text:
    No.-
    First Circuit
    BARILLEAUX v. TOFT ST. MARY BUILDING ASSOCIATION, Third Opponent
    (February 12, 1927. Opinion and Decree.)
    (March 8, 1927. Rehearing Refused.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Mortgages — Par. 214; Subrogation — Par. 10, 12.
    The holder of a second mortgage who buys the property on which his mortgage rests at sheriff’s sale is not by that sale subrogated to the rights of the holder of the first mortgage, as Article 2161 of the Civil Code does not apply to this case.
    2. Louisiana Digest — Sheriffs and Constables — Par. 29.
    The payment made by the sheriff after mortgage foreclosure to the holder of a first mortgage is made as agent of the owner of the property and not as agent of the purchaser at the sale.

      Appeal from the Parish of St. Mary. Hon. James E. Simon, District Judge.
    Action by Pierre Barilleaux against Miss Helen Toft.
    St. Mary Building Association, Third Opponent.
    There was judgment for third opponent and plaintiff appealed.
    Judgment affirmed.
    C. J. Boatner and L. 0. Peeot, of Frank- , lin, attorneys for plaintiff, appellant.
    W. P. Kramer and Paul Kramer, of Franklin, attorneys for third opponent, appellee.
   MOUTON, J.

On July 29, 1921, the St. Mary Building Association sold a lot of ground with improvements, situated in the parish of St. Mary, to Andrew L. Hoy, having a front on the public road of 163 feet by a depth to Bayou Teche in the rear between parallel lines; also four other parcels of ground for the sum of $3850.00, represented by one promissory note for $350.00, without interest, and by another promissory note for $3500.00 with 8 per cent interest, and 10 per cent attorney’s fees in case of suit.

The building association retained a vendor’s lien and special mortgage on the property deeded to Hoy to secure the purchase price. The only property involved in this litigation is the lot of ground of 163 feet front running in tile rear to Bayou Teche, above referred to.

Later, on January 18, 1922, Andrew L. Hoy executed a mortgage on that lot of ground in favor of Pierre Barilleaux, plaintiff herein. Subsequently to the granting of the mortgage, Andrew L. Hoy sold this property to Miss Helen Toft' for $350.00 cash, and the assumption by her of the mortgage of the St. Mary Building Association, the one due Barilleaux and another mortgage, the latter not being connected with this content.

Plaintiff, Barilleaux, took out executory proceedings against Miss Heleni Toft, asking for the seizure and sale of the property. The sale was ordered by the District Court. The St. Mary Building Association, whose mortgage claim had been reduced by payment to the sum of $1101.27, intervened in the proceedings, asking to be paid by preference out of the proceeds of sale which had been ordered under the executory proceedings inaugurated by Barilleaux. The sheriff was ordered to sell the property for less than the claim of the building association, with the interest and attorney’s fees due thereon, and to retain in his hands a sufficient sum to pay that claim.

As was demanded by Barilleaux, plaintiff, the property was advertised to be sold for cash, and without appraisement, to satisfy his mortgage of $2500.00 which had been assumed by Miss Helen Toft, purchaser of the property from Andrew L. Hoy.

In due course of law, on June 1, 1926, the property was sold at public auction by the sheriff and was adjudicated to Barilleaux, the highest bidder, for $2000.00 cash, and who, as declared in the proees verbal of the sale, complied with his bid. As also declared in the proees verbal, the sheriff retained out of the proceeds of sale the sum of $1232.00 to pay the balance due on the mortgage of the building association, which evidently included the accumulation of interest and attorney’s fees. The claim of the building association was therefore paid out of the proceeds which had been, realized from the sale of the property.

In answer to the demand of the building association to be paid by preference, plaintiff alleges that at the sale of the property he offered a bid large enough to pay over to the sheriff a sum sufficient to satisfy the mortgage of the building association, which he does not dispute was superior to liis mortgage; also, that he actually paid the sheriff a sum sufficient to pay said mortgage. Basing himself on these allegations, plaintiff asks that the court order the building association to transfer its mortgage note to him without reservation, and- with full subrogation to the rights of the association.

This demand was denied by the District Court. Plaintiff appeals.

It will be noted that under the executory proceedings obtained at the instance of plaintiff, the sheriff was ordered to sell the property to satisfy his mortgage of $2500.00 and for cash evidently to the highest bidder; and that, at the instance of the building asociation, he was also ordered by the court to retain, out of the proceeds of that sale, an amount sufficient to pay the building association. Under the order granted plaintiff himself, and the subsequent order that was obtained by the building association, directing the sheriff to retain an amount sufficient to (pay the association, it is evident that the sheriff could not have undertaken to accept as a bid from the plaintiff just the amount which was claimed by the association. He sold the property, as he was required to do, and adjudicated it to plaintiff, the highest bidder, for $2000.00, as is shown by his proces verbal. Out ^of the proceeds of sale the association received payment of its claim by reason of its preference and priority.

. Plaintiff contends that he is entitled to subrogation to the rights of the building association under the provisions of Article, Civil Code, 2161. This article entitles a preferred creditor of right to a legal subrogation when he pays another creditor whose claim is preferable to his by reason of his privileges or mortgages. If plaintiff had paid the association, as a preferred creditor, he would have been entitled, under that article, to subrogation to the privilege of the association. He did not, however, make that payment as is required by that article.

The sheriff, acting under the writ, sold the property of Miss Helen Toft upon which the vendor’s lien of the association and the junior mortgage of the plaintiff rested. The $2000.00 which the sheriff received was the price of the sale and were the individual funds of Miss Helen Toft, which the sheriff had received for her as a consideration from the adjudicatee or cendee, plaintiff herein. Out of the $2000.00, proceeds of the sale, the mortgage of the association was paid. The. payment of this mortgage was therefore made by Miss -Toft, through the sheriff, her legal agent, and custodian of the funds. The payment so made by the sheriff can not, by the subtlest reasoning, be rightly construed as a payment made by plaintiff to the building association.

In the case of Randolph vs. Stark, 5La. Ann. 1121, 26 South. 59, Sentell & Co. had become the adjudicatee of property at an execution sale presenting issues similar in principle to those involved in the instant case, and in which the court, speaking in reference to Sentell Co., the purchaser, said as follows;

“When he paid his bid he paid simply his own debt, for which he received an adequate consideration.”

Here, likewise, the plaintiff, in turning the money to the sheriff .for his bid, was simply paying -his own debt as an equivalent consideration for the property he bad acquired by the adjudication. The sheriff, as he was directed to do out of the proceeds he had received, paid the- association as the outranking mortgagee and applied the rest of the funds to the mortgage of the plaintiff. We find that the trial court properly denied the legal subrogation claimed by plaintiff.


source: Caselaw Access Project

author: MOUTON, J.

license: Public Domain

text:
    No.-
    First Circuit
    BORDEN-AICKLEN AUTO SUPPLY CO. v. FOLSE SERVICE STATION REDMOND & SON, INC., v. FOLSE SERVICE STATION BRAUD & SON v. FOLSE SERVICE STATION
    Consolidated
    (Feb. 12, 1927. Opinion and Decree.)
    (Feb. 12, 1927. Rehearing on behalf of E. M. Gordon refused.)
    (Feb. 12, 1927. Rehearing on behalf of plaintiff in the case of Redmond & Son, Inc., against Folse Service Station, refused.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Partnership—Par. 10, 18, 19.
    A partnership is formed only by the intention of the contracting parties and even though the profits are divided between the parties, this fact does not make them partners, unless they intend to create a partnership.
    2. Louisiana Digest — Partnership—Par’. 20.
    Where a party although not a partner holds himself out as a partner of a firm by paying for articles already shipped to the firm and telling the seller that he was interested in buying more articles for the firm; he will be held liable as a ¡partner for articles sold to the firm.
    3.Louisiana Digest — Partnership—Par. 20, 24.

    The report of a commercial agency that a person is a partner in a firm which report is unauthorized by that party, is not sufficient to hold that party liable for the debts of the partnership where others rely on that erroneous statement of the commercial agency.
    Appeal from Lafourche Parish. Hon. Robert B. Butler, District Judge.
    Action by Borden-Aieklen Auto Supply Company against Folse Service Station. B. V. Redmond & Son, Inc., against Folse Service Station, and A. P. Braud & Son against Folse Service Station.
    There was judgment for plaintiffs, Borden-Aicklen Auto Supply Company. B. V. Redmond & Son, Inc., and A. P. Braud & Son against Folse Service Station and E. M. Gordon, alleged co-partner. Defendant appealed.
    Judgment affirmed in the case of BordenAieklen Auto Supply Company against Folse Servicé Station but reversed in the cases of B. V. Redmond & Son, Inc., against Folse Service Station and A. P. Braud Son against the Folse Service Station insofar as E. M. Gordon, alleged co-partner, was held liable by the District Court.
    Francis L. Knobloch, of Thibodaux, attorney for Borden-Aieklen Auto Supplj Company and also for B. Y. Redmond & Son.
    Harvey E. Pelletier, of Thibodaux, attorney for A. P. Breaux & Son.
    Howell, Wortbam & Howell, of Thibodaux, attorney for defendant, E. M. Gordon, alleged co-partner.
   MOUTON, J.

These three consolidated suits were brought against the Poise Service Station as a commercial partnership alleged to be composed of Joseph M. Folse, Jr., and E. M. Gordon. Judgment is asked against the alleged partnership, and individually, against the members, which it is averred, constitute the firm. Folse admitted in his testimony that the Fols.e Service Station was a co-partnership composed of himself and Gordon as members. Having admitted his membership in the firm and not having disputed the respective claims of the plaintiffs, judgment was accordingly rendered against him, and he is therefore eliminated as a defendant in these cases.

