author: ELLIOTT, J.

text:
    No. 693
    First Circuit
    USANNAZ v. BRUGIER
    (June 30, 1930. Opinion and Decree.)
    (October 8, 1930. Rehearing Refused.)
    L. V. Cooley, Jr., of Slidell, attorney for plaintiff, appellant.
    Lindsay W. McDougall, of Covington, attorney for defendant, appellee.
   ELLIOTT, J.

Louis Usannaz claims of Mrs. Josephine E. Brugier the value of a milk cow. Plaintiff operates a dairy near the town of Slidell, and after milking his cows, turned them out to graze. They got into the road which we understand was a public road, and defendant, driving, struck and injured one of them so badly that it had to be killed.

Plaintiff alleges that he lost his cow as a result of defendant’s negligence, excessive, unlawful speed, after she had seen or should have seen his cows, etc.

Plaintiff values his cow, a 3/4 jersey about 6 years old, at $135.

Mrs. Brugier admits striking the cow, but denies all of his other allegations. She alleges that the collision was unavoidable. She claims in reconvention against plaintiff $67, the amount it cost to repair the damage which her automobile received in the collision. Plaintiff’s demand was rejected in the lower court. Defendant’s demand in reconvention was not acted on.

Plaintiff appealed and defendant has answered the appeal praying that her demand in reconvention be allowed, and as thus amended, that the judgment appealed from be affirmed.

The place where the cow was struck was open, with unobstructed view up and down, and, as we understand it, on each side of the road. There was a slight curve in the road and the collision occurred in the course of the curve, but the view ahead was open and unobstructed on each side of and beyond the curve.

Defendant could and did in fact see the herd of cows in the road ahead of her in ample time to reduce her speed and get her car under control. ' As the. cows were dairy cows kept near a town and near a public road and allowed to graze in the open it is likely that they were gentle, accustomed to automobiles, unafraid of them, and therefore liable to get in front of them.

Defendant was acquainted with the situation and fully aware that it was necessary to go slow and drive carefully in order to avoid striking these cows.

Defendant testifies that when she saw the cows she did slow down to about 10 miles an hour, and that as she was passing through them, one suddenly jumped in front of her car so that the striking was unavoidable.

The district judge evidently accepted her declaration that the striking was unavoidable, but we are not so disposed. The uncontradicted facts and circumstances refute her claim that the striking was unavoidable. The cow was struck because she was driving through the herd several times as fast as she claims to have been going and without having her car under control.

When she applied the brakes, it was too late to avoid the result of her speed.

The evidence shows that the impact between the automobile and the cow was so severe that the injury done to the front part of her automobile, a strong and substantial make, amounted to $67. Defendant says the cow jumped in front of her, so we infer that the cow was standing up when struck. The cow was knocked down, and the momentum of the car was such, that, although skidding under its brakes, it got on top of the cow and with the brakes holding, dragged the cow along the ground underneath it, the plaintiff says, for 40 or 50 feet. Plaintiffs daughter estimated the distance at about 35 feet, another lady, apparently disinterested, at about 24 feet, before it stopped.

Plaintiff’s estimate qf the distance is the most reliable, because he was more familiar with distances than his daughter and the other lady witness.

The damage done to defendant’s ear by the impact, and the distance the car skidded forward under its brakes after striking, dragging the cow on the ground underneath it, show that defendant was driving negligently and at an excessive speed at the moment of the impact, instead of, as she should have been doing upon coming near to and while going through this herd of cows.

The evidence satisfies us that defendant at first accepted responsibility and voluntarily stated that she would pay plaintiff the value of the cow. We are satisfied that the cow was killed as a result of the negligence and fault of the defendant.

Defendant is therefore responsible for the damage done. The cow was worth the amount claimed.

As for defendant’s demand in reconvention, it resulted from her own fault.

For these reasons the judgment appealed from is annulled, avoided and set aside, and it is now decreed that there be judgment in favor of the plaintiff, Louis Usannaz, and against defendant, Mrs. Josephine E. Brugier, wife of O. R. Brugier, in the sum of $135, with legal interest thereon from June 6, 1929, until paid.

Defendant’s demand in reconvention is rejected.

Defendant and appellee to pay the costs in both courts.


source: Caselaw Access Project

author: JANVIER, J.

license: Public Domain

text:
    No. 13,346
    Orleans
    ESCALANTE v. RICHARD
    (November 3, 1930. Opinion and Decree.)
    Weiss, Yarrut & Stich, of New Orleans, attorneys for plaintiff, appellee.
    Edward Rightor, Wm. H. Sellers, of New Orleans, attorneys for defendant, appellant.
   JANVIER, J.

This case and that of Miss Assuncion Escalante v. Camille J. Richard, 130 So. 567, decided by us this day, grew out of the same accident and, as we stated in our opinion in that case, the only question involved is the amount to be allowed for the injuries sustained, as liability is admitted.

The judgment in favor of Miss Emilia Escalante was for $ljl51, of which $151 was to cover actual expenses, such as doctor bills, loss of earnings, etc., and $1,000 for physical injuries.

We find nothing in the record which would justify us in reducing the amount allowed for actual expenses and monetary losses, but it appears to us that the amount awarded for physical injuries is considerably more than is justified by the evidence.

The young lady seems to have been unable to work for three weeks, but compensation for this loss is included in the item of $151 referred,to. ’

The record contains no evidence of anything more than superficial physical injuries. A slight scar on one ankle, which required treatment by her doctor two. or three times, and some nervousness resulting from being in an apparently serious automobile collision, does not in our judgment warrant an award of more than $250.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be, and it is, amended by reducing the amount thereof to $401, and as thus amended, it is affirmed; plaintiff and appellee to pay costs of appeal.


text:
    No. 13,347
    Orleans
    ESCALANTE v. RICHARD
    (November 3, 1930. Opinion and Decree.)
    Weiss, Yarrut & Stich, of New Orleans, attorneys for plaintiff, appellee.
    Edward Rightor, Wm. H. Sellers, of New Orleans, attorneys for defendant, appellant.
   JANVIER, J.

This is an appeal by defendant from a judgment based on a jury verdict in favor of plaintiff for personal injuries, loss of earnings, and medical and hospital expenses. Counsel for defendant, appellant, admits liability for such injuries, losses and expenses as were actually sustained, but contends that the award of the jury was much in excess of what should have been allowed.

The verdict was for $6,013, of which $5,000 was for physical injuries and the balance $1,013 for expenses, loss of earnings, etc.

So far as the expenses, etc., are concerned, we are unable to find any error in the jury’s award. According to the uncontradicted testimony, plaintiff had been earning $40 per week prior to the accident and was prevented for a period of sixteen weeks from following her customary occupation, that of cigar classer and wrapper. It may be, as contended by counsel, that she could have returned to work somewhat earlier than she did, but there is no evidence in the' record which would justify us in so finding.

On the other hand, it appears to us that the amount awarded for physical injuries, suffering, etc., is grossly excessive. The injuries are not permanent. The young lady sustained rather severe cuts on her scalp, but these are now covered with hair and cannot be seen and, in fact, could only be located by her own physician who knew where they were. A scar about two inches in length on her arm, a few inches above the elbow, will probably never disappear, but it is scarcely noticeable, and is hidden by her clothing except when she wears short sleeves. For about a year her appearance was probably more or less embarrassing, due to the fact that her head had been shaved and that it took about this time for her hair to regain its normal length. The young lady remained in the hospital for sixteen days and received treatment at home about two weeks longer. Undoubtedly, her injuries were painful, and the fact that, for six days in the hospital, it was necessary to give her bromides to quiet her nerves indicates that she suffered considerably from shock.

We do not believe that any good purpose could be served by referring to other cases in which awards have been made, as the injuries sustained here seem considerably different from any others to which our attention has been directed. We believe that an allowance of $2,500 for physical injuries, suffering from nervous shock, etc., should be ample.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be, and it is, amended by reducing the amount thereof to $3,513, and, as thus amended, it is affirmed.


author: WESTEREIELD, J.

text:
    No. 13,563
    Orleans
    CHATMAN v. JACOBS ET AL.
    (October 20, 1930. Opinion and Decree.)
    Deynoodt & de la Vergne, of New Orleans, attorneys for plaintiff, appellee.
    J. A. Grasser, of New Orleans, attorney for Stumpf, and N. H. Peitel, of New Orleans, attorney for Samuel L. Jacobs, defendants, appellants.
   ON MOTION TO DISMISS

WESTEREIELD, J.

