author: EULIOTI, J.

text:
    No. 657
    First Circuit
    MOTORS SECURITIES CO. v. REID
    (October 8, 1930. Opinion and Decree.)
    Borron & Hebert, of Plaquemine, and T. O. Brooks, of Shreveport, attorneys for plaintiff, appellant.
    Dupont & Dupont, of Plaquemine, attorneys for defendant, appellee.
   EULIOTI, J.

Motors Securities Co., Inc., brought suit against F. L. Reid on a note. The note was originally for $673.36, but was reduced by payments to $380.86 with interest and attorneys’ fees thereon. It had been made payable to Dawson Motor Co. and was secured by a chattel mortgage retained on an automobile, Chrysler sedan, and represented the credit price of the same. The Dawson Motor Co. transferred the note to the plaintiff.

Defendant contends that he does not owe the note; that plaintiff, holder of the note, agreed to and did take the automobile which had been sold him in satisfaction of the balance due on account of the same..

There was judgment in favor of the defendant. The plaintiff has appealed.

The burden of proof is upon the defendant to establish the payment which he claims.

Defendant, as a witness, testifies that the plaintiff agreed by telephone message delivered to him by its manager, to take the automobile in satisfaction of the debt. That it accordingly sent for, took, and has the automobile in its possession.

Mrs. F. L. Reid, defendant’s wife, Jack Miller and G. L. Gagnet each testify to facts and circumstances which upon the whole corroborate the defendant.

E. F. Gullatt, manager of the plaintiff, testifying in rebuttal, admits having a conversation with defendant over the telephone, sending for and taking the automobile into plaintiff’s possession pursuant thereto, but claims that it was done for the purpose of selling it at public sale under the judgment to be obtained against him, and crediting the price upon the indebtedness.

The defense is supported by the preponderance of the evidence.

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


source: Caselaw Access Project

author: MOUTON-, J.

license: Public Domain

text:
    No. 655
    First Circuit
    KILBOURNE ET AL. v. E. J. HACKNEY LBR. CO. ET AL.
    (October 8, 1930. Opinion and Decree.)
    E. S. Muse, of St. Prancisville, attorney for plaintiffs, appellants.
    Albin Provosty, of New Roads, Dubuisson, Perrault & Burleigh, of Opelousas, and Burke & Smith, of New Iberia, attorneys for defendants, appellees.
   MOUTON-, J.

In their original petition, plaintiffs claiming to be the owners of and in actual possession of the N. E. % of the N. W. % of section 34, alleged by them to be included in a 1000-acre tract of land in Pointe Coupee, brought this suit against defendant company for slander of their title. In a supplemental petition they specifically abandoned their claim of possession, and converted their demand into a petitory action, thus obviously admitting possession in defendant.

Plaintiffs claim title to the property by inheritance from their father and mother, tracing its origin to a partition by notarial deed passed February 9, 1858, between their ancestor, Eugene Tircuit, and his brother, Alexis Tircuit.

It is to that contract, which plaintiffs term to be an act of partition, that they trace the source of their title. It is not alleged in the petition, nor is it stated any where in that so-called act of partition, from whom Eugene Tircuit, original author of plaintiffs in title, acquired this land. The district judge, in his written opinion, says that the evidence does not show that the land is included in any of the deeds relied on by the plaintiffs. There are good grounds of record to support this conclusion of the trial court, but we will pass them over, and take it as proved that the land in dispute is included within the 1000-acre tract, as is alleged by the plaintiffs.

It was proved by plaintiffs that this land was patented by the state to Thomas S. McCay, May 26, 1859, a little over a year after the date of the partition between Eugene and Alexis Tircuit, by virtue of which plaintiffs aver their ancestor, Eugene Tircuit, acquired title which they allege was transmitted to them by inheritance. It is therefore apparent, from the evidence of plaintiffs themselves, that wlien their ancestor undertook to divide the land with Alexis Tircuit, his brother, that its title was then vested in the state, which was thereafter patented to McCay, as above stated. There is nothing to indicate that it had then been severed from the public domain, or that the - land had ever been acquired by plaintiffs’ author from McCay, his heirs, assigns or from anyone else to sustain their claim of title by inheritance.

They have therefore failed to establish their title by the deeds upon which they rely, and they make no claim of ownership by prescription which, however, would be inconsistent with their petitory action which admits possession in the defendant company.

’ The defendant, on the other hand, has shown an unbroken chain of title to the land by selection from the state under the act of 1841.

It is elementary that in a petitory action plaintiff must recover on the strength of his own title, and not upon the weakness of the defendant’s title.

In the case of Doiron et al. v. Lock, Moore & Co., 165 La. 57, 115 So. 366, 370, the court in emphasizing this doctrine said, not only was it incumbent on plaintiff to show a better title than his adversary, “but one as good as, or better than, any the latter can oppose to them, whether vested in the defendants or not.”

■ In this case the title of the plaintiffs is certainly not better than that of defendant, ánd not as good, whether vested in defendant or not.

We therefore find no error in the judgment rendered below dismissing plaintiffs’ suit.


author: LeBLANC, J.

text:
    No. 656
    First Circuit
    D'AGOSTINO v. VIVIRITO
    (October 8, 1930. Opinion and Decree.)
    Jos. Nicolosi, of Plaquemine, attorney for plaintiff, appellant.
    Dupont & Dupont, of Plaquemine, attorI neys for defendant, appellee.
   LeBLANC, J.

Plaintiff, in his original petition, presented a demand against the defendant for the sum of $282.02, presumably on an open account for goods, wares, and merchandise alleged to have been sold by him to the defendant, at the latter’s request. He recites certain sales dating as far back as January, 19'24. He alleges that ' on May 11, 1925, defendant gave him his check for $150 to be applied on his account, but that upon presenting it to the bank on which it had been drawn, payment was ■refused for the lack of sufficient funds to ‘ the credit of defendant with which to pay it. He further avers that he afterwards presented it several times at the bank, but. always with the same result.

On being met with an exception of vagueness, plaintiff filed a supplemental petition from the contents of which it appears that ' he reduces his claim from the sum of $282.02 to the sum of $179.95. As we understand the demand under this supplemental petition, plaintiff asked judgment for the full amount of the unpaid check of ,$150 and an additional amount of $29.95 ■ which he claims is due on an open account which ran from October 8,. 1924, to February 6, 1925.

The defendant answered, denying any in-' debtedness whatsoever. He admits having made and given plaintiff the cheek described in the petition and annexed- thereto, ■ but alleges that the same was given under ' circumstances which he details, and which,' .as ■ we understand them, implicates the plaintiff in the compounding of a felony. He avers that it was the understanding between them, at the time it was given, that it was never to be presented for payment, but simply to be used as a means to obtain reimbursement from another, party for some of plaintiff’s property which had been ■ purchased by him from, defendant’s son who was alleged to have stolen it, and thus save the latter from criminal prosecution. For the reason set out in his answer, the defendant pleads that the check was .without consideration.

From an adverse judgment in the lower court, the plaintiff has appealed.

Defendant’s son, Joe Vivirito, was working for the plaintiff, who was a merchant in the town of Plaquemine, La. During the time of his employment, plaintiff missed quite a lot of goods, including boxes of apples, cabbages, sugar, and a quantity of paint. He says that he had reason to suspect defendant’s son of having stolen the goods and complained to the sheriff of the parish. On investigation, the sheriff found some of the stolen paint in the possession of one Martin Mirandi. Defendant’s son was then apprehended and placed in the parish jail. It does not appear positively that any direct charge was preferred against him, but we are satisfied from what evidence we find that he was actually incarcerated in prison. It is unfortunate, in a way, that the sheriff who made the investigation and who handled the whole matter had died at the time the case was tried and we are denied the benefit of his testimony, which, we feel, might have thrown much light on an important phase of the case. If the defendant’s son was not actually charged with the commission of the crime, it may be regarded as pretty certain that both he and Mirandi were threatened with prosecution, the former for having stolen the goods, and the latter for having bought them knowing that they were stolen.

It was after Joe Yivirito had been put in jail that the check here sued on was given by the defendant to plainLff, who had also obtained one for a like amount ' from Mirandi.

The plaintiff’s contention is that the checks were taken in payment for the value of the goods which had been stolen, and which, he testifies, amounted to more than $300. Defendant insists that the check he gave was given under the circumstances alleged in his answer, namely, that there was a well-defined agreement between them that the plaintiff would hold it and use it before Mirandi to influence the latter to pay him, after which it was to be returned to the defendant or destroyed. He testifies that this plan evolved in the plaintiff’s mind, and, as far as he was concerned, he seemed to have been willing to yield readily to it, inasmuch as it was to cost him nothing and would be the means whereby his boy would obtain his release from jail and be saved from criminal prosecution.

Mirandi’s testimony, offered bj the plaintiff in rebuttal, as well as the circumstances surrounding the whole transaction, support the defendant’s contention. The quantity of paint found in Mirandi’s possession did not amount in value to anything like the sum of $150, and he makes it plain that he paid that amount to be spared a criminal prosecution. The defendant’s son was released from prison as soon as the checks were given, and he was never prosecuted. We are satisfied therefore that, irrespective as to whether or not the check given by defendant was to be destroyed or returned to him, it was accepted by the plaintiff as a compromise for the legal wrong he claims to have suffered and also for the purpose of suppressing a criminal proceeding in court. A check or note given under such circumstances lacks the consideration necessary to make it enforceable by the payee against the maker.

“Compounding a public offense, whether felony or misdemeanor, is essentially immoral; not malum prohibitum, but malum 'in se. Accordingly it has become a settled rule of law that any contract or instrument, the consideration of which is the concealment, suppression or compounding of an offense, is unenforceable by the payee or one having notice of the facts.” Ruling Case Law,’ vol. 3, p. 957, par. 155.
“Where a note or other contract for the payment of money is given in settlement of a civil liability for a criminal act, and also for the purpose of suppressing a criminal prosecution for such act, the note or contract is not enforceable.” Ibid, p. 958, par. 157.
“A promissory note which has for its consideration the discontinuance, by the holder of the note, of certain proceedings instituted by him against a party for obtaining money under false pretenses, is void.” Ozanne v. Haber, 30 La. Ann. 1384.

