author: BELL, J.

text:
    No. 9927.
    Orleans
    GIRARD, Appellant, v. THE ILLINOIS CENTRAL RAILROAD COMPANY.
    (March 29, 1926. Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest—Evidence—Par. 351; Negligence—Par. 41, 42.
    In an action ex delicto, plaintiffs must prove with certainty and by a preponderance of evidence the acts of negligence charged against the defendant.
    2. Louisiana Digest—Appeal—Par. 625, 628.
    Where issues of fact are mainly involved and the verdict and judgment in the trial court are against the plaintiff, the appellate court will affirm the judgment, in the absence of manifest error.
    Appeal from the Civil District Court, Parish of Orleans, Hon. Sam A. LeBlanc, Judge.
    Action by Joseph Girard, and Adele Girard, his wife, against the Illinois Central Railroad Company, for damages for physical injuries.
    There was judgment for defendant, and plaintiff appealed.
    Judgment affirmed.
    H. W. Robinson, of New Orleans, attorney for plaintiff, appellant.
    Lemle, Moreno and Lemle, of New Orleans, attorneys for defendant, appellee.
   BELL, J.

This is a damage suit brought by plaintiffs against the Illinois Central Railroad Company for the death of their eight-year-old son, who, it is alleged, was afflicted by arrested mental development, causing him to have the intelligence of a child only half his age. The accident occurred on May 15, 1924, about 11:30 a. m. The defendant’s inbound passenger train, known as the Panama Limited, had just crossed the intersection of its roadway at Carrollton Avenue, in the City of New Orleans, when the boy, standing near or approaching the train from the left or Canal Street side of the track, was struck in the forehead by some part of the train and died a few hours later from his injuries. The acts of negligence charged in the petition are that the train was going at a rapid rate of speed, over 25 miles an hour, and that the fireman of the train failed to keep a proper lookout for the boy, who was on the fireman’s side of the train. The case was tried before a jury, which found for the defendant. Plaintiffs appeal from a judgment rejecting their claim.

We have given the closest scrutiny to that part of the record regarding the cause and circumstances of the accident, and we are unable to find any error in the conclusions reached in the lower court.

There appears to have been but three eye-witnesses to the accident; in fact, we entertain considerable doubt as to whether there were more than two of these witnesses who actually saw the boy at the moment he was truck by the train. Jules Calve, a colored man, one of the plaintiffs’ witnesses, testifies that he was operating a soft drink saloon on Short Street, within 25 or 30 feet from the lower or Canal Street side of defendant’s track. Prom photographs offered by plaintiffs, it appears that in front of this building or store in which Calve conducted his business, there is a cement sidewalk. The building faces the lake side of the city, that is to say, the direction from which the train was approaching, but as this witness swears that he was directly in front of his building, standing in the doorway and looking toward the train when the boy was struck, and as the photographs show that the place of the accident was near the switch located several feet beyond and in the rear of the building, we are unable to understand how this witness could have seen the accident. He further testifies that he saw the fireman of the train, while the engine was crossing Carrollton Avenue, a distance of over 250 feet from his store, in the act of firing his engine, and that he had a shovel in his hands. Witness qualifies this statement, on cross-examination, by saying that he only sáw the fireman put the shovel down and take his seat in the cab. Both the engineer and the fireman positively swear that no. firing was done within a mile or more before the train reached Carrollton Avenue.

We conclude, from Calve’s testimony, that the only material manner in which he was concerned at all with the accident was in lending assistance after the accident by carrying the boy to his parents’ home, located about a block and a half away.

John Smith, another witness for plaintiffs, testifies that he was standing on the sidewalk near Calve’s store, looking down the track in the direction of the Union Station; that the boy was down in a hob low at the foot of an embankment, which ran from the elevation of the track toward the side of Calve’s building, and that the embankment was some eight feet high. All of the witnesses agree as to the height of the embankment. Smith testifies positively that the boy was at least eight feet from the track, and that at the time he saw him the train was slowing up for the purpose of stopping at the Carrollton Avenue depot or passenger shed, located at the right and upper side of the track. He further states that the boy was chasing some goats down the track and on the lower side of the embankment, in the ditch or hollow referred to, but that he was not on the embankment, and that the goats suddenly darted in front of the train, the boy chasing them, and running so close to the train that the engine struck him in passing by. This witness ventures the opinion that the step from the engine cab hit the boy, while other testimony is to the effect that the boy was struck by the crossbeam directly over the pilot or “cow catcher” of the engine. Smith further states that when the boy left the hollow and started to run up the track, the train was right there. It is averred in the petition that the boy was playing with his pet goat, and all eye-witnesses to the accident agree that he was attempting to follow the goat, which ran across the track.

From the physical injuries which the boy suffered, we are convinced that while either standing near or running toward the train, which had partially passed him, the boy’s head came in contact with' some part of the engine, and that it was through his own carelessness which was the proximate cause of the accident.

The child’s mental condition relieves him of any contributory negligence, and none can be attributed to the parents, who are shown to have taken' reasonable care in guarding him from accidents which could have befallen him by virtue of his affliction already noted.

The sole question, therefore, for definite determination is whether the train was being operated carelessly and in such a manner as to fix the liability for the accident upon the defendant. Plaintiffs’ own witness, John Smith, testifies that he heard the train whistle blowing and the bell ringing as the train was crossing Carrollton Avenue, a distance óf more than a bldck from the point of accident; that the train was moving slowly, and that the fireman, seated in his cab, was looking ahead. Even Calve, the other witness for plaintiffs, swears that he heard the train whistle and that the bell was ringing as the train approached Carrollton Avenue.

Brady, the fireman of the train, testifies that the automatic bell was ringing and had been ringing for some time before the train passed Protection Levee, which is well on the lake side of Carrollton Avenue, and that the crossing whistles and station whistles were blown before the train crossed the avenue; that he was seated on the left side of his cab, looking ahead, and that he was not firing his engine; that he did not' see the boy -as his engine reached Carrollton Avenue, but saw him for the first time when the boy was near Calve’s store, down the embankment, close to the fence, and running alongside of the track with some goats; that the goats crossed the track and the boy continued running after them until he bumped into the side of the engine. The engineer of the train corroborates the fireman as to the signals which were given before reaching Carrollton Avenue, and both of these employees, as well as the conductor of the train, testify that the train was not going more than from four to six miles an hour.

We are convinced from all the circumstances of this case that the negligence with which the defendant has been charged is not substantiated by any evidence adduced on. behalf of the plaintiffs. The accident, in our opinion, was wholly unavoidable, and no negligence can be attributed to the defendant.

It is urged, on behalf of plaintiffs, that we apply to this case the doctrine announced in Ryan vs. L. R. & N. Company, 146 La. 39, 83 South. 371, where the Supreme Court said:

“It is the duty of trainmen to keep a reasonable lookout for children, especially in a city, and failure to do so constitutes negligence. Trainmen have no right to assume that a child of tender years, running toward the track, will stop before crossing.”

We see no application of the facts in that case to those now under consideration. In the Ryan case, the defendant company was operating a train made up of four tank cars and two coal cars ahead of the engine, with five passenger cars behind the engine; the train was being operated across one of the principal streets in the City of Baton Rouge, and the flagman ahead of the train, who had seen the injured child with other playmates crossing and recrossing the track on bicycles before the approach of the train, failed to caution the children or to flag the train, and this flagman, as an employee, was himself shown to have been an epileptic.

It is plain from the facts in the instant case that irrespective of the speed of the train, in no manner shown to have been excessive, the accident could not be attributed to this fact.

We find no error in the judgment of the trial court, and same should be affirmed, at plaintiffs’ cost, in both courts.


source: Caselaw Access Project

license: Public Domain

text:
    No. 10,357.
    Orleans
    HARVEY, Appellant, v. ARONSON
    (March 29, 1926. Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest—Brokers—Par. 15.
    Where a broker has failed to effect a sale of real estate within the time and upon the terms fixed by the owner, the latter is not responsible for commissions.
    Appeal from Section “B”, First City Court, City of New Orleans, Hon. Val J. Stentz, Judge.
    Action by Stanley- A. Harvey against Laz Aronson for a broker’s commission.
    There was judgment for defendant, and plaintiff appealed.
    Judgment affirmed.
    J. Warren Woodville, of New Orleans, attorney for plaintiff, appellant.
    A. D. Danziger, of New Orleans, attorney for defendant, appellee.
   BELL, J.

Plaintiff claims a real estate broker’s commission for having first procured a purchaser of defendant’s property who ultimately bought, not through plaintiff, but through another agent with whom the owner had also listed his property. It does not appear from the record that the owner, made defendant herein, had any exclusive contract with either agent. There was judgment for defendant, and plaintiff has appealed.

o The allegations of the petition are to the effect that the property involved was listed with plaintiff by a previous owner; that plaintiff secured a prospective purchaser who offered to buy at $3,400.00; that upon submitting this offer plaintiff learned from his client that he was no longer the owner, and that the property had been sold to the present defendant; that plaintiff thereupon submitted to and discussed the said offer with defendant as the new owner of the property, and that defendant refused the price offered, to-wit, $3,400.00, but authorized plaintiff, in writing, on April 30, 1925, to sell the property for $3,850.00, the said authority to hold good until May 2, 1925, at 6:00 p. m.; that plaintiff submitted, the property at the higher price to several parties, and to the party who had first offered to purchase at $3,400.00; that defendant, making use of the knowledge gained from plaintiff concerning the identity of the party offering the lower price, subsequently sold to this party at the price of $3,750.00, thereby wilfully depriving plaintiff of his commission, which is now due him.

