text:
    No. 13,837
    Orleans
    FABACHER v. GHISALBERTI
    (January 11, 1932. Opinion and Decree.)

      J. A. Morales, of New Orleans, attorney for plaintiff, appellant.
    H. W. Robinson, of New Orleans, attorney for defendant, appellee.
   WESTERFIELD, J.

Mrs. Ghisalberti, the owner of an apartment house, purchased from plaintiff at an auction conducted at its place of business, three sets of bedroom furniture, on October 23, 1930, giving her check for $212.20, in payment dated November 3, 1930, which check the bank, acting upon her instructions, refused to honor, whereupon this suit was brought.

The suit is defended upon the ground that two of the three bedroom sets were infested with bedbugs, liability for the third set being admitted. Claim is made in re-convention for $65 for one month’s rent of the apartment in which the bug-infested furniture was installed, and for $9 for disinfecting the apartment and for $5 per month for storing the furniture.

The trial judge maintained defendant’s position and' plaintiff has appealed.-

The record shows that Mrs. Ghisalberti, desiring to purchase some second-hand furniture to equip an apartment in her apartment building, visited the auction room of plaintiff, where she selected from a quantity of other merchandise the furniture which she considered suitable for her purpose.. She says that the auctioneer, Edward B. Fabacher, guaranteed the beds to be clean and free from bedbugs. Mr. Fabacher denies having expressly warranted the furniture, stating that in this instance there was no departure from his usual custom in conducting such sales “as is, how is and where is.” On this point we find that an express warranty has not been established by the record and the case must be otherwise considered.

The fact that the furniture was bug-infested is, however, in our opinion, sufficiently proven and we have no doubt that Mrs. Ghisalberti’s story to the effect that she rented the apartment to three young ladies who discovered the presence of the bugs during the first night of their occupancy of the apartment, complained indignantly, and left the next morning, is true.

The question, therefore, is whether the presence of bedbugs in the furniture was a breach of the implied warranty of the vendor. Under our law warranty is implied in all sales. C. C., art. 2475. The vendor warrants the thing sold to be fit for the use for which it was bought. Bohanon v. Stewart, 4 La. App. 150. The sale of movable property “as is,” even though it be second-hand, will not relieve the vendor of all warranties. For example, the purchaser of a second-hand automobile “as is” is entitled to receive an automobile which will run on its own power. United Motor Company v. Drumm, 3 La. App. 741. Warranty as to title only does not exclude warranty as to redhibition. Castellano v. Peillon, 2 Martin (N. S.) 466.

Article 2520, R. C. C., reads as follows:

“REDHIBITION DEFINED. 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.”

Article 2521, R. C. C., reads:

“APPARENT DEFECTS NO GROUND. Apparent defects, that is, such as the buyer might have discovered by simple inspection, are not among the number of redhibitory vices.”

Bedbugs are, we will concede, exceedingly unpleasant and if not removed would render a bed unfit for human repose, but whether their presence may be considered a redhibitory vice is very doubtful and upon the evidence before us impossible of affirmation.

There is no proof of the impossibility of eradicating bedbugs from a bed in which they have established themselves. We are aware of the reputation which these disagreeable insects enjoy for tenacious adherence to their established place of abode and of the general abhorrence with which housekeepers generally regard them, but in the absence of a showing that they cannot be removed by force or otherwise, their mere presence in a bed cannot be considered “a vice or defect in the” bed which would entitle the buyer to redhibition. Moreover, under article 2521 it is provided that apparent defects, which the buyer might have discovered by simple inspection, are not among the number of redhibitory vices. Bedbugs, therefore, it seems to us, must be regarded as apparent defects. In fact, according to the testimony administered by defendant herself, the bedbugs were seen in and about the cracks and crevices of the furniture after its installation in her apartment. It would, therefore, appear that they might just as well have been discovered before as after the purchase of the furniture. Mrs. Ghisalberti was suspicious of bugs when she first saw the furniture, for she says she exacted a warranty from the auctioneer before bidding that the furniture was clean and bug free. But why rely upon such assurance; the beds were there for.inspection. A detailed, minute and, if necessary, microscopical examination should have been made. The more disagreeable and obnoxious the character of the bedbug is shown to be and the more unwelcome his presence the more necessity there would appear for such examination.

For the reasons assigned the judgment appealed from is reversed and it is now ordered, adjudged, and decreed that there be judgment in favor of plaintiff, Edward B. Fabacher, and against defendant, Mrs. R. P. Ghisalberti, in the full sum of $212.20 with legal interest from judicial demand until paid and all costs.


source: Caselaw Access Project

author: WESTERFIELD, J.

license: Public Domain

text:
    No. 13,859
    Orleans
    HENRI PETETIN, INC., v. STANDARD GENERAL REALTY CO., INC.
    (January 25, 1932. Opinion and Decree.)

      William Donnaud, of New Orleans, attorney for plaintiff, appellee.
    William H. McClendon, Jr., of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

This suit is for the sum of $292.50, the alleged value of certain printing undertaken by the plaintiff for account of defendant. It is defended upon the ground that the charge is excessive. There was judgment below in plaintiff’s favor, as prayed for, and defendant has appealed.

It does not appear to us that the defense has been sustained by the evidence. According to the testimony for both sides, a profit of 25 or 30 >per cent is not unreasonable and not unusual in the printing business. Plaintiff’s profit did not exceed this figure, and, in the absence of any showing that plaintiff’s operating expenses were unusual, when compared with others in the same business, we cannot say that the charge is improper.

For the reasons assigned the judgment appealed from is affirmed.


author: LeBLANC, J.

text:
    No. 825
    First Circuit
    CHANSON v. MORGAN’S L. & T. R. R. & S. S. CO. ET AL.
    (October 7, 1931. Opinion and Decree.)
    (December 8, 1931. Rehearing Refused.)
    (February 1, 1932. Writs of Certiorari and Review Refused by Supreme Court.)

      Wm. F. Conkerton and S. S. Kiblinger, of New Orleans, attorneys for plaintiff, appellee.
    Milner & Porteous, of New Orleans, attorneys for defendants, appellants.
   LeBLANC, J.

Glynn Chanson, aged eighteen years, was killed almost instantly, on the morning of May 26, 1930, at about 7:30 o’clock in a collision between an automobile in which he was riding and which belonged to and was being driven by John D. Russ, and a locomotive of the defendant railroad company which was hauling a train of freight cars over the tracks at the crossing known as Chacahoula crossing in the parish of Terrebonne. His father, Frederic N. Chanson, plaintiff herein, filed this suit against both the railroad company and John D. Russ in solido, for damages arising out of his death. The demand, which was for $25,398.50, includes damages for the suffering and death of his son, loss of his future support and companionship, and funeral expenses.

The lower court sustained an exception of no cause of action filed on behalf of the railroad company and dismissed the demand as to that defendant. It overruled a similar exception on the part of the defendant Russ and, on trial of the case on the merits, rendered judgment against him in the sum of $3,500 from which he prosecutes this appeal.

No appeal was taken from the judgment sustaining the exception of no cause of action and rejecting the demand as against the Morgan’s Louisiana & Texas Railroad & Steamship Company. The demand as far as that defendant is concerned, therefore, passes out of consideration.

Plaintiff has answered the appeal taken by defendant Russ and asks, that the judgment be amended by increasing it to the amount originally prayed for, or, in the alternative, ‘‘to such an amount, as the Court, after .considering the pleadings, facts, and evidence, in the matter,” feels justified in allowing.

The defendant forcibly stresses before us. his exception of no cause of action which was overruled in the lower court. The exception is based on plaintiff’s failure to have alleged that his son made any protest or objection after having charged him with negligence in driving at an excessive rate of speed in approaching a railroad crossing and in failing to observe the Louisiana Stop Signal posted on the highway one hundred yards ahead. Expressing it in different terms, defendant's contention may be said to be that plaintiff should have negatived contributory negligence on his part.

We know of no law or rule of pleading which places on the plaintiff in a damage suit, the task of negativing contributory negligence in his petition. The plea of contributory negligence is a special defense which has to be specially pleaded and upon being urged by a defendant imposes, on him the burden of supporting it by proper proof. To require of the plaintiff that he make an allegation negativing contributory negligence might have some serious effect on this well-established rule of evidence, by shifting the burden of proof. We do not want to be understood as holding that a plaintiff may not in some case allege a statement of facts from which it might be construed that he was guilty of contributory negligence, but that is. not the issue presented here, as it is the lack of certain allegations which counsel contends gives rise to the exception.

Pursuing counsel’s contentions further, we find him arguing from those principles of law which impose certain duties on the occupants of automobiles., the failure to observe which may make him guilty of contributory negligence and deny him recovery in an action for damages against the driver. Among the many duties the guest has is primarily the one to observe ordinary care to avoid injury, including a reasonable use of his senses and judgment to appreciate danger. ., Then, there is the duty to warn the driver of a threatened danger, the giving of the warning depending of course on the facts- and circumstances of each case as they present themselves. He also has the duty to protest against the negligent or unlawful conduct of the driver, his duty in that respect also depending on the particular facts as they appear in each case. The very principles of law upon which counsel relies so strongly require in each case that the failure of the automobile guest to have observed the particular duty imposed on him must have contributed as a proximate cause to the injury in order to charge him with contributory negligence, which stresses the necessity and importance of inquiring into the facts to ascertain the immediate and real cause of the accident.

We are of the opinion that the exception of no cause of action on behalf of the defendant Russ was properly overruled by the trial judge, and we proceed to a consideration of the case on the merits.

In his answer, Russ sets up three defenses to plaintiff’s claim. The first is that young Glynn Chanson was not his guest; second, that the trip they were making together constituted a joint venture or joint enterprise between them; and the third is the plea of contributory negligence which had been unsuccessfully urged on the exception of no cause of action.