The basis of ’this motion is the failure of defendant and "appellant to furnish a proper appeal bond following a judgment of the lower. court declaring the surety on the original bond to be without the qualifications required by law, and ordering the defendant to furnish a new bond in accordance with the, provisions of Act 112 of 1916 as amended by Act 284 of 1928. When the motion was called for trial in this court no appearance was made on behalf of the appellant nor were we favored with any brief, consequently we are unaware of the character., of defense, if any there be, to the motion to dismiss, which seems to us to be well founded and must prevail. ■

For the reasons assigned the motion t.o dismiss the appeal is sustained and this appeal ordered dismissed. •,


author: HIGGINS, J.

text:
    No. 13,385
    Orleans
    BERNADAS v. MILLER
    (November 17, 1930. Opinion and Decree.)

      See also, 13 La. App. 706, 129 So. 175.
    Quintero & Ritter, and Adam H. Harper, of New Orleans, attorneys for plaintiff, appellee.
    Lemle, Moreno & Lemle, of New Orleans, attorneys -for defendant, appellant.
   HIGGINS, J.

This is a suit for property

damages alleged to be the result of an intersectional automobile collision. Defendant denied liability and in reconvention asked for property damages and in the alternative pleaded contributory negligence. There was judgment in favor of the plaintiff in the sum of $157.30 and dismissing the reconventional demand. The defendant has appealed.

It appears that on Sunday, March 3, 1929, at 2 o’clock p. m., plaintiff was driving his Ford coupe automobile on Conti street, moving from the direction of the river toward the lake. At the same time the defendant’s Ford truck was being driven on Villere street from the direction of Canal street toward the Industrial Canal. The two automobiles collided at a point where these two streets intersect each other at right angles.

The plaintiff testified that his car was going about 15 miles an hour and as it approached the intersection that he slackened his speed to about 10 miles per hour and sounded his horn; that as he came into the intersection, he perceived that the truck was coming at an excessive rate of speed, and realizing that if he would hold to his course he would be struck, he guided his car to the right into Villere street, in order that the truck might pass him and thereby avoid the collision, but that the right rear side of the truck struck the left front side of the Ford coupe, causing it to turn and face in the direction from which it had come and then turn over on its left side, and that the truck continued on its way down Villere s.treet about 60 feet and then turned over.-

The driver of defendant’s car admits that he approached the infersection at the rate of 25 miles an hour and did not see the plaintiff’s car until the very moment of the accident, and that he did not attempt to put on his brakes until after the truck had been struck.

From a reading of the evidence in the case, we are convinced that the plaintiff’s car entered the intersection first and, therefore, had the right of way by virtue of the provisions of the traffic ordinance and should have been permitted to proceed

on its way. Belden v. Roberts, 3 La. App. 338; BorreHo v. Rohrer, 4 La. App. 510.

Plaintiff’s automobile also had the right of way under the traffic ordinance by reason of the fact that it approached the intersection from the right of defendant’s truck. Ordinance No. 7450, C. C. S., art. 1, sec. 1, par. 7.

The driver of defendant’s car admits that he did not see the plaintiff’s car until a moment just before the collision, and that he made no attempt to apply his brakes until that time. Had he been keeping a proper lookout, he would have seen the plaintiff’s car, as there was nothing to intercept his view; the accident having happened during the day time. He was also at fault in failing to give plaintiff the right of way accorded him by the traffic ordinance. We therefore find that the accident was caused solely by the negligence of the defendant’s driver..

The plaintiff próved that the cost of repairing the Ford coupe was $140.30 and that the cost of towing it in was $5. The judgment of the lower court allowed the sum of $12 for a new license plate which plaintiff placed on a new ear which he purchased, having traded in his damaged car on account of the new one. We are of opinion that our learned brother below erred in allowing this item, as it appears that it was not damage resulting from the accident.

It is therefore ordered, adjudged, and decreed that the judgment of the trial court be amended by reducing it from the sum of $157.30 to $145.30 with legal interest from judicial demand until paid, and as thus amended it is affirmed, appellant to pay the costs of both courts.


text:
    No. 13,429
    Orleans
    DYMOND & LEVY v. GIORDANO
    (October 20, 1930. Opinion and Decree.)
    Dymond & Levy and George C. Schoenberger, Jr., of New Orleans, attorneys for plaintiff, appellee.
    Ed. J. DeVergas and Lubin F. Laurent, of New Orleans, attorneys for defendant, appellant.
   HIGGINS, J.

This is a suit by a firm of attorneys for an attorney’s fee alleged to have been earned under a verbal contract of employment, to secure the passage of a special zoning ordinance, for the purpose of preventing a prospective competitor from opening a grocery store in the same locality as the defendant’s store, by having the area zoned for residential purposes.

The defendant answered, denying liability, and averred that the payment of the fee was contingent upon plaintiff’s efforts to successfully keep the grocery store of defendant’s competitor closed.

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

The record shows that defendant is engaged in operating a grocery store on the corner of General Taylor and Coliseum streets in this city; that one LeBlanc attempting to open a grocery store at the corner of General Taylor and Perrier streets, one block away; that the defendant went to the office of plaintiff for the purpose bf preventing LeBlanc from opening • a store in competition with his own; that his attorneys sought to effect this result by having the neighborhood zoned ■against business places and as a residential section; that petitions were circulated and filed with the city engineer’s office; that plaintiff prepared resolutions and ordinances and caused them to be introduced before the Commission Council of the City ■of New Orleans and appeared before the 'Council and successfully advocated the adoption of the ordinance; that thereafter, when LeBlanc attempted to open up his place of business, plaintiff, through the police department of the City of New Orleans, caused LeBlanc’s place of business to be closed; that thereafter, under a ruling of the city attorney adverse to the defendant’s interest; the store of LeBlanc was permitted to open and operate; that the defendant then called upon the plaintiff to see what further action could be taken and was advised that the only manner in which LeBlanc’s store could be closed would be by injunction ¡process, for which plaintiff would have to be paid an additional fee, but that defendant would have to pay the sum of $500 for the services that were already performed; that defendant thereupon protested that said fee was too high, resulting in a reduction to $450, to be paid $50 per month, which defendant agreed to pay; that statements for this amount and also the sum- of $1.50 for affidavits, or $451.50, were mailed to defendant on the first of November and December, 1928, and the first of January, 1929, but defendant failed to pay the Kill, stating that the fee was to be contingent upon the permanent closing of LeBlanc’s store.

The testimony is hopelessly irreconcilable, unless it can be said that the defendant and his witnesses misunderstood a remark of Mr. Levy, a member of the plaintiff’s firm, to the effect that if LeBlanc had already secured a ¡permit, “then we are doing all this for nothing.” It would appear to us that this statement was misconstrued by the defendant and his witnesses to mean that Mr. Levy and his firm were doing all the work for nothing, or without compensation, when, as a matter of fact, he meant that the work that they were doing in the matter was in vain if LeBlanc already had secured a permit.

A careful reading of the record convinces us that the services of the attorneys were not to be rendered upon a contingent basis, but that the defendant was to pay for the services regardless of the outcome of the matter and that the defendant agreed to pay the plaintiff the-sum of $450 for such service.

For the reasons assigned the judgment is affirmed.


author: WESTERFIELD, J.

text:
    No. 13,483
    Orleans
    GARIC v. GARIC ET AL.
    (October 20, 1930. Opinion and Decree.)
    Richard A. Dowling, of New Orleans, attorney for plaintiff, appellee.
    Prank T. Doyle and Harry M. Mayo, Jr., of New Orleans, attorneys for defendants, appellants.
   WESTERFIELD, J.

This is a suit under the compensation law (Act No. 20 of 1914, as amended). The facts are not in dispute. Plaintiff, Sam Garic, was employed as a baker by the defendants at a salary of $26 per week. On June 12, 1929, as a result of an altercation with a party by the name of Prank Horae, he was assaulted with an iron weight and his arm broken, causing him to be incapacitated for a period of twenty-five weeks. Horae was a lessee and occupied part of the building in which defendants’ bakery was located. The assault took place in the building after plaintiff had ceased work for the day but before he had started home. It is admitted that if plaintiff is entitled to compensation ■ he should be awarded the sum of $16.90 per week for a period of twenty-five weeks.