Regarding the claim of plaintiff for the $29.95 on the alleged open account, we find the defendant positively denying the- purchases, and we agree with the learned trial judge that plaintiff has failed to prove by a preponderance of evidence the indebtedness alleged to be due thereunder.

The judgment appealed from is correct, and it is therefore affirmed.


author: MOUTON, J. MOUTON, J.

text:
    No. 661
    First Circuit
    DUMESNIL v. STEINBERG
    (June 30, 1930. Opinion and Decree.)
    (October 7, 1930. Rehearing Refused.)
    Cross & Moyse, of Baton Rouge, attorneys for plaintiff, appellee.
    C. A. Battle, of Baton Rouge, attorney for defendant, appellant.
   MOUTON, J.

L. Lewis, claiming to represent H. Stein & Company of Baton Rouge, bought from plaintiff, a butcher of Lafayette, 89 hides, weighing 3,224 pounds,- at 11% cents a pound, making $370.76, for which he drew a check on Stein & Co. of Baton Rouge, which that company turned down and refused to pay. This refusal-.was based on the fact, as was testified to by Mr. Stein, and uncontradicted, that, three or four days before the' hides were purchased, Lewis had been discharged from service by his company, and therefore had no authority whatsoever to draw for the purchase of these hides.

These hides were bought by Lewis from plaintiff on Tuesday, Mrfrch 12, 1929.

The defendant alleges that it bought 1,790 pounds of hides on March 13th from Harry Cohen, but which were not part of the hides Lewis had purchased from plaintiff, Dumesnil, on March 12, 1929, and specifically denies that it ever purchased or received the difference of 1,434 pounds between what it had bought from Cohen, and the lot of hides Lewis had purchased originally from plaintiff.

The sole issue is therefore one of fact, and resolves itself into the question as to whether defendant purchased or received the 3,224 pounds of hides, which plaintiff claims, or, in the alternative, their value.

It is shown by the testimony of Eddins, manager of defendant company, and Cohen, that the latter was buying hides for defendant company, Cohen says, exclusively. It is shown that Cohen had loaned his truck to Lewis, and his negro driver, and that he was then in or near Lafayette, where these hides were originally bought, as hereinabove stated. Cohen disclaims, however, of having had any knowledge as to where or from whom Lewis had gotten these hides. He testifies that he bought hides which Lewis claimed weighed about 1,800 pounds, and admits that they were carried in his truck to Baton Rouge, but as to where Lewis took them, he says, he has no knowledge. He testifies that he did no.t count the hides in the bundles when he bought the 1,790 pounds, and that Lewis allowed him to make his own price. To say the least, this was a loose and careless way of conducting a transaction on the side of both the seller and the buyer.

It is shown that after Stein & Co. had declined to pay the check that plaintiff and his attorney, Mr. Xavier Mouton, of Lafayette, went to Baton Rouge for the purpose of locating these hides. While in Baton Rouge they were directed by Mr. Stein to the establishment of defendant company, Which was in the business of buying hides. They were permitted by Mr. Eddins, manager of the company, to interview a negro in reference to the purchase of these hides at Lafayette, and their transportation to Baton Rouge. The negro’s name, which appears from the record to be Rosin, was immediately recognized by-plaintiff as having been in the truck with Lewis when Lewis bought the hides from him.

. Plaintiff and Mr. Mouton both testify that they had an interview and a conversation with Rosin in reference to these hides in the presence of Mr. Eddins, the manager, which took place in the office of the company in Baton Rouge. Plaintiff testifies that Rosin said the hides had been brought in the truck to Steinberg’s at Baton Rouge, and that he had driven the truck, that Mr. Eddins had stated that he believed the hides belonged to plaintiff, and that he would try to locate them in a big pile, where it was difficult to tell one from the other. Mr. Mouton testifies that Mr. Ed-dins was present when Rosin made the statement testified to by plaintiff, and stated that Rosin had said he was certain that all the hides bought from plaintiff by Lewis had been delivered to defendant company, because he had not left the truck from the time the truck left Lafayette, to the time of the delivery of the hides to defendant.

Mr. Eddins admits that he permitted the interview with the negro, but says it was Saturday, that he was very busy paying off, paid no attention to what was going on, and denies that any of the conversation testified to by plaintiff and - Mr. Mouton took place in his presence. «

Mr. Carleton, defendant’s bookkeeper, was in the office at the time of the conversation. He was called as a witness for defendant, and was asked the following on the subject under discussion:

“Q. Who carried on the conversation with the negro?
“A. Well, the conversation was with Mr. Eddins, Mr. Mouton and Mr. Dumesnil. Just general conversation.
‘‘Q. All thr.ee asked the negro questions?
“A. Yes.
“Q. Neither Mr. Eddins nor you left during that time?
“A. No sir.”

It is true that Mr. Carleton says he did not hear the negro say anything about plaintiff’s hides, but the fact remains that his testimony is directly at variance with the testimony of Mr. Eddins when he denies that any such conversation took place in his presence. Not only was it held in his presence, but, according to Mr. Carleton, Mr. Eddins took part in it, asking questions of the negro with plaintiff and Mr. Mouton.

No doubt, the district judge, from the character of the evidence to which we have referred, concluded that the version of the conversation with Rosin, and the declarations he had made as was testified to by plaintiff and Mr, Mouton, was what had really occurred at the interview in the office of defendant company.

The statements of Rosin, taken in connection with the fact that Cohen was in Lafayette or vicinity when Lewis bought these hides, that were carried in a truck which had been loaned to Lewis by Cohen, buyer of hides for defendant company, prove, as we read this record, with legal moral certainty, that defendant received the hides claimed hy plaintiff by purchase or otherwise for which it was properly held liable by the lower court.

There is certainly no manifest error in the finding of fact below, which could be deduced from the evidence so as to authorize a reversal by .this court.

ON REHEARING

MOUTON, J.

In passing on the application for a rehearing, we find it unnecessary to again reconsider the main issues of fact which were fully discussed in our original opinion.

Counsel for defendant, in his. application, says that only 1,790 pounds of hides reached defendant.

‘ Cohen says he did not weigh the hides when he bought them, did not count them, made his own price for the purchase, did not know how many bundles were taken out, and did not know how many hides were in the shipment.

In answer to a direct question put to him, Eddins, manager of the Steinberg Hide & Fur Company, admitted that he could have gotten, without knowing it, the 1,434 pounds of hides, being the difference between the 3,224 pounds plaintiff is claiming and the 1,790 pounds which defendant contends were bought.

With testimony of that character, taken in connection with the other facts and circumstances referred to in our first opinion, we find no reason whatsoever to depart from our original finding, in which we held that it had been shown, with legal certainty that defendant had received the 3,224 pounds of hides sued for.

Applicant contends also that Morris Stein-berg was not present at the conversation or interview with Rosin at the office of defendant company, referred to in our original opinion, and for that reason the statements of the negro, Rosin, were inadmissible in evidence.

The record shows that the hides were bought for the Steinberg Hide & Fur Company by Cohen. It is also shown that the interview was held in the presence of Ed-dins, manager of that company, who participated in the conference or interview. It seems to us that the Steinberg Hide & Fur Company could not have had a better representative at that interview than Ed-dins, its manager. The fact is that counsel for defendant questioned and cross-questioned Mouton and plaintiff in reference to what occurred at that conference, and without reservation offered testimony on this subject through Eddins, the manager, and Carleton, bookkeeper, of the Steinberg Hide & Fur Company, to refute and discredit the evidence of plaintiff and Mouton, plaintiff’s witness; and counsel now says that our consideration of that testimony was a perversion of the rules of evidence.

The evidence was admissible and legal. Even without that testimony, the evidence Is sufficient to fix the liability for the hides in question, and, taking the case from ■every conceivable angle, there is no ground presented in the application to lead us to a conclusion different from the one originally reached.


author: MOUTON, J.

text:
    No. 668
    First Circuit
    YORK v. STARNS
    (June 30, 1930. Opinion and Decree.)
    (October 7, 1930. Rehearing Refused.)
    B. Purser and M. Purser, of Amite, attorneys for plaintiff, appellant.
    A. L. -Ponder, of Amite, and M. C. Rownd, of Springville, attorneys for defendant, appellee.
   MOUTON, J.

Plaintiff, a negro, was shot by defendant- at a sawmill quarters in Livingston parish at the hour of one a. m. June 14, 1929. He was shot, as we understand the testimony of Dr. Gothreax, on the right side of the middle clavicular line, and that the bullet ranged slightly upward, emerging at the back. No vital organ was touched, and the injury did not cause serious pain, as no sedative was administered to the patient.

The evidence shpws he was under treatment about thirty days, and at the Charity Hospital in New Orleans approximately seven or eight days. The physician says that he was well when he returned from the hospital, but that no permanent injury would result.

At the trial, in April, 1930, the negro testified, that at that time, he sometimes, when sitting down, felt where he was shot. No doubt the wound was of a serious character as appears from the description given of its nature by the attending physician, .Dr; Gothreax.

The district judge gave him judgment for $123.75 for loss of-time after he was injured, and for $50 for the tortious act of defendant to him.

Counsel for defendant is asking for an affirmance of the judgment, while counsel for plaintiff is asking for an increase to the sum of $2,180.75, the amount claimed by plaintiff.

Counsel for defendant cites Mask v. City of Monroe, 9 La. App. 417, 121 So. 250, where it was held that the amount of damages allowed by the trial court will not be disturbed on appeal when it appears from the evidence that it is fair and reasonable.

The record shows that plaintiff paid the expenses he had incurred for the trip he madé to New Orleans when he went to the hospital, and that, after he got well, had to pgy for his groceries or living expenses during the 55 days he had been unable to work on account of the injuries which resulted from the wound defendant had inflicted. Though the amount incurred for those expenses was not specifically established, they, however, constituted an element of damage which must be recognized. Besides, he was shot through the body, and no doubt, escaped death or extremely serious injury simply because his vital organs were not struck by the bullet. Although he did not suffer severe pain at the time he was wounded to the extent of requiring a sedative, he must of necessity have experienced some pain or suffering. The fact is that during the trial, which took place several months after he had been wounded, he said he still felt where he had been shot, which indicated that there was still a lingering sensitiveness where the injury had been inflicted.

