text:
    No. 3915
    Second Circuit
    COLLINS v. HEATH
    (December 23, 1930. Opinion and Decree.)
    (January 27, 1931. Rehearing Refused.)

      Theus, Grisham, Davis & Leigh, of Monroe, attorneys for plaintiff, appellant.
    M. C. Redmond and Dhu Thompson, of Monroe, attorneys for defendant, appellee.
   WEBB, J.

Plaintiff cumulated a possessory action involving the S. W. % of N. E. % of section 4, township 17 north, range -1 east, lying south of Cheniere, a small stream, with an action to recover judgment for the value of timber alleged to have been cut and removed from the land by defendant, who is alleged to have disturbed plaintiff’s possession, and plaintiff appeals from a judgment rejecting his demands.

Defendant denied that plaintiff had possession of the property; admitted that he had cut and removed timber therefrom, but not of the value alleged; and defendant further alleged that he was and had been in possession of the property under a title from G. B. Haynes, of date December 18, 1903, in which the property transferred included the property in contest, together with that part of the S. W. % of N. E. % lying north of Cheniere, and the N. y3 of N. E. %, section 4, township 17 north, range 1 east.

On the day the cause was fixed for trial, plaintiff offered to file an amended petition, in which he alleged that in addition to having had actual possession of the property in contest, his authors im title had actual possession of the property under title translative of property since the year 1895, and that plaintiff succeeded to the' possession of his authors in title and that he and his authors in title had had continuous, actual possession of the property since 1895, which was prior to the date of defendant’s alleged title and possession.

The amended petition was not allowed to be filed on the objection of defendant, to which ruling plaintiff reserved a bill of exceptions, and on trial plaintiff having offered to file in evidence the titles of the parties’ authors in title, and introduce oral evidence to show the extent and nature of the possession of plaintiff’s authors in title, all of which was excluded on the objection of defendant, plaintiff reserved a- bill and attached the amended petition and offerings to the bills reserved, which are brought up with the record.

On trial plaintiff introduced in evidence a tax deed, of date July 7, 1924, which was made to him under an adjudication of certain property assessed against Mrs. A. E. Hooper and others, in which the property described was the property in contest, S. W. Vi of N. E. Vi south of Cheniere and the adjoining forty acres, S. E. Vi of N. E. Vi, and plaintiff also introduced in evidence two deeds, of date November 7, 1927, and February 11, 1929, from the persons to whom the property was assessed, Mrs. A. E. Hooper and others, in which the property sold was described as in the tax deed; while defendant offered in evidence the deed from G. B. Haynes, above referred to, of date December 18, 1903, in which the property described included the property in contest, S. W. Vi of N. E. Vi, south of Cheniere, and the adjoining property, S. W. Vi of N. E. Vi, north of Cheniere, and the N. Vz of the N. E. Vi-

Plaintiff introduced evidence which established that he had, through a tenant, taken actual possession of a part of the S. E. Vi of N. E. Vi in 1926, and also tending to show that the area cultivated by the tenant in that forty extended over into the S. W. Vi of N. E. Vi south of Cheniere, and defendant offered evidence which established that he had taken actual possession of a large part of the N. % of N. E. Vi in 1904, and that he had cut wood and timber from the S. W. Vi of N. E. Vi, and it is conceded that the possession of both parties continued since the time they took possession up to the date of the trial.

Under the provision of the Civil Code relative to possession, there are two species of possession, natural and civil, defined (articles 3427 to 3431, inclusive), and article 3438 declares that in order to acquire possession, two distinct things are required: (1) “The intention of possessing as owner.” And (2) “The corporeal possession of the thing.” And article 3437 provides that, “It is not necessary, however, that a person wishing to take possession of an estate should pass over every part of it; it is sufficient if he enters on and occupies a part of the land, provided it be with the intention of possessing all that it included within the boundaries”- — which latter article has been construed as particularly applicable to the possession which one acquires of a body of land of which he acquired title as a whole, by taking actual possession of a part.

Article 49 of the, Code of Practice, among other requisites necessary in order to bring a possessory action, provides, “That he [the person bringing such action] should have had the real and actual possession of the property [real estate] at the instant when the disturbance [of his possession] occurred; a mere civil or legal possession is not sufficient”; and in construing that article with the provisions of the Civil Code, the court has held that the possession resulting from action taken in accordance with article 3437, Civil Code, will be sufficient to maintain a possessory action (Ellis v. Prevost, 19 La. 251), it is, we assume, conceded that the same character of possession on the part of the opponent will be sufficient to repel the action.

It is apparent that, when one has had actual possession of lands, such as cultivating the ground, or under inclosures, with the intent of possessing as owner, or natural possession (article 3428, Civil Code), for more than a year, he may protect such possession by the possessory action, and the same is true under the decision cited when one has taken possession of a part of a contiguous body of land of which he acquired title as a whole, with the intention of possessing the whole.

In the present instance, the preponderance of the evidence did not show that plaintiff was in actual physical possession of any part of the property in contest, and while the evidence showed that plaintiff as well as defendant had taken actual possession of adjoining tracts to the land in contest, which, together with the land in contest, was included in the description of the land under their titles, it is apparent that the possession of defendant was prior to that of plaintiff, and considering the possession of both parties as constructive, as suggested by appellant, it is apparent that plaintiff could not recover on the face of the record.

“It is manifestly impossible that there should be two constructive possessions at one and the same time of the same property. The person first holding constructive possession of a particular property under a title maintains it as against later alleged constructive possession of the same property by another person. The possession of the latter is limited to the precise property of which he has actual possession.” Gilmore v. Schenck, 115 La. 386, 39 So. 40, 44.

While as stated one having actual possession, or constructive possession, as referred to above, of a tract of land, may protect his possession by the possessory action, there may be two kinds of constructive possession; one, resulting from the action of the plaintiff who takes actual possession of a part of a contiguous tract of land of which he has title to the whole, with the intention of possessing the whole; and the other, when plaintiff’s authors in title have had possession to which he has succeeded. Plaintiff having originally based his action on his own actual possession, or constructive possession, we are of the opinion that the amended petition, by which he attempted to claim possession through his authors in title, was a material amendment and changed the substance of the issue; and the general rule is that such an amendment cannot be filed without the consent of the defendant (Cross Pleading, p. 192, sec. 217), and, further, the . amendment ■ being offered when the case was called for trial, an allowance of the amendment was within the discretion of the court.

The offerings, instruments purporting to show the titles of the parties’ authors in title were presumably offered in support of the issues presented in the amended petition, and as the amended petition had been refused, the offerings were properly excluded. ' ’

Aside, however, from the question of the refusal of the court to allow the amended petition to be filed and excluding the evidence offered in support of the issues presented under the amendment, both parties, in argument and in brief, insist that the action is purely possessory and that the titles of the parties are not at issue, which is the rule in possessory actions (article 55, Code of Practice; Cross Pleading, p. 217, sec. 254), and we are of the opinion that the parties cannot go behind their immediate titles either to show that the property in contest, which was included in the description of the property acquired by defendant from Haynes, was not intended to be included, or to show that plaintiff’s authors in title had possessed under titles prior in date to those of defendant’s' authors in title, without bringing in question their titles. The questions as presented under the amended petition should be presented in a petitory action.

The judgment appealed from is therefore affirmed.


source: Caselaw Access Project

author: WEBB, J.

license: Public Domain

text:
    No. 3303
    Second Circuit
    VICKSBURG, SHREVE. & PAC. RY. CO. v. KIDD-RUSS TRUNK & BAG CO., INC.
    (November 7, 1930. Opinion and Decree.)
    (December 23, 1930. Rehearing Refused.)
    (February 2, 1931. Writs of Certiorari and Review Refused by Supreme Court.)
    Wise, Randolph, Rendall & Freyer, of Shreveport, attorneys for plaintiff, appellee.
    Edward Barnett, of Shreveport, attorney for defendant, appellant.
   WEBB, J.

Plaintiff instituted this action to recover a balance alleged to be due for freight charges on a shipment of merchandise from Petersburg, Va., to Shreveport, La., which was .consigned by the seller, Totty Trunk & Bag Company, at Peters-burg, to defendant, at Shreveport.

In answer, defendant pleaded a general denial, and, on trial judgment being rendered in favor of plaintiff as demanded, defendant appeals.

The record establishes that the shipment traveled over the Seaboard Air Line to Birmingham, Ala., thence over the St. Louis & San Francisco Line to Memphis, Tenn., thence over the Missouri Pacific Line to Monroe, La., and thence over the Vicksburg, Shreveport & Pacific Line .to Shreveport, La., and that the freight rate sought to be imposed on the shipment is correct; but it appears that the shipment could have been sent over another route at a less rate,' or the rate which was actually collected by plaintiff; the delivering carrier, and it is contended that it was the duty of the original carrier to have so routed the shipment, and that only the rate fixed for such route should be collected.

It is conceded that the consignor selected the route and, as stated, that the rate demanded is that fixed for the class of merchandise traveling over the route selected, and we are of the opinion that the judgment is correct. Louisville & Nashville R. R. Co. v. Maxwell, 237 U. S. 94, 35 S. Ct. 494, 59 L. Ed. 853, L. R. A. 1915E, 665.

The judgment is affirmed.


author: DREW, J.

text:
    No. 3105
    Second Circuit
    MASON v. RUFFIN
    (November 7, 1930. Opinion and Decree.)
    (December 23, 1930. Rehearing Refused.)
    (February 2, 1931. Writs of Certiorari and Review Refused by Supreme Court.)
    Craig,. Bolin & Magee, of Mansfield, attorneys for plaintiff, appellant.
    Parsons & Colvin, of Mansfield, attorneys for defendant, appellee.
   DREW, J.

