author: MOUTON, J. LECHE, J.

text:
    No. -
    First Circuit
    CAMPBELL ET UX. v. HAAS
    (June 5, 1926. Opinion and Decree.)
    (June 26, 1926. Rehearing Refused.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Appeal—Par. 625, 628.
    The verdict of the jury and the finding of the trial court that the defendant was driving his automobile at an excessive rate of speed and negligently, being clearly correct, is affirmed.
    2. Louisiana Digest — Automobiles—Par. 6.
    The negligence of an owner of an automobile in parking her car on the left , side of the road with her bright lights burning cannot be imputed to her guest.
    3. Louisiana Digest — Automobiles — Par. ; 6, 7.
    No negligence can be imputed to a guest in an automobile accident because she remained behind the car while it was parked on the left side of the road with its bright lights burning.
    (Civil Code, Art. 2315. Editor’s note.)
    Appeal from the Parish of St. Landry. Hon. B. H. Pavy, Judge.
    Action by J. Posey Campbell et ux. against Leon S. Haas.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    D. L. Guilbeau, of Opelousas; White, Holloman and White., of Alexandria, attorneys for plaintiff, appellee.
    L. A. Fontenot, R. L. Garland, Jno. W. Lewis; Dubuisson, Perrault & Burleigh, of Opelousas, attorneys for defendant, appellant.
   MOUTON, J.

Miss Lucy Louise Campbell was injured in an automobile accident December 29, 1923, and died of the results of her injuries January 3, 1924. Her surviving parents bring this suit for the sum of $25,000.00 against defendant, alleging that her death was caused by his fault and negligence.

■ Judgment was rendered below in favor of plaintiff for $6250.00 in accordance with the verdict ■ of a jury which tried the case.

Defendant appeals and plaintiffs are asking for an increase in the judgment.

The deceased was, on the night of the accident, invited by Miss Marie Maginley to take a ride with her in a Ford touring car. She accepted the invitation and sat oh the front seat with Miss Maginley. In company with deceased and Miss Maginley were the, latter’s two nieces, Miss Agnes May Allen, about 19 years of age, and her sister, Miss Marie Louise Allen, about 16 years, the daughters of F. C. Allen, who owned the car. Miss Maginley had charge of the car and was driving it on the trip in question. She drove the car from the city of Opelousas on the Bellevue Road in a southern direction to a Mr. Velletin’s place, and .then back towards Opelousas to a point opposite the home of C. P. Smiley, where she stopped to get assistance for repairs to a puncture in the left rear tire of her car. She went across the road from the right side in going northward towards Opelousas, to the left side, and parked her .car there, the left rear wheel being about two feet from the ditch, with both lights burning brightly, and facing towards Opelousas. It was then about 8:30 P. M., and rather dark. Mr. Smiley, carrying a lantern, came up to the assistance of Miss Maginley. The road, at this point, is smooth, well graveled, and is twenty-five feet wide, with a ditch on each side six feet deep and about seventeen in width. All the occupants of the car, including the deceased, got down and with Mr. Smiley and his wife went in the immediate rear of the car. Mr. Smiley not having had much experience with cars was assisted by Miss Maginley and Miss Agnes Allen in removing the flat tire and putting another in its place. After the tire had been changed, Miss Agnes Allen started to let the car down off the jack, and was, therefore, at that time near the wheel from which the flat tire had been removed. Mr. Smiley was then stooping over the rack' which is behind in the middle of the car, fixing on it the flat tire which had been taken off the wheel. The parties were nearly through with the work when Miss' Maginley suddenly screamed: “For God’s sake get out of the way, a car is coming”, or words to that effect, but before any of the six parties behind the car -could move from the position in which they were when Miss Maginley screamed, the Ford or Maginley car was struck by defendant’s auto, knocking the Ford car with such force that it projected against the six parties in the rear of it, knocking all of them down, and rendering five of the parties more or less unconscious for a time, and fatally injuring Miss Lucy Louise Campbell, who died a few days thereafter as hereinabove stated.

Mr. Leon Haas, defendant, left Opelousas in a Wills St. Clair car in company with two of his friends, Messrs. Sanders and Moresi, about 9 the same evening, with the intention of making a social call on Mr. Willis Roy, a friend who lives on the Bellevue Road about three miles below Opelousas. A short distance from Opelousas there is a bend or curve in this road. This turn in the road occurs at a distance of 679 feet from where the Maginley car was parked opposite the Smiley residence. It is, however, a very slight curve, being only of two degrees. The defendant was driving a new car which had not yet traveled 500 miles, according to his testimony and that of Sanders, one of his witnesses. He says the greatest speed to which he had subjected this car was about twenty-five miles an hour, as a greater speed than that is always injurious to such cars up to 500 miles. He says, as he was rounding the curve, he passed a Ford car and then another which were traveling toward Opelousas in an opposite direction. These cars were on the right-hand side of the road going northwards, while defendant was traveling southward near the ditch on the left-hand side. He says, just as he got out of the glare of the second car, he observed bright lights, extremely bright lights from another Ford. This Ford ear was the Maginley car. According to the testimony of Mr. Sanders, they passed the two cars at about 100 feet from where the accident happened. The defendant says the Maginley car had all the appearance of a car with lights moving up and down, and had a light behind which led him to believe another car was •coming, and from which he concluded it would also pass to his right. His companions in the car seem also to have been under the same impression. The only possible cause for this vibration of the lights on that car would have been from the letting down of the car on the jack which it appears Miss Agnes Allen was engaged in about that time. We do not think such a slight movement of the car on the jack could have possibly caused the lights to move up and down to the extent of giving to the Ford car the appearance of a moving car, nor do we think for an instant that the light from an ordinary kerosene lantern which had been set on the ground behind Mr. Smiley, who was placing the flat tire on the rack back of the car, could have projected its light from under or on the side of the car so as to create the impression on the" defendant that another car was coming from behind. He says, when he first realized that the Maginley car was parked, he was then at a distance pi forty or fifty feet from it; that he then immediately applied the foot and emergency brakes and deliberately ran into the. ditch to avoid the collision. He is supported in this statement by Messrs. Sanders and Moresi. Defendant had about eighteen feet on the left side of the road where he could have safely passed the Maginley car if he had swerved in that direction, but explains that he did not do that because to do so he would have run into the light which he thought was coming from behind the Maginley car, of which, however, there was no danger as no car was coming from that point.

Asked at what rate of speed he was going when his car struck the Maginley car, defendant said: “I had to slow down when I met these Ford cars, and I presume I was running at- a speed between 20 and 25 miles.” Sanders and Moresi place the same estimate on the speed of defendant’s car at that time. Sanders testified that a car traveling at that rate could be stopped “at about 35 feet”. It is shown that when defendant realized the Maginley car was not moving that he was then forty or fifty feet from it; that he ■immediately applied the foot and emergency brakes which, upon examination after the accident, were so effectively on that they had to be unlocked by a mechanic. When defendant saw the danger ahead of him, it may be considered as fairly established by his own evidence and that of his two witnesses that his car was then certainly forty feet and possibly fifty feet from the Maginley car. It is also certain that the brakes were immediately and effectively applied. It should therefore have been stopped at a distance of not less than five feet from the other car, and possibly within ten or fifteen feet therefrom. According to the testimony of Sanders, the left front tire of defendant’s car touched the left front fender of the Maginley car. The testimony of the other witnesses shows that a slight dent or imprint on the tire or fender of the cars marked the place of contact between the two cars. It is therefore fair to conclude that the Maginley car received a glancing blow from defendant’s car. It appears, however, that the Maginley car was knocked diagonally across the highway, fatally injuring Miss Campbell' and knocking down, temporarily unconscious, the five others behind the car who did not have the time to get out of the rear after hearing the screams from Miss Maginley that a car was coming on them. Smiley, according to his testimony, was knocked twelve or fourteen feet from the car, and, according to that of his wife, about twelve feet. Smiley says he was badly crippled up and was sent to the hospital where he stayed about a week for treatment for his injuries. Miss Maginley testifies that the defendant’s car was coming at a tremendous speed, that when she saw it advancing so rapidly she hardly had time to think and hollered for everyone to get out of the way. Miss Agnes Allen, who, as before stated, was letting the car down off the jack and was therefore near the left-hand side, says, when her aunt, Miss Maginley, cried: “Look out”, she looked around the side of the Ford and saw the lights of the defendant’s car approaching, but that before she could move she was struck, was knocked down, and when she got up that she could not remember anything. Her sister, Miss Marie Louise, says after Miss Maginley had screamed she did not have time to do anything before the Maginley car was knocked by the defendant’s auto. Mrs. Smiley says she could not say how fast the car was coming but that “it wasn’t creeping”. Miss Maginley has a suit pending against defendant in damages for the injuries she received as a result of the collision’, and the Misses Alien- aré her nieces. ' It may be possible that Miss Maginley was prompted in her evidence by interested motives,- and that her young nieces were, in giving their testimony, influenced more or less by a friendly feeling for their aunt. It must be said, however, in fairness to them, that there appears nothing either evasive or elusive in their evidence which would justify such an inference. However that may .be, it is certain that neither Smiley nor his wife could have been prompted by any such considerations in the narrative they gave of the occurrence. As the defendant’s car was advancing towards them, and during the night, it was impossible for Miss Maginley, the Misses Allen and Mrs. Smiley to fix with any degree of accuracy the speed at which it was traveling. Their testimony shows, nevertheless, that it was traveling at a rapid speed, especially as it is supported by the effects of the impact of defendant’s car which knocked to the ground five persons and killed one, as it is herein-above more specifically stated.

In Maritzky vs. Shreveport Rys. Co., 144 La. 692, 81 South. 253, the court said, in considering the question as to whether a street ear was exceeding an ordinance limit, that the immediate results of its collision with an automobile furnished better evidence than an observer’s estimate as to a street car’s speed. This case affirms the views of the court on the same subject previously expressed in Peterson vs. New Orleans Ry. & Light Co., 142 La. 837, 77 South. 647.

