text:
    No. 1992
    Second Circuit
    F. H. ROSENBLATH v. SAM MARABELLA
    (March 11, 1926, Opinion and Decree)

      (Syllabus by the Court.) .
    1. Louisiana Digest—Surveys and Surveys—Par. 2, 7, 24.
    Where a street is given as one of the boundaries in the sale of a lot of ground, the street as open and in actual at the time of the sale rather than street as platted should be considered to be the one intended by the parties to the sale.
    2. Louisiana Digest—Surveyors and Surveys—Par. 24; Acts—Par. 31.
    A street mentioned as a boundary in a sale must be understood to mean the street as it actually exists on the ground at the time; the apparent and travelled street, and not the street as it exists of record.
    (9 Corpus Juris, 197; 198.)
    3. Louisiana Digest—Sales—Par. 42, 63, 263.
    The vendor is bound to explain himself clearly as to the extent of his obligations, and obscure or ambiguous’ clauses in a sale must be interpreted against him.
    (Civil Code, Art. 2474. Editor’s note.)
    Delogny vs. Mercer, 43 La. Ann. 205, 8 South. 903.
    4. Louisiana Digest — Obligations.— Par. 87.
    When the intent is doubtful, the construction placed on the description by the parties or by one of them with the assent of the other, furnishes a rule of interpretation.
    Metcalf vs. Green, 140 La. 950, 74 South. 261.
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo, Hon. T. F. Bell, Judge.
    This is a suit to determine a boundary.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    George Thurber, of Shreveport, attorney for plaintiff, appellant.
    George G. Dimick, of Shreveport, attorney for defendant, appellee.
    STATEMENT OF THE .CASE
    Plaintiff sold defendant a lot of ground situated in the City of Shreveport described as follows:
    "A lot or parcel of_ land being a portion of the tract purchased by this vendor from Thurman, as per act in conveyance book 21, page 764, of the records of Caddo parish, Louisiana, commencing on the corner of Garden and Ignatius streets, run thence west along Garden street forty (40) feet, thence north to the south line of the Talbot and Perrin subdivision, thence east along said line forty (40) feet to Ignatius street, thence south along Ignatius street to place of beginning at Garden and Ignatius streets.”
    Plaintiff contends that the southeast corner of the lot he sold defendant is fifteen feet and six inches east of the point claimed by defendant as his southeast corner or at an iron pipe driven into the ground as intended to mark the north side of Garden street and the west side of Ignatius street.
    On these issues the case went to trial and there was judgment in favor of defendant and the plaintiff has appealed.
   REYNOLDS, J.

OPINION

Defendant contends that the southeast corner of the property sold him by plaintiff is at a point pointed out to him by the plaintiff at the time of the sale as the southeast corner, which point is fifteen feet and six inches west of the iron stob above referred to, and fifteen feet and nine inches south of another iron stob.

At the time of the sale by plaintiff to defendant there was a store building on the lot, the southeast corner -of which building was at the point claimed by defendant as the southeast corner of the lot purchased by him. The iron stob above referred to is fifteen feet and six inches east of this point or about the middle of what at the time of the sale to defendant appeared on the ground to be Ignatius street, and as that street was then being actually used. When defendant bought the property from plaintiff it was enclosed by a fence.

If the point contended for by defendant be the west side of Ignatius street then that street had a width of thirty feet; but. if plaintiff’s contention be correct, then the width of that street is reduced to fourteen feet and four inches.

The defendant, Sam Marabella, testified, pages 7-13:

“Q. When you bought this property from Mr. Rosenblath, was it fenced in at the time?
“A. Yes, sir.
“Q. Who built that fence?
“A. He did.
“Q. When you bought from him did he set out stakes showing the property that he had sold to you?
“A. Yes, sir.
“Q. Is the property which you are in possession—of which you are in possession on the corner of Garden and Ignatius streets as laid out on the ground?
“A. Yes, sir.
“Q. How long have those streets been used in their present situation?
“A. Since I have been there.
“Q. Ignatius street runs on the east side of your property?
“A. Yes, sir.
“Q. Right along the side of your store?
“A. Yes, sir.
“Q. Garden street is in front of your property?
“A. Yes, sir.
“Q. Your property is on the corner?
“A. Yes, sir.
“Q. Is the stake on the corner?
“A. On the corner and the other is forty feet away.
“Q. The stake is at the intersection of these streets?
“A. Yes, sir.
“Q. Then if you run forty feet (40) west of there does that reach the fence that Mr. Rosenblath had there?
“A. Yes, sir.
“Q. On the property that you have possession of?
“A. Yes, sir.
“Q. Who drove the iron stakes?
“A. He did.
“Q. Mr. Rosenblath?
“A. He did.
“Q. Did he drive them at the time that he sold the property to you?
“A. Yes, sir.
“Q. Drove them himself?
“A. Drove them himself; he drove them.
“Q. Now when you made these additions to your store and built your house in there did Mr. Rosenblath offer any objection?
“A. No sir, never said a thing.
“Q. You say that he drove the stakes and showed you where the stakes were?
“A. Yes, sir.
“Q. Were you there when he did it?
“A. Yes, sir.
“Q. You saw him do it?
“A. Certainly I did.
“Q. Do you know where the corner of Ignatius street and Garden street is—the corner stake ?
“A. Yes, sir, right in that corner.
“Q. Well I am talking about the actual corner.
“A. The actual corner is right on the gallery.
“Q. Your buildings are more than forty feet (40) from that corner?
’ “A. No sir, exactly forty feet (40) where my line comes.
“Q. The stake that marks the corner of Ignatius and Garden streets is right at the corner of the front porch of your store?
“A. Yes, sir, right at this corner and my corner is right in the sidewalk.”

Mrs. Sam Marabella, testified, pages 28-31:

“Q. Do you remember the time that your husband bought this piece of property from Mr. Rosenblath?
“A. Sure I remember it.
“Q. Were you present when they made their trade?
“A. Sure.
“Q. Did Mr. Rosenblath show your husband what property he was selling him?
“A. Sure.
“Q. What did he say to him?
“A. Show us how we stand now, give us forty feet just it stand now, show us where we stand now.
“Q. Put an iron stake to show where it was?
“A. Sure.
“Q. Did Mr. Rosenblath say whether or not he was selling you the same forty feet that he had been renting to you?
“A. Yes, sir.
“Q. Told you that?
“A. Yes, sir, told us that when he sold it, said sell you all this place like it stand.
“Q. That is according to the streets as they were on the ground?
“A. Yes, sir, that is the way it stand now.
“Q. And the corner of the streets as they appear on the ground?
“A. Yes, sir.”

Veto Viola testified, page 32:

“Q. You know where the store is situated?
“A. Yes, sir.
“Q. Is that store situated on the comer of Garden and Ignatius streets?
“A. Yes, sir, right on the corner, post right there and I tie my horse many a time- to that corner.
“Q. P.ost at the corner?
“A. Yes, sir.
“Q. Corner of the streets right there on the ground?
“A. Yes, sir.”

Prank DePatta testified, page 34:

“Q. Mr. Defatta are you familiar with the piece ’of property occupied by Mr. Marabella on Ignatius and Garden streets?
“A. Yes, sir.
“Q. Rented before he bought it?
“A. Yes, sir.
“Q. At the time he was renting it was it situated like it is at present?
“A. Yes, sir.
“Q. Pence on the west side?
“A. Yes, sir.
“Q. Ignatius street on the east side?
“A. Yes, sir.
“Q. How long had that been a street, how long had that street been there?
‘‘A. Ever since I know.
“Q. Ever since you know?
“A. Yes, sir.
“Q. As much as twenty years?
“A. Yes, sir.
“Q. Did Mr. Rosenblath say that he was selling him the same property he was renting?
“A. Yes, sir.
“Q. Was the fence on the west side as it is at present?
“A. Yes, sir.
“Q. Same as it is at the present time?
“A. Yes, sir.”

Sarah Taylor, testified, page 36:

“Q. Where do you live?
“A. I live on Ignatius street.
“Q. Anywhere near Mr. Sam Marabella’s store?
“A. Yes, sir, I stays right hack of it.
“Q. How long have you been living there?
“A. Well, as near as I can guess at it it has been about twenty-one year's, I think about that long.
“Q. Where is Ignatius street?
“A. It is the street that runs down from Garden street down by Mr. Sam’s store.
“Q. By his store?
“A. Yes, sir.
“Q. Right up against his store?
“A. Yes, sir; Judge Perrin said it was Ignatius street when I bought it.
“Q. Regular -width, street?
“A. Yes, sir, been in service ever since we bought out there.”

