author: ODOM, J.

text:
    No. 2633
    Second Circuit
    DUKE v. LOUISIANA HIGHWAY COMMISSION
    (June 30, 1926. Opinion and Decree.)

      (Syllabus by the' Editor.)

    i. Louisiana Digest — Appeal—Par. 625; Master and Servant — Par. 160 (I).
    The finding of fact of the trial court that the plaintiff, an injured employee suing for compensation under the Workmen’s Compensation Act, was able to earn as much after the injury as before the injury and therefore not entitled to compensation, being eminently correct, is affirmed.
    Appeal from the Tenth Judicial District Court of Louisiana, Parish of Red River. Hon. John P. Stephens, Judge.
    Action by H. L. Duke against Louisiana Highway Commission.

      There was judgment for plaintiff for a small amount and plaintiff appealed.
    Judgment affirmed.
    Nettles & Bethard, of Coushatta, attorneys for plaintiff, appellant.
    W. C. Randolph and W. M. Barrow, of Baton Rouge, attorneys for defendant, appellee.
   ODOM, J.

Plaintiff was employed by the Louisiana Highway Commission as a common laborer and received compensation of $10.50 per week.

On January 24, 1925, he was injured by having one of his legs broken. He brought this suit for compensation under Act 20 of 1914 and amendments for 65% of his wages for 400 weeks as for total permanent disability. He was awarded compensation for twenty weeks and was allowed $47.50 for medical expenses, subject to a credit of $5.98 already paid, and he has appealed.

OPINION

Plaintiff, at the time he was hurt, was operating a grader for the Highway Commission in the building of a public road in the Parish of Red River and was receiving compensation of $10.50 per week. On January 24, 1925, he was injured by having one of his legs broken. He was confined to his bed for eight weeks, after which he got up and for a while had to use crutches to enable him to walk. On June 22 he resumed work for the same employer at the same wage and continued to work regularly until about November 15, when he quit work of his own accord. On November 20 he filed this suit for compensation for twenty weeks, alleging that he was totally disabled for that length of time, and further alleged that he was entitled to compensation for an additional 100 weeks under Clause (e) of Subsection 1 of Section 8 of the Act, on account of the permanent impairment of the use of his leg.

Defendant filed answer on November 25.

On December 7 plaintiff filed a supplemental and amended petition in which he alleged that he was totally permanently disabled from doing work of a reasonable character, and asked for compensation for 400 weeks.

We find the following admission in the record:

“It is admitted in this case that the plaintiff was injured as alleged in the petition and that he was engaged in a hazardous occupation as contemplated by the Workmen’s Compensation Act of the State of Louisiana, that the sole issue before the court is the extent of the injury and the extent to which he is entitled to recover under the provisions of the Workmen’s Compensation Act.”

All the evidence shows that on June 22 plaintiff resumed his labor for the defendant and that he worked regularly and continuously up to about November 15. A portion of the time he received 17V2 cents per hour, which was the same pay he received prior to the injury, and that later on defendant increased the wages of its common laborers to 20 cents per hour and that plaintiff received the same pay as other laborers.

While plaintiff admits that he worked and drew the pay regularly and that he finally quit work because he wanted to do something else and not because he was unable to continue, yet he says he worked because he' had no means to maintain himself and because he was told by Mr. Bailey, who was in charge of the work, that unless he worked he could not draw his pay (we assume he means compensation for the time he was disabled on account of the injury); that the injury caused him constant pain, and that from the time he went back to work in June until he quit in November it was necessary for him to stop frequently to rest.

He testified that at times his leg hurt at night after a day’s work and that he uses Sloan’s liniment on it to relieve the pain.

He says, further, that .he is not able to do any work of a reasonable character.

To corroborate his testimony, he called Willie "Vickers, a colored man who worked with him. Vickers testified that plaintiff complained that his leg gave him pain and that he had to rest frequently.

Plaintiff also called Mr. McDowell, who was foreman of the .work gang up to September 15. Mr. McDowell testified ' that plaintiff frequently complained and had to stop and rest and that he gave him light work to do.

Plaintiff also called Dr. Carlisle, who attended him and set his limb immediately after it was broken. Dr. Carlisle testified that he did not think plaintiff was able to go back to work on June 22 and that he told the superintendent so. However, he gave plaintiff a release, because both the superintendent and plaintiff requested him to do so.- He says the superintendent asked him to release plaintiff so that, he could go to work but that he refused to do so until requested by plaintiff himself. He- saw no more of plaintiff until the day of trial, when he heard him testify.

The doctor was not asked to make an examination of plaintiff’s leg, although he stated that he had observed the condition of the leg and observed that there was slight enlargement of the locus of the wound and some evidence of callous. He stated that in his opinion plaintiff was not then able, to. work all day if the work . involved standing on his feet.' But it seems that his testimony was based mainly on plaintiff’s testimony that standing caused him pain. He stated that very probably the nerves were involved in the healing, which caused the. pain, and that possibly plaintiff’s condition would be as bad a year from then as it was on that date.

There is no suggestion that there was not good union of the bone, and, as stated, the doctor’s opinion as to plaintiff’s ■ inability tq work seems to have been based upon plaintiff’s statement. He had not seen or treated him from the date on which he discharged him in June, 1925, until the date of the trial on January 11, 1926.

As against the testimony of. Vickers, plaintiff’s fellow worker, and McDowell, the foreman, to the effect that plaintiff complained frequently and' that he occasionally sat down to rest on account of his leg, we have the testimony of Mr. J. M. Sims, district superintendent of road construction, who had .general supervision of the work in some five or six parishes, including Red River. Mr. Sims testified that he inspected the work-where plaintiff was employed once or twice a week during the time from June to November and saw plaintiff each time and that plaintiff’s work was satisfactory and that plaintiff made no complaint to him. He was on the work but a few moments during each visit and probably paid but little attention to the individual .laborers, and for that reason was not in position to give any . definite information as to plaintiff’s condition. However, no complaint was made to him and so far as he observed plaintiff was working as other hands were.

We also have the testimony of Mr. Frank Strother, the foreman on the work, who seems to have taken McDowell’s place when McDowell quit on September 15. Strother says he saw plaintiff every day— that some days he was with him all day —that he was with him every day from the time he went on the work in. September to the date on which plaintiff quit in November, except two days when he, Strother,' was operating the grader, and that plaintiff worked just as other hands did, distributing and scattering gravel, leveling the road, etc., and that at no time did plaintiff register any complaint to him on account of being tired or that his leg gave him pain, and that he did not at any time see him “lounging” on the job; and, further, that plaintiff did his work satisfactorily and without complaint.

Mr. McDowell and Mr. Strother are the two men who had occasion to observe the work of plaintiff, as they were each in turn foremen of the work gangs composed of plaintiff and others; and, giving full credit to the testimony of McDowell, it may be true that plaintiff did complain to him; but McDowell left the work on September 15 and, therefore, plaintiff’s complaints were made prior to that time and probably immediately after he resumed work on June 22. McDowell does not say just when the complaints were made. Mr. Strother observed plaintiff’s work for two months after McDowell left, and he says that plaintiff did not lose any time or register any complaint during these two months.

Our conclusion, therefore, is that plaintiff’s condition had improved to such an extent that he was able to work without discomfort during the time' Strother observed him.

Plaintiff was "asked:

“Now, does it pain you; does your leg pain you when you try to work?”

And he said-:

“Yes, sir, it does; but not so bad as it did to start with.”

We have no doubt that his leg did give him pain when he first tried to work. That is hatural. But we have no doubt that his condition has so improved that he is now, and was on the date of the tr.ial, able to do work of a reasonable character and that, as found by the district judge, he was suffering no disability at all.

Counsel for plaintiff lay stress upon the testimony of Dr. Carlisle. The opinion of physicians is not to be disregarded in matters of this kind, and if the doctor had made a thorough examination of plaintiff’s leg at the time of the trial and had stated that the union was bad or that the leg was misshapen, or if he had given any other reason, why it should cause disability, we would be disposed to give great weight to his opinion. But he merely says that the leg is slightly enlarged and that there is some evidence of callous; all of which is but natural. He heard .plaintiff testify that his leg was sore and tender and was asked: '

“Do you consider him, the way he describes the matter, permanently disabled at the present time?”

And he answered:

“Yes, sir, at the present time.”

He was therefore not giving voice to his own opinion based upon an examination, but was giving an opinion based upon what plaintiff said.

The testimony of plaintiff and his witnesses that he was suffering disability at the timé of the trial is not sufficient to overcome that of Mr. Sims and Mr. Strother that he made no complaint to them, and the further fact, undisputed, that he did work and drew the same and better wages from June 22 to November 15 and finally quit óf his own accord, not because he could not work but because, the work was too far from home and that he intended to quit.

Counsel for plaintiff say that the fact that an injured employee forces himself to work, or that the employer gives him light work and wages through sympathy, should not be so construed as to bar recovery; and they cite Norwood vs. Lake Bisteneau Oil Co., 145 La. 823, 83 South. 25, and Hulo vs. City of New Iberia, 153 La. 284, 95 South. 719, and decision of this court in support of that theory.

Our Supreme Court and this court have held that an employee’s right to recover compensation is based, not upon what he does earn but upon what he is able to earn after the injury. Our holding in this case is based upon pur finding as a fact that plaintiff not only has earned but is able to earn as much after as before the injury.