The case is defended upon the ground that it comes within the authority of Conaway v. Marine Oil Co., Ltd., 5 La. App. 134, Id., 162 La. 147,110 So. 181. In that case we held that the dependents of an employee of an oil station who was killed by a shot from a revolver accidentally discharged by a fellow workman, were not entitled to recover because the injury which resulted in Conaway’s death did not arise out of his occupation for the reason that there was “no causal relation between the source of his injury and the character of his employment. Conaway’s duties did not expose him to the danger of accidental shooting nor is there any allegation that the revolver from which the shot was fired belonged to Conaway’s employer and was kept on . the premises for protection and ¡possible use in defense of defendant’s property. We cannot say that there was any feature of Conaway’s employment which was a contributing or proximate cause of his injury. It was no more to be' expected that Conaway would be shot while at work in the manner alleged and by a careless fellow servant than that he should be similarly injured at home by a member of his family. It happened that he was shot while at work. He was .no m,ore exposed to such injury while at work than otherwise and elsewhere.”

In the case at bar, Horae, defendants’ lessee, occupied a part of the same building in which the plaintiff was required to work and the plaintiff was exposed to the danger of injury resulting from his combative character, violent or vicious characteristics. The danger of injury from that source was accentuated by (proximity due to the location of defendants’ bakery in the same building with Horae. We believe the instant case to be controlled by • the case of Ferguson v. Cady-McFarland; Gravel Co., 156 La. 871, 101 So. 248, 249, where the court permitted the dependents of a laborer who was killed as a result of a blow on the head with an iron instrument in the hands of a fellow employee to recover for the reason that “an employee, like the decedent, who may have an enemy among his fellow employees in the same gang in which he is required to work, necessarily comes in contact with such enemy throughout all hours of the day, and is constantly exposed to assault and bodily harm. He therefore incurs greater risk necessitated by his employment than a person ordinarily would be subjected to outside of such employment.”

See also Byas v. Hotel Bentley, Inc., 157 La. 1030, 103 So. 303.

Our attention is called to the fact that the learned judge of the trial court in awarding judgment for plaintiff inadvertently allowed more than the compensation admittedly due in the agreed statement of facts. His judgment must, therefore, be amended.

For the reasons assigned it is ordered, adjudged and decreed that the judgment appealed from be amended so as to read as follows:

It is ordered, adjudged and decreed that there be judgment in favor of the plaintiff, Sam Garic, and against the defendants, Robert Garic and Sterling Garic, in the sum of $16.90 (per week for twenty-five weeks beginning June 12, 1929, with interest at the rate of 5 per cent per annum on each installment from its due date and for all costs.


text:
    No. 13,569
    Orleans
    SUCCESSION OF KOPPEL
    (October 20, 1930. Opinion and Decree.)

      Paul W. Maloney, of New Orleans, attorney for plaintiffs, appellees.
    Earl K. Long, James P. Cuillot and Nichole E. Simoneaux, of New Orleans, attorneys for respondents, appellants.
   WESTERFIELD, J.

The Supreme Court of Louisiana, in an opinion transferring this case to this court, has stated the facts to he as follows:

“Jacob Koppel died in the City or New Orleans on July 21, 1912. The succession of the decedent was duly opened in the Civil District Court for the Parish of Orleans and his will ordered registered and executed. On August 16, 1912, the testamentary executor, and certain legatees under the will of the testator, namely, Mrs. Bertha Landry Koppel, the testator’s widow, and Mrs. Louise Koppel Guillard and Miss Ophelia Koppel, the testator’s sisters, took a rule in the succession proceedings against the then Collector' of Inheritance Taxes for the Parish of Orleans to fix the inheritance tax due by the legatees. The Inheritance Tax Collector, through his attorney, answered the rule, setting up the unconstitutionality of Act No. 42 of 1912 so far as it purported to exempt 'the widow of the decedent by placing her in the same category as ascendants and descendants. On August 19, 1912, a judgment was rendered recognizing Mrs. Louise Koppel Guillard, Miss Ophelia Koppel and Mrs. Matilda Gardiner as legatees and sending them into possession of their legacies. This judgment also discharged the testamentary executor from all further trust and responsibility. On the same day an agreement was entered into in writing by the attorneys of the parties to the rule setting forth that in consideration of the rendition of the judgment, it was stipulated that $156.63, being $5.00 by Mrs. Gardiner, $25.00 by Mrs. Louise Koppel Guillard and $126.63 by Miss Ophelia Koppel should be deposited in the registry of the court, to await the event of a decision by the Supreme Court in some proceeding to be taken within six months from the date of the agreement on the question of the constitutionality, vel non of the exemption in favor of the widow of the decedent - under the Provisions of Act No. 42 of 1912, and requiring Mrs. Bertha Landry Koppel, the widow, to pay $186.50, being 5% of the legacy (apparently admitted to be due over and above the exemption claimed), exclusive of the bank stock already taxed.
“However, no proceeding was instituted within six months, nor at any other time, to test the constitutionality of the statutory exemption in favor of the decedent’s widow. On November 8, 1928, which was more than sixteen years after the agreement had been entered into, the then Collector of Inheritance Taxes for the Parish of Orleans filed a rule in the succession proceedings against himself as Clerk of Court and against the Public Administrator for the Parish of Orleans to obtain the transfer to the Inheritance Tax Fund of the $156.63 on deposit in the registry of the court, to be thereafter transmitted to the State Treasurer. The rule was tried on December 7, 1928, and resulted in a judgment rendered the same day ordering the transfer of the deposit to be made as demanded by the plaintiff in rule. This judgment was signed on December 17, 1928. An unsigned memorandum, filed in the district court on January 27, 1930 purports to grant a new trial on the rule taken on December 8, 1928, on which judgment was rendered on December 7, 1928, and signed on December 17, 1928.
“On July 26, 1929, Mrs. Louise Koppel Guillard and Miss Ophelia Koppel ruled the Clerk of Court and Inheritance Tax Collector into court to show cause why the amount of the deposit, $156.63, with 'accrued interest should not be delivered to them. The respondent excepted to the rule on the ground of res judicata, basing his exception on the judgment rendered on December 7, 1928, and signed on December 17, 1928. The court below overruled the exception and gave the plaintiffs in rule a judgment as prayed for. From this judgment the respondents are prosecuting the present appeal.”

Plaintiffs in rule, appellees herein, rely upon the following authorities: Act No. 107 of 1898;-Act No. 82 of 1924; Succession of Harrison, 168 La. 675, 123 So. 120.

We have not been favored with oral argument or brief in behalf of the tax collector, and, it appearing that the authorities cited by appellees are in point, we are of the opinion that the judgment appealed from should be affirmed.

For the reasons herein assigned, it is ordered, adjudged, and decreed that the judgment, appealed from be, and it is, affirmed.


author: MOUTON, J.

text:
    No. 701
    First Circuit
    SONNIER v. SONNIER
    (October 8, 1930. Opinion and Decree.)
    Yoorhies & Labbe, of Lafayette, attorneys for plaintiff, respondent in writ.
    F. Xavier Mouton, of Lafayette, attorney for defendant, applicant for writ.
   MOUTON, J.

In June, 1916, plaintiff obtained a judgment against defendant ordering him to remove obstructions to the drainage of his lands. It was further decreed in that judgment that defendant should thereafter be restrained and enjoined from obstructing that drainage. The obstructions were removed by the sheriff in 1927.

In 1929, upon complaint of plaintiff that defendant had erected a dam which was an-obstacle to his drainage, the court appointed E. J. Lacour, a surveyor, to take the levels of the adjoining land to assist in determining the rights of the parties litigant. The survey was made by Lacour, and a return of his work was filed. On motion of plaintiff that the report of Lacour, surveyor, was ambiguous and unsatisfactory, the court appointed Val E. Smith, another surveyor, to take the levels for the purpose of ascertaining the manner in which the levees or obstructions should be cut so as to carry out the terms of the judgment rendered against defendant.

The defendant objected to the appointment of Val E. Smith to make a new survey, basing his objection on the plea of res adjudicata. In the appointment of another surveyor there was no issue of res adjudicata involved, the purpose of the court being merely to carry out or execute the judgment which decreed that the land of defendant should be cleared up of the obstructions to plaintiff’s drainage. If there existed any basis for this plea of res adjudicata, it was clearly against defendant, as he had been enjoined in the original judgment from thereafter erecting any works whereby the drainage of the plaintiff would be affected. The plea of res adjudicata was properly overruled.

The appointment of Val C. Smith to make another survey was made on April 17, 1930.