Sam Liberto testified, page 39:

“Q. How long have you known the property that Sam Marabella is occupying?
“A. Well, I used to rent that place.
“Q. You used to rent that place?
“A. I rent from Mr. Rosenblath myself, I rent one year before Sam rent it; I sell my goods to Sam Marabella.
“Q. How long ago was that?
“A. Eighteen years ago.
“Q. Fenced in at that time?
“A. Yes, sir.
“Q. Was Ignatius street there at that time?
“A. Yes, sir.
“Q. Where is Ignatius street?
“A. By the side of the store.
“Q. By the side of the store?
“A. Yes, sir; Garden street front of the store.
“Q. Ignatius street is right up against the side of the store?
“A. Yes, sir.
“Q. Known as Ignatius street?
“A. Yes, sir, eighteen years ago that street was there.
“Q. Ignatius street is the principal street through there?
“A. Yes, sir, right by the side and Garden street is in the front.
“Q. That property now is just like it was before?
“A. Yes, sir, just like it was.
“Q. Fences and everything?
“A. Yes, sir.”

From this evidence it is clear to us that it was plaintiff’s intention to sell and defendant’s intention to buy the forty feet front of ground on Garden street actually fenced in commencing at the iron post and measuring fifteen feet and nine inches southward and forty feet westward leaving thirty feet for the width of Ignatius street as that street then appeared on the ground and was actually used by the public at the time of the sale by plaintiff to defendant; and from all the evidence we are convinced that the judgment- of the lower court is correct, and it is therefore ordered, adjudged and decreed that it be affirmed.


source: Caselaw Access Project

author: ELLIOTT, J.

license: Public Domain

text:
    No. 1920
    First Circuit
    WILLIAM E. BLACKBURN v. ST. PAUL FIRE AND MARINE INSURANCE CO.
    (January 28, 1926, Opinion and Decree)
    (March 2, 1926, Rehearing Refused)

      (Syllabus by the Editor.)

    1. Louisiana Digest—Insurance—Par. 72, 73.
    In a fire insurance policy covering an automobile the assured warrants the facts stated with respect to the purchase of the automobile.
    2. Louisiana Digest—Insurance—Par. 77.
    The statement by an applicant for fire insurance on an automobile that the actual cost to the owner is $1500.00 where he paid only $800.00 and a year and nine months later had it overhauled and repaired at the cost of $735.00 is a breach of warranty by the assured debaring his recovery under the policy.
    Appeal from the Fourteenth Judicial District Court, Parish of Beauregard, Hon. Jerry Cline, Judge.
    Action by William E. Blackburn against the St. Paul Fire and Marine Ins. Co. to recover fire insurance for the loss of an automobile.
    Judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    E. L. Stewart, of De Ridder, attorney for plaintiff, appellant.
    John C. Hollingsworth, of New Orleans, attorney for defendant, appellee. .
   ELLIOTT, J.

William E. Blackburn, the plaintiff obtained from St. Paul Fire and Marine Insurance Co., defendant, an insurance policy against loss to his automobile by fire to the extent of $800.00. The policy bears date July 7, 1924. The automobile was injured by fire on July 17, 1924, upon which plaintiff signed a sworn application for loss, stated to be $300.00. His suit is to recover on account of the alleged loss the sum of $800.00 with interest and attorney’s fees. Defendant resists payment on the ground that plaintiff represented to defendant in obtaining the policy, by statements embodied in the policy, that he acquired the automobile in July, 1924, and that its actual cost was $1500.00; when as a matter of fact he had acquired it in April, 1922, and for the price of $800.00. Defendant urges in its answer that plaintiff’s statements that he acquired the automobile in July, 1924, and that it cost him $1500.00 are warranties in the contract; the consideration and cause thereof. That his representations being untrue; the consideration and cause does not exist and that plaintiff can not recover thereon. The district judge rejected plaintiff’s demand. The plaintiff has appealed, but we do not find in the record any brief in support of his demand.

OPINION

The plaintiff as a witness in his own behalf, admits that he bought the automobile in April, 1922, and that the price paid for it was $800.00." Defendant urges in its brief, part of a lengthy statement printed on the inside page of the policy as follows: “Warranties by the Assured. The Assured’s occupation or business, where the subject of this insurance is used in connection therewith, the description of the automobile insured, the facts with respect to the purchase of same, the uses to which it is and will be put and the place where it is usually kept, as set forth and contained in the policy, are statements of facts known to the Assured to be true and this policy is issued by the Company, relying upon the truth thereof.” This printed matter on the inside page of the policy, is not mentioned in the policy, nor signed by the parties; consequently can not be regarded as a stipulation of the contract, but plaintiff as a witness admits buying the automobile in April, 1922, for $800.00. He says that after buying it he ran it for about a year and nine months. That he then had it overhauled and repaired at an expense of about $735.00. Taking to be true what he says in this regard, the cost of overhauling and repair, added to the purchase price, makes $1535.00. But we think the statement in the policy under heading “Actual cost to owner $1500” refers to the price paid by plaintiff when he bought the car. If $735.00 of the amount consisted of repair^' the fact should have been stated. The matter is not mentioned in plaintiff’s petition, consequently can not be explained. The discrepancy between the date of purchase and that stated in the policy is not explained by plaintiff as a witness, nor by allegation in his petition; but we notice that plaintiff did not have a written title to the automobile at the time he obtained the insurance; his title bears date of August 9, 1924. The cause or consideration of an insurance policy can not be misrepresented, to this extent and recovery permitted on the policy.

Giocoechea vs. La. State'Ins. Co., 6 Mart. N. S. 51.

La. Mutual Ins. Co. vs. N. O. Ins. Co., 13 La. Ann. 246.

Germuer vs. Insurance Co., 109 La. 341, 33 South. 361; Vance on Insurance, Section 104, pp. 285, 286.

The judgment appealed from is correct.

Judgment affirmed. The plaintiff and appellant to pay costs in both courts.


author: MOUTON, J.

text:
    No. -.
    First Circuit
    LOUISIANA STATE BOARD OF DENTISTRY v. ERNEST O'FLERTY
    (January 28, 1926, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest—Appeal—Par. 69, 429, 518.
    Where the record is incomplete not showing sufficient facts to determine whether the Court of Appeal has appellate jurisdiction or the Supreme Court under Article VII, Section 10, Par. 4, of the Constitution of 1921, the appeal will be dismissed.
    Appeal from St. Martin Parish, Hon. James Simon, Judge.
    S. F. Gautier, of New Orleans, and B. A. Fournet, of Lafayette, attorneys for plaintiff.
    Yoorhis and Labbe, of St. Martinville, attorneys for defendant.
   MOUTON, J.

In this case plaintiff filed proceedings asking for an injunction to prohibit defendant from practicing dentistry.

The defendant filed an exception of no cause of action, and attacked the constitutionality of the acts on which these proceedings were brought.

The only ruling which appears on the minutes of the court below is: That the rule ni si - had been recalled and that the writ of injunction was denied.

In passing on this case in our original opinion, we said: “If the court maintained the exception of no cause of action, the judgment maintaining the exception should hare been signed, otherwise the appeal was premature. H. P. Hicholls vs. Clara Maddox, 52 La. Ann. 496, 26 South. 994.” This court did not know if the lower court had maintained the exception or not, but said if it had, the appeal was premature.; and under the decision cited above the only alternative would be the dismissal of the appeal, because a judgment maintaining such an exception is final, must be signed before an appeal will lie therefrom. State vs. Dalcour, 145 La. 1007, 83 South. 227; Wellman, State ex rel., vs. Bell, 142 La. 662, 77 South. 493. This court did not remand the case to have such a judgment signed, nunc pro tune. After stating that such a judgment should have been signed, that otherwise it was premature, we said: “If the court maintained the plea of defendant that the acts invoked by plaintiff were unconstitutional, the Supreme Court and not this court would be vested with appellate jurisdiction in this case. Constitution of 1921, Article 7, Section 10, paragraph 4, p. 40.” We then ordered the record returned to have the judge sign the judgment he had rendered in the case, the nature of which we had no knowledge, and. could gather none from the record. If the court had in reality denied the injunction on the ground that the act or acts upon which it had been issued was or were unconstitutional, upon a judgment so declaring returned here under the order issued by us, instead of having to dismiss the appeal, we would have transferred it to the Supreme Court, the proper court for which such appeals, as provided for when appeal are taken to the wrong court. See Act 56, 1904, as amended by Act 19, 1912.

