judgment for more than its one-half. There is in the record an assignment from Roy L. Calamia, Inc., to plaintiff, which, it is objected, cannot be considered, because the rights of plaintiff must be determined as of the date of the filing of the suit, and not by anything that happened thereafter.

We observe from the testimony of Mr. Labatt, however, that Roy L. Calamia, Inc., was unknown to him in the transaction, and that he considered his obligation under the contract to be solely due Duncan Steele, Inc., with which company he alone had dealt in the transaction, and that, if he had paid the commission, he would have paid the whole amount to plaintiff.

Under the circumstances, we believe that judgment should be rendered in plaintiff’s favor for the full amount sued for. Consequently, for the reasons herein assigned, it is ordered, adjudged, and decreed that the judgment appealed from be, and it is, annulled, avoided, and reversed, and it is now ordered that there be judgment in favor of Duncan Steele, Inc., and against Leon L. Labatt, Jr., defendant, in the full sum of $380, with legal interest thereon from judicial demand.


text:
    No. 13,411
    Orleans
    STANDARD INSURANCE CO. ET AL. v. HOLZER SHEET METAL WORKS, INC.
    (November 17, 1930. Opinion and Decree.)
    (December 15, 1930. Rehearing Refused.)
    (February 2, 1931. Writs of Certiorari and Review Refused by Supreme Court.)
    John C. Hollingsworth and Lloyd A. Ray, of New Orleans, attorneys for plaintiffs, appellants.
    Solomon S. Goldman, of New Orleans, attorney for defendant, appellee.
   WESTERFIELD, J.

The plaintiff insurance companies paid to Mrs. Leo Samson of this city, one of their policyholders, the sum of $558, on a claim for loss resulting from'a fire which occurred in her residence on September 6, 1927. A subrogation was taken, and this suit brought against the defendant alleging that the fire which caused the damage, to Mrs. Samson’s home was due to the fault and negligence of the defendant.

It appears from the record that Mrs. Samson’s home was equipped with a warm air heating plant, in which she used wood and coal as fuel. She desired to change the system so as to make it possible to burn oil. With that purpose in view, she contracted with the defendant, the Holzer Sheet Metal Works, Inc., to install a “Waterman All Steel Seamless Furnace”; this equipment being regarded as necessary to that end. The installation was completed on September 6, 1927, and a' fire ignited in the fire box of the furnace as a test of the new equipment. Shortly after the fire was lighted, smoke and flames were seen to come from the warm air register in the living room, which were subsequently extinguished after having caused the damage for which this suit is instituted.

The cause of the fire is apparently unknown, and certainly undeveloped by the testimony in the record. The new furnace which defendant had installed confines the flames to its interior and discharges smoke through a smokestack, and there is no suggestion that the furnace was defective or that it was improperly installed. In fact, it was still in use at the time the case was tried, some two years later. The mere fact that there was fire in the furnace and in the living room at about the same time is all that' can be said of the connection between the two, and certainly insufficient to establish. defendant’s liability.

An expert, employed by the defendant company, attributed the fire to an accumulation of lint and trash in the warm air duct in the living room, the accumulation being ignited by spontaneous combustion. The warm air conveyor or duct is shown to have been improperly installed, in that asbestos paper was not used and otherwise. Possibly the fire was due to defective air ducts and possibly to other causes, but it is not shown to have been due to the fault of the defendant.

The case of Prescott v. Central Contracting Co. et al., 162 La. 885, 111 So. 269, 270, relied upon by plaintiffs, is not in point, because it was there established to the satisfaction of the court that the fire was caused by sparks “emitted from the smokestack of the boiler that defendants were, at that time, operating in connection with their hoisting engine.”

In the present case the defendant company’s employees built a fire in the ordinary manner in the proper place. Fires had also been built in the old furnace for several years prior to the installation of defendant’s new furnace, all without damage to Mrs. Samson’s home.

Under the circumstances, we, like the judge of the trial court, are of opinion that no proper case has been made out which would justify a finding in plaintiffs’ favor; consequently, for the reasons herein assigned, the judgment appealed from is affirmed.


text:
    No. 13,468
    Orleans
    MOTOR SALES & SERVICE, INC., v. GRASSELLI CHEMICAL CO. and A. J. PETER
    (December 15, 1930. Opinion and Decree.)
    (January 5, 1931. Rehearing Refused.)

      Michel, Pro.vosty, Oliver P. Carriere, of New Orleans, attorneys for plaintiff, appellee.
    Monroe & Lemann and Robert G. Polack, of New Orleans, attorneys for defendant Grasselli Chemical Company.
    Wm. H. Talbot, of New Orleans, attorney for defendant A. J. Peter. ■
   JANVIER, J.

Defendant Grasselli Chemical Company is engaged in the sale of chemicals.

Defendant, Peter, is a public drayman, who, for some time, has, under contract, transported over the streets of New Orleans heavy drums of chemicals for the Grasselli Company.

On the day of the accident which gave rise to this suit, one of Peter’s trucks was loaded with drums of sulphuric acid, which, on orders of the Grasselli Company, was being transported to a' steamship wharf for shipment to a foreign port. As the truck was on its way to the steamship landing, the iron bung in one of the drums in some manner came out and large -quantities of the acid shot up into the air and fell upon an automobile belonging to plaintiff which was following the truck.