In Maritzky vs. Shreveport Rys. Co., 144 La. 692, 81 South. 253, the court, in the body of the opinion, took occasion to say that: “An estimate of the speed of a vehicle, based only upon the observation of a witness, is usually not much more than a- guess, - after all.” Here', we took-note of the testimony of Miss Maginley,' Mrs. Smiley, and the Misses Allen, only to the effect that it might be considered as showing that defendant’s car was moving at a rapid speed as it was supported by the physical facts which, resulted from the-collision. In connection with the appre-' ciation we have given to this character of evidence, it may not be amiss to refer to the fact that defendant, Sanders and Moresi in rating the speed at which they say defendant’s car was traveling when the accident happened, they were merely giving an estimate thereof as occupants of the car. We know of no case where it is recognized that the occupants of a moving car can with accuracy give the rate at which it is moving, particularly when it is traveling in the night time. It is possible that it can be given with sufficient certainty to justify a finding of fact upon it. When asked how fast he was traveling at the time of the accident, defendant said: “I presume I was running át a speed between twenty and twenty-five miles.1” There is a good deal of uncertainty in this answer and which is pregnant with the suggestion that there is no entire reliability to be placed on such an estimate. Hence, the sound logic of the opinion in the Maritzky vs. Sherevoprt Rys. Co. case that the immediate results of a collision is better evidence than an observer’s estimate of the speed of a vehicle.

We therefore conclude from our analysis of the evidence as above outlined that the defendant was traveling at an excessive and dangerous speed when he struck the Maginley car. As this question presents the vital issue in the case, and as defendant, unless he was at fault in that respect, could not under any circumstances have been held responsible to plaintiffs, it must therefore unquestionably have been' discussed by able counsel on both sides with zeal and fervor before the jury which tried the case below. The jury by its verdict has passed adversely to the contentions of defendant on this subject. In the case of Gillion vs. New Orleans Ry. & Light Company, 130 La. 777, 58 South. 569, the issue presented was as to whether the party complaining had negligently attempted to alight from a car or the crew of the car had been negligent in starting it prematurely.

The court found that the evidence was conflicting on that point, but it held that it would not disturb the verdict of the jury, unless it had been manifestly erroneous. Similar views were expressed by the Supreme Court in Cahill vs. N. O. Ry. & Light Co., 139 La. 185, 71 South. 360, though based on a different state of facts. In Mequet vs. Algiers Mfg. Co., 147 La. 364, 84 South. 904, where the verdict of the jury was unanimous and no motion for a new trial was made, which is the case here, the court said: “Great weight must be given to the jury’s conclusions.” It is primarily the duty of the jury to pass on the facts of a case submitted to it, and unless some weight were attached to its findings, jury trials would be practically valueless and useless. There is nothing in the evidence to justify us in holding that there was manifest error in the verdict of the jury in this case.

The defendant pleads contributory negligence on the part of Miss Campbell, the deceased, because of the parking of the car on the left-hand side of the roadway and leaving it there with bright shining lights. The car was under the exclusive control of Miss Maginley, the driver, and Miss Campbell was merely her guest. If this was an act of imprudence or negligence, on which we express no opinion, such negligence might be chargeable to the dtTver of the car, but which cannot be imputed to Miss Campbell, a guest. This is now well settled. Jacobs vs. Jacobs, 141 La. 272, 74 South. 992; Peterson vs. New Orleans Ry. & Light Co., 142 La. 835, 77 South. 647; Luke vs. Morgan’s Louisiana & T. R. & S. S. Co., 147 La. 30, 84 South. 483.

Miss Campbell is also charged with contributory negligence because she got behind the car, which, it is alleged, had been negligently parked on the wrong side of the road.

In passing on this question when this case was here originally on an exception of no cause of action, this court, in referring to the position of Miss Campbell in the rear of the car when the collision occurred, said:

“The allegation that the automobile in which their daughter went riding was under the sole control of Miss Maginley, the ; driver, negatives the idea that Miss Campbell was in any way responsible for the position of the Maginley car. When Miss Campbell got out of it and into the road, she ceased to be Miss Maginley’s riding guest, and occupied the same position as any other person on foot in the road.
“Defendant contends that Miss Campbell, by being in the rear of the Maginley car while a tire was being changed, was negligent. The law required her, after getting in the road, to exercise due care and prudence for her safety and the rights of others, but there is no law of the road or custom that required her to take herself out of the road or over to the right-hand side of it. Therefore, negligence is not, as a matter of law, to be imputed to her simply because she remained on the left-hand side of the road and in the rear of the Maginley car while a tire was being changed.
“It is contended that it results from her alleged position in the rear of the Maginley car that she could not see defendant's approaching car, but that is not more evident than that she saw it approaching and supposed that it was being driven at a rate of speed and under such control that the driver must see the Maginley car in time to stop or turn to the left of it in the ample leeway left for the purpose, and avoid striking it.”

We find no reason to change our conclusions thus expressed in our original opinion on the exception of no cause of action. We therefore hold that the deceased cannot be held responsible for contributory negligence for the parking of the car by Miss Maginley on the left side of the road, or because she got in the rear of the car while they were repairing the punctured tire. The judgment appealed from is therefore affirmed with costs.

LECHE, J.

I agree with my associates that estimates of speed and distances by the parties in an automobile accident are of little or no value, and I further believe that close estimates of the distance in which an automobile may be stopped 'when going at a speed also estimated are still less deserving of serious consideration. I am further convinced that it is impossible for persons in a rapidly moving automobile, at night, to know that another automobile whose headlights gleam in their eyes, is standing still. On the contrary, the reasonable hypothesis is that it is moving and approaching or else why the gleaming headlights.

Therefore, I do not consider it negligent on the part of the driver of an automobile to assume that' another automobile is moving and approaching when it is headed towards him with glaring headlights on a curved road at night, and, acting upon that assumption, to guide his own automobile so as to pass to the right in accordance with the ordinary rules of the road.

For these reasons I respectfully dissent.


source: Caselaw Access Project

author: LECHE, J.

license: Public Domain

text:
    No. -
    First Circuit
    PULESTON v. STRAWBERRY GROWERS SELLING COMPANY
    (June 26, 1926. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Mandate—Par. 104.
    The plaintiff, alleging that the defendant was delegated by plaintiff with authority to collect the latter’s rent claim, has the burden of proof to show that authority.
    Appeal from the Parish of Tangipahoa. Hon. Columbus Reid, Judge.
    Action by J. A. Puleston against Strawberry Growers Selling Company.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Ellis & Ellis, of Rayville, attorneys for plaintiff, appellant.

      J. H. Inman, of Ponchatoula, attorney for defendant, appellee.
   LECHE, J.

The following facts seem to be established by the record in this case, and, for the purposes of this opinion, may be conceded to be true. Plaintiff owns a farm in the parish of Tangipahoa. He leased the same to Robert Addison for one year, in consideration of a rental of three hundred dollars, payable on April 20. Robert Addison, together with five sons, cultivated the farm and planted and raised thereon crops of strawberries and other truck. Needing advances to cultivate and grow these crops, Robert Addison obtained advances from the defendant, the Strawberry Growers Selling Company, and in accordance with his agreement delivered to the defendant all of said crops as soon as harvested, to be sold for his account and in satisfaction of the advances which he had received.

In this suit plaintiff charges in substance that defendant, acting as the common agent of both himself and Robert Addison, collected from Robert Addison, lessee, for account of plaintiff, the three hundred dollars rent due to plaintiff for the current year and that said defendant refuses to pay the same, notwithstanding amicable demand, and he accordingly prays for judgment.

The evidence fails to establish either of the alleged grounds upon which plaintiff seeks to hold defendant liable. There is no proof that defendant was even delegated by plaintiff with the authority to collect the latter’s rent claim or that it ever assumed such authority. Plaintiff inferentially claims that it was the custom in the strawberry growing belt for factors to secure and collect the rent that might be due by their customers. Such a custom, if it prevails, would- afford no ground of relief to plaintiff inasmuch as it would be contrary to the positive law that no one can be held to a promise to pay the debt of a third person unless such promise is in writing. Nor is there proof that defendant, acting as a negotiorum gestor, collected the rent due by Addison to plaintiff. There is proof on the other hand that Addison is still indebted to defendant for part of the advances which he received from defendant.

- The trial court rejected plaintiff’s demand, and we believe its judgment is correct and should be affirmed, and it is so ordered.


author: ELLIOTT, J.

text:
    No. -
    First Circuit
    McCASKEY REGISTER COMPANY v. HARRIS
    (June 5, 1926. Opinion and Decree.)
    (June 26, 1926. Rehearing Refused.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Sales—Par. 324.
    Where a conditional sale has been made it will be interpreted as an absolute sale and the vendor will have his lien and privileges thereunder. - -

      .2. Louisiana Digest — Appeal—Par. 625.
    The finding of the trial court as to a matter of fact, namely, the lack of fraud in a sale, being eminently correct, is affirmed.
    3. Louisiana Digest — Pleading—Par. 62.
    An exception no cause of action against a petition to enforce a conditional sale will be overruled because the sale can be enforced as an unconditional sale under the Louisiana law.
    Appeal from the Thirteenth Judicial District, Parish of St. Landry. Hon. B. H. Pavy, Judge.
    Action by the McCaskey Register Company against V. E. Harris.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    G. L. Dupre, of Opelousas, attorney for plaintiff, appellee.
    Sandoz & Sandoz, of Opelousas, attorneys for defendant, appellant.
   ELLIOTT, J.

The McCaskey Register Company claims of V. E. Harris the sum of $521.00 with interest, less $50.00 paid February 17, 1925, with ten per cent as attorney’s fees on the sum alleged to be due, as the purchase price of the property described in an accepted order annexed to the petition.

The defendant, after excepting that plaintiff’s petition disclosed no cause of action filed an answer in which he denies that he is indebted unto the plaintiff, urged that the document sued on was a conditional sale, not recognized by, nor enforceable in law, and which he was induced to sign by the misrepresentation and fraud practiced on him by plaintiff.

From a judgment against him defendant has appealed.

The order sued on and annexed to the petition, after stating the name and address. of the shipper, party to whom it was shipped, description of the property, price and terms of sale, contains the following prominently printed:

“Caution — -No Goods Sold on Trial.
“It is expressly agreed that this order, including the conditions on the back hereof, covers all the agreements between the parties and cannot be altered or varied by any verbal agreement or understanding.
“Receipt of an exact duplicate of -this order is hereby acknowledged by purchaser’s signature.
“Title to the goods to remain in The McCaskey Register Company until purchase price or judgment for all or any part of same is paid in full.”