Under the record as returned, we can not order such a transfer, and must dismiss the appeal, and it is so ordered at the cost of appellant.

In my opinion this appeal should have been dismissed at first and I therefore concur in the above decree.

(Signed) PAUL LECHE,

Judge.

I dissent from the judgment dismissing this appeal for the reason that the first appeal was sent back with instructions that the judgment appealed from be signed. It was sent back and signed and returned and our action is final.

This appeal should not be dismissed by us. The appeal should be decided on the question before us.

(Signed) CLAY ELLIOTT,

Judge.


author: ELLIOTT, J. ELLIOTT, J.

text:
    No. 552
    First Circuit
    JOE PLANTIAZO v. O. C. SNELL
    (March 2, 1926, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest—Judgment—Par. 164.
    Where a suit is dismissed on the ground that the petition omitted allegations of fact necessary to justify the judgment prayed for, it is not res adjudicata against another suit containing the same demands.
    Appeal from the Twenty-first Judicial District Court, Parish of Tangipahoa, Hon. Columbus Reid, Judge.
    Action by Joe Plantiazo against O. C. Snell to have a servitude of road recognized and the road opened. A plea of res adjudicata was sustained.
    Plaintiff appealed.
    Judgment reversed and ease remanded for further proceedings according to law.
    S. S. Reid, of Amite, attorney for plaintiff, appellant.
    R. S. Ellis, of Amite, attorney for defendant, appellee.
   ELLIOTT, J.

On October 6, 1925, Joe Plantiazo, stating in his petition that he was some times known as Joe Lombardo, alleged that O. C. Snell had built his fence across a road to which he is entitled, sued to have a servitude of road in favor of his land recognized and the road opened. Mr. Snell urged as an exception to his suit a plea of res adjudicata, which was sustained by the court and the suit dismissed by judgment signed October 15, 1925.

Joe Plantiazo prosecutes a suspensive appeal from this judgment. This appeal was argued and submitted to us with an appeal in case entitled Joe Lombardo vs. Mrs. Theresa P. Snell & O. C. Snell, her husband in a suit filed January 14, 1925. In this, mentioned suit Joe Lombardo alleged that he was the owner of the land, the same claimed by Joe Plantiazo in suit No. 552. That Theresa P. Snell, wife of O. C. Snell, had built her fence so as to deprive him of the road, the same claimed by Joe Plantiazo. He brought suit against Mrs. Snell to have recognized the same servitude of road, etc. Mrs. Snell excepted to his suit, on the ground that his petition disclosed no cause of action; which was sustained and the suit dismissed by judgment signed Feb. 3, 1925. Prom this judgment Joe Lombardo prosecutes a devolutive appeal.

Por the purpose of the plea of res adjudicata raised in suit No. 552, we consider Joe Plantiazo and Joe Lombardo as one and the same person; and that suit No. 60 against Mrs. Snell had the same object in view as suit No. 552 against Mr. Snell; and that the interest of Mr. and Mrs. Snell is one and the same.

No brief appears in the record in behalf of Mrs. Snell, but the judgment dismissing suit No. 60 entitled Joe Lombardo vs. Mrs. Theresa P. Snell, was evidently based on the ground that the petition of the plaintiff omitted allegations of fact necessary in order to justify the judgment prayed for by the plaintiffs; therefore that judgment is not res adjudicata against suit No. 552; if plaintiff’s petition in that case alleges facts sufficient to justify the judgment prayed for.

Laenger vs. Laenger, 138 La. 532, 70 South. 501; Carolina Portland Cement Co. vs. Southern Wood Distillates & Fiber Co., 137 La. 469, 68 South. 831; New York Mercantile Co. vs. Cody Lbr. Co., 133 La. 729, 63 South. 304; Banohan vs. Svarva, 146 La. 909, 84 South. 200; Kittredge vs. Graw, 158 La. 155, 103 South. 723.

The petition in suit No. 552 is not said to be open to the objection urged against suit No. 60; therefore the judgment sustaining the plea of res adjudicata and dismissing suit No. 552, entitled Joe Plantiazo vs. O. C. Snell, is' erroneous.

For the above reason the judgment appealed from is annulled, reversed and set, and the case remanded to the lower court for further proceedings, as the law provides.

Defendant and appellant to pay cost of the appeal and the cost of the exception in the lower court.

ELLIOTT, J.

In this case, for the reasons stated in suit No. 552 entitled “Joe Plantiazo vs. O. C. Snell”, this day decided, the judgment appealed from is affirmed. The plaintiff and appellant to pay the cost in both courts.


author: LECHE, J.

text:
    No. ____
    First Circuit.
    OVERTON v. BROWN, ET AL.
    (January 28, 1926, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest—Marriage—Par. 128.
    Where a woman, in good faith, marries a man who is married to another woman, her interest in the community property acquired by herself and husband will be recognized by the court.
    2. Louisiana Digest — Appeal — Par. 625, 630.
    The finding of the trial court that a payment on the purchase price of real estate was made with the separate funds of the erroneous is revealed.
    Appeal from the Parish of LaFourche, Hon. R. B. Butler, Judge.
    Action by Rossella Bank Overton against Ethel Overton Brown, et al.
    There was judgment for plaintiff and defendant appealed.
    Judgment amended and affirmed.
    Caillouet and Caillouet of Thibodaux, attorneys for plaintiff, appellee.
    Charles J. Mundy of Thibodaux, attorney for defendant, appellant.
   LECHE, J.

Nelson Overton lived with his wife, Lizzie Williams, in the parish of Pointe Coupee. About the year 1913 he abandoned his wife, left that parish and moved to the parish of Lafourche. There he met Rosella Banks, plaintiff in this suit, whom, in negro parlance, he took up with and with whom he lived at first in concubinage and later on as his wife until June 18, 1923, when he died. Rosella says they took up together the same year they met, 1913, and it is in evidence that they were (married August 4, 1917. The marriage was regular, in due form and in good faith oil the part of plaintiff, though Overton’s wife, Lizzie Williams, was still alive and undivorced in the parish of Pointe Coupee.

On July 30th, 1920, they acquired a lot of ground in the town of Thibodaux from John F. McCulla. The act of sale is made in the name of Nelson Overton and Ophelia Banks, his wife. Ophelia Banks and Rosella Banks are the names of the same person, who is plaintiff herein. The act of sale says nothing as to the source whence came the money with which a cash payment of one hundred and sixty dollars was made and a note for three hundred and ninety dollars was made and signed jointly by the purchasers in representation of the balance of the purchase price of five hundred and fifty dollars.

On September 10, 1923, Ethel Overton Brown and Margaret Overton, alleging themselves to be sole heirs of Nelson Overton, caused themselves to be put in possession of the property thus bought by Nelson Overton and Rosella Banks, and the present suit was filed by Rosella Banks September 22, 1923, to set aside the order putting Ethel and Margaret Overton, the defendants, in possession, to have herself recognized as widow in community, owner of one-half of said property in her own right and owner of the other half as widow in community.

Lizzie Williams, first and lawful wife of Overton, was subsequently made party defendant, and practically substituted as defendant in this suit.. Ethel Overton Brown and Margaret Overton, original defendants in this action, have virtually stepped out of this litigation for the benefit of their mother, Lizzie Williams.

The trial in the District Court resulted in a judgment recognizing the validity of the first marriage and .also the validity of the second marriage in so far as concerns plaintiff, who is held to have acted in good faith, recognizing the legitimacy of Ethel and Margaret Overton, original defendants herein, as children of Lizzie Williams and Nelson Overton, but recognizing the property in suit as having been acquired during the second community and decreeing said property to belong in its entirety and in equal portions to the two surviving wives, Lizzie Williams and Rosella Banks.

The judgment of the District Court further recognized that plaintiff had contributed out of her separate funds the sum of one hundred and sixty dollars in the purchase of the, property in suit, and ordered that she be paid this amount out of the community assets. It is not made clear whether this payment should be made out of the whole property or out of the half decreed to belong to Lizzie Williams. However, under our view of the evidence in the case, that is of no importance, as will later appear.

Lizzie Williams alone has appealed from the judgment thus rendered, and her sole ground of complaint in this court is that the trial judge erred in recognizing Rosella Banks as entitled to a claim of one hundred and sixty dollars for having used her separate funds to that amount in buying the lot of ground in Thibodaux.