The acid burned much of the paint from the automobile and practically ruined the top, the upholstery, and the linoleum forming part of the running boards, and plaintiff now seeks to recover the loss sustained as a result of the said damage. In its petition it asks for reimbursement for the amounts expended by it for repairing the car, but the evidence shows that this was never done, and this suit is therefore in effect a suit for the diminution in value which resulted from the acid burns.

Prom a judgment in favor of plaintiff and against the Grasselli Company; the latter has appealed, and plaintiff has also appealed devolutively from that part of the judgment which dismisses its suit against the other defendant, Peter.

No cause is assigned for the most unusual occurrence, and plaintiff contends that the doctrine of “res ipsa loquitur” relieves it of the obligation of alleging and proving the specific acts of negligence from which the accident resulted. It would seem that, so far as the -Grasselli Company is concerned, the doctrine of “res ipsa loquitur” is applicable. Surely, plaintiff cannot be expected to have had knowledge as to the cause of such an occurrence as the explosion of a tank of acid on a truck in a city street. In Lykiardopoulo v. New Orleans & C. R. Light & Power Co., 127 La. 310, 53 So. 575, Ann. Cas. 1912A, 976, the Supreme Court of this state held (syllabus):

“Where a plaintiff cannot be expected to have any information as to the causes of an accident, whereas defendant must be assumed to be fully informed, and where the accident is of the kind which ordinarily does not occur when due care has been exercised, plaintiff need not allege nor prove the particular acts of omission or commission from which the accident resulted; but the accident itself makes out a prima facie case, casting on defendant the burden to show absence of negligence, and this rule is of peculiar applicability in cases of boiler explosions.”

' In Dotson v. Louisiana Central Lumber Co., 144 La. 78, 80 So. 205, the court held (syllabus):

“Where the cause of an accident resulting in damage is more properly within the knowledge of the defendant, the accident itself makes out a prima facie case under the doctrine of res ipsa loquitur, and the burden is upon the defendant to show. the absence of negligence.” See, also, Lonatro v. Palace Theatre Co., 5 La. App. 386; Noble v. Southland Lumber Co., 4 La. App. 283; Weikel v. Caddo Transfer Co., 5 La. App. 146.

That the drum of sulphuric acid, at the time of the accident, was not under the immediate control of the Grasselli Company, we believe to be unimportant,, because if the cause of the accident was the inherent nature of the acid, or defect in the drum, or carelessness in the placing of the bung in the drum, none of these could have been within the knowledge either of plaintiff, or of the other defendant, Peter, and it would be only fair to require that the Grasselli Company absolve itself from negligence, which must be presumed in this case from the mere happening of the accident.

Many authorities have so firmly imbedded into our jurisprudence the doctrine that an injured plaintiff need not allege or prove the precise cause of the accident, when, under the circumstances, he could have had little if any information with regard thereto, whereas the defendant should have been fully informed on the subject, that it is unnecessary for us to discuss further the applicability of the doctrine so far as the Grasselli Company is concerned.

The case as against Peter is different. He, like plaintiff, had no knowledge, as to the condition of the bung, the condition of the drum, nor as to whether there was too much acid therein. He was given the drums to transport, and there was nothing inherently dangerous or obscure in his part of the transaction. If he was in any way at fault, it could only result from negligence in the operation of the truck, and as to any such negligence plaintiff and its employee should have been as fully informed as is defendant Peter.,

But, although the doctrine of “res ipsa loquitur” is applicable as to the Grasselli Company, it does not necessarily follow that its liability is absolute. The only effect of that doctrine is to throw on defendant the btfrden of overcoming the presumption of negligence which, by>. 'the doctrine, referred to, is created. InJaggard on Torts, vol. 2, page 938, appears the following:

“While it is true as a general proposition that the burden of showing negligence, on the part of the one occasioning an injury rests in the first instance upon the plaintiff, yet, when he has shown a situation which could not have been produced except by the operation of abnormal causes, the onus rests upon the defendant to prove that the injury was caused without his fault.”

, The witnesses of - the Grasselli Company testified that the drum and the bung were examined before the drum was filled, and .that no defects were discovered. The employee who filled the drum also testified that he screwed in the bung with a large wrench, and that he then rolled the drum for some distance on its side, and it is argued from this that the bung must have ■been properly 'inserted. It is also testified that, in filling the drum, sufficient space was left to provide for the gas which is formed and which, the experts stated, might. explode such a drum, if filled too nearly fiili.

In fact, the proof on this point is so thorough that, were it not for the uncontroverted fact that the bung actually blew out, we would find it difficult to believe that any unforeseen event actually happened.

As we view the evidence, only three possible causes can be assigned for the occurrence. Either the bung was defective, or it was not properly screwed in, or the drum was so negligently handled by the driver of the truck that the jolting caused the explosion. This last possibility we must at once eliminate, because thei e was no ■ evidence whatever of any unduly rough handling. It is true that two witnesses testified that their attention was attracted by a noise which they describe as that made by two heavy objects bumping together, but there is no doubt whatever that no collision occurred, that there was no unusual jolt or jar, and it is probable that the r^oise they heard was the blowing out of the bung and the sudden explosion into the air of the acid. It is true that such acid should not be left for long periods exposed to the sun, but the evidence shows that in this case it had been in the truck only about twenty minutes, and we do not feel that this had anything to do with the matter. The elimination of the possibility of negligent handling leaves only two reasonable possible causes, — one, as we have stated, that the bung was defective, and the other that the bung was not properly inserted.