April 19th, defendant moved in open court for a suspensive appeal to this court from this order of appointment, which was granted by the district judge.

Two days thereafter, on April 21, 1930, plaintiff, Amedee Sonnier, filed a motion in open court during the morning hour, praying that the order granting the suspensive appeal dated April 19, 1930, be rescinded.

The same day, April 21, 1930, that the motion to rescind the order for the suspensive appeal was filed, later, in the afternoon at about 4:50, the defendant,' Elie Sonnier, filed his appeal bond for $100 in compliance with the order granting his appeal to this court.

On April 23, 1930, two days after the motion to rescind was filed, upon calling up the motion for rescission for trial, counsel for defendant objected to going to trial, contending that, as the bond for tho suspensive appeal had been filed on April 21st, the court was divested of jurisdiction, and had no authority to pass on the issue presented.

Notwithstanding the objection, the court rescinded, by judgment signed May 17, 1930, the order for a suspensive appeal which had been granted defendant, April 19, 1930.

The defendant, by petition filed May 22, 1930, alleges that the judgment of May 17, 1930, rescinding the order of appeal of April 19, 1930, was contrary to law, and would cause, him irreparable injury, and is asking this court to issue a writ of mandamus to compel the district judge to grant him a suspensive appeal which was refused below.

In the order of April 17, 1930, the court appointed Val E. Smith to make a survey of the land so as to ascertain the levels of the land to serve as a guide for the cutting down of the obstruction complained of. It was given to carry out the terms of the judgment, was evidently framed to protect the interests of the defendant in the manner of executing the judgment. It was merely incidental to the judgment, was in the nature of an interlocutory order, could certainly not cause irreparable injury to defendant, and from which defendant had therefore no right of appeal. Code Prac. art. 566.

If the judge, after ordering a survey to be made by Val E. Smith, had found that it was inadvisably made, as it was interlocutory, he would have had the right to rescind that order. State v. Judge of Tenth District, 6 La. Ann. 548; Shaw v. Thompson, 3 Mart. (N. S.) page 392. He did not find fault with that order, did not rescind it, and granted an order to defendant for a suspensive appeal from his order granting a new survey which was interlocutory. As this appeal had been granted on that interlocutory order, the judge, finding that defendant had no right of appeal, could likewise rescind the order for the appeal under the motion filed for its rescission on April 21, 1930, during the morning hour, by counsel for plaintiff.

On April 23, 1930, a note of evidence was taken on the motion of defendant’s counsel for the rescission of the order granting the suspensive appeal. We find the following in the note of evidence, viz.:

“On the morning of April 21st, the Court deferred the signing of the order rescinding the order of appeal in order to give counsel for the defendant an opportunity to present argument, if desired.”

The foregoing statement is pregnant with the idea that the court had made up its mind to sign the order rescinding the order of appeal which it had the right to do, and which the court,, no doubt, realized had been inadvertently granted the defendant.

Counsel for defendant, in whose favor the court had deferred signing the order canceling the order of appeal, furnished his bond of appeal in the evening of the same day, and, when the trial of the motion to rescind came up on the 23d, contested the authority of the court on the ground that it had been divested of its jurisdiction by the effect of the bond, as hereinabove stated.

The judge, when the motion to rescind was filed, clearly intended to cancel the order of appeal, but, through courtesy, granted counsel for defendant a delay, should he desire to argue tbe question. The judge was merely deferring the cause for further examination, known in civil law as ampliation. Bouv. Law Diet., Rawle’s Third Revision, vol. 1, page 191. In such instances the judge makes the usual notation of non liquet. Here, the solution of the point was obviously clear to him, and such notation was unnecessary. The extension of time granted defendant was therefore purely gratuitous. At most, the delay allowed was virtually a continuance. The order to rescind was on the docket of the court to the knowledge of defendant through his counsel. We are of the opinion that the jurisdiction of the court, under such a situation, was retained, remained in abeyance, and abided on the 23d, when the motion to rescind came up for trial.

Counsel for defendant, relator herein, had no power, and could not, by furnishing bond on the 21st, as above detailed, divest the court of its jurisdiction, and defeat the exercise of its legitimate functions.

; If an appeal was ordered by us, as was said in State v. Judge of Tenth Dist., 6 La. Ann. 548, it would only result in the affirmance of the judgment, and the effect would probably be greatly to protract the decision of the controversy between the parties.

It is therefore ordered that the order issued by this court June 30, 1930, directing Hon. W. W. Bailey, J. Dassas Trahan, sheriff of Lafayette parish, and Amedee Sonnier, to show cause why relator should not obtain the relief demanded, be, and is hereby recalled; that the application for writs of prohibition and mandamus asked for by Elie Sonnier, relator, be, and is hereby, denied and dismissed at his cost.


author: LeBLANC, J.

text:
    No. 694
    First Circuit
    TRADERS SECURITIES CO., INC., v. DUTSCH
    (October 8, 1930. Opinion and Decree.)
    A. J. Finney, of Covington, attorney for plaintiff, appellant.
    Harvey E. Ellis, of Covington, attorney for defendant, appellee.
   LeBLANC, J.

This appeal is from a judgment dismissing plaintiff’s suit on an exception of no cause or right of action.

Traders’ Securities Company, Inc., domiciled in the city of St. Louis, state of Missouri, brings this suit against the defendant,. Frank L. Dutseh, a resident of the parish of St. Tammany, on what it alleges to be four trade acceptances, known under our Negotiable Instrument Law as bills of exchange. These papers are all dated “St. Louis, Mo. March 5, 1928”; each is for the sum of $59.60 and are payable five, seven, nine, and twelve months after date. They are in the form of a draft drawn by the Arch Manufacturing Company on the defendant, and across the face of each is a written acceptance signed by him. On the back of each is an indorsement, without recourse, to the order of Traders’ Securities Company. The indorsement is evidently placed with a rubber stamp, the name “Traders Securities Co.” being stamped with a different colored ink from ' the rest. The indorsement is signed for the Arch Manufacturing Company by one W. A. Blackstad.

Plaintiff avers that it is the owner of these alleged acceptances for a valuable consideration before maturity, that they were indorsed over to it after acceptance by defendant, and were acquired in good faith.

Under section 59 of the Negotiable Instrument Law (Act No. 64 of 1904), every holder of a negotiable instrument is deemed to be a holder in due course.

In addition, the petition in this case contains allegations which make it appear that the plaintiff is a holder in due course under the provisions of section 52 of the same act.

After alleging the defendant’s failure and refusal to pay on amicable demand, judgment is prayed for, for the full amount of the four acceptances with legal interest from judicial demand.

Defendant’s first appearance was to pray for oyer of “the document or contract” which he avers was annexed to and formed part of what he terms “the alleged promissory note sued upon herein.” This prayer for oyer was filed on November 12, 1929. On November 14, 1929, two days later, plaintiff, through its attorney, filed an answer to the prayer, in which it is alleged that it (defendant) has no knowledge of any such document or contract, and as it hasn’t any such in its possession, it is a physical impossibility for it to comply with the prayer. This answer is supported by the verification of plaintiff’s attorney, made under oath. On December 17, 1929, the court overruled the prayer for oyer on the strength of plaintiff’s answer and the affidavit of its counsel thereto, and on January 13, 1930, an exception of no cause or right of action was ordered filed on behalf of the defendant. According to the transcript of the minutes of court, the exception was “assigned for trial for the taking of testimony” for the following day. On the trial of the exception, the court, over the objection of counsel for plaintiff, permitted the defendant to introduce evidence which tended to substantiate a claim that these so alleged trade acceptances were attached, along a delicately perforated line, to a contract for the sale and purchase of jewelry between defendant and the Arch Manufacturing Company and of which contract these acceptances were part and substance.

From the evidence of the defendant, who was the only witness, it would appear that the acceptances after being signed were detached from the main body of the contract and then passed over into the hands of an alleged innocent third party, where they were to become negotiable instruments acquired in good faith and in due course. The inference from this testimony and the argument of counsel is that the whole transaction was a fraudulent scheme on the part of the Arch Manufacturing Company to collect money from the defendant under a contract which they themselves had violated, and that this plaintiff was but a “straw man” as it were, for them, who was bound to have knowledge of the defects and infirmities of the instrument sued on.