Finding no error in the judgment complained of, it is accordingly affirmed with costs.


source: Caselaw Access Project

author: WESTERFIELD, J.

license: Public Domain

text:
    No. 10,377
    Orleans
    CATHEY, INC., v. HENRIQUES
    (April 26, 1926. Opinion and Decree.)
    (May 10, 1926, Rehearing Refused.)
    (See 3 La. App. 323 for Opinion on Writs of Mandamus and Prohibition.)

      (Syllabus by the Court)

    1. Louisiana Digest — Attorneys—Par. 61.
    Where plaintiff sues out executory process and thereafter seeks but is ' not permitted to change to ordinary process, attorney’s fees cannot be. allowed defendant as damages in a judgment maintaining a rule to vacate the order for executory process.
    Appeal from the First City Court, Section “A”. Hon. Alexander Bahns, Judge.
    Action by J. D. Cathey, Inc., against Frank Henriques.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed and cause remanded.
    T. H. McGiehan and C. E. Stauch, of New Orleans, attorneys for plaintiff, appellant.
    . Henry J. Rhodes, of New Orleans, attorney for defendant, appellee.
   WESTERFIELD, J.

Plaintiff sued out executory process on a chattel' mortgage secured by a Ford automobile in the sum of $106.00. From this small and simple proceeding litigation out of all proportion has resulted. Being unable to locate the Ford and finding executory process of no avail under the circumstances, plaintiff endeavored to file a supplemental petition changing the form of his action from one via executiva to one via ordinaria, and not being allowed to do so application was made to the court for writs in order to compel the court to permit the filing of the supplemental petition.

Under the number 10,347 of our docket, we held that we were without authority to order the judge of the First City Court to permit plaintiff to file the netition; because we had no supervisory jurisdiction. Application was then made to the Supreme Court and that court on March 1, 1926, under the number 27,722 of its docket issued an order commanding the judge of the First City Court to allow the supplemental petition to be filed. In the meantime a motion to vacate the order of executory process was filed by defendant and on December 14, 1925, judgment was rendered against plaintiff rescinding the order for and recalling the writ issued thereunder, and condemning plaintiff to pay to defendant $25.00 attorney’s fees as damages. From this judgment plaintiff has appealed.

We are of the opinion that the trial court erred in considering the rule to vacate the executory process while the question of plaintiff’s right to change the form of his action was pending in the Supreme Court upon an application for mandamus. Moreover, there was no necessity to vacate the order, since plaintiff had himself abandoned his executory process or at least was attempting to do so with considerable vehemence. Nor do we think the allowance of $25.00 attorney’s fees, as damages, can be justified, even though the writ of seizure, under executory process, had issued before plaintiff offered to file his supplemental petition changing over to the ordinary process as is claimed and argued here. We know of no authority or precedent for such allowance and have been referred to none.

The cases of Soniat vs. Whitmore, 141 La. 235, 74 South. 916, and Grenier vs. Guillebert, 146 La. 277, 83 South. 553, are not in point. Both of these cases involved injunction proceedings.

For the reasons assigned the Judgment appealed from is reversed and this cause is remanded to the First City Court to be tried on the issue presented by the pleadings and particularly the original and supplemental petitions of plaintiff and according to law.


author: REYNOLDS, J.

text:
    No. 2673
    Second Circuit
    BRADFORD v. MARKS
    (June 30, 1926. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Fraud—Par. 3.
    Fraud is not presumed. He who alleges it must prove it by legal evidence.
    (Civil Code, Article, 1848.)
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo. Hon. F. X. Ransdell, Judge.
    Action by Jonnie Bradford against George E. Marks, et al.

      ' There was judgment for defendants and plaintiff appealed.'
    Judgment affirmed.
    . Murff & Perkins, of Shreveport, attorneys for plaintiff, appellant.
    W. B. Massey,, of Shreveport, attorney for defendants, appellees..
   STATEMENT OP THE CASE

REYNOLDS, J.

This is a suit to reform a notarial afct so as to include in it the minerals which, under the terms of the act, are specially reserved -from the sale by a clause which reads:

“Except the minerals therein and thereunder, which said minerals in- and under all of said property are especially reserved and excepted from this sale.”

Plaintiff alleges that the minerals were reserved from the sale through error super-induced by the fraud of defendants, plaintiff’s vendors.

Defendants denied that the minerals were excluded from the sale by fraud or error and alleged that they were excluded therefrom by agreement with plaintiff and to his knowledge and with his consent, and they asked for judgment in reconvention against him for $430.00 damages.

On these issues the case was tried and there was judgment rejecting plaintiff’s demand and he has appealed. Defendant has not answered the appeal, so the only question now to be decided is whether or not the judgment rejecting plaintiff’s demand is correct.

OPINION

Plaintiff introduce.d as witnesses himself, his wife, Moise Bagger, Henry Caldwell, Ike Smith, each of whom testified that when the sale was made they heard defendants agree to sell plaintiff the land, minerals and all.

Neither Smith nor Caldwell heard' any statement as to the amount that was to be paid.

Plaintiff and his wife and Moise Bagger each testified that defendants agreed to sell the land, minerals and all, for the stipulated price of $1950.00.

Plaintiff introduced as a witness W. E. Glassell, a man of unquestioned veracity and highest integrity, who testified, pages 91 and 92:

“Q. How much were you to pay him for that land?
“A. My agreement was one hundred dollars ($100.00) an acre. The dwelling burned; he was to make an allowance for the house that was burned, which would reduce it to about nineteen hundred and fifty ($1950.00) dollars without the mineral rights.
* * * *
“Q. Did he say anything to you about wanting to reserve the mineral rights?
“A. Yes, sir.
“Q. Did he say he wanted to reserve the minerals?
“A. One-half of them — I bought the land from him, made a trade at that price, and he was to deliver it to me, and this is the first time I have seen him since about it.
“Q. That was with a reservation of one-half of the minerals?
“A. Yes, sir.
» * * *
“Q. He agree.d to sell you — your trade was, as I understand, nineteen hundred and fifty dollars ($1950.00) for the surface rights and one-half the minerals?
“A. Yes, sir; I didn’t value the surface rights as much; it is a bad piece of ground.”

Under this evidence of Mr. Glassell’s it is hard to accept as true the testimony of plaintiff and his wife and Bagger and Caldwell and Smith, that defendants agreed to sell plaintiff the land, minerals and all, for nineteen hundred and fifty dollars, when Mr. Glassell had already offered them nineteen hundred and fifty dollars for the land and one-half the minerals.

George E. Marks, L. J. Marks and William Marks,'sworn as witnesses, each positively denied that either of them ever promised or agreed to sell the mineral rights with the land, and all of them testified that the minerals were specially reserved from the sale.

They are corroborated in their testimony by the fact that the act of sale itself specially excepts the minerals, and they are further corroborated by the testimony of W. B. Williams and W. B. Massey, who prepared the notarial act.

Mr. Williams testified, pages 83, 83, 84:

“Q. Was anything stated at the time about the mineral reservations?
“A. Well, I prepared the first part of the deed and when we got down to the description, and George Marks, you asked me what I had where we had left off, and George Marks spoke about the minerals, about the mineral reservations, and then you asked John Bradford how about it, and if. he understood it that way, and John said yes, and at the same time discussed the taxes, and John went on, he says yes he understood it, and went on talking to somebody else.
“Q. The deed was then completed, was it?
“A. Yes, sir.
“Q. Was that deed read back before it was signed?
“A. It was.
* * * *
“Q. Any questions asked or remarks made by Bradford at that time?
“A. The only thing asked, if he understood it and it was perfectly agreeable to everybody.”

W: B. Massey' testified, pages 87, 88:

“The plaintiff and defendants in this case came to my office, 310 Levy Building, on the date the deed was passed; they stated that they wanted to pass this deed and after getting what I supposed was all the information in connection with it I dictated the deed to Mr. W. B. Williams, who was in the office and who wrote it at the time it was dictated, and when we reached that, part of .the deed where the description was finished, we added the clause with the buildings and improvements thereon, the defendant George Marks intérrupted and said you understand, Mr. Massey, I am reserving the minerals; I told him- that I had not understood it up to that time and asked all the parties in there in connection with this deed at . the time if that was the understanding, including the plaintiff in this case, John Bradford, and after some few remarks had been made, á little discussion, they all • seemed to understand it thoroughly, in fact, said so. And I dictated a clause reserving the minerals to Mr. Williams who wrote it into the deed. When the deed was finished I took the deed myself and read it in a voice sufficiently loud or audible to be heard by everybody in the room; they all seemed to be listening and after some discussion- about payment of taxes and so on the deed was executed and the matter was closed. There was no sign of any dissatisfaction on the part of the purchaser or seller; everything seemed to be all right.”

Plaintiff’s attorney, in an able brief, seeks to convince us that his client is an ignorant and uneducated man and that he has been greatly imposed on.

As a witness plaintiff testified that he did not know the meaning of the word “fraud”, but he evidently did not favorably impress the trial judge, who decided the case against him.

The case involves purely a question of fact, and the district judge who heard the witnesses and observed their manner of testifying was in a better position to decide this question than we are.