Counsel’s contention seems to be that because young Chanson asked Russ to let him go with him on this trip to New Orleans, instead of having had an invitation from Russ to do so, he was not a guest. We do not believe that it takes that much to constitute one a guest in another’s car. The moment Russ acceded to Chanson’s request and the latter entered the car, the relation of host and guest began and Russ owed him the duty which the law places upon the driver to his guest. In its ordinary meaning, the word “guest” is. defined in several dictionaries as “a person received and entertained at the house of another.” Used in connection with the kind of guest here under consideration, that definition might be paraphrased as follows: “An automobile guest is a person received and entertained in the automobile of another.” Funk & Wagnall’s Standard Practical Dictionary comments further on the term and says that it “is applied with little respect to the duration of the call or WHETHER THE PERSON BE PRESENT BY INVITATION OR NOT.” (Capitals ours.) Accepting this meaning of the term, there, is little room left to doubt that young Chanson was a guest in Mr. Russ’ car, and consequently that defense was properly rejected by the district judge.

The second defense offered, namely,, that Russ and young Chanson were engaged in a joint enterprise, has not, in our opinion, any more merit than the first. We have frequently, in recent cases, had the doctrine of joint enterprise or “common venture,” as it is also called, before us for consideration, notably in the cases of Lawrason v. Richard, 16 La. App. 434, 129 So. 250, and Neuman v. Eddy, 15 La. App. 45, 130 So. 247. The Lawrason case went' to the Supreme Court on a writ of review from our court, where 'the *only question considered was the defense of joint enterprise which had been raised and had been rejected by us. In its original opinion the Supreme Court reversed the judgment of this court and held that the defense • was well taken, but on rehearing, overruled their own decree and reinstated the judgment of this court. 135 So. 29. Our examination of the various authorities from the different jurisdictions in which the doctrine had been invoked, led us to the conclusion that it was to be applied only in those cases where it was shown that each occupant of the automobile had as much or great interest, or -community of interest, as the others in the purpose of the enterprise, and each had tho right to control or direct the movements of each other, in regard to the matter. In both cases referred to, we quoted from numerous decisions which we do not find necessary to do here again. With the idea we have as to what is necessary to constitute a joint enterprise, let us now consider the facts in the case before us and see if the requirement is met.

The trip Russ was taking to New Orleans was not planned by anybody save himself. He had expected to go to Monroe on some business that evening instead, and on learning that he did not have to, conceived the idea of running down to New Orleans on a week-end pleasure jaunt. He said something about it in the presence of Chanson, who asked him to let him go with him, offering to pay expenses. Russ immediately acceded to his request to go but would not let him pay any of the expenses of the trip except to buy five gallons of gasoline in New Orleans, and this he did largely for the purpose of pleasing him. Arrived in New Orleans, they separated, Chanson going to the home of his father, his purpose in making the trip being principally to visit the latter, and Russ going his own way to enjoy the pleasures of a week-end visit to New Orleans. True it is that at Chanson’s request the return trip to Crowley was postponed from Sunday evening to Monday morning and that it was at his suggestion also that the route was changed from the Houma to the Chacahoula route, but neither of these matters could young Chanson have insisted on. The postponement of the trip back home was purely an accommodation to Chanson which did not inconvenience Russ in any way, and the change in the route was made, not because Chanson had any authority or right in the matte.r, but simply because it pleased Russ to adopt the suggestion. Above all this, Russ says himself that he was in sole, exclusive control of the automobile. This positive assertion on his part is of itself, without having to give much consideration to the other facts and circumstances sufficient to preclude the idea that these two parties were engaged in a common venture or joint enterprise within the meaning and general application of those terms.

Coming now to a consideration of the plea of contributory negligence, it becomes necessary for us to refer to the facts in the case, none of which are disputed.

Mr. Russ is a man fifty-seven years old and has a very responsible position as manager of a rice mill in Crowley. He earns a nice salary and his testimony reveals him as a man of high intelligence and well educated. The deceased young man was his stenographer and private secretary and was held in high esteem and regard by him. The facts leading up to the trip they were on, and which took them down to the Chacahoula crossing on the morning of this unfortunate accident, have been related in moré or less detail in discussing the defense of joint enterprise, so we proceed with them from that time.

Russ was driving and young Chanson was. seated on his right. The road is straight for several hundred yards before reaching the railroad crossing and there is a warning sign about a hundred yards before reaching it as well as the Louisiana Law Stop Sign as we get nearer to it. Russ was familiar with the road and the crossing, having passed there thirty or perhaps forty times before. Notwithstanding his knowledge of the existing conditions, Russ was driving at a rapid rate of speed and gave no heed to the warning signs by slowing down. The freight train with which he collided was going east and before reaching the crossing was to the right of the automobile. The engineer and fireman both testify as to the usual locomotive signal being given with both the whistle and bell. Despite these additional warnings, one of which, the whistle, could be heard anywhere from half a mile to a mile away and the bell some three or four hundred feet, Russ kept coming on at the same rate of speed until, as he testified, they were some fifty to seventy-five feet from the crossing, he heard Chanson yell, “Look out,” and it was then for the first time that he apprehended the danger they were in. Unfortunately it was too late. He tried to swerve his car around so as to parallel the locomotive, hoping that it would turn over before crashing into it, but it did not. Chanson had already opened the door of the car and was standing on the running board, bent no doubt on jumping if he could, but before he could do so, he was crushed between the car and the locomotive and killed almost instantly.

Russ gives no explanation of his action, except that he was deeply absorbed in thought and oblivious to all of his surroundings. He saw no warning signs and heard no signals. There can be no question as to his negligence, which indeed is admitted. Counsel who represents him however, and who frankly states to the court that the real defendant is the insurance company which carried Russ’ liability insurance, strenuously maintains that young Chanson, who had every opportunity of observing the situation and sensing the danger as well as Russ, should have called on him in time to avert the collision, and in failing to have done so contributed by his own negligence to the accident, and consequently his father cannot recover.

Russ testifies that there had been no conversation between him and Chanson for some time prior to reaching Chacahoula crossing. That Chanson must have supposed Russ to be engaged in thought is to be expected as thinking is the natural process- of a rational mind. But there is nothing to indicate that Chanson knew or could have known that Russ was so deeply engrossed in his thoughts as to be perfectly unmindful and forgetful of everything else in this world. So far the trip had been uneventful. Judging from the time it took them to reach Chacahoula, Russ must have maintained a fairly good rate of speed all the way from New Orleans. On nearing the railroad crossing, he was still going fast, but not in excess of the speed limit. He should have slowed down on getting nearer the crossing, and this, Chanson had every right to expect him to do in view of the fact that it was a railroad crossing and of the signs posted along the road. There is no testimony to show that either one saw the train until they were within fifty to seventy-five feet from it, at which time young Chanson did all that he could possibly do, by shouting the words: “Look out!” Prior to that time, his negligence, if any, can only be inferred from his failure to have heeded and called Russ’ attention to the whistle and bell signals of the locomotive, provided of course they were given and he heard them. That they were given is well established by the testimony of the locomotive engineer and fireman, but that Chanson heard them is by no means certain. As quick as he was to yell out when he saw the -train, it would be reasonable to assume that he would have been equally as alert had he heard the blast of the whistle and the clanging of the bell. As well and most aptly stated by the learned trial judge: ‘‘A good test of what one could and must have seen and heard at a particular place and time, is the accurate ascertainment of what other persons, similarly situated and placed, actually heard and saw. The one person in the world who, on that morning, was nearest similarly placed and situated as Chanson, was the defendant, Mr. .Russ. * * * Yet, though on the same seat with Chanson, Mr. Russ frankly and sadly confesses that neither the whistle, bell, crossing or ‘stop’ sign arrested his' attention or engaged his consciousness; and this, though as. the pilot of the car, it was his, rather than Chanson’s particular task to observe that ‘changing way’ and safely to navigate the route of travel. If this admittedly normal person, conscious of a graver responsibility than must have weighed on Chanson’s spirit, failed either to see or ,to hear, he can scarcely insist that his companion necessarily heard or saw.” On this point, we quote further from the judge’s well reasoned opinion:

‘‘The error of counsel’s logic is found in his acceptance of the opinion and judgment of witnesses that the whistle and bell could and should have been heard at distances varying up to a half a mile. The opinion and judgment so expressed may be true as to many or, possibly, mos.t .people. It was manifestly not true as to Mr. Russ. Why then should it be held rigidly true of Chanson, who is not shown to have been more normal than Mr. Russ and who could not have been more seriously impressed with his personal responsibilities, anent the drive, than was Mr. Russ who had charge of the wheel and steering gear o'f a rapidly moving vehicle? Indeed there was no particular reason why Chanson should feel the necessity of maintaining himself on the alert. He was not at the wheel, had no control over the management or course of the car, and had every reason to feel that he was in the hands of an experienced and dependable driver. * * *”

In the case of Churchill v. Texas & Pacific Railroad Co., 151 La. 727, 92 So. 314, the Supreme Court announced a rule which has been frequently applied by this and the other Courts of Appeal in the state. It is to the effect that an occupant of an automobile, not having charge of the operation of the machine, is not required to keep a lookout for danger, but can rely upon the driver for the proper discharge of that duty. We think the rule is. peculiarly applicable in this case, and by its application, defendant’s plea of contributory negligence is defeated.

The demand of the plaintiff contains two items of damage on which we find no evidence whatever in the record. Those are the claims for funeral expenses and services of tne priest. He also claims $5,000 for suffering, having in mind no doubt the suffering endured by his son. The right to recover for suffering is a heritable one which is enjoyed by the father, but it must be made to appear that the deceased did actually suffer. The death of this young man was almost instantaneous with the collision. He was gasping his last breath when the fireman reached him, and it may have required three or four minutes for him to get to him. It is very doubtful that he realized what happened or that he ever was conscious or sensible to pain after he was struck. If there was no suffering, it follows that the father did not inherit any right to recover for any. For the remaining items, the death of his son, loss of his future support and companionship, the district judge awarded plaintiff the sum of $3,500, which, considering all the facts and circumstances as well analyzed by him, is a fair and reasonable allowance and we will not change it either way.