Gordon denies the existence of the alleged partnership or that he is liable to the plaintiffs in any amount.

The district judge refrained from deciding whether a partnership existed, but held that Gordon, by his acts, representations or conduct, had held himself out as a partner in the Folse Service Station, which had the effect of inducing plaintiffs to honestly believe that the Folse Service Station was a partnership of which Gordon was a member, and that he was therefore responsible to the plaintiffs for the advances made by them to the Folse Service Station.

The first question presented for decision is as to whether or not such a partnership existed and as to whether Gordon was a co-partner.

We first address ourselves to a discussion of this proposition, because, if such a partnership existed when the advances were made by plaintiffs, Gordon would be unquestionably liable, and there would be no necessity for us to pass on the question upon which the lower court rested its judgment.

Folse testified that his agreement with Gordon, a verbal one, was that Gordon would furnish everything for the Folse Service Station; would give him $20.00 per week in advance as a salary; that they would divide the profits equally, and that he would be manager of the station.

Gordon denies that such a partnership was ever formed or that he was a partner therein. The version given of the agreement by Gordon is that he agreed to finance Folse in putting up the Service Station to the amount of $1500.00 to be paid by Folse in weekly installments of $35.00 with 8 per cent interest on the money loaned. Gordon and Folse are equally positive in these, their contrary and conflicting statements in reference to the contract into which they entered.

The evidence shows that Gordon paid for most all of the equipments that went into the Folse Service Station. He says, he paid for the equipments because he had promised to do so with the $1500.00 he had engaged himself to advance Folse. It is-shown that Gordon advised plaintiffs, who were selling these equipments, not to advance too much to Folse. Because he was solicitous about the amounts that would be advanced to Folse, counsel for plaintiffs contend that this manner of acting on the part of Gordon shows that he had a proprietary interest in the station and that he was a partner.

As we read the evidence, the interest shown by Gordon in the purchases Folse was making, was prompted by a desire to see that Folse would not buy in excess of the $1500.00 for which he had obligated himself to respond. Gordon, it is shown, took no written security when he advanced this money to Folse. This fact is referred to by plaintiffs as being rather peculiar in a transaction of this importance. Gordon explains this by saying that Folse had promised to furnish security but had failed to do so. Folse denies this and as a matter of fact, contradicts Gordon in every important particular. It also appears that after the station was closed, Gordon sold a wrecker that he had bought for it, and also offered to sell other tools or accessories he had furnished Folse. Plaintiffs’ counsel say that this sale and offer of sale by Gordon show that he was acting as a proprietor or co-partner. The .things Gordon sold or offered to sell, the evidence shows beyond question, had been bought and paid for by Gordon. It is clear that he had not authority to dispose of them in that manner. He frankly admits that he was perhaps mistaken as to his right to thus handle this property, but he says he honestly believed it was his, as he had bought and paid for it, although the evidence shows he had purchased it for Folse.

It was simply, as we read the evidence, the result of a layman’s misconception of his rights, grounded on the idea that it belonged to him because Folse had not paid him for it and does not show that Gordon was acting in the quality of a co-partner. It seems also that Folse was laboring under the same error, as he permitted Gordon to dispose of the equipments as his individual property. Reference is also made by counsel for plaintiffs to the fact that Gordon took from Guidry a lease, in his name, of the property on which the service station was established. Gordon explains that he took it because Guidry would not rent it to Folse. It is shown that Folse paid the rent for the first two or three months, and then refused to continue the payments. It was then that Gordon (paid the subsequent rental for a couple of months, and ordered the key of the building returned to Guidry. If the property had been rented for the pretended partnership, why should Gordon have paid the rent? He paid it because he considered this a personal obligation he had incurred for Folse’s benefit.

Counsel for plaintiffs point also to the fact that Gordon, who lived in Jefferson parish, was a frequent visitor at the station, coming there tw.o or three times a week. It can not be successfully gainsaid that he had a vital interest in the success or prosperity of the station, as he had advanced Folse a considerable sum for which he had not obtained the security he had been promised. It is a fact, however, that during these visits it does not appear that Gordon ever examined the hooks of the service station or inquired into its affairs. If it had been a partnership in which Gordon was a .member, it is not likely that he would have failed to look into the business it was carrying on, so that he might have protected himself against the debts for which he would have been responsible, and that he might obtain his share of the profits.

The evidence shows that Miss Blouin was appointed by Gordon to represent his interest at the service station. She was authorized to sign checks in conjunction with Folse for the affairs of the station. When she got through there as the representative of Gordon, she turned $48.00 over to him, and which he says, he applied to the interest which had accumulated on the money he had loaned Folse.

The evidence shows that in thus appointing Miss Blouin, Gordon was actuated by a desire not to have Folse incur further debts in (purchases he might make. He was acting under the impression that he had a right to do this for the protection of his proprietary interest in the equipments' for which he had paid. This was undoubtedly a mistaken idea into which he had fallen. Although this was a misconception on his part, it nevertheless does not show that his intention was to act as a partner in the affairs of the station. We emphasize the foregoing statement, as it is well recognized that a partnership is formed only by the intention of the contracting parties and that even when the profits are divided between the parties, this fact does not make them partners, unless they intend to create a partnership. 30 La. Ann. Needless to repeat that in this case Gordon denies that a division of profits was ever agreed to, and the reference we make to the intent, is merely to show that it is one of the sacramental requirements for the creation of a partnership.

Miss Blouin, while testifying as a witness for plaintiffs, said that while she was working at the station she heard a conversation between Poise and Gordon in which it was stated that Poise was to pay $35.00 a week on account of the loan which he had contracted to ipay Gordon; that she was put there to collect it, and that Poise agreed thereto. She was thereafter placed on the witness stand for defendant, Gordon. She testified in reference to a written contract which is dated June 30, 1925. In that contract, which is signed by Poise and Gordon and witnessed by Miss Blouin, after declaring that the equipments in the service station were the property of Gordon, it is therein stated that Fols§-is to pay therefor $35.00 a week with interest until they are paid, etc..

Poise was examined, in reference to this contract. He says the clause in that agreement that he was to pay $35.00 a week until the equipments were paid for was not in there when he signed it; that Gordon, who had prepared it, told him that the agreement was he should not sell the tools. He said, however, in answer as to whether he had read it before he signed, that he had “read part of it”. If that is all he read, how is it possible for him to deny that the clause which contained his promise to pay the $35.00 a week was not in that agreement? Miss Blouin testified that Poise read all of that contract, that he emphasized on some parts which were read loud, and that she remembers all that well, because he hesitated before he signed it.

Gordon testifies that Poise read the document and signed after reading in the presence of Miss Blouin. He explains that the document bears the date of March 31, 1925, because he started to make a memorandum at that time when the agreement was originally entered into; and that the other date, June 30th, which the contract bears, is the date it was signed. He says that he could see no erasures on the document, but that there were probably some which he had made, but that he is absolutely certain, if any were made, that they were inserted before it was signed. He is absolute in his statement that he never changed a syllable or a line therein after it was signed. This statement is supported by the testimony of Miss Blouin, who' says the document was written to the point it was when she was testifying, and that no blank places had been filled. The facts and circumstances of this case to which we have hereinabove referred, taken in connection with the testimony of Miss Blouin in reference to the discqssion at. the station as to the agreement that Poise had promised to pay $35.00 per week on his loan, and the fact that he signed this document which contains a clause to that effect, make it quite clear that Gordon had financed the Service Station for a certain amount and never formed a partnership with Folse. He, therefore, cannot be held as partner. He can only be held for the reasons giv.en by the district judge, if the evidence sustains his finding. The court gave judgment for the three plaintiffs because Gordon had held himself out as a partner in the Folse Service Station. The proof shows that Long, salesman for the Borden-Aicklen Company, sold articles or equipments • for the Folse Service Station. Aicklen says Gordon came to the office of the company in New Orleans and paid for the shipment. He says he then told Gordon that Folse was interested in buying a steel counter; that Gordon said he did not want him to have it at that time, and that it could be taken later if the business of the station justified it. Aicklen says it was upon the strength of Gordon’s connection with the service station, and his representation that he was looking after the financial end of its business, that the credit of his company was extended to the Folse Service Station. Gordon explains that in his conversation with Aicklen he only meant to convey the idea that he was only advancing a loan to Folse to the amount of $1500.00 to purchase tools or accessories for the station, and that he never made the statement that he was a partner,, or that could be construed as such. The evidence, we think, justifies Aicklen in the statement he makes that Gordon’s conduct and the language he used on the occasion mentioned was of such a character as to induce him to honestly believe he was a partner, and which led him to advance the goods to the service station.

The lower court, we find, properly held Gordon for the price of these goods. The case of A. P. Braud & Son rests on evideuce of quite a different character. Braud says he was asked by Folse to put a pump at the station but that he did not want to install it before he saw Gordon about it. Gordon, he says, after talking with him on the subject, said if Folse said it wos “all right, it was all right with him”. Braud says he was acting on what Folse had told him that “Gordon would back him up”. He admits, however, that Gordon never said anything to him that could have led him to believe that he was going to pay the bills of the station. Basing himself on the statement of Folse that Gordon was “backing him up”, Braud assumed that Gordon was a partner, installed .the pump and made advances to the station in the sum of $410.12. Gordon says in reference to the installation of the pump that he remembers Mr. Guidry told him about the pump being in the driveway, but that, in reality, he did not remember the conversation he had with Braud. He is certain, however, that he never told Braud that he was a partner in the station or that he was financing it. The evidence of Braud, accepting it as true, fails to show that Gordon, on the occasion stated, acted in such a way, or used any language, that could justify Braud i,n honestly believing that Gordon was a partner. In this case Gordon is not liable and the demand of Braud must be rejected.