A careful reading of the evidence in the case does not convince us that the trial court- erred, and accordingly the judgment appealed from is affirmed.


text:
    No. 2652
    Second Circuit
    MOORE v. LOUISIANA OIL REFINING CORPORATION
    (June 30, 1926, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Master and Servant —Par. 156, 160 (j).
    The preponderance of evidence shows that the employee did not receive injury complained of while working for the defendant, consequently he cannot recover under the Workmen’s Compensation Act No. 20 of 1914.
    2. Louisiana Digest — Master and Servant —Par. 160 (j).
    A payment to the wife of an employee because she said that her husband was sick does not constitute an admission by the employer that the employee was injured in the course of his employment and can recover compensation -• under the Workmen’s Compensation ' Act No. 20 of 1914.
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo, Hon. T. F. Bell, Judge.
    Action by Jim Moore against Louisiana Oil Refining Corporation. There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Long and McSween, of Shreveport, attorneys for plaintiff, appellant.
    Blanchard, Goldstein and Walker, of Shreveport, attorneys for defendant, appellee.
   ODOM, J.

This is a suit under the workmen’s compensation act in Which plaintiff' asks judgment for compensation for total permanent disability for an injury which he claims to have received while at work for the defehdant.

The defense is, that plaintiff was not injured while in defendant’s employ, and that whatever disability which he is now under was not caused by an injury received by him while at work.

There was judgment rejecting plaintiff’s demand, from which he has appealed.

OPINION

Plaintiff, as a witness in his own behalf, said that about July 30, 1925, he 'does not recall the exact date, while standing on a scaffold ceiling a room he strained his hip—

“I could not say how but when I got down it hurt so bad I could hardly stand up.”

This is his full account of the injury which he claims to have received.

It will be noticed that he did not fall from the scaffold but that he says he strained his hip while standing on the scaffold.

The injury of which he complains is alleged to. have been sustained on July 30th. He testified that he worked on for the defendant at the same kind of work until August 8th—

“* * * hobbling along. I could not hardly do anything”.

He testified that finally he had to give tip his work; that he has pains in his hip; that his leg has swollen down to the foot; and that he was unable to work at the time of the trial.

He admitted that he had worked for ten days after the injury of which he complains, and testified that after the injury and just before he left the defendant he assisted a Mr. Waldron in fixing some jacks and also assisted Mr. Waldron to do some work on the machine shops. He also says that he worked with Mr. Moreland, another carpenter, from the date on which he claims to have been injured until the day on which he finally quit work, but that he “hobbled around”.

. His testimony is that up to the time he strained his hip he had no trouble with it and that he did not tell any one he was suffering. He says that at the time he did not consider the injury serious, but that his condition gradually grew worse.

As' against plaintiff’s testimony as to the injury, we have that of Mr. Aylett, who worked with plaintiff during all the time, who says that he heard nothing of the injury; that plaintiff made no complaint of an injury to him; but that some time prior to the date on which he now claims he was injured, in fact when he first started to work, about July 1st, he complained that his hip gave him pain; that he complained of a “catch in it” and that he complained constantly of his hip from the time he began to work and long prior to the date on which he claims to have received the injury.

In fact Mr. Aylett testified that prior to the time either of them went to work for defendant, in a conversation on Spring street in Shreveport, plaintiff told him he had a bad hip.

Mr. Aylett was not employed by defendant at the time of the trial and was not seeking work with it, as he stated he had other work with which he was satisfied.

We have also the testimony of Mr. More-land, another carpenter, who worked with plaintiff during the entire time he was employed by defendant, to the effect that plaintiff worked under him all the while and did not complain of receiving an injury, and that plaintiff did his work as well in August as he did in July.

Mr. Moreland further testified thatw plaintiff complained of his hip prior td the time he now claims he was injured and that his complaints Were so numerous that no one paid any attention to them at all before July 30th when he claims he was hurt.

Mr. J. S. Waldron, construction foreman for defendant, testified that he was around plaintiff during all the time he was at work and that his work was as satisfactory the last day he worked as it was on the first day and that he knew nothing about the injury until about a month after the work was completed, notwithstanding plaintiff helped him do some work on the machine shops during the last days he was employed by defendant. He said the first he heard of the injury was when he was called to the office of the defendant and asked about it.

H. J. Seacat, who has charge of the claim department of defendant, testified that he received no complaint from plaintiff as to the injury until August 30th, some twenty days after he quit work, and that this information came to him through a letter written by a Mr. Rawlins for plaintiff stating that plaintiff was in bed. He did not state and it was not intimated that the letter recited that plaintiff had received an injury while at work for defendant but merely stated that he was in bed.

The two carpenters, Aylett and More-land, worked with plaintiff and are no longer employed by defendant, and we can imagine no reason why they should testify falsely against him. If they had been disposed to favor either side it would seem but natural that they should lean towards a fellow workman. These witnesses both testified that plaintiff did not complain of an injury but, on the contrary, they both say that he complained of pains in his hip long before July 30th, the day on which he claims he was injured.

.. The testimony of Waldron is to the same effect....

, The testimony of • Seacat is ■ that plaintiff registered no complaint with defendant until the receipt of the letter ■ written by Rawlins on August 30th.

The testimony of .these witnesses, unimpeached, is so inconsistent with plaintiff’s contention* that he was injured while at work as to utterly destroy its effect. If plaintiff had received an injury while at work it seems to us he would in some way have made it known to those who were working with him. Not only that, he would have notified his employer. Again, if he had received such an injury as he now claims he did, he could not have continued to work, and the undisputed testimony is that he continued to work satisfactorily until the defendant had nothing more for him to do and he and the others were discharged for that reason.

Plaintiff called two physicians, Doctor .Cassity and Doctor Whiteside. Their testimony does not help his case.

Doctor Cassity 'found that plaintiff’s right leg was' larger than the left and not as strong as the other. He found evidence of pain in the right leg, which was probably produced' by a disorder of the sciatic nerves and he thinks such a condition could have been caused by a strain of the muscles of the side. He also found some “suspicious” teeth, which can cause a disorder of .that nerve.

Doctor Whiteside found soreness and tenderness in the region of the sciatic nerve as did Doctor Cassity.

Defendant called three physicians, Doctor Crain, Doctor Ragan and Doctor Williams.

Doctor Crain was of the opinion that a strain of the. hip could cause a disorder of the sciatic nerve and especially so if there was a previous focal infection, and was of the opinion that the sprain or strain of the hip which was not sufficient to immediately incapacitate . the patient would not affect the sciatic nerve..

Doctor Ragan was of the opinion a strain would have no effect upon the sciatic nerve and testified' that if a man had received an injury to the hip and later had a swollen leg he would look for other reasons for the condition of the leg,- unless the injury was severe- enough to disable him. His testimony was technical — he did not examine the plaintiff.

Doctor Williams examined the plaintiff and found no evidence of an injury, but said plaintiff was complaining of pain over the area supplied by the sciatic nerve, that is, the hip and the back part of the leg. He examined him at the sanitarium and treated him for sciatic neuritis. He said that sciatic neuritis might be caused by a strain and that there were other causes for it. He testified that, taking into consideration the history of the case and the condition of the patient, he reached the conclusion that plaintiff’s condition was “probably due to focal infection arising from his teeth” as plaintiff had several bad teeth.

' Considering the testimony of the witnesses who worked with plaintiff during the entire time he was employed by defendant, to the effect that plaintiff was complaining of .a bad hip during the entire time he was at work and for practically a month prior to the time he now claims he was injured, and considering the testimony of the physicians, and considering, further, the fact that these witnesses testified positively that plaintiff made no complaint to them of having received any injury while at work, we are of the opinion that whatever disability plaintiff now suffers was due to a condition which existed long prior to his employment by defendant.

And we are further satisfied that the strain of plaintiff’s hip, if he really suffered any, did not aggravate or augment his disability.

Defendant paid plaintiff $80.00 on September 19th.

Counsel for plaintiff contend that this payment should be construed as an admission by defendant that plaintiff was injured as alleged, and they cite the case of Johnson vs. Vernon Parish Lumber Co., 151 La. 664, 92 South. 219, where it was said by the court that payments made under the employers’ liability act are in the nature of admissions that the plaintiff was entitled to compensation.

A reading of that case discloses that the defendant admitted that it had paid the plaintiff six payments of $16.00 each and "alleges that these covered the period of his disability”.

In that case it was not disputed that the plaintiff had received an injury, and by its allegation defendant admitted disability.

In the case at bar, defendant denied that there was an injury and specifically set up that whatever disability plaintiff may have suffered was due to other causes.

In explanation of the payment Mr. Sea-cat says that plaintiff’s wife went to him with á plea for help as her husband was sick, and that there was a custom of the defendant to help its employees when sick, and that he gave her the check without any intention on his part to admit liability.

We do not think that the payment under the circumstances was an admission of liability.

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


text:
    No. 10,233
    Orleans
    STEWART v. NEW ORLEANS PUBLIC SERVICE, INC.
    (May 10, 1926, Opinion and Decree)

      (Syllabus by the Court)

    1. Louisiana Digest — Carriers of Passengers and Goods — Par. 38, 42.
    When a passenger, after safely alighting from a street car falls, and is injured, there can be no recovery against the carrier. The rule, that, when a passenger is injured, the carrier is presumed to be negligent, has no application.
    Appeal from .the Civil District Court, Parish of Orleans, Division “A”, Hon. Hugh C. Cage, Judge.
    Action by Janie Stewart against New Orleans Public Service Inc. There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Leon Levitan, of New Orleans, attorney for plaintiff, appellant.
    Benj. W. Kernan, of New Orleans, attorney for defendant, appellee.
   WESTERFIELD, J.