The judgment is therefore affirmed.


author: MOUTON, J.

text:
    No. 827
    First Circuit
    DELAUNE v. BREAUX
    (June 16, 1931. Opinion and Decree.)
    (December 8, 1931. Rehearing Refused.)
    (November 3, 1931. Writs of Certiorari and Review Refused by, Supreme Court.)
    (February 1, 1932. Judgment of the Court of Appeal Affirmed.)
    Howell & Deramee and Harvey Peltier, of Thibodaux, attorneys for plaintiff, appellee. ,. ,
    Edw. Rightor and W. H. Sellers, of New Orleans, attorneys for defendants, appellants.
   MOUTON, J.

Leon Breaux, minor son of defendant, took in his auto Freddie Delaune, son of plaintiff, for a ride from Lockport to New Orleans. While driving from Raceland towards New Orleans, the auto, at about 7 or 8 o’clock p. m., ran into a truck on the highway. .Freddie Delaune was killed in the collision, and this suit was brought for $10,000 damages, against Alphonse Breaux, Sr., father of the minor, Leon Breaux.

Judgment was rendered in favor of plaintiff for $4,500. Defendant appeals.

It was at the invitation of Leon Breaux that Freddie Delaune, deceased, go.t into the auto for the trip. He was an invitee or guest when he got into the auto for the trip, had no control of the car thereafter, and was a guest when the • accident occurred.

Counsel for defendant admit in their brief that the minor, Leon, was at fault, and say that the facts in this case are without dispute, and present for solution the following question: “Was Delaune, the deceased, guilty of contributory negligence?”

In the case of Churchill v. Texas Pacific Ry. Co., 151 La. 726, 92 So. 314, the court said that the negligence of the driver should not be imputed to the guest and that the guest has the right to recover from the tort-feasors, “unless the circumstances were such that the deceased could be charged with negligence of his own.”

Leon Breaux was the driver when the accident happened, and the question is as to whether . the deceased, Freddie Delaune, was chargeable, at the time, with independent negligence.

The evidence shows that the truck, when struck, was parked on the side of the roadway; its driver being occupied in fixing a flat tire. The truck had a tail end light, and the. driver was using a flash-light to make the repair.

Counsel refer to the rule which says that neither occupant of a vehicle may recover where it is shown that the proximate cause of the accident was the failure of both to have seen what each of them should have seen, citing in support of that doctrine, Leopold v. Texas & Pac. R. Co., 144 La. 1000, 81 So. 602; Toups v. Morgan’s La. & Tex. R. R. & S. S. Co., 4 La. App. 136; Roberts v. Eason, 6 La. App. 703; McQuiston v. Shreveport Rys. Co., 12 La. App. 277, 124 So. 706.

Counsel say that Breaux, the driver, and Delaune saw the truck loom ahead about at the same time; that, when Delaune saw the impending danger, he attempted to grab the wheel and turn the car around the truck. No doubt he made that effort just before the collision.

In the Churchill case, above cited, the court said that the deceased, who was a guest, saw the train almost at the instant of the accident, and immediately shouted a warning, but held that he was not negligent.

Here it is shown by Breaux’s testimony that about the very moment of the collision the deceased said, “Look out that truck,” and attempted to take the wheel of the auto for the purpose of swerving it around the truck.

Obviously the court in the Churchill case exonerated the deceased of negligence under the doctrine recognized therein, that a guest not having charge of the operation of an auto is not required to keep a lookout for danger, but can rely upon the discharge’ of that duty by the driver who is responsible for its operation.

The guest, as we had occasion to say in other eases, cannot rely entirely or implicitly on the driver of the car, but is entitled to a reasonable extent, to place reliance on the care and proper management of the one operating the auto. The guest, whether seated on the front or back seat of an auto cannot be placed on the same footing with the driver in reference to the care, caution, and vigilance which should be required of the one driving such a high-powered machine. The guest is not expected, as a general proposition, to have seen what the driver “should have seen”; otherwise the same measure of vigilance would be placed upon him as on the one operating the car. If such were the rule, it would be incumbent on the guest “to keep a look-out for danger” and without placing any reliance on the driver, which would be destructive of the requirement in such cases, recognized in the Churchill case, above cited. Hence- the doctrine invoked by counsel for defendant, which says that “neither occupant of a vehicle may recover when it is shown that the proximate cause of the accident was the failure of both to have seen what each of them should have seen,” applies to cases, where the danger is. so apparent, or the circumstances are such, that the guest is chargeable with negligence of his own or with independent negligence if he gives no warning or makes no protest.

Counsel for defendant refer to the cases of O’Brien v. Woldson, 149 Wash. 192, 270 P. 304, 62 A. L. R. 436, where the suit was brought by one member of a joint adventure or enterprise in which the court said the doctrine of imputed .negligence does not apply.

The other, Davis v. Chicago, R. I. & P. R. R. Co. (C. C. A.) 159 F. 10, 19, 16 L. R. A. (N. S.) 424, the same question was involved. In that case, Pfentz was the companion of Davis in a horse-drawn rig driven by Davis which was struck by a train. There the court said the parties were engaged in a mutual adventure, that it was as much the duty of Pfentz, as it was. that of Davis, the driver, to “take observation of dangers.”

Here appears distinctly the demarcation line between the rule where the party injured is a guest,' and is not engaged in a joint adventure or enterprise with the driver of the vehicle. In such an adventure, the companion in the car “must take observation of dangers” and therefore is held practically to the same degree of care as devolves upon the driver.

If a guest, no such watchfulness or observation of dangers is expected of him, and the negligence of the driver is imputed to him only where his failure to see the dangers arises from his own or independent negligence. In the instant case, plaintiff was a guest, and his rights must be determined under the rule which controls in such cases.

He was traveling on a highway about thirty or thirty-five miles an hour, a rate of speed not excessive. The deceased and Breaux, the driver, had taken a small quantity of gin about an hour and a half be-fore the accident, which Breaux says had had no intoxicating effect on him nor on the deceased. The deceased, a guest, would naturally have expected that vehicles would pass their car going either way, but not that a large truck would be parked on the side of the highway on which they were traveling. To require that a' guest should look out for such sudden and unusual obstructions, would be asking more than the law requires. It is different, however, for the driver of an auto, from whom is demanded a much higher degree of vigilance. If Breaux had been exercising the care which devolved upon him in the management of the auto, he certainly would have been on the lookout for dangers which might have' been lurking ahead. Obviously he was not; - otherwise it is evident that he would have seen the tail end light on the truck and the flash-light which was being used by the parties engaged in fixing the flat tire on the truck. He was clearly negligent, as is admitted by counsel for defendant. It is shown that deceased saw the danger at about the same time that it was seen by Breaux, and shouted to him “look out.” This shows that he was not asleep or oblivious to his surroundings which could have indicated that he had placed his entire or implicit reliance on Breaux, the driver of the car. His attempt to avert the accident was unfortunately too late to save his life. It is different with Breaux, who should have been much more vigilant than was required of the deceased. If Breaux had measured up to the responsibilities devolving upon him under the circumstances, he would unquestionably have avoided the collision. He was inexcusably at fault, hut his negligence could not be imputed to deceased as was held below.

The defendant was therefore properly held liable in damages for the tort of Leon, his minor son.

QUANTUM

The district judge allowed $4,500 damages, which plaintiff says should be increased to $10,000. Defendant contends plaintiff should be granted an amount less than $1,500.

Counsel are therefore quite wide apart on this question, more so than on the other issues.

Plaintiff, mother of deceased, is 61 years old, had five children, three daughters, two sons, Freddie, deceased, and Elmer, who contributed to her support. Freddie had been away about five years, came occasionally to see her, and was on a visit when killed. He was 26 years of age, and gave his mother about $20 a month. She does not seem to have had any other means of support than from these contributions of her sons, and was living with one of her daughters.

The assessment of damages by our courts in cases of this character shows a wide range of fluctuations, and there is no fixed line in such allowances that can be of any guide to this court.

In the assessment of damages in cases of this character, much discretion is left to the trial judge, which we do not find to have been abused in the instant case. The amount allowed is fair, and will not be increased nor reduced.


text:
    No. 866
    First Circuit
    McQUEEN v. UNION INDEMNITY CO.
    (October 7, 1931. Opinion and Decree.)
    (December 8, 1931. Rehearing Refused.)

      Morgan & Simmons, of Covington, attorneys for plaintiff, appellee.
    Benj. W. Miller, of Bogalusa, and P. T. Doyle, of New Orleans, attorneys, for defendant, appellant.
   LeBLANC, J.

Plaintiff, James J. McQueen, was formerly in the employ of the S. T. Alcus Lumber Company, Inc. On November 24, 1924, while working on the roof of a building as a carpenter, he fell from a height of one hundred and four feet and sustained severe injuries for which he was paid compensation by the Union Indemnity Company, which carried his employer’s liability insurance at the rate of $15.60 per week, that being the amount he was entitled to according to the wages he received. He was paid for a period of three hundred weeks, at the end of which time he was notified by letter that further payments would be discontinued. Claiming that his condition had not changed, he offered himself for examination by the indemnitor’s physicians, b^it •this was declined and they persisted in their refusal to pay him any more compensation. He then brought this suit directly against the indemnity company, claiming that,he is totally and permanently disabled and incapacitated from doing work of any reasonable character on account of his injuries, and asking that he be awarded the full compensation of four hundred weeks allowed under the Workmen’s Compensation Law.

The defense in the case is that plaintiff has fully recovered from the injuries sustained in the accident and for which they paid him compensation for three hundred weeks, and that he had so recovered in August, 1930, as to permit him to perform work of a reasonable character and consequently was and is entitled to no further payments.

Prom a judgment in the district court granting plaintiff compensation for the one hundred weeks from August, 1930, as demanded, the defendant prosecutes this appeal.

That the injuries this plaintiff received were of a most serious and aggravated character is not disputed, and that he was totally disabled for three hundred weeks, can hardly be better evidenced than by the fact that this defendant paid him compensation for such disability during the whole of that period. The question now arises, and it is the sole issue in the case: Is the plaintiff totally permanently disabled from performing work of a reasonable character so as to entitle him to recover the full compensation of four hundred weeks?