Plaintiff sued for $239, alleging same to be a balance due on thirty-four head of steers and one cow sold to the defendant in December, 1926.

Defendant denies any indebtedness to plaintiff, alleging that he has paid all that he contracted and agreed to pay for the said steers and cow, and further alleges that' plaintiff had agreed to sell him a total of one hundred steers; that after delivering thirty-four head, plaintiff refused to deliver the remaining sixty-six steers; and that by reason of bis failure has caused defendant damage in the sum of $1046.10, profits he would have realized in the resale of the said steers, and the further sum of $145.40, cost of feeding the thirty-four head of steers for thirty days. In reconvention, he prays for judgment in the above stated amounts against plaintiff.

The trial in the lower court resulted in judgment rejecting the demands of plaintiff and in favor of the defendant in re-convention in the sum of $430.80, together with interest and costs. From this judgment the plaintiff has appealed and defendant has answered the appeal praying that' the judgment granted to him be increased to the amount prayed for in the original pleadings.

The disagreement between plaintiff and defendant arose over the classification and the price of the steers and the number of steers sold or agreed to be sold. As to the, thirty-four steers delivered, plaintiff claims as follows:

28 Steers ..................................$37 each $1036
4 2-year-old steers ................ 20 each 80
2 stags .................................... 20 each 40
1 cow ............-..............;............. 25 25
$1181 Less amount paid ________________________________ 942
Balance claimed ....................................$ 239
Defendant claims the trade was as follows:
13 old steers _______________________$37 each $481
8 4-year old steers ................ 22 each 176
13 2 and 3-year-old steers and stags .......... 22 each 260
917 1 cow ........................................ 25 25
Total —_-----------------------------------------------------$942

Plaintiff contends that the contract was agreed upon at a basis of $37 each for all steers, three years old and above, and a price of $20 each fixed for the two-year-old steers.

Defendant contends that the agreement was on three classes of steers: first, the old class of steers or,oxen, at $37 each; second, smooth steers from four years old up to the oxen class, at $22; and the two and three-year-old steers and stags at $20 each.

There is no dispute over the price of the one cow.

The testimony on these contentions is very conflicting and the credibility of the witnesses would have much effect on the decision. The judge of the lower court heard and ' saw the witnesses testify and was better qualified to pass on their credibility than we are. He found the facts to be with the defendant, holding that the trade contemplated three classes of steers at the price contended by defendant, and rejected the demand of the plaintiff. We are not disposed, to disturb his finding in that, respect.

Defendant in reconvention claims that he purchased, or plaintiff agreed to sell and deliver to him, all the steers that he owned, and fixed a minimum number of one hundred to be delivered. He contends further that he had agreed to sell the same steers for a price of five cents per pound, all around, and that • by failure of the plaintiff to deliver the remaining sixty-six steers, ‘ he was damaged in the amount prayed for. He bases his damage on the average profit he made on the thirty-four steers delivered.'

The lower court held that defendant had purchased or agreed to purchase one hundred steers; that there was no specific number of each grade fixed in the contract; and that plaintiff could have delivered sixty-six of the smallest class, that is, two and three-year-old steers, and complied with the contract. He fixed the average weight of the two and three-year-old steers at 600 pounds each and awarded judgment on that basis. The claim for' the cost of feeding the steers for thirty days was rejected for the reason that it was shown that defendant would have had to keep the steers at least that long in order to free them of ticks' before the sale he had made could' be , consummated. The holding as to the feeding of the steers for thirty days is, we think, correct, but we cahnot agree with the holding of the lower court in awarding damages to the defendant.

The number of steers to be delivered was never agreed upon by the parties. After the price and classification had been agreed upon, the plaintiff was asked by defendant how many steers he had, to which he replied, “125 or 150, I think, scattered here and yonder, and I want to sell them all at that price”; and defendant replied, “I will take them all.”

Defendant testified that he understood that plaintiff wanted to sell all he had and go out of the cattle business arid that he intended buying all that he had, and the only evidence regarding 100 head of steers is that defendant says he wrote on the check he gave to plaintiff at the time of the trade, “dep. on one hundred head of cattle.” The check was for $500. He does not contend that he ever mentioned 100 head of cattle to plaintiff or that there was any discussion about 100' head of Steers. Plaintiff contends that if anything was written on the check he received, that he did not see it, and that if he had seen-it, he would not have ■ accepted it. The check was introduced in evidence and if any such writing was ever on it, it had been erased. There is some evidence by the cashier of the bank that the check bore evidence of such erasure. It is clear to the court that the plaintiff intended selling to defendant all the steers he owned, whatever the amount may have been, and that defendant intended to buy all the steers owned by the plaintiff; that neither the plaintiff nor defendant knew at that time how many plaintiff owned, and the number to be sold, together with the price to be paid, was to be fixed on delivery of the steers as plaintiff could locate them and deliver them. There was never any trade for exactly 100 head of steers. It was for all the steers plaintiff had that he could get up and deliver to defendant, whether it was fifty, seventy-five or one hundred and fifty.

Article 1798 of the. Revised Civil Code reads:

“As there must be two parties at least to every contract, so there must be something proposed by one and accepted and agreed to by another to form the matter ..of such contract: the will of both parties must unite on the same point.”

Article 1805 of the Revised Civil Code:

“The acceptance to form a contract must be in all things conformable to the offer; any condition or limitation contained in the acceptance of that which formed the matter of the offer, gives him who makes the offer, the right to withdraw it.”

Plaintiff offered to sell all the steers he owned, estimating the number at 125 or 150, and defendant agreed to buy 100. Until the offer of defendant was accepted by the plaintiff, it was not a binding contract, and to hold that plaintiff accepted the offer to buy 100 head, we would have to hold that the writing claimed by defendant to be on the check, “dep. one hundred head of cattle,” was known to plaintiff and by his accepting the check with the notation on it, that he agreed to the offer to buy 100 head of cattle. The evidence does not justify such a holding. The plaintiff in. reconvention must make out his case with the same certainty and specificness as the plaintiff in any other cause. We do not think he has done so in this case.

However, if we took the position of the judge of the lower court that there was an agreement for the delivery of 100 head of steers, we would be unable to award damages for the reason that the amount of damages is too uncertain and indefinite to justify any award. It is shown that there were three classes of steers contemplated, and the alleged contract does not specify how many of either class were to be delivered, neither does it specify what the weights of each class should be. He claims damage based on a sale of five cents per pound and there is no way of arriving at an accurate weight of the cattle alleged to have been bought. The lower court stated that the smaller class, which, if delivered, would have been a compliance with the contract, would average 600 pounds each. However, there is no evidence to justify such a finding. One witness places the weight of the two-yearolds, some at 500 pounds and some at 550. If plaintiff had delivered all sixty-six steers of the large classification, it is shown that their weights were from 1000 pounds to as high as 1472. If the defendant had sold the steers according to the same classification that he had agreed to buy them, there would have been something accurate by which to measure his damages, but he claims to have bought the steers by classification, so much for each classification, regardless of weight, and to have sold them by weight only, namely: five cents per pound all around. The only way that the court could arrive at the weight of the sixty-six steers, without proof of their weight, although they were all of th'e same classification, would be purely and simply by guess, and we are not authorized to do that.

All damages must be proved with legal certainty. Beck v. Fleitas, 37 La. Ann. 492. And • it is elementary that the proof of damage must be as direct and positive in a reconventional demand as in a direct suit. If damages could be allowed in this case for breach of contract, the court is without right to fix the damages for the reason that the proof is too uncertain and indefinite as to amount. There is no way to arrive at the weight of the sixty-six head of steers to be delivered and no just or equitable way to estimate the weight.

Defendant relies on the case of Alexandria Cooperage & Lumber Company v. Duck Lumber Company et al., 153 La. 438, 96 So. 24. We do not think the. facts in that case are in any way similar to the case before us and therefore it does not control.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be amended by rejecting the demands of the defendant in reconvention, and, as amended, that the judgment be affirmed. Costs of appeal to be paid by appellee.


author: ODOM, J.

text:
    Nos. 3804 and 3805
    Second Circuit
    YOUNGBLOOD v. DAILY AND WEEKLY SIGNAL TRIBUNE and HEFLIN v. DAILY AND WEEKLY SIGNAL TRIBUNE
    (December 23, 1930. Opinion and Decree.)
    (January 27, 1931. Rehearing Refused.)

      Allen S. Drew, of Minden, attorney for plaintiffs, appellees.
    John T. Campbell and Coleman Lindsey, of Minden, attorneys for defendant, appellant.
   ODOM, J.

The defendant is a daily and weekly newspaper published in the city of Minden by Jones and Harper, Incorporated, a corporation with W. B. Jones as secretary and manager. In the early part of September, 1928, the newspaper, through its management, inaugurated a campaign to increase its circulation and in order to induce outsiders to solicit subscriptions for the paper it offered prizes to the contestants as follows:

To the person securing the greatest number of cash subscriptions, one Buick Master Six Pour-door Sedan Automobile, valued at $1549.00; and to the contestant securing the next highest number of cash subscriptions, one Chrysler-Plymouth Pour-door Sedan Car, valued at $895.00.

Seven other prizes consisting of diamond rings, ranging in value from $200 down to $25, were also offered.