The conditions printed on the back of the order state that the order is subject to acceptance by The McCaskey Register Company and shall not be subject to countermand after acceptance.

Delivery of goods F.O.B. Alliance, Ohio, or other distributing point of any common carrier, shall constitute delivery to the purchaser and any prepaid charges, freight or express, shall be repaid by purchaser.

“Default in the payment of any installment of the price, when due, shall at the option of The McCaskey Register Company, render the total purchase price due and payable, or shall entitle The McCaskey Register Company to immediate possession of the goods specified, without legal process, and any money theretofore paid shall be retained by The McCaskey Register Company as rent or damages, except as otherwise provided by law, time- being hereby expressly made the essence of this contract. The goods herein specified shall not be sold or removed from the county herein named - without the consent of the company, until paid for in full. An,y damage to or loss or destruction of the goods, after delivery, shall not alter the obligation of the vendee to pay the price. The giving of installment notes herein shall not constitute payment or waiver of any terms or conditions of sale. The maker hereon waives the right of exemption under the constitution and laws of any state as to personal property and agrees to pay reasonable attorney’s fees of not less than ten per cent on the balance due,, in case any part of the purchase price becomes past due and is placed with attorneys for collection.

The defendant contends that theée stipulations show that the contract sued on is a conditional sale and not enforceable in law. The Civil Code provides for conditional sales. The Supreme Court in Barber Asphalt Paving Co. vs. St. Louis Cypress Co., 121 La. 152, 46 South. 193, considered a similar contract and defense and held that the contract was not a conditional but a present sale. That the stipulation about title remaining in the seller, when all the elements of a present sale are present will be disregarded and the contract given effect as a sale, the only form in which it can have effect.

In the case before us, the agreement sued on was accepted; there is a certain price, part of which was paid at the time. The property is described; the seller has an unconditional right to the price, and the buyer is bound unconditionally to pay it. The property was delivered and accepted. All the elements of a present sale are present in the contract. Therefore, the stipulation about the title to the property remaining in the seller until paid for will be disregarded and the contract given effect as a sale. In Pratt, etc., vs. Cecelia Sugar Co., 136 La. 179, 182, the court, speaking of an arrangement similar to the one now in hand, says; “But plaintiff certainly had the right to sue to recover the unpaid price or to dissolve the sale for non-payment of the price”, citing C. C. Arts. 2046, 2561, 2564. In Forsman vs. Mace, 111 La. 28, 31, the court says in regard to a similar contract that it was in the nature of a condition which the vendors could at any time waive, leaving the sale unconditional and absolute. See also Bulkley, State ex rel., vs. Whited & Whegless, 104 La. 125, 28 South. 922; Adams Mach. Co. vs. Newman, 107 La. 702, 32 South. 38; Barber Asphalt Pav. Co. vs. St. Louis Cypress Co., 121 La. 152, 46 South. 941.

In this case The McCaskey Register Company is not claiming the ownership of the property; but the price is claimed, with vendor’s privilege on the property sold, and the defendant bound himself unconditionally to pay the price.

The contract is therefore not a conditional sale.

There is one case which appears to be in line with defendant’s contention, but it is in reality based on a different situation as regards the action taken. In Baldwin Co. vs. Shff., 47 La. Ann. 1466, 17 South. 883, the plaintiff brought suit against a purchaser based on a similar contract to the one presently involved and recovered a judgment against him recognizing Baldwin Co. as the owner of the property. This judgment was rendered in a suit against the purchaser in which the ownership of the property was claimed and allowed. Subsequently this judgment was enforced against Newman, a third party. As a matter of legal right Baldwin Co. could have rescinded the sale. C. C. Arts. 2561, 2564.

The case of Baldwin Co. vs. Shff., 47 La. Ann. 1466, 17 South. 883, is not in harmony with Barber Asphalt Pav. Co. vs. St. Louis Cypress Co., 121 La. 152, 46 South. 941, and the other cases cited, and to the extent that they are inconsistent the Baldwin case must be considered as overruled. The exception of no cause of action and defendant’s contention that the contract sued on cannot be treated as a sale and the sum specified as the price was properly overruled. Defendant, citing McLane vs. Creditors, 47 La. Ann. 134, 16 South. 764, urges that he had the right to inspect the registers, etc., after their arrival, with the right to refuse them if found not to be satisfactory. In the case cited there was a question whether the machinery involved had been accepted by McLane. In the present case defendant paid part of the purchase price and unconditionally obligated himself to pay the balance, received the property when it came, kept it, and in doing so he acted on the agreement, which was that no goods were sold on trial and that no order accepted by The McCaskey Register Company was subject to countermand. If this shipment had not been such as had been ordered; if the goods were not of the kind and quality stipulated, defendant could have refused them; but the evidence does not indicate that the shipment was not of the kind and quality ordered. Defendant alleges in his answer that when the goods arrived he took the register, etc., from its box and endeavored to operate it. That defendant’s agent did not come, as promised, to show him how the machine worked; that the machine would not do the work which the agent represented that it would do. There is evidence in the record that plaintiff’s agent did come and erect the machine and that it worked all right; also evidence to the contrary; the affirmations and negations on the subject appear to be about equally ‘divided. But if defendant is correct in his claim that plaintiff was to send a man to erect and show him how to operate the machine and did not do it, then it does not seem that defendant was induced by misrepresentation and fraud to buy because it appears that defendant would have been satisfied if plaintiff had sent a man to erect and show defendant how to operate the machine. Without explanation, and we find none, the two defenses do not appear to be in harmony; but be that as it may, the defendant avers and as a witness contends that plaintiff’s agent told him that if he did not find the machine satisfactory he could return it. The record shows a letter written by defendant to plaintiff’s attorney in answer to request for payment, in which the claim is made by defendant that plaintiff’s salesman told him if he found he could not use the register, etc., or could not pay for it he might return it. This understanding is Contrary to the written order and cannot be reconciled with it. The order informed defendant to the contrary and the order was in that respect noticed by defendant before he signed it; consequently defendant’s claim to misrepresentation and fraud, accomplished in the way stated, in the face of the caution and admonition, is hardly conceivable. The fraud and misrepresentation alleged by defendant is not supported by a preponderance of the evidence. We are satisfied that the district judge decided the case correctly on the law and the facts. The appellee, answering defendant’s appeal, calls attention to the demand in its petition for recognition of a vendor’s privilege on the property described in the agreement. The petition claims a privilege on Cash Register B No. 24 but not on the other property. The plaintiff is entitled to have recognized the privilege claimed; so we will recast the judgment appealed from in order to do so. For the above reasons it is ordered, adjudged and decreed that plaintiff, The McCaskey Register Company, have judgment against defendant, V. E. Harris, for five hundred and twenty-one dollars, with legal interest from judicial demand, subject to a credit of fifty dollars paid February 17, 1925, and that defendant also pay the plaintiff ten per cent attorney’s fees on the sum due. The vendor’s privilege claimed by The McCaskey Register Company on Cash Register B No. 24, described in the petition and contract thereto annexed, is recognized, and it is ordered that said property be seized and sold and that the plaintiff is entitled to the proceeds of the sale in the rank proper to said privilege and by preference and priority over all other creditors of inferior rank and degree, the same to be applied on the judgment herein rendered, as far as same will go. The defendant and appellant to pay the cost in both courts.


text:
    No. -
    First Circuit
    KENNON v. WOMACK
    (June 26, 1926. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Brokers—Par. 23.
    The plaintiff .suing for. a commission for the sale of real estate must prove his case for certainty or by a preponderance of evidence in - order to recover.
    Appeal from the Parish of Tangipahoa. Hon. Columbus Reid, Judge.
    There was judgment for plaintiff.
    Defendant appealed.
    Judgment reversed and case rejected as of non-suit.
    A. L. Ponder and S. S. Reid, of Amite, attorneys for plaintiff, appellee.
    J. D. Womack and Carroll Buck, of Baton Rouge, attorneys for defendant, appellant.
   LECHE, J.

Plaintiff sues for three hundred dollars alleged to be due to him by defendant for commission at 5 per cent on the sale of a bakery situated in the town-of Kentwood. He makes the necessary allegations to establish a contract of employment to show that he rendered the service, that he was the procuring cause, that the compensation at 5 per cent had been agreed upon and that the sale was made for the consideration of six thousand dollars. Defendant admits that he employed plaintiff, that he sold the property for six thousand dollars, but denies that he had agreed to pay the alleged commission, and he further says that plaintiff had agreed to make the sale and to receive as his compensation whatever sum he might obtain in excess of -six thousand dollars. Defendant insists that it was understood and agreed that the property was to net him six thousand dollars above any commission or expenses of sale.

Plaintiff pursues the occupation of real estate broker; he says that he is qualified as such, and pays a license for the lawful conduct of his business. The contract for the sale of defendant’s bakery is not claimed vto have been written, but is said to have .been verbal. So that the evidence in regard to his compensation is entirely by parol. The only witnesses to the contract , are the plaintiff and the defendant. They flatly contradict one another on the question of remuneration. So far as we know and so far as the record shows, the credibility of the one is as worthy as that of the other, and, of course, such testimony is bound to leave the truth in absolute doubt. It might be claimed that as the rule usually followed by appellate courts under these conditions requires that' the finding, of the trial judge should be adopted, we accordingly should affirm the judgment which condemned the defendant for the whole amount in suit. But there is still another rule which must be adhered to by all courts, and that rule is that the plaintiff must prove his case by a preponderance of evidence.

In this case, instead of proving his demand by a preponderance of evidence, we find that plaintiff’s proof is very materially weakened by this attendant circumstance. Plaintiff is a qualified realtor and, no doubt, uses the usual form of written contract adopted by persons following that occupation. We find in the record a blank form of such a contract, which is said to have been handed to defendant by plaintiff, filled out in pencil, for the listing of a farm. It is unsigned and its contents do not concern the “bakery” involved in this case. The question then logically suggests itself, why did not plaintiff require that such a contract be entered into and signed by defendant for the sale of the “bakery”. Defendant explains this by saying that he refused to sign such- a contract because by its terms he would have made himself liable for a 5 per cent commission. This statement of defendant is corroborated by Dr. Henry Monget.