Unfortunately for the contention of defendant that the bung was in good condition and was properly inserted, it appears that this much discussed article was found after the accident, and that at that time the threads thereon were in such bad condition that it was worthless for further use. It is true that the expert testified that sulphuric acid, when dilutéd with water, will eat away iron very rapidly, and the condition of the bung after the explosion is said to have probably resulted from the fact that a fire engine pumped water on the truck, and that this bung fell into a small pool of acid and water.

We cannot avoid the conclusion, however, that the bung must have been in bad condition when it was inserted into the drum, and that the employee ’ who inserted it did not notice this condition. If the threads were partially eaten away, it could not hold firmly in place, and the pressure of the gas then could easily • force it out.

The Grasselli Company contends that, for such amount as may be awarded in plaintiff’s favor and against it, it should have judgment over against Peter under a con tract entered into between it and Peter reading as follows:

“In consideration of any contract hereafter to be made and entered into with us/me by The Grasselli Chemical Company, a corporation of Ohio, for transportation of its goods, employees, etc. by one or more of my/our auto trucks, or teams and wagons, or for the use and operation or hire of one or more of my/our auto trucks, or teams and wagons, with the services of a chauffeur, driver, teamster or helper, 1/ we hereby agree to hold and save The Grasselli Chemical Company, its agents, officers and employees harmless from any loss, damage or liability which it may suffer, or be about to suffer from any claims, demands, action or causes of action which may be made or had against it by reason of the use, maintenance or operation of said auto trucks, teams or wagons, or by virtue of any accident or injury involving the said trucks, or teams and wagons, or seryiees of the said chauffeur, driver, teamster, or helper; and I/we further agree to protect ourselves and the said The Grasselli Chemical Company by carrying liability and property damage insurance on said trucks or teams and wagons in the amount of $5,000.00.”

We see no call in warranty in the record, but, even if we concede that the Grasselli Company has taken the proper steps to protect itself under this contract, it is very evident that the contract has no application to the situation which existed here. The intention of the parties thereto was that Peter should indemnify the Grasselli Company against any loss which might result from his negligence, which, if suffered by third persons, might be legally chargeable to the Grasselli Company. Here the negligence was wholly chargeable to the latter company, and Peter was in no way responsible either directly to plaintiff or to defendant under the indemnity contract above set forth.

Having reached the conclusion that for such damage as was sustained the Grasselli Company is liable, it now behooves us to consider just what that damage amounted to. The court, a qua, fixed the amount at $322, but plaintiff has voluntarily remitted $46 thereof.

Although the petition alleges that the repairs have been made, the proof shows that such is not the case, and that the automobile was sold for junk. It has been held that, although such repairs are not actually made, nevertheless the plaintiff may recover such damage as he has sustained, and that the amount of such damage may be determined by taking into consideration the estimates submitted by those offering to make the repairs. Hays v. Brantley, 13 La. App. 219, 127 So. 5; Baudine v. Teche Transfer Co. (La. App.) 130 So. 60.

Adopting this method of arriving at the amount of the damage, we reach the figure $276.

But, since the automobile in question was a part of the stock in trade of plaintiff and was being held for the purpose of sale, we believe that the better way to determine the loss, since the repairs were not made, is to deduct from the prior sale value the value which the damaged car had after the accident. The prior sale value seems to have been at least $300 and the value afterwards was $25. Thus the loss arrived at by this method is at least $275, which is $1 less than the amount of the judgment after taking into consideration the remittitur. The difference is so small that we conclude to let the judgment stand as it is, subject, of course, to the voluntary remittitur entered by plaintiff.

The judgment in favor of plaintiff agairist the Grasselli Chemical Company is amended so as to reduce the amount thereof to $276, with legal interest from judicial demand, and, as thus amended, it is affirmed, at the cost of appellant.

The judgment in favor of A. J. Peter and against plaintiff is affirmed at the cost of appellant.

Both judgments affirmed.


text:
    No. 13,642
    Orleans
    DAINELLO v. McCOY
    (December 15, 1930. Opinion and Decree.)
    (January 5, 1931. Rehearing Refused.)
    Clarence De Lucas and Eugene Thorpe, of New Orleans, attorneys for plaintiff, appellant.
    Prowell, McBride & Ray, of New Orleans, attorneys for intervener, third opponent and appellee.
   JANVIER, J.

This contest, between a landlord and the holder of a chattel mortgage involves the distribution of the proceeds of the sale of an automobile belonging to defendant, tenant of the landlord, located in a garage on the leased premises at the time of the provisional seizure instigated by the landlord for rent due.

Intervener claims that before the automobile in question was placed on the premises and, thus, before it became subject to the landlord’s lien, a chattel mortgage to secure payment of part of the purchase price thereof was executed and recorded and that, thus intervener, as the holder of the said note, should recover the proceeds of the sale by preference and priority over the landlord. The court below rendered judgment in favor of the intervener, the holder of the mortgage note, and from that judgment the landlord has appealed.