Although much discretion must be left to trial judges in assessing damages in cases of this character, as contended for by counsel for defendant, when, however, the allowance is not fair and reasonable, the duty of the appellate court is to raise it to a sum sufficient to meet the ends of justice.

In this case we find, for the reasons hereinabove given, that the amount decreed is insufficient and should be increased to the sum of $500, with legal interest from judicial demand.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be increased from the sum of $173.75 decreed below, to the sum of $500, with legal interest thereon from judicial demand, and, as thus amended, the judgment be affirmed; all cost to be paid by defendant.


author: JANVIER, J.

text:
    No. 11,631
    Orleans
    MATHES v. GAINES
    (October 20, 1930. Opinion and Decree.)
    Godchaux, Milling, Saal & Milling, of-New Orleans, attorneys for plaintiff, appellee.
    Thomas Gilmore, of New Orleans, attorney for defendant, appellant.
   ON REHEARING

JANVIER, J.

A careful reconsideration of this matter convinces us of the correctness of our original opinion, 127 So. 408, which was to the effect that there was no evidence before the district court, or before us¡, to sustain the contention of the defendant that the contract for the sale of the real estate in .question was obtained through fraudulent representations, or through fraudulent failure to disclose facts known to the agent. In our original decree we came to this conclusion, but felt that the ends of justice required that the matter be remanded to the district court to the end that evidence in support of the suggested defense might be introduced, if available. On reconsideration we are convinced that it would be unfair to remand the matter inasmuch as defendant had every opportunity on the original trial to introduce any evidence available and none was forthcoming. The result of the remanding of the case would be that the appeal bond would be cancelled and, since the defendant has since died, it is possible that a judgment, if rendered against her, or her heirs later, could not be collected.

By motion of Albert W. Newlin, public administrator for the parish of Orleans, we are advised that the defendant has died since the rendering of the judgment appealed from, and, by appropriate order, the said Newlin, as administrator of the succession of the said Fannie Gaines, has been made party defendant.

It is therefore ordered, adjudged, and decreed that the original decree rendered by us be and it is recalled and annulled, and it is now ordered that the judgment appealed from be amended so as to read against Albert W. Newlin, administrator of the succession of Fannie Gaines and, as thus amended, it is affirmed at the cost of appellant.


author: WEBB, J.

text:
    No. 3846
    Second Circuit
    CURRY v. THE OHIO OIL COMPANY
    (July 5, 1930. Opinion and Decree.)
    (October 2, 1930. Rehearing Refused.)

      Booth & Grafton, of Shreveport, attorneys for plaintiff, appellee.
    Roy L. Benoit, of Shreveport, attorney for defendant, appellant.
   WEBB, J.

This action was filed on September 13, 1929, to recover compensation for disability to work, which is alleged to have resulted from an accidental injury alleged to have been sustained by plaintiff on October 9, 1928, while he was engaged in defendant’s service.

Plaintiff alleged that in the afternoon of October 9, 1928, while he was lifting a heavy plank, he sustained a strain causing a hernia to develop, which had disabled him; that he advised defendant of the accident and requested it to bear the expense of an operation to relieve the condition, which was refused, and plaintiff prayed for judgment for compensation at the maximum weekly rate, beginning October 16, 1928, for a period of three hundred weeks (subdivision a, subsection 1, section 8, Act No. 20 of 1914), and for judgment for med-■ ical expenses, and all cost of suit.

Defendant answered, admitting that plaintiff was employed by it on the date of the alleged accident, and otherwise denied plaintiff’s allegations; and on trial judgment was rendered in favor of plaintiff awarding him compensation at the rate of $20 per week, beginning on September 10, 1929, for a period of twenty weeks, with legal interest, and for judgment in the further sum of $250, for medical fees, and for all cost of suit.

Defendant appeals, contending that the evidence failed to establish that plaintiff sustained an accidental injury causing a hernia to develop and disabling him, and urges that the judgment should be reversed and plaintiff’s demands rejected; while plaintiff has answered the appeal, praying that the judgment be amended, and that he be awarded compensation as originally demanded.

It is conceded that some time prior to plaintiff’s entering defendant’s service he had undergone an operation for appendicitis, and that, at the time he began working for defendant, which the record shows was on August 16, 1928, the abdominal wall, at the place of the scar left from the incision made at the time of the operation, was weak, and, while the evidence conclusively establishes that plaintiff was continuously employed from August 16, 1928, in the same character of work and at the same rate of wages, until September 10, 1929, when he was discharged, plaintiff claims, as stated, that in the meantime, that is, on October 9, 1928, he sustained an accidental injury, causing a rupture of the abdominal wall or hernia at the point of the scar, which disabled him to work.

There was no one else present at the time plaintiff claims he sustained a strain, except a co-employee, whose testimony, taken under commission, supports plaintiff’s statement that while he was lifting a heavy plank he experienced a severe pain in. his abdomen at the place of the scar, which.became red and inflamed, which condition he (witness) said existed on the day following the accident when plaintiff was ■examined by two physicians. One of the ■physicians referred to appeared at the trial of the case, having been called by defendant, and the testimony of the other, which was taken under commission, was offered in evidence by defendant. The physician who appeared at the trial had examined plaintiff in September, 1928, when he found that the abdominal wall at the place of the scar was weak, and he said that the condition of the scar was better on October 10, 1928, the day following the alleged accident, than at the time of the previous examination, and that on the latter date the scar was not red or inflamed, and tnat there was not any rupture of the abdominal wall or hernia, while the other physician, whose deposition was introduced in evidence, said that on October 10, 1928, or the day after the alleged accident, there was a weak spot in the scar and a small beginning hernia, but both of the physicians stated that the condition was practically the same in September, 1929, as on October 10, 1928.

Whether one has sustained a strain is more or less dependent upon his own experience, and, if the right of plaintiff to recover was dependent solely upon whether or not he sustained a strain, the evidence would be sufficient, but it is at least conceded that it is essential the evidence must establish that the strain caused an injury of the body, or, in the present instance, a rupture of the abdominal wall or hernia; and aside from the statement of plaintiff and his co-employee that the place of the scar was red and inflamed, which is not supported by the testimony of the physicians who examined plaintiff on the day following the accident, but is directly in conflict with the statement of one of the physicians, the only evidence indicating that there may have been such an injury is the statement of one of the physicians, whose deposition was taken under commission, who said there was a weak spot in the scar and a small beginning hernia. But the testimony of the physician who had examined plaintiff in September, 1928, and who appeared on the trial, was more definite and complete than the testimony of the physician whose deposition was introduced in evidence, and we are of the opinion is entitled to greater weight; and, the burden of proof being on plaintiff, the preponderance of the evidence does not show that there was a rupture of the abdominal wall or hernia.

But even though it should be that plaintiff .did sustain an accidental injury, causing a iupture 'of the abdominal wall, the evidence that plaintiff continued doing the same kind of work, at the same rate of wages, for a period of eleven months after October 9, 1928, for which he was paid approximately $2,000, shows that he was not disabled to work or earn wages; and, unless compensation should be allowed in cases of hernia on some other basis than disability to work, plaintiff cannot recover.

While appellee cites Baker v. Wall Drilling Company, 168 La. 513, 122 So. 711, in which paragraph 17, subdivision (d), subsection 1, section 8, of Act No. 20 of 1914, as amended by Act No. 85 of 1926, was considered, and an award made for an operation for hernia, and compensation fixed for a period of twenty-six weeks, as provided in said paragraph, and counsel urges that the provisions of paragraph 17 having been omitted in Act No. 242 of 1928, amending and re-enacting section 8 of the statute, was repealed.

There cannot he any question, we think, that the provisions of the paragraph were impliedly repealed, as urged by counsel (Flournoy v. Walker, 126 La. 489, 52 So. 673; Kirby v. Crystal Oil Refining Corporation, 11 La. App. 562, 123 So. 432), and therefore plaintiff could not recover compensation under the paragraph referred to.

It is therefore ordered, adjudged, and decreed'that the judgment appealed from be avoided and reversed and plaintiff’s demands rejected at his cost.


text:
    No. 662
    First Circuit
    SUCCESSION OF BREEDEN
    (October 8, 1930. Opinion and Decree.)
    Cross & Moyse, of Baton Rouge, attorneys for administrator, appellee.
    R. F. Walker, of Baton Rouge, attorney for opponent, appellant.
   LeBLANC, J.

On October 25, 1929, an application was ■ presented to the Nineteenth Judicial. District Court for the Parish of East Baton Rouge, by Franklin Breeden, to be appointed administrator of the succession of his father, Rufus K. Breeden, deceased. An inventory of the estate was duly taken, which showed total assets, all personal property, of $861.50. There being no opposition to his application, Franklin Breeden was, in due time, appointed administrator and qualified by taking the oath and furnishing the bond required.

In the course of his administration, he obtained an order of court to sell the movable property in order to pay debts, whereupon his brother, Ernest K. Breeden, applied for an injunction to prevent the sale, claiming that practically all the property listed in the inventory as belonging to the estate belonged to him. A rule nisi was issued ordering the administrator to show cause why the' injunction should not issue and the latter’ filed an answer in which it was admitted that plaintiff in rule was the owner of one of the two horses inventoried as belonging to the succession and also owned an undivided one-half interest in 17 head of cattle listed in the inventory. His alleged ownership of any other ¡property was denied.

On the trial of the rule the lower court rendered judgment granting an injunction to the extent admitted by the administrator of the succession in his answer, that is, with regard to one horse, described as being a black horse, and an undivided half interest in 17 head of cattle, and otherwise rejected the demands of the plaintiff in rule. An appeal was taken.