It would seem that the defendant’s contention that plaintiff has recovered from his injuries and had so recovered in August, 1930, is refuted by the testimony and certificates of their own expert witnesses who fixed his present disability at about 75 per cent. This opinion is shared by Dr. John K. Griffith, plaintiff’s personal physician, who testified as a witness in his behalf.

The injury was to the lower part of the spinal cord resulting in paralysis of the right leg which produced drop foot. There was-' also a loss of control over the functions of the bowels and also a resulting impotency. In January, 1931, more than five years after the accident, Dr. J. C. Menendez, who is .in the service of the defendant company, examined the plaintiff, and in his report states that “he showed some improvement since the last examination, but 1 am sorry to state that the residual symptoms in the form of a paralysis and involvement of the pyramidal tract is permanent in character in that he suffers with atrophic changes of the right leg and resulting drop foot. There is likewise present an absence of the anal reflex and also cresmateric reflexes abolition of reflexes from the umbilicus down, which shows that the injury to the cord is permanent.” Dr. H. Theodore Simon, who examined him at the request of Dr. Menendez, in his report which is dated January 20, 1931, expresses the opinion that “this patient has definite neurological findings which are permanent and which constitute marked disability,” and in a letter dated February 4, 1931, states that a 75 per cent disability as to the body “as a whole is an equitable and fair figure.” Dr. Walter J. Otis, neurologist, in his report of his examination, which is dated January 17, 1931, finds that “he is permanently and totally disabled from complete use of the right limb as pre-accident,” and states further that he is “disabled 75% for the right leg and 50% for the anal and vesical disability.” Surely,, then, this plaintiff’s condition presents that of a man who has. to go through life under a big handicap. But counsel for defendant contend that he can perform some sort of service from which he can earn a livelihood, and the attempt was made to show that he operates a gasoline filling station and that, the work he does being of a reasonable character, he no longer can be favored with the benefits of the Compensation Law.

The proof is almost overwhelming that, in spite of several efforts to perform manual labor along the line of what he was accustomed to, he was totally incapable of accomplishing any. As a carpenter it was necessary for him to climb ladders and scaffolds, and certainly, in the condition in which his right leg is, he could hardly be expected to do anything like that. Neighbors testify about several instances. in which he attempted to do work which required the use of a saw and hammer and •the lifting of heavy objects, ana that he was unable to go on with it. Defendants failed in their attempt to show that he operated a gasoline filling station. The most they were able to prove being that he occasionally assisted his wife who ran such a station in connection with a small store in serving customers gasoline in their automobiles, and in making deliveries from the store.

Counsel for defendant contends that the reference in the Compensation Statute to work of any reasonable character means work of any kind or nature whatsoever that is not irrational or excessive and which may provide some means of livelihood. Act No. 20 of 1914, sec. 8, subd. 1 (b), as amended and re-enacted by Act No. 216 of 1924, sec. 1. Accordingly, he argues that, from the kind of work plaintiff does around the filling station and store .>f his wife, he may be classed as a clerk or at least an attendant around a gasoline station, and is therefore capable of performing work that is of a reasonable character. Of course, as already observed, the proof is far short of showing that plaintiff is doing any work of that character, but, even were it to be conceded that he is, we do not think that counsel’s interpretation of the words, “work of any reasonable character,” is the one that is to b£ accepted.

We do not believe that the law ever contemplated that, if the injured employee recovered to the point where he became capable of performing any kind of work of a reasonable character, regardless, of its nature, that he was to be deprived of further compensation which was otherwise due him. We are rather of the opinion that it meant that he should be able to perform work that is reasonably of the same kind or character of the one he was accustomed to perform and is capable of doing. It is hardly conceivable that it ever intended that an employee who was a skilled worker in any trade, earning an average weekly wage which entitled 'hito the maximum compensation of $20 per week, should be denied that compensation because forsooth there came a time during the period of compensation when hwas able to earn $4 to $5 per week as a -helper around a filling station.

In the case of Franklin v. Ernest Roger Co., Ltd., 2 La. App. 764, this court held .that:

“The language ‘permanent - total dis- ", ability to do work of any reasonable char- j acter during period of disability’ in the j legislation in question does not mean that : the party must be unable to do any kind j of work, but means permanent total dis- j ability to do work of any reasonable char- : acter that the party knows how to do' and is capable of doing, - which will afford ; him a support for himself and family.” i

In Johnson v. Calcasieu Sulphate Paper Co., 15 La. App. 55, 130 So. 251,. the injured employee was engaged in tying and handling heavy bundles of paper in a paper mill. After an injury to the abdomen, he was advised by physicians not to -do ’work which required much exertion and any heavy lifting. It was observed, as shown by the opinion, that the nature of his employment required that kind of labor, and, since he was unable to perform it, we held that he should recover compensation according to the demand - he had made, which was for permanent total disability.

The nature of his work as a carpenter reuired the plaintiff in this case to be on his feet most of the time using tools of different kinds; also that he climb ladders and scaffolds and work on the roof of buildings, and that he also lift heavy pieces of lumber and other objects. In his present condition he is shown to be unable to do any work that is reasonably of that character, and he is therefore entitled to compensation as for permanent total disability within the meaning and intendment of the Workmen’s Compensation Statute.

Counsel for defendant questions the right of the district judge to have fixed and taxed as costs a fee for Dr. J. K. Griffith as an expert witness, his contention being that, before any such .fee can be fixed, the expert witness must be qualified under the provisions of article 442 of the Code of Practice.. That provision, as- we understand it, was meant only to give the court discretion in appointing expert witnesses either ex proprio motu or at -the request of parties to the suit. The fixing of fees for expert witnesses otherwise summoned is authorized by Act '19 of 1884, section 1 of which provides as follows:

“Witnesses called to.testify in court only to an opinion founded on special study or experience in any branch of science, or .to make scientific or professional examinations, and. to state the' results thereof, shall receive "additional "compensation to be fixed by the court, with reference to the value of the time employed and the degree of learning or skill required.”

In commenting upon this statute in the case of Suthon v. Laws, 132 La. 207, 61 So. 204, 206, the Supreme Court said:

“We do not think that, under this act, it is necessary that the witnesses should have been appointed by the court as ex■perts, or should have been summoned as such. It suffices under the terms of the act that they, should have been called to testify only to an opinion, or to the result of scientific or professional examination.”

That language is sufficient to dispose of the contention made in this case without further comment on our part.

The judgment of the lower court, being correct, stands affirmed.


text:
    No. 843
    First Circuit
    DELCOURT v. BERNARD
    (October 7, 1931. Opinion and Decree.)
    (December 8, 1931. Rehearing Refused.)
    (February 1, 1932. Writ of Certiorari and Review Refused by Supreme Court.)
    J. M. Blache, Jr., of Hammond, and S. S. Reid, of Amite, attorneys for plaintiff, appellee.
    Milner & Porteous, of New Orleans, and Ellis, Ellis & Ellis, of Amite, attorneys for defendant, appellant.
   MOUTON, J.

Thomas street runs east and west through the city of Hammond. It is crossed by Cypress and Cherry streets which run north and south. Cypress street is west of Cherry street, there being a distance of about 300 feet between the two streets.

Thomas street is 38 feet wide. Six feet on each side is reserved for the parking of cars, leaving a traffic lane of 26 feet for the use of the traveling public.

Plaintiff, with his daughter, Miss Camille, at the wheel, drove their car eastward on Thomas street through its intersection with Cypress street, and parked it on the south side of Thomas street facing east towards the crossing of Cherry street with Thomas street. It was parked near a building known as Noah’s Ark. It was shown by Mr. Freiler, surveyor, that the distance from Ferrara’s store eastward to the first crossing line is 113 feet. Noah’s Ark, which is on the south side of Thomas street, Mr. Freiler says, is directly opposite Ferrara’s store. Noah’s Ark is therefore about 113 feet from the east line of Cherry street where it crosses Thomas street, and about 82 feet from its west line.

It is shown that after plaintiff had parked his car on the south side of Thomas street, near the Noah’s Ark building, he passed in the rear of his auto, went next to the wheel where his daughter was sitting, and told her he was going across Thomas street to the Community store on the opposite side, and that he would come back in a little while. , He says before he started to go across Thomas street he looked both ways, east and west along that street, and saw the red lights against traffic shining at the crossings of Cherry and Cypress streets, and that there were no cars in that block at that time. His daughter testifies that her father looked both ways before he started, and that the red traffic lights were shining at both ends of the block. It appears from the testimony of plaintiff, and of which there is no contradiction, that he was not in a hurry and proceeded to walk across towards the north side of Thomas street in his usual gait. When about two or three feet from the parked cars on that side of the street he was run into by a car driven by Mrs. Clifton C. Bernard, wife of defendant herein, against whom judgment was rendered for $1,700 by Judge Reed, then district judge. That judgment having been set aside because rendered in chambers without authorization, the case was tried by Judge Tycer, successor of Judge Reed, who gave judgment to plaintiff, increasing the amount to $3,400, and from which this appeal is taken.

Plaintiff had therefore about negotiated Thomas street, as above stated, when he was struck by defendant’s car, and as was shown, by the right fender. Plaintiff says the block was clear of cars when he left the side of his car to go across.

Counsel for defendant offered a written statement of plaintiff dated July 25, 1929, wherein he says cars were then running in both directions in Thomas street. The accidfent occurred July 20, 1929. Five days after • the collision this statement was dictated by plaintiff to Mr. Williams, adjuster for the Maryland Casualty Insurance Company, which had insured defendant’s car.

Plaintiff testifies' that’ when he dictated this statement he was in bed suffering from his - injuries, and was then a very •sick man.

A statement thus made to an employee of the insurance company is not the equivalent to testimony given under oath where the witness is subjected to examination and cross-examination. Courts should rather be guided by the testimony given in open court, and which should prevail over statements of that character, unless, for weighty reasons, the evidence given under the eye of the judge should be discarded.