The paper in its issue dated September 7th, published rules governing the contest and stated that the contest would begin on September 10th and close on November' 7tb A number of persons, including these plaintiffs, Mrs. Tressie Youngblood and Mrs. Stella Heflin, entered the contest and worked until the latter part of October, each obtaining a number of cash subscriptions.

They allege that they entered the contest in good faith and devoted their time to the work of securing subscriptions and incurred considerable expense while doing so. They allege that they continued in the contest until defendant arbitrarily and without their consent brought the contest to a close prior to the date on which it was advertised to end and that defendant took up their books, receipts and paraphernalia and ordered them to cease work. Mrs. Youngblood alleges that she won the first prize, the Buick car, and Mrs. Heflin that she won the second prize, the Chrysler, and that under the contract and rules of the contest these prizes should be awarded to them and the cars delivered and that in case defendant fails to deliver the cars it should pay to them the price thereof and they prayed accordingly.

In the alternative they ask that in case the court should hold that they were not entitled to enforce specific performance of the contract they should be awarded damages for its breach.

Defendant excepted to the petitions on the ground that they set out no cause of action, which exceptions were overruled. It then answered, admitting that it had inaugurated the contest and that plaintiffs were contestants and had secured the number of cash subscriptions which they claimed, but denied that they were entitled to receive the automobiles.

This answer was filed on December 3, 1928. On January 5, 1929, plaintiffs filed amended petitions which were allowed by the court. On January 21st, defendant by written motion excepted to the ruling of the court allowing the amended petitions on the ground that they substituted new parties and asked that the amended petitions be ruled out and disallowed. These motions were overruled.

On February 8th, defendant excepted to the capacity of plaintiffs to sue and stand in judgment, which exceptions were also overruled.

The trial of the cases on their merits resulted in judgments rejecting plaintiffs’ demands for specific performance of the contract but awarding them damages for its breach. Defendant appealed and plaintiffs answered the appeal and asked that the judgments be amended so as to conform to the prayer of their petitions.

Defendant in this court insists that each, of its exceptions and motions were well founded and should have been sustained. We proceed to dispose of them in the order filed.

EXCEPTION OF NO CAUSE OF ACTION

These exceptions are grounded upon the proposition that plaintiffs did not allege that they performed or offered to perform their part of the contract and that they did not allege that defendant was put in default prior to the filing of these suits.

These exceptions are not well founded and were properly overruled. Plaintiffs alleged that they entered the contest in good faith, worked continuously for approximately forty days, secured subscriptions, turned in to defendant all cash which they received-, with the names, their addresses, of all subscribers; made reports daily, all in strict accordance with the published rules and regulations governing the contest, and that they did not cease work until they were ordered to do so by defendant; that defendant actively breached its contract with them by arbitrarily closing the contest without their consent previous to the date on which it was advertised to close and that it took -from them all their books, receipts and paraphernalia and ordered them to cease work. According to these allegations they performed their part of the contract.

They did not allege that they put defendant in default previous to filing their suits. As it was not necessary to put defendant in default no such allegation was necessary. Accepting plaintiffs’ allegations as true, and we must do so, for the purpose of these exceptions, defendant actively breached its contract with them. A contract is actively violated when one of the parties to it does something inconsistent with the obligation he -has assumed. (Civil Code, art. 1931.) The closing of the contest and ordering plaintiffs to cease work was inconsistent with the obligation which defendant had assumed. Where there is an active violation of the contract, the creditor is under no obligation to put the debt- or in default. . (Civil Code, art. 1932.)

AS TO' ALLOWANCE OF THE AMENDED PETITION

These suits are against “The Daily and Weekly Tribune,” a newspaper. In the original petitions plaintiffs alleged that the paper was published by W. B. Jones, sole owner. In the amended petitions it is alleged that the paper was owned and published by Jones and Harper, Incorporated, a corporation. These amendments were filed and allowed by the court on January 5th, and the cases were not tried until April 3rd. Article 419 of the Code of Practice reads as follows:

“After issue joined, the plaintiff may, with the leave of the court, amend his original petition, provided the amendment does not alter the substance of his demand by making it different from the one originally brought.”

This amendment did not alter the substance of plaintiffs’ - demands. There was no change at all in the demands. In the original petitions it was alleged that the paper was owned and published by W. B. Jones, which allegation was so amended as to show that it was owned and published by a, corporation.

The amendment did not delay ¡proceedings and did not work hardship or injustice upon anyone. New service was made not only on the newspaper but on Jones and Harper, Incorporated, as the law provides.

Counsel argue that the amendment substituted new parties defendant. The defendant named in the original petitions as well as the amended petitions is a newspaper itself. The only change the amendments made was as to the ownership.

The lower court did not err in permitting plaintiffs to amend their petitions.

AS TO WANT OF CAPACITY

Plaintiffs are married women and were not joined in these suits by their husbands. Act No. 283 of 1928,- page 548, emancipates married women and relieves, them of all incapacity to which they were originally subjected. The purpose of the act was:

“* * to abolish the authority of husbands over married women, in respect to contracts and obligations and to appearance in judicial proceedings”;

Section 2 of the act reads as follows:

“That married women shall have capacity to institute or defend suits, or otherwise appear in judicial proceedings, and to stand in judgment, without the authority of their husbands, or of the Judge.”

The contract involved in these suits was made by these plaintiffs without the assistance of their husbands but apparently with their sanction. It is not suggested that plaintiffs did not have capacity to make the contract and certainly if they had capacity to contract they had capacity to enforce the contract.

Counsel argue that if defendant is indebted to these plaintiffs, the debts are due the community which exists between plaintiffs and their husbands and that the husbands alone can bring suit to collect it. As to whether the amounts collected through these suits, if any, would be community assets under the circumstances disclosed, we express no opinion. But conceding that they would be community assets, defendant could suffer no injury by reason of the fact that plaintiffs were not specifically authorized by their husbands to bring the suits, for as a matter of fact the husbands sanctioned the suits by joining their wives in the negotiations leading up to their filings, in securing counsel and participating in discussion looking to a compromise of the cases before the suits were filed. They were present during the entire proceedings and under the circumstances we think a judgment rendered against defendant in these suits would be res adjudicata and fully protect defendant. These exceptions were properly overruled by the court.

ON THE MERITS

The defendant employed the Coleman Circulation Company of Jackson, Mississippi, to conduct the contest and it sent its representative, Mr. Womeldorf, to Min-den to take charge. It was through Womeldorf that all negotiations were carried on. Mr. Jones, the manager of the (paper and of the corporation which published it, was present and apparently sanctioned all Womeldorf did, although he took no active part. The contest was not a financial success from the standpoint of defendant. The contestants did not secure the cash subscriptions anticipated' and for that reason Womeldorf called all the contestants in before the date originally set for the closing of the contest and explained to them that the newspaper could not afford to go on with it and asked them to consent to close it. They refused unless he would distribute the prizes according to the standing of the contestants at that time. Womeldorf refused to dq that but agreed to pay each ten per cent of the amount received on subscriptions, which proposition was not accepted and the contestants were told that the contest was at an end.

It is contended by defendant that Womeldorf had no authority to close the contest and that Jones, publisher and manager of the paper, did not sanction his conduct in doing so. The testimony satisfies us, however, that Jones knew all and sanctioned the steps taken by Womeldorf. After the contest was called off and the contestants had expressed dissatisfaction Womeldorf communicated with them and invited them to return and re-enter the contest and in the issue of the paper published on October 23rd, there appeared the following notice:

“The Signal-Tribune
“Subscription Contest
“The question of discontinuing the Signal-Tribune Subscription Contest was discussed some days ago by some of the interested parties. Owing to the lack of interest on the part of the public and the contestants, it seemed that it might be advisable to call the contest off. But some of the contestants did not agree to this so the contest is being continued as originally advertised.”

These plaintiffs refused to continue. We do not think they were under any obligation to do so. Defendant had already defaulted on its contract and its offer to complete it came too late. Enders v. Gingras, 38 La. Ann. 773; Southport Mill v. Ansley, 160 La. 131, 140, 106 So. 720.

However, we think Jones as manager of the paper was in good faith in his proposal to permit the contestants to continue after he learned that they were dissatisfied. He no doubt saw that he had driven a hard bargain but was willing to abide the consequences. Plaintiffs refused to continue on account of the fact, they say, that Womeldorf imposed new conditions with which they could not comply. But they admit that they were tired, disgusted, and wanted to quit.

We do not think this is a case' where the court should order a specific performance of the contract to deliver the cars or their values. These plaintiffs can be adequately compensated in damages for the loss they have sustained on account of defendant’s failure to perform its part of the contract.

In the case of Pratt v. McCoy, 128 La. 570, on page 617, 54 So. 1012, 1029, we find the following statement, to-wit:

“Specific performance has never been favored in our law. This is evidenced by a long line of decisions. City v. Railroad Co., 44 La. Ann. 64, 10 So. 401; Solomon v. Diefenthal, 46 La. Ann. 903, 15 So. 183; Rice v. Rice, 46 La. Ann. 712, 15 So. 538; Mirandona v. Burg, 49 La. Ann. 657, 21 So. 723; Laroussini v. Werlein, 48 La. Ann. 13, 18 So. 704; Caperton v. Forrey, 49 La. Ann. 872, 21 So. 600; Citizens’ Bank v. James, 26 La. Ann. 267. In the first of these cases, the court went so far as to announce broadly that:
“ ‘It is only when no adequate compensation can be made in damages that courts of this state can decree a specific performance of a contract. That decree cannot be demanded as a matter of right.’
“True, in Girault v. Feucht, 117 La. 276, 41 So. 572, the court qualified that announcement. Still the extreme reluctance of our courts to enforce specific performance remains in full force. Code Napoleon, art. 1142, provides that:
“ ‘Every obligation to do or not to do resolves itself into a claim for damages in case of inexecution on the part of the debtor.’ ”

Specific performance under contracts to do or not to do (Civ. Code, art. 1926) is not an absolute right, but rests largely within the discretion of the court. City of New Orleans v. Railroad Co., 44 La. Ann. 64, 10 So. 401; New Orleans Polo Club v. New Orleans Jockey Club, 128 La. 1044, 55 So. 668.