Plaintiff did attempt to sell the bakery for $6500.00. He then offered it for $6300.00 and being unable to get an offer above $6000.00, defendant cancelled the contract and executed a sale independently of plaintiff.'

We believe the plaintiff has failed to prove his case with certainty or by a preponderance of evidence.

For these reasons the judgment appealed from is avoided and reversed and plaintiff’s demand rejected' as in case of non-suit, with all costs.


text:
    No. -
    First Circuit
    ETOWAH MONUMENT COMPANY v MERCHANTS & FARMERS BANK & TRUST COMPANY
    (June 26, 1926. Opinion and Decree.)

      (Syllabus 6y the Editor.)

    1. Louisiana Digest — Pleading—Par. 62— Bills and Notes — Par. 208.
    An exception no cause of action filed by the endorser of a check, a bank through which the check had passed, should be sustained where the holder of the check sued the acceptor and the drawer of the check.

      2. Louisiana Digest — Pleading—Par. 7; Bills and Notes — Par. 192, 201.
    One cannot cumulate two causes of action inconsistent with one another. Thus the holder of a check cannot accept it in payment of his claim and also repudiate the check.
    Appeal from the Parish of Tangipahoa. Hon. Columbus Reid, Judge.
    Action by Etowah Monument Company against Merchants & Farmers Bank & Trust Company, et al.
    There was judgment for plaintiff.
    The defendant, Citizens National Bank, appealed.
    Judgment reversed and case dismissed.
    A. W. Spiller,, of Hammond, attorney for plaintiff, appellee.
    J. J. Jackson, Rownd & Warner, of Hammond, A. S. Burns, of Ponchatoula, attorneys for defendant, appellant.
   LECHE, J.

The facts in this case are that the Estate of John C. Nelson, under the control of J. S. Nelson as administrator, was indebted to plaintiff in the sum of one hundred and sixty-four and 80-100 dollars; that J. S. Nelson, administrator, in satisfaction and payment of said claim, handed to one D. C. Wall, who represented himself as agent of plaintiff, a check for said amount, payable to plaintiff, drawn on the Hammond State Bank; that this check was certified by the Hammond State Bank; that Wall then endorsed the check “Etowah Monument Co., D. C. Wall”, and transferred it to and collected it from the Merchants & Farmers Bank & Trust Company. The check in course of trade was passed to the Citizens National Bank of Hammond and that bank in due time collected the check from the drawee, the Hammond State Bank. Now it seems that D. C. Wall did not have the authority to make the endorsement on behalf of plaintiff nor was he authorized to transfer or collect the check.

Under this admitted state of facts, plaintiff secured the cancelled check from the Hammond State Bank, brought the present suit, and it prays for judgment against the Merchants & Farmers Bank & Trust Company, the Citizens National Bank of Hammond, the Hammond State Bank and the Estate of John C. Nelson.

The Citizens National Bank filed an exception of no cause of action, and also excepted that plaintiff had cumulated two causes of action inconsistent with one another, praying that it be ordered to elect and in default that its suit be dismissed.

Identical exceptions were also filed by the Merchants & Farmers Bank & Trust Company.

The court overruled both of these pleas, and these two defendants then answered.

It is not necessary from the view we have taken of the case to recite in detail the action taken by the other defendants. Judgment was rendered against the Merchants & Farmers Bank & Trust Company and the Citizens National Bank and they alone have appealed.

Plaintiff filed in this court a motion to dismiss the appeal of the Merchants & Farmers Bank on the ground that it had admitted in its answer an indebtednessness of seventy-four and 80-100 dollars and that, therefore, the amount in contest so far as that bank is concerned amounts mly to $90.00, a sum below the appellate urisdlction of this court.

It is a fact that the Merchants & Farm-;rs Bank alleges in its answer that it nade a tender ■ of this amount to plaintiff md it further alleges in Article g of its mswer that it deposits the same with ;he court and, therefore, this amount, jeing admittedly due to plaintiff, there •emains only ninety dollars in contest be-;ween plaintiff and that bank.

For that reason plaintiff’s motion to lismiss should be sustained and it is iccordingly so ordered.

Under the state of facts set forth in :he beginning of this opinion, plaintiff jould sue the Estate of John C. Nelson m its original claim, or it could sue on ;he check issued in its favor by the administrator of that estate.

It is obvious in our opinion that it muid not sue upon both causes of action, Eor if it sued upon the check, it could mly do so by accepting it in payment of its claim. It could sue the Nelson Estate, thereby repudiating the check, and at the same time sue upon the check as its property. If it sued upon the check, it could only sue the acceptor of the check, the State Bank of Hammond, and if it could not recover from the acceptor then it could have sued the drawer, the Estate of Nelson. In fact, it not only sued upon the check, but it sued the endorsers of that check between whom and itself there was no privity of any nature or kind whatsoever. We believe that the exceptions filed by the Citizens National Bank should have been sustained and plaintiff’s demand as against that bank should have been dismissed.

For these reasons the appeal herein taken by the Merchants & Farmers Bank & Trust Company is dismissed at its cost and the judgment appealed' from, so far as it condemns the Citizens National Bank, is avoided and reversed at the cost of plaintiff and appellee.


author: MOUTO'N, J.

text:
    No. -
    First Circuit
    CARVER v. VERNON PARISH LUMBER COMPANY, INC.
    (June 5, 1926. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Laws—Par. 68, 70, 72.
    One who sues for the value of tokens provided by Act 228 of 1908, as amended by Act 210 of 1924, must prove that he made demand on the regular pay day and was refused payments before he can recover under the Act.
    Appeal from the Parish of Vernon. Hon. John H. Boone, Judge.
    Action by C. R. Carver against Vernon Parish Lumber Company, Inc.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed and case dismissed as of non-suit.

      P. L. Ferguson, of Leesyille, attorney for plaintiff, appellee.
    ,>¡;Hardin & Cavanaugh, of Leesville, attorneys for defendant, appellant.
    ELLIOTT, J., dissents.
   MOUTO'N, J.

Defendant company issued a metal token or device redeemable in merchandise at Kurtwood, La.

Plaintiff as the legal holder of $750.00 of these tokens sues defendant company for that amount, for which judgment was rendered in his favor, with ten per cent attorney’s fees.

He alleges that he has made demand on defendant company for the payment thereof on the regular pay day of defendant company, which has been refused.

Our first statute on this subject is Act 228, 1908. This Act provides that any person, firm or corporation issuing such devices shall be liable for the full face value thereof to any legal holder thereof in current money of the United States on demand on the next pay day of such firm, person or corporation. This Act was amended by Act 210„ 1924, by making such persons, firms or corporation issuing tokens of that character liable on demand on their regular pay day, instead of their next pay day. Section 3 of the original Act was also amended by subjecting the party violating its provisions to a fine or imprisonment. Both ■ Acts, however, provide that the person, firm or corporation shall be liable to the legal holder of such tokens on demand being made by him on the person, firm or corporation issuing such devices. Plaintiff, we presume, realizing that the statutes required a compliance therewith in this respect, averred that a demand had been made by him for the payment of these checks • on • thé reg ular pay day of - defendant company.-

Plaintiff in his testimony says he de manded payment for these checks. Ir testifying on this subject, he says, he had a lcftig talk with Joe Kruth, who askec if there were not a way by which the checks could be cáshéd, if discounted Testifying further, he says,, Kruth saic he' had issued checks like these, and askec plaintiff if there was no way of getting together on a discount. There is not a line or proof in the record showing tha1 Kruth was representing the defendant company or had connection with it as agent or in any other capacity. Everything is left to conjecture, and we cannot infer that Kruth was empowered to bine the company by his implied refusal to pay the checks. Prom the fact that plain tiff alleges he had 'made demand foi the payment of the checks on the regular pay day of defendant company, we must infer that he was therefore proceeding under the provisions of the amendatory Act, that is, No. 210 of 1924. There is, however, a total lack of proof on his part to' show that his demand, if his conversation with Kruth can be construed as such, was made on the regular pay day of defendant company; or, for that, on any other pay day. Such checks are necessarily issued in advance of the pay day, and are not payable until that day comes around. On that day the laborer in whose favor such checks are issued, or his transferee,, has the option, instead of requiring delivery of merchandise for their payment, to demand their redemption for their full face value in current money of the United States. Such laws are in derogation of common rights, must be strictly construed and complied with, or else parties invoking recovery under their provisions cannot recover. In the instant case plaintiff has not. only failed to comply with the essential requirements of either of the statutes in question by making his demand at the time therein pointed out, but has not offered the proof necessary. to recover under the allegations of his own petition.

It is therefore ordered, adjudged and decreed that the judgment appealed from be avoided, annulled and reversed, and that- the demand of the plaintiff be and is hereby dismissed as in case of non-suit, at his costs in both courts.


author:
LECHE, J.
      ELLIOTT, J.-,

text:
    No. ——
    First Circuit
    CAYTON v. REDMAN
    (June 5, 1926, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Appeal—Par. 544, 598, 694.
    Where a case is submitted without brief of argument and the record apparently sustains the findings of the trial court the judgment will be affirmed.
    Appeal from the Parish of Vernon, Hon. H. Boone, Judge.
    Action by E. E. Cayton and others against Henry Redman, Mrs. E. R.,.Crow and Lewis Bros., intervenors. . There was judgment for Mrs. Crow, Intervenor. Plaintiff appealed. 1
    Judgment affirmed.
    C. E. Hardin, of Leesville, attorney for plaintiff, appellant.
    , P. L. Ferguson and S. I. Foster, of Lees-ville, attorneys for defendant, appellee.
    ELLIOTT, J., dissents for .written reasons.
   LECHE, J.

Henry Redman owned a sawmill, situated in the parish of Vernon, and upon his leaving the state, several of his creditors attached the sawmill property. The present controversy involves a contest between the attaching creditors and the intervenors as to priority of right over the proceeds of sale of this property, which are insufficient to pay all creditors.