Mr. Williams, the adjuster, was. industriously engaged in taking statements fr.om plaintiff and other witnesses in the case. It may be that- he: was actuated, by the purest .motives but we must say here that such . systematic taking of- testimony by-adjusters or others similarly situated, .unless transcribed with-. the vie.w of making a settlement, should not be encouraged, because . of . the indifference of witnesses, their probable -inattention, or :on account of the inaccuracies which may slip into such statements. ' These - remarks are to apply to the statements of the other witnesses in respect to which;' and to 'the'testimony- of plaintiff,' we ' shall- accept - 'the evidénce given -in opén court, as we' do not find -that " the discrepancies' 'between what appears in these statements and .the testimony !of'th!e, witnesses given in open court are of a character to affect their credibility' and which doe's ' not! seem to haye 'been questioned by the trial judge.

Having disposed 'of ; the contentions of defendant’s'- counsel 'in reference to these 'statements, we shall return to' tbe discussion of the cas'e;’ as to whether there were cars running on Thomas street when plaintiff started to go across. . , . .

• One • witness who' was traveling eastward immediately' before ;the collision said there was no car ahead of him; one said:a' car was going east before defendant’s car struck plaintiff; and another that cars wére going west. It does not appear that these cars entered the block before plaintiff left the side of his car to go. across Thomas street, if it be true that about that time cars were traveling in that street, as was said by two witnesses, as against one who testified he was going east and there was no car ahead of him.

On this issue, which is somewhat doubtful, we have the- testimony of plaintiff and his. daughter, who say that before plaintiff started to.go across Thomas street -.they looked both ways, and that the red signal was shining at both ends of the .block. It is rational to infer. that travelers, if there were any at these two. intersections, had stopped their cars then; and that-the block was clear,, as was testified to by plaintiff.

The inference so drawn supports the statement of plaintiff .that there were no cars on Thomas street when he started across. ,

The foregoing testimony and circumstances warrant the inference that plaintiff proceeded across the. street on the assumption that the way was clear to tbe,opposite side, as. he had a right to rely on the protection these red lights gave him .until. superseded by the green lights, at which time travelers on . Thpmas street could. cross over the intersection lines, at both ends of the block.

The question is, was ' plaintiff justified in that assumption?

: The' proof is that the speed' for autos, vehicles, etc.,' on Thomas street is 'fixed by ordinance of' the city of Hammond at a rate no greater than ten miles-an hour. The traffic lane' of Thomas street, between the lines on each side for parking cars, is 26 feet. It is not disputed that a man walks about four or five feet per second. Hence, in about five seconds plaintiff would have walked across this traffic lane. It is figured that a car moving at 30 miles an hour will go about 210 feet in five seconds. It necessarily follows therefrom that a car going at ten miles an hour, one-third of 30, would in five seconds go 70 feet. It is shown that the distance from the western line of the crossing at Cherry street to where plaintiff was struck is 82 feet.

If Mrs. Bernard had been going at ten miles an hour, as was required by the city ordinance, she would have been at a distance of 12 feet from plaintiff when he would have reached across the street, and the collision would not have occurred. Plaintiff had unquestionably the right to assume that autoists would respect the speed limit fixed by ordinance of the city, and was justified in attempting to negotiate Thomas street on that assumption, and was not therefore at fault.

Mrs. Bernard says when she first saw plaintiff he was standing still in the center or middle of Thomas street. Her version is that he suddenly ran or jumped ahead. of her car, that she immediately stepped on her brakes but it was then too late to stop in time.

The proof is that the street lights were then burning brightly, and there is no doubt she could see the plaintiff at that time, about 9 p. m. Her evidence is, that when he sprang or ran ahead of her car, he was about ten feet ahead of her.

Mrs. Bernard was asked why, after she saw plaintiff, she did not turn to her left and thus avoid striking him. She said a car was coming the other way, and that it interfered with her turning to the left.

Wolf, witness for plaintiff and without interest in this suit, saw when plaintiff was struck. He was traveling east at the time and says no car was ahead of him; that he observed no car going east that was in the way of Mrs. Bernard to prevent her from making a left turn by which the accident could have been avoided.

Mrs. Turner testifies that she saw the collision and that Mrs. Bernard could have turned to her left without running into another car.

The testimony of Mrs. Bernard implies that she had seen plaintiff in time because her attempted excuse for the collision is that she did not avert it for the reason that a car coming from • the opposite direction was in her way at the time.

In that respect she is flatly contradicted by Mr. Wolf and Mrs. Turner, disinterested witnesses.

The preponderance of the evidence on this vital point shows that she could have avoided the collision, and is sufficient to hold defendant liable. We shall, however, proceed to a discussion of the other contention of defendant before reaching our final conclusion.

The traffic lane in Thomas street is 26 feet. Mrs. Bernard repeatedly says that plaintiff was in the center of that street and ten feet ahead of her car when she first saw him. The proof shows that plaintiff was at about two feet from the parked cars when he was struck. Half of this traffic lane from the center of the street to the line used to park the cars is 13 feet, being half of the traffic lane. To give credence to Mrs. Bernard we would have to believe that plaintiff ran or jumped ahead of her car, which is hardly believable, also covered a distance of 11 feet while in her auto she covered only ten feet before striking him, although she was then moving at not less than 20 miles an hour. That is incredible.

Several -witnesses testified that Mrs. Bernard was traveling at about the time of the collision at a lively gait. The estimate qf her speed by these witnesses at that time ranged from 20 to 35 miles an hour. It is difficult to make an accurate estimate of the speed at which an auto is traveling. As a general proposition this is true. In this case, however, it is shown that Mrs. Bernard applied her brakes, and that the marks of the wheels of her auto were on the pavement for a distance of about seven feet, and that from the point of the collision the auto continued about 35 feet therefrom before it came to a stop. These physical facts, taken in • connection with the estimate of her speed by the witnesses, warrant the inference that she must have been traveling, just prior to the application of her brakes, some 25 or 30 miles an hour.

The proof shows that Mrs. Bernard entered Thomas street at some point further east than the crossing at Cherry street. The fact is she testifies when she got to that crossing the caution sign was on; that she slackened her speed, that the green light came into view and that she went across; that she then went into second; then says, she cannot usually tell how soon she goes into high, has no particular time in which to .make the change, that it just “depends on the humor I’m in as sometimes I shift right back.” It is to be supposed that when she crossed the intersection line she slowed down to the speed limit of ten miles on Thomas street and thereafter a change of humor suddenly coming ' over her she went into high and was speeding at 25 or 30 miles an hour when her car ran into plaintiff. Such speed, particularly at night, on one of the principal streets of Hammond was dangerous, if not reckless. On a street, we may remark, where the city had found proper to limit the speed of autos to ten miles an hour.

Miss Camille Delcourt, plaintiff’s daughter, who was sitting at the- wheel of her car, says, she saw when Mrs. Bernard’s car passed her car; that Mrs. Bernard turned her head and looked at the picture show building or at somebody in front, meaning of that building, as we understand her testimony. True, Miss Camille is plaintiff’s daughter, but considering that Mrs. Bernard was doubtless careless of consequences judging from her excessively fast driving, we find nothing that makes it improbable that she listlessly turned her head towards the moving picture building, failed to see plaintiff and ran into him.'' If she did not turn her head, as testified to by Miss Delcourt, the collision was the result, however, of the excessive speed at which she was driving, and was due solely to her own negligence or fault. We find that plaintiff was not guilty of contributory negligence, as contended for by defendant, and is entitled to the recovery of damages.

AMOUNT

The first judgment against defendant was for $1,700, the second for double, $3,400.

Plaintiff was knocked unconscious, had a fracture of the floor of the orbit or socket of the right eye which affected his left eye. He had good eyesight before the accident and wore no glasses but has been wearing them since. His vision was considerably affected, about 50 per cent loss, he claims.

He suffered with diabetes prior to the injury but had only a mild case as appears from the evidence of eminent physicians and which could he easily controlled hy proper care and dieting. He was then vigorous, full of pep and attended to a large and lucrative practice. Following his injuries he lost about 30 or 35 pounds in weight. It is shown that diabetes is almost invariably and deleteriously affected by body wounds or injuries, even by severe shocks to the system. Plaintiff suffered a good deal from these injuries and was not altogether well when the case was tried. The evidence, expert and otherwise, justifies the inference that his loss of weight should be ascribed to the injury he suffered from the collision, also his diminished eyesight, and the decline in his general health.

We are bound to conclude that his general health will remain affected for some time yet, if not permanently as the result of the accident, and we cannot see that he can reasonably expect a complete restoration of his vision. Good eyesight is precious to all and is particularly so to a physician actively engaged in the practice of his profession, as is the plaintiff.

He has suffered painful and severe injuries, but we think that the amount of $3,400 decreed in the last judgment, from which this appeal is prosecuted, is excessive and should be reduced to $2,500, which will be sufficient to meet the ends of justice.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be reduced from $3,400 to the sum of $2,500; that plaintiff have judgment against defendant for the latter stated amount; and as thus amended the judgment be affirmed. Appellee to pay the cost of appeal, those of the court below to be paid by defendant.


text:
    No. 872
    First Circuit
    GENERAL CONTRACT PURCHASE CORP. v. BARROW (JACKSON, Intervener)
    (October 7, 1931. Opinion and Decree.)
    (December 8, 1931. Rehearing Refused.)
    (February 1, 1932. Writs of Certiorari and Review Refused by Supreme Court.)

      Jos. A. Loret, of Baton Rouge, and C. V. Ratcliff, of Shreveport, attorneys for plaintiff, appellant.
    Oliver. Bouanchaud, of Baton Rouge, attorney for defendant, appellee.
   LeBLANC, J.