Each of the plaintiffs worked thirty-one days. Mrs. Youngblood used a car and paid the expense of its operation. The lower court allowed her $155 for her services and $200 for the use and expense of her automobile, or a total of $355. Mrs. Heflin was at no expense and the court allowed her $155 for her time.

We affirm these judgments because we think they do substantial justice between the parties.

Judgments affirmed, the defendant to pay all costs.

DREW, J., recused.


text:
    No. 3577
    Second Circuit
    CLEMENTS ET AL. v. LUBY OIL CO., INC.
    (November 7, 1930. Opinion and Decree.)
    (December 23, 1930. Rehearing Refused.)
    (February 2, 1931. Writs of Certiorari and Review Refused by Supreme Court.)

      See, also, 14 La. App. 182, 125 So. 510; 170 La. 910, 129 So. 526.
    Foster, Hall, Barrett & Smith, of Shreveport, attorneys for plaintiffs, appellees.
    Cook & Cook and John B. Files, of Shreveport, attorneys for defendant, appellant.
   ODOM, J.

The defendant was engaged in drilling for oil and gas, and employed Clements & Lester, a partnership composed of William E. Clements and M. F. Lester, to build a derrick, and, while at work on the derrick, Clements fell from a scaffolding and was so injured that he died. This plaintiff, his widow, brought suit under the Workmen’s Compensation Acts (Act No. 20 of 1914, as amended) for compensation for the benefit of herself and her dependent minor children. In the alternative, she prayed for damages in case the court should hold that she and the other dependents were not entitled to recover under the compensation statutes. The case now before us is on the alternative demand for damages, as it has been held that deceased was an independent contractor and that therefore there could be no recovery-under those statutes.

Mrs. Clements, the widow and tutrix of certain minor children, issue of her marriage with deceased, claims damages in the sum of $15,400 for the death of her husband and the father of her children, and, as a cause of action, sets up that defendant employed the said William E. Clements to construct an oil or gas derrick for a consideration of $65, and that all materials for its construction were furnished by it; “that the said William E. Clements did not in any manner waive the warranty by the Luby Oil Company, Inc., that said materials were safe and sound for the purpose for which they were supplied, and for the use and construction for which they were intended by the Luby Oil Company, Inc., and that the Luby Oil Company, Inc., as the furnisher of said materials, warranted unto the said William E. Clements, a workman, that such materials were safe and sound for the use and construction for which they were intended by both parties, namely: for the construction of a gas or oil derrick.”

In paragraph XIV of the petition it is alleged that the delivery of the materials at the place where the derrick was to be built and the construction thereof were under the direct supervision of Dero Austin, president of the defendant company, and “that the said William E. Clements received the materials at the site of the proposed derrick and that the said William E. Clements had no privilege of selecting said materials; but that the selection and delivery' was (were) entirely controlled by the defendant corporation.”

In paragraph XV it is alleged that, while at work constructing the derrick, the said Clements stepped on a brace, which broke, and caused him to fall a distance of 34 feet, and that as a result of the fall he died.

Paragraph XVII of the petition reads as follows:

“Petitioners further allege in the alternative that the section of lumber used for the brace which broke and caused the death of William E. Clements, was of the customary size and length used for such braces in constructing such derricks; and that if said brace had been sound, the injury that caused the death of said William E. Clements would not have occurred; but that said section of lumber used for said brace was faulty by reason of a hidden defect not visible or known to the deceased; and that such defect or weakness was known, or should have been known to defendant and was the proximate, direct and immediate cause of the injury to the said William E. Clements, and of his death.”

And finally it is alleged:

“That by the delivery of such defective materials to the said William E. Clements by the defendant, the defendant corporation violated and breached its warranty of the soundness of the materials furnished for the precise purpose for which they were to be used; and that such breach of warranty by the defendant was directly responsible for the injury and death of the said William E. Clements.”

As to this branch of the case, the defense is that deceased was not the servant or employee of defendant; that defendant had no contractual relations with him; that the defendant entered into a contract with Clements & Lester, a firm or partnership, to build a derrick by the job or plot, for a stipulated price; that Clements & Lester were independent contractors; and that deceased was at the time of his injury and death working for the independent contractors and not for defendant. And, in the alternative, in case the court should hold that deceased was its employee, defendant pleads contributory negligence and assumption of risk on the part of deceased in bar of recovery.

OPINION

Plaintiffs’ action for damages is not based upon a tort, but upon defendant’s failure to perform an obligation incident to a contract of employment. It is alleged that defendant employed deceased to build a derrick, that is, to perform the labor incident thereto, defendant to furnish the material, and that defendant “warranted unto the said William E. Clements, a workman, that such materials were safe and sound,” and that the “defendant corporation violated and breached its warranty of the soundness of the materials furnished, * * * and that said breach of warranty by the defendant was directly responsible for the injury and death of the said William E. Clements.” In other words, • it is contended that the duty which defendant owed to deceased grew out of a contract entered into between them. Now if it be conceded, as counsel for plaintiffs contend, that, as a matter of law, when an owner employs another to build a structure, the owner to furnish the materials, he impliedly warrants the materials he furnishes to be sound and safe, and that a breach of this warranty renders the owner liable for damages to the employee resulting from the defective condition of the materials furnished, one claiming damages for such breach, in order to recover, would have to prove as a condition precedent that there was in fact a contractual relation existing between the parties. So in the present case, if plaintiff failed to prove that deceased was at the time of his injury and death acting as a servant of defendant, l^er case must fall, t

The testimony makes it perfectly clear that the deceased, William E. Clements, was not working as an employee of defendant at the time of his injury and death, and, further, that there were no contractual relations between him personally and defendant.

The deceased was a member of the firm or partnership of Clements & Lester, which was at the time and had been for many years engaged in the business of building derricks. The defendant oil company employed the firm of Clements & Lester to construct a derrick by the job for the stipulated price of $65 for the work complete. The defendant was to furnish all lumber and nails necessary, and all work was to be furnished by the contracting firm. The contract called for a completed derrick at a stipulated price, which was to be paid upon its completion. The firm employed three laborers to work on the job, and, in addition, the members of the firm themselves did manual labor, but there was nothing in the contract which required the members of the firm to do any of the work themselves nor is it suggested that it was contemplated that they should do so. ’ It was left entirely optional with the firm as to the means adopted for the completion of the work. The owner had no control or supervision of. the work. The firm contracted to do the work necessary for the completion of the derrick as a unit, or as a whole, for a specified recompense and was responsible to the owner for the result of the work only. The firm was therefore an independent contractor. Under the terms of the contract, the deceased was not employed to perform any labor and while he did perform a portion of it, and was at work when he fell, his work was for the firm and not for defendant. The fact that he as a member of the firm exercised his right of doing manual labor on the derrick did not make him defendant’s laborer.

Clements & Lester was a partnership, and the contract was with it. A partnership is a fictitious legal entity or a moral and civil being distinct from the persons who compose it,- so much so that it may itself be a member of another firm. Darden et al. v. Garrett et al., 130 La. 998, 58 So. 857; Succession of Pilcher, 39 La. Ann. 362, 1 So. 929; Stauffer, Macready & Co. v. Morgan, 39 La. Ann. 633, 2 So. 98; Simonton v. McLain, 37 La. Ann. 663.

The employment of the firm or partnership of Clements & Lester by defendant did not create any contractual relationship between it and the individual members of the firm.

Counsel for plaintiff contend that “the nature of the transaction between defendant and William E. Clements constituted a bailment,” and they devote the major portion of their brief to a discussion of the duties and obligations of the bailor to the bailee. In our opinion, the contract or transaction for the building of the derrick in no sense “constituted a bailment.”

“A bailment may be defined as a delivery of personalty for some particular purpose, or on mere deposit, upon a contract, express or implied, that after the purpose has been fulfilled shall be re-delivered to the person who delivered it, or otherwise dealt with according to his directions, or kept until he reclaims it, as the case may be.’’ 6 Corpus Juris, 1084.

The essential feature of bailment is that the chattel delivered shall be returned at the end of the bailment either in the same or an altered form. See Words and Phrases, First Series, p. 673.

Counsel quote the following from 6 Corpus Juris, 1096:

“Where articles are delivered by one person to another who is to perform labor upon them or to manufacture them into other articles for the former, the transaction is a bailment notwithstanding the articles are to be returned in altered form.”

And argpe that the essential features of this contract were that the lumber was to be manufactured into another article, a derrick, and that the derrick was to be returned to the owner of the lumber. But such was not the nature of the contract. The contract called for the building of a derrick and the owner was to furnish the lumber as an incident thereto. The contract was not that the firm should manufacture the lumber into a derrick, and when so manufactured, return it to the owner, but to use the lumber to build for the owner a structure upon his land for its service and improvement.