The questions presented by the testimony and counsel’s argument are matters to be raised in defense of the action and cannot properly come up on the trial of an exception of no cause or right of action, unless plaintiff has waived its rights thereunder. This, plaintiff might have done by agreeing that the exception be taken as an answer, or by permitting, without objection, the introduction of evidence, to negative the allegations of the petition, which for the purposes of trying the exception are admitted to be true, neither of which condition exists in this case. It was only the exception that was fixed for trial for January 14, 1930, and on the morning of the trial counsel for plaintiff promptly urged a valid objection to the introduction of any testimony. Whilst the objection might have been made in better form than it appears, we nevertheless consider it sufficient as a protest against the hearing of testimony of the character such as was offered and on which the district court rendered judgment. The objection should have been maintained, and, as the plaintiff apparently is the holder of the papers sued on and alleged itself to have become so in due course, it has a right of action and its petition discloses a cause of action.

We are of the opinion that the exception should have been overruled so that the issues to be presented might be tried on the merits.

It is therefore ordered, adjudged, and decreed that the judgment herein appealed from which sustained the exception of no right of action be avoided, annulled, and reversed, and

It is further ordered, adjudged, and decreed that the exception of no right or cause of action be now overruled, and that the case be remanded to the district court for "further proceeding and trial according to law.


author: WEBB, J.

text:
    No. 3472
    S'econd Circuit
    WILSON v. T. L. JAMES & CO., INC.
    (May 8, 1929. Opinion and Decree.)
    (July 1, 1929. Rehearing Refused.)

      Barksdale, Warren & McBride, of Ruston, attorneys for plaintiff, appellee.
    Robert L. Garrett, of Shreveport, attorney for defendant, appellant.
   WEBB, J.

Plaintiff, A. H. Wilson, brought this action to recover judgment against defendant, T. L. James & Company, Incorporated, for a balance of $1,135, alleged to be due under a contract in which plaintiff undertook to paint a building constructed by defendant, in answer to which defendant, in substance, alleged that the work done by plaintiff was defective, and that plaintiff having refused to remedy the defective work, defendant had been forced to contract with others to have the defective work remedied, and that of the balance alleged to be due defendant had paid $837.79 for having the .defective work remedied, and $297.21 to a creditor of plaintiff on the latter’s order, and further alleging that as plaintiff had failed to complete the work within the time stipulated he was liable under the contract for damages, and defendant prayed for judgment rejecting plaintiff’s demands, and for judgment against plaintiff in reconvention for stipulated damages.

On trial judgment was rendered rejecting the plaintiff’s demand as well as the reconventional demand of defendant, from which plaintiff appealed, and defendant answered the appeal, praying that the judgment be affirmed in so far as it rejected plaintiff’s demands, and reversed as to the reeonventional demand.

Defendant did not appeal from the judgment rejecting its reconventional demand, and the ruling rejecting the demand cannot be reviewed on the answer to the appeal from the judgment rejecting plaintiff’s demands (Westermeier v. Street, 21 La. Ann. 714, Clement Bros. v. Creditors, 37 La. Ann. 692), and the only question presented by the appeal is as to the correctness of the judgment rejecting plaintiff’s demands.

The contract stipulated that:

“Before commencing painting, the painter must make certain that the work to be covered is in perfect condition to receive the paint, that the surfaces are clean, dry, smooth, and at proper temperature. Should the painter find surfaces and conditions impossible of acceptance, he shall at once report such condition in writing to the architects and cease operation on the portion of the work affected. The application of paint shall be held to be an acceptance of the surface and working conditions, and the painter will be held responsible for the results reasonably to be expected from the materials and processes specified.”

And, in addition to the usual stipulations for good workmanship, it was stipulated that:

“The original adherence of all materials shall be maintained for six months and during this period there shall be no evidence of blisters, running, peeling, scaling, chalking, streaks or stains.”

Plaintiff concedes that the work was defective in that the paint blistered, peeled, scaled, etc.; but he contends that the defects were due solely to the fact that the surfaces, plastered walls, etc., had been painted when they were not in condition to the knowledge of all parties, and on the instructions of defendant, and that defendant could not complain of the defects, and assigns as error the refusal of the court to find that the surfaces had been painted when they were not in condition on the instruction of defendant.

After the payment by defendant of the cost of correcting the defects, plaintiff, while protesting against the right of defendant to deduct the cost of restoring the work from the contract price, gave an order to one of his creditors, who had furnished material used in the work, on defendant for the difference between the amount paid by defendant for repair work and the balance claimed by plaintiff, which was not honored until after plaintiff filed suit, and it is urged that the order was revoked and the payment made unwarranted, and plaintiff further assigns as error the failure of the court to render judgment in his favor for at least the amount paid to the creditor after the suit was filed.

Passing the questions raised by counsel as to the admissibility of evidence under the pleadings in support of the contention that the defendant had, with knowledge that the surfaces were not in condition, instructed plaintiff to proceed with the work, the first assignment of error involves purely a question of fact, as to which the trial court found against plaintiff.

It is implied, in such contracts as that undertaken by the plaintiff, that the work will be performed in a skillful and proper manner and that the workman will be held responsible for defective work, and in the face of the implied covenant and of the stipulations in the written contract, in which the responsibility of the plaintiff was clearly and explicitly stated, any verbal agreement relieving plaintiff of responsibility for defective work should be established by clear proof (Hay v. Bush, 110 La. 575, 34 So. 692; Ault & Burden v. Shepherd, 8 La. App. 595; Harvey v. Deutchman, 11 La. App. 115, 119 So. 280), and the testimony of the parties being directly in conflict as to whether plaintiff, in applying the paint to the surfaces, which he knew were not in condition, had acted under protest and on the instruction of defendant, and it being conceded that the president of defendant company had, during the course of the work, complained of defects (which plaintiff states were due to the paint having been applied when the surfaces were not in condition) which plaintiff, without protest, repaired on the instruction of the architect, we cannot say that the finding of the court was manifestly erroneous.

Belative to the second assignment of error, the basis of plaintiff’s contention is that 'the order given by him on the defendant for the payment of the amount due, after deduction of the amount paid by defendant for remedying the defective work, was not effective until accepted by the defendant, and that the suit having been filed prior to the acceptance by defendant, the order was revoked, and the payment made thereafter to the creditor of plaintiff by defendant unwarranted.

The evidence shows that the acceptance of the order and payment was withheld until the defendant could ascertain whether it could pay same without affecting its rights against the surety given by plaintiff, and that the order was accepted and payment made when defendant was advised that it could safely do so, and as plaintiff did not in his petition in any manner refer to the order which he had given to his creditor, or make the creditor a party to the suit, we do not think the order was revoked by the suit.

It is not suggested that defendant was not authorized by the order to make the payment directly to the creditor without further intervention of plaintiff, and conceding that the order being for the payment of only a part of the claim of plaintiff against defendant did not vest the ownership of the claim in the creditor and that the creditor could not have brought a direct action against defendant until the latter accepted the order, we think the order did vest in the creditor an inchoate or equitable right (Styles v. McNeil’s Heir, 6 Mart. (N. S.) 296, 17 Am. Dec. 183; Andrews Electric, Inc., v. Society, 233 Mass. 20, 123 N. E. 103), and defendant having been given notice of the order, plaintiff could not revoke it without the consent of the creditor pending consideration by the defendant as to whether it could safely accept the order (Camors v. Insurance Co., Man. Unrep. Cas. 167), and plaintiff having failed to make the creditor, holder of the order, a party to the suit, and to allege or prove that the order had been revoked, the amount paid by defendant under the order to plaintiff’s creditor was properly deducted from the balance due plaintiff by defendant.

The judgment is affirmed.


text:
    No. 3474
    Second Circuit
    JOHNSON v. GRIFFIN ET AL.
    (May 8, 1929. Opinion and Decree.)
    S. L. Digby, of Farmerville, attorney for plaintiff, appellant.

      H. E. Dawkins, of Earmerville, attorney for defendants, appellees.
   WEBB, J.

Plaintiff, C. W. Johnson, brought this action against Alvin Griffin, and his minor son, Hayden Griffin, to recover judgment for the value of a dog belonging to plaintiff, alleged to have been killed by Hayden Griffin, and he appeals from a judgment rejecting his demands.

The cause, as presented, involved solely a question of fact. It is conceded that Hayden Griffin had shot a dog which was prowling on his father’s premises, but it was at night, and he could not give any description of the animal at which he fired and did not know whether or not the animal had been hit. Plowever, on the following day Alvin Griffin found a dead dog on the public highway at a distance of several hundred yards from his premises, and about three weeks thereafter plaintiff claimed to have identified the carcass by_ a collar, stated by him to have been found thereon, as the remains of his dog; but Alvin Griffin stated that when he found the dehd animal he had thrown it off the roadway and that there was not any collar on the body.