Defendant answers by denying that plaintiff ever disclosed to him the name of any prospective purchaser or the name of the person who had offered to purchase at $3,400.00, and that when he ultimately sold the property it was sold through another agent, subsequent to the expiration of plaintiff’s contract, and to one with whom he did not show that plaintiff had ever negotiated, concerning the property. He admits employing plaintiff under a written contract, the material provisions of which read as follows:

“New Orleans, La.,
“April 30, 1925.
“I am the owner of the above property and agree to sell same as above offer. I agree to pay four per cent (4%) commission as above, as per my contract. Should I fail to pay same and the services of 'an attorney are required, I bind myself to pay his fees, which are fixed at 25%. This offer irrevocably holds good until May 2, 1925, at 6 p. m.
“(Signed.) LAZ. ARONSON.”

The evidence is convincing that the ultimate purchaser of defendant’s property was the same person on whose behalf plaintiff submitted to defendant the $3,400.00 offered. But we are satisfied from plaintiff’s own admission. and from defendant’s testimony that the identity of this person was never disclosed to defendant. As neither broker acting for defendant had the exclusive agency for the sale of the property, the commission was properly and justly paid to him who consummated the sale. Plaintiff has failed to produce any evidence to prove that defendant’s offer to sell at $3,850 was accepted .by anyone to whom he submitted the offer or that any counter offer to purchase at the ultimate price of $3,750.00 was ever submitted by plaintiff to defendant, within the life of the contract above quoted. The burden of proof in this respect was entirely upon the plaintiff. The trial judge who heard and saw the witnesses has decided this case, involving only issues of fact, against the plaintiff. We find nothing in the record to justify a reversal of the judgment.

■We are urged, on behalf of the plaintiff, to follow the ruling made in Harvey vs. Winters, 1 La. App. 383. In the cited case, the identity of the ultimate purchaser had been clearly disclosed by the broker to the owner of the property, who subsequently dealt directly with the purchaser to the broker’s prejudice. No such facts have been established in the instant case.

We find no error in the judgment of the trial court. It is therefore affirmed.


text:
    No. 10,370.
    Orleans
    CUMBERLAND TELEPHONE AND TELEGRAPH CO. v. HERCULES COMPANY, LTD.
    (March 29, 1926. Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest—Pleading—Par. 112, 119.
    Erroneous averments as to the exact locus in quo cannot bar plaintiff’s right to recover damages" where defendant’s acts of negligence are otherwise established.
    2. Louisiana Digest—Appeal—Par. 729, 733.
    In an action ex delicto, when sufficient evidence has not been adduced in the trial court as to quantum of damages claimed, and where issues of fact appear to have been erroneously resolved against the plaintiff, the case will be remanded for a new trial.
    Appeal from the First City Court, Section “C”, Hon. Wm. Y. Seeber, Judge.
    Action • by Cumberland Telephone and Telegraph Company against Hercules Company, Ltd., for damages.
    There was judgment for defendant, and plaintiff appealed.
    Judgment set aside and case remanded.
    Alex W. Swords, of New Orleans, attorney for plaintiff, appellant.
    R. C. Davey, of New Orleans, attorney for defendant, appellee.
   BELL, J.

Plaintiff sues defendant for damaging its cable while doing subsurface drainage work “between Ereret and South Robinson Streets, on Audubon Street”, in the City of New Orleans. The act of negligence claimed in the petition is that defendant, after exposing plaintiff’s cable (a necessary incident to the performance of its drainage contract with the City of New Orleans), failed to notify plaintiff or give it an opportunity to properly and permanently replace its cable, and that notwithstanding plaintiff’s request to be so notified defendant negligently backfilled the trench in which the cable was located, causing the cable to buckle, and requiring plaintiff to re-excavate and to properly replace its cable at an expense of $119.65. Defendant answers by denying that any work was done by it at the locality designated in the petition, but admits that it was engaged in completing a subsurface contract with the City of New Orleans between St. Charles Avenue and Preret Street. It fails, however, to affirm or deny that it was doing any work on Audubon Street, but admits that it did uncover about eighty feet of plaintiff’s cable. It denies that in backfilling the trench it was in any manner negligent or that it caused damage of any sort to plaintiff’s cable.

The evidence adduced by defendant’s own witnesses establishes conclusively that the backfilling of the trench was done without any notice to the plaintiff company, and by unskilled labor employed by defendant. The trial judge seems to have dismissed plaintiff’s suit solely upon the fact that defendant, at the trial of the case, proved that it had never been engaged in any subsurface work on Audubon Street between Preret and South Robinson Streets, and hence could not have caused the damage to plaintiff’s cable lying within-these intersecting streets. It is true that the averments of plaintiff’s petition were clearly erroneous, as to the exact locus in quo, for the evidence shows that the cable was exposed at a point on Audubon Street, not between Preret and South Robinson Streets, but between Preret and St. Charles Avenue. There is no room for doubt, however, that the particular damage detailed in the petition was caused by the failure of defendant, who admits exposing the cable, to notify plaintiff in time to allow plaintiff opportunity for proper relaying of the cable. Defendant was as much obligated to plaintiff in this respect at the end of its subsurface work as' it was in the beginning of its work, which caused the cable to be first exposed. It is conclusively shown that the President and General Manager of the defendant company, as well as its inspector, was advised of the fact that plaintiff’s cable had been temporarily suspended in the trench, awaiting completion of the subsurface drainage, and that it required skilled labor to relay same before backfilling. It was therefore defendant’s duty, under the law, to give plaintiff ample notice and full opportunity to relay the cable in workmanlike manner. It is admitted that this opportunity was not given by defendant to the plaintiff. Sic utere tuo ut alienum non laedas.

Plaintiff appears to have been reimbursed for all actual damages to the cable itself, and that this damage has been paid by another tort feasor, who cut the cable at a point beyond that at which the excavations in question were being made. This fact led to the discovery that defendant’s backfilling of the trench had caused the cable to buckle at the point first exposed. It follows, therefore, that the measure of damages caused by defendant’s negligence can only be such expense as that to which the plaintiff was put in hiring ordinary labor to dig and refill some eighty feet of trench work, in which the new cable was ultimately and properly replaced.

For the reasons stated, we are of the opinion that the judgment appealed from should be set aside, and the case remanded for further trial in conformity with the views herein expressed.

It is ordered that defendant pay the cost of appeal, and that all other costs await the final determination of this matter.

Judgment set aside and case remanded.


author: WESTERFIELD, J.

text:
    No. 9166.
    Orleans
    CAGE COTTON COMPANY, Appellant, v. POSTAL TELEGRAPH & CABLE COMPANY.
    (February 15, 1926. Opinion and Decree.)
    (March 15, 1926. Rehearing Refused.)

      (Syllabus by the Court.)

    1. Louisiana Digest—Action—Par. 20.
    Where plaintiff sues a telegraph company for damages alleged- to have been caused by the erroneous delivery on the 20th of September of a copy of a message sent to and received by plaintiff on the 18th of September, without indicating that the second message was a duplicate of the first, his action is ex delicto and not ex contractu.
    Appeal from the Civil District Court for the Parish of Orleans, Division “A”, Hon. H. C. Cage, Judge.
    Action by Cage Cotton Company against Postal Telegraph & Cable Company for damages.
    There was judgment for defendant, and plaintiff appealed.
    Judgment affirmed.
    Monroe and Lemann, Walter J. Suthon, M. W. Heard, of New Orleans, attorneys for plaintiff, appellant.
    Denegre, Leovy and Chaffe, of New Orleans, attorneys for defendant, appellee.
   OPINION.

WESTERFIELD, J.

This is an action for damages in the sum of $1,400.00 growing out of the delivery of a telegram to plaintiff under rather unusual conditions. Defendant filed exceptions of vagueness and of no cause of action, which were overruled, and subsequently an exception of prescription of one year was maintained and plaintiff’s suit dismissed. From this judgment plaintiff has appealed.

Defendant relies with equal confidence upon both exceptions. We will consider the question of prescription. This exception is based upon the contention that plaintiff’s claim, if any he has, arises ex delicto and not ex contractu.

No evidence was taken in the case and the exception of prescription filed, in limine, was maintained as against the facts as alleged in the petition. The petition alleges that on September 18, 1920, plaintiff wired from Houston to Fenner & Beane, a brokerage firm, in New Orleans, instructing them to sell for its account 10,000 bushels of corn for December delivery at $1.09 per bushel; that Fenner & Beane on said day were only able to sell 5,000 bushels of corn in execution of the order, as follows,

“Sold 5 Dec. corn 109 working”,

under date of September 18, 1920, which telegram was delivered to plaintiff on the same day; that on September 20, 1920, another telegram reading the same way, but dated September 20, was delivered to plaintiff at Houston; that the two telegrams were understood by plaintiff to mean that Fenner & Beane had completed the order of plaintiff by buying for plaintiff’s account two installments of 5,000 bushels each, but that as a matter of fact the telegram delivered to plaintiff on the 20th had not been sent by Fenner & Beane, of New Orleans, but was in reality a duplicate message of the 18th, though there was nothing about it to indicate that it was anything but an original message; that plaintiff only discovered the facts on October 21, 1920, and by that time the corn market was much lower, and plaintiff lost $1,400.00 by reason of defendant’s mistake.