The only issue presented is the one of ownership vel non by Ernest K. Breeden of the property claimed by the estate of his father other than that much of it which is admitted to be his. The only proof he submits is his own testimony, not supported by any corroborating facts or circumstances, except a few personal checks drawn by him with certain notations written at the bottom of each, presumably to show that they were issued in payment of some of the items which he claims. The fact that some of the notations referred to are written in different colored ink from the rest of the written part of the checks, casts a certain amount of suspicion around all of his testimony and probably strongly influenced the trial judge when he came to consider it. Besides, he is directly contradicted in all of his claims by' his brother, Franklin Breeden, the administrator of the succession, and also in many of them by Mrs. Rufus K. Breeden, widow of the decedent. His claim to the hogs and chickens was clearly disproved by the testimony of these two witnesses, corroborated to a certain extent by that ot Mrs. Minnie Noble. With regard to the crops which he says are his property, we find that the claim he really presents is for advances in the way of money paid for labor and fertilizer from which might have enured a privilege, but certainly not their ownership. He produced a receipt for $75 for the payment of a horse which is the horse admitted to be his. His claim to the ownership of the other horse is based on an alleged purchase from one W. L. Hause, which he says took place in 1922. He offered a check in evidence made to the order of W. L. Hause for the sum of $100 which bears the notation “For Horse” but the date of the check is November 3, 1921, which does not correspond with the year of the alleged purchase. Morevore, he states in his testimony that Mr. W. L. Hause, “at the present time is head of the Community House here in Baton Rouge,” but he does not produce him as‘witness nor offer any explanation why he does not do so, to corroborate his testimony regarding the purchase. He seems to want to create the impression that his father was in rather straitened circumstances and that he came into the ownership of much of this property in an effort to help him out, yet the testimony of his brother, Franklin Breeden, and of Mrs. Breeden is to the effect that his father never was in need of any assistance from him in a financial way and that he died leaving a few dollars in cash and some $200 in bank.

Our consideration of all the evidence in the case satisfies us that the judgment of the lower court rejecting the contested demands of plaintiff in injunction is correct and it is accordingly affirmed.


author: HIGGINS, J.

text:
    No. 11,131
    Orleans
    O’NEAL v. TRASCHER
    (October 20, 1930. Opinion and Decree.)
    Paúl W. Maloney, of New Orleans, attorney for defendant, appellee.
    Appellant unrepresented in this court.
   HIGGINS, J.

There was neither any brief filed by plaintiff, nor any appearance made in her behalf in this court. The matter was submitted upon brief by defendant’s attorney.

An examination of the record indicates that plaintiff failed to sustain the burden of proving the case by a preponderance of evidence and the verdict of the jury and judgment of the lower court were correct.


text:
    No. 11,466
    Orleans
    HIBERNIA BANK & TRUST COMPANY v. J. M. DRESSER COMPANY, LTD.
    (January 13, 1930. Opinion and Decree.)
    (January 27, 1930. Rehearing Refused.)
    (March 10, 1930. Writ of Certiorari and Review Refused by Supreme Court.)

      McCloskey & Benedict; of New Orleans, attorneys for Hibernia Bank & Trust Company, plaintiff, appellee.
    Lazarus, Weil & Lazarus, of New Orleans, attorneys for Elkin Moses.
   HIGGINS, J.

This is a contest over an expert accountant’s fee of $500, which the lower court taxed as costs against the defendant in rule and the plaintiff in the main demand. There was judgment in favor of plaintiff in rule and defendant in rule has appealed.

The record shows that on June 4, 1912, the Hibernia Bank & Trust Company filed suit against J. M. Dresser under No. 99,232, of the docket of the civil district court for the parish of Orleans and obtained a judgment against the defendant therein.

During the early part of the year 1913, the Hibernia Bank & Trust Company endeavored to execute the judgment and sued J. M. Dresser Company, Ltd., alleging that the company was a mere sham and disguise for the bank's judgment debtor, J. M. Dresser.- This suit is No. 100,187 of the docket of the civil district court..

On April 17, 1913, the court appointed Elkins Moses,, plaintiff in rule in this proceeding, as an expert accountant to examine the books of J. M. Dresser Company, Ltd., and on May 20, 1913, Moses submitted and filed his report in proceeding No. 100,-187, and in a letter attached to the report requested that the parties to the suit be notified and that his fee be taxed as costs.

On May 25, 1913, in this same proceeding the Hibernia Bank and Trust Company, plaintiff therein, took a rule against Mr. Moses to supplement his report and this rule was denied by the court on June 2, 1913, for want of proper parties and nothing further was. done in the case by anybody until January 17, 1927, when counsel for the defendant, J. M. Dresser Company, Ltd., filed an ex parte motion to have the case No. 100,187 stricken from the docket as abandoned by plaintiff because more than five years had elapsed without any action being taken by plaintiff and an order of court dismissing plaintiff’s suit at its cost was duly granted.

In May of 1927, plaintiff filed a motion to dismiss the case No. 104,724 (where the Hibernia Bank & Trust Company had filed a third suit against J. M. Dresser Company, Ltd., Louisiana Realty Company and the stockholders of each company under allegations of fraudulent simulation) as all the Dresser litigation had been compromised and settled and the order of- court was entered discontinuing and dismissing plaintiff’s suit at its cost.

On November 17, 1927, in the proceeding No. 100,187, Mr. Moses as an expert accountant, took a rule on both parties to fix his fee as an expert at $500 and tax it as costs covering the work performed during May of 1913.

The defenses to this rule are:

(1) That this court is without jurisdiction ratione materise because of the peremption (not prescription) of five years. C. C., art. 3519.

(2) That Moses’ claim itself is perempted by five years, because he filed a rule to tax his costs on May 20, 1913, and took no further action therein since said date.

(3) That Moses’ claim, if considered a fee for professional services, is prescribed by three years to date from the accrual of his right of action, which was May 20, 1913.

■ (4) That Moses’ claim, if considered as a personal action, is prescribed by ten years from the accrual of his right of action, to-wit: May. 20, 1913.

(5) Estoppel, and alternatively only,—

(6) The claim is excessive.

Wé will now consider these' defenses:

Defendant in rule contends that article 3519 of the Civil Code is. self-operative and governed by the law of peremption and not prescription, and that after five years have elapsed without any action, the case is considered as never having been filed and hence nothing can be decided by a court therein, and all issues are relegated to other proceedings; that the court cannot even tax costs in a dead suit and that plaintiff in rule should be required to file a separate suit, particularly where the costs are unliquidated and require the administering of an oath and documentary proof.

• Article 3519 of the Revised Civil Code, as amended by Act 107 of 1898, reads as follows:. .

“ABANDONMENT OR. DISCONTINUANCE OF SUIT. If the plaintiff in this case, after having .made his demand, abandons or discontinues it, the interruption shall be considered as having never happened.
“Whenever the plaintiff having made his demand shall at any time before obtaining final judgment allow five years to elapse, without having taken any steps in the prosecution thereof, he shall be considered as having abandoned the same.’’

It will be observed that this language plainly provides that only the plaintiff shall be considered as having abandoned the case. We do not find any provision in the statute which says that the jurisdiction of the court will be automatically ousted for all purposes, even the court’s authority to assess and tax costs in connection with the suit. Is the language broad enough to justify us in saying that the cause of action of the expert to have his fee taxed as costs in the suit in which he was appointed by the court perempts in five years? We think not. The evident purpose and intention of the legislature was to penalize a plaintiff in a suit for failure to take any steps in the prosecution of it for a period of five years. The law does not place any penalty upon any other party litigant except the plaintiff. To adopt the construction contended for by the defendant would be to penalize other party litigants in the case. For instance, the defendant, who moved the court to order the case stricken from the docket as abandoned by the plaintiff, under this law, would be forced to file a separate proceeding against the plaintiff to secure the return of the costs of court expended by the defendant. The same thing would apply to any other party litigant in the proceeding. If there were ■ a number of experts appointed by the court they would likewise be compelled to enter separate suits against the plaintiff to obtain payment of their fees.

It is conceded that where the plaintiff voluntarily files a motion to discontinue or dismiss his suit the court retains jurisdiction over the case to tax costs and enforce their payment. We can see no logical or practical ' reason why the court should be diverted of its jurisdiction to tax costs when the plaintiff abandons the case by failure to prosecute it within a period of five years, under the article of the .Civil Code.

In the case of Burbanks v. Burbanks, 138 La. 997, 71 So. 134, the Supreme Court held that the purpose or idea of the statute is to hold the plaintiff responsible for the delay.

In the case of Geisenburger v. Cotten, 116 La. 651, 40 So. 929, the Supreme Court held that the defendant may waive his right to plead that the suit was abandoned for want of prosecution for five years.

The precise point at issue here appears never to have been passed upon by the Supreme Court. Neither counsel for plaintiff nor defendant have cited any case which is directly in point. We have examined the authorities cited by the defendant in rule and are of the opinion that they are not in point or controlling in this case.

We are of the opinion that article 3519 of the Civil Code as amended does not divest the court of its jurisdiction by peremption over the case for the purpose of taxing costs but that the statute merely gives the defendant tne right to have the plaintiff’s suit dismissed as having been abandoned, where the plaintiff has failed to take any steps in the prosecution of the suit for a period of five years, and, for the same reasons, that Mr. Moses’ claim is not perempted by five years under the article of the Code.

We pass to the question of prescription.

The record shows in both cases referred to herein that the suit was discontinued at plaintiff’s cost.

The following articles are found in our Code of Practice.

Article 462. “COMPENSATION OF EXPERTS, etc. Experts, auditors, of account, and arbitrators, named in pursuance of the provisions enacted in this section, shall be entitled to receive such compensation for their services as the court may determine, according to the nature of the cause, and such compensation shall be included in the taxed costs, and shall be paid by the party cast.”

Article 552. “WHAT COSTS ARE TAXED. The costs to be paid by the party cast include .not only the taxed costs, but also all the expenses incurred in taking testimony by commission, and the compensation allowed for their services to such experts, auditors, or judicial arbitrators, as may have been appointed in the suit; and also the costs of copies of notarial acts, of judgment, and other copies of the records of other public officers, necessary in the case.”

In the case of Central Glass Co., Ltd., v. German-American Insurance Co., 13 Orl. App. Rep., page 16, this court held:

“Experts and auditors appointed by the court in cases provided by the law are entitled to such compensation for their services as the court may determine, and such compensation forms part of the cost and must be paid by the party cast.”