■ It is stated that the trial court concluded that -plaintiff had failed to identify the carcass as the remains of his do"g, and from our review of the testimony we do not .find the conclusion was erroneous; and,further, as the evidence does not establish that the animal fired at by Hayden Griffin ran in the direction in which the body was found, or that-the animal found dead on the highway had been- shot, we do not think the evidence was sufficient to raise a presumption that the animal at which Hayden Griffin shot was the same animal as that found- dead on the highway.

The judgment is affirmed.


text:
    No. 13,559
    Orleans
    VILLEMEUR v. WOODWARD ET AL.
    (October 20, 1930. Opinion and Decree.)
    Theo. Cotonio and Theo. Cotonio, Jr., of New Orleans, attorneys for plaintiff, appellee.
    Warren V. Miller, of New Orleans, attorney for defendant, appellant Lally & Lally.
   JANVIER, J.

Plaintiff seeks the return of $1,000 alleged to -have been deposited with Lally & Lally, real estate agents, on account of the purchase price of certain immovable property in this city. The petition, which makes the real estate' agents and the owner of the property parties defendant, alleges that the agreement’ to pur■chase is null and void for various reasons, with which we are not now concerned.

The purchase price, as stipulated in the agreement, was to be $10,000.

The court below held that the agreement was null and void and rendered judgment for the return of the deposit, as prayed for.

From this judgment the real estate agents have appealed to this court. The owner, Woodwar'd, has not appealed. We are now asked to dismiss the appeal on the ground that the amount in dispute exceeds our maximum jurisdictional limit.

Since the ground on which the return .of the deposit is sought is the alleged nullity of the contract of sale and since the purchase price set forth in that contract is $10,000, it is evident that the amount in dispute is not limited to the deposit, the return of which is sought, but includes the alleged nullity of an agreement of sale of property valued at $10,000 and that, thus, the amount in dispute exceeds our jurisdictional limit. Hunley et ux v. Ascani et al., 14 La. App. 95, 129 So. 164; Bussey v. Wise-Miller et al., 14 La. Ap. 104, 129 So. 166; Bussey v. Barilleaux et al., 14 La. App. 82, 129 So. 167. However, since, by Act 19 of 1912, we are authorized to transfer such an appeal as this to the Supreme Court, we will follow that course.

It is therefore ordered, adjudged and decreed that this appeal be and it is transferred to the Supreme Court of Louisiana to be disposed of according to law; the transfer to be made within thirty days after this judgment becomes final, and, if not so made, then the appeal to be deemed dismissed; defendant and appellant to pay the costs of appeal in this court, the remaining costs to await final determination of the matter.


text:
    No. 3531
    Second Circuit
    BRENNAN v. NATIONAL LIFE & ACCIDENT INS. CO., INC., OF NASHVILLE, TENN.
    (May 8, 1929. Opinion and Decree.)
    (July 1, 1929. Rehearing Refused.)

      Dawkins & Dawkins, of Monroe, attorneys for plaintiff, appellee.
    Theus, Grisham & Davis and Thomas W. Leigh, of Monroe, attorneys for defendant, appellant.
   WEBB, J.

On July 31, 1927, Joseph J. Brennan made application to the defendant, National Life & Accident Insurance Company, Inc., of Nashville, Tenn., for life insurance, under which a policy was issued on August 19, 1927, in which plaintiff, Mrs. Alice Brennan, wife of the insured, was named as beneficiary. The insured died on December 4, 1927, after an illness of several weeks, and defendant refusing to pay, after proof of death and demand, plaintiff instituted this action on the policy, and, on trial, judgment being rendered against defendant for the amount of the policy, it appealed.

The defense interposed was that the insured had, in the application, fraudulently given false answers to the questions submitted to him, in that he had answered “No” to the question, “To what extent do you now or have you in the past used intoxicants?” and, “Have you ever had * * * syphilis?” when he knew that he was afflicted with syphilis and that he was addicted to the use of intoxicants.

It is conceded that under the statute (Act No. 227 of 1916), as well as under the provisions of the policy, the statements of the insured, as shown by the questions and answers, must be considered as representations, and not -as warranties, in then absence of proof of fraud, and that the defendant carried the burden of proof to establish that the statements were not true, and to show that the statements were made with the fraudulent purpose of obtaining insurance, or that the statements were material to the risk, and that the insurer was misled.

Considering the alleged misrepresentation as to the insured having had syphilis. The evidence does not show that the insured had, prior to the issuance of the policy, shown any symptoms of syphilis, but, on the contrary, it appears that the first notice which he had that he was so afflicted was when a blood test was made during his last illness, and he was informed by the physicians of the condition, and it cannot be said that the insured fraudulently misrepresented his condition, and, even though it be conceded he had the germs of the disease in his system at the time of the application, of which he could have had knowledge only on the advice of an expert, we do not think that his statement could be considered as more than the expression of an opinion as to a latent condition of which the insurer thought its medical examiner was in a better position than the insured to ascertain the true condition, and that defendant cannot avoid liability under its contract either on the ground that the representation was fraudulent or untrue.

, “A statement by an applicant for life insurance that he has never had a certain ailment which is an obscure disease, concerning which the insurer should know that the applicant could not have certain knowledge, saving as he might be told by a physician or other expert, is' properly construed as a warranty only of the bona fide belief and opinion of the applicant.” Owen v. Metropolitan Life Ins. Co., 74 N. J. Raw, 770, 67 A. 25, 122 Am. St. Rep. 413.

Relative to the defense that there was a misrepresentation by the insured as to the use of intoxicants': It is urged that the answer “No” to the question, “To what extent do you now, or have you in the past, used intoxicants?” was equivalent to ‘“None,” and that the insured had thus represented that he did not use and had not used intoxicants' to any extent, and the evidence showing that he had used intoxicants, the representation was false, and it being shown that the use of intoxicants had contributed to the death of the insured, the judgment should be reversed.

“It is generally held that questions as to whether an applicant for insurance has used or uses intoxicating liquor, and, if so, the extent and average quantity, do not refer to an occasional or exceptional use of such drinks, but to the habitual or customary use” (note, 26 A. R. R. page 1284; Volunteer Rife Ins. Co. v. Richardson, 146 Tenn. 589, 244 S. W. 44, 26 A. L. R. 1270; Brignac v. Pacific Mut. L. Ins. -Co., 112 La. 574, ,36 So. 595, 66 L. R. A. 322), and clearly the information sought to be elicited from the insured hy the question, “To what extent do you now, or have you in the past, used intoxicants?”• being as to the extent to which the applicant used or had used such drinks, we do not think that the answer “No” was responsive to the question, and it being admitted that the defendant would not have issued the policy had the answer been “Yes,” and therefore that the information sought to be elicited was material to the risk, the insurer, on receiving the ambiguous answer “No” should have asked for an explanation (Livingston & Gilchrist v. Maryland Ins. Co., 7 Craich, 506, 3 L. Ed. 421), and the answer not being responsive to the question, we are of the opinion that the question should be considered as unanswered, and that the insured did not make any representation as to the use of intoxicants which would permit the defendant to avoid payment of the policy, either on the ground that there was a fraudulent misrepresentation or that it was misled by the statement of the insured.

However, if this is not correct, the answer given by the applicant should not be construed as more than an affirmation that he did not use, and had not habitually used, intoxicants.

“In an application for life insurance, a negative answer to the question, ‘Do you use spirituous, malt, or vinous liquors?’ is not false when the answerer partakes of intoxicating liquors only occasionally and temperately.” Brignac v. Pacific Mut. Life Ins. Co., 112 La. 574, 36 So. 595, 66 L. R. A. 322; also Grand Lodge, A. O. U. W., v. Belcham, 145 Ill. 308, 33 N. E. 886.

The evidence offered, tending to show that the insured customarily used intoxicants, was that he had been intoxicated once about five years prior to the application, and again about two years prior thereto, and the statement of the physicians who attended him at the time of his last illness, that decedent had informed them that he used intoxicants to excess, and that -plaintiff, Mrs. Brennan, had also told them that decedent used intoxicants, and they expressed the opinion that alcoholic poisoning had contributed to his death, although he suffered with other ailments which would have caused death. The physicians, however, did not claim that they had known of the deceased having taken any intoxicants, or that the statement made by the deceased referred to the period prior to _ the application for insurance, and the wife of the deceased denied that she had told the physicians that deceased was addicted to the use of intoxicants, although she admitted that deceased had occasionally taken a bottle of beer, and her statement as to the extent deceased had used intoxicants is corroborated by the testimony of the friends and business associates of deceased, who had known him for many years.