Plaintiff, a colored woman of middle age, sues defendant for damages for personal injuries alleged to have been caused by a fall, which, it is claimed, was occasioned by the premature starting of a street ear, owned and operated by the defendant corporation, as she was in the act of alighting therefrom. In the words of her petition—

“That, as petitioner was alighting from said car, and as she. had both feet upon the rear step of said car, the conductor, in reckless disregard of petitioner’s position as aforesaid and without any warning whatever to petitioner, suddenly gave the motorman the usual signal to again start said car; and that thereupon the said motorman turned on the current and started the said car while petitioner was on the step thereof as aforesaid, and thereby caused petitioner to be thrown violently on the . pavement of the lake side of Dryades street at its intersection with Clio street.”

The defendant denies the allegations of negligence and avers that the fall occurred after plaintiff had alighted in safety from the car and was due to her own carelessness.

There was judgment for defendant and plaintiff has appealed.

No questions of law are involved and if the accident happened in the manner alleged by plaintiff she must recover.

We have examined the lengthy record in this case carefully and we are unable to say that the learned trial judge was in error. There is a clear preponderance of evidence in defendant’s favor. It is true that two witnesses without any apparent interest in the case support the plaintiff, but these witnesses did not occupy positions of the greatest advantage at the time of the accident. They were across the street and not immediately on the scene as were the witnesses for defendant and in other respects their testimony was somewhat uncertain. But in any event the effect of their testimony was destroyed by defendant’s witnesses, of equal credibility and of greater number. Nothing would be gained by a detailéd discussion of the evidence consequently we content ourselves with observing that plaintiff has failed to prove the negligence with which the defendant is charged.

The rule that, when a passenger is injured, the carrier is presumed to be negligent, has no application here, as the evidence shows, that plaintiff fell, after safely alighting from the street car and, therefore, she was not a passenger when injured.


text:
    No. 9263
    Orleans Appeal
    JOHNESS v. JAHNCKE, INC.
    (May 24, 1926, Opinion and Decree)

      (Syllabus by the Court.)

    1. Louisiana Digest — Sales—Par. 216, 218, 226.
    The vendor, in good faith, of defective merchandise, is only liable for the return of the price and the expenses of sale.
    2. Louisiana Digest — Sales—Par. 237, 240, 241.
    One who has sold the thing can not maintain the redhibitory action.
    Appeal from the Civil District Court Division “D”, Hon. Porter Parker, Judge.
    Action by Allen Johness against Fritz Jahncke, Inc. There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    Raymond Gauche, of New Orleans, attorney for plaintiff, appellant.
    Martin G. Manion, of New Orleans, attorney for defendant, appellee.
   WESTERFIELD, J.

Plaintiff entered into two written contracts with the defendant, both dated September 18, 1917, each of which contracts covered the purchase of and installation of a quantity of Reynolds Asphalt Shingles upon a house owned by plaintiff situated in what is known as “Orleans Parkway” in Jefferson Parish. One house was occupied by plaintiff, and the other by plaintiff’s father, as a residence.

It was stipulated in the contracts “these shingles artfully guaranteed by the manufacturer for a period of ten years and bear the label of approval of the underwriters’ laboratories, and the application is guaranteed by ourselves (defendant) for a period of one year”.

The first house to be roofed under this arrangement was that occupied by plaintiff himself and the price mentioned in that contract, $220.00 was paid to defendant by plaintiff. Upon completion of the second contract and within a year from the date of the contract plaintiff complained that the roofs of both houses leaked and declined to make further payment. After several ineffectual efforts to adjust the matter plaintiff filed this suit in which he claims the sum of $220.00 as damages to walls and ceilings of the two houses alleged to be due to the defective roof and also the return of the $220.00 paid on the first contract. Defendant reconvened and prayed for $260.09 the price of the shingles as installed on the second house with recognition of a lien and privilege on the property.

There was judgment against plaintiff on the original demand and in favor of defendant on the reeonventional demand as prayed for. Plaintiff has appealed.

We are convinced that the shingles were not as warranted. There is abundant evidence to that effect in the record. In fact, defendant itself, recognized the defective character of the roofs, expressly by letters in record, and, impliedly by several unsuccessful efforts to repair them. The shingles, it seems, were flexible, and when the wind blew, would bend upward “like the feathers on a chicken” as one witness described it. If it happened to be raining and blowing at the same time the rain would enter the roof left unprotected by the bent, shingles. Defendant admitted the tendency of the shingles to bend, in a windstorm, but denied that that characteristic affected the roof, claiming they did not bend enough for that purpose and moreover that when the sun came out it would soften the shingles causing them to relax and resume their accustomed place.

Mr. Ried, under whose supervision the roof was installed for the defendant, testifying in defendant’s behalf said:

“Q. How about the bottom of the shingle? What is to stop it from flapping?
“A. The asphalt is made properly flexible, so that when the wind gets under the shingle, unlike a slate or wooden shingle, it only bends.
“Q. When it bends what is to prevent the water from coming through?
“A. The shingle above comes over sufficiently to stop that.
. “Q. Do these shingles lose their flexibility some time so as not to come back?
“A. I have seen that type of shingle when fifteen years old, and my knowledge has been that when they do bend back, the sun sufficiently melts the asphalt so as to bring it back if it should be rigid in an upright position.”

It thus appears that these shingles display great accommodation to circumstances, but we trust we do the manufacturer no injustice, and ourselves no injury, when we observe that adaptability in a shingle is much less admirable than in a human and that our conception of good shingles and good roofs is inconsistent with flexibility and comports more closely with the idea of rigidity. Besides, any commodity, which depends upon such close co-operation with natural and elemental forces for proper functioning is too uncertain for such an important office as the shelter of mankind.

Plaintiff has sustained the burden of proof of the defective character of the roofing and its unfitness for the purpose of which it was intended. It follows from what has been said that there can be no recovery upon defendant’s reconventional demand for a vendor warrants the fitness of the thing sold without any special warranty as there was in this case. Fee vs. Sentell, 52 La. Ann. 1957, 28 South. 279; No. 7420 Orl. App.

Plaintiff’s demand is two-fold.

First: The ^ recovery of the price ($220.00) paid for the first roof. Second: Damages to his property ($220.00) caused by the defective roof.

Taking up the second proposition first as it is more easily disposed of, we conclude that there can be no recovery on this account because, a vendor, in good faith, is only bound to return the price and the expenses of sale. R. C. C., 2531; George vs. Shreveport Cotton Mill Oil Co., 114 La. 498, 38 South. 432; 12 Orl. App.; Iberia Cypress Co. vs. Von Schoeler, 121 La. 72, 6 South. 105. There is no suggestion of bad faith here.

As to the claim for the return of the price paid for the first roof, this demand is in the nature of a redhibitory action and in this connection we find that this house, the roof of which was • paid for, was sold by plaintiff after this suit was filed and before the trial in the district court. It is true that plaintiff says, and it is not contradicted, that he guaranteed his vendee that he would “make the roof good”. Nevertheless the roofing is no longer in his possession and the redhibitory action will not lie. The remedy in such case is the action quanti minoris.

“This court has several times held that a return of the thing sold is indispensable to support a redhibitory action, and that a vendee ■ who, by selling, has disabled himself from returning the thing, cannot recover in such an action; accompanying, however, that declaration by the statement that that fact would not bar an action for a diminution of the price. While the plaintiff in this case, by reason of having disposed of the oil cake which he purchased, could no longer bring an action for the rescission or resolution of the sale, he was not cut off by that fact from bringing the action known in France as the ‘action estimatoire’, in this state as an action ‘for the reduction or diminution of the price’, and' generally as the action ‘quanti minoris’. Article 2531 of the Civil Code declares that the seller, who knows not the vices of. the thing, is only bound to restore the price, and to reimburse the expenses occasioned by the sale, as well as those incurred for the preservation of the thing, unless the fruits which the purchaser has drawn from it be sufficient to satisfy those expenses. Article 2545 declares that the seller, who knows the vice of the thing he sells, and omits to declare it, besides the restitution of the price and repayment of the expense, is answerable to the buyer in damages.”

But there is no evidence upon which to predicate a judgment quanti minoris. We can not guess at a proper allowance. The roof is still in use, however defective, the house has been sold and no loss experienced, so far as the record discloses, by plaintiff.

The judgment appealed from is reversed and it is now ordered that plaintiff’s demand to the extent of $220.00 be rejected and as to the balance thereof that there be judgment of non-suit.

It is further ordered that defendant’s re-conventional demand be dismissed. The cost of the district court to be paid by plaintiff and of this appeal by defendant.


author: WES TERFIELD, J.

text:
    No. 10,331
    Orleans
    ARONOWITZ v. DULITZ
    (March 29, 1926. Opinion and Decree.)
    (April 26, 1926. Rehearing Refused.)
    (June 1, 1926. Writ of Certiorari and Review Denied by Supreme Court.)

      (Syllabus by the Court)

    1. Louisiana Digest — Appeal—Par. 318, 326.
    The purpose of Act 112 of 1916 is to afford an opportunity to appellant within two days, exclusive of Sundays, holidays and half-holidays, following notice by the appellee of a claimed defect in the appeal bond, to correct the same. The fact that the notice takes the form of a rule to dismiss the appeal and • such rule is pending does not interrupt the running of the two days allowed by the act. Nor does the fact that the trial court dismisses the rule to dismiss the appeal extend the time until two days after such judgment is reversed on appeal.
    2. Louisiana Digest — Appeal—Par. 325.
    One who elects to stand upon the bond as originally given and fails to correct the same within two days after notice required by the' act is given him cannot complain if he is found to be in error and his appeal dismissed.
    3. Louisiana Digest — Appeal—Par. 301.
    A bond, insufficient for a suspensive appeal, will support a devolutive appeal when obviously sufficient to cover costs.
    Appeal from the Civil District Court, Division “D”. Hon. Porter Parker, Judge.
    Action by David Aronowitz against Louis Dulitz.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed and Suspensive appeal dismissed.
    Leon Levitan, of New Orleans, attorney for plaintiff, appellant.
    H. W. Kaiser, of New Orleans, attorney for defendant, appellee.
   OPINION

WES TERFIELD, J.