In the case of In re New Orleans, 19 La. Ann. 382, the Supreme Court said:

“But, still we find no exception in favor of experts, which enables them to collect their compensation before the termination of the judicial proceedings incident in such cases to the settlement of the rights of 'the parties. The privilege granted to clerks and sheriffs to collect their costs every six months is founded upon obvious reasons which do not apply to persons rendering isolated and casual services and who are occasionally only and pro re nata officers of the court.”

The court said further:

“Compensation allowed to experts, auditors and judicial arbitrators is, by article 552, of the Code of Practice, to be paid as well as the taxed costs, by the party east; and this implies a delay of payment until the termination of the suit.”

This was reaffirmed by the Supreme Court in the case of Lobdell v. Bushnell et al., 27 La. Ann. 394.

Counsel for the defendant in rule argues that the plaintiff’s in rule cause of action arose in May, 1913, at which time he rendered his expert accountant services, and, therefore, that the claim is prescribed because the prescription was not interrupted by the suits which were pending. He cites a number of authorities and makes his argument by analogy but fails to cite any case directly in point.

Under the law, as the expert fees were to be taxed as costs against the party cast, plaintiff in rule necessarily had to wait to see which of the party litigants were ordered by the court to pay his fee as a part of the cost. Had he filed his rule against either plaintiff or defendant or both of them before the litigation was determined he would have promptly been met with an exception of prematurity on the ground that the litigation had not terminated and neither party had been cast.

The record shows that on March 1. 1916, within three years after Mr. Moses had rendered his services, he addressed a joint letter to both attorneys for plaintiff and defendant as follows:

“It is now over three years since my appointment and nearly three years since my report was completed and filed in court, and I, therefore, will be pleased to hear from you relative to the fee in this case; in other words, to whom is the bill to be presented for payment.”

Receiving no reply from the attorneys of the Hibernia Bank & Trust Company, Mr. Moses addressed this further letter to Mr. Benedict on March 24, 1916:.

“Will you be kind enough to let me have a reply to my letter dated the 1st inst., addressed to your firm and regarding which I spoke to you last week when I met you in Division “B”, Civil District Court?”

Thereafter, on March 27, 1916, Messrs. McCloskey & Benedict wrote to Mr. Moses as follows:

“Answering your favor of the 24th, we beg to state that the Dresser case, in which you' made a report, is not yet completed, and who will owe your 'bill will only be determined after the final judgment. The case is being actively prosecuted and we are as anxious as you to expedite the matter.”

As plaintiff in rule was compelled to wait until the litigation was terminated in order to ascertain who was the party cast and owed him his fee, it would be manifestly unjust and inequitable to say that prescription was running against him in the interim. We feel that the cause of action arose against defendant in rule when it was cast and ordered to pay the costs of court. Prescription would begin to run against plaintiff’s in rule claim from that period. See Williams et al. v. Board of Levee Commissioners of Orleans Levee District, 11 La. App. —.

As both of plaintiff’s suits were dismissed at plaintiff’s cost on January 17, 1927, and May, 1927, respectively, and the rule to tax Mr. Moses’ fee as costs was filed on November 17, 1927, we are of the opinion that it was timely filed and had not prescribed.

We next take up the question of estoppel. The record shows that Mr. Moses filed his report in the record and that plaintiff’s attorneys in the main proceeding, who are also counsel for the defendant in rule herein, filed a rule to have Mr. Moses supplement his report and Mr. Moses was placed on the stand and examined in open court by counsel. The record also shows that Mr. Moses inquired as to when he could expect payment is shown by the letters hereinabove quoted. When the cases were compromised by the plaintiff in the main demand, it was its duty to ascertain what costs of court would be due and to have these costs taken into consideration in the settlement. We do not find anything in the record upon which a plea of estoppel could be based.

This brings us to the final issue that the claim is excessive.

It appears that Mr. Moses was ex proprio motu appointed by Judge Theard, judge of the civil district court, division “E”, to make an audit of the books in question. There was considerable money involved in the litigation and the matter of accounting quite involved. Mr. Moses is a certified public accountant of high standing and excellent reputation. He testified in this case, without contradiction, that the fee required by him was reasonable, just and proper. Defendant in rule offered no testimony or evidence to contradict him or to show that the fee was excessive. The judge of the lower court felt that the fee was reasonable, particularly since plaintiff in rule had been required to wait so long to secure his money and pointed out the difference in the value of a dollar in 1913 as compared to its present value. Prom the evidence we cannot say that the fee claimed and allowed is excessive.

' Por the reasons assigned the judgment' •appealed from is affirmed.


text:
    No. 13,209
    Orleans
    STEADMAN v. WALLACE
    (October 20, 1930. Opinion and Decree.)
    Thomas J. Dobbins and John C. Hollingsworth, of .New Orleans, attorneys for plaintiff, appellant.
    Monroe & Lemann, Walter J. Suthon, of New Orleans, attorneys for defendant, appellee.
   HIGGINS, J.

This is a suit by a guest for damages for personal injuries alleged to have been sustained as a result of an intersectional automobile collision at the corner of Louisiana and St. Charles avenues in the city of New Orleans on January 8, 1926, at about 7:30 o’clock p. m. The petition charges that the defendant was guilty of negligence and carelessness in operating his automobile at an excessive rate of speed at about fifty or sixty miles an hour.

In his answer the defendant denied that he was at fault, and averred that the accident was caused solely through the negligence of the plaintiff’s husband who was driving the automobile in which she was riding at the time of the accident.

The case was tried without the intervention of a jury, and the judge of the lower court dismissed the plaintiff’s suit on the ground that the accident was caused entirely by the fault of the driver of the car in which the plaintiff was riding as a guest, and that the defendant was not guilty of any negligence which caused or contributed to the accident. Plaintiff has appealed.

The locus in quo may be described as follows:

St. Charles avenue runs from uptown to downtown and has a neutral ground in the center of it with double street car tracks located thereon. Traffic going uptown uses the lakeside thoroughfare, while traffic going down town uses the riverside thoroughfare. Louisiana avenue runs from the river to the lake, and also has a neutral ground with double street car tracks upon it, and has paved roadways on each side of the neutral ground, the one on the downtown side being used by traffic moving in the direction of the lake and tho one on the uptown side being used by traffic moving in the direction of the river. These streets meet at right angles, and traffic is very heavy at this intersection.

The record shows that plaintiff’s husband was driving a Dodge coupe car uptown on St. Charles avenue at a moderate rate of speed. When he reached the intersection of St. Charles and Louisiana avenues he attempted to turn to the left in order to go out Louisiana avenue in the direction of the river. As he slowed down and partially turned his automobile, the defendant, who was driving a Cadillac sedan in the same direction, struck the rear of the Dodge car and caused it to overturn on its right side in the extreme upper side of the intersection of the two streets. The Cadillac came to a stop about ten or fifteen feet from where dt struck the Dodge car.

The result of the impact and turning over of the Dodge car caused the plaintiff to fall under the dash board, and her husband was precipitated on top of her, causing the injuries complained of.

It is conceded by the defendant that, as the plaintiff was a guest in the Dodge car driven by her husband, she cannot be charged with negligence of her husband. Therefore, the sole question before the court is whether or not the defendant was guilty of negligence which contributed to and caused the accident.

It is contended by the plaintiff that the defendant was operating his car at an excessive rate of speed of about fifty miles an hour, and that, although he saw the Dodge car turning to the left, he was unable to stop his car in time to avoid the accident.

The defendant contends that the accident was caused solely and only by the failure of the plaintiff’s husband, who was driving the Dodge car to give the signal required by the traffic ordinance of the city of New Orleans indicating that he would turn to the left by extending his left arm out of the window of the car in a horizontal position.

It is admitted by plaintiff that the driver of the Dodge car did not give this signal, but that he merely held up his right hand inside the car. The evidence shows that, as it was dark at the time of the accident, such a signal could not be seen, and that defendant did not see such a signal.

It appears that' the defendant was proceeding up St. Charles avenue at an excessive rate of speed just prior to the time of the accident. He admits that he was running about thirty-five miles per hour, but testified that, when he was nearing the intersection of Louisiana and St. Charles avenues, he slowed down and was going about fifteen miles an hour as he entered the intersection, about 15 or 20 feet to the rear of the Dodge car. His testimony is corroborated by the physical fact that the only damage done was to knock the bumper off of the Cadillac and to crumple the left rear fender and the gas tank and extra tire carrier on the back of the Dodge car. The further physical fact that the Cadillac stopped within 10 or 15 feet after it struck the Dodge car also indicates that the Cadilr lac car was traveling at a moderate rate of speed at the time of the collision.

The general traffic ordinance No. 7490 C. C. S. article 1, section 11, paragraph “a,” reads as follows:

,‘|An operator intending to turn his vehicle to the left shall extend his arm in a horizontal position and slow down.”

Paragraph “b” reads as follows:

_“In slowing up, stopping or turning, a visible signal shall always be given to vehicles in the rear.”

Paragraph “&” reads as follows:

“The signal herein provided shall be given at least fifty feet before slowing up to stop or turn.”

In the case of Smith v. Palfrey et al., 7 La. App. 526, this court quoted with approval the following statement made by the district judge in his reasons for judgment:

“On his own statement, Palfrey did not signal his intention to turn in time to warn the plaintiff’s driver of it, and he did not obey the ordinance. It is clear that if he had handled his car as the ordinance requires the accident would not have happened.”

In the case of Hudson v. Jackson Brewing Co., 4 La. App. 549, this court held in the syllabus:

“A speed of 20 miles per hour on a street where the maximum permitted by the city ordinance is fifteen though excessive is not negligence per se, and when it appears that the excessive speed was not the cause of the accident no liability in damages arises therefrom.
• “When the driver of a motor truck violates a city ordinance, prescribing the proper method of making a left turn, and such violation is the cause of an accident, the owner of the truck will be held responsible.”

See, also, Marsh v. Singletary, 7 La. App. 436; Hall v. Excelsior Steam & Laundry Co., Ltd., 5 La. App. 6; Bonnette v. Flournoy, 9 La. App. 467, 119 So. 736; Union Indemnity Co. v. McBride, 10 La. App. 194, 120 So. 663; Bloomquist v. Schenck, 14 La. App. 94, 129 So. 246.