In the case of Redmond & Son, the evidence shows that the goods were advanced to the station upon investigation made of the report of commercial agencies. Toledano, testifying for that company, says, acting on the report of the Bradstreet Company, he found that Folse and Gordon were the proprietors of the Folse Service Station; that Gordon was rather a responsible risk, and on the basis of that report the advances were made by his company. Gordon testifies that he never made any representation to any commercial agency that he was connected, at any time, with the Folse Service Station. He says he receives a circular every year from that house, but that he never fills it in, and never gives it a report. It is certain from the evidence that Gordon never represented himself to the Redmond Company as being a partner or even as having any connection whatsoever with the Folse Service Station. It is equally certain that the report of the Bradstreet agency of his connection with that station was never inspired, or authorized by him. Plaintiffs in that case acted altogether in an erroneous assumption, and cannot recover against Gordon.

For the reasons hereinabove stated, the judgment in the case of Borden-Aicklen Supply Company vs. Folse Service Station is affirmed against E. M. Gordon with cost. In the cases of A. P. Braud & Son and B. V. Redmond & Son vs. Folse Service Station, the judgments therein rendered against E. M. Gordon are reversed and in which proper decrees will be entered in the respective records of those cases for the reasons hereinabove stated.


author: WESTERFIELD, J.

text:
    No. 9703
    Orleans
    MAGNUS, Appellant, v. PERKINS
    (March 28, 1927. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Sales—Par. 243.
    In an action to rescind the sale of a race horse for a redhibitory vice where two
    veterinarians for plaintiff testify the horse was afflicted with cysmoditis, a non-apparent, redhibitory vice, and two veterinarians for defendant testify to the contrary, the evidence of a fifth veterinarian, appointed by the court, in corroboration of defendant’s witnesses, is conclusive.
    2. Louisiana Digest — Sales—Par. 233.
    Where a purchaser admits that he bought a race horse, knowing it to be suffering with ringbone and the horse afterwards becomes lame due to the ringbone, the purchaser can not avoid the sale in a redhibitory action.
    Appeal from the Civil District Court, Division “C”. Hon. E. X. Skinner, Judge.
    Action by James Magnus against William Perkins.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Jos. A. Casey, of New Orleans, attorney for (plaintiff, appellant.
    E. A. Parsons, of New Orleans, attorney for defendant, appellee.
   WESTERFIELD, J.

This is a suit to rescind the sale of a race horse known as “San Jacinto” because of an alleged redhibitory vice and for the return of the alleged purchase price of $1000.00.

There was judgment for defendant and plaintiff has appealed.

The law of the case is to be found in Art. 2620 and Art. 2521 R. C. C.:

“Redhibition is -the avoidance of a sale on account of some vice or defect in the thing sold, which renders it either' absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it had he known of the vice.”
“Apparent defects, that is such as the buyer might have discovered by simple inspection are not among the number of redhibitory vices.”

There is some doubt as to the price paid for “San Jacinto” due to the fact that $4010.00 was paid defendant for “Honor Man”, another race horse, “San Jacinto” and a billy goat. The price of the goat is fixed at $10.00, but “San Jacinto’s” price is uncertain, because $1000.00 was originally asked for him and $3500.00 for “Honor Man” and a lump sum offer of $4000.000 was finally accepted for both. Fortunately the view we take of the case' makes the determination of “San Jacinto’s” price unnecessary.

When plaintiff bought the horse he had ringbone, a defect which is quite apparent to anyone upon casual inspection, and admittedly observed by plaintiff. But plaintiff says the ringbone was not the cause of lameness, the form in which “San Jacinto’s” deficiency was made manifest to her new owner, but that “cysmoditis and inflammation of the X Y Z ligaments,” a defect, which was latent and' not easily discovered by a lay purchaser, caused all the trouble.

Two veterinarians testified that cysmoditis caused the lameness and two that it was due to ringbone. In this situation the lower court appointed an expert of its own selection, Dr. Kyle, who testified in favor of the ringbone, thus giving defendant a clear majority of the experts. We must co.nclude that the majority of experts are right. Moreover, to the untutored mind, it would appear most reasonable that ring-bone, which we understand to be a circular swelling of a joint, would seriously affect the activities of a race horse, and its presence serve as an obvious warning to any prospective purchaser.

The judgment appealed from is affirmed.


author: CLAIBORNE, J. JO-NES, J.

text:
    No. 9295
    Orleans
    SWIFT & CO v. TEXAS & PACIFIC R. R. CO. ET AL.
    (May 24, 1926. Opinion and Decree.)
    (Feb. 14, 1927. Rehearing Refused)
    (March 28, 1927. Writs of Certiorari and Review denied by Supreme Court.)

      {.Syllabus by the Court)

    1. Louisiana Digest — Carriers of Passengers and Goods — Par. 123, 125.
    It is not the duty of the New Orleans Public Belt Railroad to ice cars placed upon its tracks for switching.
    2. Louisiana Digest — Carriers of Passengers and Goods — Par. 108, 113, 114.
    The liability of a railroad as a carrier for goods in its custody for carriage continues until the consignee has been notified of their arrival at destination and until he has been given a reasonable time thereafter to remove the goods.
    3. Louisiana Digest — Carriers of Passengers and Goods — Par. 108, 113, 114, 118.
    The liability of a railroad as a carrier ceases after the consignee has had reasonable opportunity to remove them after notice given.
    4. Louisiana Digest — Carriers of Passengers and Goods — Par. 119.
    A railroad as a warehouseman is not responsible for goods damaged through . the fault of the consignee.
    5. Louisiana Digest — Carriers of Passengers and Goods — Par. 124, 128, 130.
    A carrier is not liable if owing to heat, perishable goods are damaged without, his fault.

      ON REHEARING
    6. Louisiana Digest — Carriers of Passengers and Goods — Par. 96, 108, 147, 148.
    Under Carmack Amendment, carrier voluntarily accepting goods for shipment to point on another line in another state is conclusively treated as having made a through contract and elected to treat connecting carriers as its agents for all purposes of transportation and delivery.
    7. Louisiana Digest — Carriers of Passengers and Goods — Par. 114, 119.
    Where the bill of lading, which is the contract between the parties, provides that the carrier is responsible to the shipper as a common carrier for a period of forty-eight hours, exclusive of holidays, after notice of arrival to consignee has been sent, the carrier is responsible for damage to shipment occurring during the free time allowed.
    8. Louisiana Digest — Carriers of Passengers and Goods — Par. 137.
    The contract measure of damage is the difference in market value of the goods on the day shipment should have been received and the market on the day of actual receipt.
    9. Louisiana Digest — Carriers of Passengers and Goods — Par. 123, 125, 132.
    When terminal carrier had not information of the perishable quality of the goods and the evidence shows that it was not negligent, suit against it will be dismissed.
    Appeal from Civil District Court. Hon. Porter Parker, Judge.
    Action by Swift & Company, Ltd., against Texas & Pacific Railway Company et al.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed. On rehearing judgment amended.
    Hall, Monroe & Lemann, M. W. Heard, of New Orleans, attorneys for plaintiff, appellant.
    Spencer, Fenner, Gidiere & Phelps, A. A. Moreno, of New Orleans, attorneys for defendant, appellee.
    Wm. L. Fayssoux, of New Orleans, special co.unsel.
   CLAIBORNE, J.

This is a damage suit for the alleged negligent carriage of fresh meat.

The plaintiff averred that on September 21, 1920, they delivered a consignment of fresh meat, consisting of 186 calves, to the defendant, the Texas & Pacific Railway, at Fort Worth, Texas, for transportation to New Orleans via the Public Belt Railroad to the Julia street switch, for delivery to plaintiff’s branch house and received a bill of lading therefor, annexed to the petition.

That the carload of fresh calves was highly perishable; that refrigeration was essential for its preservation, and that the ice bunkers of said car had to be kept well filled with ice at all times as the defendant knew; that by the terms of said bill of lading the ice bunkers in the cars were to be filled by the carrier at the following points: Longview, Texas, Boyce, La., and

New Orleans; that the car arrived in New Orleans on September -24th at 11:20 a. m., and was delivered to the Public Belt Railrdad at 3:40 p. m. of the same day.

That the City of New Orleans, through the Public Belt, failed to transfer said car to the Julia street switch, but carried the car to the Robin street yard where it was delivered to plaintiff on September 27th at 2 p. m.

That the defendant failed to notify plaintiff of the arrival of said car and was unable to inform plaintiff of the location of said car which was found by its efforts at the Robin street yard.

That the defendant neglected to put any ice in the car after its arrival in New Orleans, in violation of their duty as carriers and of the hill of lading, with the result that when the car was delivered to plaintiff the ice hunkers were empty and the temperature in the car 52 degrees, and the meat was sticky, slimy and sour; it had to be sold at a loss of $411.23"; that it filed its claim with the Texas & Pacific Railway on January 11, 1921.

The shipping order annexed to the peti- I tion calls for delivery at New Orleans [ Public Belt, Julia street switch. It carries | upon its face, in blue ink, the words: Re- I ice at Longview, Boyce, New Orleans; and in red ink: “Ice or re-ice to capacity with crushed ice and 12 per cent salt at stations specified and oftener if delayed”.