The trial judge found that Mrs. Crow, holder of a mortgage of two thousand dollars had a prior right to these proceeds by virtue of her mortgage, he further found no lien or privilege in favor of any of the othér creditors except such as arose from their attachments and he accordingly ordered the proceeds to be paid to Mrs. Crow.

This case has been on the docket of this court for over two years and was only finally and regularly submitted on March 17th of this year and without argument, oral or written.

From an examination of the record, it appears that the trial judge has properly disposed of the questions involved.

Where a case submitted without brief or argument and the record apparently -sustains the findings of the trial, court, the judgment should be affirmed and for -that reason the judgment herein is affirmed.. :

ELLIOTT, J.-,

dissenting. The suits of E. E. Cayton vs. Henry Redman, No. 4098, and of L. M. Cayton vs. Henry Redman, No. 4099, in both of which Lewis Bros. and R. A. Crow (Mrs. E. R. Crow substituted for R. A. Crow, deceased), are intervenors, were consolidated and are combined in the present transcript. The plaintiffs E. E. Cayton, L. M. Cayton and intervenors Lewis Bros, and Mrs. E. R. Crow, all obtained judgments against the defendant Redman, sustaining their writs, etc., but the proceeds of defendant’s property covered by their seizures was applied as a credit on the judgment obtained by Mrs. Crow. The two Caytons and Lewis Bros, appealed from this application. It is my opinion that their appeals should be ex-officio dismissed by the court. The defendant was not personally cited in any of the demands against him and made no appearance in the lower court. The records do not show that notice of judgment was served on defendant in any of the cases as the law requires, C. P., Arts. 575 and 624.

Until notice of judgment has been served on Redman for the time and in the manner and form prescribed by law, the judgments rendered against him in favor of the two Caytons, Lewis Bros, and Mrs. Crow are not executory, nor appealable. It makes no difference that the appeals are aimed at the application of the proceeds of defendant’s property as a credit on the judgment obtained by Mrs. Crow, the appeals require a review of the judgments^ rendered against the defendant Redman.

As stated, the judgments appealed from dispose of defendant’s property, therefore the defendant is a necessary party to these appeals. A judgment should not be affirmed against a party which disposes of his property, if such party is not before the court in such a way as to be bound by the judgment. Henry Redman is not a party to these appeals; he was not cited tc appear and answer them and he has noi appeared; he is therefore not before this court. The" only thing this court can do or has power to do, in such a situation is to dismiss the appeals. C. P., Arts. 581, 582, 583; Louisiana Digest, vol. 1, pp. 373 to 375, Sec. 222 and 223, etc.

I am not satisfied from the record that the court acquired .jurisdiction in personam as to said Redman in the suits instituted by E. E. Cayton and L. M. Cayton; not in rem as to the suits instituted by Lewis Bros, and R. A. Crow. I do not agree with the majority of the court that the record apparently supports the judgments rendered. As I think the appeals should be dismissed, I will not enter into a discussion of the merits, nor express an opinion on that subject, but will confine my dissent to the action of the court in entertaining the appeals.


author: MOUTON, J.

text:
    No. -
    First Circuit
    ARDIS & COMPANY, LTD., v. TURNER AND U. S. FIDELITY & GUARANTY COMPANY
    (May 4, 1926, Opinion and Decree)

      (Syllabus by the Editor.)
    1. Louisiana Digest — Sheriffs and Constables, — Par. 39, 55.
    In view of Revised Statutes Article 3594 the sheriff who delivers goods held under a writ of sequestration to the trustee in bankruptcy without an order from the district court or the consent of the plaintiff is liable for their value and his bondsmen are also liable.
    Appeal from the Parish of Vernon, Hon. J. H. Boone, Judge.
    Action by Ardis and Company against D. F. Turner and U. S. Fidelity and Guaranty Company. There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Blanchard, Goldstein and Walker, of Shreveport, attorneys for plaintiff, appellee.
    Hardin & Cavanaugh, Thompson and Ferguson, of Leesville, attorneys for defendant, appellant.
   MOUTON, J.

On October 13, 1923, plaintiff sued James S. Franklin in the District Court of Vernon Parish for $3400.00 the alleged price of a lot of goods he sold to said Franklin, claiming a vendor’s privilege thereon, and obtained the issuance of a writ of sequestration under which these goods were sequestrated by D. F. Turner, sheriff of that parish. On May 15, 1924, the district judge rendered judgment for plaintiff company against Franklin for $2939.52, which expressly maintained the writ of sequestration, and recognized plaintiff’s vendor’s lien on the goods seized under the writ.

Plaintiff alleges that at some time between October 19, 1923, and June 24, 1924, D. F. Turner, sheriff of Vernon Parish, one of the defendants herein, illegally permitted the release of the goods he had under seizure without its consent or authority of the court of said parish. He further avers that on June 24, 1924, he caused a writ of fi. fa. to issue on the judgment it had obtained against Franklin which was returned nulla bona by said sheriff on the same day,- and that it has been, unable to realize anything on its judgment.

Plaintiff alleges that the goods thus released by the sheriff were worth $2000.00 and brings this suit against him in the present proceedings and the United States Fidelity and Guaranty Company, surety on his bond, for the value of these goods.

In the answer to the suit Turner, sheriff, and the United States Fidelity and Guaranty Company admit that plaintiff had a vendor’s lien on the goods sold to Franklin, and that they had been sequestrated under the writ. A. T. Murphy, trustee in bankruptcy of Franklin who has intervened in this case, adopted the answer of defendant and admitted that the goods had been sequestrated under plaintiff’s vendor’s lien.

The sheriff admits in his answer that he surrendered the property seized to Murphy, trustee, but that this surrender had been made after Franklin had been adjudicated a bankrupt, and Murphy had been appointed trustee or receiver. He claims that his acts were therefore legal and that he should, with the surety on his bond, be exonerated from liability. He also pleads that Murphy, trustee, should have been made a party to the suit of plaintiff' herein against James S. Franklin wherein judgment was obtained against Franklin, and upon which the fi. fa. was issued and returned nulla bona.. The intervenor, Murphy, adopted all the pleas, admissions and defenses urged in the answer of the sheriff, and the indemnity hond company, and in the alternative asked in the event that judgment were rendered against the sheriff that a like judgment be decreed against him as receiver of Franklin’s bankrupt estate.

Judgment was rendered for plaintiff against the sheriff and the bonding company for $1298.64, from which Murphy, as trustee and intervenor prosecutes this appeal.

The record shows that in the case of plaintiff against James S. Franklin that the goods were seized by the sheriff in execution of the writ of sequestration on October 13, 1923, and were taken in his posession at that time. It is shown that the petition to have Franklin adjudicated a bankrupt was filed in the Federal Court on October 31, 1923, that he was adjudicated a bankrupt November 24, 1923.

It therefore appears that the seizure under the writ of sequestration had preceded the filing of the petition in the bankruptcy procedings by eighteen days, and the adjudication of Franklin as a bankrupt by more than one month.

In cases where the lien or privilege arises through legal proceedings or the process of the state court, the bankruptcy court as a rule has jurisdiction of the case under the bankruptcy statutes. This is not the case here. In the instant case the goods were seized under a writ of sequestration in enforcement of a vendor’s lien. The lien arose from the nature of the claim, and not from the process of the court. The moment the sheriff took possession of the goods the- district court of Vernon was vested with jurisdiction of the case. Lehman, Stern & Co. vs. Martin & Co., 132 La. 231, 61 South. 212. The subsequent appointment of Murphy, as trustee, did not give him the right to demand possession of the goods from the sheriff as the state court had assumed control and had jurisdiction over the property prior to the bankruptcy proceedings,. Pietri vs. Wells, 137 La. 1087, 69 South. 847, and authorities there cited. As the state court had assumed jurisdiction it had the right to retain it for a final order or decree. There is therefore no merit in the contention of the trustee that he was a necessary party to the suit. It was his duty to come into the District Court to have his rights litigated. The fact is that he appeared in that court as an intervenor. Having so appeared, he thereby subjected himself to the jurisdiction of that court'. O’Reilly vs. Pietri, 135 La. 2, 64 South. 933. In such cases, where the plaintiff is proceeding on a recognized lien, the property seized should be sold, the plaintiff’s cost paid out of the proceeds, and the residue turned over to the trustee. Schall vs. Kinsella, 117 La. 687, 42 South. 221.

As the sheriff delivered the goods to the trustee without an order from the District Court or the consent of the plaintiff, he is liable for their value. R. S., sec. 3594; Crane, Breed & Co. vs. Quinn, 23 La. Ann. 511; Arrowsmith vs. Gordon, 3 La. Ann. 105; Ray vs. Harris, 7 La. Ann. 138; Augusta Ins. Co. vs. Packwood, 9 La. Ann. 74.

The district judge gave plaintiff judgment for $1298.64, which the evidence shows he was fully entitled to recover. He gave a like judgment against Murphy, trustee, who had asked in his intervention that if the sheriff were cast in the suit that judgment be rendered against him as trustee, for the same amount.

As far as the record discloses no one seems inclined to interfere with the judgment so rendered by the court against the trustee which was granted in compliance with his judicial request, and' which is hereby affirmed with cost.


text:
    No. —
    First Circuit
    CEFALU v. SCOTT NORRIS & COMPANY
    (June 26, 1926, Opinion and Decree)

      (Syllabus by the Editor.)

      1. Louisiana Digest — Bankruptcy—Par. 26.
    The courts of this state have no jurisdiction or right to interfere with the possession and control of property which has been lawfully vested in a bankruptcy court.
    Appeal from the’ Parish of- Tangipahoa, Hon. Columbus Reid, Judge.
    Action by Nicholas Cefalu against Scott Norris & Company. There was judgment for defendant for want of jurisdiction. Plaintiff appealed.
    Judgment affirmed.
    Reid and Blache, of Amite, attorneys for plaintiff, appellant.
    Charles Elliott, of Amite, attorney for defendant, appellee.
   LECHE, J.