Plaintiff insists that his action is ex contractu. He cites La Grange vs. Southwestern Telegraph Company, 25 La. Ann. 383, from which he quotes:

“The first question is as to the prescription on one year, interposed by defendants.

“The action, in our opinion, arises ex contractu and not ex delicto. The defendants hold themselves out to the public as being ready to transmit for hire messages for individuals and to deliver them faithfully to others such messages as are intrusted to them. They make themselves the agents of both the sender and receiver, and their failure in their assumed duties creates an obligation in favor of the one who may be thereby injured.”

We are also referred to Mooprio Forgan and Company vs. Western Union Telegraph Company, 5 Court of App. 79, where the following appears:

“To the proposition urged by counsel that the action is one ex delicto, we need but refer to the case of DeGrange vs. Southwestern Telegraph Company, 25th Annual, 383-4, where the Court holds that a telegraph company is both the agent of the sender and receiver of a message, and the action arises ex cohtructu and not ex delicto.”

And 37th Cyc. 1711, where it is said:

“Actions against telegraph companies for breaches of duty in regard to the transmission and delivery of messages are regarded as arising ex contructu and are governed by the statutes of limitation applicable to actions upon contracts.”

And to Case vs. Bank, 100 U. S. 446, where the LaGrange case is quoted with approval.

We have examined these authorities and others, which, with characteristic zeal counsel has pressed upon our attention, and we will observe, with respect to all of them, that in our opinion they are not apposite here.

The fault complained of in the case at bar was not a breach of contract. It is not even a breach of contract by tortious act, and is not therefore within the dictum of the court in the case of Illinois Central Railroad Company vs. New Orleans Terminal Co., 143 La. 467, 78 South. 738, where it was held:

“There is no doubt that the action of the defendant, through its said employees in running this other train into that of the plaintiff, amounted to a tort, but there is no reason why the breach of a contract by means of a tort should not furnish ground for an action for breach of contract. A contractor cannot liberate himself from his contract, or, in other words, destroy its obligation, by committing a tort; and if the obligation is not destroyed, but remains in full force, and the contract is breached, there is evidently a ground of action on the contract.”

The contract between plaintiff and defendant was fully performed when the first message was delivered correctly. The second message had not been sent by Fenner and Beane or any one else. The fact that it was a copy of the telegram of the 18th, which was the subject of a contract, can not alter the situation. Let us assume, as we can reasonably do, that Fenner & Beane sent exactly the same message to another party in Houston on the same day, for example, the Houston Cotton Company, and that some employee of defendant either in New Orleans or in Houston copied that message and addressed it to the Cage Cotton Company, would there be any contractural relation between the Cage Cotton Company and the Telegraph Company, and would the Cage Cotton Company have an action ex contructu against the telegraph company? To ash the question is to answer it. However deceiving and misleading the second telegram was, and however culpable the telegraph company’s employee’s fault, and whatever may have been the telegraph company’s responsibility to plaintiff, plaintiff’s action is ex delicto and not ex contractu, and the prescription of one year must be maintained.

For the reasons assigned the judgment appealed from is affirmed.


text:
    No. 10,112
    Orleans
    GALLMAN v. YOUNG, Appellant
    (February 15, 1926. Opinion and Decree)
    (March 1, 1926. Rehearing Refused)
    (March 29, 1926. Writ of Certiorari and Review denied by the Supreme Court.)

      (Syllabus by the Court.)

    1. Louisiana Digest—Landlord and Tenant —Par. 66.
    A lessor, may, by contract, shift from himself to his lessee the duty imposed upon him by the .general law of seeing to the safety of the building owned by him, and may thus absolve himself of all duty toward others on the premises, through license or invitation granted them by the lessee.
    2. Louisiana Digest—Landlord and Tenant —Par. 66.
    A lesee cannot convey to others on the premises leased by him a greater right than he himself possesses.
    (Civil Code Art. 2695. Editor’s note.)
    Appeal from the Civil District Court, Parish of Orleans, Division “E”. Hon. William H. Byrnes, Jr., Judge.
    Action by Mrs. Amelai Gallman, widow of Louis A. Klein against Mrs. Wilhelmina Young, wife of Jacob Young, and Mr. Jacob Young for damages for physical injuries. Judgment for plaintiff and defendant appealed.
    Judgment reversed.
    Maurice Rooney, Eugene Stanley and M. C. Scharff, of New Orleans, attorneys for plaintiff, appellee.
    Dart and Dart, of New Orleans, attorneys for defendant, appellant.
   BELL, J.

Plaintiff sues defendants in damages for the sum of $10,000.00 for physical injuries which she claims to have sustained by falling down defective steps attached to property belonging to the defendants. It is alleged in the petition that plaintiff was a sub-tenant of one Mrs. Thomas Agnew, the lessee of defendants’ property; that under a monthly rental she was occupying a rear room on the premises, and while using the steps leading therefrom into the yard, the lowest tread of the steps, which was in a rotten and dangerous condition, callapsed under her weight, causing her to fall and to sustain severe and permanent injury to her right hip. It is also alleged that long prior to the time petitioner moved into the premises defendants were notified and informed of the defective and rotten condition of the steps.

Defendants admit that at the time of the accident the property was leased to Mrs. Agnew. In all other respects, the allegations of the petition are denied. The answer concludes with the following special defense:

“Respondents! further aver and this only in the alternative, and should the court find that the plaintiff has suffered injuries from an accident occurring on respondent’s premises that they are not liable to this plaintiff for anything because as alleged by plaintiff, your respondents entered into a written lease with Mrs. Agnew, copy of which is attached hereto whereby the dwelling 1029 Jackson Avenue was leased to the said Mrs. Agnew for the term of twelve months, commencing on the first day of October, 1922, and ending on the last day of September, 1923, at the rate of $75.00 per month, payable at the end of each month. The said Mrs. Agnew acknowledging that she received the premises and appurtenances in good condition and she obligated herself to so keep .and return the same to respondents at the termination of the lease. She furthermore stipulated your respondents would not be liable for damages caused by vices or defects of the leased property except in the case of positive neglect to have the repairs made after reasonable time and after notice given. That she also bound and obligated herself, as shown by the lease, not to sub-lease the premises in whole or in part.
“That the plaintiff having as she alleges sub-leased a part of the premises to Mrs. Agnew in violation of the prohibition of sub-leasing, was a trespasser on the premises so far as respondents are concerned and have no right as to them. Respondents further show that if plaintiff did acquire rights as a sub-tenant, whatever rights she had therein are governed by the same conditions and stipulations set out in the lease aforesaid. That is to say, that your respondents are not liable for any damages plaintiff may have suffered by reason of any defects or vices of the premises save those due from positive neglect. Respondents show that this property has never been neglected and always kept in good condition. That respondents were under no obligation to her to repair the property and ■ if she was injured in the manner stated, she herself brought on the injury by an utter disregard of her own safety and of the obligations assumed under her said lease.”

There was judgment for plaintiff in the sum of $5,000.00. Defendants have appealed and plaintiff, answering the appeal, prays for the increase in the quantum allowed to that originally claimed.

The learned trial judge concluded—we think, correctly—that the plaintiff was not a sub-tenant, but simply a roomer or lodger of the tenant of the property at the time of the accident. (Jackson vs. Matthews, 9273 Orl. App.; Black vs. Ocean Accident Insurance Co., 12 Ct. of App. 284.)

The evidence in the case also justified the findings of fact by the court a qua, to the effect that the plaintiff was injured as claimed, and that the accident was caused by the defective conditions of the steps belonging to and forming part of defendants’ property. We further find that defendants were wholly ignorant of these conditions and that no notice thereof was ever sent to or given defendants by their tenant, Mrs. Agnew. The allegations in plaintiff’s petition to the contrary are unsupported by any proof, besides, there is no allegation that such notice was given by plaintiff to defendants. Ciaccio vs. Carbajal, 142 La. 125, 76 South. 583.

Noting, as we have, our conclusions as to the facts of this case, and further considering the total absence of any contrac tural relations between the plaintiff and defendants, there remains for determina tion, as the important issue in this case, the following question of law:

Can a lessor, by contract, shift from him self to his lessee, the primary obligation imposed on the lessor by law of seeing tc the safety of his building, so as to absolve himself from all responsibility to others who derive through his lessee the right tc be on the leased premises?

This court has already had occasion tc answer the foregoing question in the affirmative. In Taul vs. Graffato, 13 Ct. of App., 338, a tenant’s mother-in-law, injured while visiting him, sued the owner of the premises who had leased to the tenant under a written contract of lease, almost identical in terminology with that now under consideration. Recovery was denied the plaintiff, who, like the present plaintiff, was shown to have had no contractual relations whatever with the owner of the building. Referring to the jurisprudence of our Supreme Court, we note, ■ in the Taul case, as we do now (ten years later), our inability to find any case in which the plaintiff, other than a lessee, was suing the owner (lessor) of property leased under written contract, the terms of which imposed upon the lessee the duty of making the repairs.