Plaintiff appeals suspensively from a judgment denying a motion to dismiss a suspensive appeal upon the ground that the appeal bond was insufficient in amount. Plaintiff also filed a motion to dismiss the appeal in this court.

Judgment was rendered in plaintiff’s favor in the sum of $700.00 with legal interest from judicial demand and 10% attorney’s fees upon the aggregate of principal and interest and in fixing the amount of the suspensive appeal bond. The court a qua named the sum of $1000.00.

Plaintiff promptly moved to dismiss the appeal upon the ground that the surety was irresponsible and the amount of the bond insufficient. This rule, after hearing, was dismissed by the trial judge on November 6, 1925, and on November 17 a suspensive appeal was taken from this judgment. The transcript of appeal was lodged in this court on February 9, 1926, and two days thereafter defendant secured an order from the trial court permitting him to file a new appeal bond in the sum of $1500.00 in lieu of the bond he had heretofore filed for $1000.00.

Counsel for defendant concedes that his original bond in the sum of $1000.00 was .insufficient and consequently that the judgment appealed from is erroneous. But he claims that he has two days after “a decree of a competent court declaring the bond furnished insufficient and the surety thereon insolvent” for the filing of a new or supplemental bond.

The law is to be found in Act 112 of 1916:

“By Act 112, p. 241, of 1916, the appellant may give a second bond where the sureties on the first are pecuniarily insufficient. But this must be done within two days after the adverse party has served upon him notice of such insufficiency.” Neely vs. T. & P. R. R. Co., 140 La. 446, 73 South. 262.

Section 3 of the Act referred to is in part as follows:

“The party desiring to furnish such new or such supplemental or additional bonds shall have the right to do so at any time prior to judgment; if the adverse party or any other party in interest shall cause to be served upon him through the proper officer for service a notice that such adverse party in interest claims that a bond furnished in the proceedings to which he is a party or in which he has an interest is insufficient as to form or substance or of the solvency, or because of pecuniary insufficiency of the surety or sureties thereon, the said party who has furnished such bond shall have the right within two days, exclusive of Sundays, legal holidays and half-holidays, to furnish a new bond or supplemental bond, or additional bond, above referred to. If he shall fail to furnish same, the case shall then proceed without any diminution of the right of the adverse party, or other party in interest, to test the sufficiency of the bond furnished, whether as to the amount of form thereof, of the solvency of the surety or sureties thereon.”

In the case at bar the notice was given defendant by plaintiff’s rule to show cause why his appeal should not be dismissed and applying the provisions of the Act of 1916, he had two days, exclusive of holidays and half-holidays, thereafter to supplement the bond he now admits to be deficient. He did not attempt to make good the deficiency in any way until after the transcript of appeal we are now considering was lodged in this court, or more than three months after receipt of the notice. It is argued that since the judge a qua refused to dismiss the appeal, it was not defendant’s province nor his obligation to consider the correctness of this ruling by voluntarily supplementing a bond the court held to be sufficient and that until this court reverses the judgment appealed from or, what is more, until the finality of our judgment or that of the Supreme Court should see fit to review our findings and for two days thereafter no additional bond can be required of defendant, though it is ffeely admitted the bond ■ is, as a matter of fact, insufficient.

This is not our understanding of the law, nor does this interpretation accord with the purpose of its enactment. Act 112 of 1916 was passed shortly following the decision of the Supreme Court in Pelletier vs. State National Bank, 112 La. 562, 36 South. 592, where a suspensive appeal was dismissed because of a deficiency of $32.91 in an appeal bond of $15,000.00.

The act was intended to prevent a recurrence of what happened in the Pelletier case by giving the appellant an opportunity for two days following a notice by his adversary of the insufficiency complained of to correct the same. Prior to the adoption of Act 112 of 1916, no notice was required, and in furnishing an appeal bond the litigant had to calculate properly the bond required or suffer the dismissal of his appeal. He had no chance to correct his errors and opposing counsel were under no obligation to call his attention to such error.

In electing to stand upon the bond of $1000.00, as originally furnished, defendant in effect says that he is satisfied he has made no mistake and will stand or fall upon the correctness of his decision in that regard. The judge a qua in dismissing the rule to dismiss the appeal held that defendant could stand. We are of opinion that he must fall. No inequity results from the fact that the trial court was in error, for when his judgment was rendered the two days allowed by Act of 1916 had already elapsed and defendant had concluded to take the chance that in determining to “stand pat” he was right. In other words, the pendency of the rule to show cause why the appeal should not be dismissed did not interrupt the running of the two days given defendant for reflection upon the solvency and sufficiency of his appeal bond. The law only contemplates this short notice to give an appellant the last opportunity to correct his bond, if a mistake has been made, or claimed. It requires the appellee to give the notice to prevent snap judgment when the appellee is powerless to protect himself from his mistake.

In the Neely case (supra), the court, in speaking of Neely’s failure to correct his appeal bond, in the legal delay, said:

“Notice was thus served upon the appellant, Jeff D. Neely, by means of a rule to test the sufficiency of the surety on his appeal bond, of which he accepted service on June 22, 1915; and the second bond which he gave in an attempt to take advantage of the provisions of said act was filed in September, 1925, evidently too late. His motion that said bond be allowed to stand in place of or supplement • the bond given by him in his appeal, must, therefore, be denied. Instead of filing this bond within the delay thus positively fixed, he took a rule upon the defendant to show cause why he should not be allowed to file it. But this rule was filed only in September, so that the two days allowed for filing the bond had long expired when this rule was filed; not that we would intimate that the pendency of the rule could have suspended the course of the two days’ delay allowed for filing the bond.”

The facts in the instant case are quite similar to those involved in the Neely case, which is controlling of the present issue. But under familiar jurisprudence too well settled for citation, the appeal is good as a devolutive appeal.

For the reasons assigned, the judgment appealed from is reversed and it is now ordered that the appeal taken by the defendant, Louis Dulitz, from the judgment of October 30, 1925, be dismissed as suspensive and maintained as devolutive.

BELL, J. I respectfully dissent.


author: WESTERPIELD, J.

text:
    No. 10,105
    Orleans Appeal
    HUDSON v. JACKSON BREWING COMPANY
    (May 24, 1926, Opinion and Decree)

      (Syllabus by the Court.}

    1. Louisiana Digest — Automobiles—Par. 4 (d).
    A speed of 20 miles per hour on a street where the maximum permitted by the city ordinance is fifteen though excessive is not negligence per se, and when it appears that the excessive speed was not the cause of the accident no liability in damages arises therefrom.
    2. Louisiana Digest — Automobiles—Par. 4 (b), 4 (d).
    When the driver of a motor truck violates a city ordinance, prescribing the proper method of making a left turn, and such violation is the cause of an accident, the owner of the truck will be held responsible.
    3. Louisiana Digest — Automobiles—Par. 8; Evidence — Par. 340, 343.
    Witnesses are weighed not counted. Their testimony must be considered in the light of probability and not by counting the number of witnesses on each side.
    Appeal from' Civil District Court, Division “A”, Hon. Hugh Cage, Judge.
    Action by James M. Hudson against Jackson Brewing Company. There was judgment for plaintiff and defendant appealed.
    Judgment amended and affirmed.
    Woodville and Woodville, of New Orleans, attorneys for plaintiff, appellee.
    J. C. Henriques and Prank T. Doyle, of New Orleans, attorneys for defendant, appellant.
   WESTERPIELD, J.

This is a suit for damages for physical injuries, resulting from a collision between a Hudson automobile and a" motor truck.

There was judgment for plaintiff, in the sum of $2000.00, and defendant has appealed.

The collision occurred at the intersection of North Peters and Jefferson streets. The Hudson automobile, driven by plaintiff, was travelling down N. Peters street in the direction of Esplanade avenue,' and the truck owned by defendant was proceeding in the same direction. The driver of the truck, intending to drive in a garage of the defendant company on Jefferson street, turned his truck for that purpose and came in contact with the Hudson automobile driven by plaintiff. The manner in which the turn was made is an important consideration in the case. Plaintiff contends that as he approached Jefferson street he blew his horn, as an indication of his intention to pass the truck, increased his speed, and drove to the left of the truck, when the truck without any signal, or warning changed its course and started diagonally across his path, toward the corner of Jefferson street, . forcing plaintiff toward, the curb, and, in danger of collision with several iron posts along the edge of the curb, whereupon, to avoid hitting the posts, he turned sharply to the right, in an effort to pass in the rear of the truck, but, due to the wet pavement his car skidded against the truck’s rear end.

Defendant, on the other hand, denies that the truck took a diagonal course, and insists that the turn was attempted in a proper manner, and claims that the accident was caused by plaintiff’s negligence, in that he was on the wrong side of the street, and attempted to pass the truck without sounding his horn and, was driving too fast.