Plaintiff in this suit has seized and sequestered two checks payable to and in the possession of the defendant. At the time of the seizure, the defendant domiciled in the State of New York, had gone into bankruptcy, its assets placed in the hands of a trustee and the trustee had forwarded the checks to Mr. Charles Elliott, an attorney, residing in the parish of Tangipahoa in this state, for collection. The checks were then admittedly under the control of a bankruptcy court in the State of New York. But the courts of this state have no right to interfere with the possession and control of property which has been lawfully vested in a bankruptcy court. Loeb vs. Fisher, et al., 137 La. 132. It is therefore apparent that the seizure and sequestration of the two checks has been wrongfully obtained.

The judgment of the trial court setting aside the seizure and sequestration and refusing the demand of plaintiff for want of jurisdiction should be affirmed, and it so ordered.


author: REYNOLDS, J.

text:
    No. 2617
    Second Circuit
    LASYONE v. ZENORIA LUMBER COMPANY, INC.
    (June 30, 1926, Opinion and Decree)

      (Syllabus by the Court.)

    1. Louisiana Digest — Negligence—Par. 15, 17.
    To warrant judgment for damages for an accident, the acts complained of must constitute the proximate cause of the accident.

      Appeal from the Eighth Judicial District Court of Louisiana, Parish of Lasalle, Hon. F. E. Jones. Judge.
    Action by Oscar Lasyone and wife against Zenoria Lumber Company, Inc. There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    A. D. Flowers, of Jena; Peterman, Dear and Peterman, of Alexandria, attorneys for plaintiffs, appellees.
    Stubbs and Thompson, of Monroe, attorneys for defendant, appellant.
   REYNOLDS, J.

Oscar Lasyone and'wife sue the Zenoria Lumber Co., Inc., to recover $15,117.50, damages alleged to have been sustained by them because of the death of their daughter, Sybil, aged seventeen months.

They allege that they and their daughter resided in a dwelling that Oscar Laáyone had rented from Zenoria Lumber Co., Inc., and that while the child was playing in one of the rooms of her house she accidentally lost her balance and fell against a nail that protruded two or three inches from one of the walls and that the nail pierced her skull and entered her brain and caused her death; that they were without knowledge of the presence of the nail in the wall; that it was the duty of defendant “to know whether the said dwelling and premises were safe for the purpose for which it was rented, or for which its use was authorized; and that said defendant is answerable in damages to those who, being lawfully therein, are injured by reason of the defects thereof, whether from original construction or failure to make proper repairs.”

The defendant filed an exception of no right or cause of action. The judge a.quo sustained the exception and dismissed plaintiffs’ suit and they have appealed.

OPINION

Defendant insists that plaintiffs’ petition does not set forth a cause of action for the reason that the presence of the nail protruding from the wall was not the proximate cause of the injury to, and death of plaintiffs’ child and it cites in support of this contention many cases, the following among others:

Bianchi vs. DelValle, 117 La. 587.

Thompson on Negligence, vol. 1, secs. 44, 45, 47, 50.

94 U. S. 469.

84 Fed. 950.

84 N. W. 727.

90 S. W. 113.

These authorities support defendant’s contention that plaintiffs’ petition discloses no right or cause of action.

It is therefore ordered, adjudged and decreed that the judgment appealed from be affirmed.


author: ODOM, J.

text:
    No. 2575
    Second Circuit
    JONES v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY CO.
    (June 2, 1926, Opinion and Decree)
    (June 30, 1926, Rehearing Refused)

      (Syllabtis by the Editor.)

    1. Louisiana Digest — Railroads—Par. 78.
    The engineer who sees an object on the track, does not know what it is, but knows that the track at that point is used by pedestrians is guilty of the grossest negligence if he does not stop before hitting the object and thereby take the ' last clear chance to avoid killing a human.
    2. Louisiana Digest — Railroads—Par. 74, 78.
    Although one who becomes intoxicated and in that condition lies down on the railroad track is guilty of negligence it will not bar recovery for his death if the engineer of the train had the last clear chance to avoid the accident and did not take it.
    3. Louisiana Digest — Appeal—Par. 625.
    The finding of the trial court as to the quantum of damages allowed for the death of a husband and father being a question of fact and not manifestly erroneous is affirmed.
    Appeal from the Third Judicial District Court of Louisiana, Parish of Lincoln, Hon. S. D. Pearce, Judge.
    . Action. by Mrs., Kate Jones, individually, and as tutrix against- Chicago, Rock Island & Pacific Railway Company. There was judgment for plaintiff and defendant appealed. Plaintiff asked for an increase .of judgment.
    Judgment affirmed.
    Elder and Digby, of Farmerville, and Thompson, of Ruston, attorneys for plaintiff, appellee.
    Barksdale, Warren and McBride, of Ruston, attorneys for defendant, appellant.
   ODOM, J.

On Sunday evening, March 15, 1925, W. D. Jones was' run over by one of defendant’s passenger' trains: He was found dead on the track under one of the cars with one arm cut off, one leg broken, and with bruises about his head and face.

Mrs. Kate Jones, his surviving wife, individually and as tutrix of her two minor children, issue of her marriage with deceased, brought this suit to recover damages in the sum of $30,000.00, alleging that the deceased was run over and killed by defendant’s train through the gross fault and negligence of those in charge thereof.

In answer, defendant admitted that its train ran over the body of .the deceased, as alleged, but denied that it killed him, and averred that—

“* * * at the time the train passed over the body of the deceased the deceased was already dead either from heart disease or some other cause.”

And, in the alternative, in case the court should find that its train caused the death of the deceased, then it is alleged that the deceased was lying on its track in a drunken condition;, .that he was guilty of the grossest kind of negligence in being thus drunk and on its track; that he was a trespasser,-' without any right on its property; that its train was equipped with the best - of modern appliances, all of which were in perfect condition and working order; that the plight of the deceased was discovered as soon as it was possible to do so; and that after the body was discovered on the track the engineer did everything possible to avoid striking it, and that after the body was discovered it was impossible to avoid running over it.

' There was judgment in the lower court for plaintiff for $8,000.00, from which defendant prosecutes this appeal. Plaintiff filed a motion in this court to amend the judgment by increasing it to $15,000.00.

OPINION

On the evening of March 15, 1925, at about 7 o’clock the deceased was at the “Red Onion” cafe in Ruston in an intoxicated condition.- He complained of feeling bad and Mr. E. -A. Garr offered to take him home in an automobile, which offer was refused, and shortly thereafter he started-to walk to his home, which is on a farm about - one mile south of Ruston, adjoining the railroad right of way.- From the fact that the deceased was found lying on the railroad track, it is likely that he used the track as a footpath.

Shortly after the deceased left the cafe, the defendant’s passenger train left the station and proceeded on its way south. From- the station south to what is called South Line street the track makes a considerable curve to the left, but from about that poiní " it is straight for something like a mile.' .......

• There- were a number of persons congregated at or near South Line street when the- train passed who- saw- the- train- make a sudden stop when about 450 feet south of that point. None of them, however, saw the deceased on the track nor did any of them know why the train had stopped.

When the train was brought to a full stop, the body of the deceased was found dead on the track beneath one of the cars with one arm cut off, one leg broken and with bruises or wounds about the head and face, and from blood and other signs on the rail and track it seems that the body was dragged along the track a distance of about 60 feet after being struck.

The only eye witness to the accident was Mr. William Geister, the engineer in charge of the engine. Mr. Geister is 62 years old and has been, a locomotive engineer about 42 years. In a written opinion, which we find in the record, the district judge stated that Mr. Geister impressed him as being thoroughly honest and truthful and that apparently he made no effort to shade or color the facts in order to shield himself from blame' or relieve his company from responsibility. We therefore accept his version of the accident as correct, which is as follows:

“When I left Ruston station it was about 7:10 p. m. It was dark, had been drizzling rain all evening, and as I was running south, rounding the curve at that crossing down there that you call South Line crossing, and before I got around the curve just at the point of going around the curve I saw an object lying next to the right hand rail going south, but I couldn’t tell what the object was until I came within about fifty feet of it. Then I discovered it was a man. * * * Then' I made all possible effort to stop. * * I stopped just as quickly as it was possible to stop. * * * In about a hundred feet or a little over. *' * * It was the body of a man lying full length against the right hand rail and on the right side of his face, full length — head south— full length, stretched out, with his heels up in the air * * * made no movement at all.”

He further said that the- man’s clothing was rather, brown or dark color and—

“At first when I saw the object I couldn’t tell what it was, until I got the vision of the headlight on him. Then I discovered it was a man.”

He further said that—

“The engine would have to be at least twenty or twenty-five feet from the crossing before the focus would be in the center of the rails.”

He was asked what there was about the object when he first saw it to indicate that it was the body of a man, and he said—

“Many times an object shows up in front of you that you don’t recognize until you get on to it. I could only see it was an object.”

There is some conflict between the testimony of Mr. Geister and that of the other witnesses as to how far he was from the man when he first saw him on the track. Mr. Geister could not tell exactly, but said he saw the object on the track when the engine was 20 or 25 feet south of South Line street and that he struck the body about 300 feet south of that street. Other witnesses, who made measurements, testified that the body was picked up 480 feet south of that street. So that if Mr. Geister is correct in his statement that he first saw the object when he was 20 or 25 feet south of the street, he must have seen the object when he was approximately 400 feet from it. The district judge, after considering all the testimony, reached the conclusion that Mr. Geister saw the object on the track when he was some 250 or 300 feet from it and that that is probably correct. However, the exact distance is not material, Because Mr. Geister says that when he discovered that the object which he saw on the track was a man he stopped the train within about 150 feet, and admits that had he applied the brakes when he first saw the object he could have stopped the train before reaching the body. His reason for not stopping the train sooner , is, that, when he first saw the object on the track he did not know it was the body of a human being, and he waited until he was near enough to see that it was the body of a man before attempting to stop. When he made the discovery that it was a man; he was within fifty feet of it and then it was too late to stop before hitting it.

The body of the deceased was lying prostrate on the track, face down, over against the right hand rail, with feet north toward the oncoming train. The track was free from obstruction. The head and the trunk extended about four inches above the rail. The body was motionless before being struck and showed no signs of life whatever after being taken from under the train.

Under the above uncontradicted facts, the defendant sets up two defenses.

First, that the deceased was dead when its train struck the body, and,

Second, in case the court should find and hold that he was not dead, and that its train killed him, then, in the alternative, it is contended that it was not the' engineer’s duty to stop the train as soon as the object was discovered on the track but, that he had the right to wait until he could with reasonable diligence discover that it was the body of a human being.