There can be'no question as to the primary obligation imposed by specific provisions of the Civil Code upon the owner of property to keep it in repair, so that neither the building nor materials composing it may injure others. This is so whether the building be leased or not. In McConnell vs. Lemley, 48 La. Ann. 1438, 20 South. 887, the court declared this obligation or duty on the part of the owner to exist only- in respect to neighbors and passersby. This ruling obtained for over eight years, when, in Schoppel vs. Daly, 112 La. 291, 36 South. 322, the restriction thus made was overruled, and the duty of the owner to keep his building safe was extended so as to protect those rightfully within as well as those without the' building. This we understand to be still the law, repeatedly recognized in the following decisions:

Cristadora vs. Von Behren’s Heirs, 119 La. 1025, 44 South. 852.

Boutee vs. New Orleans Terminal Co., 139 La. 946, 72 South. 513.

Wise vs. Lavigne, 138 La. 218, 70 South. 103.

Allain vs. Frigola, 140 La. 982, 74 South. 404.

Ciacio vs. Carbajal, 143 La. 125, idem 145 La. 869, 83 South. 73.

Thompson vs. Cook, 147 La. 922, 86 South. 332.

Harris vs. Tennis, 149 La. 295, 88 South. 912.

Breen vs. Walters, 150 La. 578, 91 South. 50.

Davis vs. Hochfelder, 153 La. 183, 95 South. 598.

A like ruling was made in Bogel vs. Puchoff, 9339 Orl. App. (Book 65), where this court held that although the evidence in the case was not sufficient to establish the existence of such a lease as is now under consideration, a person proving right through a lessee to be on leased premises, might recover from the owner thereof for injuries sustained because of the owner’s negligence in failing to keep his building in proper repair. Our ruling in the case was predicated upon an appreciation of the action as one solely ex delicto, wherein liability was based upon neglect on the part of the owner to observe the general duty imposed on him by law—not by contract—toward anyone found rightfully on his premises. See also Pierre vs. Levy, 9143 Orl. App.

In the present case, it is strongly contended for plaintiff that since the decision rendered in Badie vs. American Brewing Co., 142 La. 854, 77 South. 768, this court can no longer adhere to its ruling in the case of Taul Vs. Graffato. In the Badie case, the plaintiff, while visiting a friend to whom a tenant of the building, named Harold, had rented an upstairs front room, went out of the room upon a gallery, and while leaning against the dilapidated railing, thereof, fell to the street, sustaining injuries for which she sought and obtained recovery by action ex delicto from the owner of the building who had leased the property to Harold. It does not appear from the court’s statement of the facts in the case that the lease with Harold shifted to him the lessor’s responsibility for the condition of the safety of the building. We assume that no such stipulation was made. We are unable to find any language used in the Badie case that puts that decision at variance with or contrary to what was held by this court in the Taul case, except the following:

“The owner of a building cannot, by any contract or agreement' with the lessee, tenant or sub-tenant, absolve himself from responsibility to othérs for injuries resulting from a failure to maintain the leased premises in a safe condition. See Schoppel vs. Daly, 112 La. 201, 36 South. 322; Cristadora vs. Von Behren’s Heirs, 119 La. 1025, 44 South. 852, 17 L. R. A. (N. S.) 1161; Wise vs. Lavigne, 138 La. 218, 70 South. 103.”

Our appreciation of the facts and of the law as expounded in the Badie case leads us to conclude that the above quoted excerpt from the court’s opinion was but obit.er. It should be noted that in support of the language there used, the court cited three of its former decisions. In none of these cited cases, nor in the Badie case, was a contract of lease involved such as is now before us or as existed in the Taul case. In fact, it is interesting to observe that the court, in the cited case of Cristadora vs. Von Behren’s Heirs, used the following language as expressive of its views concerning what the law would be where responsibility was shifted by express contract of lease from lessor to lessee. The court there said:

“It may be that, with regard to all those who derive through the lessee the right to be on the leased premises, the lessor may, by contract, shift from himself to the lessee the duty of seeing to the safety of the building, and may in that way absolve himself from all duty toward the guests of the lessee; but so long as he does not do this, but retains to himself the duty of seeing td the safety of the house, he plainly and manifestly owes that duty as much to those who are rightfully in the house as to those who happen to be passing by it.”

It is also interesting to note that in Clay vs. Parsons, 144 La. 989, 81 South. 597, where recovery was denied the plaintiff who was injured by the breaking of a plank in the porch of a residence owned by the defendant and occupied by plaintiff and her husband, the learned jurist (now Chief Justice) who was the organ of the court in the Clay case, as well as in the Badie case, declared the opinion of the court in the Clay case to be as follows:

“Our opinion is, that the provisions of the Civil Code that hold the owner of a building answerable for an injury that may befall another because of the landlord’s neglect to make repairs, are subject to the general law of negligence, and that the obligation thus imposed by law upon the landlord may be dispensed with, not only by a lessee as a condition of his contract of lease, but by anyone desiring to occupy the house and willing to assume the risk.”

Prom the quotation just made, it again appears that the court intimated, despite what was said in the Badie case—that a lessor, by a specific contract with his lessee, could well absolve himself of responsibility otherwise imposed upon him by law. In Ciaeio vs. Carbajal, 145 La. 884-885, 83 South. 73, the court, discussing its former rulings in Schoppel vs. Daly and in Cristadora vs. Von Behren’s Heirs, again seems to have intimated its approval of the law expressed by us in the Taul case. It was there said (possibly by way of obiter, considering the facts of the case):

“It will be observed that, in both of the cases cited, emphasis is placed on the fact that the plaintiffs were lawfully and rightfully on the leased premises, and their right to be there is traced, in each case, to the contract whereby the lessor acquired the right to occupy the premises and to open them to his or her friends and guests. There is however, a maxim of law and of common sense to the effect that no one can convey to another a greater right than he himself possesses; from which it would seem to follow that if, by contract, the lessees in the cited cases had bound themselves, or if by reason of the law, as applied to their own acts or omissions, they had become responsible for the safety of the buildings occupied by them, and had discharged their lessors from all liability to them in that respect, they could not, by entertaining their guests, confer upon them the right to recover, from their lessors, damages which they» themselves could not have recovered for personal injuries resulting from their failure to comply with their obligations to keep the buildings safe. In other words, whatever may be the right of a person with respect to an injury sustained from a falling wall or cornice, while walking on a public highway, it is difficult to perceive how a third person, entering leased premises under and by virtue of the right, and the invitation, of the lessees, can acquire any greater rights against the owner than the lessee possesses. Any limitation, whether by contract or law, upon the right of the lessee with respect to the use of such premises, must necessarily extend to those who claim under him. If a contract or lease, or the law, declares that certain leased premises shall not be used for a particular purpose, they can. no more be so used by the family or friends of the lessee claiming through him, than by the lessee himself, and so, if the contract of lease, or the law, declares that the lessor shall not be liable for injuries sustained by the lessee by reason of the non-repair of the leased premises, the family or friends of the lessee, receiving injuries by reason of such non-repair, while on the premises in the right of the lessee, cannot recover that which he would have no right to recover.”

In Bianchi vs. Del Valle, 117 La. 587, 42 South. 148, the court held that the wife of the lessee could not recover when it was the duty of her husband, under the law, to make repairs, on the theory that she derived her right to be on the premises from the lease, and that she was bound by its terms. In the present case, as in the Taul case, a like principle applies to one renting from the lessee as a roomer or on the premises as a visitor or guest.

For the foregoing reasons, we are' of the opinion that the judgment appealed from is erroneous, and should be reversed.

It is therefore ordered, adjudged and decreed, that the judgment appealed from be reversed and set aside, and that there now be judgment in favor of defendants, Mrs. Wilhelmina Young, wife of Jacob Young, and Jacob Young, dismissing plaintiff’s demand at her cost in both courts.


author: WESTERPIELD, J.

text:
    No. 9890
    Orleans
    BROWN, Appellant, v. TRANCHINA
    (March. 1, 1926. Opinion and Decree)

      (Syllabus by the Court.)

    1. Louisiana Digest—Master and Servant Par. 156, 157.
    The driver of a mule and wagon engaged in hauling sand and manure is not engaged in “work in any of the building or metal trades in the erection, extension, repairs, etc., of building or structural appurtenances” under Sec. 1, paragraph 2 of the Compensation Law declaring such employment hazardous.
    Appeal from Civil District Court, Division “E”. Hon. William H. Byrnes, Judge.
    Action by Eugene Brown, et al., against Prank Tranchina for compensation under the Workmen’s Compensation Law, Act 20 of 1914.
    There was judgment for defendant and plaintiffs appealed.
    Judgment affirmed.
    Prank S. Norman, of New Orleans, attorney for plaintiffs, appellants.
    W. W. Wright and John D. Nix, Jr., of New Orleans, attorneys for defendant, appellee.
   WESTERPIELD, J.

This is a suit by dependents under the Compensation Law for compensation for the death of one Manuel Brown, a teamster, due to his having been kicked by a mule.

Prom a judgment in defendant’s favor, plaintiffs have appealed.

The case is defended upon the ground that Brown was not in defendant’s employ at the time of the accident, a question of fact, and upon the further ground that Brown’s occupation was not hazardous under paragraph 2, section 1 of the Employers’ Liability Act, a question of law.

The view we take of the matter renders it unnecessary to consider the question of fact, for we are convinced that as a matter of law, Brown’s occupation was not hazardous. It is not contended that there was any agreement between employer and employee or any decree of any court holding and providing that Brown’s occupation be considered hazardous, as provided by paragraph 3 of section 1 of the law, consequently, Brown’s employment must be comprehended by the terms of paragraph 2 of section 1, or no recovery can be had. Benjamin vs. Standard Accident Co., 152 La. 875, 94 South. 428.