But assuming, as counsel contend, that there was a bailment, but there was none such, the fact remains, as we have already observed, that there was no “transaction” between this defendant and the deceased. The transaction was between defendant and the firm of Clements & Lester, and not between defendant and Clements as an individual.

But, aside from this, if it he true that deceased was an employee of the defendant, plaintiff cannot recover under the facts disclosed.

As a major premise, plaintiff alleges that the lumber furnished by defendant was not sound and fit for the use intended, that is, for the building of the derrick, and that the piece used as a brace, which broke under deceased’s weight and caused his fall, “was faulty by reason of a hidden defect not visible or known to the deceased.”

There is no testimony at all tending to show that the lumber was not fit for the building of the derrick and none at all to show that there was any defect, hidden or otherwise, in the particular piece which broke. It had been used before, but it is not shown that it was old, decayed, knotty, or weakened by nails. Those at work with the deceased at the time do not know why the piece broke; that is, they knew of no defect, but say they think, if the board had been new, it would not have broken as it did. So that defendant’s alleged negligence consisted solely in furnishing secondhand instead of new lumber. Now the fact that secondhand lumber was to be used, at least in part, in the building of the derrick, was well known to deceased. During the negotiations and prior to the letting of the contract, Mr. Austin, who represented defendant, went with the members of the firm of Clements & Lester to the place where the derrick was to be built and where the lumber was then stacked. They all viewed the lumber, and the members of the firm were told by Mr. Austin to pick the best there was there and use it, and to discard such as was not fit, and further, that, if they needed other or more lumber, to let him know and he would get it for them. They were experienced derrick builders, having been in the business some eight or ten years. They personally examined the lumber, and made no request for any other. Mr. Lester, a member of the firm, personally selected the particular piece which broke, and he thought it was good. The deceased personally inspected it also. He was a large man, weighing about 185 pounds, and the witnesses say that, after looking at the piece of 2x6, he was in some doubt as to whether it was strong enough to hold his weight, or, as they express it, he was “somewhat jubious.” Being thus doubtful, he left the derrick, went to the top of the hill some distance away, got a piece of new lumber, 1x4, and put it with the 2x6 to strengthen it. After that, deceased was cautioned by Hadwin, who crossed over ahead. Hadwin, who was 20' to 25 pounds lighter than deceased, walked across on the girder and suggested to deceased that he do likewise. He looked back just as deceased put all his weight on the brace.- It was not necessary that he walk across on the brace. He could have walked on the girder. He used his own discretion when he walked on the brace instead of the girder; he made his own choice; he knew that the lumber had been used before and of such defect as there was; he suspected that there was some danger, and was warned by a fellow workman, but he took a chance, assumed 'the risk, and his injury and resulting death were therefore due to his own negligence.

In this connection, it may be stated that the testimony shows that the lumber furnished by defendant was suitable and fit for the purpose intended, that is, for the building of the derrick. The piece of lumber which broke was strong enough for the brace, but not strong enough to sustain deceased’s weight when laid across a span of 9 feet. Defendant did not know and could not anticipate that deceased would select that particular piece of lumber for the use to which deceased put it at the particular place where used. Defendant may have known, as suggested by counsel, that, in building derricks, laborers were accustomed to use certain portion of lumber for scaffolding, but it necessarily had to leave the selection of such to the discretion of the laborers themselves. If this particular piece of lumber had been used as a brace higher up on the derrick, where the span was much less, it would probably have been strong enough to sustain deceased’s weight, but, when used across a longer span, it was not strong enough.

Due to the very earnest and able argument made by counsel for plaintiff, 'both orally and in brief, we have viewed the case from every angle suggested, and our conclusion is that plaintiff cannot recover under any theory.

For the reasons assigned, it is ordered and decreed that plaintiff’s demands toe rejected and that her suit be dismissed, at her costs.


author: JANVIER, J.

text:
    No. 13,681
    Orleans
    BOISSEAU v. VALLON & JORDANO, INC., ET AL.
    (January 19, 1931. Opinion and Decree.)

      Habans & Coleman and Gus Levy, of New Orleans, attorneys for plaintiff, appellee.
    Herve Racivitch and Robert L. Hickerson, of New Orleans, attorneys for defendants and appellants.
   ON MOTION TO DISMISS

JANVIER, J.

Appellee moves to dismiss this appeal on the ground that the amount involved exceeds the jurisdictional limit of this court.

Plaintiff seeks the return of a deposit of $600 made with certain real estate agents in connection with an agreement to purchase real estate for the price and sum of $12,000. It is alleged that the said agreement is null as containing a potestative condition.

In other similar cases we have held that, where there is sought the nullity of an agreement of sale involving property valued at more than $2,000, this court is without jurisdiction. Hunley et ux. v. Ascani et al., 14 La. App. 95, 129 So. 164; Bussey v. Wise-Miller et al., 14 La. App. 104, 129 So. 166; Bussey v. Barilleaux et al., 14 La. App. 82, 129 So. 167.

It is true that we also held that we were without jurisdiction in the matter of Lawrence Villemeur v. Charles E. Woodward et al., decided October 20, 1930, 130 So. 366, and that the Supreme Court, to which we had transferred the appeal, held that the matter was within our jurisdictional limit and transferred it back to us, but the reason given by the Supreme Court for sending the matter back to us for final adjudication was that they found that there was not involved in that case the question of the validity of the contract, except incidentally, and that nothing was involved, except the question of whether the deposit should be returned. The deposit was less than $2,000, and, therefore, the Supreme Court said that this court had jurisdiction. By inference the decision of the Supreme Court in the Villemeur case, transferring the appeal back to us, sustains the view, taken by us in the other cases that, where there is sought the nullity of the contract and the property involved in the contract exceeds $2,000 in value, we are without jurisdiction.

In view of the provisions of Act No. 19 of 1912, it is ordered, adjudged, and decreed that this appeal be, and it is, transferred to the Supreme Court of Louisiana to be disposed of according to law; the transfer to be made within thirty days after this judgment becomes final, and, if not so made, then the appeal to. be deemed dismissed; defendant and appellant to pay the costs of appeal in this court, the remaining costs to await final determination of the matter.


author: HIGGINS, J.

text:
    No. 13,427
    Orleans
    BRANDT v. N. O. PUBLIC SERVICE, INC.
    (February 2, 1931. Opinion and Decree.)
    Tracy & Neuhauser, of New Orleans, attorneys for plaintiff, appellant.
    Ivy O. Kittredge, of New Orleans, attorney for defendant, appellee.
   HIGGINS, J.

Plaintiff sues the defendant, a carrier of passengers, for damages for personal injuries and loss of wages, etc., resulting from a fall from the front vestibule or platform to the pavement while alighting from a ear of the defendant company, about 6:30 p. m., April 4, 1928, at Carrollton avenue and Dumaine street, this city.

There are three charges of negligence in the petition:

First, that the motorman had left the front vestibule door open in violation of a city ordinance.

Second, that the defendant had failed to provide a handle bar on the right front door in order to assist passengers in safely alighting.

Third, that the motorman carelessly left the front vestibule door open, allowing the rain to beat upon the floor, causing it to be slippery and unfit for safe transportation of passengers.

Defendant denied liability and alleged the car was in good condition and properly equipped; that there was a handle bar on the right front vestibule door for the use of passengers; that the step was wet from rain arid that the platform or vestibule was damp and wet from shoes, umbrellas, and raincoats of passengers using it, but was not slippery or dangerous for passengers; that the same platform and step had been used by numerous passengers that day and that none of them slipped while using the platform or step; and that the plaintiff’s fall was due to his own carelessness in alighting from the step of the car.

The judge of the lower court dismissed the suit, holding that the car was at the usual alighting place, properly stopped; that though the step was wet, a number of passengers had safely alighted from the car during the same trip; that the car, platform, and step were in good condition, and that defendant was without fault. Prom this judgment plaintiff has appealed.

We first observe that the plaintiff has failed to offer in evidence the alleged city ordinance requiring the defendant, as a public carrier of passengers, to keep the vestibule doors, of the car closed. In the case of Valenti et ux. v. Oster Bros. Carriage & Wagon Manufacturing Co., 154 La. 991, 98 So. 553, the Supreme Court held that a city ordinance must be alleged and proven the same as any other fact. It is clear, there-, fore, that the plaintiff’s first contention is; without merit.

As to the second question presented, we: are of the opinion that the preponderance, of the testimony shows that the car in question was equipped with a long, upright-handle on the right of the front step and on the left thereof is the usual post, equally available for passengers in alighting/- and that the brass handle which plaintiff contends was missing was on a different type of car than the one in question. It is likewise clear that. the second contention of the plaintiff is not well founded.

Taking up the third contention of the: plaintiff, that the' floor' 'of the vestibule became slippery because of the rain'and was, therefore, unsafe for. passengers, the record shows that on the evening of the accident, the plaintiff was a passenger on the street car in question. The car stopped at the usual place where passengers were discharged and that the plaintiff and other passengers alighted therefrom. All of them safely alighted except the plaintiff, who either slipped from the front platform or step of the car and fell to the pavement and injured himself. It appears that the floor of the vestibule was made of lattice strips of wood, and that the floor was damp and wet from the shoes, umbrellas, and raincoats of the passengers on account of the fact that it had been raining that evening.