Considerable testimony was adduced in an effort to prove the time at which the ' automobile was placed in the leased premises. Intervener contends that the mortgage was duly recorded in the mortgage office before the car was placed in the garage on plaintiff’s premises and plaintiff maintains that the recordation in the mortgage office was not effected until after the car had entered his premises and had thus been subjected to the lien of his lease.

We find it unnecessary to consider the question of fact which is thus presented for the reason that the record leaves us no other alternative than to hold that, under the chattel mortgage laws of this state, the document purporting to be a chattel mortgage by notarial act and on which intervener’s claim is based, is nothing more than an act under private signature and that, thus, in the absence of proof that the landlord had actual knowledge of its existence, he cannot be bound thereby.

The automobile in question was sold by the A. J. Motor Company to McCoy,' the tenant, who, for a part of the purchase • price, executed notes and signed the document which it is contended by intervener is a chattel mortgage by notarial act.

In this transaction the motor company was represented by a Mr. Holmes, who, when questioned as to the circumstances surrounding the execution of the chattel mortgage, said:

“Q. What is your duty when you make a sale, what papers do you prepare?
“A. The chattel mortgage papers if it goes in monthly payments.
“Q. You prepare mortgage papers?
“A. No, I don’t, they are prepared in office.
“Q They are prepared in office?
“A. Yes, sir.
“Q. The purchaser signs right there?
“A. Before the credit manager.
“Q. No notary is there?
“A. No, sir.
“Q. In this particular case was notary there?
“A. No, sir.”

Surely this testimony by the representative of the seller that no notary was present when the so-called notarial act was executed is sufficient to throw on him who claims under that mortgage the burden of contradicting this testimony, and of proving, if such is a fact, that the notary was actually present, and, in the absence of even an attempt to do so, we reach the conclusion that no notary was present and that, thus, the document was not an authentic act. In Abshire v. Comeaux, 159 La. 1087, 106 So. 574, 575, the Supreme Court said:

“The evidence satisfies us, as it did the district judge, that, the wife signed the act voluntarily and with full knowledge of what she was doing.
“But the fact is that she did not sign the act in the presence of the notary, but signed it at her home out of his presence; same having been taken to her by her husband for the purpose of obtaining her signature thereto.
“Therefore, as to her, the act was not a .notarial act, but an act under private signature; for notarial acts must be signed in the presence of the notary.”

The landlord was not a party to the act and is, therefore, fully privileged to attack its authenticity. R. C. C. art. 2236; Commercial Germania Trust & Savings Bank v. White, 145 La. 54, 81 So. 753; James v. Rand, 43 La. Ann. 179, 8 So. 623; Hebert v. Lege, 29 La. Ann. 512.

But intervener contends that, even if the document is not a notarial act, but is merely an act under private signature, nevertheless, its recordation in the mortgage office gave notice to the world and that, thus, if that recordation antedated the placing of the automobile in the landlord’s premises, the lien of the mortgage must prime that of the lease. This contention' is based on the fact that the chattel mortgage act (No. 198 of 1918) in section 2 ¡provides that:

“In order to affect third persons without notice, said instrument must be passed by notarial act and the original or a certified copy thereof shall be recorded in the office of the Recorder of Mortgages in the parish where the property shall then be situated, and also in the parish in which the mortgagor is a resident.”

Intervener claims that the recordation in the mortgage office constitutes notice and that, therefore, if the mortgage was recorded in time the landlord cannot be considered as a third person without notice. We believe that the word “notice,” as used in the statute above quoted, means actual notice and not such constructive notice as results from recordation.

. It will be noted that third persons without notice are affected only if two essential requirements are complied with — first, the document must be by notarial act; second, the document must be properly recorded in the mortgage office. Hence it will not do to say that, if the recordation is properly made, the other essential — thát the act be by notarial act- — may be overlooked. What the section clearly intends is that, if a third person has actual notice that the property in question is mortgaged, his rights are affected by the mortgage whether it be executed by notarial act or under private signature, but that, if he has no actual knowledge, his rights can be affected only by a formal notarial act and by such constructive notice thereof as results from timely recordation.

In a case involving facts identical with those now before us, Union Securities Co. v. Neal, Watts, Third Opponent, 9 La. App. 494, 121 So. 316, 317, the Court of Appeal for the Second Circuit said:

“On the second point urged by the seizing creditor — that is, that it had a chattel mortgage on the property seized, our conclusion is that the document on which it relies as a chattel mortgage is not effective against third ¡persons, because it was not executed in notarial form.”

It is true that in that case it is not made to appear that the act relied on had been recorded in the mortgage office, but there can be no doubt that such recordation had taken place because no one would seriously have made the contention that an unrecorded mortgage, no matter in what form, could have had effect against third persons without knowledge.

Counsel for intervener contend that the decision in the Union Securities case has been overruled by a later decision rendered by the same court in Shevnin v. Grimmer et al., 10 La. App. 393, 119 So. 894. Such a conclusion is not necessary, as the facts were somewhat different in the latter case. There' a landlord sought, by rule, to cancel the inscription of a recorded mortgage covering certain property on his premises. Among other grounds it was contended that the mortgage was not in proper form. The court held that by his filing a suit to cancel the inscription the landlord had evidenced knowledge of the existence of the mortgage.