The physicians who expressed the opinion that alcoholic poisoning had contributed to the death of deceased had not treated plaintiff ¡prior to his last illness, and their opinion that alcoholic poisoning was a contributing cause of death appears to have been based on the statement by deceased that he had used alcoholic drinks of such character as even a moderate use would be apt to cause poisoning, but as it is not claimed that the statement of deceased referred to a time prior to the application for insurance, and the evidence of his friends and associates being that his use of intoxicants was confined to an occasional use of beer, we do not think that, even though it be conceded that the answer given by deceased to the question was an affirmative representation of the extent to which deceased used intoxicants, proof of the occasional use of beer would be sufficient to avoid the contract for misrepresentation.

The judgment appealed from is therefore affirmed.


text:
    No. 3538
    Second Circuit
    BASKIN v. ABELL, SHERIFF, ET AL.
    (May 8, 1929. Opinion and Decree.)

      E. B. Moore, of Winnsboro, attorney for plaintiff, appellee.
    C. J. Ellis, Jr., of Rayville, attorney for defendants, appellants.
   WEBB, J.

The plaintiff, J. A. Baskin, enjoined the execution of a judgment held by Alex Watson against H. C. McClure, under which a motor-truck had been seized as the- property of McClure. It being alleged that the property seized had been transferred to plaintiff, Baskin, by McClure in consideration of an indebtedness due by McClure to Baskin of $150, and of the obligation of Baskin to pay an indebtedness of $113 due by McClure to one May-berry, in answer to which defendant Alex Watson denied that the property had been .transferred to Baskin, or that Baskin was the owner of the property, and alleged that, if such transfer was made as alleged, it was a simulation and made in fraud of the creditors of McClure.

On trial, judgment was rendered decreeing plaintiff, Baskin, to be the owner and entitled to the possession of the property, and enjoining defendants, sheriff and Watson, from selling the same, from which they appeal.

The action of plaintiff, as well as the defense interposed, is based upon article 398 of the Code of Practice, which reads:

“If the opposition has for its object to set aside the order of seizure, as having been effected on property not belonging to the party against whom the order was directed, but owned on the contrary by the third person making the opposition, it must be done by means of a petition, which, together wth a citation, must be served on the party making the seizure, as in ordinary suits; but such opposition shall be considered as a separate demand, distinct from the suit in which the order was granted: Provided, that in all cases where personal property is seized upon mesne or final process, and is claimed by a third opponent, the seizing creditor may be allowed in his answer to the third opposition, to allege and prove his title fraudulent, and the court shall try and decide the issue thus made.”

And it is apparently contended by the defendants that the court erred in its finding that there was in reality a transfer of the property by McClure to Baskin, and, in the alternative, that it erred in failing to find that the transfer was made in fraud of the creditors of McClure.

It is conceded that the plaintiff carried the burden of proof to establish that the title to the property was in reality, transferred to him by McClure (Wafer v. Pratt, 1 Rob. 42, 36 Am. Dec. 681), and that he had taken possession prior to the seizure by defendants.

The evidence conclusively established that the property was in the possession of plaintiff at the time of the seizure, and that the delivery had been made under the agreement as alleged by plaintiff; that is, in consideration of the payment of an indebtedness of $150 due by McClure to plaintiff, Baskin, and the agreement of Baskin to pay $113 due by McClure to Mayberry; but it is urged that the consideration of the transfer being in part the obligation to pay a debt of McClure, and the agreement not having been written, it was void, in view of article 2278 of the Civil Code, which reads, in part, as follows:

“Parol evidence shall not be received: * * * 3. To prove any promise to pay the debt of a third person. * * * But in all the cases mentioned in this article, the acknowledgment or promise to pay shall be proved by written evidence signed by the party, who is alleged to have made the acknowledgment or promise, or by his agent or attorney in fact, specially authorized in writing so to do.”

We are not considering what may be the right of Mayberry to proceed directly against plaintiff, Baskin, to enforce the obligation of Baskin to McClure; but the sole question is whether or not the agreement made by Baskin, in consideration of the transfer to him of property by McClure, to pay to Mayberry the sum of $113, was void by reason of the fact that the agreement was not reduced to writing. If the agreement was void, the sole reason must be that, in an action by McClure against Baskin, to enforce the agreement, the latter could avail himself of the provisions of the statute prohibiting the consideration of parol evidence to prove the promise to pay the debt of a third person, in answer to which, without considering / other provisions of the Code, it would be sufficient to say that “the statute contemplates the mere promise of one man to be responsible for another, and cannot be interposed as a cover and shield against the actual obligations of the defendant himself” (Browne, Statute of Frauds, sec. 165; Davis v. Patrick, 141 TJ. S. 479, 12 S. Ct. 58, 35 L. Ed. 826), and we are of the opinion that the agreement, as between McClure and plaintiff, was valid and enforceable, and that the title to the property vested in the plaintiff under the agreement.

Relative to the contention that the court erred in failing to find the transfer to have been made in fraud of the creditors of McClure, the right of defendant to have the transfer annulled, or the seizure of the property maintained, was dependent upon whether or not the transfer was made by McClure, to the knowledge of plaintiff, with such fraudulent intent, and whether or not McClure was insolvent to the knowledge of plaintiff, as to which the defendant carried the burden of pleading and proof (Hicks Co., Ltd., v. Thomas, 114 La. 219, 38 So. 148; Seixas v. Citizens’ Bank, 38 La. Ann. 424; Hart & Co. v. Bowie, 34 La. Ann. 325: also Modisette v. Hathaway, 147 La. 1035, 86 So. 485); and there is neither allegation nor proof that the transfer was made for the purpose of defrauding the creditors of McClure, to the knowledge of plaintiff, or that McClure was insolvent at the time of the transfer.

We therefore find that the judgment is correct under the pleadings and the evidence, and it is affirmed.


text:
    No. 3542
    Second Circuit
    MAY v. CUTHBERT
    (May 8, 1929. Opinion and Decree.)
    Hodge & Barnett, of Rayville, attorneys for plaintiff, appellant.
    Smith & McGregor, of Rayville, attorneys for defendant, appellee. ’
   WEBB, J.

In this action, to have the boundary between the properties of the respective parties judicially determined, judgment was rendered, fixing the boundary conformably to a survey which was conceded by the parties to be correct, but the court refused to tax as cost the full amount claimed by the plaintiff to have been expended in having the survey made, and the judgment ordered the cost which was taxed to be paid equally by the parties.

Plaintiff appeals from the judgment, and complains of the refusal of the court to tax as cost the full amount claimed to have ■ been expended by plaintiff, and also of the judgment ordering the cost to be paid equally .by the parties.

There were two surveyors appointed by the court, one having been appointed on the application of plaintiff and the other on the application of defendant, and the surveyors were ordered to make the survey jointly; but, as they did not agree upon a day to make the survey, the surveyor appointed on the application of plaintiff' was proceeding to make the survey when counsel for defendant protested, and the matter was referred to the court, which- then fixed a time within which the survey should he made, and, the surveyors having again failed to agree upon a day to make the survey, defendant, through his counsel, consented that the survey should be made by the surveyor appointed on the application of plaintiff. The expense of the survey made by the surveyor appointed on the application of plaintiff and with the consent of defendant, as well as the expense of the suit, cost of process, etc., was taxed as cost, but the court refused to tax the expense incurred in the proceeding in which the surveyor appointed on the application of plaintiff first undertook to make the survey.

Considering the complaint as to the refusal of the court to tax the expense incurred by the action of the surveyor in proceeding to make the survey without his associate. Neither of the parties objected to the appointment of two surveyors, nor to the order directing them to jointly make the survey, and it appearing that plaintiff, through his counsel, as well as the surveyor appointed by the court on the application of plaintiff, knew that defendant had not waived the right to .have the survey made as ordered, and that defendant, through his counsel, had formally protested against such action, we are of the opinion that the court properly refused to allow or tax as cost the expense incurred in that proceeding, as it is clear that under the order of court defendant was • entitled to have the survey made jointly by both of the surveyors and that plaintiff and the surveyor were fully aware that defendant had not waived the right to have the survey made as ordered.