The railroad admitted the consignment, admitted its perishable nature, and the necessity for refrigeration; it admitted its obligation to re-ice and that the meat arrived at 11:20 a. m. and was delivered at 3:40 p. m. of the same day to the Public Belt Railroad.

They further averred that their duty was performed when they delivered the car to the Public Belt, and that they were under no obligation to notify plaintiff thereof; that they were informed that on September 25, 1920, the Public Belt notified plaintiff; that owing to plaintiff’s track being already loaded with cars to full capacity, the car could not be placed on its track and had been placed at the Robin street yard for their account.

That at the time of the arrival of the car, on September 24, 1920, the ice hunkers were three-fourths filled with ice, which was amply sufficient to protect the meat at the reasonable time required to transfer the car from the Public Belt to plaintiff’s plant, which was the afternoon of the same day.

They denied all the other allegations of the petition.

Further answering, the defendant railroad denied that the Belt Road was their agent, or that it could be held iiable for its acts or omissions; hut that if they were held for the Belt Railroad, then they were entitled to a judgment over against the City of New Orleans.

The City of New Orleans answered that it was not engaged in the carriage of freight, but was simply switching cars and as such was under no obligations to ice cars.

It admitted that the car was delivered to the Public Belt Railroad at 3:40 p. m. of September 24, 1920; that immediately upon receipt of said car it gave notice to plaintiff of its arrival; that because of a congestion of cars on the tracks of plaintiff, the Public Belt Railroad was unable to place the car at plaintiff’s plant at Julia street, but that it was ready to do so at any time that the plaintiff would have been able to receive it; that if the car was not delivered immediately it was due wholly to plaintiff’s fault.

The Public Belt Railroad denied all the other allegations of the petition.

In a supplemental petition plaintiff claimed $996.19.

There was judgment in favor of defendant rejecting plaintiff’s demand at its cost.

The plaintiff has appealed.

The question involved in this caso is, whose fault was it that the meat when delivered was spoiled and incidentally:

1st. Was the car reasonably iced when delivered by the Texas & Pacific to the Public Belt Railroad?

2nd. Did the Public Belt Railroad notify the plaintiff of the arrival of the car?

3rd. Was it a part of the duty of the Public Belt Railroad to ice the car?

4th. Whose fault was it that the car was delivered to the plaintiff 48 hours after its arrival?

The obligation of the defendant, Texas & Pacific Railway, according to the shipping order, was to deliver the car to the “New Orleans Public Belt, Julia street switch”. The car arrived at 11:20 a. m. on September 24, 1920, and was delivered by the Texas & Pacific Railway to the New Orleans Public Belt at 3:40 of the same day. At the time of the delivery of the car to the Public Belt, there was three-quarters ice in the car and that would last 24 to 36 hours.

It appears from this evidence that the railroad had performed its part of the contract. It could not be required to follow up the car after it had left its control and passed in the hands of the Public Belt Railroad.

The Public Belt Railroad did not deliver the car to plaintiff’s Julia street switch, owing to the congested condition of the switch which did not admit of more cars. But it hauled the car to the Robin street yard and, on the following date, Saturday, September 25th, notified the plaintiff c-f the arrival of the car and of its location. This is proven by a receipt of the notice signed by O. Harper, an employee of the plaintiff. The plaintiff strenuously objected to the reception of this receipt until Harper’s signature was proven. But the defendants proved that Harper had previously signed similar receipts and that the last’’ signature was the same.

As the fact of Harper’s signature was peculiarly within the knowledge of the plaintiff, the burden was shifted upon the plaintiff to prove that Harper was not their employee or that he did not sign the receipt.

The plaintiff took delivery of the car only on Monday, September 27, 1920. At that time, the ice in the car had melted, the temperature had gone up to 52 and the meat was slimy and sour.

Whose fault was it that the car was not properly iced and was received only on the 27th?

The plaintiff says it was the duty of the Public Belt Railroad to have iced the car. We do not think so. It was not made its duty by contract, for it had no contract with the plaintiff as the T'exas & Pacific had. Nor is it shown that it was customary for the Public Belt Railroad to ice cars, or that the plaintiff had any reason to believe or expect that the Public Belt Railroad would do so. On the contrary, the evidence is that on previous occasions, when cars were switched in the Robin street yard the plaintiff had iced them. If the plaintiff did not do it, the Public Belt Railroad had a right to believe that the Texas & Pacific had done it.

The Public Belt Railroad had no installation to do the icing and the plaintiff knew it.

Whether the Public Belt Railroad can be considered as a carrier or a warehouseman, there is a material difference between railroad carriers which carry goods for several days and are provided with depots and warehouses and facilities for holding goods and preserving them with ice and other carriers, such as belt roads, which do only a belting or switching business for a short time and possess none of the above facilities and do not extend them to the knowledge of their customers.

In 4 Elliott on Railroads, 3rd Ed., S. 2297, pp. 778-780, after stating the general rule that the liability of a railroad as a common carrier ceases, and that of a warehouseman begins only after the consignee has been notified and has had a reasonable time thereafter within which to accept delivery of the goods and remove them, says:

“There is, it is obvious, an essential difference between railroad carriers who are provided with depots or warehouses and carriers who are not so provided and do not assume to possess such facilities.
“In view of the considerations which we have outlined, it seems to us that a railroad company receiving goods for transportation, undertakes that it will retain the goods in its' capacity of a common carrier for such a reasonable length of time as will enable the consignee to remove them, but that the consignee must exercise reasonable care and diligence in removing them; otherwise the company will be liable as a warehouseman and not as a common carrier, that is, that it ceases to be an insurer and is liable only in the event that the loss of the goods is caused by its negligence.
“The general rule, as we have said, must be subject to important exceptions. One of these exceptions, is that where the consignee is at the station when the goods arrive, knows of the arrival, has opportunity to remove them and declines to do so, he cannot insist that the company be held as a common carrier; he cannot indeed, insist that it be held if he is informed that the company cannot store the goods. So where the goods are shipped to a place where, as the shipper knows, there are no station buildings or warehouses, it has been held that the liability of the carrier terminates as soon as the goods are unloaded, or if left on the cars, are placed in a position ready for immediate delivery to the consignee. We do not believe that it can be justly said that a railroad company is under an absolute duty to provide buildings for storing goods at all places where its freight trains stop, etc.”

In the case under consideration the plaintiff, consignee, was notified of the arrival of the meat on the 25th, he had every opportunity to remove it, but .did not do so until the 27th. The evidence is that when on the 27th the plaintiff asked for the delivery of the car from the Public Belt yard to the Julia street switch, it was done' within an hour after the request. The plaintiff knew that the contents of the car was meat, an inherently perishable article in the month of September, and that it required uninterrupted icing for its preservation. Yet they took no steps either to provide for the icing or for the removal of the meat until two days after they were notified of its arrival. It is true that the plaintiff, under ordinary conditions, had 48 hours within which to remove goods. But this rule left them the option of the delay. It did not cast upon the Public Belt Railroad the responsibility for damage for perishable goods. If the plaintiff chose to delay removing the meat up to the. last hour and the meat was then spoiled, the plaintiff assumed the risks of the delay and it was owing to its negligence and not to any fault of the Public Belt Railroad that the meat was spoiled.

In the case of Wood vs. La. Ry. Co., 158 La. '504, 104 So. 306, the Supreme Court said:

“Liability of railroad as a carrier of goods had ceased when goods in its custody were destroyed by fire, where plaintiff had ample opportunity to remove the goods after notice.”
“The liability of a railroad as a warehouseman depends on whether the goods in its possession were destroyed by reason of its fault.” Also Gibbons vs. Yazoo & Miss. Valley R. Co., 130 La. 671, 58 So. 505.

We conclude, therefore, that it was not the duty of the Public Belt Railroad to ice the car; that the plaintiff had ample opportunity to remove the contents of the car after notice, and that the decay of the meat was due to plaintiff’s negligence and to the perishable nature of the meat for which the defendant was not liable. 2 Rob. 403; Wm, D. Lewis & O’Neil-Skip-with & Osborn vs. The Ship “Success” and Owners, 18 La. Ann. 1; Harter Act, 171 U. S. 190-191; 1 Michie, 764 S. 1003; 6 Cyc. 381; 7 L. R. A. 281; 1 Black 156; 36 Dalloz, p. 882, S. 31.

It is therefore ordered that the judgment appealed from be affirmed.

(Rehearing Granted June 21, 1926.)

OPINION ON REHEARING

JO-NES, J.

As the pleadings and the evidence are set forth in the original opinion, we will simply discuss the law.

In American Trading Company vs. New Orleans & Northeastern R. R. Co., 159 La. 9, the Supreme Court held as follows:

“Under Carmack Amendment, carrier voluntarily accepting goods for shipment to points on another line in another state is conclusively treated as having made a through contract and elected to treat connecting carriers as its agents for all- purposes of transportation and delivery.”

The New Orleans Public Belt R. R. Co. clearly comes within the terms of the Car-mack Amendment, as section 1, subsection 3 of the Interstate Commerce Act clearly covers all switching and terminal carriers. That section reads as follows:

“The term ‘railroad’ as used in this Act shall include all bridges, car floats, lighters and ferries used by or operated in connec-# tion with any railroad, and also the road in use by any common carrier operating a railroad, whether owned or operated under a contract, agreement or lease, and also all switches; spurs, tracks, terminals and terminal facilities of every kind used or necessary in the transportation of the persons or property designated herein, including all freight depots, yards and grounds, used or necessary in the transportation or delivery of any such property.”