It is shown that the floor and step did not have any mud or slippery substance on them and that all of the passengers on the car that day, and particularly that evening, used the same vestibule floor and step and alighted from the car in safety. While the plaintiff and his brother testify that ■ he slipped from the vestibule floor to the ground, three disinterested witnesses testified that he fell from the step' of the car; but in either case the preponderance of the evidence shows that the step, handle bar, and floor of the vestibule were .in good order and that the floor and step of the car were free from any mud.or substance that might cause or tend to «ause a passenger to slip and fall.

In the case of Caillier v. N. O. Railway & Light Co., 11 La. App. 93, 120. So. 76, the court said:

“A defendant can only be required to guard against an- anticipated danger.
“ ‘Negligence’ is the failure to use such care as is necessary to avoid a danger which should and could have been anticipated. * * *
“Evidence that no accident had occurred for a -long time after the existence of a certain condition of things, and that none suggested itself to the mind, would justify the failure to anticipate possible danger.”

In Schuh v. New Orleans Public Service, 5 La. App. 57, it was held:

“A defendant cannot be charged with negligence for continuing an act from which no injury has resulted and from which none could be anticipated.”

See also Barnes v. City of New Orleans, 4 La. App. 503; Gilliam v. Texas & P. R. R. Co., 114 La. 273, 38 So. 166; Sharp v. N. O. City R. Co., 111 La. 395, 35 So. 614, 100 Am. St. Rep. 488; Veith v. N. O. Ry. Co., 152 La. 47, 92 So. 730; Cusimano v. N. O. Public Service, 12 La. App. 586, 122 So. 903.

In Nee v. N. O. Public Service, Inc., 11 La. App. 1, 123 So. 135, where, on a similar wet day, plaintiff claimed that she slipped and fell in the aisle of the ear, the court said:

“A carrier, street car company, is not made liable to a passenger merely by reason of ■ the happening of an accident, and 'if it can show that the cause of the accident- was something beyond- its control, or a. as the' negligence of • the passenger injured, no liability results. It is not an insurer of the safety of passengers.”

In the light. of the foregoing authorities, and after a careful reading of the record, we are of the - opinion that the finding of the trial court that the defendant was free from fault is correct. The judgment appealed from is therefore affirmed.

WESTERFIELD, J., absent and takes no part; HUGH C. CAGE, Judge of Civil District Court, Parish of . Orleans, and Judge ad hoc, participating.


text:
    No. 13,657
    Orleans
    PEYRONNIN v. RILEY
    (January 19, 1931. Opinion and Decree.)

      Beard & O’Keefe and C. A. Peyronnin, of New Orleans, attorneys for plaintiff, appellant.
    Legier, McEnerny & Waguespack, of New Orleans, attorneys for defendant, appellee.
   JANVIER, J.

Plaintiff sues for damages sustained as the result of a bite inflicted upon her by a dog alleged to have belonged to defendant.

The defense is twofold: First, a denial of ownership of the dog; and, seco ad, a denial of the vicious character of the animal.

The judge a quo, in rendering judgment for defendant, gave reasons so complete and so thoroughly in accord with our views, not only on the facts as disclosed by the evidence, but also with reference to the law applicable to the harboring of animals and the liability of owners or harborers thereof, that we feel that the publication of those reasons will be of interest and benefit to the bar. We therefore adopt them in full:

“The law of animals is thoroughly well settled in this state, and as far as I know, the jurisprudence of this state is consistent with that of the sister states which live under the common law system, and with England in which the common law system was derived. Writers of the jurisprudence divide animals into two classes, so far as the question of consideration is concerned, namely: animals ferae naturae and animals mansuetae naturae. The first class embraces all wild, undomesticated animals, such as bears, lions, tigers, wolves, buffaloes, deer.
“The principle applied to animals ferae naturae is that they are inherently dangerous, and that any man who keeps or harbors an animal ferae naturae does so at his peril. When he undertakes to keep or harbor an animal ferae naturae he knows that he is dealing with an object or thing dangerous to humanity, and the jurisprudence is that he keeps him at his peril and if any one is harmed by animal ferae naturae, he who kept or harbored him must respond in damages.
“As to animals mansuetae naturae, that is, the class of domesticated animals, such as horses, sheep, goats, cows, bulls and dogs, they having been domesticated for untold centuries, are regarded as inherently non-offensive, and not being of a risk to human beings, and every man has the right to keep and harbor animals mansuetae naturae, some of which I have mentioned; but, the law is that any one of those domesticated animals, those animals mansuetae naturae, is liable, whether it be a horse, cow, sheep, or other such animal, to become vicious, and when they become vicious they are recognized as dangerous to humanity and then, so far as the law is concerned, fall into the category pro hac vice of animals ferae naturae; and, then, a man who continues to keep or harbor, entirely irrespective of ownership, a domesticated animal which has by its previous history evinced the fact that it has become one of the vicious class, keeps, him at his own peril.
“Now, the evidence in this case shows that a dog roaming the streets, masterless, adopted the Riley home, and being of a gentle, playful disposition, was adopted by the Rileys; and that, irrespective of ownership, the Riley family, of which Mr. Riley was the head and master, did harbor the animal, fed it, and encouraged its habitation, and encouraged its domiciling himself at the Riley home. Therefore, if it were shown by the evidence that this dog had at any time evinced a vicious or ferocious nature or characteristic so as to put Mr. Riley, the head and master of the household that harbored it, on notice that he was harboring a vicious, ferocious, or dangerous animal, he would he as liable for its tort as if he were harboring a bear, a lion, or a wolf. The evidence, to my mind, is conclusive that this dog was of an affectionate and playful disposition, and, like many dogs, especially fond of children, a characteristic often found in dogs; and the evidence shows clearly that all the children in the neighborhood for blocks around knew the dog, loved it, and played with it, and that that animal was a neighborhood favorite, especially among the children.
“Now, as I say, when a domesticated animal suddenly and without previous warning of its vicious nature, commits injury, the owner or harborer of such an animal is not liable; but, if there be any occurrence, one or many, in the past history of the animal sufficient to place the owner or harborer of the animal on notice that it is vicious or dangerous, then he is liable for the animal’s torts. The only attempt made in this case is to show that in March of 1928, fully one year and a little more from the date on which the plaintiff was bitten by the dog, that this dog had bitten Ethel, the young daughter of plaintiff. Now, the evidence in this ease shows that young Charley Riley, young Mellinger and Ethel were in the back yard in the R.iley house, that the two boys were wrestling and the dog lying in their way, that Ethel undertook to pull the dog out of the way of the two athletes, and in doing so stepped on the dog’s paw, with a resulting instantaneous snap from the dog inflicting such a slight injury on one of her legs that her own mother said that it took nearly a week to heal, and Mrs. Riley who saw the wound said it was such a mere scratch that she put iodine on it and promptly proceeded to forget about it.
“Now, the evidence shows that the mother and father of Ethel, and the mother is the plaintiff in this case, attached no importance to this occurrence, nor did they regard it as evidencing a vicious, ferocious or dangerous nature in the dog, for the evidence is overwhelming that the Peyronnin children, in common with all the children in that neighborhood, continued to play with and pet the dog after this occurrence as before, and Mr. Riley, the defendant in this case, swears that he never heard of the occurrence until after the biting of Mrs. Peyronnin, on which this suit is based, and which took place more than a year thereafter. Now, if this occurrence, of which Mr. Riley swears he never heard, and of which Mrs. Peyronnin must have known as she alleges it in her petition, made no impression upon the minds of Mr. and Mrs. Peyronnin that this dog was vicious and should have been done away with at that time, it could have made no such impression upon the mind of Mr. Riley who swears that he never heard of it; and, again, if that occurrence was sufficient to evidence a vicious, ferocious and dangerous nature in that dog it was the height of imprudence and negligence upon the part of Mr. Peyronnin, and of this plaintiff, living next door in a house without any fence in front not to have declared their knowledge of the viciousness of the dog and have demanded of their neighbor next door, next door neighbor, that the dog be done away with. So, in my opinion, the most that can be made of this case is that the defendant, Riley, adopted and harbored a domestic animal, whom he had every reason to believe was gentle, affectionate and playful, and that he cannot be held in damages for this sudden outbreak of the dog and injury to the plaintiff. There will be judgment for the defendant dismissing the suit at her costs.”

If defendant was in the slightest degree at fault in that he had knowledge, or should have had knowledge of any vicious propensities in the animal, he would be liable for the results of its actions, and it is even true that, in order to establish the liability of one who harbors a vicious animal, it is not essential that it be shown that the harborer knew of any previous bite or damage resulting from the said characteristics of the animal, if its vicious nature was manifest, or had previously been exhibited. In the syllabus in the matter of Montgomery v. Koester, 35 La. Ann. 1091, 48 Am. Rep. 253, appears the following:

• “The rule of our law, as well as of the common law, is, that he, who owns and keeps a dangerous animal knowing it to be such, is bound, at his peril, 'to keep him up safe from hurting innocent persons, and if, for want of sufficient care, the animal escape and do injury, the owner is liable.
“The scienter may be established by attendant circumstances without necessity, in all cases, of proving prior cases of injury.’’

It may also be conceded that, when a domestic animal has caused injuries, the burden rests on him who harbors the animal to show that there have been no previous outbreaks or manifestations evidencing viciousness on its part. In a syllabus written by the court in Bentz v. Page, 115 La. 560, 39 So. 599, it was said that:

“* * * it was necessary for defendant to show that the animal had always been of a kind temper, had never attempted to bite any one, and had never given occasion to suspect that he would bite; and, tailing to do so, the law presumes that the defendant was in fault in not confining the animal. * * *”

But here, as was found by the district judge, the dog had for years been the playfellow of all the children in the neighborhood, and there was not the slightest reason to suspect that it would not remain as harmless as it had always been. Under these facts, then, the owner or harborer is not liable.