The issue in -this case is between the intervener and the plaintiff. The suit originated in a foreclosure proceeding brought by the plaintiff on a chattel mortgage bearing on a Chrysler automobile which was seized while in the possession of the intervener, T. A. Jackson. The latter claims that the sale under which the pretended mortgage arose, was never completed for lack of delivery of the car to the defendant, Barrow, and consequently the mortgage rights did not attach. The issue seems to hinge on the question of delivery. Evidently the trial judge concluded that there must not have been a sale to the defendant as he at first, after trial of a rule for injunction, granted an order arresting the sale, and later, on trial of the intervention on the merits, rendered judgment in favor of the intervener, decreeing him to be the owner of the automobile.

The proof seems to favor the contentions of the intervener and to sustain the judgment of the lower court.

On July 26, 1930, the defendant appears by an act of sale to have bought a Chrysler automobile described by manufacturer’s serial and motor number, from the WatsonLedet Motors, Inc., of Baton Rouge. A part of the purchase price was paid cash, and eighteen notes of $80 each were given to represent the balance due. On that day, the automobile involved in the sale was in New Orleans, in the hands of the George W. Stem Motor Company, distributors for that make of automobile. As a matter of fact, the purchase price of the automobile had not yet been paid by the Watson-Ledet Motor Company, Inc., to George W. Stem 'Motor Company. On July 28, 1930, J. B. Noland, president of the Watson-Ledet Company was in New Orleans, where he did pay the George W. Stem Company for three Chrysler cars, the eight-cylinder car involved in this suit and two six-cylinder cars. He had ordered three of his employees, Barrow who was a salesman, a man named Bourgeois, and a negro to go to New Orleans to drive the three cars back to Baton Rouge. Barrow happened to drive the eight-cylinder car himself, and it was the taking of the car and driving it under such circumstan-' ces that plaintiff contends constituted a delivery.

Noland, who had been trying to sell this very car to Jackson for a few days prior to this, reached Baton Rouge a few hours before Barrow. He succeeded in closing the deal with Jackson that afternoon, and. on Barrow’s arrival, had him to agree that the written act of sale, which had been drawn and signed and the notes given in connection therewith, would be destroyed. At Noland’s special request Jackson agreed, to let the car remain on display on the floor room of the Watson-Ledet Company for a few days, and it was on the Friday following, August 1, 1930, that the car was delivered to him.

Noland never carried out the agreement to destroy the Barrow sale and notes. The notes were transferred to the plaintiff, who, claiming to be a purchaser in good faith and holder in due course, instituted this proceeding to enforce their collection. Noland had absconded at the time of trial of the rule and the record is without a word of evidence from him.

Jackson’s good faith in purchasing the car is not questioned. There is no testimony to indicate that he had actual notice of the transaction between WatsonLedet Motor Company and Barrow, and the object of the sale being a movable, the law did not require him to look up the public records as is the case when real estate is. transferred. McCan & Sons v. Alfred Bradley, 38 La. Ann. 482. The Chattel Mortgage Law, Act No. 198 of 1918, did not have the effect of changing the law relative to the sale of movables, which is not required to be in writing. Civ. Code, art. 2441.

. . Jackson, being a bona fide purchaser without notice, and the car being in his possession, could not have his rights of ownership affected by the mortgage securing the notes held by plaintiff, unless the sale to Barrow under which the mortgage arose was made valid and complete by delivery of the car.

Article 1922 of the Revised Civil Code provides as follows:

“With respect to movable effects, although by the rule referred to in the two last preceding articles, the consent to transfer vests the ownership of the property in the 'obligee, yet this effect is strictly confined to the parties until actual delivery c? the "'bject. If the vendor, being in possession, should, by a second contract, transfer the ownership of the property to another person, who gets the possession before the first obligee, the last transferee is considered as the owner, provided the contract be made on his part bona fide, and without notice of the former contract.”

The Supreme Court has invariably held that a sale of movables, not accompanied by delivery, is void as to third persons. Jorda v. Lewis, 1 La. Ann. 59; Tanneret v. Edwards, 18 La. Ann. 606; Williams v. Triche, 107 La. 103, 31 So. 926; Cox v. First National Bank, 126 La. 99, 52 So. 227; Brooklyn Cooperage Co. v. Cora Planting & Mfg. Co., 137 La. 807, 69 So. 195.

“What shall be considered a delivery of possession is determined by the rules of law, applicable to the situation and nature of the property.” R. C. C., art. 1924.

In Fouché v. Stewart Bros. & Co., 32 La. Ann. 215, the court holds that “delivery is a matter of law, to be inferred from an established state of facts.”

Bearing this principle' in mind, what are the established facts regarding delivery of the car in this case to Barrow?

We find that he' had frequently been sent to drive back to Baton Rouge the cars which Watson-Ledet Motor Company bought from George W. Stem Motor Company, of New Orleans. It seems that he was always sent to drive' back the eight-cylinder cars. On the ' occasion in question before us, he was ordered by Noland, with two other employees, to go to get three automobiles. His instructions were not different from those given to the other two and they were that they should drive back, not any particular car, but three Chrysler automobiles which Watson-Ledet Company had bought from the distributor. There is no intimation that Barrow was sent to get the car he had signed the sale for, and the fact that he got into that one and drove it back was merely incidental. The three cars happened to be lined up on the street, the eight-cylinder car being first in line. The two other drivers were unaccustomed to driving in New Orleans, and it was at their request that he lead the way out of the city, that he took the first car in line. He never had any intention of accepting delivery of the car at the moment, as it is undisputed that the Watson-Ledet Motor Company never delivered new cars to their customers until they had been carefully gone over and checked up by their mechanics at their place of business in Baton Rouge, and that is exactly what was done with the car Barrow drove on this occasion. He turned it in to the shop for checking up directly on his return to Baton Rouge, and before it was returned from there it had been sold to Jackson, to whom it was delivered subsequently, and Barrow never had anything more to do with it.

Under such facts, we hold that there was no delivery of the automobile to Barrow and consequently no sale as far as Jackson, a third party, was concerned.

As the sale to Barrow was void as to Jackson, it follows that the mortgage which is an accessorial right only, dependent upon the sale, must fall. Article 3284, Rev. Civ. Code, reads:

“The mortgage is accessory to a principal obligation which it is designed to strengthen, and of which it is to secure the execution.”

Article 3285:

“Consequently, it is essentially necessary to the existence of a mortgage, that there shall be a principal debt to serve as a foundation for it.
“Hence it happens, that in all cases where the principal debt is extinguished, the mortgage disappears with it.
“Hence also it happens that, when the principal obligation is void, the mortgage is likewise so; this, however, is to be understood with certain restrictions which are established' hereafter.”

None of the restrictions referred to apply here, and we hold therefore that the mortgage, like the sale, was void.

The judgment of the district court is correct, and is affirmed.


author: ELLIOTT, J.

text:
    No. 871
    First Circuit
    VARNADO v. STATE ET AL.
    (October 7, 1931. Opinion and Decree.)
    (December 8, 1931. Rehearing Refused.)
    (February 1, 1932. Writ of Certiorari and Review Refused by Supreme Court.)

      Carter & Carter, of Pranklinton, attorneys for plaintiff, appellee.
    L. L. Morgan and A. S. Cain, Jr., of New Orleans, and D. M. Ellison, of Baton Rouge, attorneys for Louisiana Highway Commission, defendant, appellant.
   ELLIOTT, J.

Ronnie L. Varnado claims of the Louisiana Highway Commission the sum of $21,418 on account of personal injuries received by him as the result of an explosion of a lot of dynamite caps.

He alleges that the caps were placed in a box in his store used for holding waste paper, by the agents of an employee of Louisiana Highway Commission. That said agents and employees were at the time performing duties incidental to their service. That said caps were placed in his store without his knowledge or consent. That not being aware that the box contained dynamite caps, he emptied it on the ground in the back yard of his store and set fire to the paper; upon which the caps exploded, seriously injuring his arm and body and destroying his left eye.

He alleges great pain and suffering for many months; heavy expense on account of medical treatment, for hiring work done that he would have otherwise done himself, loss of time, and trips to get necessary treatment and permanent loss of his eye, all as a result of said explosion.

The suit was brought pursuant to authority and consent given by Act 25 of 1930 of the legislature of this state. A copy of the act is annexed to and made part of his petition.

The state and Louisiana Highway Commission excepted to the suit on the ground that plaintiff’s petition disclosed no cause or right of action.

The plaintiff filed an amended petition alleging that the Louisiana Highway Commission was engaged at the time in building a highway in Washington parish, and that the act of which he complained had been done by its agents and employees in the performance of the work and duties of their employment. The court, assigning reasons in writing, overruled the exceptions.

An exception of vagueness, filed by defendant, not acted on by the lower court, we look on as having been abandoned.

Louisiana Highway Commission filed an answer. The answer admits that plaintiff was authorized by the legislature to institute the suit, but all the other averments in the petition are denied.

The trial resulted in a judgment in favor of the plaintiff for $5,658 with interest. Louisiana Highway Commission has appealed.

Louisiana Highway Commission urges, under its exceptions of no right or cause of action, that under the Constitution and laws of the state, it is an integral part of the state government, and as such is as exempt as the state itself from liability to repair damage to a person for injuries caused by negligent acts and faults committed ex delicto by its agents and employees . in the construction of highways for the state.

The Constitution, art. 3, sec. 35, provides:

“Whenever the Legislature shall authorize suit to be filed against the State, it shall provide a method of procedure and the effect of the judgments which may be rendered therein.”

The Act 25 of 1930 provides:

“Be it enacted by the Legislature of Louisiana, That suit against the State of Louisiana through the Louisiana Highway Commission is hereby authorized to be filed by Ronnie L. Varnado, a citizen and resident of the Parish of Washington, State of Louisiana, upon his claim for damage resulting from accident and personal injury alleged to have occurred on May 24, 1929, by the negligence of persons in the employment of the Louisiana Highway Commission.”

The Constitution of 1921, art. 6, sec. 19 et seq., provided for the creation of the Louisiana Highway Commission.

Act 95 of 1921 created the Louisiana Highway Commission, pursuant to the constitutional mandate, invested it with the power and duty to build, construct, repair, and maintain highways. Section 3 provides:

“The Commission shall be a body corporate and as such may sue and be sued, plead and be impleaded, in any Court of Justice.”