The municipal ordinance, which is in evidence, requires all vehicles, in turning to left, into an intersecting street, to pass the center of the intersection on the extreme right, before turning. The ordinance also expressly prohibits all vehicles taking a diagonal course into the intersecting street, giving illustrations of both methods of turning to the left, as the right and wrong way to turn. As to plaintiff being on the wrong side of the street, if, as he claims, he was passing the truck, it was proper to do so on the left side of the truck, where all witnesses say he was at the time of the accident. “Vehicles passing other vehicles moving in the same direction shall pass to the left”. Art. 1, Sec. 3, Traffic Ordinance.

The speed limit, as established by the ordinance, on N. Peters Street is fifteen miles per hour. Plaintiff admits that he was going from seventeen to twenty miles and defendant insists that the accident was due to that fact. Estimates of speed of automobiles are merely guesses, and, it must be conceded, that when an áccident happens, the drivers of the automobiles concerned, are prone to be too conservative in guessing. Therefore we accept counsel’s statement that plaintiff was very likely travelling nearer twenty than seventeen miles per hour. This excess of speed, however, is not sufficient to charge plaintiff with recklessness, and, moreover, it is only of consequence, if it contributed to the accident. In Belden vs. Roberts, 3 La. App. 338, we said in speaking of a similar violation of the ordinance :

“The limit of speed fixed by the ordinance was twenty miles per hour. The defendant admitted he was running at a speed of twenty-two miles per hour. The difference between the two is but slight. But the excessive speed was not the cause of the collision, as we shall show hereafter and the violation of an ordinance cannot be charged as negligence unless it was the cause of the accident.” Lopez vs. Schique, 114 La. 1004, 38 So. 810.

We believe the accident was caused by the manner in which the truck attempted to turn into Jefferson street, and in reaching this conclusion we have given careful consideration to the evidence of the defense witnesses to the contrary. These witnesses were mistaken in their recollection of the incident. Not perjurers, as counsel suggests we must find, if their testimony is not accepted. Indeed, if courts charged with the obligation of determining the ultimate facts in a law suit were under the necessity of branding all witnesses whose testimony was rejected, as guilty of crime, the judicial office would be a most unhappy one. We would not be understood as suggesting that perjury is absolute, or even less common than formerly, for the criminal instinct .still manifests itself in a variety of forms, but an untruthful statement is often made by individuals possessed of the highest sense of honor. There is hardly a law suit, involving a question of fact, in which there is not conflicting and irreconcilable testimony, and often the witness are all of unquestioned integrity.

All the probabilities support plaintiff’s ; version of the accident. If the speed of his ' car was a factor in the collision, it is not likely that he would have struck defendant’s truck in the rear, whereas, his statement tjiat the diagonal course of the .truck pocketed him in a constantly decreasing area, which caused him to turn sharply to the right in an effort to avoid being jammed between the truck and the curb seems to us most plausible. Plaintiff is supported by two witnesses who had opportunity to view the accident. The fact that three witnesses support defendant is not controlling for witnesses are weighed, not counted.

In Kemp vs. Womack, 2 La. 372, in criticizing a finding based upon the testimony of a majority of witnesses, the court said:

“The large items of one thousand four hundred and seventy dollars, is an aggregate of charges for supporting young negroes, previous to an age at which they may be considered as useful; and they are made at the rate of thirty dollars per year on each head. This is unreasonable. It is true that a majority of the witnesses introduced on this subject thought otherwise; and the judge a quo seems, by counting them to have acquiesced in the opinion of that majority. Numeration is certainly the easiest mode by which judges can arrive at conclusions on matters of fact, supported alone by the testimony of witnesses; but the law of evidence requires that their testimony should be weighed by probabilities, and its truth be rather ascertained in this manner than by counting numbers.”

(It should be remarked that this case was decided in 1830 when the dollar was worth many times its present value. • Were a similar question presented today, we should be inclined to hold that $30.00 per year was a reasonable price, for supporting young negroes.)

In addition to the foregoing considerations, and' largely influencing our conclusion, the trial court emphasizes the fact that its judgment and findings of fact were-to a great extent based upon the demeanor and bearing of the witnesses on the stand. The learned judge, a quo, frankly stated that he did not believe defendant’s witnesses.

The quantum allowed seems to us somewhat excessive.

Plaintiff was not permanently injured. He suffered the fracture of two ribs and a wrenched arm. No doubt he experienced considerable pain but he was able to go about his business, almost without interruption, though his activity was to some extent circumscribed. We think the sum of $2000.00 allowed by the judgment excessive and it will be reduced to $1500.00.

The judgment appealed from is therefore amended so as to reduce the sum awarded plaintiff to $1500.00 and as thus amended it is affirmed.


author: WEBB, J.

text:
    No. 2628
    Second Circuit
    SPAINHOUR v. DULANEY
    (June 30, 1926, Opinion and Decree)

      (Syllabus by the Editor)

    1. Louisiana Digest — Automobiles—Par. 4, 4. (b);
    The party driving an automobile who first reaches a street intersection, having the right of way, the other party must respect that right, and if- he fails, to do so-he is guilty of negligence.
    2. Louisiana Digest — Automobiles—Par. 4, • .4 .(b). ;
    One who drives his car into ,an- intersecting street must not only reduce ' the speed of his automobile but must be sure before he crosses it that there are no vehicles approaching on the street sufficiently close to cause a collision.
    Appeal from the Second Judicial District Court of Louisiana, Parish of Claiborne, Hon. John S. Richardson, Judge.
    Action by C. E. Spainhour against A. D. Dulaney. There was judgment for defendant. Plaintiff appealed.
    Judgment affirmed.
    McClendon an.d Seals, of Homer, attorneys for plaintiff, appellant.
    T. T. Land, of Homer, attorney for defendant, appellee.
   WEBB, J.

In this action plaintiff seeks to recover judgment against defendant for damages resulting from a collision between an automobile driven by plaintiff and one driven by defendant.

The judgment of the district court rejected plaintiff’s demands and he appeals.

OPINION

The collision occurred in the forenoon at the intersection of two highways or streets in the village of Athens, Louisiana.

The record is rather voluminous and the testimony conflicting as to the speed at which plaintiff’s automobile was being driven.

It is established that defendant approached the intersection from the east and before entering upon the intersection he reduced the speed of his car, bringing it almost to a stop, and looked along the street which he was about to cross and seeing no vehicles approaching he proceeded to go upon the intersection at a speed of four or five miles per hour; that plaintiff approached the intersection from the north at a speed of at least fifteen miles per hour, and when at a distance of fifty or seventy-five yards from the intersection he observed the defendant’s automobile at the intersection and noting that defendant had reduced the speed of his car, plaintiff came to the conclusion defendant was going to stop.

Considering the difference in the rate of speed at which the respective vehicles were being driven, and the fact of the defendant having been at the intersection when the plaintiff was at a distance of fifty or seventy-five yards from the intersection, shows that defendant’s car must have been the first on the intersection, and in this situation the defendant had the right of way, unless there was an ordinance or regulation to the contrary. (Johnson et al. vs. Worley, 3 La. App. 675.)

There was no evidence showing that the highway upon which plaintiff was travel-ling was a right-of-way street, and the rights and obligations of the parties approaching and at the intersection are governed by the rule stated in the case cited above.

The collision occurred at about the center of the intersection, and both parties appear to have been surprised when they ascertained the presence of the other, and in our opinion the collision is attributable to the fault of both.

While the defendant did make a pretence of caution in reducing the speed of his car before going upon the intersection, .and of looking to see whether or not any vehicles were approaching on the street which he was about to intersect, he did not look from a point where he had a clear view of the roadway, and he appears to have been wanting in due care in proceeding across the street without further attention; and the plaintiff appears to have been equally lacking in caution, in that while he saw the defendant’s car at the intersection when he was some distance away, at which time defendant’s car ;was still moving, yet he proceeded to approach and take the interséction without ; knowing whether or not. defendant stopped ■ his car, and'without having h(s car under I control. •. ■ ■ i

The judgment is affirmed.


author: MOUTON, J.

text:
    No. -.
    First Circuit
    DAY v. ST. JOE BRICK WORKS
    (June 26, 1926, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Appeal—Par. 483.
    A record filed in the appellate court after the return days had expired is too late and the appeal must be dismissed.
    Appeal from the Parish of St. Tammany, Hon. Prentiss B. Carter, Judge.
    Action by Harry T. Day against St. Joe Brick Works, et al.
    S. W. Provensal, of Slidell, attorney for plaintiff.
    Ellis and Ellis, of Rayville, attorneys for defendant.
   MOUTON, J.

An appeal was first granted in this case, devolutive and suspensive, returnable to this court •■an September 4, 1925. Subsequently, a .devolutive appeal was granted, returnable here on the 7th of March, 1926. The record was filed in this court on the 2nd of April, 1926. It was therefore filed after the return days had expired as fixed in both orders of appeal. Appellee has filed a motion to dismiss which must prevail.- 1 "

The appeal is therefore dismissed at the cost of appellant.'


text:
    No. 1754
    Second Circuit
    GRAYSON NEWTON & COMPANY v. BLOUNT AND WELCH
    (June 30, 1926, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Appeal—Par. 266.
    Appellate courts will not consider appeals where no order of appeal was entered by the court of original jurisdiction.
    Appeal from the Second Judicial District Court of Louisiana, Parish of Webster, Hon. J. E. Reynolds, Judge.
    Action by Grayson Newton & Company against A. E. Blount and Lawrence Welch.
    Appeal dismissed on motion.
    Stewart and Stewart, of Minden, attorneys for plaintiffs, appellees.
    Thomas W. Robertson, of Shreveport, attorney for defendants, appellants.
   ON MOTION TO DISMISS APPEAL

ODOM, J.