Considering these points in the order named.

The defendant alleged that the deceased was suffering from heart disease from which he was likely to die suddenly at any moment, and counsel argue that inasmuch as the body was lying on the track motionless at the time-he -was struck, -and inasmuch as: it showed no -signs of -life after it 'was picke'd; up,- -the presumption is that it 'was- dead -when struck:

.There is no proof in the record‘that thé deceased was afflicted with heart disease or any other that would likely cause his <jeath suddenly. , bn" the contrary, it is shown that he was in good health, but was intoxicated when last.seen alive.

As stated, the head and trunk of the body extended some four inches above the rail and track and was struck and dragged about sixty feet, one arm being cut off, one leg broken and the face and head bruised. These injuries, together with the shock from being struck and dragged along the track, were sufficient, we think, to produce instant death.

The fact that the deceased was drunk suggests that he either fell on the track and could not get up or that he lay down and went to-sleep. In the absence of any proof that he -had heart disease, or- any other disease that might bring on sudden death, we cannot assume that he was dead on the track when struck by the train.

On the second point, while it is alleged and shown that the deceased was guilty of the grossest contributory negligence in getting drunk and lying down on the track, it is not denied that if the engineer after Seeing the deceased prostrate and helpless _on the track could, with due diligence and .-.care, have stopped the train in time to ,ay<©i.d killing him, the defendant is liable jmdejr the doctrine of the last clear chance.

McClendon vs. V. S. & P. Ry. Co., 111 La. 785, 35 South. 902.

McGuire vs. V. S. & P. Ry. Co., 46 La. Ann. 1545, 16 South. 457.

Harrison vs. La. W. R. Co., 132 La. 765, 61 South. 784.

Jones vs. Mackay Tel. Cable Co., 137 La. 121, 68 South. 379.

20 R. C. L. 138.

29 Cyc. 530.

But counsel for defendant contend that—

“It is not the duty of an engineer to stop a passenger train as soon as he sees an object on the track ahead when he does not know what it is and has no reason to believe that it is the body of a man. That duty arises, only when in the exercise of due diligence he discovers that the object is a human body in peril,”

and they cite in support of that theory several authorities, including—

Rogers vs. L. R. & N. Co. 143 La. 58, 78 South. 237.

Tyer vs. G. C. & S. F. R. Co., 143 La. 177, 78 South. 438, by our Supreme Court.

In the Rogers case, the engineer saw a dark object on the track three hundred feet ahead of him but did not suspect that it was a human body until he was within fifty feet of it. The body was motionless just before the engine struck it, when the man slightly moved his head.

The court held that the engineer was not negligent and reversed the judgment of the lower court, but said:

“The place where the accident occurred is about two hundred and four feet east of the crossing of the Alexandria & Western railroad, on the outskirts east of the city of Alexandria. On one side of the track is an open field, on the other side a thicket. There are no human habitations in that neighborhood and there are no public roads near or crossing the railroad track'. In other words, it is a place where no one would reasonably expect to find any human being between 10:30 and 11 oclock at night.”

The court, further commenting, said: that the testimony showed that it is extremely difficult at night to distinguish objects on the track, and that the distance at which they can be recognized varies with their size, color, motion or lack of motion,' weather conditions, etc., and said:

“The place where they are séen may sometimes offer a clue to their identification and at other times mislead the mind as to their real nature.”

There is marked similarity in that case and the case at bar in that in each case the engineer saw the object on the track when about 300 feet away and did not discover that it was a human being until wtihin about 50 feet away, when it was too late to avoid the accident, but there is marked dissimilarity in the two, in that in the Rogers case the body was on the track at a place where—

“* * * there are no human habitations in that neighborhood, and there are no public roads near or crossing the railroad track. In other words, it is a place where no one would reasonably expect to find any human being between 10:30 and 11 o’clock at night.”

Whereas, in the case at bar, the body of the deceased was on the track between two public crossings on the outskirts of the town of Ruston, where there were numerous human habitations near the track and where the track was commonly used as a pathway by pedestrians.

In the Tyer case, supra, the deceased was lying, face downward, on the track out in the piney woods, a place where no one would suspect the presence of a human body lying upon the track. The engineer first saw a dark object on the track when about 100 feet away but recognized it as a human body when within 60 or 70 feet away, when it was too late to stop the train before reaching it.

The court held that the engineer was not negligent in not discovering the body sooner under these circumstances. :

We do not think the two cases cited above are authority for holding that as a broad, general principle of law an engineer in charge of a locomotive is warranted, when he sees an object on the track, in waiting until he is sufficiently near to determine that it is a human body before bringing his train to a stop so as to avoid running over it.

On the contrary, we think the conditions and «circumstances surrounding each case must be taken into consideration in determining whether those in charge of the train were negligent.

In the very recent case of Southern Ry. Co. vs. Wahl, decided October 16, 1925, and reported in 149 Southeastern 72, it was stated, in a general way, that it is not the duty of an engineer to stop a passenger train as soon as he sees an object on the track ahead when he does not know what it is and has no reason to believe that it is the body of a man, and that his duty to stop arises only when in the exercise of due diligence he discovers that the object is a human being in peril.

But in that case the plaintiff was lying beside and upon the track with his arm across the rail on defendant’s private right of way—

“* * * remote from a crossing, where it was not shown that they had any reason to expert any person to be” and the court said:
“It is for the jury to consider the conditions and circumstances disclosed by the evidence in determining what action should have been taken or avoided, what precautions should have been taken and what course of conduct should have been pursued in order to measure up to the duty of ‘due care’ which'the law imposes.”

In the case of Louisville, Henderson & St. Louis R. R. Co. vs. Hathaway, administrator, decided by the Kentucky Supreme Court and reported in 89 Southwestern 724, (2 L. R. A. N. S. 498) the court held, that as to a trespasser lying beside a railroad track the trainmen are not bound to stop the train as soon as the object is seen by them “looks like a man” but they may wait until the fact that it is a man appears.

The facts in that case were, that the injured man was drunk, and was lying outside the track with his head between the ends of two cross ties.

The train was backing, and the conductor and a colored brakemen were keeping a lookout. When about 150 yards away they discovered the man but did not know that it was a human being or what the object was. They watched the object until the train got within four or five car lengths of it, when they discovered that the object was a man. It was then too late to save him. But the court found that—

“* * * as the decedent lay he was in no actual danger from the cars, and had he remained quiet the train would have passed him without injury, but about the time the caboose which, as said before, was the forward end of the train, got within 30 feet of him he spasmodically, it appears, threw his arm across the track and it was crushed by the wheels of the caboose.”

In a case note to the above decision, found in 2 L. R. A., N. S. 498, it ^ stated that the general doctrine laid down in the case of Goodman vs. L. & N. R. R. Co., 116 Ky. 900 (63 L. R. A. 657, 77 Southwestern 174), adopted in the reported case, to the effect that persons in charge of trains are not bound to stop or slow down at the first appearance on the track of an object’ the nature of which is not known and is only discoverable upon near approach, although such object proves to be a trespasser, is repeated in similar terms in decisions from New York, Arkansas, Missouri, Mississippi, and Virginia, and the note continues :

“It is obvious, however, that even among the cases that present the.same general situation, namely: an object discovered on or near the track but not a* first recognized as a human being, there will be distinguishing features and circumstances which may affect the soundness or applicability of that general doctrine.”

And the annotator reviews the cases and points out some of the circumstances which seem to have been controlling. For instance, in the New York case cited, it is stated:

“Presumably there was nothing in the nature of the locality or other circumstances to put the engineer upon notice that trespassers might be upon, the track.”

And in the Missouri case:

“The court emphasized the fact that the child was not at or near a public crossing, nor at a place frequented by children, and that the trainmen had no reason, from the locality or circumstances, to suspect the presence of a child upon the track.”

In the Kentucky case, the child was lying upon a trestle where it was seen in time for the train to be stopped, but the engineer thought it was a dog or a bundle and did not discover that it was a child until it was too late. The opinion emphasized the fact that the engineer did not entertain any doubt as to the character of the object and was not debating whether the object on the trestle was or was not a human being.

In one of the Virginia cases the engineer discovered what he thought was an inanimate object lying on the track and had no idea that it was a . human being. :

■ ■ In another Virginia case the engineer saw what he thought was a shadow or a bush coming from the right of way, and the court emphasized the fact that the engineer entertained no doubt as to the nature of the object, being satisfied that it was a shadow or a bush.

It therefore appears that no court, so far as we are able to ascertain, has laid down the broad proposition that, as a matter of law, persons, in charge of a train have the right to wait, after seeing an object on the track, until near enough to discern that the object is a human being, before attempting to stop the train. In all the cases where they have seemed to so hold, including our own court, it will be noted that they have qualified the doctrine by showing conditions and circumstances which exonerated the defendant in the particular case before them.

On the other hand, there is a line of decisions which hold, specifically, that it is the duty of an engineer to stop his. train as soon as he sees an object on the track and that he is not warranted in waiting until he is near enough to ascertain that the object is a human being.

In the case of East Tenn. G. R. Co. vs. St. John, 73 Am. Dec. 149, it was held that when those in charge of a train see an object on the track ahead, not knowing what it is, they must stop and not wait until they get close enough to see that the object is a human being in peril.

In the case of Becker vs. Louisville & Nashville R. R. Co., 110 Ky. 474 (53 L. R. A. 270, 61 Southwestern 997) the court said:

-. “If the engineer becomes aware of anything upon or dangerously near the track which may possibly be a human being or a valuable animal, he is bound to check the speed of his train so as to enable him to stop in time to avoid injury; and if injury ensues from his negligence to do this, his sincere belief that the object was worthless is not a defense.”

This broad, general doctrine, however, seems to have been overruled in some jurisdictions as is indicated by the decisions above referred to.

In the cáse of Hyde vs. Union Pacific Ry. Co., 7 Utah 356 (26 Pac. 979) the court stated that when the servants of a railroad company saw an object on the track at a place frequented by children and failed to slacken the speed so as to be able to stop before striking the child they were guilty of negligence.