Section 4 of the bill of lading, which forms the contract between the parties, contains the following stipulation:

“Property not removed by the party entitled to receive it within forty-eight hours (exclusive of legal holidays) after notice of its arrival has been duly sent or given may be kept ,in the car, depot, or place of delivery of the carrier or warehouse subject to a reasonable charge for storage and to carrier’s responsibility as warehouse only, or may be, at the option of the carrier, removed to and stored in a public or licensed warehouse at the cost of the owner and there held at the owner’s risk and without liability on the part of the carrier, and subject to a lien for all freight and other lawful charges, including a reasonable charge for storage.”

This provision "is binding on the parties.

(See Erie R. R. Co. vs. Shuert, et als., 250 U. S. 465, and Southern Railway Co. vs. Prescott, 240 U. S. 432.)

As the evidence shows that September 28th was a Sunday; that no notice of the arrival of car was given until September 25th, plaintiff clearly had under the free time until September 28th to accept delivery of the car, but the meat was badly damaged when unloaded by plaintiff on September 27th.

Furthermore, the bill of lading shows that the carrier was required to re-ice the shipment at Longview Junction, Texas, Boyce, La., and New Orleans.

The evidence shows that the bunkers were only three-fourths full when the car arrived on September 24th and that this amount of ice would suffice to preserve the meat only twenty-four hours under the weather conditions existing at the time.

As the carrier failed to carry out its contractual obligation and re-ice the shipment in New Orleans, it is liable for the damages caused thereby.

The evidence clearly shows that the Public Belt Railway Company was given neither the bill of lading nor information as to the perishable quality of the shipment nor of obligation to ice; that the switch of plaintiff was filled with cars on September 25th, and that cars were always delivered to plaintiff in the order of their arrival, except where special order was given the plaintiff for a prompt delivery, a precaution not taken herein.

As due care seems to have been shown by this defendant, we do not think it can be held liable.

Little Miami R. C. vs. Washburn, 22 Oh. St., 324; C. H. Bosworth, Receiver of Chicago, Peoria & St. Paul R. R. vs. Carr, Roider & Engler Company:

“Where cars in the yard of the terminal company were destroyed by fire, the Supreme Court of the United States said: ‘Though in physical possession, under its agreement with the receivers of the car in which the goods were being transported, the terminal association had not become responsible as a carrier therefor, because it had not been put in possession of the way bill or other form of information on which it could proceed with the carriage.’ ”

See also General Equipment Company vs. John Barton Payne, Director General of Railroads and City of New Orleans, No. 8645, Court of Appeal, Parish of Orleans.

The evidence shows that the .market price of meat in New Orleans on September 24th and 25th, the day on which shipment would have arrived, was nineteen cents a pound, and the total weight 21,665 pounds, making the total value $4,116.25, that owing to damage meat sold for $3,120.16, thus making a loss of $996.19 and we think plaintiff is entitled to recover the amount.

It is true that the bill of lading provides that the loss must be calculated on the value of the shipment at the point of origin, but in the case of Chicago M. & St. P. Railway Co. vs. McCall Dinsmore Company, 253 U. S. 97, the Supreme Court of the United States held that such a provision in a bill of lading was a limitation of liability and therefore, under the Cummings Amendment to the Interstate Commerce Act, null and void, when -the loss at the point of destination was greater.

Defendant contends that plaintiff should recover in no event more than the amount it originally claimed, namely, $411.25, because the bill of lading requires that claim must be made in writing to the carrier. The clause of that document on this point reads substantially as follows:

“Except where the injury is due to delay or damage, while being loaded or unloaded, or damaged in transit by negligence, as condition precedent to recovery, claim must be made in writing to the carrier within six months after delivery.”

As this damage was apparently caused while the car was still in transit by the negligence of the carrier, we do not think that the above provision applies, but even if it did, we do not think that it requires a claimant to state the exact amount of the damage, as it only says a claim must be filed. The obvious intent of the provision is to put the carrier on notice that damage has been suffered and then enable it to investigate with reasonable promptness. ' Defendant has cited no authorities sustaining his contention on this point, and we do not think it sound.

For the reasons above cited, our original decision is amended so as to read as follows:

It is ordered, adjudged and decreed that there be judgment in favor of plaintiff, Swift & Co., Ltd., against defendant, Texas & Pacific Railway, et al., through the receivers J. L. Lancaster and C. L. Wallace, in the sum of $996.19 with legal interest from September 20, 1920, and all costs.

It is further ordered, adjudged and decreed that the suit be dismissed as against the City of New Orleans.


text:
    No. 9689
    Orleans
    KLINBERG, Appellant, v. GRISAFFI
    (March 28, 1927. Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Assault and Battery —Par. 4, 5.
    The aggressor can not recover damages for an assault.
    Appeal from Civil District Court, Division “D”. Hon. Porter Parker, Judge.
    Action by Louis Klinberg against John Grisaffi.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Eraste Vidrine, Jno. T. Convery, of New Orleans, attorneys for plaintiff, appellant.
    McCloskey & Benedict, of New Orleans, attorneys for defendant, appellee.
   WESTERFIELD, J.

From a judgment denying plaintiff damages for an alleged assault and battery, he prosecutes this appeal.

Defendant admits the assault but contends that plaintiff was the aggressor.

The evidence is somewhat conflicting, but, at best, it can not be said to preponderate in plaintiff’s favor. We find that plaintiff, either malicioulsly or playfully (there is testimony both ways) tripped defendant, by suddenly inserting his foot between defendant’s legs, causing him to fall violently to the ground, angering him, with the result that he struck plaintiff on the ear. Defendant denies contact with plaintiff’s ear, insisting that it was the jaw, and not the ear, he struck. We believe defendant to be mistaken in this regard, but we make no distinction between the two localities. If plaintiff tripped defendant in play or “in fun” as it is sometimes expressed, we can not approve of-his sense of humor and must conclude that he was at fault in starting the trouble. As the aggressor he can not recover. Puatacci vs. Palermo, 3 La. App. 465.


text:
    No. 9519
    Orleans
    CUSACHS, ET AL., v. COLUMBIA NATIONAL FIRE INSURANCE CO.
    (Jan. 31, 1927. Opinion and Decree.)
    (Feb. 14, 1927. Rehearing Refused.)
    (March 28 1927. Writ of Certiorari and Review denied by Supreme Court.)

      (Syllabus by the Court)

    1. Louisiana Digest — Sales—Par. 22, 23, 24.
    A promise of sale, in order to amount to a sale, must be clothed with the same formalities as a sale, otherwise it is not translative of property.
    2. Louisiana Digest — Courts—Par. 62.
    One decision is not sufficient to support the doctrine of stare decisis.
    Appeal from Civil District Court, Division “C”. Hon. E. K. Skinner, Judge.
    Action by Gaspart Cusachs, et al., against Columbia National Fire Insurance Co. There was judgment for defendant and plaintiffs appealed.
    Judgment reversed.
    . Dart, Kernan & Dart, of New Orleans, attorneys for plaintiffs, appellants.
    J. C. Hollingsworth, of New Orleans, attorney for defendant, appellee.
   OPINION

WESTERFIELD, J.

This is a suit on a fire insurance policy, and, it is defended upon the ground that there was failure of warranty in respect to the ownership of the property covered by the policy and destroyed by fire.

There was judgment for defendant and plaintiffs have appealed.

On May 26, 1917, the defendant insurance company issued its policy covering the fire hazard upon a certain piece of property in the town of Mandeville, La., in the name of W. B. Lancaster, a former owner of the property, who transferred the policy, .with the consent of the defendant, to Bagur, one of the (plaintiffs herein. Bagur assigned the policy to Cusachs, co-plaintiff herein as security for a mortgage debt and caused the usual “loss payable” clause to be inserted or attached to the policy by defendant. Thereafter, on May 14, 1917, Bagur entered into the following agreement with one Cinquemani.

“I hereby agree to purchase through W. B. Lancaster for $650, one lot and store on Girod street, Mandeville, La., in square 17. Said lot measures 40 feet front by 190 feet deep between equal and parallel lines, payable $50 in cash balance $8 per month with 4 per cent.
>'■ '“B. Cinquemani.
“Witnesses:
“R. M. Smith,
“E. J. Bagur.”

It will be observed that the agreement is not signed by Lancaster, who acted as agent for Bagur, nor by Bagur, except as a witness, but it was partly executed and several payments made on account to Bagur, who does not impeach its validity upon that ground, consequently we shall treat with it as though signed by Bagur, or his agent Lancaster.

On December 20, 1917, following the agreement with Cinquemani the property was destroyed by fire. Cinquemani had insured the property with Concordia Fire Insurance Company for $500.00, and failing to get a settlement sued that company, obtained a judgment, which on appeal to this court and on a writ to the Supreme Court, was affirmed. See No. 8186 Orl. App., and No. 25,210 S. C.

The defense, which failed in the Cinquemani case, was the same as that made in this case by the present defendant, to-wit: A failure of warranty under a clause in the policy in the identical language of the policy sued in this case.

“This entire policy, unless otherwise provided by agreement endorsed hereon or added hereto, shall be void * * * if the interest of the insured is other than unconditional and sole ownership, or if the subject of insurance be a building on ground not owned by the insured in fee simple.”

So that the issue in the Cinquemani case was, and the issue here is, the ownership of the property insured at the time .of the fire. The parties to the two suits are different, and the policies sued on were different, except in the respect that all insurance policies are similar. But the determining factor is the same. This court, as then constituted, held that Cinquemani was the owner and by refusing to grant a writ the Supreme Court, inferentially, at least, approved of that judgment. The District Court, in the case at bar, believing that the decision in the Cinquemani case was conclusive here, dismissed plaintiff’s petition. We are of opinion that the decision in the Cinquemani case was erroneous and, not without embarrassment, we have concluded to overrule it, notwithstanding our respect for the judges of this court, and the Supreme Court who participated in that case. The proposition to our minds, does not admit of a doubt and we are forced to conclude that Bagur was the owner of the property at the time of the sale. If we are wrong in this the Supreme Court will soon set us right.