This paragraph declares the following occupations to be hazardous:

“The operation, construction, repair, removal, maintenance and demolition of railways, mills, foundries, etc. * * * rigging or coaling of vessels, loading or unloading of vessels, logging and lumbering; storing ice, paving with asphalt or other molten material, excavating or grading with power machinery, or with the use of an explosive, working in compressed air, dredging, pile driving, boring, moving safes, chimney sweeping. The construction, installation, operation, etc., of wires, cables, switch boards or apparatus charged with electrical current. Work in any of the building or metal trades in the erection, extension, repair, etc., of building or structural appurtenances. Any occupation entailing the manufacture, ptc., care of or use of or regular proximity to dangerous quantities of gunpowder, dynamite, nitro-glycerine and other like dangerous explosives. The installation, repair, erection, removal or operation of boilers, furnaces, engines and other forms of machinery.”

Plaintiffs’ counsel contends that Brown, who was employed to drive a mule hitched to a wagon of manure and sometimes of sand and to load and unload the wagon, was within the protection given by the quoted section to employees engaged in “work in any of the building or metal trades, extension, repair, etc., of building or structural appurtenances”.

' There is nothing in the record to indicate that the deceased was in any way connected with the building trade or in the extension or repair of buildings. At the time of the accident he was not driving the mule but riding on the driver’s seat along side of the driver and engaged in whipping the mule with the end of the reins.

The judgment appealed from must be and it is hereby affirmed.


text:
    No. 9666
    Orleans
    LAGUENS v. MASERA, Appellant
    (February 15, 1926, Opinion and Decree)

      (Syllabus by thé Court.) '

    1. Louisiana Digest—Automobiles—Par. 7, 7 (b).
    A pedestrian in the public highway at night, on the outskirts of a city where automobiles and other vehicles travel almost exclusively, is in a position of danger calling for the exercise of extreme precaution. Under such circumstances he should look with diligence for vehicles approaching before or behind him.
    2. Louisiana Digest—Automobiles—Par. 8.
    When a preponderance of evidence indi- ' cates that he was struck by an automobile while lying in the roadway, where the vehicle, properly lighted, was properly traveling, and that the driver exerted every possible effort to avoid the accident, recovery will be denied.
    Appeal from the Civil District Court, Parish of Orleans, Division “B”. Hon. M. M. Boatner, Judge.
    Action by John Leon Laguens against Joseph Masera for damages for physical injuries.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed.
    WESTERFIELD, J. Dissents.
    Harry Mooney and John C. Foster, of New Orleans, attorneys for plaintiff, appellee.
    Emile Pomes, of New Orleans, attorney for defendant, appellant.
   OPINION

BELL, J.

This is a damage suit for physical injuries which plaintiff claims to have sustained when struck and run over by defendant’s automobile on the West End road, within the city limits of New Orleans. There was judgment for plaintiff for $3500.00. Defendant has appealed.

The event which led to the unfortunate occurrence finds its origin in one of the so-called soft drink saloons of New Orleans, situated at the corner of Toledano and Magazine streets. It was there that plaintiff and several other young men were gathered on the night of the accident. Plaintiff testifies that he was there with friends from about eight to eleven o’clock in the. evening, and that at the latter hour, other friends, including the proprietor of the saloon, joined them in’ the neighborhood, making a party of eight; that a pleasure ride was suggested, and that plaintiff, with seven other friends, took a five-passenger automobile and proceeded toward Bucktown, a suburban resort. A punctured tire, which for some reason they were unable to repair, caused them to wend their way on an untired rim from Canal Boulevard via Spanish Port road to Bucktown, and thence toward the city again by way of the West End road. Plaintiff, meanwhile, was seated with two other passengers on the front seat of the automobile, while the other five passengers managed in some way to crowd into the back of the car. After traveling about a mile and a half on the West End road, which is a driveway alongside of the New Basin Canal, at the hour of 2:15 a.m., plaintiff, who was holding with his right hand the punctured tire, while it rested on the right running board of the car, suddenly lost his grip on the tire, causing it to fall out in the roadway. He testifies that the car was stopped, and that he alighted therefrom and walked a short distance directly behind the car on the upper side of the road in search of the tire, and that he remembered nothing thereafter until he regained consciousness a week or ten days later at the hospital. He alleges in his petition that he was in the act of stooping to pick up the tire when he was suddenly struck from the rear by defendant’s automobile, going in the opposite direction toward West End. There is no proof in the record that he was in such a position when struck, nor has he testified in any manner as to just where he located the lost tire, whether directly behind the car in which he -was riding, that is, on the upper side of the road, or whether on the lower or New Basin side, reserved for west-going traffic. His failure to establish this important fact raises the presumption that he wandered in search of the tire into that part of the road where he should have exercised unusual precaution against danger from any oncoming vehicles on the right of the road. Several witnesses for plaintiff testify that the tire was found close to plaintiff’s body, and under defendant’s car where plaintiff was also lying after the accident. All defendant’s witnesses, himself included, testify that they never saw any tire, but that plaintiff’s hat was found by them some twenty-five feet away from plaintiff’s body, and that his eyeglasses were found some eight feet beyond and directly in front of defendant’s car.

We note in the record a typewritten statement made and signed at the Tenth Precinct Police Station on the night of the accident. This statement closes with the following words: “Prom all accounts, the accident was unavoidable.” This, among other things, was made by one of plaintiff's friends and witnesses who was present at the scene of the accident. Ttro other friends and witnesses for plaintiff, also shown hy the record to have been with plaintiff when hurt, likewise signed this police record with the following superscription: “We, the undersigned, do hereby corroborate this statement as true and correct.”

After a most careful scrutiny of the entire record before us, we are inclined to add our endorsement to the above declaration insofar as it may be applied to the acts of the defendant, who appears from the evidence to have been entirely free from negligence, and to have exerted every possible effort to avoid the accident.

Defendant testifies that on the night in question he closed his restaurant in the city of New Orleans at .about 1:45 a.m., and in company with his cashier and another man drove his automobile out the West End road for the purpose of collecting a debt due him by one of the roadhouse keepers at West End; that he was driving his car in about the middle of the road, and at a speed of from fifteen to twenty miles an hour; that when seeing plaintiff’s car parked with headlights burning, which had stopped on the upper side of the road to defendant’s left, he slackened his speed slightly while passing plaintiff’s car, and immediately resumed his former speed for about one hundred feet, when he noticed that there was an obstruction on his side of the road some twenty-five feet ahead of him, which he took to be a bundle of rags; that when within fifteen feet of the object he discovered it to be a man lying on the road, and tried to swerve around him, but to no avail, and that he immediately applied both his foot and emergency brakes, but that plaintiff was too close to avoid hitting him; that he did not knock plaintiff down with his bumper, which protected both front wheels, and that plaintiff, while lying on the road upon his back, was struck by the crank case of defendant’s car, a blow which caused the serious and multiple fracture of the pelvis, as proven by the record. He further testifies that several of the plaintiff’s party were apparently drunk, and that when he, defendant, assisted plaintiff and took him to the hospital, the plaintiff was shouting and „ complaining that someone had kicked him, and that the Sister of Charity told plaintiff in defendant’s presence that he, plaintiff, was drunk. Defendant further states that he heard loud talking as he approached plaintiff’s car, but that he did not hear anyone call out to him, nor was he otherwise notified of anyone being in the road ahead of him.

The driver of the plaintiff’s car testifies that defendant was not looking ahead of him, but talking to his companion sitting beside him, and that defendant was looking away from the road. This witness also swears that when defendant “got by” plaintiff’s car, witness shouted to him: “Watch out, a man is on the road looking for his tire”, and that as soon as these words got out of the witness’ mouth plaintiff was run over. Another witness for plaintiff, attempting to corroborate the driver of ¡plaintiff’s car, says that when the driver shouted defendant had his head turned away from the road. We do not give any weight to this evidence, for it is plain (if we believe plaintiff’s driver) that the-shouting did not occur until after defendant’s car had gone by; it was then impossible for any of plaintiff’s witnesses who were in his car to have seen in the darkness beyond, whether or not defendant was observing a proper lookout upon the road ahead of him.

The evidence is conflicting as to how far plaintiff was, at the moment of the accident, from his own car. Three of his witnesses set the distance at thirty-five feet, while plaintiff says he had walked about from five to ten feet past the machine, and that he then recollected nothing more. Defendant and one of his witnesses both say that plaintiff was on the road about one hundred feet from plaintiff’s car. The shorter the distance, the less opportunity the defendant had to heed—if he heard—the warning which plaintiff’s driver claims to haye given. The night appears to have been an ordinary one, as shown by bureau certificates filed in the record, though defendant says the atmosphere was misty, causing his windshield to be somewhat clouded. Plaintiff admits that he did not look for traffic approaching him in either direction. This he should have done. He must have been well acquainted, as a frequenter of this section of the city, with the almost exclusive vehicular traffic on the West End road, particularly at the hour above mentioned.

Counsel for plaintiff 'stresses the point that defendant’s car was traveling the middle of the road when plaintiff was injured. If this were a fact, we know of no law that makes it negligence per se to have so traveled on a public highway such as West End road, but the evidence shows that defendant’s car was more to the right of the road than in the middle thereof, and that plaintiff’s body, after the accident, was found immediately behind the right front wheel of defendant’s car. One of plaintiff’s witnesses testifies that defendant’s car was on the right side of the road, thus corroborating defendant and another witness in their statements that defendant was keeping well to the right in traveling^ toward West End.