Plaintiff as a witness repeatedly claims that she paid MeCulla two hundred and twenty dollars of her own money before the sale was passed. (Est., pp. 10 and 21.) She says that her husband and herself rented the lot of ground two or three months before the sale, but it is not shown when these payments were made. MeCulla, a disinterested witness, whose testimony appears to be unimpeachable, says that he received in cash from plaintiff and her husband, in various amounts, one hundred and sixty dollars before the sale was passed, and it was when the small partial payments had reached this sum that he deeded the property to plaintiff and her husband. The act of sale shows a cash payment of one hundred and sixty dollars. MeCulla further says that the money was brought to him by the two purchasers, who always accompanied one another on these occasions.

Again plaintiff says (Test., p. 27) she paid him the first time forty dollars and she thinks she paid him the next time ten dollars. She reiterates that statement (Test., p. 28) and then she thinks she paid him fifty dollars. Her testimony varies at different times. It is unsatisfactory and by no means convincing. She began to live with Overton in 1913, married him in 1917, and the property was bought in 1920. It is not stated in the act of purchase that plaintiff used her own separate funds, and the legal presumption is that the purchase was made with community funds for the benefit of the community existing between plaintiff and Overton. When the sale was passed plaintiff and Overton had been married three years, they both had worked since they had begun living together, and the probability is that they only began to pay McCulla after they had rented the lot from him, a few months before the sale, and that the cash payments were made with funds earned by them after their marriage. Considered from any standpoint, we do not think the evidence sustains the claim of the plaintiff, and we believe that the award of one hundred and sixty dollars in her favor should be reversed and the judgment appealed from should be accordingly amended.

For these reasons it is ordered that the judgment appealed be amended by refusing the award of one hundred and sixty dollars in favor of plaintiff, and as thus amended that it be affirmed, plaintiff and appellant to pay costs of appeal:


text:
    No. 4032.
    First Circuit.
    HOWARD v. FACIANE.
    (March 2, 1926. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest—Appeal—.Par. 625.
    The finding of the trial court on questions of fact is amended only Where clearly erroneous.
    2. Louisiana Digest—Obligations—Par. 7.
    In view of Articles 1800, 1809, 1901, et seq., and 1945 of the Civil Code, after an offer has been accepted, it constitutes an agreement which has the effect of law between the parties.
    Appeal from the Twenty-sixth Judicial Court, Parish of St. Tammany, Hon. P. B. Carter, Judge.
    Action by Austin Howard against one Onesime Faeiane for the price of an automobile and exemplary damages.
    There was judgment for plaintiff in part and defendant appealed.
    Judgment amended and affirmed.
    S. W. Provensal of New Orleans, attorney for plaintiff, appellee.
   ELLIOTT, J.

Austin Howard alleges that an employee of Onesimo -Faeiane came to his place and without his knowledge or consent, but with the full knowledge and authority of Onesimo Faeiane, took plaintiff’s automobile. That plaintiff found it in the possession of Faeiane and demanded it back. That Faeiane informed him that he had sold the car, and wanted to give plaintiff credit on the price of another car which he sought to sell to the plaintiff. That plaintiff declined to do this and demanded the return of his automobile, which Faeiane refused. That Faeiane finally offered to return the automobile, provided plaintiff would pay approximately $17.00 expended by defendant in repairing the car; which plaintiff declined to do and brought suit for the price of the car, alleging that it is Worth $300.00. He also claims $500.00 as exemplary damages, etc.

The defendant denies all of plaintiff’s allegations, and prays that his demand he rejected.'

The defendant appeals from a judgment in favor of the plaintiff for $300.00.

The preponderance of the evidence received without objection, until so such had been received that there was no use to object, shows that plaintiff’s allegations about the unauthorized taking of his automobile by defendant are unfounded.

Defendant’s salesman sent to plaintiff’s residence and got his automobile for the purpose of selling it, pursuant to an agreement with plaintiff to that effect; and the price received for plaintiff’s car was to be applied as part payment in the purchase of a new car.

A party who has entered into an agreement can change his mind and make it known to the other before he has accepted. If he does this there is no agreement. C. C., Arts. 1800 and 1809.

In this case the preponderance of the evidence shows that plaintiff did not notify defendant that he had changed his mind until after defendant had accepted and negotiated a sale of plaintiff’s automobile, and had expended on it approximately $25.00 for necessary repairs, in order that the sale might be made.

An agreement legally entered into has the effect of a law between the parties. C. C., 1901-1945. But defendant does not allege the agreement, nor pray for any judgment, except that plaintiff’s demand be rejected. Still the evidence received without objection can not be ignored, and defendant can not have plaintiff’s automo.bile and the price, too. The automobile can not be restored; but the price can be turned over to the plaintiff. The evidence shows that defendant first sold the car for $300.00 He then got it back and tendered it to the plaintiff, with the proviso that plaintiff pay him the sum expended for repairing it, in order to effect the sale. The plaintiff refused to do this, claiming that defendant had used it and worn out the tires,- etc. But if plaintiff gets the ’ price, he is not entitled to pay for the use of the car nor for the tires and equipment; such things went with the car when defendant sold it, ánd the first sale was made very soon after it had been received for the purpose. In the negotiation defendant, although he says he had expended more, announced to the plaintiff his willingness to receive $16.00 in full settlement of the sum lie had expended for repairs. The price which defendant received in the first sale is the price he should pay and account for to the plaintiff. Defendant, however, practically speaking, did not receive $300.00 net; he received that sum; but he had expended say $25.00, although willing to settle for $16.00, and, as the sum expended was an expense necessary to enable defendant to effect the sale, we think the sum which defendant must pay to the plaintiff is $300.00, less $16.00. Plaintiff’s claim for punitive and exemplary damages has no foundation on which to rest. The District Judge properly appreciated the evidence and rendered judgment in favor of the plaintiff against the defendant for $300.00, but he overlooked the fact that defendant did not receive that sum for the car, net, but less the sum he had expended for repairs necessary to enable him to sell it at that price, and defendant was willing in negotiating with plaintiff to take $16.00 in full settlement of the sum he had expended on that account, although he had really expended a greater sum; we will allow that sum as a credit.

For the above reasons the judgment appealed from will be amended. The amount to be paid by the defendant to the plaintiff is fixed at $300.00, less $16.00, and as 'thus amended the judgment appealed from is affirmed. The cost of the appeal to be paid by the plaintiff, the cost in the lower court by defendant.


text:
    No. ________
    First Circuit.
    FISHER v. SHERRILL HARDWOOD LUMBER CO., INC.
    (January 28, 1926. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest—Master and Servant —Par. 154, 156.
    Under Section 28, Paragraph 1, of the Workmen’s Compensation Act No. 20 of 1914, no compensation is allowed for an injury caused by the injured employee’s willful intention to injure another.
    2. Louisiana Digest—Master and Servant —Par. 154, 156.
    Where an employee is killed by his foreman while attacking him, evidently intending to kill or do him bodily harm, the employee’s relatives cannot receive compensation under Section 8, < Par. 2(g) of the Workmen’s Compensation Act No. 20 of 1914 because of the provision in Section 28, Par. 2, of the same act.
    Appeal frm the Fourteenth Judicial District Court, Parish of Beauregard, Hon. Jerry Cline, Judge.
    Action by Louise Fisher, et al., against the Sherrill Hardwood Lumber Co., Inc., for compensation brought by the father and mother of the deceased employee.
    Judgment for defendant.
    Plaintiff appealed.
    Judgment affirmed.
    Fern M. Wood of Leesville, attorney for plaintiff, appellant.
    Cline and Planche of Lake Charles, attorneys for defendant, appellee.
   ELLIOTT, J.

Plaintiffs Warren and Louise Fisher, father and mother, and Maime Fisher, sister of Buck Fisher, claim of defendant, Sherrill Hardwood Lumber Co., Inc., $4,680.00 as compensation for the death of Buck Fisher.

They allege that Buck Fisher, while in the employment of defendant felling trees by means of a cross-cut saw, was shot and killed by H. H. Graham, defendant’s foreman, in a dispute between them; that the killing was an accident within the meaning of the Workmen’s Compensation Law.

The sum claimed is 65 per cent of the daily wages of the decedant for a period of 300 weeks.