■ In Caire vs. Mutual Building and Homestead Association, No. 7315 Orl. App., we said:

“A promise of sale amounts to a sale only in the sense that it entitles either party to enforce specific performance; but a promise of sale is not translative of property, and does not change the ownership of or dominion over the thing even as between the parties or put the thing at the risk of the promisee.”

In Thompson, Agent, vs. Duson, Sheriff, 40 La. Ann. 712, 5 So. 58, the court, at page 716, referring to R. C. C. 2462, 2439 and 2449, says:

“From the provisions we take it to be clear that ‘a reciprocal consent of both parties as to the thing. and the price thereof’ is essential, and is of the essence of a promise of sale as well as of a sale.
“There was evidently such ‘a reciprocal consent’ between Mrs. Kilpatrick and Thompson. But those provisions make the further requirement that the promise of sale MUST BE CLOTHED with the same formalities as a sale, in order that it shall have effect. One of the most important of these is an act which purports to transfer the property. R. C. C. 2440. Such we understand to be the true import of the word ‘act’ which is contained in the article. True, it is, that no set phrase or form of words is necessary to operate (p. 717) a translation of property, but the ones employed must, of themselves, clearly express that object.”

In Capo vs. Bugdahl, 117 La. 992, 42 So. 478, the court held, referring to the following agreement:

“ ‘This is to certify that I have this day sold my 'house at No. 19Ó4-6 St. Louis St., between Roman and Prieur, to Thomas Capo, for the sum of $2300, 10 per cent, $230, paid, balance when act of sale is passed; 1905 taxes to be paid by vendor, also 2 per cent to agent.’ That this agreement was not a sale. It was not intended in itself, to transfer the property. It remained in the defendant, who continued to have the real right in the property.”

In Trichel vs. Home Ins. Co., 155 La. 459, 99 So. 403, the court in considering a similar defense by an insurance company, said.

“We. think that such a doctrine is subsersive of the whole theory of insurance, which (in theory at least) is intended to provide protection for the assured. As we have heretofore said, the property insured remains at the risks qf the insured, notwithstanding a promise to sell the same; and in dollars and cents (which is the practical side of the question) his interest in the property is precisely the same before and after his promise to sell; his risk not ceasing therein until actual sale. In Power vs. Ocean Insurance Co., 19 La. 28; 36 A. Dec. 665, this court said:
“ ‘The nullity mentioned in the clause relied on by defendants, was in -our opinion, intended and understood by the parties for the case '’where by sale or otherwise an absolute transfer or termination of the interest of the insured should take place so as to leave him without interest at the time of the loss.’
“We think that doctrine perfectly sound and we will follow it.”

We have given consideration to the suggestion that the Cinquemani case, however illogical we deem it, should not be disturbed under the rule of stare decisis, La. Const. & Imp. Co. vs. I. C. R. R., 49 La. Ann. 552, 21 South. 891, or as constituting a rule of property, Lepine vs. Marero, 116 La. 941, 41 South. 216. But we have concluded upon the first point that one decision is insufficient as a basis for the application of the doctrine of stare decisis, Quake Realty Co. vs. Labasse, and upon the second point that there is no rule of property involved. The present case is based upon a policy issued by defendant before the Cinquemani suit was filed and by a different insurance company to a different policy holder.

For the reasons assigned the judgment appealed from must be and it is reversed, and it is now ordered that there be judgment for plaintiffs, Gaspard Cusachs and E. J. Bagur, and against the Columbia National Fire Insurance Company, in the sum of $300.00 with interest thereon at the rate of 5 per cent from April 4, 1918, until paid, and for all costs.


author: JONES, J.

text:
    No. 9700
    Orleans
    ARENA v. CAMARATA
    (March 28, 1927. Opinion and Decree.)

      (Syllabus by the Court)
    1. Louisiana Digest — Appeal—Par. 625. Where the judgment of the trial court is clearly correct, it will be affirmed.
    Appeal from Civil District Court, Division “A”. Hon. Hugh C. Cage, Judge.
    Action by Lawrence Arena, Sr., for the benefit of his minor son, Lawrence Arena, Jr., against Nick Camarata.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed-.
    J. J. -Wingrave, of New Orleans, attorney for plaintiff, appellant.
    Eugene Stanley, of New Orleans, attorney for defendant, appellee.
   JONES, J.

This is a suit for five thousand dollars ($5000.00) damages on the ground that defendant unlawfully assaulted plaintiff’s minor son.

The answer is a specific denial of the assault.

The evidence shows that plaintiff’s son, a boy sixteen years old, along with boys and girls, was skating on the night of January 11, 1923, in front' of defendant’s club and that he went across the street to his home with his nose bleeding.

The injured boy and his friend testify that defendant struck the boy, while defendant swears lie did not touch him, and Mr. Blohm, another member, who was on the gallery with the defendant when he was ordering the boys away, says he did not see the defendant, who was on the porch, touch the boy, who was on the sidewalk. As these were the only persons present at the time, we agree with the trial judge in thinking that plaintiff has failed to make his case certain.

• For above reasons the judgment is affirmed.


author: CLAIBORNE, J.

text:
    No. 10,237
    Orleans
    PARLONGUE v. LEON
    (February 14, 1927. Opinion and Decree.)

      (Syllabus by the Court)
    1. Louisiana Digest — Automobiles—Par. 4; Negligence — Par. 1.
    It. is not negligence to stop upon the right side of the highway to make temporary necessary repairs to an automobile.
    2. Louisiana Digest — Automobiles—Par. 4, 4 (a); Negligence — Par. 22.
    It is negligence on the part of the plaintiff to stop his automobile at night upon the highway without headlights or back lights; but if the defendant could have avoided the collision by due care he is liable in damages.
    3. Louisiana Digest — Automobiles—Par. 4.
    One restriction on the speed of an automobile at night is that the chauffeur shall keep his car under such control and operate it at such speed only that he can stop his car and avoid an obstruction within the distance that his lights illuminate the highway.
    (See Civil Code, Article 2315. Editor’s note.)
    Appeal from Twenty-fifth Judicial District Court, Parish of St. Bernard. Hon. J. O. Meraux, 'judge.
    Action by Alex J. Parlongue against Charles Leon.
    There was' judgment for defendant and plaintiff appealed.
    Judgment reversed.
    Oliver S. Livaudais, of New Orleans, attorneys for plaintiff, appellant.
    Leander H. Perez and Neil A. Armstrong, Jr., of New Orleans, attorneys for defendant, appellee.
   OPINION

CLAIBORNE, J.

The plaintiff claims $2791.45 damages from the defendant caused by a collision of automobiles.

Plaintiff alleged that, on December 21, 1924, at about 6 P. M., he was driving his automobile on the St. Bernard Parish highway, coming into New- Orleans, at a point in the rear of the Chalmette monument; that he stopped his car on the right-hand side of the road for the purpose of making some repairs, and was leaning over the tool box to get a tool when the defendant, coming up towards the rear of plaintiff’s car, struck it with such force that the impact threw plaintiff’s car into the ditch next to the road, damaging it, and throwing plaintiff to the ground, breaking one of his ribs and otherwise injuring him internally, causing him much suffering; that the collision was due to the negligence of the defendant.

The defendant admitted that he was driving on the St, Bernard road on December 21, 1924, but denies that it was 6 P. M., and avers that it was nearer 7:30 P. M.; he admitted that he collided with plaintiffs car but the fault was solely that of plaintiff; that plaintiff was parked on the side of the road in the path-, way of up-going traffic without any red light in the r.ear of his automobile.

Assuming the part of plaintiff in reconverition, the defendant claimed $292.80 for damages done to his automobile. He alleged that he was driving on the St. Bernard highway into New Orleans at a moderate rate of speed on the extreme right-hand-side of the road with both headlights burning, and .upon reaching a point on said road in the rear of the Chalmette Monument, he suddenly came upon a black object, which proved to be an automobile parked upon the right-hand side of the road without lights, when defendant, using all means within his power to avoid striking the car, swerved to the left and struck the left rear fender of plaintiff’s car, causing damage to defendant’s car in the sum of $292.80, which he claims in reconvention.

There was judgment in favor of defendant, rejecting plaintiff’s demand, and in favor of defendant on his reconventional demand against plaintiff for $292.80.

The plaintiff has appealed.

The Supreme Court has decided that it is not negligence to stop an automobile upon a highway momentarily for the, purpose of making urgent repairs to it. Southall vs. Smith, 151 La. 967, 92 South. 402.

It is negligence to stop an automobile upon the highway after dark without headlights or back lights. But this negligence does not justify another automobile to run into it negligently, nor absolve it from responsibility if, by the use of ordinary care, the collision could have been avoided. The question whether the plaintiff had lights in front or the rear of his automobile at the time of the accident is asserted by the plaintiff and denied by the defendant. 'Assuming that the plaintiff had no lights at all, he can fail to recover only if defendant, in the absence of those lights, could have avoided the collision by the exercise of proper care.