Of course, if the landlord in the case at bar had had actual knowledge, the situation might be the same as that which was presented in the Shevnin case. That both a formal notarial act and a proper recordation in the mortgage office is necessary to affect third persons without actual notice is indicated in the decision of the Supreme Court of Louisiana in Palmisano v. Louisiana Motors Co., 166 La. 416, 117 So. 446.

We can reach no other conclusion than that here, in order to avoid the delay of going to the office of the notary, the act was signed out of his presence and, hence, is not a notarial act and is not effective, except as between the parties or as against those who may be shown to have had actual knowledge of its existence.

Intervener further charges that the burden should have been on the landlord to show that he had no actual knowledge of the existence of the mortgage and, as authority for the soundness of this contention, again cites Shevnin v. Grimmer et al., supra. We cannot agree that there is any such negative burden placed on such third persons by the chattel mortgage act. Parties are given a clear, easy way of protecting themselves against the world. They are .told that they may create a security good as against all persons by having the necessary act passed before a notary and by recording it. If they choose to take short cuts, or to attempt to save time, or money, the burden is on them to show that, nevertheless, certain third persons knew of the transaction and are thus bound by it. Since the record is silent on the question of actual knowledge, we will assume that no such knowledge existed.

The judgment appealed from is annulled, avoided and reversed and there is now judgment in favor of plaintiff, Mrs. Leana Dainello, wife of Louis Milano, and against intervener, General Finance Company of Louisiana, Inc., and against ■ Philip J. Burns, constable of the First City Court of New Orleans, recognizing plaintiff’s lien on the Ford coupe automobile bearing 1930 license No. 106074 seized in these proceedings, and ordering and directing the said Philip J. Burns, constable of the First City Court of New Orleans, to pay to plaintiff the sum of $235, proceeds derived from the sale of the said automobile; intervener to pay all costs of these proceedings.


author: WEBB, J.

text:
    No. 3589
    Second Circuit
    EXCHANGE NATL. BANK v. HOWARD-KENYON DREDGING CO.
    (November 7, 1930. Opinion and Decree.)
    (December 23, 1930. Rehearing Refused.)
    (February 2, 1931. Writs of Certiorari and Review Refused by Supreme Court.)

      Lyons & Prentiss, of Shreveport, attorneys for plaintiff, appellee.
    Thatcher, Browne, Porteous & Myers, of Shreveport, attorneys for defendant, appellant.
   WEBB, J.

Plaintiff, The Exchange National Bank, instituted this action against the Howard-Kenyon Dredging Company, a corporation, to recqver judgment for $1100, with interest and attorney’s fees, represented by a promissory note which ¡plaintiff alleged it had acquired for a valuable consideration before maturity and in due course; and defendant appeals from a judgment in plaintiff’s favor as demanded.

The note, which was annexed to and made a part of the petition, was drawn by H. Deville and defendant, payable on demand to the order of H. Deville, one of the drawers, who endorsed it in blank and transferred it to the plaintiff, which surrendered to H. Deville a note held by plaintiff for a like amount against Deville.

On the face of the note, at the lower . left-hand side, there appeared a notation which reads:

“Order on Howard-Kenyon Dredging. Co. ' attached.” And defendant prayed for oyer of the order, which was produced, which , reads as follows:
“Shreveport, La., June 1926,
“Howard Kenyon Dredging Company,
“Houston, Texas.
“Por value received, pay to the Exchange National Bank, of Shreveport, La. the sum of eleven hundred dollars with 8% interest from date until paid out of any money due me under my contract with you for clearing right-of-way on the Bossier Parish Job when you receive your money from the District on final settlement and charge the full amount to my account.”
(Signed) “H. Deville”

After the production of the order, defendant answered denying that the note was negotiable and that plaintiff acquired it in due course, alleging that defendant’s obligation was conditional and dependent upon whether defendant should be due Deville the amount of the note on completion of a contract between Deville and defendant; that plaintiff had acquired the note with knowledge of and subject to the condition stated; and that Deville had not completed the contract and that no funds were available for payment of the note. Defendant also filed a supplemental answer, in which it was alleged that defendant was an accommodation drawer and that the officer of defendant who drew the note was without authority to bind defendant on accommodation paper, all to the knowledge of plaintiff, and that defendant was not bound.

On trial evidence was introduced which established that plaintiff had demanded payment of a note held by it against Deville (referred to above as having been surrendered on the note sued on being delivered to plaintiff); that Deville informed plaintiff he had a contract with defendant to do certain work, which had been partially performed, under which defendant had retained a percentage of the payments, amounting to approximately $6000, and that defendant would sign a note with Deville. And evidence was also introduced showing that Deville called the construction superintendent of defendant to confirm his statement, who said that the percentage of the payments retained by defendant would not be available to Deville unless and until Deville completed his contract, and that the question of whether or not defendant would sign a note with Deyille was for the executive officers of defendant to decide. While the evidence does not show that any further negotiations were had, a short time after the negotiations stated, Deville delivered to plaintiff the note sued upon, and the order referred to above.

Appellant states in the brief that plaintiff was a party to the transaction from the inception of the negotiations; but we infer from the fact that the defenses set up in the answers are presented here on the theory that plaintiff was the transferee or indorsee of Deville and that its rights should be determined from that point of view, and that appellant does not contend that the instrument did not create or evidence any right which could not be transferred, and we consider the defenses from the point of view that plaintiff was the transferee or indorsee of Deville.