Defendant admits that Buck Fisher was shot and killed by its foreman, H. H. Graham, but denies that Buck Fisher was in defendant’s employment at the time; alleges that he had quit working for defendant, demanded his time, and that while the foreman, Graham, was proceeding to get an order that would have enabled decedant to collect whatever was due him, that decedant followed, caught up with him and willfully and feloniously set upon, assaulted and attacked its foreman with the intention of killing him or inflicting on him grievous bodily harm. That said Graham, being then and there in danger of his life or grievous bodily harm, shot and killed decedant in self-defense.

The liability for compensation claimed by plaintiff is denied by defendant.

The District Judge rejected plaintiff’s demand and they have appealed.

One of the witnesses for the plaintiffs, speaking of the difficulty, says that Mr. Collins told Buck Fisher and his partner to go back and cut some trees that they had left, and that Buck Fisher said he would rather quit than go back and cut them; that Mr. Graham then stepped up, and Buck Fisher said to him: “I would be glad to have you give me my time.” That Mr. Graham said he ' would. The witness claims that the above is all that he heard; but he must have either heard or saw something more, because he says: “I raised to look and saw Mr. Graham with, a gun, and Buck Fisher was in between Mr. Graham and me”; “and the gun fired, and that the next time he saw them Graham had the gun pressed to Buck Fisher’s back and fire it, and then they turned loose from one another,” etc.

The witness further states that Buck Fisher was standing still when Mr. Graham fired; but that Buck Fisher was not where he was going to work when he was shot.

Another witness for plaintiffs claims to have heard nothing, but to have seen the shooting, and says that Buck Fisher was not at the place where he was to work at the time he was shot, but had followed Mr. Graham ten to fifteen steps down the tract, etc. Plaintiffs’ witnesses establish the fact that Buck, Fisher had refused' to do certain work at the request of the foreman over him; quit work and demanded his time; followed the foreman and was clinched with him in a fight at the time he was killed.

According to Mr. Graham and Collins, witnesses for defendant, Buck Fisher followed Mr. Graham, cursing him, threatening to do him great bodily harm, and had in his hand at the time either a saw handle or lightwood knot, and attacked Mr. Graham, evidently intending to kill him or do him great bodily harm; that Mr. Graham shot him in the encounter in self-defense.

Therefore, taking no notice of the evidence to the effect that Buck Fisher had quit his employment with defendant before engaging in the difficulty and looking at the case as if he was still employed, the judgment appealed from is correct, because the law Act 20 of 1914, Sec. 28, provides, “That no compensation shall be allowed for an injury caused by the injured employed’s willful ihtention to injure another.”

It is clear that Buck Fisher was endeavoring to injure him, the foreman, in the employ of defendant at the time he was killed. Under the law the plaintiffs can not recover. The judgment appealed from is correct.


text:
    No. -
    First Circuit
    BROWN v. WEBER KING LUMBER COMPANY
    (December 9, 1925, Opinion and Decree)

      (Syllabus Tyy the Editor)

    1. Louisiana Digest—Master and Servant —Par. 156.
    One who enters into an agreement by which he is to select crossties, haul them to the tram road, using his own tools fór which he is paid a specified sum per tie, is an independent contractor under the Workmen’s Compensation Act No. 20 of 1914, Section 6, as amended by Act 38 of 1918.
    2. Louisiana Digest—Master and Servant —Par. 156, 160 (a).
    One who works for an independent contractor or divides the money received with the independent contractor cannot recover from the contractee under the Workmen’s Compensation Act No. 20 of 1914, because he is not an employee of the contractor.
    Appeal from Yernon Parish. Hon. Hal. A. Burgess, Judge.
    Action brought by Mrs. J. D. Brown, widow, for herself and minor child for compensation under the Workmen’s Compensation Act 'No. 20 of 1914.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Fern M. Wood, of Leesville, attorney for plaintiff, appellant.
    Hardin, Hardin & Cavanaugh, of Lees-ville, attorneys for defendant, appellee.
   MOUTON, J.

This suit is brought under the Employers’ Liability. Act by plaintiff, widow of J. D. Brown, for their minor children.

The case comes up on a statement of facts.

This statement shows that defendant company had entered into a verbal contract with J. W. Brown, the father of J. D. Brown, deceased, whose widow is plaintiff in this suit. Under this contract J. W. Brown was to select the ties from timber belonging to defendant company and haul them to the tram road of the company. J. W. Brown furnished his own tools, was to charge twenty-five cents per tie, but there was no specification as to the number of ties he was to get out. There was no foreman or superintendent appointed by the company to control J. W. Brown as to his time or manner of work, the company reserving the right of rejecting such ties as did not come up to the standard. J. D. Brown was working with J. W. Brown when, he suffered the injury to his knee from which he died some time after.

The defendant company had no knowledge of the employment of J. D. Brown by J. W. Brown, whose name, obviously, was not carried on the payroll of the company. The above synopsis of the admitted facts brings this case clearly within the ruling in the case of Clark vs. Tall Timber Lumber Company, 140 La. 380, 74 South. 239, where it was held in conformity with many prior decisions that under a contract of the character above detailed, the party who enters into such an agreement is in law an independent contractor. It is also admitted in the statement of facts that the collections under the contract were made every two weeks by J. W. Brown, “which he divided equally with J. D. Brown”. This last quoted clause embodies the vital issue presented for decision in this case. There are no decisions of our court that we have been referred to or. that we are aware of that have passed on this question. In the case of Fidelity and Deposit Company vs. Brush, 168 P. 890, the father, an independent contractor, entered into an agreement with his son in which it was stipulated that the amount he would receive for his work would be equally divided between them. The only difference here is that the son was to divide with his father. In that case the court held that the son was not an employee, but had to be considered in the light of an independent contractor, and was not entitled to compensation for the injury. This was likewise held as the correct doctrine in Donlon Bros. vs. Industrial Accident Commission, 159 P. 715.

Counsel for plaintiff refers us to Sec. 6, Act 20, 1914, as amended by Act 38, 1918, in support of his contention that the widow and minors are entitled to recover in compensation. This section, as we understand its provisions, refers to a' case where the contractor employs another contractor to execute the work undertaken by the original contractor, termed the principal, in the statute. Such principal, says this section, shall be liable to pay to any employee employed in the execution of the work any compensation he would have been liable to pay if the employee had been immediately employed by him. The following words used in this section, viz.: “Shall be liable to pay to any employee employed in the execution of the work”, has reference to “contracts with any person” the second contractor has contracted with to execute the work undertaken by the original contractor, designated as the principal in Section 6 of the Compensation Act. The original contractor here or the principal was J. W. Brown. There was no other “person” or contractor employed by him to execute the work originally undertaken by him with defendant company; and as there was no such 'contractor or. subcontractor employed by J. W. Brown, no employee could have been employed by a second or sub-contractor. The conditions intended to be covered by the provisions of Section 6 of the Act are not present here, but conceding that such conditions exist, defendant could not be affected thereby, as it did not know that J. W. Brown, the original contractor, had entered into an agreement with J. D. Brown. If by a forced construction this section could be made to apply to the issues submitted herein, plaintiff could not, however, obtain the relief sought, because the deceased, J. D. Brown, was, according to his agreement with J. W. Brown, entitled to half of the profits the latter was to receive under his contract with defendant company, was therefore not an employee, but was also an independent contractor.

The claim was properly rejected.


author: ODOM, J.

text:
    No. 2290
    Second Circuit
    TOWNSEND v. MISSOURI PACIFIC RAILROAD COMPANY
    (November 7, 1925, Opinion and Decree)
    (April 19, 1925, Rehearing Refused)

      (Syllabus by the Editor.)