“A peaceable dog may rightfully be in front of the store of its owner. At any rate, an owner cannot well be charged with neglect if his dog, which has never been known to be otherwise than gentle and kind, finds its way to the sidewalk in front of his place of business. * * Here the testimony has not fastened even the slightest blame upon the defendant. He was the owner of a domestic animal that was in front of his store, and while there bit the deceased. Upon this showing, plaintiffs are not entitled to a judgment.” Martinez et al. v. Bernhard, 106 La. 369, 30 So. 901, 55 L. R. A. 671, 87 Am. St. Rep. 306.

The judgment appealed from is affirmed.

HIGGINS, J., takes no part.


author: ELLIOTT, J.

text:
    No. 715
    First Circuit
    SUCCESSION OF SAVANT
    (January 26, 1931. Opinion and Decree.)

      Lewis J. Mayeux, of Oberlin, and A. V. Pavy, of Opelousas, attorneys for opponent, appellant.
    Wm, Alex Robertson, of Opelousas, attorney for administrator, appellee.
   ELLIOTT, J.

A. E. Darbonne opposes the final account of Henry Roy and Onezia Zerringue Roy, husband and wife, administrators of the succession of Cecile Savant, widow 'in community of Cesaire Mouille, alleging that he is a creditor of the succession in amounts the total of which is $2,995-

The total assets of the estate to be paid out on the account amounts to but $2,310.

The account proposes to pay out sums not opposed amounting to $962.31, which déducted from the total assets, leaves but $1,347.31, which it is proposed to distribute among the heirs of the decedent.

The opponent prays to be placed on the account as a creditor for the total amount claimed to be due him, and that the administrators be ordered to pay over to him the said $1,347.64 as a credit on his claim pro tanto.

The appeal has been brought to this court. Our appellate jurisdiction is not questioned. We take it that the sum of $1,347.31 constitutes the amount in dispute, and have therefore decided to act on the appeal.

The record contains a motion on the part of the administrators to dismiss the opposition on the ground that it was filed too late, and on the further ground that it discloses on its face no right of action.

The minutes of the lower court do not show that this motion was ever taken up, or acted on in any way. It is not urged in the brief of the administrators, so we look on it as having been abandoned and as not before us for review.

The administrators filed the prescription of one year under the Civil Code, art. 3534, and that of three years, Civil Code, art. 3538, against opponent’s demand.

These pleas of prescription were without objection by either side, referred by the lower court to the merits.

After trial on the merits, the district judge sustained the prescriptions pleaded against opponent’s demand for $405 on account of checks and cash advanced to the deceased from September 1, 1923, to December 10, 1925. The judgment does not say whether the prescription of one or three years, or both, were sustained to this ¡part of opponent’s demand.

As for the claim on account of board and lodging, the pleas of prescription were not acted on, but the claim was rejected on the ground that there was no intention on the part of opponent to claim anything from the deceased on said account during her lifetime or after her death.

Opponent has appealed.

Cesaire Mouille and Cecile Savant, his wife, lived in the town of Opelousas. He owned a piece of ground on which was situated the family residence, and a store building in which he formerly conducted a mercantile business.

The property belonged to the legal community of acquets and gains which existed between him and his wife. Mr. and Mrs. Mouille had no children born to them, but they took into their home and raised from early childhood a number of orphan children, the same as if they had been their own children. One of these children was Dorestine Mouille; she was taken by them immediately after her birth and was reared as if she had been their own child. They looked on her as if she had been their child and she regarded them as her father and mother, but she was never formally adopted. When she reached the age of 18 years, she married the opponent, A. E. Darbonne, upon which she left her home with Mr\ and Mrs. Mouille in Opelousas and went to reside with her husband in. the town of Oberlin.

Some four or five years after they had taken Dorestine, they also took into their home another orphan child, Claire Mouille; she was about 22 months old at the time. She was never formally adopted, but they reared her as if she had been their own child, and she looked on them as her mother and father, and on Dorestine as her sister.

Mr. Darbonne and Dorestine frequently came, after their marriage, to visit Mr. and Mrs. Mouille. Mr. Darbonne testifies that Mr. Mouille asked him, in the presence of Mrs. Mouille, to take care of his widow and Claire, telling him to be sure and keep an account of anything he spent; that he would be paid back.

Cesaire Mouille departed this life intestate in August, 1922, leaving his widow, Mrs. Mouille, who inherited, at his death, his interest in the community property. She continued to occupy the same residence in which she and her husband had formerly lived, and for income rented the store building, receiving for it from ten to twelve dollars a month. It seems from the evidence that this rent was about all the income she had, but the evidence on that subject is not clear and it may be that she had some other small means.

According to Mr. Darbonne he and his wife made it their business after the death of Mr. Mouille to assist Mrs. Mouille; she continued with Claire to keep house and manage her own affairs, but opponent and his wife helped them. Mr. Darbonne testified that she had no' sufficient income; that he found it necessary to assist her and did so by giving her money and checks and clothes, mostly money. When he could net come over he sent her checks. He mentions one amount of $40, evidenced by a check, -which he says was used for the purpose of paying one-third of the funeral and burial expenses of Mr. Mouille. He produced 17 checks which he had sent her in the way stated. In December, 1925, Mrs. Mouille, acting on the invitation of Darbonne and wife, sold out her furniture and personal belongings in Opelousas and together with Claire came to reside with him at Oberlin. After moving from Opelousas she rented her residence and store building there, receiving for some months but $20, but most of the time $30 per month. Mr. Darbonne claims in his opposition that after the death of Mr. Mouille and while Mrs. Mouille continued to live with Claire in Opelousas, he advanced her about $15 a month, a total of $405. The checks which he produced, added up, amount to but $125, counting the one for $40 sent to assist in paying the funeral and burial expenses of Mr. Mouille. This check for $40 is allowed on the account. Only one check, that for $40 used for the purpose of paying one-third of the funeral and burial expenses of Mr. Mouille, was sent to Mrs. Mouille in 1922. In 1923 we find but two checks, for $5 each. In 1924 we find but eight, of which seven -are for $5 each and one for $10. In 1925, we find but six, of which five are for $5 each and one for $10, a total of $125.

There is no evidence showing any cash given or sent to Mrs. Mouille during tlrs time, except the parol evidence of Mr. Darbonne. Miss Claire corroborates him in a very general way; but her corroboration, while not altogether, yet it has reference almost entirely to what he did after Mrs. Mcuille and herself left Opelousas in December, 1925, and came to reside at his house in Oberlin. Mr. Mouille, he says, in asking him to take care of his widow and Claire, told him to be sure and keep an account of anything he spent; that he would be paid back. But opponent has produced no account, data, nor memoranda of any kind except checks. The general nature of his testimony on the subject of sums advanced while Mrs. Mouille and Claire lived at Opelousas appears from the following question and answer:

“Q. Can yon testify as to the approximate. amount of money or clothing or other things you contributed to Mrs. Mouille from 1922 to 1925?
“A. About $15 a month, at least that much.”

The law looks with decided disfavor on claims of this kind, brought forward against an estate after the death of the person to whom the advances are claimed to have been made, of which there is no proof except the unsupported parol evidence of the claimant. In such cases the claim must be established with convincing certainty, and the unsupported parol evidence of the claimant is not ordinarily deemed sufficient to do so.

In this case, opponent’s advances for the purpose of helping Mrs. Mouille, commencing with the check for $40, dated September 14, 1922, and continuing until December 10, 1925, at -which time she went to live with him at Oberlin, as shown by the checks amounting to $125, is satisfactorily shown; but beyond that amount, the evidence is not sufficient.

The administrators contend, and the lower court held, that opponent’s action for the recovery of the amounts so expended was prescribed and barred by the prescriptions urged against the claim.

On this question we differ with the lower court.

The prescription of one year, C. C., art. 3534 et seq., has no application, Decause Mrs. Mouille was living in her own house with Claire, and with the occasional help from opponent, was maintaining herself.

According to the evidence of Mr. Darbonne, there was no contract of loan such as the Civil Code provides for under the Book 3, title 12', called loan. The loan for consumption, art. 2910 et seq., is based on a contract of borrowing. There was no contract of borrowing, consequently the prescription of three years provided by Civil Code, art. 3538, “for the payment of money lent,” has no application.

At the same time the small amounts called for by the checks, the periods of time that elapsed between them, shows that Mr. Darbonne was not maintaining Mrs. Mouille and Claire while they lived at Opelousas. The remittances sent seemed to have been sent voluntarily. The help was presumably needed and was welcome and accepted, but the remittances cannot be regarded as alimony.

We think the sums expended for the help of Mrs. Mouille, to the extent evidenced by the checks produced, represent a personal obligation on her part, the amount of which Mr. Darbonne can justly reclaim from the estate. The obligation created in the way stated constituted a quasi contract. Civil Code, arts. 2292, 2293. The obligation under a quasi contract is a personal obligation and is not prescribed except by ten years. Civil Code, art. 3544; Owen v. Holmes, 12 Rob. 148; Toledano v. Gardiner, 2 La. Ann. 779; East Baton Rouge, Police Jury of, v. John McDonogh, 10 La. Ann. 395; Sandidge v. Hunt, 40 La. Ann. 766, 5 So. 55; Succession of Moise, 107 La. 717, 31 So. 990; Lagarde v. Dabon, 155 La. 25, 98 So. 744; Roussel v. Railways Realty Co., 165 La. 536, 115 So. 742; Greenfield Box Co. v. Independence Veneer & Box Mfg. Co., 4 La. App. 690.