In presenting the defenses that the note was not negotiable and that plaintiff acquired it with knowledge of and subject to equities existing between Deville and de fendant, appellant bases its defenses sole ly on the contention that its obligation was conditional, urging that the note, notation and order should be read together or as a whole, and considered with relation to the contractual relationship between Deville and defendant.

We assume it is conceded that, in determining whether or not the obligation of defendant is conditional or unconditional, or other matters relating to the negotiability of the obligation, the instrument alone must be considered, without regard to extraneous facts; and the note showing on its face that the obligation of defendant was unconditional, it must be so held, unless the notation and order should be considered as a part of the note, and, if read with the note, would show that the obligation of defendant was modified or made conditional.

In discussing the question relative to whether or not the notation and order were a part of the note, counsel for appellant state that the notation was made, on, and the order attached to the note at the time it was drawn, while counsel for appellee state that the notation was not made, or the order attached to the note either at the time it was drawn or when it was delivered to plaintiff. There is evidence in the record which furnishes some basis for both statements. However, as previously stated, the note was annexed to and made a part of the petition and at that time the notation was on the note, and in the absence of any allegation to the contrary the presumption is that the notation was made at the time the note was drawn (Morris v. Executors of Cain, 39 La. Ann. 717, 1 So. 797, 2 So. 418), and the evidence referred to does not overcome the presumption; but the order was not annexed to or made a part of the petition, and the mere fact that it was filed in answer to the prayer for oyer did not make it a part of the petition and was not an admission that it had been attached to the note; and the evidence offered without objection shows that the order was not attached to the note.

The notation, as stated, was separate and distinct from the rest of the note, and did not modify the unconditional promise to pay as shown in the body of the note and render the note non-negotiable (Tyler v. Whitney-Central Trust & Savings Bank, 157 La. 249, 102 So. 325; First State Bank & Trust Co. v. Crain, 157 La. 427, 102 So. 513, 38 A. L. R. 347; Strand Amusement Co. v. Fox, 205 Ala. 183, 87 So. 332, 14 A. L. R. 1121); and while the evidence shows the order was not attached to the note, it was shown, as stated, that at the same time the note was delivered by Deville to plaintiff the order was also delivered, and the question presented is whether or not, under such facts, the order should be considered as incorporated in or as a part of the note.

Had there been an agreement between Deville and defendant that Deville would attach such an order to the note as that delivered to plaintiff before he negotiated the note, and had Deville informed plaintiff of such an agreement at the time the note and order were delivered, it may be that the order should be considered as a part of the note; but there was not any proof of such an agreement, and the evidence shows that defendant had not previously seen or heard of the order.

We are therefore of the opinion that, the evidence showing that the order was not attached to the note, the fact that the order was delivered by Deville to plaintiff at the same time the note was delivered is not sufficient to warrant the order being considered as a part of the note, and considering the note alone or with the notation, the obligation of defendant was unconditional and the note negotiable.

”As stated, the basis of defendant’s contention that plaintiff had knowledge of and took the note subject to equities existing between Deville and defendant, is that the obligation of defendant was conditional, and in presenting the defense here defendant refers to the note, notation and order, and to the evidence previously stated, relative to the contractual relations existing between defendant and Deville when the latter informed plaintiff that defendant would sign a note with him, and appellant urges that considering the note, notation and order together with the evidence referred to, the obligation of defendant was conditional to the knowledge of plaintiff.

The defense that the holder of commercial paper acquired the paper with knowledge of and subject to equities existing between tbe parties, usually related to tbe consideration; but in discussing tbe present defense appellant does not question tbe consideration (presumably reserving that matter for consideration under tbe defense that defendant was an accommodation drawer and that tbe officer of defendant who drew tbe note was without authority to bind defendant on such paper to the knowledge of plaintiff) and although, as stated, appellant refers to the note, notation and order, we gather that appellant does not, in the present defense, contend that the order was a part of the note, but that the order should be considered as other extraneous evidence together with the evidence which established the contractual relationship between Deville and defendant, and that thus considered it shows that plaintiff had knowledge that defendant was not to pay the note unless it should owe Deville the amount of the note on the completion by him of his contract.

The evidence shows that the order had not been seen by defendant, much less accepted; and it being shown that the order was given by Deville to plaintiff, it should be considered as a separate and distinct transaction between the parties, Deville and plaintiff; and we do not think the delivery of the order by Deville should be held to have modified his obligation under the note, much less the- obligation of defendant; and the same would be true even if the order had been accepted by defendant and could have been enforced.

We are therefore of the opinion that the evidence does not establish that the obligation of defendant under the note was modified by the order.

In support of the defense that defendant was an accommodation drawer, and that the officer who drew the note for defendant was without authority to bind defendant on such paper, to the knowledge of plaintiff, evidence was introduced showing that defendant had not received any of the proceeds of the note sued on, and the officers of defendant company stated that there was not any resolution of its stockholders or board of directors authorizing, its officers to obligate defendant where it did not receive any benefit from the obligation.