Counsel for plaintiffs, appellees, have filed m this court a motion to dismiss the appeal on the ground that no order of appeal was granted by the district court.

Appellate courts will not consider appeals where no order of appeal was entered by the court of original jurisdiction.

See Article 574 of the Code of Practice and authorities there cited.

See also, numerous authorities cited in Louisiana Digest, volume 1, “Appeal”, section 266.

See also Walker vs. Parish of Tangipahoa, 111 La. 321, 35 South. 585.

The appeal is dismissed.


author: CLAIBORNE, J. WESTERFIELD, J.

text:
    No. 9290
    Orleans
    HARVEY v. LOUP
    (April 12, 1926, Opinion and Decree)
    (April 26, 1926, Rehearing Refused)
    (June 1, 1926, Writ of Certiorari and Review Denied by Supreme Court.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Brokers—Par. 15, 17, 23.
    Although an offer to buy subject to the approval of a homestead may satisfy an authorization to sell for cash, the broker in order to earn his commission, must show that there was a homestead ready, willing and able to buy.
    Appeal from the Civil District Court, Hon. E. K. Skinner, Judge.
    Action by S. A. Harvey against Bertha' Loup, et al. There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Woodville & Woodville, of New Orleans, attorneys for plaintiff, appellant.
    A. D. Danziger, of New Orleans, attorney for defendant, appellee.
    BELL, J. Dissents.
    WESTERPIELD, J. Concurs in the decree for written reasons.
   CLAIBORNE, J.

The plaintiff claims a commission for the sale of a property.

He sues upon the following contract:

“N. O. La., August 14th, 1919.
“I hereby appoint S. A. Harvey my agent and authorize him to sell or exchange my property known as No. 1704-6 Dorgenois,> etc., for the price and sum of four thousand dollars net. * * * If property is sold for this amount or less, owner agrees to-pay his agent five per cent commission.
“When this property is sold, I agree and bind myself to pay my agent all over $4000 for their commission, no matter by whom the property has been sold, or if any of the preliminaries of sale are made during the term of this contract, and sale itself is consummated thereafter, I agree and bind myself to pay my agents all over $4000, and if sold for less than this amount owner agrees to pay five per cent commission. In the event of no sale being effected' during the existence of this contract, no charge will be made for commission. * * * My agent is authorized to accept a deposit of ten per cent of the purchase price.
“(Signed) BERTHA LOUP.
“Mrs. J. Marque — her mark.”

The plaintiff alleged that he secured from Mrs. F. Arnold of this city the following offer:

“I, the undersigned, hereby offer $4300 for the property situated 1704-6 N. Dorgenois street. Cash, titles .and loan subject approval of the homestead. It is understood and agreed that this offer will irrevocably hold until December 19, 1919, at 6 p. m. If the above offer is accepted I obligate myself to deposit with S. A. Harvey ten per cent of the amount offered on account of • purchase price to bind the sale and as earnest money..
“(Signed) MRS. T. ARNOLD.”

That in spite of this written agreement, Miss Loup and Mrs. Marque refused to accept said offer, that he is entitled to $300 for securing said offer and also to 25 per cent attorney’s fees thereon.

The defendants pleaded that the petition was vague and indefinite and disclosed no cause of action, for the reason that' ^there is no allegation therein that the-purchaser was ready, willing and able to' buy the propery or that the purchaser had put up a ten per cent deposit”.

The exception of no cause of action was maintained and the suit was dismissed.

The plaintiff appealed.

This court decided' that the allegations of “ready, willing and able” were not essential; but were “a natural inference from the allegations set out in the petition and from the documents annexed thereto”, and that those were matters of defense which should be urged on the merits. Therefore the case was remanded to afford the plaintiff the opportunity of making- the necessary proofs in support of their allegations expressed and implied.

For anwser the defendant, Mrs. Marque, denied having affixed her mark to the authorization to sell, and joined Mrs. Loup in pleading a general denial; they admitted refusing to sell to T. Arnold “and aver that he was a straw man put forward by Harvey in an effort to extort a commission from respondents”; that said “purchaser was not, if he existed at all, ready, willing, and able to buy; that the alleged offer made by him contained a potestative condition, and was not enforceable, as it was made subject approval of homestead” without stating what homestead nor the amount such homestead was expected to lend to said alleged purchase; that the authorization to Harvey was to sell for cash, while the offer to purchase was - “subject to homestead loan”, which was a' conditional offer not binding on the purchaser; that Harvey was required to have a deposit which was not done.

Upon the trial on the merits the district judge held that the prospective purchaser procured by the plaintiff -was “binding -herself with a potestative condition which itself was an absolute nullity”.

“The. agreement to find a purchaser ready, able and' willing to buy was not complied with, because the purchaser was only bound by a potestative condition.” He dismissed the suit.

The plaintiff appealed.

The evidence is that Mrs. Arnold signed the offer to buy for $4300, that she expected to effect a loan through the French Market Homestead where she had about $1000; that after her offer had been refused she bought another property in January for $3900 in part payment of which shé paid about $10.00; her memory as to the property offered to her by the plaintiff as to location, distribution, and other details is rather hazy; she sold the last property for $4800, and bought another property for $8500, on which she borrowed $5500 from the same homestead; she drives an automobile.

Plaintiff testified that he worked industriously by advertisements and otherwise to sell defendants’ property; that he is a licensed broker; that he submitted Mrs. Arnold’s offer to the defendants who refused to accept it.

By assuming that Mrs. Arnold’s offer to purchase through a homestead was a compliance with the authority to the plaintiff, we afforded him every opportunity to establish that the offer was substantial. In accordance with the laws governing homesteads and with their rules, properties upon which they make loans are sold directly . to them.' In that manner they become in effect the purchasers of the property. . In as much as the law requires that a broker should procure a purchaser willing, ready, and able to buy, it would have been incumbent upon the plaintiff to establish that- the French Market Homestead, or any other, was ready, willing and able to buy defendant’s property. No evidence on that subject was introduced. The same rule would apply if any other party would make an offer. The owner is not bound to accept any and every offer. He may consider the readiness and ability of the party to purchase, and if he entertains any doubt upon that subject, he may refuse to accept the offer until investigation.

The burden is upon the party making the offer to establish the three requirements of the law: readiness, willingness, and ability to purchase. No presumption arises in favor of the party making the offer. We consider the failure of the plaintiff to establish that there was a homestead company ready, willing and able to buy defendants’ property for -the price and upon the conditions stipulated in the authority to sell as fatal to plaintiff’s claim.

It was as if no sale had been effected, in which case plaintiff under his contract was not entitled to any commission.

BELL, J. I respectfully dissent.

WESTERFIELD, J.

I think the offer to purchase tainted with the potestative condition and therefore not a compliance with plaintiff’s obligation under his contract. I agree with the district judge and consequently concur in the decree.


author: LECHE, J.

text:
    No. -
    First Circuit
    PRUDEN v. POLICE JURY OF ST. TAMMANY
    (June 26, 1926. Opinion and Decree.)

      {Syllabus by the Editor.)

    1. Louisiana Digest — Parishes—Par. 24.
    Under the Revised Statutes, Section 3354, et seq., police juries have plenary powers over the establishment, conduct and abandonment of public roads and their discretion in this regard will not be interfered with by the courts.

      Appeal from the Parish of St. Tammany; Hon. Prentiss B. Carter, Judge.
    Action by H. B. Pruden, et al., against Police Jury of St. Tammany, et al.
    There was judgment for defendants and plaintiffs appealed.
    Judgment affirmed.
    Miller & Miller, of Bogalusa, attorneys for plaintiffs, appellants.
    Ellis & Ellis, of Bogalusa, attorneys for defendants, appellees.
   LECHE, J.

Harvey E. Ellis, one of the defendants, owns lands situated northwest of the town of Covington, in St. Tammany parish, on the north side of the Hammond and Covington State Highway, which runs directly east an.d west and connects the towns of Hammond and Covington. To the north óf and adjoining Ellis’ land, the two plaintiffs, H. B. Pruden and P. J. Laborde, also each own certain tracts of land. A road running out of the town of Covington and called the Penn Mill road, at one time extending across the Hammond and Covington State Highway, through the lands of Ellis, in a northwesterly direction, and claimed by the plaintiffs to have been a public road, forms the subject of the controversy in this suit. Some of the witnesses call this road the Pruden road, others say that the Penn Mill road and the Pruden road are two different roads, and that the latter is merely a branch or. fork of the Penn Mill road. It is of little importance, however, what the real name of the road or roads may be, as the issue, in this suit is whether the same .is a public road to the use of which the two plaintiffs and the public in general have a vested right.

' ■ Plaintiffs charge in substance that the Penn Mill road has been1 recognized by the. Police Jury of St. Tammany Parish as a public road and. used as such by the "public for over thirty years. That" .on January 28, 1920, the Police Jury of St. Tammany sold the land over which sai.d road extends to Harvey E. Ellis and relinquished all right, title and "interest of the parish and of the public in favor of said Ellis, with the right to fence in the same and convert it-,to the private ownership of said EUis. That subsequently said police jury by resolution abandoned the said Penn Mill road as a public road and relinquished all rights and interest therein. That said road was never abandoned, has been in continuous use by plaintiffs and others, and is the only road which serves that section of the parish. They further charge that the acts of the police jury were without right or authority and ultra vires and they obtained a preliminary injunction against-the said Ellis and the police jury from carrying out the agreement thus entered into.