This provision, that the commission “may be sued and impleaded in any court of justice,” was considered in the case of Kilberg v. Louisiana Highway Commission, 8 La. App. 441. That suit was based on an alleged act ex delicto, on the part of the agents and employees of the Louisiana Highway Commission, in the work of constructing a highway. The state intervened in the suit and filed an exception of no cause of action. This court, affirming the judgment appealed from, held that the petition set forth no cause of action. We copy from the opinion as follows:

“The statute is silent as to the nature of the causes of action upon which the Commission may sue or be sued. The quoted clause in the Act must be rea.d in connection with the fundamental constitutional principle that the State may only be sued with its permission * * *, and where a State agency is acting within the scope of its governmental functions, it represents the State and as such, it may not be sued except with the permission of the State.
“It is evident from other provisions in the Act that the clause subjecting the Commission to the liability to be sued does not confer upon a complainant a right of action whereby the Commission would be eventually deprived and dispossessed of the fund which is necessary for it to exercise its governmental functions and which is dedicated by the Constitution to that special purpose. Tq so hold would be to recognize that the usefulness of the Commission can be destroyed and the purpose of its existence frustrated through the fault and negligence of the persons appointed to superintend the work necessary to accomplish the legal ends of its existence,etc.

These reasons are good; nothing has been said to the contrary.

But in the present case the legislature expressly consented that the state, through its subordinate, Louisiana Highway Commission, may be sued by Ronnie L. Varnado “upon his claim for damages resulting from personal injury alleged to have occurred on May 24, 1929, by the negligence of persons in the employment of Louisiana Highway Commission.”

The power vested in the Legislature by the Constitution is not limited to any particular kind of rights or causes of action.

The legislature is vested with discretionary power that it may or may not exercise, as it is deemed best. The power is unlimited, except that none can be given to transcend the powers vested in the United States through the Constitution of the United States, which is the supreme law of the land.

The act does not confer on Varnado any more right than was conferred on Abraham Bass by Act 82 of 1878. See Bass v. State, 34 La. Ann. 494. We quote from that opinion, page 501, as follows:

“The consent to be sued does not at all imply an admission or a confession of liability. It is a mere act of grace which does not relieve the plaintiff from the obligation of making out his case, both in fact and in law. [State ex rel. Hart. v. Burke] 38 La. Ann. 498. By ¡permitting herself to be sued in this case, the State merely consented to submit to a court of justice the question of her liability under the facts and propositions presented by both the plaintiff and herself.”

The authorities cited by defendant are applicable to a situation like that which existed in the Kilberg case; but not where the legislature has specifically provided for a suit, as in the present case.

In this case the legislature, exercising the authority and discretion vested in it by the Constitution, placed its subordinate, Louisiana Highway Commission, in the position of a “man” in Civil Code, art. 2315, and of a “person” in articles 2316 and 2317, and invited Varnado to show, if he can, that his cause is just and well founded, and, if so, then the amount to which he is entitled on said account.

The exception of no right or cause of action was properly overruled.

The evidence shows that an agent and employee of the Louisiana Highway Commission, while performing work for the commission in building and constructing a public highway in Washington parish on or about May 21, 1929, was instructed by his superior, at the conclusion of the day’s work, to place some dynamite caps in Varnado's store for the night. The caps were, being used by the commission for the purpose of blasting up gravel, used in constructing the highway. The intention was to get them next morning. The employee, pursuant to his instructions, placed the caps in plaintiff’s store, putting them in a box used for holding waste paper. He informed a party in the store, who he supposed was the proprietor, of what he had done, but the party so informed was in fact in no way connected with the store and had no authority to either refuse or consent tq what was done. The party so informed did not make known what had been done to Varnado, and the employees of the highway commission did not inform him of what had been done. The caps were left in the box, and Varnado, not knowing that they were, or had ever been placed in it, took the box out in the back yard of his store on May 24, 1929, emptied the contents on the ground, without noticing the caps, and set fire to the paper, upon which the caps exploded with great force and violence; Varnado’s arms, breast, and face being injured and his left eye destroyed by the pieces of flying metal.

The legislature, having for the purpose of the suit placed the Louisiana Highway Commission in the situation of a “man” in Civil Code, art. 2315, and of a “person” in articles 2316 and 2317, it must be looked on as responsible, just as a man, person, or corporation would be for tbe faults, negligence and imprudent acts of its employees, while engaged in the service and doing the work that their service requires. We therefore find that Louisiana Highway Commission is liable for the damages resulting from the act of its employee in placing these dynamite caps, things known to be dangerously explosive, in plaintiff’s store and leaving them there, without his knowledge. What happened might have been looked forward to.

We therefore find that the commission is justly liable to Yarnado on account of the injuries and damages sustained by him in the way stated.

The claim of the plaintiff on account of his expenses for trips to New Orleans to obtain treatment for his eye, loss of time, expense he was put to in the Conduct of his business on said account, pain, and suffering is supported by his own testimony. He did not keep a detailed account, but his testimony seems reasonable and there are corroborating facts and circumstances. It was believed by the lower court, and we .find no reason for differing with him. More than a year elapsed after the injury before the metal was removed from his eye, at which time the sight had been completely and finally destroyed. The lower court allowed him, on account of his pain and suffering, expense, loss of time, and expense in order to carry on his business, and for the loss of his eye, a total of $5,658 with legal interest thereon from judicial demand until paid.

The judgment appealed from is in our opinion correct.

Judgment affirmed. Defendant and appellant to pay the costs- in both courts.


author: HIGGINS, J.

text:
    No. 13,922
    Orleans
    ZIBILICH v. RITTENBERG
    (January 11, 1932. Opinion and Decree.)

      Hugh Morrison and James N. Brittingham, Jr., of New Orleans, attorneys for plaintiff, appellee.
    Rittenberg & Rittenberg, of New Orleans, attorneys for defendant, appellant.
   HIGGINS, J.

Plaintiff brings this action against the defendant to recover the sum of $1,000 paid by him to the defendant as surety for the Orpheum Restaurant on a lease between the defendant, as lessor, and the restaurant, as lessee, of the premises 1015 Common street. Plaintiff alleges that he is entitled to the return of $1,000, first, because the defendant, after having collected the $1,000 from him, also collected rent for the months of January and February, at the rate of $250 a month, and therefore was paid $500 twice, first by plaintiff and second by the Orpheum Restaurant. Secondly, plaintiff alleges that he is entitled to the return of the money in question because the defendant destroyed plaintiff’s rights of subrogation, which the law vested in him as surety, when he paid defendant the $1,000, oy defendant’s action in suing the Orpheum Restaurant, subsequently, for the cancellation of the lease as of March 1, 1929.

Defendant in his answer denied that he had been paid twice for the months of January and February, 1929, and that he had done anything to impair any of the plaintiff’s rights of subrogation, and specially pleaded that plaintiff had paid the defendant the sum of $1,000 under a valid written compromise agreement dated February 5, 1929, which is an effectual bar to plaintiff’s right of recovery. Defendant also specially pleaded that the plaintiff had entered into a voluntary compromise agreement and paid the $1,000 to defendant, and, even if it be said that the money was paid through error of law, as the agreement of compromise and payment were made for the purpose of ending litigation, that the plaintiff is not entitled to recover the same.

There was judgment in favor of the plaintiff, as prayed for, and the defendant has appealed.

Practically all of the facts of the case are admitted, most of the evidence being in documentary form.

It appears that on January 14, 1926, defendant leased the premises No. 1015 Common street to the Orpheum Restaurant, a partnership composed of Matt Zibilich and Anthony Zanki for 48 months, beginning October 1, 1926, and ending September 30, 1930, at a rental of $250 a month payable in advance. The Orpheum Restaurant furnished 48 rent notes payable on the first of each month and the notes and the lease both provided that failure to pay any one of the notes at maturity should ipso facto mature the entire series of notes. In connection with the lease the partners composing the Orpheum Restaurant made a promissory note for the sum of $1,000, payable to the order of defendant on demand after date, bearing interest at the rate of 8 per cent per annum from date until paid and 10 per cent attorney’s fee fqr collection. This note was endorsed by the plaintiff and delivered to the defendant, as lessor, in order to secure the faithful performance of the lease. The restaurant failed to pay the rent due on January 1 and February 1, 1929, and, on February 4, 1929, the defendant herein, as lessor, filed a suit against the Orpheum Restaurant and the partners for the accrued rental and the rental due under the acceleration clause of the lease, being twenty-one months’ rent, amounting to $5,250, plus 8 per cent interest and 10 per cent attorney’s fee, and also against the plaintiff herein for the sum of $1,000, plus 8 per cent interest and 10 per cent attorney’s fee, as endorser of the $1,000 note.

On February 5, 1929, after plaintiff herein had been served with a citation in the above suit, he offered the defendant herein $1,000 in settlement of his obligations as an endorser on the note and the defendant herein, as lessor, through his attorney, accepted the money and issued the following receipt:

“February 5, 1929.
“Received $1,000.00 from Mr. George D. Zibilich in full payment of Joseph Rittenberg’s claim against George D. Zibilich on note for $1,000.00 endorsed by said George D. Zibilich as security for rental of premises #1015 Common Street.
“(Sgd) Joseph Rittenberg.
“By Philip D. Rittenberg
“Attorney.”

Having received the $1,000 from Mr. Zibilich, plaintiff herein, Joseph Rittenberg, defendant herein, had the suit discontinued.

Thereafter, on February 8, 1929, Rittenberg, as lessor, filed another suit against the Orpheum Restaurant and the partners composing the partnership, in solido, for the sum of $500, plus 10 per cent attorney’s fee and interest, representing the rent for the months of January and February, 1929, and for recognition Of his lessor’s lien. Judgment was rendered as prayed for and a writ of provisional seizure was made of the movable property of the Orpheum Restaurant in the premises No. 1015 Common street. These effects were seized and sold by the civil sheriff and, after deducting costs, expenses and sheriff’s commission, Rittenberg, as lessor, received $287.40 from the proceeds of the sale. During May, 1929, Rittenberg, as lessor, accepted from the partners of the restaurant the sum of $150 in settlement and compromise for the balance due him under the judgment against the restaurant and the two members of the partnership.