    1. Louisiana Digest—Railroads—Par. 58.
    It is the duty of the employees of a railroad company to use ordinary care and precautions to prevent injury to persons or property at crossings even though these crossings are used very little.
    2. Louisiana Digest—Railroads—Par. 61.
    Making a flying or running switch is particularly dangerous under any circumstances. Therefore, where a gondola car, while making a flying switch, collided with a Ford truck on a crossing, employees of 'the railroad are negligent even though the crossing was used very, little.
    3. Louisiana Digest—Railroads—Par. 63, 64.
    It is negligent for the driver of an automobile truck to back the truck onto a railroad track without being sure that there was no train or ear approaching. Where his view is obstructed he should leave the driver’s seat and walk to a point where he can obtain clear view of the track before backing his truck on it.
    4. Louisiana Digest—Railroads—Par. 64.
    It is not only the. duty of one about to cross a railroad track to stop, look and listen once, but it is also the duty to continue to keep a watch of the track.
    5. Louisiana Digest—Negligence—Par. 25.
    Contributory negligence on the part of the plaintiff defeats recovery.
    6. Louisiana Digest—Railroads—Par. 66.
    The doctrine of last clear chance does not apply to the train crew where there is no evidence to show that they were cognizant of the peril of the driver of the automobile trtfck and could have avoided the collision with it.
    7. Louisiana Digest—Evidence, Par. 42; Railroads—Par. 80.
    Where litigant has an opportunity of producing a witness and fails to do so the presumption is that the testimony of such witness would be against him, but this does not constitute an admission that the testimony would have been against him.
    Appeal from the Ninth Judicial District Court of Louisiana, Parish of Rapides, Hon. John A. Williams, Judge.
    Action by Sidney a Townsend against the Missouri Pacific R. R. Company for damages for personal injuries arising out of a collision between a gondola car of the railroad and a Ford truck.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed.

      Overton and Hunter, of Alexandria, attorneys for plaintiff, appellee.
    Hudson, Potts, Bernstein and Scholars, of Monroe, attorneys for defendant, appellant.
   ODOM, J.

This is a personal injury suit growing out of an accident which occurred at Tioga, Louisiana, on July 9, 1923, in which a Ford truck, occupied and driven by plaintiff, was struck by a gondola or coal car on a spur or switch track of the defendant company, resulting in serious injury to the plaintiff.

Plaintiff brought suit for $20,000. The case was tried before the court in May, 1924. The court found for plaintiff and gave judgment against the defendant for the sum of $6,000. Defendant has appealed.

Plaintiff was employed by the Lee Lumber Company to deliver ice, for which purpose he used a Ford truck.

He alleges that while driving this truck over what is termed the “Government” spur track of the defendant company at a public crossing the defendant, through “gross fault and negligence” kicked back a string of cars along said track, striking said truck directly behind the driver’s seat, demolishing it and hurling plaintiff from said truck to the ground, inflicting upon him serious injuries.

And it is alleged—

“That said cars were kicked down said Government track without blowing a whistle, ringing a bell or any prior warning of their approach having been given, and without any lookout, or, if any lookout, a totally ineffective lookout stationed upon said cars, and without any flagman stationed upon the ground at said crossing to protect the travelling public in the use of the same.”

And it is further alleged that said cars were sent down said track at an excessive rate of speed of about fifteen miles an hour.

It is especially alleged—

“That said accident and collision occurred without any fault or negligence on the part of your petitioner; that your petitioner was free from all blame; that said accident and collision and resultant injury to your petitioner were due to the gross fault and negligence of defendant railroad company.”

And it is further alleged—

“That in the event it should be averred and proved that your petitioner was guilty of any contributory negligence, which contributory negligence is denied, then in such event and in such alternative your petitioner shows that said railroad company had the last clear chance to avoid said collision and resultant injury.”

Defendant, in answer, denied especially that the roadway where the accident occurred is a public crossing and denied plaintiff’s allegations of fault and negligence and especially pleaded defendant’s contributory negligence in backing the truck onto the railroad track without exercising due precautions.

OPINION

Defendant’s main line of railroad runs approximately north and south through Tioga, Louisiana, a village with a population of about 500. About one-half of the inhabitants of that village live on the east side of the track and the other half on the west side. Its depot is on the east side. Defendant’s right-of-way line runs parallel with and about 100 feet east of the line of railroad. All the property, it seems, east of the right-of-way line and contiguous thereto is owned by the Lee Lumber Company, a sawmill concern, where its saw and planing mills are located together with lumber shed, lumber yard, warehouse and an office building and one other building in close proximity thereto.

There is also built on the Lee Lumber Company’s property, very close to defendant’s right-of-way, a barber shop and an ice house with an alley between them twenty feet wide; this alley running approximately east and west.

The switch called the “Government” spur track branches off from the east side of the main line of railroad a distance of about 440 feet north of the north side of the barber shop (the barber shop being north of the ice house) and runs on the east side of these two small buildings.

Coming from the east, there is a roadway which crosses the “Government” spur track opposite the twenty-foot alley above mentioned.

It was at this crossing that .the collision between the truck occupied by the plaintiff and the defendant’s gondola or coal car took place.

Branching off from the west side of this “Government” spur track at a distance of about 300 feet from the barber shop is another switch track which runs in the same general direction as the other spur track and the main line. This is designated on the plats in evidence as the “back track”.

Just a few feet north of the barber shop another switch track branches off from the last mentioned “back track”; making two switch tracks, designated as “Missouri Pacific No. 1” and “Missouri Pacific No. 2”, both of which run west of the barber shop and ice house, so that these two buildings are-between these two tracks and the “Government” spur track.

A public highway, built and maintained by the parish, runs east and west and crosses the “Government” spur track, the “back track” and the main line about 200 feet north of the north side of the barber shop.

Branching off from this public highway at right angles about 100 feet east of the “Government” spur track there is an open roadway running south in front of the Lee Lumber Company’s office and down in the general direction of the barber shop and ice house.

Opposite - the barber shop and the ice house this roadway divides, .one branch running on south to the mill and the other turning west and crossing the “Government” spur track where the accident occurred.

After crossing the “Government” spur track the roadway divides again, one branch continuing west into the alley between the barber shop and the ice house and the other running south around the south side of the ice house and then turning in a general westerly direction to the depot.

These roads are not public roads in the sense that they were laid out and designated as such by the Police Jury nor are they public streets laid out and dedicated by the village. They are not worked and kept up by either the parish or the village. But they are public roads in the sense that they are used by the public at will. They are travelled by both pedestrians and vehicles at all times of the day.

Likewise the crossing over the “Government” spur track is not a public crossing in the sense that the switch crosses a public highway or a public street.

These roads and this crossing are on the premises of the Lee Lumber Company and in its lumber yard.

Plaintiff contends that these roads are public roads and that this crossing is a public crossing and invokes against the defendant the general rule laid down by law writers and followed by the courts that it is gross negligence per se for the employees of a railroad company to make a “flying” switch on railway tracks running across public highways or streets through populous sections without signals or other warnings to notify travellers of the danger.

On the other hand, the defendant contends that these roads are private roads and this crossing a private crossing, and it invokes in its favor the general rule that a railroad company is not required to give signals or keep lookouts at private crossings—

“* * * although the place is used repeatedly and frequently as a crossing with the mere silent acquiescence of the company, or with the knowledge and simply passive permission of the company, it would seem ordinarily at least that the traveller who uses it is at most a bare licensee, who takes his license with all its concomitant risks and perils, and as a general rule, the company owes him no duty greater than that which is due to a trespasser. In order to impose upon the company the duty to treat a place as a public crossing, those who use the place as a crossing must either have a legal right to use it, or must use it at the invitation of the company, and ‘neither sufferance, nor permission, nor passive acquiescence’ is equivalent to an invitation.”

See, Elliott on Railroads, vol, 3, page 494.

All witnesses say that this crossing has been used by both pedestrians and vehicles for a number of years. It was planked on each side a number of years ago by the Lee Lumber Company. The defendant company “cuts” its cars there and keeps it open to traffic. The depot is on the west side of its track and all persons living on the east side of the track who haul freight either to or from the depot cross there. We do not get the impression, however, that there is a great deal of freight hauled. It is used also by people who haul lumber from the two lumber sheds on the west side of the track, and the Lee Lumber Company hauls its ice over the track,

One witness, Mr. Lindley, says that on an average five vehicles a day cross there; and another witness says that as many as twelve vehicles cross this track at that crossing in a day; but that persons crossing the track in vehicles used for other purposes cross at the main highway north of this crossing.

There is a boarding house over on that side accommodating, one witness says, as many as eighteen laborers. These men, or some of them at least, cross at this place in going to and from the lumber sheds on the other side. It is also used by other pedestrians going to the depot, to the ice house and to the barber shop, as well as by pedestrians from that side going to the ice house to get ice.