It is well established by witnesses for both sides that plaintiff was found lying on the flat of his back after the accident, and defendant testifies that when he first saw plaintiff he was lying in that position, with his feet toward defendant and his head toward West End. Dr. Parham, the distinguished surgeon, who treated defendant, was of the opinion that from the locality of the five fractures all found to be in front of the pelvis, that the injuries sustained were most probably due from some blow upon the front rather than the rear of the body.

We are unable to conclude that plaintiff was standing or stooping with his back toward defendant’s car when struck; the evidence is most persuasive to the contrary, and indicates that he was lying in the road at the time of the accident. We are further convinced that plaintiff was in the line of traffic properly reserved to west-going vehicles, and that he was on the right or New Basin side of the road. From this point he should have seen the light reflected from defendant’s car in ample time to warn defendant or to himself avoid the accident. It is impossible to believe that plaintiff’s hat and eyeglasses could have been thrown in such opposite directions from each other, and to such distances at which they were found, as result of plaintiff’s contact with the oncoming car. There can be no other conclusion but that plaintiff wandered in various directions over the more or less darkened roadway, and that he for some reason fell on the road before he was hit. It is argued, and we are aware of some authorities in support of the contention, that an automobile or other motor-driven vehicle, if properly equipped with brakes and lights, and if carefully driven, should be stopped within the range of vision at which objects can be seen on the road ahead. We do not now, nor have we in previous decisions, approved of this doctrine. Defendant, in the instant case, was driving at a lawful and reasonable rate of speed; he appears to have made every possible effort to avoid the accident. It is. not shown that his lights or brakes were defective, or that he failed to see the plaintiff when he should have seen him, that is, within sufficient time to avoid hitting him. Plaintiff was not dragged after being hit, and the fact that the car was stopped before it had passed over from plaintiff’s body indicates that the car was well under brakes before reaching or striking plaintiff.

In the recent case of Woringen vs. Zetzman, 2 La. App. 106, this court denied recovery under circumstances which are in many respects similar to those in the instant case. The Supreme Court, by refusing a writ in the Zetzman case, intimated its approval of our appreciation of the law, when we held that:

“A pedestrian traveling at night on a narrow road in the outskirts of the city with thick bushes on either side, upon which numerous automobiles go and come, and few pedestrians, occupies a position of danger that calls for great care to avoid injury. If, under these conditions, he is injured by a passing automobile, he cannot recover unless he shows that the driver was negligent or could have avoided the accident.”

In Vicknair vs. L. R. & N. Co., 11 Ct. of App. 76, it was held:

"It is not negligence per se in a railroad company to run a train equipped with proper appliances on a dark foggy night in the open country at such a rate of speed that it is impossible to stop the train within the distance within which stock on the track may be discovered by the aid of the headlight.”

See also Smith vs. Crescent City Railroad Co., 47 La. Ann. 833, 17 South. 302; Mongagno vs. I. C. R. R. Co., 115 La. 597, 39 South. 699; Moren vs N. O. Ry. & Light Co., 125 La. 944, 52 South. 106; Dean vs. Burglass, 144 La. 824, 81 South. 330; Willis vs. Harley, 144 N. Y. Supp. 154.

We are satisfied from the evidence that defendant in this case was free from negligence and that such cannot be said 'of the plaintiff. There should have been judgment for defendant.

It is therefore ordered that the judgment appealed from be reversed and set aside, and that there now be. judgment in favor of the defendant, Joseph Masera, dismissing plaintiff’s suit at his cost in both courts.

Judgment reversed.

DISSENTING OPINION

Whether plaintiff was drunk or sober at the time of the accident I think the defendant could and should have avoided the accident. I therefore respectfully dissent. W. W. Westerfield, Judge.


author: CLAIBORNE, J.

text:
    No. 10,327
    Orleans
    STATE EX REL. L. A. MAGENDIE v. CONSTABLE FIRST CITY COURT, ET AL.
    (January 4, 1926, Opinion and Decree)
    (February 1, 1926, Rehearing Refused)
    (March 30, 1926, Writ of Certiorari and Review Denied by the Supreme Court.)
    (See 1 La. App. 139.)

      (Syllabus by the Court.)

    1. Louisiana Digest—Mandamus—Par. 4.
    This court will not order the district court to grant a suspensive appeal from a judgment refusing an injunction to arrest the sale of property when it appears that the property has been sold by the constable.
    Application for writ of mandamus and injunction.
    Writs denied.
    Paul W. Maloney, of New Orleans, attorney for relator.
   CLAIBORNE, J.

This is an application for writs of certiorari, mandamus, and prohibition to compel the district judge to grant a “suspensive appeal from a judgment rendered by him in the suit of L. A. Magendie vs. Constable, No. 154,443 Civil District Court. The judgment complained of was one refusing an injunction to arrest the sale of an automobile claimed by plaintiff under a fieri facias issued against a third party. We are informed by the judge’s return to this application herein that the automobile seized and claimed by relator as his property has been advertised and sold by the constable and the proceeds of sale distributed by him.

Under the circumstances a “suspensive” appeal could no longer avail the relator and a writ from this court would be a mere brutem fulmen. Lemann vs. Ascension Parish School Board, 158 La. 81, 103 South. 517; State ex rel. Romain vs. Board of Supervisors of Election, 49 La. Ann. 578, 21 South. 731; Corbera & Klein Furniture Co., in re, 105 La. 119, 29 South. 488; 57 Ill. App. 529.

It is therefore ordered that the alternative writs heretofore issued be recalled and relator’s petition dismissed, reserving his rights to a petition for a devolutive appeal denied.

Writs denied.


author: REYNOLDS, J.

text:
    No. 2559
    Second Circuit
    COMMERCIAL CREDIT COMPANY, INC., v. PATTON
    (May 7, 1926, Opinion and Decree)

      (Syllabus by the Court.)

    1. Louisiana Digest—Pleading—Par. 47.
    Replications are not permited by our law, and so all allegations in an answer are open to every objection of law and fact, as non-age, coverture, fraud, prescription and the like, as if specially pleaded.
    Bayly & Pond vs. Stacey & Poland, 30 La. 1210.
    Mayner vs. Rollins, 3 Mar. (N. S.) 622.
    Donaldson vs. Winter, 8 Mar. (N. S.) 181.
    Riley vs. Wilcox, 12 Rob. 648.
    Swilley vs. Low, 13 La. Ann. 412.
    Appeal from the Fourth Judicial District Court of Louisiana, Parish of Morehouse. Hon. Percy Sandel, Judge.
    Action by Commercial Credit Company, Inc., against Mrs. Lula C. Patton, et al.
    There was judgment for defendants and plaintiff appealed.
    Judgment reversed and case remanded for trial.
    Shotwell & Brown, of Arcadia, attorneys for plaintiff, appellant.
    Madison & Madison, of Bastrop, attorneys for defendants, appellees.
    STATEMENT OF THE CASE
   REYNOLDS, J.

This is a suit against Mrs. Lula C. Patton, and in the alternative against her husband, C. H. Patton, on a promissory note.

The third and fourth paragraphs of • plaintiff’s petition read as follows:

“3.
“Petitioner further shows that several days after the execution of said note by the said Mrs. Lula C. Patton, your petitioner, before acquiring said note from Milner Motor Co., Inc., payee thereon, requested the said Milner Motor Co., Inc., to have C. H. Patton, husband of Mrs. Luca C. Patton, sign said note and the act of chattel mortgage securing the same for the purpose of authorizing his said wife thereon; and that the said C. H. Patton did sign said note and the act of chattel mortgage securing the same for the purpose of aiding and authorizing his said wife, but through error and oversight failed to add the appropriate words indicating that he signed for the purpose of authorizing his said wife and that the said C. H. Patton signed said note and said act of chattel mortgage for the purpose of aiding and authorizing his said wife and not as a joint maker thereof.
“4.
“That said note was executed and given as a part of the purchase price of a Ford sedan, and that the said car was purchased by the said Mrs. Lula C. Patton as her separate and paraphernal property, and that the said note is a separate paraphernal debt of the said Mrs. Lula C. Patton and was contracted by her as her separate debt and to be paid by her out of her separate paraphernal property; and that said property inured to the benefit of said Mrs. Lula C. Patton.”

On the trial of the case the following three questions were propounded by plaintiff to L. P. Milner, a witness on its behalf, and were objected to by defendants for the reasons given, and the objection sustained, to-wit:

“Q. Will you state, Mr. Milner, just what transpired when Mrs. Lula C. Patton came into your place of business and stated she wanted , to buy a car ?
“Mr. Madison: Objected to for the reason that this is a suit on a note, which is a written obligation, and parol testimony is inadmissible to amplify or vary the recitals made in the note without any allegation of fraud or error. The testimony called for is hearsay testimony.
“By the Court: Let the objection be sustained.
“By Mr. Shotwell: Except to the ruling of the court andureserve a bill.
“Q. I will ask you to state what, if anything, was said by Mrs. Patton at the time relative to her purchasing this car as her own car?
“Mr. Madison: This is objected to for the reason the conversation resulted in the execution of the contract sued on, and that everything said prior to the execution of the contract is foreclosed by the terms of the contract; that the contract is in writing and parol testimony is inadmissible to vary or modify the written instrument.
“By the Court: Objection sustained.
“Q. I hand you, Mr. Miller, a document marked ‘Buyer’s Statement’, and ask you to state whether or , not you saw Mrs. Lula C. Patton sign that?
“Mr. Madison: Objected to for the reason it is irrelevant; the application not having been sued on or mentioned in the pleadings and is inadmissible under the pleadings, and that the statement was signed prior to the execution of the mortgage sued on, and everything that took place prior to that time is included in the mortgage sued on, and is an attempt to vary and modify a contract without any allegation of fraud or error.
“By the Court: Let the objection be sustained.
“By Mr. Shotwell: Your Honor’s ruling does not restrict me from proving the signature on this document?
“By the Court: No. sir!”