Counsel for the plaintiff has referred us to the case of Henican v. Woodman, 1 La. App. 281, but we do not find that case to be in point, because the driver of the automobile gave the stop signal required by the traffic ordinance. The case of Swedman v. Standard Oil Co., 12 La. App. 359, 125 So. 481, also cited by counsel for plaintiff, is not applicable, for the reason that the automobile struck had been stopped for an appreciable length of time prior to the collision.

We are of the opinion that the accident was caused by the failure of the plaintiff’s husband to give the signal that he .was about to turn to his left by extending his arm horizontally out of the window of the car, as required by the traffic ordinance, and that the defendant was free from fault.

For - the reasons assigned, the judgment appealed from is affirmed.


text:
    No. 13,311
    Orleans
    ARENA v. MORRIS & CO.
    (October 20, 1930. Opinion and Decree.)
    E. J. Thilborger and James J. Cullinane, of New Orleans, attorneys for plaintiff, appellee.
    , Eraste Yidrine, of' New Orleans, attorney for defendant, appellant.
   HIGGINS, J.

Plaintiff sues defendant for damages for personal injury and property damage alleged to have been sustained as a result of an automobile collision at the intersection of St. Charles avenue and Felicity street in this city on October 28, 1928, about 6:30 o’clock a. m. Defendant denied liability and pleaded contributory negligence and also reconvened for property damages. There was judgment in favor of the plaintiff in the sum of $385.30, .representing $135.30 property damage and $250 for personal injuries, and dismissing the reconventional demand. The defendant appealed.

The record shows that St. Charles avenue is a right of way street under the traffic ordinances of the city of New Orleans and has a neutral ground in the center, where two street car tracks are located, and paved roadways on both sides. The paved roadway on the lake side is used by the traffic moving uptown, and the paved roadway on the river side is used' by traffic proceeding downtown. Felicity street runs from the direction of the river to the lake and intersects St. Charles avenue at a point where St. Charles avenue curves towards the lake, thus causing the downtown river corner of the neutral ground to protrude further out into the paved roadway used by traffic moving downtown than the uptown lake side of the neutral ground.

On the morning in question the' plaintiff was driving a Ford one-ton truck down St. Charles avenue at the rate of about twenty-five miles an hour arid was slightly to the left of the center of the roadway. The defendant’s Ford coupe was being driven on Felicity street toward the lake, at the rate of fifteen or eighteen miles an hour. Both approached the intersection at approximately the same time, and therefore, under the traffic ordinances of the city, plaintiff was entitled to the right of way. The defendant’s driver proceeded into the roadway in spite of the fact that plaintiff twice signaled him with his horn. Defendant’s car thus forced the plaintiff to drive to his left in order to avoid striking it and resulted in plaintiff’s truck striking a telephone pole, located about three feet off the street on the neutral ground, although plaintiff had put on his brakes in an effort to stop. While in this position the left front portion of defendant’s coupe struck the right side of the plaintiff’s truck at a point opposite the driver’s seat.

We are of the opinion that the accident was caused entirely by the fault of the driver of the Ford coupe in failing to accord the plaintiff the right of way, which he had by virtue of the ordinance of the city of New Orleans making St. Charles avenue a right of way street. It was the duty of the driver of defendant’s ear to stop before entering the intersection of St. Charles avenue and permit vehicles approaching this intersection at approximately the same time to proceed on their way. This he failed to do, and the defendant is therefore liable for the damages resulting from his negligence.

“When two vehicles approach an intersection at approximately the same time, the one having the right of way is entitled to proceed, and it is culpable negligence for the other to attempt to cross.
“The traffic ordinance requiring a vehicle approaching a right of way street to come to a full stop must be observed literally; it will not be sufficient to slacken speed.
“One has a right to presume that the other will obey the traffic laws.”

Beldon v. Roberts, 3 La. App. 338.

See, also, Stout v. Lewis, 11 La. App. 503, 123 So. 346; Buckner v. Powers, 12 La. App. 630, 125 So. 744; McCalmont v. Sterkx, 5 La. App. 730.

The reasonableness of the bill of $135.30 for repairs to the truck is undisputed.

The medical testimony shows that the plaintiff sustained multiple bruises over the body generally, minor contusions and bruises and brush burns on both knees, and a moderately severe contusion of the right chest. He was confined to the house for about two days and partially disabled for about three weeks, his occupation being that of a butcher. The injuries, while'painful, were not permanent. The judge of the lower court allowed the sum of $250 for these injuries, which we deem adequate under the circumstances.


text:
    No. 13,334
    Orleans
    DASTE v. FIRST NATL. LIFE, HEALTH AND ACCIDENT INS. CO.
    (November 3, 1930. Opinion and Decree.)
    P. L. Fourchy, of New Orleans, attorney for plaintiff, appellant.
    Norman, McMahon & Breckwoldt, of New Orleans, attorneys .for defendant, appellee.
   HIGGINS, J.

Plaintiff sues defendant to recover disability benefits and statutory penalties under a health and accident insurance policy. Defendant denied liability and averred that the plaintiff had completely recovered from his injuries and specially pleaded tnat under the provisions of the policy defendant had reserved the right to have a medical examination of the insured made by its physician, and that the defendant had requested the plaintiff to submit to such an examination, but that, tiré plaintiff had refused and still refuses to permit one. to be made.

On the trial of the case on its merits plaintiff sought to introduce evidence to show his injuries and disability resulting from the accident, whereupon the defend; ant objected to the admission of .any .evidence to prove any injury or physical disability, on the part of plaintiff because he had been requested to submit to a physical examination and refused to do so. The defendant then offered evidence which established that the plaintiff refused and still refuses to submit to such an examination. The trial court maintained the objection, and the plaintiff then offered in evidence the policy sued upon and was forced to rest his case. ' ’ • ' •

There was judgment in favor of defendr, ant dismissing plaintiff’s suit, and plaintiff has appealed.

In the case of Bailey v. Fisher, 11 La.’ App. 187, 123 So. 166, 167, the plaintiff siie'd for damages for personal injuries and réfused to submit to a medical examination by the defendant’s doctor, and the lower court maintained the objection to the admissibility of evidence tending to prove damages resulting from physical injuries. This court said:

.“Prior to the trial in the court below, defendant caused his physician to call on plaintiff for the purpose of making a physical examination to determine the extent of the injuries. Plaintiff, apparently through misunderstanding, refused to allow the physical examination to be made.
“At the trial, defendant’s counsel objected to the introduction of ary medical tes-timony by plaintiff’s physicians, contending that, under the doctrine announced by our Supreme Court in Grant v. N. O. Ry. & Light Co., 129 La. 811, 56 So. 897, and in Kennedy v. N. O. Ry. & Light Co., 142 La. 879, 77 So. 777, such testimony, in view of plaintiff’s refusal to submit to an examination. by defendant’s physician, would have been ‘ex parte,’ and therefore inadmissible.
“The trial judge, following the pronouncements in the,'two cases referred to, maintained the objection and excluded the testimony. Accordingly there is in the récord no testimony or evidence as to the extent of plaintiff’s physical injuries. That this ruling of the trial judge is- correct arid in accordance with the doctrine announced in the cases referred to is manifest.”

■ The only difference between the cited case and the instant case is that the former is an action ex delicto and the- latter is an action ex contractu, but on principle the two cases cannot be distinguished. .

It is also to be noted that the policy sued upon contained the following condition:

“3. * * * The Company shall have the right at its option to make such investigation into matters upon which a claim may be based, or the subject thereof, as it may deem necessary in order to determine its liability hereunder.”

The record shows that the plaintiff had been injured and was paid disability benefits for a period of seventeen weeks, but thereafter refused to submit and still refuses to submit to an examination by the defendant’s physician, thus preventing the insurance company from making an adequate investigation to determine its liability by establishing the period of disability that the plaintiff suffered. ' Had the plaintiff, during the course of the trial, offered to submit to a medical examination, the case might have been different, but he persisted in refusing to be examined, and there was nothing for the court to do but dismiss the suit under the circumstances.

In view of the above authorities and quoted condition contained in the policy, we are of the opinion that the ruling of the trial court, in holding that the testimony offered to establish the physical injury was inadmissible, is correct.

For the reasons assigned, the judgment is affirmed. |


author: WESTERFIELD, J.

text:
    No. 13,340
    Orleans
    HARANG v. CRUSEL
    (October 20, 1930. Opinion and Decree.)

      Merrick, Schwarz, Guste, Barnett & Redmann, of New Orleans, attorneys for plaintiff, appellee.
    Brewer & Sere, of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

This suit grows out of a contract between plaintiff and defendant for the sale of certain stock. The contract was in the form of a letter addressed by defendant to plaintiff and accepted by plaintiff.

The suit is for the sum of $300, approximately one-half of the expenses incurred by the plaintiff, Harang, in an effort to sell the stock, and is based upon the following clause in the contract:•

“It is further understood that in the event that the sales of Petroleum Royalties Company shares of stock will yield sufficient profit to - J. Edw. Crusel, he will, out of the profits from commissions or brokerages which will accrue to him from such sales by you or your employees or representatives, pay one half of such expenses as far as said commissions or brokerages will go and that he will be beneficiary of all income over and above said one half of expenses.”

It is admitted that Crusel received as much as $300 in commissions from stock sold by Harang under his contract, but lia-, bility is denied upon the ground that the contract obligated Harang to sell 100,000 shares of stock at $1.50 per share and that he failed to sell more than 3,000 shares, and upon the further ground that he failed to create a proper selling organization and also failed to continue his efforts to sell the stock for a period of six months, all in violation of his contract with Crusel, and that, having failed to perform his part of the agreement, plaintiff is without standing in court to enforce a contract, whose provisions he had violated'. McLemore v. Hemler, 4 La. App. 388.

The contention that Harang had agreed to sell 100,000 shares is based upon the following provision of the contract:

“Under this agreement you are allottéd one hundred thousand (100,000) shares of Petroleum Royalties Company 12% preferred cumulative stock of par value of $1.00 per share, which you are under obligation to sell for the price and sum' of $1.50 per share.”

Our appreciation of the effect of this clause is to obligate the plaintiff to selj the stock at $1.50 per share and not to require him to sell 100,000 shares as defend: ant contends.