The note does not state the cause or consideration of the obligation of defendant, but the evidence shows that the motive and purpose o.f Deville and defendant in drawing the note was to obtain the surrender of a note held by plaintiff against Deville, which purpose was, as stated, obtained; and the evidence of the officers of the defendant company (among whom the officer who drew the note was included) being that they were not authorized to ob ligate defendant except where defendant received some benefit from the obligation, the mere proof that defendant did not receive any proceeds from the transaction, where the evidence shows none was expected, is not sufficient to warrant its being held that defendant did not receive any benefit from the transaction, under which plaintiff surrendered to Deville, a subcontractor under defendant, a note held by plaintiff on which Deville was being pressed for payment.

Aside from the failure of the evidence to show want of consideration, the note being regular on its face and the evidence showing that plaintiff acquired it for a valuable consideration simultaneously with its being completed by the indorsement of Deville, even though defendant was an accommodation drawer, to the knowledge of plaintiff, defendant’s obligation could be enforced (Negotiable Instrument Law, Act No. 64 of 1904, sec. 184; Jordan v. Bank, 19 Ga. App. 118, 91 S. E. 287), in the absence of proof that plaintiff knew that the officer of defendant who drew the note was without authority to bind the defendant on such paper; and there is not any such proof in the record.

We find that the evidence established that the note was negotiable, and that defendant failed to establish either of the defenses set up, and the judgment appealed from is therefore affirmed at appellant’s cost.

DREW, J., recused.


text:
    No. 3725
    Second Circuit
    GILLON v. MARTIN (L. C. GRAVES, CO., Intervener)
    (December 23, 1930. Opinion and Decree.)
    (January 27, 1931. Rehearing Refused.)
    J. Rush Wimberly, of Arcadia, attorney for plaintiff, appellee.
    Goff & Barnette, of Arcadia, attorneys for intervener, appellant.
   WEBB, J.

Plaintiff, E. B. Gillon, brought this action against defendant, Henry Martin, to recover judgment for the value of goods alleged to have been sold and furnished defendant to make a crop, on which defendant asserted a. privilege, and obtained a writ of sequestration under which, among other property, there was seized four bales of cotton which had been deposited by defendant in the Ringgold warehouse.

Defendant answered, admitting the indebtedness, but claiming credit for amounts which he alleged plaintiff had not allowed credit, and the L. C. Graves Company, a corporation, intervened, alleging that it was the holder and owner of warehouse receipts issued to defendant by the Ringgold warehouse, which it had acquired from defendant in due course and for value, and that the pretended seizure of the cotton was illegal, null, and void, having been made in violation of a prohibitory law.

Intervener further alleged' that it had furnished defendant with merchandise, etc., to make a crop, -and that it had a privilege on the crop raised by Martin, and intervener prayed for judgment against plaintiff and defendant, decreeing intervener to be the owner of the four bales of cotton seized, and decreeing the seizure of the cotton to have been null and void, and for judgment reserving the rights of intervener to assert .'any privilege it might have against the proceeds of the property seized under the writ of sequestration and sold under any judgment which might be obtained by plaintiff against defendant.

Plaintiff, in answer to the intervention, denied that intervener was the holder or owner of the warehouse receipts in due course or for a valuable consideration, and alleged that the claim of intervener was fictitious and fraudulent, and that intervener was merely an interposed party to aid defendant to defraud plaintiff.

On trial, judgment was rendered in fa vor of plaintiff against defendant for a certain amount, with recognition of a privilege on the property seized, to secure the payment of the judgment, and rejecting the demands of the intervener, reserving to intervener the privilege to assert whatever rights it might have had against Martin or the proceeds of any of the property seized and sold under the judgment awarded plaintiff.

The intervener alone appeals, and in support of its appeal appellant says that the rights of the parties to this property are governed altogether by Act No. 221 of 1908, known as the Uniform Warehouse Receipt Act, and, although counsel refers to section 25 of the statute which forbids the seizure of property deposited in a public warehouse against which a negotiable receipt has been issued, and defendant especially pleaded that the seizure was illegal, in view of the statement made and of the fact that defendant obtained the seizure of the cotton which was sequestered, we assume that appellant has waived any right to have the question of the validity of the seizure determined, and takes the position that the sole question to be determined is whether or not intervener was the owner or pledgee of the warehouse receipts.

From that point of view, counsel must assume that, if appellant was the owner or pledgee of the receipts, its rights thereunder would be superior to the rights of plaintiff, who had a privilege on the crop to secure his claim for supplies furnished to make the crop (article 3217, par. 9, Crop Liens, Civil Code), but such is not the case, at least as between the pledgee and the furnisher of supplies to make the crop. Purity Feed Mills Co. v. Moore, 152 La. 393, 93 So. 196, 197.

There is not any doubt that under the evidence intervener was not the owner of the warehouse receipts, and, conceding that it was a pledgee, which is not without doubt, the plaintiff’s right as against the cotton was superior to any right which intervener had as pledgee of the warehouse receipts and the evidence conclusively shows that plaintiff had furnished supplies to make the crop seized.

In Purity Feed Mills Co. v. Moore, supra, where the rights of a furnisher of supplies against the crop, and the pledgee of a warehouse receipt given for a part of the crop when deposited in a public warehouse, were considered, the court said:

“ ‘Privileges on movable property,’ says the Constitution. * *■ * ‘shall exist without registration of same, except in such cases as • may be prescribed by law.’ In the present class of privileges, we have seen, the Legislature has not acted, and they therefore have full effect without recordation. If the law were such as contended by intervener, the furnishing of supplies would be a very hazardous business, for it would be a very easy matter for the producer. to deposit his goods in a warehouse and negotiate the receipts, or dispose of them in a way to defeat the furnisher’s lien.”