The question now presented for decision is whether or not the evidence should have been admitted.

Plaintiff alleged in its petition:

“That said note was executed and given as a part of the purchase price of a Ford sedan, and that the said car was purchased by the said Mrs. Lula C. Patton as her separate paraphernal property, and that the said note is a separate paraphernal debt of the said Mrs. Lula C. Patton and was contracted by her as her separate debt and to be paid by her out of her separate paraphernal property; and that said property inured to the benefit of the said Mrs. Lula C. Patton.”

And that:

“The said C. H. Patton did sign said note and the act of chattel mortgage securing the same for the purpose of aiding and authorizing his said wife, but through error and oversight failed to add the appropriate words indicating that he signed for the purpose of authorizing his said wife, and that the said C. H. Patton signed said note and said act of chattel mortgage for the purpose of aiding and authorizing his said wife and not as a joint maker thereof.”

Under these allegations we think the evidence should have been admitted.

Furthermore, defendant, Mrs. Lula C. Patton, alleged in paragraph 4 of her „ answer that:

“She admits that the note sued on was given as a part of the purchase price of a Ford sedan as alleged in paragraph 4 of plaintiff’s petition, but she especially denies that said car was purchased by her as her separate paraphernal property, and she especially denies that said note is her separate paraphernal debt, and she especially denies that the debt evidenced by said note was contracted by her as a separate debt to be paid out of her separate paraphernal property, and she especially denies that said car inured to her separate or individual benefit.”

This paragraph especially put at issue the questions asked by plaintiff as to what she said at the time she made the purchase and whether or not the purchase inured to her separate benefit; and having put the questions squarely at issue by answer, and there being no replication allowed in pleadings, we think the evidence should have been admitted.

It is therefore ordered, adjudged and decreed that the judgment appealed from be reversed and this case is remanded to the District Court for further proceedings in accordance with law and the views herein expressed.

The costs of the appeal to be paid by defendant; all other Costs to await the final result.


text:
    No. 9143
    Orleans
    PIERRE, Appellant, v. LEVY
    (January 18, 1926, Opinion and Decree)

      (Syllabus by the Court.)

    1. Louisiana Digest—Landlord and Tenant Par. 68.
    The owner of a building is answerable in damages to those, who being lawfully on the premises, are injured by reason of its defects.
    2. Louisiana Digest—Landlord and Tenant Par. 68.
    A negress, residing with a negro tenant, as his paramour, is lawfully on the leased premises, and when injured by reason of the defective condition of the ■ steps leading to the premises is entitled to recover from the owner of the property.
    Appeal from Civil District Court, Division “C”. Hon. E. K'. Skinner, Judge.
    Action by Viola Pierre against Aaron Levy for damages for physical injuries.
    There was judgment for defendant “and plaintiff appealed.
    Judgment reversed.
    Legier & Waguespack, Harry McEnerny and George P. Nosacka, of New Orleans, attorneys for plaintiff, appellant.
    Arthur B. Leopold, of New Orleans, attorney for defendant, appellee.
   OPINION

WESTERFIELD, J.

The plaintiff, claiming to have been the .tenant of defendant, sues him for $1000.00 as damages alleged to be due because of physical injuries alleged to have been sustained by plaintiff as the result of a fall caused by defective steps attached to the leased premises.

Defendant denies that plaintiff was his tenant at the time of the alleged accident; denies that she was injured as a result of defective steps, and avers that plaintiff was a trespasser on the property which he (defendant) had leased to one Son Jackson, and, therefore, and in the alternative, if plaintiff was injured, she was unlawfully on the premises and not entitled to recover.

The court a qua rendered judgment for defendant and plaintiff has appealed.

As to whether plaintiff or Son Jackson was the tenant there is much doubt. Both plaintiff and Son Jackson testify that plaintiff always provided the money with which the rent was paid though the receipts given by defendant’s agent were in the name of Son Jackson, doubtless because of the defendant’s policy which, as he testified, was opposed to renting to women. Both Jackson and plaintiff, who was his concubine, lived in the tenement and Viola Pierre, the plaintiff, seems to have paid all the expenses of the menage. But whether Viola Pierre or Son Jackson was, in contemplation of law, the tenant of defendant is immaterial. The question is, first, was plaintiff injured? And the solution of neither question depends upon whether plaintiff was or was not defendant’s tenant, for, as has been repeatedly held, if plaintiff was lawfully on the premises it makes no difference whether she was a tenant or otherwise. Evans vs. Hollander, 2 La. App. 409, and authorities there cited.

As to plaintiff having been injured by reason of a defective step attached to defendant’s property, the evidence clearly preponderates in her favor. She is corroborated by at least one eye witness to the accident (Evelyn Brooks), who says that the steps gave way under plaintiff causing her to fall to the ground and rendering her unconscious. Other witnesses say she was carried into the house unconscious, and a doctor testifies that he treated her for bruises. The suggestion that she slipped down the steps and that the steps did not give way is not supported by the evidence, and, moreover, the defense of contributory negligence is not pleaded. But defendant says she was a trespasser and without recourse, citing Wise vs. Lavigne, 138 La. 218, 70 South. 103.

Defendant’s case on this point rests upon the fact that Jackson, who is shown to have been married to another negress, was living with Viola Pierre in the leased premises. He argues that their relation was unlawful and that, consequently, they were using the premises for unlawful purposes. We are referred to no authority for this proposition and we know of none. Counsel seems to confuse the present attitude of a part of Caucasian Society toward the sexual relation with the legislative fiat. We are not concerned with, nor is it our desire to discuss the wisdom of the social edict to which we have referred. We conclude on this point that Viola Pierre was lawfully in the leased premises and is therefore entitled to recover.

There remains the question of quantum. We are not impressed with the effort to prove plaintiff’s injuries to have been particularly serious. She says she was incapacitated as a result of her injuries for nine weeks with conseguent loss of earnings which she puts at $108.00. But her doctor bill was only $6.00, and while she claims to have visited the clinic of the Charity Hospital there is no testimony by any doctor or nurse connected with that institution in the record. However, plaintiff was bruised and, no doubt, badly shaken up (she weighs 232 lbs.), and is entitled to be fairly indemnified. We fix the amount at $200.00.

Aaron Levy, defendant herein, died since the institution of this suit and his widow and universal legatee, Florence Burke Levy, has been made a party.

For the reasons assigned the judgment appealed from is reversed and it is now ordered that there be" judgment in favor of plaintiff, Viola Pierre, and against Mrs. Florence Burke Levy, widow of Aaron Levy in the sum of $200.00 with interest thereon at the rate of 5% from judicial demand and all costs.


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    No. 9242
    Orleans
    THERBONE, Appellant, v. COUGOT & JOUBERT, ET AL.
    (March 15, 1926, Opinion and Decree)

      (Syllabus by the Court.)

    1. Louisiana Digest—Brokers—Par. 8.
    An agent is not liable to third persons for nonfeasance or for mere omission of duty which he owes only to his principal.
    Appeal from Civil District Court, Parish of Orleans, Division “B”. Hon. M. M. Boatner, Judge.
    Action by Eurina Therbone, wife of Berthoud Adams, and Berthoud Adams, to aid, authorize and assist his said wife, against Cougot & Joubert for damages for physical 'injuries.'
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Frank S. Norman, of New Orleans, attorney for • plaintiff, appellant.
    Emile Pomes, of New Orleans, attorney for defendant, appellee.
   BELL, J.

Plaintiff sues the defendant co-partnership and its members in damages for physical injuries which she alleges she sustained by falling down defective steps which were attached to property rented to her husband by defendants as agents for said property.

Describing the time and place of the accident and the nature and extent of the injuries sustained, plaintiff further alleges:

“That on or about the 3rd day of May, in the year 1921, your petitioner was occupying, with her said husband and family, the premises known as 2034 St. Peter street; that the real estate firm of Cougot & Joubert, an ordinary partnership domiciled and doing business in the city of New Orleans, this state, composed of Peter Cougot and Ernest Joubert, partners composing said partnership, all of whom reside in the city of New Orleans, State of Louisiana, and that the said real estate firm of Cougot & Joubert acted as agents of the owner of the said property, and that your petitioner does not know and did not know in whom title vested. That your petitioner is informed and believes that the rental agreement under which your petitioner’s husband was occupying the property was made with the said real estate firm of Cougot & Joubert; that all rents were paid and dealings had with the above said real estate firm and at no time were the true owners of the said property disclosed to your petitioner, and your ptitioner avers that she was informed and believed that the said Cougot & Joubert represented and acted as agents of the deceased owner or owners of said property. * * * *
“Petitioner further avers that the repairs to said step which caused the injury to your petitioner were repairs which the lessor was bound to make. Petitioner further avers that the accident was caused solely and only by the gross carelessness and negligence and want of care on the part of the defendant and its agent in not remedying the decayed and ruinous condition of said steps and permitting it to become a menace to petitioner who was occupying the premises at the time. Petitioner avers the sill was insufficiently nailed to the main premises and the steps insufficiently nailed to the sill; that the steps were worn and rotten and that defendant was repeatedly requested to repair same on complaint of petitioner that the steps were unstable.”