It is said that a proper selling organization was not maintained because of (lie following provision of the contract:

“It is understood that you (Harang) will create and maintain a sales organization composed of reliable and trustworthy men or women. * * * ”

The record indicates that Harang did employ certain salesmen, and there is no conténtion that they were unreliable or untrustworthy, and there is no requirement in the contract which - obligated him to maintain any specific kind of organization. We are therefore not impressed' with this defense.

The final contention of the defendant is that plaintiff was in default, in that he' ceased all efforts to sell the stock before the expiration of six months. The contract, reads as follows:

“It is understood that you (Harang) have for the sale of the 100,000 shares of stock a period of six months in which to place and dispose of the said 100,000 shares-of stock to buyers.”

' Alter working several months .and. incurring an expense in excess of $700; Ha-rang, called upon Crusel under' section 10a of his contract to defray, one-half' of all expenses. He had only sold 3,000 shares and was having great difficulty in disposing of the stock. He testified that he declined to go further because Crusel refused to pay any part of the expense. We are of the opinion that a reasonable interpretation of the clause relied on would obligate Crpsel to participate in the expenses.to the extent which his commissions received from Harang’s efforts would go, and we cannot adopt the view advanced by counsel for the defendant that the words “sufficient profit to J. Edw. Crusel” mean profits which Crusel would consider sufficient and are of opinion that those words in connection with the remainder of that section of the contract mean that if Crusel received from Harang’s sales commissions sufficient to pay one-half of the selling expenses, he should pay one-half, but that if he failed to receive enough commissions to discharge one-half of that expense that he should then pay over the amount he received as far as it would go in partial discharge of the expenses.

As we view the transaction between plaintiff and defendant, it was an unsuccessful effort to dispose of a large number <of shares of stock, the value of which seems to have been impressed upon defendant, for he allotted 100,000 shares to plaintiff and permitted him a period of six months' to dispose of them. In other words, the attitude of defendant, as we understand it, from his letter which became the contract between the parties, was that of one who was- granting a privilege and a favor to plaintiff. The project failed. Plaintiff expended more than $700 in an effort to succeed, and we see no reason why defendant should not return the commissions "received by him in partial settlement of the expense involved;' ;£or' that is what we understand the contract plainly obligates him to do.

" This was the opinion entertained by the trial court' and we believe it to be correct.

For the reasons assigned the judgment appealed from is affirmed. .


text:
    No. 13,410
    Orleans
    HASKINS TRADING CO. v. S. PFEIFER & CO.
    (October 20, 1930. Opinion and Decree.)

      Feitel & Feitel and Dresner & Dresner, óf New Orleans, attorneys for plaintiff, appellee.
    Louis L. Rosen, of New Orleans, attorney for defendant, appellant.
   JANVIER, J.

By contract in writing the Haskins Trading Company, plaintiffs, agreed to sell to S. Pfeifer & Company, defendants, and to deliver to them in New Orleans a certain quantity of “Mexican' Black Eye Peas.”

The contract stipulated for the shipment of the merchandise “immediately from Mexican interior point” and for payment on arrival and inspection in New Orleans.

On the margin of the document, printed in rather bold type, appeared the following:

“All agreements are contingent upon strikes, delays of carriers arid other causes unavoidable and beyond our control. All prices subject to further confirmation.”

It is admitted that the merchandise left the point, of origin, which was a Mexican interior point, at a time sufficiently proximate to the date of the contract to comply with the stipulation for immediate shipment.

However, when the peas arrived at the Mexican border on July 29, 1925, it was learned that the Mexican Government had issued an embargo against the exportation of black-eye peas and therefore the ship-, ment could not go forward and was unloaded from the railroad car and placed in storage.

It is admitted that, at the time of the execution of the contract, neither party thereto was aware of the existence of the embargo.

On or about August 12th the embargo was withdrawn, the peas were again loaded into a freight car and on August 15th the shipment crossed the border and entered the United States, after which,, in due course and with reasonable dispatch, it arrived in New Orleans -on August 26th, where it was tendered to defendant on August 27th.

In the meantime, at some time prior to August 12th — probably on or about August 11th — defendants, purchasers under the contract, having learned of the delay caused by the embargo, had notified plaintiffs, sellers under the contract, that, since the arrival of the peas would be delayed, they, defendants, would refuse to accept delivery on arrival.

On receipt of this notice, plaintiffs protested in writing and on August 12th advised that the embargo had been lifted, that the .delay had been caused by matters beyond their control,. and that delivery would be tendered as soon as the shipment arrived.

Other correspondence followed, but, as Vie have already stated, when delivery was tendered on August 27th, it was refused.

Thereupon the plaintiffs sold the peas in the open market and thereafter brought this suit for the loss sustained by them, to-wit: the difference between the contract price and the price obtained in the market.

It is conceded that the cause of the delay was one of those contingencies contemplated by the marginal reservation to which we have referred and that neither party was in any way responsible therefor, but there is a wide divergence of opinion between the parties as to the effect of the said reservation and as to their respective rights thereunder.

Plaintiffs, the sellers, maintain that the occurrence of one of the events mentioned in such a clause merely suspends the operation of the contract and that, where, as here, performance is temporarily rendered impossible, the matter remains in statu quo until the termination of that condition, which, for the time being, made performance impossible and that thereafter the parties shall still have a reasonable time within which to comply with their obligations — in this case, to deliver the peas at New Orleans.

Defendants, the purchasers, with equal vehemence, declare that the marginal reservation in question was not intended to give to the sellers the right to force the buyers to accept delivery after the delay, but was intended merely to exempt the sellers from liability for damages for failure to comply with the contract to deliver within a reasonable time, for which damages liability; would .otherwise result under Civil Code art. 2486, whioh reads as follows:

■ “In all cases, the seller is liable to damages if there result any detriment to the buyer, occasioned by the non-delivery at the time agreed on.”

It is to be noted that the contract fixed no time for delivery, it being limited to the requirement that shipment be made “immediately.” The parties agree that, in such a situation, there is written by law into the document the provision that the delivery shall take place within a reasonable time after shipment. In this, of course," they are correct.

“When no time is specified for delivery of goods, a reasonable time is understood.” H. T. Cottam & Co v. Moises, 149 La. 305, 88 So. 916, 917.

See, also, Wilson v. Broom, 6 La. Ann. 381; Pratt v. Craft, 19 La. Ann. 131; Bartley v. City of New Orleans, 30 La. Ann. 264; Thompson v. Woodruff Co., 7 Cold. (Tenn.) 401,

It is also not in dispute that, in deter-, mining what is a reasonable time, consideration should be given to what is the usual delay experienced by persons engaged in the same or a similar kind of business in making shipments between the same or similar points.

Plaintiffs insist that, if we apply this test, it will appear that, even leaving out of consideration the fourteen or fifteen days’ delay resulting from the embargo, the arrival here on August 26th was within a reasonable time after the shipment left the point of origin on July 27th, which, as we have already found, was within proper time after the making of the contract; in other words, that, even if there had been no embargo, thirty or thirty-five days would not have been an •unusual or an unreasonable time for such •a freight movement.

An examination of the evidence, how.ever, leads us 'to the view that counsel’s .claim in this regard is not borne out, and that the usual time between point of origin and point of destination between the same or similar .points is about fourteen or fifteen days, where no embargo or other unusual event interferes.

Thus it appears that, except for the .embargo,. the purchasers probably would .have received their peas on about the 11th or 12th of August, ■ instead of on the 27th, .more than two weeks later.

The record shows that the market price of peas such as these with which we ' are now concerned maintains a fairly firm ■tone during the first two or three weeks ,of August, but that usually during the last ten days of that month it breaks badly, due to the influx of similar peas from California or other Western points.

Where such a situation exists, it is, of 'course, of the utmost importance to a purchaser that his shipment reach him as soon as possible. " Time is of the essence of the contract. Norrington v. Wright, 115 U. S. 188, 6 S. Ct. 12, 29 L. Ed. 366; Shelby Mills, Inc., v. Nami, 1 La. App. 116; Kinsell & Locke, Inc., v. Kohlman, 12 La. App. 575, 126 So. 257.

Where time is of the essence of a contract, the purchaser cannot be compelled to accept delivery of- merchandise after the expiration of the time fixed, nor after a reasonable delay, when no time limit is set forth.

Unless, then, by the marginal stipulation, there is reserved to the sellers the right to deliver after a reasonable time has elapsed, that right is lost, and the purchasers cannot be forced to accept and pay for the article in question.

What, then, is the proper interpretation ■to be placed upon the stipulation? In General Commercial Co., Ltd., v. Butterworth-Judson Corp., 198 App. Div. 799, 191 N. Y. S. 64, 65, the contract out of which the controversy arose contained a stipulation similar to that which is involved here. There it read as follows:

' “This contract is contingent upon strikes, fires, pestilence, riots, war, rebellion, and other causes beyond our control.”

There,- as here, the question was whether the stipulation was intended merely to shield the seller from liability in the event of failure to deliver, or was intended to hold the contract in suspense pending settlement of the strike. The court held:

“That clause unquestionably was inserted for the benefit and protection of the seller and intended to relieve him from performance of the contract in the event of the happening -of any of the events described.”

It is argued here by defendants that as soon as the embargo was learned of they were within their rights in assuming that the contract was at an end; iu other words, that the entire agreement was to be performed only if certain named contingencies did not take place prior to performance, and that, as soon as one of these contingencies did take place, the contract was immediately and automatically terminated, without liability in either party. Such an interpretation c.an be placed upon the stipulation, since it will be noted that the entire agreement is made contingent upon such an event as happened. If the delivery only had been referred to iñ the stipulation, it might well be argued that it was contemplated by the parties that the happening of one of the events mentioned or referred to should leave the contract in full force and should merely suspend delivery; but is is rather difficult- to adopt this interpretation in view of the fact that the whole agreement and not only the delivery is made to depend on the non-occurrence of one of those events. General Commercial Co., Ltd., v. Butterworth-Judson Corp., 198 App. Div. 799, 191, N. Y. S. 64; Fish, Jr., & Co. v. Hamilton (C. C. A.) 112 F. 742.