The following testimony was given by Mr. H. T. Whatley, a witness for plaintiff, and, in substance, is about what all other witnesses said as to the character of this crossing:

“Q. Please state whether or not that accident crossing is used and has been used since you have been out at Tioga?
“A. It has been used a number of times each day.
“Q. For what purpose is it used?
“A. By trucks and wagons to haul lumber from the mill, used by vehicles of all kinds in going to the freight office to get freight and carry freight and used by trucks and vehicles, to go to the ice house to get ice.
"Q. You state that it is used a number of times each day for those purposes?
“A. Yes, sir.
“Q. Is it used at certain hours or at different hours during the day?
“A. I would say that it is used at all hours during the day.
“Q. Is it used by pedestrians?
“A. Yes, sir.
“Q. Used rarely or frequently by pedestrians?
“A. Frequently, especially during the summer months.
“Q. Why is it used during the summer months?
“A. Because it is used to get ice.”

On cross-examination Mr. Whatley said the ice house and ice business belonged to the Lee Lumber Company and that ice was delivered only up to about eight o’clock in the morning and at other times during the day when they had calls for it.

The testimony shows that the truck which was being driven by plaintiff was owned by the Lee Lumber Company and that plaintiff was employed to deliver ice and that he made his regular rounds in the morning hours to deliver ice to its customers.

On the occasion of the accident the defendant had ten cars, one box car, three flat, cars and six gondola or coal cars on its track which were all connected with an engine and which it desired to place at different points on its tracks.

It carried all these cars north on the main line until the south end of the rear car, which was a box car, was north of the switch- Then by means of the “kicking back” process or a “flying” switch or “shunting” back it sent the box car back down south'on the main line; the three flat ears, which came next, were sent down the mill track on the west of the" barber shop and the ice house, and the other "six cars, all gondola or coal cars, were sent down the “Government” spur track and over the crossing where the collision took place.

This was all done simultaneously, with one movement of the engine. There was a brakeman at each of the switches to throw the switch. One of these brakemen got on the flat cars which were sent down the mill track and followed them for the purpose of stopping them at the right place.

The brakeman who threw the switch at the place 'where the mill track branches off from the “Government” spur track says he sent the gondola or coal cars down the later track and after manipulating the switch walked back north, the direction from which the cars were coming, and got on the rear end of the rear car, where he was when the collision occurred.

It seems that the south end of this track runs up grade and the testimony shows that the brakemhn followed these cars for the purpose of setting the brakes at the right time in order to keep the cars from rolling back.

There was no one on the lead or forward car and the brakeman on the rear end of the string of cars did not see the accident.

There was no watchman to flag the crossing.

The forward end of the lead car reached the crossing just as the defendant backed the truck up on the track.

The testimony shows that the brakeman, John Nunnally, was stationed at the public road crossing which has already been mentioned, as being about 240 feet.north of the accident crossing, in order to guard that crossing. After the south end of the lead car passed that crossing he walked back and took his place on the rear end of the rear car, as before stated.

But there was no effort made to guard the crossing where the accident occurred.

There is, as usual, a conflict in the testimony as to the speed of these coal cars which struck the truck and as to whether the bell on the engine was ringing during these operations. Witnesses for plaintiff say they were sent back over the track at a speed of twelve or fifteen miles an hour, while all the train crew say that the speed was not more than five or six miles an hour. None of the witnesses for plaintiff heard the ringing of the bell while each member of the train crew testified that the engine was equipped with an automatic bell ringing device and that the bell was ringing all the while.

We are inclined to the belief that the bell was ringing, but that neither plaintiff nor any of his witnesses heard it.

It is alleged in answer but not proved that the whistle was blown.

The testimony shows also that this method of handling cars is constantly practiced at this and other place on defendant’s road and is approved by the American Railway Association.

Counsel for plaintiff argue that in thus handling these cars the employees of the defendant company were negligent.

In that view we concur.

The following excerpt is from a case note volume 10, American and English Annotated Cases, page 15:

“However, making a flying or running switch, or kicking cars, is particularly dangerous under any circumstances, and the practice has been frequently condemned by the courts as a fruitful source of accidents.”

(Citing authorities.)

“In vfact, the practice of making flying switches or sending detached cars along a railroad track is deemed so dangerous that some railroads have made rules prohibiting the practice.”

(Citing authorities.)

“It is difficult to lay down a general rule which will be applicable to every case of injury to person or property by means of a flying or running switch or the movement of detached cars; but it may be stated that it is negligence on the part of a railroad company to send detached cars across a street or highway crossing or for any other purpose by means of kicking or shunting the cars, or by detaching them on a 'down grade and allowing them to move by their own momentum, without giving the usual and necessary warning other than may be given by a brakeman standing on the moving cars, and with no means of control except such as may be had through an application of hand brakes.”

(Citing authorities.)

In Vance vs. Ravenswood, etc., R. Co., 53 W. Va. 338, the court said:

“It is very well settled that the practice of making ‘flying switches’ is deemed by the courts as dangerous and is negligence on the part of the railroad companies, especially when it is done at public crossings, and without any signals having been given.”

In the case of Mitchell vs. Illinois Central R. R. Co., 110 La. 630, 34 South. 714, the court, in discussing such movements by railroads, quote with approval Rhorer on Railroads, volume 1, page 491, as follows:

“It is at all times and in all places an operation attended with more or less danger.”

(Citing authorities.)

To the same effect could be cited many other text writers and many other decisions of our own as well as other courts.

The roadway involved in this case is not a street or public highway in a village or a city. The crossing is not on a street or highway in a populous town or city. But, nevertheless, the crossing was used to some extent by both pedestrians and vehicles to the knowledge of the employees of the defendant company.

Elliott on Railroads, volume 3, section 1647, page 494, says:

“The duties of the company and the traveller respectively at a private crossing are somewhat different from those imposed upon each at a public crossing. As a rule the company is not required at such places to give the signals required by statute or otherwise at public crossings, but it may, in particular instances, be a question for the jury, whether in the particular case it is negligence to omit the warning signals. The fact that people repeatedly cross the tracks at a place where there is no public right of passage does not necessarily entail upon the company any duty to treat the place as a public crossing and the fact that there are numerous trespassers and the act is committed often does not in itself relieve their presence upon the track of the character of a trespass; hut situations may arise from which the company ought reasonably to forsee danger, and in such cases it has been held that the company is not absolved from ordinary care and precautions to prevent injuries.”

The situation in this particular case was such that the employees of the defendant company should have foreseen danger. It was therefore their duty to use ordinary care and precaution to prevent injury to Piersons or property at this crossing.

Were this the only issue presented in this case we should hold - for the plaintiff on the ground that the defendant was negligent; but defendant has especially pleaded contributory negligence in bar of plaintiff’s right to recover. We must, therefore, determine whether plaintiff was guilty of contributory negligence and whether such negligence, if any, was the proximate cause of the injury.

On the occasion of the accident the plaintiff drove a Ford truck into the twenty-foot alley between the barber shop and the ice house in order to get ice. In doing so = he crossed the “Government” spur track. After loading the ice on the truck he attempted to back out the way he had gone in. The alley is formed by the south side of the barber shop and the north side of the ice house and the north side of another small building which at that time was located just east of the ice house. The southeast corner of the barber shop is thirty feet from the west rail of the track at the crossing, and the northeast corner of the small building located east of the ice house is seventeen feet from the rail.

It is therefore. but a short distance from where the truck was at the time it was loaded to the crossing.

There is a plank approach to the crossing which extends out six feet west of the west rail of the track.

The plaintiff backed the truck until the rear wheels rested against the west edge of this plank approach.

He says that he then stopped the truck “momentarily” and without “killing” the engine and looked up and down the track and that he neither saw nor heard the approaching cars.

He then proceeded to back the truck up on the crossing at a speed of one or two miles an hour, and he says that when the rear wheels of the truck had reached the east rail of the track tne truck was struck just behind the driver's seat by the gondola cars.

He says that he neither saw nor heard the approaching car until the moment it hit the truck.

At the place where he stopped the truck “momentarily” the driver’s seat occupied by him was fourteen feet and six inches west of- the west edge of the track*

His testimony is, and it is corroborated by that of his witnesses, that from .the place where he was sitting in the truck he could see up the track in the direction from which the cars were coming a distance of eighty-three feet, and seeing that the track was clear he attempted to negotiate the crossing by backing over it.

The driver’s seat is on the left hand side of the truck, the opposite side from which the cars was approaching, and in order to guide the truck over the crossing he looked back over his left shoulder and did not again look to the right to see if cars were approaching.

The testimony shows that from the point where plaintiff was at the time he stopped to look and listen his view up the track to the north was partially obstructed by the northeast corner of the barber shop, which accounts for the fact that he could see only eighty-three feet up the track; but by actual measurement it was shown that if he had backed his truck a little further before stopping he could have stopped it at a place where he could see approximately 250 feet up the track and. at the same time his truck would have been clear of cars passing down the track; or, if while backing the truck he had looked up the track again he could have seen the cars approaching.