Defendants filed an exception of no cause of action. Prom a judgment maintaining the exception plaintiff has appealed.

There are no allegations whatever in the petition which set forth any privity of contract between the plaintiff and defendants.

The law governing this case, and upon which the exception was doubtlessly maintained by the learned judge of the trial court has been elaborately expounded beyond need of further comment in the case of Delaney vs. Rochereau & Co., 34 La. Ann. 1123. Rochereau & Co. of New Orleans were agents for property belonging to an absentee who resided in Prance. Plaintiff’s son was killed by the falling of a defective front gallery forming part of the property. The agents were sued in solido for damages, upon the theory that they were liable to third parties for alleged dereliction of duty or nonfeasance in neglecting to keep the property in repair. The court, denying recovery, said, in part, as follows:

“Everyone, whether he is principal or agent, is responsible directly to persons injured by his own negligence in fulfilling obligations resting upon him in his individual character, and which the law imposes upon him independent of contract. No man increases or diminishes his obligation to strangers by becoming an agent. If, in the course of his agency, he comes in contact with the person or property of a stranger, he is liable for any injury he may do to either, by his negligence, in respect to duties imposed by law upon him in common with all other men.
“An agent is not responsible to third persons for any negligence in the performance of duties devolving upon him purely from his agency, since he cannot, as agent, be subject to any obligations toward third persons other than those of his principal. Those duties are imposed upon him by law. Hei has agreed with no one, except his principal, who alone can hold him responsible.”

See also 31 Cyc., verbo “Principal and Agent”, 1559, subtitle b, “Nonfeasance”:

“An agent is not responsible to a third person for injury resulting from nonfeasance, meaning by that term the omission of the agent to perform a duty owed solely to his principal by reason of his agency.”
Poydras vs. Delamare, 13 La. 98.

The judgment appealed from is correct and should be affirmed.


text:
    No. 1975
    Second Circuit
    JAMES J. TAYLOR v. SOPHIE WILLIAMS, ET AL.
    (March 11, 1926. Opinion and Decree)
    (April 10, 1926. Rehearing Refused)

      (Syllabus by the Court.)

    1. Louisiana Digest—Petitory and Possessory Actions—Par. 35, 37.
    As against a plaintiff in a petitory action to recover immovable property that has belonged to his deceased sister, of whom he has been recognized as sole heir and ordered placed in possession of her succession by judgment of a court of competent jurisdiction, defendants in possession who do not claim in their answer to be the owners of the property, have no standing in court to question the heirship of the plaintiff.
    2. Louisiana Digest—Trespass—Par. 7.
    The ex parte judgment of a court of competent jurisdiction recognizing the plaintiff as the sole heir of his deceased sister and ordering him placed in possession of her succession, is prima facie evidence of title in him; and defendants, whose attitude is that of trespassers on property of the succession, are without right to question this prima facie title of the plaintiff. Stille vs. Shull, 41 La. Ann. 820, 6 South. 634.
    Gould "vs. Bebee, 134 La. 123, 63 South. 848.
    Union S. M. Co. vs. Store, 121 -La. 554, 46 South. 649.
    3. Louisiana Digest—Petitory and Possessory Actions—Par. 15.
    Plaintiff in a petitory action is not bound to show title in himself good against the world, he is only required to produce a title prima facie valid to repel the presumption of ownership resulting from mere possession.
    Gravenberg vs. Savoie, 8 La. Ann. 499. Rowson vs. Barbee, 51 La. Ann. 352, 25 South. 139.
    4. Louisiana Digest—Executors and Administrators—Par. 9.
    A succession must be opened in the parish where the deceased resided, if he had a domicile or fixed place or residence in the state.
    C. P. 929.
    5. Louisiana Digest—Executors and Administrators—Par. 9.
    If opened elsewhere, all proceeding therein will be null and void and without legal effect.
    Succ. of Williamson, 3 La. Ann. 261. Miltenberger vs. Knox, 21 La. Ann. 399.
    C. P., 929.
    C. C„ 935.
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo, Hon. • T. F. Bell, Judge.
    • This is a petitory action to recover a lot in the City of Shreveport and for money as rent thereof.'
    There was judgment for plaintiff as prayed for and defendants appealed.
    Judgment affirmed.
    Foster, Hall and Smith, of Shreveport, attorneys for plaintiff, appellee.
    Herndon and Herndon, of Shreveport, attorneys for defendants, appellants.
    STATEMENT OF THE CASE
    This is a petitory action to recover lot 26 of Mount Zion subdivision to the City of Shreveport, Louisiana, brought by James J. Taylor who claims title thereto by inheritance from his sister Pernicie Newman Gaston who died at her residence in Orleans parish, Louisiana, in 1918, and who owned the property at the time of her death. By judgment of the Civil District Court of the Parish of Orleans rendered in 1923, James J. Taylor was recognized as the sole heir of Pernicie Newman Gaston and as such ordered placed in possession of her succession.
    He alleges that Sophie Williams, Rachel Wilson, Odalee Lucas and Alice Reeves are in possession of the property sued for in bad faith and as trespassers and that they owe him $15.00 per month as rent thereof since August 29, 1918, until paid.
    He also alleges that they collected the' sum of $300.00 on a policy on the life of Pernicie Newman Gaston that was payable. to her estate from the Grand Court of Calantha of the jurisdiction of Louisiana, the proceeds of which policy belonged to him as sole heir of the deceased.
    He prayed judgment against each of the defendants recognizing him as owner of the land sued for and as entitled to the possession thereof, and also for judgment against each of them for the sum of $300.00 with 5 per cent per annum interest thereon from August 29, 1918, as and for the amount of the policy of insurance on the life of Pernicie Newman Gaston collected hy them and also for judgment against each of them for $15.00 per month from August 29, 1918, until paid, as rent of the lot of ground .in controversy, and that a judgment rendered hy the District Court of Caddo parish, Louisiana, on or about August 29, 1918, recognizing defendants as the sole heirs of Pernicie Newman Gaston and ordering them placed in possession of her succession as such, No. 24,253, on the docket of said court, be cancelled and annulled, as an absolute nullity for the reason that at the time of her death the deceased was not a resident of Caddo parish but of Orleans parish, Louisiana.
    Defendants denied practically all of the allegations of plaintiff’s petition and specialty alleged that plaintiff was a bastard, if he was the son of Daniel Taylor, the father of the deceased Pernicie Newman Gaston.
    On these issues the case was tried and there was judgment in favor of the plaintiff and against the defendants as prayed for and the defendants appealed.
   OPINION

There were numerous motion and exceptions filed in this case, but in last analysis the case narrows down to the question of whether or not. the defendants are in position to question plaintiff’s claim that he is the sole heir of Pernicie Newman Gaston.

In support of his contention that he is the sole heir of Pernicie Newman Gaston, plaintiff filed in evidence a certified copy of the judgment of the Civil District Court of the Parish of Orleans in the matter entitled Succession, of Pernicie Newman Gas-ton, No. 142,154 on the docket of that court, dated May 10, 1922, recognizing him, plaintiff, as the sole heir of Pernicie Newman Gaston, his sister, and, as such, ordering him placed in possession of her successi()n.

Plaintiff also filed in evidence, for the restricted purpose of showing its nullity, the judgment of the District Court of Cad-do parish, Louisiana, in the matter of the Succession of Pernicie Newman Gaston, dated August 29, 1918, recognizing the defendants as the sole heirs of Pernicie Newman Gaston and as such ordering them placed in possession of her succession.

In their petition in that matter the defendants alleged—•

“That Mrs. Pernicie Newman Gaston, their cousin, a resident of the Parish of Orleans, departed this life at her domicile in the City of New Orleans, Louisiana, on the 12th day of May, A.D., 1918. * * * ”

Under these allegations it is clear that the Civil District Court of the Parish of Orleans had jurisdiction in the matter of the Succession of Pernicie Newman Gaston and that the District Court of Caddo parish had not jurisdiction.

It is equally clear that under the judgment of the Civil District Court of the Parish of Orleans recognizing plaintiff as the sole heir of his deceased sister Pernicie Newman Gaston and as such putting him in possession of her succession the plaintiff James J. Taylor had a prima facie valid title to the property in controversy and that defendants are in possession of the property sued for without title and are trespassers thereon and also that they had no right to the proceeds of the life insurance policy on the life of Pernicie Newman Gaston that they collected.

Under the authority of Gravenberg vs. Savoie, 8 La. Ann. 499, and Rowson vs. Barbee, 51 La. Ann. 352, 25 South. 139, it is clear that plaintiff, who has produced a title in himself prima facie valid, dating back to 1907, which is eleven years anterior to the possession by defendants, cannot be defeated in his effort to recover the property sued for by the defendants, who are mere trespassers, and who do not, in their answer, claim to be the owners of the property.

We have carefully read and considered the able and well written reasons of the learned judge of the District Court for his judgment and find his judgment correct.

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