In the case of Blackburn vs. Rrd., 144 La. 520, 80 South. 708, the plaintiff sat upon the track of the defendant railroad at 3:20 A. M. of the night and was run over and killed by a train of the defendant company. Suit was filed against the railroad; the defense was contributory negligence. There was judgment for plaintiff. The court said on p. 529:

“In our opinion this case must turn upon the failure of the engineer or fireman to see deceased in time to stop and avoid striking him. As indicated heretofore, the active phases of his gross negligence were "spent, and he was in such a position of apparent helplessness as to have been seen and his condition appreciated had the proper precautions been observed. It will not do for railroad companies to run their trains into and through thickly populated towns and cities, by depots and places where people are known to frequent, at such high rates of speed; their employees are not seeing that which, by the exercise of ordi- • nary care, they should see, and then be permitted to escape liability because of the inability of such employees to stop the trains when the danger is actually discovered. Under such circumstances ordinary prudence .should induce them to get their trains under such control as, with a careful watchout, they will be able to stop when necessary. In other words, increasing caution with danger, such speed only should be maintained as will enable them, with the light available, whether natural or artificial, to see persons or objects upon their tracks, and by the use of modern appliances to stop and avoid striking them, if the necessity should appear to a resonable mind. If this were not required they might as well pull the throttle open and go through at full speed, insofar as any good might result from an effort to stop when running at such a speed as would not permit it to be done after seeing the danger. This train was either running at such a rate of speed that it could not be stopped within the distance objects on the track could be seen, or the lights were defective on the train, or the trainmen were not keeping a proper lookout. Whichever may have been the case, that was the proximate cause of the injury. If there were any difficulties against seeing, this was all the more reason why greater care should have been used.”

McClanahann vs. R. Rd., 111 La. 781, 35 South. 902; Jacobs vs. Jacobs, 141 La. 273, 74 South. 992.

In Dean vs. Burglass, 144 La. 824, 81 South. 330, the court said:

“A motorman negligent in running his ear through a dark street in the evening at a high rate of speed, with a light enabling him to see only 10 to 15 feet ahead, knowing that he could not stop within that distance, assumed all risk of meeting persons and vehicles ahead of him on the track and could not recover for injury from a collision with a wagon on the track.” Mire v. Y. & M. V. R. R. Co., 105 La. 462, 29 South. 935; 125 N. W. 925; 132 Tenn. 487; 178 S. W. 1117 L. R. A. 1916 A, 1111 Berry, S. 386.

Huddy on Automobiles, p. 360, S. 307:

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

Also p. 937, S. 715.

The defendant violated this rule.

He, and his witness, testify that they did not see plaintiff’s car until they came within a few feet of it. The road upon which the defendant was traveling was smooth and straight and his headlights were burning brightly. Nothing obstructed his view.

“He will be presumed, in case of accident, to have seen what he should have seen in the performance of his duties.” Kelly vs. Schmidt, 142 La. 91, 76 South. 250.

That the defendant was traveling at a great rate of speed is established by the damage itself. Res ipsa loquitur. His car shoved the plaintiff’s car off the road into the ditch next to the road and knocked plaintiff against a tree with sufficient force to break one of his ribs.

The damage done to defendant’s car, according to his own testimony, consists of: Straightening front axle, two front springs, new fenders, two headlights, repair top curtains, new running board plate, one double bar bumper, right front wheel broken, and repainting car.

The two cars were locked together and the services of a wrecker were necessary to pull them apart and to drag defendant’s car away. We conclude that the accident happened through the fault of the defendant.

Plaintiff’s testimony as to the damage to his car and the cost of repairs is uncertain and unsatisfactory. The items proven with any degree of certainty amount to $95. He paid $39.70 to Hotel Dieu and his doctor’s bill was $50, making a total of $184.70.

Plaintiff had a rib' broken and suffered much pain, remained in the hospital five days and at his home two weeks, We fix his damage, therefore, at $750.

It is therefore ordered that the judgment herein be reversed and set aside, and it is now ordered that there be judgment condemning the defendant, Charles Leon, to pay to the plaintiff, Alex J. Parlongue, the sum of nine hundred and thirty-four' and 70-100 dollars, with five per cent per annum interest, from February 21, 1925, till paid, and all costs of suit.

It is further ordered that the defendant’s reeonventional demand be rejected and dismissed at his cost in both courts.


text:
    No. 9460
    Orleans
    INDEPENDENT FRIENDS OF AMERICA v. WASHINGTON
    (January 31, 1927. Opinion and Decree.)
    (February 28, 1927. Rehearing Refused.)
    (March 28, 1927. Writ of Certiorari and Review denied by Supreme Court.)

      (Syllabus by the Court)

    1. Louisiana Digest — Evidence—Par. 340.
    Where a society charges that defendant, its treasurer, embezzled certain funds, ' and attaches the home of defendant in suit to recover, suit will be dismissed when the testimony is conflicting and. contradictory and the attendant circumstanecs corroborate in part the story of defendant.
    Appeal from Civil District Court, Division “C”. Hon. E. K. Skinner, Judge.
    Action by Independent Friends of America against Mrs. Artimise Washington.
    There was judgment for plaintiff and defendant appealed.
    _ Judgment reversed.
    Claude L. Johnson, of New Orleans, attorney for plaintiff, appellee.
    Joseph H. Brewer, of New Orleans, attorney for defendant, appellant.
   OPINION

JONES, J.

This is a suit by the plaintiff society for six hundred and eighty-one and 00-100 ($681.00) dollars.

The petition filed March 29, 1923, alleges that plaintiff society -directed its banking committee, consisting of three members, to transfer from its account in the Carrollton Branch of the Whitney-Central Trust & Savings Bank the sum of six hundred and 00-100 ($600.00) dollars to a special account in the same bank to be known as Independent Friends of America “Burial Account”; that the defendant treasurer of the society and a member of the said banking committee induced the other members of said committee to sign a voucher in blank for the transfer of said fund, and on March 20, 1923, went to the bank with the signed voucher, filled it out for six hundred and eighty-one and 00-100 (681.00) dollars, withdrew this amount, neglected to transfer it to an account to be known as Friends of America “Burial Account” and embezzled the fund; that she' refuses to account therefor; that on account of said embezzlement and failure to account, petitioner fears defendant intends to dispose of her property fraudulently and that a writ of attachment is necessary. The petition was sworn to by Jos. Dudley, president of the society. Bond was given, the writ issued, the bank was made garnishee and the sheriff seized the home of defendant.

Defendant, after admitting that she was treasurer and a member of the banking committee, avers that D. E. Lawrence, president of the so.ciety and chairman of the banking committee, came to her home on Sunday, March 18, 1923, and instructed her to take a blank check, which he had already signed, to the other member of the banking committee, Sylvia Gustan, get Sylvia to accompany her to the bank and there withdraw in the neighborhood of seven hundred and 00-100 ($700.00) dollars, and "if Sylvia could not go with your respondent, then, to tell her to sign the check and for respondent to withdraw the funds herself and keep same until Tuesday of next week when he, the Rev. E. D. Lawrence, would go with respondent to open a new account for the ‘Burial Account’;” that three signatures were necessary to open the new account. Respondent denies that she induced the other members to sign and, on the contrary, avers that Lawrence made excuses because of his work and Sylvia Gustan because of sore eyes, and each of them voluntarily signed the check in blank and delegated petitioner to withdraw the fund; that respondent was held up and robbed by two negro' men while on her way home after she had withdrawn the money; that she immediately reported the robbery to a policeman; had shown due care and was not liable for the fund; that officers and members had threatened to have her arrested and to file suit unless she executed , a mortgage upon her home to pay the amount; that the . attachment was “maliciously obtained upon a false affidavit for the purpose of coercing defendant”.

Respondent prays for dismissal of suit with damages of five hundred and 00-100 ($500.00) dollars as attorney’s fees for illegal issuance of writ.

The garnishee bank answered all interrogatories “no”, and defendant took a rule to dissolve the attachment as illegally issued, which was tried and referred to the merits on April 25, 1923, after taking the testimony of several officers of the plaintiff society, the defendant and defendant’s witness, Clara Gray. Then, on June 25, 1923, the criminal charge of embezzlement, which had been filed on March 20, 1923, was tried by a jury and the defendant was acquitted. Finally the case was tried on the merits in court On October 16, 1923; judgment was given in favor of plaintiff and appeal was taken to this court by consent from the judgment referring the rule to dismiss the attachment to the merits and also from the final judgment.

Only questions of fact are involved and the testimony is confusing and in many respects contradictory.

The testimony of plaintiff’s officers and of defendant in the main tends to support their pleadings, but that of Rev. Lawrence varies, in one important particular. He swears that he had to work on Monday and Tuesday on a boat and that, after signing the voucher, he took it to the defendant on Sunday morning, March 18, and instructed her to get the other member of the banking, committee, Sylvia Gustan, to go with her to the bank and transfer six hundred and 00-100 dollars to a new ac- ■ count, but the petition alleges, as shown above, that the defendant had induced the other members of the committee to sign the voucher in blank. Thus his testimony contradicts the petition in one important point.

Defendant swears that he came to her house on Sunday, March 18, signed the voucher while there, and instructed her to get Sylvia Gustan, the other member of the committee, to go with her to the bank and withdraw, “upwards of seven hundred dollars”, bring it to her home, and keep it until he, the president, finished his work on the boat and could go to open the new account.

As the decision in this case depends largely upon the credibility of' the testimony of these two witnesses as to Lawrence’s instructions, we must examine their testimony as a whole, that of the other witnesses, and the attendant circumstances.

Lawrence is corroborated in part by Sylvia Gustan, the third member of the banking committee, who testified on the trial of- the merits (p. 16) that she did not know of any instructions to transfer the money, but understood that the money was to be divided and that she was at the meeting when they decided to divide the money.