On October 14, 1929, George D. Zibilich, plaintiff herein, filed the present suit against Joseph Rittenberg, defendant herein, to recover the sum of $1,000 paid by him to Rittenberg on February 5, 1929.

The plaintiff contends that his settlement with the defendant, as lessor, was a payment in full of all of his obligations as endorser on the note; that the $1,000, which he paid to the lessor, defendant herein, was to pay the rent for the months of January, February, March and April 1929, at the rate of $250 a month; that, as the defendant subsequently dismissed his original suit against the Orpheum Restaurant and thereafter sued for the accrued rental for the months of January and February, or $500, and succeeded, through the judgment of court, in collecting or settling with the Orpheum Restaurant, Rittenberg, as lessor, had been paid the rent twice for the months of January and February, and, consequently, plaintiff was entitled to recover $500 of the $1,000 which went to pay the rent for those two months. Plaintiff further contends that, in the second suit, by Rittenberg as lessor, against the Orpheum Restaurant and the partners individually for accrued rentals for the months of January and February, amounting to the sum of $500, he also prayed that the lease be rescinded and cancelled and that he, as lessor, be restored to possession of the leased premises as of March 1, 1929, and, hence, plaintiff herein was entitled to recover the other $500 of the $1,000, because Rittenberg had accepted this $500 for the rent for the months of March and April, and, as he was restored to possession by virtue of the judgment, had not earned it and was not legally entitled to retain the money, and, finally, that the second suit destroyed his rights as subrogee, for which the lessor is responsible.

Defendant herein, Rittenberg, argues that the status of the affair must be considered as of the time that the $1,000 was paid to him by Zibilich, plaintiff herein, and not by what subsequently happened, because the rights and obligations between Rittenberg and Zibilich were compromised and settled on February 5, 1929, upon the payment of the $1,000; that the $1,000 was not in payment of either the accrued rent or unearned rent for the months of January, February, March and April, respectively, as Zibilich was an endorser on the note held as collateral security, and, therefore, there were not any particular months for which he could claim that he was responsible; that the consideration for the payment of the $1,000 was not the rental due defendant, as lessor, but the release of the plaintiff, Zibilich, as an endorser on the note held as collateral security and the dismissal of the suit as against Zibilich.

It would ajppear to us that the crux of the case is whether or not the payment of the $1,000 by Zibilich to Rittenberg was a compromise agreement, or a settlement in full by Zibilich as a surety on the lease, with subrogation.

Articles 3071, 3076 and 3078 of the Revised Civil Code read as follows;

“3071. A transaction or compromise is an agreement between two or more persons, who, for preventing or putting an end to a lawsuit, adjust their differences by mutual consent, in the manner which they agree on, and which every one of them prefers to the hope of gaining, balanced by the danger of losing.
“This contract must be reduced into writing.”
“3076. The creditor who transacts with the surety of his debtor, may discharge the surety only, and the transaction will not diminish his right against the debtor. But if it is with the debtor himself that he has transacted, the surety will likewise have the benefit of the transaction, because his obligation is only an accessory to that of the principal debtor.”
“3078. Transactions have, between the interested parties, a force equal to the authority of things adjudged. They can not be attacked on account of any error in law or any lesion. But an error in calculation may always be corrected.”

See, also, article 1846, R. C. C.

In the case of Young v. Glynn, 171 La. 372, 131 So. 51, 52, in deciding in favor of the defendant, who pleaded compromise to a compensation suit, the Supreme Court said:

“* * * it js ciear that in every compromise there must be uncertainty and therefore error on the part of both parties as to what may be due, otherwise there would be no ground for compromise.”

Now, from the record it appears that on February 5, 1929, defendant, Rittenberg, as lessor, held a note for $1,000 dated January 14, 1926, bearing 8 per cent interest from date until paid and 10 per cent additional as attorney’s fee for collection, and that suit had been instituted on this note in connection with the rent notes and lease, and citation had been served upon Zibilich. Apparently not desiring to contest the matter, he offered the sum of $1,000 in settlement of his obligation as an indorser on the 01016, and was given a receipt in writing, as hereinahove set forth. Prompted by this payment of $1,000, Rittenberg discontinued the original suit against the lessee and Zibilich, as indorser on the note. But the settlement as between Zibilich and Rittenberg clearly did not have the effect of releasing the Orpheum Restaurant and the two partners composing it from their liability for the balance of the rent that was due, nor deprive Rittenberg, as lessor, of his lessor’s lien and privilege to secure the balance of the rent that was due him. It is also well settled that, where a lease contains a clause to the effect that failure of the lessee to pay one month’s rent promptly when due automatically matures the rent covering the unexpired portion of the lease, when such a default occurs the provision of the lease is binding and effective against the lessee. Redline v. Snodgrass, 8 La. App. 19. So that, at the time that the $1,000 was paid by Zibilich to Rittenberg, there was due Rittenberg the sum of $5,250, plus 8 per cent interest and 10 per cent attorney’s fees.

Counsel for Zibilich, realizing that payment of a $1,000 would not be a payment in full of the note for that sum plus about three years’ interest and attorney’s fees, in the present suit, sought to show that Zibilich did not receive any notice of default by the Orpheum Restaurant and that the lessor’s letters making demand upon Zibilich had been mailed to the address of one of his relatives and that he had not received it. From this circumstance counsel argues that Zibilich did not owe interest, attorney’s fee, and costs of court, since Rittenberg had failed to make amicable demand upon Zibilich. Upon this hypothesis he draws the conclusion that the $1,000 was a payment in full. To offset the plaintiff’s proof on that issue, defendant introduced in evidence the letters which were mailed to Zibilich’s address and contended that these letters were received by him. Thus, we have a situation where there is a serious dispute that the attorney’s fee, interest, and costs of court were due by Zibilich.

From these circumstances we find that the transaction between Zibilich and Rittenberg at the time the $1,000 was paid was for the purpose of ending, by mutual consent, their differences growing out of the suit that had been filed by Rittenberg against Zibilich, as one^ of the defendants. Consequently we have two elements necessary to bring the case within the provisions of article 3071 of the Civil Code defining a compromise agreement.

This article of the Code also requires that the contract be reduced to writing. Was the written receipt given by Rittenberg to Zibilich sufficient to say that the contract of compromise was in writing?

In the case of Kelly v. Homer Compress Co., 110 La. 983, 35 So. 256, 257, the plaintiff suffered personal injuries while in the service of the defendant and came to defendant’s place of business for the purpose of seeking money. He signed a receipt for the sum of $25, acknowledging payment in full for the- time he lost, medical expenses incurred on account of the injury received, and acknowledging that the injury occurred through no fault or negligence on the part of the defendant. Ten months thereafter he brought suit against the company for damages for personal injuries. The compromise settlement was pleaded in bar and plaintiff urged that it had been obtained through fraud. In deciding the case against the plaintiff, the court held:

“This was in settlement of whatever claim he had against the company.
“It was writing and as an agreement of compromise, for ¡preventing a lawsuit and adjusting differences by mutual consent, meets the requirements of Civ. Code, art. 3071.
“Thereafter Kelly was without legal right to sue, and, having sued, the settlement referred to, made under the circumstances as detailed, could well be pleaded in bar of the action.”

In that case the receipt was signed by the injured party, who sought to repudiate his compromise settlement and agreement. The court held that the receipt was sufficient written evidence of the compromise agreement and dismissed the plaintiff’s suit. In the instant case the party signing the receipt is seeking to interpose it as a defense against the party who paid the money. In short, the only difference between the two cases is that the ¡position of the parties litigant is reversed. But we believe the legal effect to be just the same, because, if the receipt is binding against the party signing it, then it is likewise binding and entitled to full legal effect against the party who pays the money under it.

We, therefore, conclude that the agreement between the plaintiff and the defendant was a compromise settlement and agreement, in accordance with article 3071 of the Civil Code and the jurisprudence of the state interpreting that article.

Our Supreme Court has also held that, where an account has been closed and settled, the only method of maintaining a suit to the contrary is by alleging error or fraud in the settlement. Turregano v. Barnett, 127 La. 620, 53 So. 884; Heines & Peterson v. Prutsman, 162 La. 587, 110 So. 765.

In the present suit the plaintiff, Zibilich, does not make any claim that he signed the compromise settlement agreement through error or fraud. In fact, from the agreed statement of facts it appears that he was apprised of the legal situation and the facts in the case which obtained at the time that he paid the $1,000.

In Corpus Juris, vol. 12, at page 336, we find the following language:

“The law favors the compromise and settlement of disputed cases and will sustain such settlement if fairly made, because it is to the interest of the State that there should be an end to litigation.”

In Young v. Barelli, 169 La. 319, 125 So. 258, 269, the court said:

“It is to the interest of the state that litigation should cease, and courts will always look with favor on agreements and settlements looking to that end.”

Now, having reached the conclusion that the transaction between the plaintiff and the defendant herein on February 5, 1929, is a compromise settlement and agreement between those parties in settlement of the litigation growing qut of the plaintiff’s indorsement of the note as collateral security on the lease, we know of no law which prevented Rittenberg, as lessor, from subsequently compromising and settling the remaining litigation between himself and the lessee. In fact, under the provisions of article 3076, R. C. C., Rittenberg, as creditor, was entitled to effect both of the compromise settlements with the surety first and the principal debtor subsequently.

Counsel for the plaintiff suggests that, as the attorney for the defendant was not specially authorized in writing to enter into and sign the compromise agreement, it is a nudum pactum.

Whatever informality there may have been with reference to the attorney’s authority, the fact that the defendant, as principal, ratified and confirmed his agent’s act by dismissing the original suit based upon the compromise, cured the defect.

In view of our conclusion on the defense of compromise, it is unnecessary for us to consider the second special defense that a voluntary compromise payment for the purpose of avoiding litigation is not recoverable when made through error of law.

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