Defendants further claim that, since they had contracted to sell and deliver to others the peas which were the subject of the contract, it was imperative, as soon as they learned that a delay must inevitably result from the embargo, that they protect themselves against possible liability for failure to deliver to their vendees by the purchase in the open market of other peas. They cite Williston on Sales (2d Ed.), sec. 661-B, p. 1660, in which, with reference to the rights of a purchaser, we‘find the following: »

“* * * If immediate action is necessary to protect him from loss he could not be required to take the chance that perhaps the impossibility may cease before his interests are injuriously affected.”

Without finding it necessary to comment on whether they were within their rights, in immediately acting upon the assumption that the embargo would unduly delay the arrival of the shipment, we express the view that, as soon as that delay existed for so long a time that to wait longer would have placed them in peril of liability to those to whom they had contracted to deliver, they were then justified in protecting themselves as they did.

Bearing in mind that the stipulation in question was prepared and inserted in the contract by the vendors — that is to say, the plaintiffs here — and therefore should be interpreted, if ambiguous, against them, and viewing the contract from the point of view of the parties at the time it was made; we adopt the view that there was nothing more intended by the stipulation than that the sellers should not be liable for failure to deliver, or for delay in delivering, if caused by one of the contingencies named.

It would be most unfair to require that a purchaser, unless he expresly and unequivocally agreed thereto, should be indefinitely held under the obligation to accept a purchase of which he is in immediate need, but which, for all he knows, may be months in arriving.

We think that the situation here is somewhat analogous to that which was presented in the matter of John L. Meier & Co. v. Schmidt & Ziegler, Ltd., 12 La. App. 431, 125 So. 191, except that there it appeared that, after the delay which would have created the right to refuse to accept delivery, the purchaser, by its actions, reinstated the contract and thereafter could not be heard to say that it had acted on the default and did not intend to accept delivery.

The judge a quo was of the opinion that the stipulation in question had the effect of suspending the operation of the contract until the termination of the event which made delivery impossible. In this we think he was in error.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be, and it is, annulled, avoided, and reversed, and that there now be judgment in favor of the defendants and against plaintiffs, dismissing the suit at plaintiffs’ cost.


text:
    No. 13,422
    Orleans
    PETERS v. CRESCENT FORWARDING & TRANSPORTATION CO.
    (October 20, 1930. Opinion and Decree.)
    Legier, McEnerny & Waguespack, of New Orleans, attorneys for plaintiff, appellee.
    Edward Rightor and William H. Sellers, of New Orleans, attorneys for defendant, appellant.
   JANVIER, J.

Plaintiff seeks recovery for personal injuries sustained by him and for property damage caused to his automobile when it was run into by a truck belonging to defendant and operated by its servant fdr its use and benefit.

The truck emerged from a doorway of one of the sheds of the docks which parallel the Mississippi river and crashed into the left side of plaintiff’s sedan.

It is charged that the driver of the truck gave no warning of his intention to enter the roadway and that he operated the truck at a dangerous speed.

Defendant’s counsel contend that plaintiff’s automobile was proceeding along the left side of the roadway, which was the side nearest the sheds from which the truck emerged, and that had it been on the other, or right-hand side, the truck could have entered the rqadway, and, hy making a sharp turn to its left, could have avoided the oncoming sedan.

It appears, however, that another vehicle, proceeding in the same direction in which plaintiff’s car was going, was the cause of its being on the left side of the roadway, and we believe, from the evideuce, that it was the intention of plaintiff’s chauffeur to pass the other vehicle, which he was justified in doing, since the speed of the other vehicle was moderate.

That the truck emerged suddenly and without warning is evidenced by the testimony of one of defendant’s witnesses, the driver of the other truck, which was proceeding along the roadway in front of plaintiff’s car. This witness, John Harte-man, testified that he had been proceeding along the middle of the road and was compelled to swing suddenly to the right to avoid hitting defendant’s truck, «when it came out of the doorway.

. We are unable to say that the finding of the trial court, which was in favor of plaintiff, was manifestly erroneous. On the contrary,, it seems to us to have been correct.

• Nor do we find the amount awarded plaintiff excessive. It is conceded that $157.75 is the amount expended for repairs to the automobile. Thus, $142.25 is .the award for physical injuries. In view of the fact that a scar resulted and that (plaintiff undoubtedly suffered to some extent for a few days, and, bearing in mind .that defendant failed to place on the witness stand its physician, who examined plaintiff, we are not inclined to disturb the judgment appealed from.

It is therefore ordered, .adjudged and decreed that the judgment appealed from be and it is affirmed, at the cost of appellant.


text:
    No. 13,343
    Orleans
    PATORNO v. BAKER
    (November 3, 1930. Opinion and Decree.)
    Roger Meunier, of New Orleans, attorney for plaintiff, appellee.
    Louis R. Hoover, of New Orleans, attorney for defendant, appellant.
   JANVIER, J.

Plaintiff, Patorno, seeks the return of $937.89 alleged to have been loaned to Baker, defendant. The answer denies the indebtedness, and, if it went no further, the ease would manifestly present only issues of fact. However, after the denial of the indebtedness, the answer contains a rather lengthy allegation which we will summarize as follows:

That defendant had sold a bill of goods to a Florida corporation, and, being in need of cash, had, as he had theretofore many times done, sold the invoice to Patorno, plaintiff, for $937.89; that thus, though he (defendant) had received the said sum from plaintiff, it was received not. as a loan but in payment for the sale and assignment of the said invoice.

As an alternative defense the answer recites that, if under the facts set forth, “the court should hold that defendant was the warrantor for the collection of said debt assigned to plaintiff and, therefore, liable to plaintiff for the return of the purchase price, then in that event, but not otherwise, defendant pleads that the debt herein sued on is extinguished by compensation. * * *”

Then follow various allegations of fact on which defendant bases his plea of compensation.

On the trial, plaintiff, after testifying that- the money had been paid as a loan and not as the purchase price of the invoice, stated that the invoice in question had been assigned to him as security.

Defendant, Baker, then testified that, although he had sold the invoice and had not warranted that it would be paid, nevertheless he felt that he ought to pay Patorno in the event the invoice was not paid. He also admitted having written a letter in which he acknowledged his liability to Patorno.

Counsel for defendant then offered to produce evidence in support of the plea of compensation, but to this offer counsel for plaintiff objected on the ground that the denial of the existence of the debt was inconsistent with the plea of compensation.

This objection was sustained and no evidence tending to support the plea of compensation was admitted.

The question presented to us is whether or not the ruling of the trial judge in excluding the said evidence was correct.

It must be .conceded that a denial that a debt ever existed is inconsistent with a plea that the same debt no longer exists-because it has been compensated. But that does not seem to be the contention made by defendant here. His denial of the debt was immediately followed by a full disclosure of the facts on which the denial was based, which denial of indebtedness, therefore, became rather a conclusion of law than an allegation of fact. In other words, defendant in effect says: “I admit I received the money from you but I did so under circumstances which I believe made the transaction a sale and not a loan and I therefore, deny that I owe you the money but in the alternative that I am wrong in my legal conclusion, then I aver that I do not owe you the money because the debt has been compensated.”

We believe that Durham v. Williams, 32 La. Ann. 962, so closely resembles this case in principle that we feel ourselves controlled by that decision. There certain minor heirs were sued. They denied generally all the allegations. They then made certain special defenses, and, in conclusion, pleaded in the alternative that the debt had been novated. They were met by the objection that the plea oí novation was inconsistent with the general denial of the debt. The Supreme Court said:

“Defendants’ plea of general denial is not leveled at averments of simple facts, but at allegations of facts pregnant with a legal proposition or deduction. They do not deny the existence of the account sued on, nor the averment that the items charged therein were furnished to their plantation, but they deny that such, an account, such dealings, and such transactions could, by operation of law, make them the debtors of plaintiff; but they aver that if such an indebtedness can be legally deduced from such state of facts, that the indebtedness has been extinguished by novation in the manner suggested in their answer.
“This plea is merely in the alternative, and has been sanctioned by our jurisprudence in many instances.”

Likewise here defendant does not deny that he received the money from plaintiff, but he does deny that such transaction as he detailed in his answer was a loan. To use almost the identical language of the court in Durham v. Williams, supra, he avers that, if such an indebtedness can be legally deduced from such state of facts, the indebtedness has been extinguished by compensation in the manner suggested in his answer.

To the same effect we find Looney v. Levy, 35 La. Ann. 1013, in which it was contended that a general denial of a debt could not be coupled with an alternative plea of compensation. The Supreme Court held that the two defenses pleaded in the alternátive were not necessarily inconsistent. See, also, Phillips & Spencer v. Adams Machine Co., 52 La. Ann. 442, 27 So. 65, in which a plea of failure of consideration was held to be not inconsistent with an alternative plea of compensation.

In Dilzell Engineering & Construction Co. v. Lehmann, 120 La. 273, 45 So. 138, 141, our Supreme Court quoted with approval from Cross on Pleading, in which the author, in referring to Durham v. Williams, supra, says:

“And where the defendant denied all indebtedness but averred that, if any indebtedness ever existed, it had been extinguished by novation, the court held that defendant’s plea of general denial is not leveled at averments of simple facts, but at allegations of facts pregnant with a legal deduction. They do not deny the existence of the account sued on, nor the averment that the items therein charged were furnished to their plantation, but they deny, that such dealings could by operation of law make them the debtors of plaintiff; but they aver that, if such indebtedness existed, it had been extinguished by novation.”

Plaintiff further contends that the alternative plea of compensation by its own terms did not become effective, unless and until it appeared “that the court should hold that the defendant was the warrantor for the collection, etc.” It is argued that, since there is no liability as warrantor, the situation is the same as though the alternative plea had not been made.

We feel that to sustain this contention would place too narrow a construction on defendant’s answer which, read as a whole, plainly places at issue the two main contentions: First, the existence of the debt, whether as a direct primary obligation or as a secondary liability; and, second, the alternative plea of compensation.

The evidence tendered in support of the plea of compensation should have been admitted.

The judgment appealed from is annulled, avoided, and reversed, and the matter is remanded to the district court for further proceedings not inconsistent with the views herein expressed.