In the present case, however, the evidence does not show that the warehouse receipts were pledged to the intervener, but merely shows that the receipts were delivered to intervener, with authority to sell same and apply the proceeds on the payment of debts due to third persons, and the balance to a debt due to intervener.

The judgment appealed from is therefore affirmed.


text:
    No. 3726
    Second Circuit
    POLICE JURY OF BIENVILLE PARISH v. SUTTON
    (December 23, 1930. Opinion and Decree.)
    (January 27, 1931. Rehearing Refused.)
    W. D. Goff, of Arcadia, attorney for plaintiff, appellee.
    J. Rush Wimberly, of Arcadia, attorney for defendant, appellant.
   WEBB, J.

Plaintiff, Police Jury of Bienville Parish, brought this action against defendant, Prank Sutton, to expropriate a right of way for a public highway over and across certain lands of defendant described as the N. E. Vi of N. W. % and W. % of N. W. Vi of N. E. %, Sec. 4, T. 18 N., R. 5 W., of Louisiana.

There was attached to the petition a plan showing the land and right of way proposed to be expropriated, from which it appears that the right of way was to be sixty feet in width, beginning a short distance north of the southwest corner running thence towards the northwest through the tract a distance of approximately 109 rods to a point south of the northwest corner.

In answer to plaintiff’s demands, defendant set up that there would be some additional land rendered valueless by locating the highway as shown by the plan, and that the value of the land sought to be expropriated, together with that which would be rendered valueless by the expropriation, would be in excess of $500; that it would be necessary to fence both sides of the highway at a cost of $528; that the property would be damaged as a whole in excess of $500, and he prayed for judgment in reconvention against plaintiff in the sum of $1,528.

On trial judgment was rendered in favor of plaintiff ordering the expropriation of the right of way, and in favor of defendant in the sum of $450, with legal interest from date of judgment and all costs, from which judgment defendant appealed, and plaintiff has answered the appeal praying that the judgment in favor of defendant be amended and tbe amount awarded be reduced to $150.

The evidence shows that there was a public road across the property which was paralleled at a distance of about one hundred and twenty-five or thirty feet by the right of way sought to be expropriated; that the residence was located between the old road and the proposed new road, and fronting on the old road, which had been fenced. The plan does not show the location of the old road, or of any of the improvements on the property, and whiie the witnesses called with reference to the damage, which defendant alleged would be sustained by the property as a whole, or the damage which defendant would sustain aside from the loss of the property taken and cost of fencing, referred to the inconvenience of the stock passing over the road from one pasture to another, and the necessity of moving the residence so that it would front towards the proposed new road, there was not any estimate of the extent of inconvenience which would be suffered, or more than a guess as to the amount which it would cost to move the house.

Besides, it clearly appears from the evidence that, with regard to moving the cattle across the road from one pasture to the other, defendant labored under the same inconvenience when the old road was used, and there is nothing in the record which indicates that access to the premises, on which the residence and outhouses were located, would be interfered with by the new road, but the evidence shows to the contrary. There is not any evidence which indicates that the new road will cut the property into parcels of any more inconvenient shape than the old road did, the evidence indicating to the contrary, and there is not any suggestion that the construction of the hard surfaced road through the property will diminish its value. We find that the evidence does not warrant any allowance under the claim for damages of the property as a whole, or damages as distinguished from the amount which should be allowed for the value of the property expropriated, or might be due for fences, which, as stated, defendant claimed as distinct damages.

With relation to the claim for an allowance to build a fence along the right of way, or sides of the proposed new road: The record shows that the right of way sought to be expropriated was approximately 109 rods in length and defendant introduced evidence showing that a fence would cost from 80 cents to $1 per rod, depending on the type of fence. And appellant contends that an allowance should be made for the better type of fence, on the ground, we presume, that he desired to keep all character of cattle and poultry off the road. However, there is not any evidence that defendant raised or intended to raise poultry on the land, and while the evidence shows that he had used a part of the property for pasture and that it would be necessary to fence the roadway, it is not shown that the cheaper fence would not be sufficient, or that it would not be as good as the other fences on the property, and, under the evidence, we do not think any allowance for fences should be made in excess of $174.40 (Street v. New Orleans, Ft. Jackson & Grand Isle R. Co., 43 La. Ann. 116, 9 So. 15).

Appellant contends that the evidence shows that there would be approximately five acres of land taken, or rendered useless, which was worth at least $50 per acre, and that $250 should be allowed for that item.

The plan, and evidence of the engineers, shows that only 3.039 acres were expropriated, and we do not find any evidence in the record showing that any other part of the tract will be rendered valueless or affected by reason of the expropriation; and while there was some conflict in the evidence relative to the value of the land, we do not find that the preponderance of the evidence established that the value was in excess of $150.

It is therefore ordered that the judgment appealed from be amended, and the amount awarded defendant be reduced from $450 to $324.40, and as thus amended, the judgment is affirmed, at appellee’s cost.