Railroad tracks are themselves warnings and suggestions of danger. Plaintiff says he knew this was a dangerous crossing.

When he stopped and looked he saw and realized, of course, that his view of the track was partially obstructed by this barber shop. In keeping with ordinary prudence he should not have been satisfied with his view from the point where he stopped. It was his duty to seek a view of the track, from a point where he could see and hear. For a driver of a motor vehicle to merely stop, look and listen before attempting a railroad crossing does not meet the requirements of the law.

In the case of Young vs. La. Western Ry. Co., 153 La. 129, 95 South. 511, the court said:

“The duty to stop, look and listen before crossing a railroad must be performed at a time and place where stopping, looking, and listening will be effective.”

Citing 168 Fed. 21; 21 L. R. A. (N. S.) 794.

Provost vs. Y. & M. V. R. R. Co., 52 La. Ann. 190, 28 South. 305.

If there was no safe place where the plaintiff could stop the truck and get a view of the track from the driver’s seat it was his duty to get out and walk back. He was aware of the hazard and should have taken extra precautions.

It was so held in the case of Mankewwicz vs. Lehigh Valley R. R. Co., 214 Penn. 386 (63 Atl. 604), and in 33 Cy. 1021, we find the following:

“Ordinary precaution may also require that a driver of a vehicle should not only stop to look and listen where his view or hearing is obstructed, but that he should get out of his vehicle and approach the track and look along it in both directions for approaching trains. This precaution, however, is not required as a matter of law; but whether or not it should be taken is usually a question for the jury depend-ant upon the circumstances at the particular time and crossing; and ordinarily if a driver exercises due care in other respects, as in looking or listening, he is not bound to go ahead of his vehicle for that purpose, although it has been held that if by the exercise of such precaution the approaching train could have been seen, a failure to do so is contributory negligence as a matter of law.”

Furthermore, it was plaintiff’s duty not only to stop, look and listen once but he should have continued to keep a watch out.

Plaintiff says he looked only once, when he stopped only momentarily. When he looked he saw that his view of the entire track was obstructed by the house. That should have suggested to him that he should at least look again when he got nearer to the track; and while it is true that when he did stop he was not far from the track yet the conditions there were such as to suggest to him that' he should take the utmost precautions.

He says that the truck was moving at a speed of not more than one or two miles an hour. If that be true, it could have been stopped in an instant. If he had glanced up the track a moment before the car hit him he could have stopped the truck and avoided the accident.

See: Daull vs. N. O. Ry. & L. Co., 147 La. 1012, 86 South. 477.

Also Leopold vs. T. & P. Ry. Co., 144 La. 1000, 81 South. 602.

It was, we think, the grossest kind of negligence for the plaintiff to attempt to back his truck over this crossing without seeking a view of the track from a point where his vision would not he obstructed. He was aware of the danger and it was his duty to take extra precautions.

It is well settled in the jurisprudence of. Louisiana that even though a defendant is guilty of negligence, contributory negligence on the part of the plaintiff debars recovery.

Young vs. La. Western Ry. Co., 153 La. 129, 95 South. 511.

Callery vs. Morgan’s L. & T. R. R. & S. Co., 139 La. 770, 72 South. 222.

Loftin vs. R. R. Co., 135 La. 33, 64 South. 972.

Our conclusion is that whereas the defendant was guilty of some negligence in the operation of its train, yet plaintiff’s gross negligence was the proximate cause of the accident and that he cannot recover.

Plaintiff points out that conductor Bernard and brakeman Burrows were out on the west side of the alley, saw the plaintiff when he was attempting to back out, knew the cars were coming down on the spur track, and that by warning plaintiff of his danger could have averted the collision, and invokes the doctrine of the last clear chance.

It is not shown that Burrows saw plaintiff at all.

Conductor Bernard saw the front end of the truck as it made a forward movement and emerged from the west end of the alley and saw it' go back, but his testimony is that he thought the driver was merely maneuvering the truck so as to get it in proper position at the ice house.

“The doctrine of the last clear chance presupposes negligence on the part of the party injured, and proceeds upon the theory that notwithstanding this negligence, if the other party, being cognizant of that negligence and of the peril in which the party had placed himself, failed to take the necessary. precautions to avoid injuring him, he is liable on the theory that he had a fair chance to avoid the catastrophe by the use of ordinary care, and his failure to exercise it is in such cases the proximate cause of the injury.”

Wilson vs. Ill. Cent. R. R. Co., 150 Iowa 33; (129 N. W. 340, 34 L. R. A. (N. S.) 668).

The proof does not show to our satisfaction that any of the train crew were cognizant of plaintiff’s peril and could have avoided the collision.

Counsel for plaintiff in brief say that the brakeman, Will Burrows,

“* * * alone of all the members of the train crew was in position to save these young men from their almost fatal mishap”.

But brakeman Burrows was in charge of the flatcar which was sent down the track west of the ice house and barber shop.

Conductor Bernard says that he saw Burrows at the front end of the truck as it emerged from the alley and that Burrows was standing close by; that he stopped for a moment while the cars were rolling back on the “Government track”.

Burrows was not called as a witness. Counsel for plaintiff now urge that Burrows probably saw the peril and could have averted the accident and that

“* * * * frig absence from the stand is an admission that his testimony would have been against defendant”.

and they cite—

Day vs. Railroad Co., 35 La. Ann. 694;

Rubinstein vs. Files, 146 La. 727, 84 South. 33; and

Toca vs. Rojas, 152 La. 317, 93 South. 108.

Counsel overstate the rule when they say that the absence of this witness from the stand is an admission that his testimony would have been against defendant.

The rule is, that where a litigant has an opportunity of producing a witness and fails to do so, the presumption is that the testimony of such witness would be against him.

This accident happened July 9, 1923. Burrows was then in the employ of the defendant. The cause was tried on May 6, 1924, ten months later. It is not shown or even suggested that Burrows was still in the employ of the defendant, that he was within the jurisdiction of the court, that his whereabouts were known to the defendant, or even that he was alive at the time of the trial of the case.

In the case of Sauer vs. Union Oil Co., 43 La. Ann. 699, 9 South. 566, the court held that:

“The failure of defendant to summon a witness who was an employee at the time of the accident a year preceding the trial, in absence of any proof that he remained in its employ, or was accessible, or was even living at the time of the trial, cannot sustain any presumption against defendant.”

And in the case of Rayssiguier vs. Fourchy, 49 La. Ann. 1627, 22 South. 833, it was held that:

“The failure to call a witness does not justify an arbitrary presumption of suppression of testimony, or of material facts.”

See, Poetz vs. Railroad Co., 42 La. Ann. 541, 7 South. 688.

If, indeed, the brakeman Burrows were alive at the time and available as a witness, plaintiff had an opportunity of calling him in order to make out his case on this point.

Godchaux vs. Maggio, 133 La. 199, 62 South. 631.

In the ease of Toca vs. Rojas, 152 La. 317, 93 South. 108, supra, cited by plaintiff, the witness was summoned and counsel for the adverse party was notified that his testimony would be taken, but for some reason or other it was not taken, and the court said:

“Having the opportunity of producing these witnesses and failing to do so, the presumption is that their evidence would have been against the plaintiff.”

And in the other case cited by plaintiff, Rubinstein vs. Files, 146 La. 727, 84 South. 33, the court said:

“Where the plaintiff might have summoned a witness to help make out his case, failure to do so creates the presumption that if the witness had testified the testimony would have been against him.”

Under the circumstances of this case we are not warranted in invoking the rule against the defendant. But even if the rule should be invoked, for it to avail plaintiff we would have to assume that Burrows was in a position to see the cars coming down the “Government track” and that he knew that plaintiff was backing the truck out over the crossing in front of them; and if we assumed that we would have further to assume that he knew that plaintiff would assume the hazard of backing over the track without observing the ordinary precaution of stopping, looking and listening at a time and place where such precautions would avail him.

If Burrows was standing near the west end of. the alley, his view of the “Government track” was obstructed by the barber shop and we cannot therefore assume that he was in a position to see and appreciate the peril.

For the reasons assigned, it is therefore ordered, adjudged and. decreed that the judgment appealed from be avoided and reversed and plaintiff’s demands rejected and his suit dismissed at his costs.

REYNOLDS, Judge, dissents.