Of course, defendant Harvey E. Ellis does not claim title to the .right-of-way or to the land over which the Penn Mill road extends by sale from the Police Jury of St. Tammany. He sets forth in his answer his title from other sources to the land over which this road extends.

It is conceded by defendants that there was such a road as -the Penn Mill road, but it is denied that said road was a public road. They further show that on the 28th day of January, 1920, defendant Ellis conveyed to the Police Jury of -St. Tammany a right-of-.way .across his land for the construction of the Hammond and Covington Highway, that said highway is .almost parallel with .what was called the Penn Mill roa,d, and- that in consideration of this grant, of right-of-way,, the ■ police jury.consented to abandon and relinquish in his favor whatever-interest- or .right of way it had in the Penn Mill road. < ■

It is very questionable whether the road in question ever was a public road. There' is no evidence to show that it was ever dedicated as such by the owners of the soil, or that it was ever expropriated by the police jury for such a purpose. Nor is it .shown that it was ever acquired by the police jury by the prescription of three years provided by Act 220, p. 417, of 1914. It is not shown that it was kept up, maintained or worked by the police jury for a period of three years. It was worked on one or two occasions by Marvin Poole, a member of the police jury from the ward in which the road is situated, but no written authority is shown on the part of the police jury for such work. According to the testimony of Pete Berelli, a witness for plaintiff, the road was mostly used by plaintiff Laborde, and by Josh Gaines for hauling wood and logs. No one lives on the lands of the plaintiffs; there is little occasion for anyone else to use the road which most of the time has been impassable. That it was used by three plaintiffs for such purposes as hauling is not at all inconsistent with the theory that' this was permitted through sufferance of the owners of the soil on which the road was situated. At all events, even if the Penn Mill road, such as it is called, ever was a public road, there is no doubt that the Police Jury of St. Tammany Parish had the right to abandon the servitude of right of way over it. Such servitude, while owned by the public, is under the exclusive control and administration of the police jury. R. S., Secs. 3354, et seq. Police juries have plenary powers over tlie establishment, conduct and abandonment of public roads ■ and their discretion in this regard will not be interfered with by the-courts. Plank Road Co. vs. Kline, 106 La. 325, 30 South. 854; Reynaud vs. Police Jury, 138 La. 68, 70 South. 39.

•"The' trial1 judge rendered judgment in favor of defendants and, believing that his finding is eminently correct, his judgment should be affirmed, and it is so ordered.


author: BELL, J.

text:
    No. 9289
    Orleans
    DE GRUY v. CIRE & DELHOMER
    (May 10, 1926. Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Evidence—Par. 52, 342.
    To recover, a plaintiff must make his claim certain. Where his evidence is negatived by that of defendant and surrounding circumstances of the case raise presumptions against him his claim will be denied.
    Appeal from Civil District Court, Parish of Orleans, Division “F”. Hon. Percy Saint, Judge.
    Action by Raoul De Gruy against Cire & Delhomer.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed.
    Legier & Gleason and D. Y. Doussan, of New Orleans, attorneys for plaintiff, appellant.
    L. W. Cockfield, of New Orleans, attorney for defendant, appellee.
   BELL, J.

A commercial partnership, composed of Edward Wunderlich and Raoul V. De Gruy, both of the city of New Orleans, owned and operated a chain - of retail drug stores, known as -Bijou Pharmacies Nos. 1, 2, 3, 4 and 5. On March 2, 1920, this copartnership sold by notarial act one of its drug stores, designated as “Bijou No. 5”, to defendants, members of a commercial partnership consisting of Elmore Cire and Charles Delhomer.

On April 23, 1921, more than a year after defendants purchased Store No. 5, the copartnership of Wunderlich & DeGruy having been dissolved, Wunderlich transferred to De Gruy, the present plaintiff, all of Wunderlich’s interest in Store No. 1. Before the defendants purchased Store No. 5 and before the dissolution of the copartnership of Wunderlich and De Gruy Store No. 1 was the central store, furnishing, from time to time, merchandise and drugs to its several chain drug stores, including Store No. 5.

It is alleged in plaintiff’s petition that, during the months of January and February, 1921, Store No. 5 became indebted to Store No. 1, under the system above noted, to the extent of $654.53; that defendants having purchased Store No. 5 and having assumed in the act of sale all of the outstanding .obligations of Store No. 5, including the aforesaid indebtedness to Store No. 1, defendants are now ‘obligated to plaintiff as the present and-sole owner of Store No. 1 in the amount claimed.

Defendants filed an exception of no cause of action, which, in our opinion, was properly overruled by the trial judge. Answering to the merits defendants admitted the purchase of Store No. 5 and further admitted that they had assumed all of its liabilities as known to them under the written terms of sale by which they acquired Store No. 5. Further answering, they denied that Store No. 5 was indebted in any manner to Store No. 1.

The original judgment in this matter, was of non-suit, but on plaintiff’s ex parte application for a new trial an order was rendered by the trial judge on February 1, 1923, reading as follows:

“Upon further consideration of this cause, I am of the opinion that my original judgment was contrary to the law and facts. For that reason a new trial is granted and the judgment is set aside.
“There shall be judgment in favor of plaintiff as prayed for and it is so ordered.”

On February 6, 1923, upon defendants moving and suggesting to the court that the foregoing order or judgment was irregular, another order was rendered reading as follows:

“Under a special act, both parties have a right to have additional testimony on a new trial; the order denying this right was error and the cause is ordered reopened for further testimony.”

On June 19, 1923, after a formal rehearing, but without taking-any other additional testimony than that adduced at the first trial, there was judgment for plaintiff in the amount claimed. From this judgment defendants have appealed.

The cause turns upon the correct interpretation to be given the final clause in the act of sale wherein Store No. 5 was conveyed to defendants. The clause in question reads as follows:

“The vendors furthermore transfer to the purchasers all the outstanding accounts due the Bijou Drug Store No. 5 and, in consideration thereof, said purchasers assume all the obligations of the said business an.d all as fully known to the parties hereto.”

In order to ascertain exactly what constituted “all the obligations of the said business”, which was assumed by the purchasers and declared in the act of sale to be “fully known to the parties”, it is necessary at the outset to consider the testimony of defendant, Elmore D. Cire, who was the manager of Store No. 5 up to the time of its sale to Cire & Delhomer. This witness testifies that the obligations or bills payable then amounted to $2921.25, all of which have been paid by defendants, and that this amount was known to all parties. He further testifies that the outstanding open accounts, or bills receivable, amount to $2714.89. This evidence is not in any manner rebutted. It is plain from these figures that the bills payable exceeded the open accounts by $206.36, and could not have included the claim now sued upon, but represented merchandise and drugs bought by Store ■ No. 5 from wholesale drug houses and other merchants.

We find from plaintiff’s own evidence that none of the goods now sued for were ever actually sold by Store No. 1 to Store No. 5, but were in fact only delivered or consigned to Store No. 5 to be sold for account of Store No. 1, upon a commission basis of 10 per cent, payable to the manager of Store No. 5, on the net profits realized from the entire operation of that store. There is nothing in the record to show that an accounting was demanded or given regarding the goods alleged to have been delivered to Store No. 5. But had all of this been done, the burden of proof was upon plaintiff to establish with certainty that -among the obligations assumed by defendants as purchasers of Store No. 5 was .the claim now asserted, and which, at best, could only have been a claim for accounting against Cire as manager of Store No. 5. Despite the general rule which excludes, in the absence of mistake or fraud, parol evidence tending to add to or vary the terms of the written contract, we think the trial judge properly admitted testimony tending to explain the last sentence in the above quoted paragraph of the-act of sale, to-wit: “All as fully known to the parties hereto”. To this end plaintiff was allowed to testify -that while no bills for the amount now claimed were ever submitted before the ’sale, nevertheless, on the day of the sale, in the notary’s office, and before signing - the act, plaintiff told his then partner, Wunderlich, about defendant’s unwillingness to assume the alleged claim and that Wunderlich said: “Either pay us the amount due No. 1 Store or you don’t get the store.” That defendants, after consulting together, then and there agreed to take the store and to pay the obligations due by it to Store No. 1.

Wunderlich’s testimony confirms De Gruy’s evidence as above noted.

On the other hand, both defendants in this case swear positively that no such conversation was had between the parties to the act at the time of its execution. Plaintiff failed to call the notary who prepared the act for him or the parties who witnessed its execution. It must be presumed that their evidence would have been prejudicial to his contention. In the absence of a preponderance of evidence that the obligation in question was assumed, plaintiff must be held to have failed in his proof to this effect. Consideration should be given to the fact that no definite demand was ever made nor was any bill ever rendered for the alleged indebtedness, until long after defendants’ purchase of Store No. 5. It might also be noted that suit was not entered in this matter until fourteen months after said purchase.

Considering the very doubtful and uncertain proof submitted by the plaintiff and further considering the circumstances • surrounding this case, we are forced to the conclusion that the claim now presented was not fully known to the parties at the time of the sale and was not intended by them to constitute part of the obligation of the business assumed by defendants as the purchasers of Store No. 5.

We are of the opinion that the judgment should have gone for defendants.

It is therefore ordered that the judgment appealed from be reversed and that there now be judgment in favor of defendants, Cire & Delhomer, dismissing plaintiff’s suit at his cost in both courts.