As to the contention that the court erred in ordering the cost which was taxed to be paid equally by the parties, plaintiff and appellant contends that defendant had refused to consent to have the boundary established extra-judicially and that he had been forced to bring suit to have the boundary judicially established, and therefore defendant should have been condemned to pay all cost of suit.

However, while plaintiff alleged that defendant had refused to have the boundary established extra-judicially, defendant in his answer denied that allegation, and there was not any evidence offered tending to show that plaintiff had demanded, or that defendant had refused, to have the boundary extra-judicially established; but, on the other hand, the fact that defendant requested the appointment of a surveyor indicates that he did not object to having the boundary established, but rather joined plaintiff in his demand, and, as there was not any contest as to the correctness of the survey when finally made, plaintiff has no cause to complain of the decree ordering the cost paid equally by the parties.

“In an action of boundary the costs should be equally divided between the parties, unless there is proof of a demand on one side, and refusal on the other to settle the boundary amicably.” Tircuit v. Pelanne, 14 La. Ann. 215.

The judgment is affirmed.


author: REYNOLDS, J.

text:
    No. 3621
    Second Circuit
    JOHNSON v. HUNT & WHITAKER ET AL.
    (December 31, 1929. Opinion and Decree.)
    (March 2'4, 1930. Rehearing Refused.)
    O. A. Easterling and Hudson, Potts, Bernstein & Sholars, of Monroe, attorneys for plaintiffs, appellees.
    J. B. Dawkins, of Monroe, attorney for defendant, appellant.
   REYNOLDS, J.

Mrs. Velma Johnson alleged that she was the owner of a certain described diamond ring arfd intrusted it to her husband for safekeeping, and that he pawned it to Hunt & Whitaker as security for a loan of $210 and received from them in evidence of the transaction a pawn ticket in his name numbered 25083, and that without her knowledge or consent and without consideration he had indorsed and transferred the pawn ticket to Mrs. Irene Saunders under her promise that she would return it to him on demand, and that she had demanded of Mrs. Saunders the return of the pawn ticket and of Hunt & Whitaker the return of the ring, and that both Mrs. Saunders and Hunt & Whitaker had refused to comply with the demand. She further alleged that she had deposited in the registry of the court $210, and prayed to he adjudged owner of the ring, and that Hunt & Whitaker he ordered to deliver it to her on payment of $210 and that Mrs. Saunders be ordered to deliver the pawn ticket to her.

Hunt & Whitaker admitted the pawn of the ring and the issuance of the pawn ticket, and alleged that E. J. Johnson had indorsed the pawn ticket and delivered it to Mrs. Saunders and instructed them to deliver the ring to her on payment of the pledge debt and return of the pawn ticket; that Mrs. Saunders had presented the pawn ticket to them and demanded to be permitted to redeem the pledge, but that they had refused to permit her to do so, for the reason that Mrs. Velma Johnson had set up a claim of title to the ring; and that they were ready and willing to surrender the ring to whoever might be adjudged owner of it on payment of the pledge debt.

They further alleged that Mrs. Saunders, supposing herself to be the owner of the ring, subject to the pledge debt, had paid them $60 on the debt, and that, should she be adjudged owner of the ring, there will be a balance of $150 owing on the pledge debt, and they will deliver the ring to her on payment of that amount; but that, should Mrs. Velma Johnson be adjudged owner of it, there will be owing on the pledge debt $210, and they will deliver the ring to her on payment of that sum.

Mrs. Saunders admitted receiving the pawn ticket from E. J. Johnson, but denied that the transfer was without consideration or under an agreement to return it on demand, and alleged that she purchased it for $210 and paid $60 of the amount and owes Hunt & Whitaker the balance of $150.

On these issues the case was tried, and Mrs. Johnson was adjudged owner of the ring, and Hunt & Whitaker ordered to surrender it to her on payment of the $210. All costs were taxed against Mrs. Saunders.

From this judgment Mrs. Saunders appealed.

OPINION

It was established beyond doubt by the testimony of Mrs. Velma Johnson and her husband, E. J. Johnson, that the ring was the separate property of Mrs. Johnson, acquired by her from him before their marriage, as a gift. Their testimony on the point is not disputed. She testified she gave him the ring for safekeeping, and he that she gave it to him to use as security for a loan for fheir family purposes. The view we take of the ' case renders it unnecessary to determine which is the fact.

Mrs. Saunders testified that plaintiff’s husband told her about the pawning of the ring, and that he said he would not be able to redeem it, and that if she cared to redeem it he would give her the pawn ticket, and that she accepted the offer, and that he had indorsed and delivered the pawn ticket to her, and that she had paid to Hunt & Whitaker $60 on account of the pledge debt. Mrs. Saunders was not aware at the time that plaintiff’s husband was not the owner of the ring. The parties to the transfer appear to have acted in perfect good faith, but, the ring being the property of Mrs. Johnson, the transfer was voidable, ‘because:

“The sale -of a thing belonging to another person is null; it may give rise to damages, when the buyer knew not that the thing belonged to another person.” Civil Code, article 2452.

Mrs. Saunders contends that the pawn ticket was a negotiable instrument, and that she acquired it for value, before maturity, and in ignorance of any fact which might put her on notice of plaintiff’s claim, and that therefore the title to the ring passed to her along with the transfer of the pawn ticket; and she cites section 2485 of the Revised Statutes.

We do not find in the record the pawn ticket nor any copy of it, although it appears to have been introduced in evidence, and therefore are unable to say whether on its face it is or is not a negotiable instrument.

Neither Mrs. Johnson nor Hunt & Whitaker appealed from the judgment, and therefore it cannot be altered in favor of either of them. $

Hunt & Whitaker, in their answer, alleged that Mrs. Saunders had paid them $60 on account of the pledge debt, and that, should this court “hold that said ring belongs to Mrs. Velma Johnson, * * * your respondent should be ordered to deliver and return the sixty dollars to the said Irene Saunders and ordered to deliver the said ring to the said Mrs. Velma Johnson upon the payment by her to your respondent of the two hundred and ten dollars, amount due herein.”

The judgment of the district court ordered “that Hunt & Whitaker be and they are hereby commanded, ordered and directed to deliver to the said Mrs. Velma Johnson, the above described ring, upon the payment by Mrs. Johnson to them of the sum of two' hundred and ten dollars.”

We think the judgment should also have ordered Hunt & Whitaker to pay over to Mrs. Saunders $60, as they themselves, in the extract copied from their answer, suggested.

Mrs. Saunders did not pay the amount to Hunt & Whitaker for the benefit of E. J. Johnson, but for her own account, under the assumption that she had acquired title to the pledge and had assumed to pay the pledge debt. They received it from her for her owu account, supposing her to have acquired ownership of the pledge and to have assumed payment of the pledge debt. Both she and they acted in error. Therefore, she is entitled to receive back from them and they should pay to her the $60.

“He who receives what is not due to him, whether he receives it through error or knowingly, obliges himself to restore it to him from whom he has unduly received it.” Civil Code, art. 2301.
“He who has paid through mistake, believing himself a debtor, may reclaim what he has paid.” Civil Code, art. 2302.
“A thing not due is that which is paid on the supposition of an obligation which did not exist, or from which a person has been released.” Civil Code, art. 2304.
“That which has been paid in virtue of a void title is also ■ considered as not due.” Civil Code, art. 2305.

It is therefore ordered, adjudged and decreed that the judgment appealed from be recast so as to read, as follows, to-wit:

“It is therefore ordered, adjudged and decreed that there be judgment herein in favor of Mrs. Velma Johnson, recognizing and declaring her to be the owner and entitled to the possession of that certain diamond ring set with two diamonds and a blue sapphire between the diamonds, said ring being old gold and engraved with orange blossoms, and which said ring is now in the possession of Hunt & Whitaker, upon the payment by her to them of the sum of two hundred and ten dollars.
“It is further ordered, adjudged and decreed that Hunt & Whitaker deliver to the said Mrs. Velma Johnson the above described ring upon the payment by her to them of the sum of two hundred and ten dollars.
“It is further ordered, adjudged and decreed that Mrs. Irene Saunders do have and recover judgment against Hunt & Whitaker in the sum of sixty dollars with legal interest thereon from the date of this judgment.
“It is further ordered, adjudged and decreed that Mrs. Irene Saunders pay all costs except the cost of this appeal, which shall be paid by appellees.”