In the case at bar, the deceased wa3 killed in the south part of the town of Ruston which has a population of about 5,000, between two street crossings, one known as South Line street crossing and the other to the south of it known as Price’s crossing. Price street is something over 500 feet south of South Line street and is probably not kept up by the city and is but little used except when it is dry. On or near this street, however, there is a considerable settlement known as Tolbert’s quarters and Price’s quarters, and we infer from the testimony that a great many families, probably twenty-five or thirty, live in or near this street. There are also. dwellings near the right of way between these crossings. The people who live down there, or a great many of them, in going north to. the main portion of the town use the railroad track as a footpath in wet weather (the deceased was killed on a rainy night). One witness estimated that from twenty-five to seventy-five persons walk the track each' day where the deceased was killed, and another estimated that from forty to fifty each day used that track as a footpath.

Mr. Thigpen, the sheriff, said that:

“On the east side of the track from this South Line street crossing on down, there is darkies and there is white people living something like two hundred yards. On the other side something like three or four hundred yards it is pretty thickly settled.”

He said that the greater portion of those living on the west side use another route going to town but that those living on the east side use the track.

The testimony shows that just opposite the right of way where the deceased was run' over there is a small mercantile establishment where people congregate at the South Line street crossing.

Counsel for defendant argue that whereas the track north of South Line street crossing is much used by pedestrians yet that south of that street is not used. But the testimony does not sustain them on that point. It is true that the track is used more north of that crossing than south of it, but the testimony shows that the track at the point where the deceased was run over is much frequented by pedestrians. There was no warning sign there against the use of the track.

Under the conditions and circumstances shown to have existed in this case, it was the duty of the engineer to take extra precaution to avoid injury to those who might be upon the track. It was not an isolated place where no one was expected to be found on the track. The precautions to be adopted and the steps to be taken in aid of safety increase as the danger of accident and injury increases.

Ortlano vs. M. L. & T. R. R. & S. S. Co., 109 La. 902, 33 South. 914.

Eichern vs. N. O. & C. R. L. & P. Co., 112 La. 237, 36 South. 335.

Williams vs. Mo. Pac. R. R. Co., 155 La. 354, 99 South. 286.

: Even if it be conceded that under some conditions and circumstances those in charge of a train who see an object on the track may wait until they are close enough to see that it is a human being before stopping, it cannot be said that such rule prevails in cities and towns where the track is constantly used by pedestrians.

It must be borne in mind that the enginer did not state that he was mistaken as to what the object on the track was. He said that he did not know what it was. He took chances. He had no right to take such chances at that point. We think he was guilty of the grossest kind of negligence and unquestionably had the last clear chance to avoid the accident, and the defendant is therefore liable.

ON THE QUANTUM OP DAMAGES

The District Court awarded $4,000.00 to the Widow and $4,000.00 to the two minors. The deceased was 39 years old and in good health but addicted to strong drink to some extent. Some effort was made to show that he was shiftless and thát his father supported him and his family; but the father testified that his son supported not only his own family but also him and his wife. He was a farmer and made but little some years, but it seems that when crops were poor he did hauling — at any rate he took care of the family. We do not think we would be warranted in disturbing the award made by the lower court.

Por the reasons assigned, it is therefore ordered, adjudged and decreed that the judgment appealed from be affirmed with costs.


text:
    No. -
    First Circuit
    VIOLETTE v. CAPITAL CITY AUTO COMPANY, INC.
    (June 26, 1926, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Sales—Par. 216, 218, 225.
    One who purchased an automobile with a 1921 motor being made to believe by seller that it was a 1923 motor is entitled to the difference in the value of the two motors if he does not discover this until after he had driven the car over a year.
    2- Louisiana Digest — Sales—Par. 232.
    In view of Article 2531 and 2547 of the Civil Code damages for repairs to an automobile motor can only be recovered if the seller knowingly deceives the buyer and practices fraud upon him.
    Appeal from the Parish of East Baton Rouge, Hon. Wm. Carruth Jones, Judge.
    Action by E. M. Violette against Capital City Auto Company, Inc.
    There was judgment for plaintiff. Defendant appealed.
    Judgment amended and affirmed.
    L. W. Brooks, of Baton Rouge, attorney for plaintiff, appellee.
    Chas. A. Holcombe, of Baton Rouge, attorney for defendant, appellant.
   LECHE, J.

The present suit is to rescind the sale of a second-hand or as more refinely expressed in the language of the trade, a used automobile. The plaintiff in consideration of seven hundred dollars, bought an automobile from defendant on October 16, 1923, he used it continuously from that time, making a trip from Baton Rouge to New Orleans in December, 1923, driving it to Trenton, in the northern part of Missouri in June, 1924, and back to Baton Rouge in September following, and he then filed the present suit on December 16, 1924.

He alleges in substance that when he bought the automobile, it was represented to him as a second-hand machine, with body and chassis of a Studebaker special six, model of 1921, and with a motor of the same make, but model of 1923. That he did not find out until August, 1924, when it became necessary for him to have the motor overhauled while in Missouri, that instead of a motor, model of 1923, he had been deceived by defendant’s sales agent and that the motor was in reality one of the model of 1921. He avers that he would not have bought if he had been told that the motor was the model of 1921 and that he only consented to make the purchase when told and informed by the agent that the motor was new, model of 1923, and had only made about 500 miles. That he had no means of sooner discovering the deception thus practiced upon him. Plaintiff, then alleges in the alternative that if the court should hold that he is not entitled to a rescission of the sale, he is entitled to a reduction of the price and to damages which he fixes as follows: Difference in value between a motor of 1921 and a motor of 1923, $222.39, and repairs paid to a garage in Missouri, $43.00, making a total of $265.39. The answer is practically a general denial. The trial court found in favor of plaintiff and awarded him the latter amount. Prom that judgment defendant has .appealed.

In this court, the plaintiff’s right to a rescission of the sale has virtually passed out of the case. < He has not appealed, nor has he answered defendant’s appeal. So that we have to consider his demand purely as an action quanti minoris.

There is little dispute as to the law of the case and the contest between the parties is entirely limited to a question of fact.

The plaintiff is one of the professors in the Louisiana State University in Baton Rouge. He testifies most positively and distinctly that defendant’s salesman represented to him and assured him that the motor with which the automobile was equipped, was new, was of the model of 1923 and had only made about 500 miles. In this he is supported and corroborated by the testimony of his wife, and by the testimony of his son and of his daughter who at the time were students of the State University. On the other hand, the defendant most strenuously denies that any such representation was ever made. The salesman who negotiated the sale on behalf of defendant, denies that he ever made such representation and in this he is corroborated by his wife.

Plaintiff also testifies that after his return from Missouri, and after he had discovered that the engine was of the year 1921, instead of- 1923, he asked the salesman in the presence of his (plaintiff’s) wife and in the presence' of the manager of the defendant company, whether the -motor had not ■ been represented to him as being of the year 1923 and the salesman answered “yes”. In this he is corroborated by his wife, but both .the salesman and manager of defendant emphatically deny the truth of this statement.

Plaintiff is a member of the faculty of the .Louisiana State University and that of itself is a high recommendation for probity and integrity. His wife and children must of necessity be of the same type and standing. On the other hand, the manager of defendant company and its salesman are well known business men in the City of Baton Rouge, enjoying the respect and confidence of their fellow citizens, for both have been honored in the past with official positions of distinction under their local government. The court is therefore placed in the embarrassing situation of having to eke the truth out of testimony apparently very conflicting, from witnesses of ■ equal credibility but who contradict one another in the most positive language.

It seems that the motor in question is admittedly of the year 1921, but that at some time, just prior to the sale of the automobile to plaintiff, it was thoroughly overhauled and rebuilt in defendant’s shop in Baton Rouge. There is testimony to the effect that many of the parts were changed and that the new parts were the same as those used in motors of the year 1923, notably, the exhaust or intake manifold. It may be that this reconstruction of the motor may have led to some misunderstanding between the parties. It seems however;' rather well established that plaintiff believed he was buying a motor of 1923 while he only received a motor of 1921. If there was such misunderstanding, that of itself would be sufficient to avoid the sale as the consent necessary in the legal confection of that contract would then be lacking. - But in the present condition of the case, and under - the pleadings such a decree cannot be entered. Nor could the plaintiff restore the situation as it existed originally, after having used the automobile for over one year and driven it over ten thousand miles, for he could not return the motor in the condition in which it was when he received it in October, 1923. But both law and equity require that plaintiff be recognized as entitled to the difference in value of the motor which he bought and of the motor which he believed he was buying, viz: $229.39. As to the item of damages, for repairs, forty-three dollars, plaintiff, under the Articles of the C. C., 2531 and 2547, can only recover if the seller knowingly deceived him and practiced fraud upon him. This we are loth to believe. Error and misunderstanding are more likely the real cause of the differences between the parties.

For these reasons, the judgment appealed from is reduced from two hundred and sixty-five 39-100 dollars to two hundred and twenty-nine 30-100 dollars and as thus amended, is affirmed, plaintiff and appellee to pay costs of appeal.


text:
    No. -
    First Circuit
    STORY v. STRAWBERRY GROWERS SELLING COMPANY
    (June 26, 1926, Opinion and Decree)

      (Syllabus by thé Editor)
    1. Louisiana Digest — Mandate—Par. 103, 104.
    The plaintiff alleging that the defendant was delegated by plaintiff with authority to collect the latter’s rent claim has the burden of proof to show that authority.
    Appeal from the Parish of Tangipahoa, Hon Columbus Reid, Judge.
    Action by H. D. Story against Strawberry Growers Selling Company. There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Ellis and Ellis, of Rayville, attorneys for plaintiff, appellant.
    J. H. Inman, of Ponchatoula, attorney for defendant, appellee.
   LECHE, J.

This suit is practically analogous to that of Puleston vs. the same defendant, this day decided.

The claim for rent here, is two hundred and twenty-five dollars and plaintiff seeks to hold defendant responsible as factor of Sam Lascare, upon grounds similar to those alleged in the Puleston case. While the facts are not exactly identical, the evidence does not take the case out of the rule recognized by this court in the case of Puleston and the decision herein is controlled by the principle therein announced.

For these reasons the judgment herein should be affirmed and

it is ' so ordered.