On page 17 she testified as follows:

“Q. Was Mrs. Washington present when they decided to divide the money into two funds?
“A. She told me she was, but I was not present at that time. She told me that she was instructed to get my signature and divide the money, transfer the money.”

She further testified that she had very sore, red, painful eyes on Tuesday morning, March 19; that defendant, who found her in bed when she called at her home, between seven and eight, first stated that she had the check with Lawrence’s signature on it and wished Syliva to accompany her to the bank to transfer six hundred and 00-100 ($600.00) dollars, but later defendant said that she would not advise “me to go out on account of my eyes”, as she understood the transaction and could transfer the fund without me if I would sign the check.

I said: “That is true”, and signed the voucher.

In the criminal court she testified that she had served on the banking committee with defendant for a year, and that she had often signed vouchers just like this one before, and that one of the committee would then take them to the bank to be filled in.

Lawrence, Jos. Dudley and Lucy Moore, plaintiff’s other witnesses, all testify that the resolutions of the special committee, of which the defendant was a member, showed that the money was to be transferred to another account in the same bank, but was not to be withdrawn.

The resolution, which is in the record, is, like much of the testimony, by no means clear. It reads as follows:

“January 11, 1923.
“Extract from Minutes of Meeting of Lawrence Lodge No. 1, Independent Friends of America, of City of New Orleans, State of Louisiana:
“The Lawrence Lodge held its regular meeting January 11, 1923. Meeting was; called to order by G. M. E. Lawrence. Devotional exercise conducted by the prelate. Scripture reading: Psalm 9. Singing: Hymn, ‘My God, the Spring of All. My Joys.’ Prayer by prelate.
“Report of committee on separation of funds, subordinate lodge from burial funds, as follows:
“New Orleans, La., January 9, 1923. “To Lawrence Lodge Officers and Members:
“The committee appointed by the Lawrence Lodge No. 1, I. F. of America, met. January 9, 1923, to make provisions for the separation of the burial funds from the. funds of the subordinate lodge.
“The W. M. opened with singing and. prayer.
. “After which he stated the purpose of' the meeting called is to place in the name-of the burial fund an amount, and we-, must separate from the money of the subordinate lodge. After the members had discussed the matter, Brother J. Dudley sugrgested that the committee act immediately and decide on what the. amount shall be. The W. M. suggested that the amount be $600 (six hundred).
“The committee readily agreed. We, the committee, thereby report $054.25 in the bank not to be drawn.
“But the amount of $600, deducted from the same to be used only as burial fund money, leaving a cash balance of $354.15 to Lawrence Lodge No. 1. Ploping this will meet your approval, as the committee will only separate this money on the approval of the lodge.
“Charlotte Clivens, Artimise Washington, B. Jackson, M. Gariboldi, J. Dudley, Hannah Williams, M. Lawrence, Lucy C. Moore, B. P. Dennie, J. Douglas, E. Bush, S. Gusta, E. Lawrence, G. M.
“Report received on motion by Bro. Harris and seconded by Bro. Gordon. Reed, by Bro. E. Bush, acting G. M., that the report be received and committee discharged for their good work.
“A true copy from the original records.
(Signed) “MARX RUFFIER,
“Recording Secretary.”

Surely, as testified by Sylvia Gustan and by defendant, this merely authorizes the separation of six hundred and 00-100 ($600.00) dollars for the burial fund, but it does not show in what name the separated fund was to be deposited, nor by whom, how or when.

The petition alleges that a new account was to be opened in the name of the Independent Friends of America, “Burial Fund”, and Lawrence (on page 9) under cross-examination testified as follows:

“Q. Did you not tell her to withdraw upwards of seven hundred dollars?
“A. No, sir.
“Q. You are sure of that?
“A. Yes, sir.
“Q. What did you tell her about the ■opening of the new account?
“A. I told her to go to Augustin (Guistan) to sign and go with her and transfer the six hundred dollars from the Lawrence Lodge No. 1 to the Supreme Board of the Independent Friends of America, and the bank would instruct her how to make the deposit.
“Q. You did not tell her you would go the following Tuesday and sign the new card and open the new account?
“A. No, sir; it was not necessary; there was another committee appointed for that.”

The opening of the new account in a bank for a different committee is considerably more complicated than the mere transferring of a fund from Account A to Account B. Banks are always careful to get the signatures of all those whose names must appear on checks withdrawing the fund.

Plaintiff’s able attorney also contends that the minutes of the meeting of the society on March 22, 1923, show defendant’s responsibility for the loss, but in this we cannot agree with him. Necessarily at this meeting, which was called to investigate the loss of the money, the members were all indignant with the whole banking committee, for the society had suffered seriously and the members were anxious, above all, to locate the guilty party and get the money back.

It is true that these minutes, which are in the record, show that the defendant said she had made a mistake in removing the money from the bank, but minutes also quote Sylvia Gustan as contradicting her testimony on the stand when she says: “There was no voucher and the monies of this lodge has always under Brother Lawrence been paid out without voucher and drawn from the bank in this same way.” This statement tends to show that the entire banking committee was under fire, which conclusion is confirmed by the final action of the society in removing all three and then electing new officers.

The defendant testified that she always did what Lawrence instructed about drawing money; that she had often before drawn money and carried it to her home pending payment, and she specifies that she drew and took to her home one hundred and 00-100 ($100.00)' dollars on January 17, to pay for Lawrence’s carrying a concealed weapon (see p. 5 of defendant’s testimony in criminal court), and at another time she had drawn and taken to her^home seventy-five and 00-100 ($75.00) dollars. (In this she is confirmed by Sylvia Gustan). That she had drawn six hundred and eighty-one and 00-100 ($681.00) dollars, because Lawrence had told her on Sunday, March 18, that the board had changed the amount for the burial fund from six hundred and 00-100 ($600.00) dollars to six, hundred and fifty and 00-100 ($650.00) dollars, and that thirty-one and 00-100 ($31.00) dollars was necessary to pay the members of the board; that she had seen a reddish-looking big negro in the bank while she was being helped by a man and a lady in the bank to .fill out the check, and that she had been held up by this reddish-looking negro and another black negro, who were in a Ford car, on Short street, while walking to her homo on Lowerline street frpm the bank; that she had cried out when they first attacked her, but the robbers had knocked her down, grabbed her bag, jumped in the Ford car and gone up Plum street from Short to Carrollton avenue, out Carrollton to Jeannette, and down Jeannette toward Broadway; that she had followed them until she met Clara Grey on Jeannette and Carrollton avenue, when she was told that the Ford car, which had -gone rapidly down Jeannette, was some distance away.

She further testified that she had reported the robbery to a policeman at Carrollton avenue and Plum street, and had made a report to police headquarters on Tulane avenue, but had gotten no results.

Clara Gray corroborates defendant by testifying that she saw the Ford car with two negro men going rapidly down Jeannette just before she met defendant out of breath from running and much dishevelled on Jeannette, near Carrollton, about the time at which defendant had fixed the robbery.

The body of the check shows clearly two distinct handwritings.

Defendant’s position is further strengthened by proof that she has owned and lived in a little three-room cottage on Lowerline for many years in a white neighborhood and that she has never been in any trouble before.

Mrs. Mosely, wife of Prof. Mosely of Tulane, swears that she often employed defendant to take care of her children when she was .out.

Unquestionably it was most unbusinesslike to take the money home, if it was to be put in the same bank in another deposit, but it was unbusinesslike on the part of the president to sign the check in blank 'and leave it with defendant, simply because he had to work two days, when there is no proof of any necessity for haste, and when he admits that another committee had to make the new deposit. Honors are about equal, therefore, on the folly of the two steps, and we must realize that we cannot expect direct businesslike conduct from ignorant, inexperienced negroes.

Plaintiff contends that there are many discrepancies in defendant’s three versions of the complicated transaction, but we think that she has told the story very consistently, considering her lack of education, her- inexperience in business and her station in life. Certainly there are no greater variations in her accounts than in the testimony of some of the witnesses for plaintiff.

It would be a great hardship to deprive this woman of her home, and we do not think from the above reasons that plaintiff has made the case sufficiently certain to justify any such vigorous measure.

The judgment is, therefore, reversed and suit is dismissed, both parties to pay their own costs.

I respectfully dissent.
(Signed) CHAS. F. CLAIBORNE,
Judge.


text:
    No. 9678
    Orleans
    LEVIN, Appellant, v. NEW BASIN CANAL AND SHELL ROAD, ET AL.
    (March 28, 1927. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Automobiles—Par. 4 (b).
    Where two trucks, approaching each other at right angles, enter an intersection at about the same time the one having the right of way is privileged to proceed; the other truck should await its passage.
    Appeal from Civil District Court, Division “F”. Hon. Percy Saint, Judge.
    Action by Morris Levin against New Basin Canal and Shell Road, et al.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Feitel & Feitel, N. H. Polmer, of New Orleans, attorneys for plaintiff, appellant.
    Henry Mooney, Paul A. Sompayrac, of New Orleans, attorneys for defendant, appellee.
   WESTERFIELD, J.

This case results from a collision between a Ford truck belonging to plaintiff and a truck of the Board of Control of the New Basin Canal and Shell Road.

The drivers of both vehicles were under the impression that they had the right-of-way. The Ford was proceeding in Broad street, toward Canal street, and the Canal Board truck out Banks street toward the river. Both streets are boulevards, within, the meaning of the traffic ordinance, and there is no street car track on either. The Canal Board truck had the right-of-way because it was approaching from the right. Section 7 (f) Ord. 7490, C. C. S. Both trucks entered the intersection at about the same time. The Ford should have yielded the way to. the other truck.

The judgment appealed from is correct and it is therefore affirmed.