Plaintiff’s claim for $405 was not established, except to the extent of $125, and to that extent it was not prescribed. The court rejected the entire amount claimed, which included the $40 placed on the account, which is opposed.

The judgment appealed from will be amended to the extent necessary in order to enable the opponent' to recover $125 of the $405 claimed.

In regard to the other count for $1,480 for the board and lodging of Mrs. Mouille after she came to live in the residence of opponent, and that for $1,110 for board and lodging of Miss Claire Mouille at his residence in Oberlin during the same time, the prescriptions of one and of three years is urged by the administrators against these amounts; but the view we take of these demands makes it unnecessary to act on the prescriptions urged against them.

On' this subject the testimony of Mr. Darbonne receives support from that of Claire, but at the same time there is no written evidence on the subject, ana the law as heretofore stated looks with disfavor on claims of this kind, and the proof must be very satisfactory.

It appears that when Mrs. Mouille was invited to take up her residence with opponent, the invitation included Miss Claire —this was necessary because of the family relation. She was entirely dependent on Mrs. Mouille.

Mr. Darbonne testifies as follows:

“Q. At whose invitation did Mrs. Mouille come to live with you and your wife in 1925 and bring with her her other foster daughter, Claire?
“A. She was complaining she was barely living and could not hardly exist on what we were giving her, so I suggested she come and live with us.
“Q. So she came to live with and brought Claire with her at your invitation and that of your wife’s?
“A. Yes.”

Mrs. Mouille and Claire accepted this invitation and went to live with opponent and his wife, and the evidence on the sub. jeet justifies saying that it was extended, accepted, and done just as a daughter would invite her mother and sister to come and take up their residence with her and her husband.

The evidence shows that Mrs. Mouille, at the time she went to live at Oberlin, was not in good health, was very heavy, walked with difficulty, suffered with heart trouble, and required more or less atten tion both day and night. She seldom left her room. During the morning before and after school, she was cared for by Claire, who occupied the room with her. But while Claire was at school Mrs. Darbonhe looked after her.

The evidence shows that Mrs. Mouille has a number of relatives, a whole brother, several half brothers and sisters, and a number of nieces and nephews. She was on friendly terms with them, and each year after she broke up housekeeping she and Claire went to visit these relatives and spent with them from six weeks to two months.

The evidence further shows that Mrs. Mouille, after going to live with opponent, managed, with the rent that she monthly received from her property in Opelousas, to buy and pay for her own clothing and that of Miss Claire. She also paid her taxes, insurance, and for her medicine; in fact, she paid all her expenses and that of Miss Claire, except their board and lodging, on account of which nothing was paid.

As for the claim for nursing and attention, the evidence justifies the conclusion that Miss Claire did most of that. There was no agreement between opponent and Mrs. Mouille as to any particular amount to be paid for board and lodging, nursing, etc. Mr. Darbonne says on this subject;

“Q. Was there any agreement or understanding between you and Mrs. Mouille as to what recompense you would receive for the board and lodging which you furnished her and Miss Claire?
“A. Yes, sir.
“Q. What was the agreement?
“A. She was supposed to fix up her 'place so as to let Claire finish her schooling and take care of us for our trouble.
“Q. Did she ever on any occasion offer to sell her property and pay you?
“A. She had several wanting to buy the property and she had one offer of $2500 and she wanted to sell it and turn the money over to me, but I told her I thought the property was worth more than that.”

In another place he says:

“Q. As a matter of fact did you and your wife not render those services to Mrs. Mouille and Claire out of love and affection to them, and out of gratitude to them and without any expectation of making a charge to her estate?
“A. I did not expect to make a charge, but I expected to get the place for compensation for what we had put out. I expected that.
“Q. What reason did you have to expect that you would get the place at Mrs. Mouille’s death?
“A. She spoke several times about making a will, but she never fixed it and we never felt like asking her to go and fix it up.”

Miss Claire Mouille says on this subject:

“Q. Did she (referring to Mrs. Mouille) make any agreement of any sort to compensate him (meaning Mr. Darbonne) ? Was there any understanding as to how he was going to be compensated for boarding you and her?
“A. The only thing she said was, when she died she would will this property to my foster sister and me.”

The evidence shows that Mrs. Mouille had ample opportunity to make a will if she had desired to make one; but she never took it on herself to do so.

“Unequivocal words, expressive of mere intent, do not make an obligation.’’ Civil Code, art. 1814.

The most that appears from the testimony .of Dr. Darbonne and Claire is that Mrs. Mouille expressed her intention of making a will, but that did not create any obligation on her part to do so for the purpose of paying Mr. Darbonne for the board and lodging of herself and Olaire. Neither did this expression on her part release Mr. and Mrs. Darbonne from their obligation, under the law, to maintain her if she was in need.

“Children are bound to maintain their father and mother * * * who are in need.” Civil Code, art. 229.
“By alimony we understand what is necessary for the nourishment, lodging and support of the person who claims it.” Civil Code, arts. 230, 231, 233.

Mrs. Mouille, according to Mr. Darbonne, became feebie and in need, and it was more convenient to take care of her in his own home at Oberlin than if she resided in her own home at Opelousas. So she came and made her home with them at Oberlin, and from that time on to her death they furnished her and Claire board and ■ lodging during, say, ten' months of the year, but were not put to any other expense.

In Succession of Daste, 125 La. 657, 51 So. 677, 29 L.R.A. (N.S.) 297, the court used the following language (we quote from the syllabus): .

“There is a presumption that the kindly services rendered by a foster daughter to her foster father during his last illness are gratuitous, and the law will not allow recovery for such services in the absence of an express promise to pay for them, or the presence of such circumstances as will be equivalent to such a promise.”

For similar holdings, see Succession of Guidry, 40 La. Ann. 671, 4 So. 893, and Succession of Brand, 162 La. 880, 111 So. 267.

The judge of the lower court, in stating his, reasons for judgment, said that he was satisfied that there was no obligation on the part of Mrs. Mouille to pay opponent for board and lodging on account of herself and Claire. That it was not so intended at the time she went to live with them, and at no time during the time she lived there.

We are satisfied from all the evidence that the holding of the district judge on this subject was correct.

For these reasons the judgment appealed from, holding that the demand of A. E. Darbonne, opponent, for $405 on account of advances made to Mrs. Mouille after the death of Mr. Mouille, while she lived in Opelousas and before coming to reside with him at Oberlin, is prescribed, is annulled, avoided, and set aside, and it is now ordered, adjudged, and decreed that he recover of the said administrators of the succession of Mrs. Cecile Savant the sum of $125, the amount to include the S40 allowed on the account. And it is further ordered that the succession pay the cost of his said opposition and the cost of appeal. The judgment appealed from is in all other respects affirmed. The demands of the opponent are in all other respects refused.


author: HIGGINS, J. JANVIER, J.,

text:
    No. 13,606
    Orleans
    DYESS v. LANDRY
    (February 2, 1931. Opinion and Decree.)
    F. A. Middleton, of New Orleans, attorney for plaintiff, appellee.
    Gordon Boswell, of New Orleans, attorney for defendant, appellant.
   HIGGINS, J.

This is a suit to recover damages for personal injuries and property loss as a result of an automobile collision between the defendant’s car and an automobile in which plaintiff was riding as a guest, which occurred in the city of New Orleans near the Seventeenth Street Canal bridge about midnight November 23, 1929. While the defendant denied liability, on the trial of the case there was nn evidence offered to rebut the testimony of the plaintiff’s witnesses, and the lower court found that the accident was caused through the negligence of the defendant’s minor son, who was operating the defendant’s car at the time of the accident. Counsel for defendant, neither in his brief nor in his argument at the bar, questioned the defendant’s liability, but contended that the amount awarded by the trial judge was excessive. Plaintiff was awarded below the sum of $635 for damages to clothing, medical expenses, and loss of salary, and the sum of $3;500 for pain and suffering, physical injuries, and permanent disfigurement from a scar on her right cheek.

As the record clearly establishes the defendant’s liability, which, as a matter of fact, he practically concedes, we shall pass to a discussion of whether the amount awarded the plaintiff was sufficiently proven, and, if so, whether manifestly excessive.

The testimony of plaintiff as to the cost of drugs, serum, anesthetic, hospital fees, and expenses of trained nurses is corroborated by the hospital bill. Counsel complains of the allowance of the sum of $200 for damage to plaintiff’s clothing, which is alleged to have been ruined by blood stains and in having been cut and torn in the accident. Plaintiff’s testimony was that the value of the clothing destroyed was approximately $200'. As to this item she was not cross-examined, and no evidence was offered to rebut her statement. A similar complaint is registered against the claim of $250 for loss of earnings as resident trained nurse for a local hospital for two months, the period of her incapacity. Again we say there is nothing ot contradict her evidence in this respect, and the amount appears to be' reasonable. We therefore find that the amount of $635 awarded for these losses was sufficiently proven and is not excessive.

As to the items of pain, suffering, shock, nervousness, physical injuries, and permanent disfigurement, the record shows that plaintiff is an attractive young lady, 23 years of age, unmarried, and a trained nurse, enjoying, previous excellent health. On the night in question she was riding in the automobile of Dr. L. R. Roeling, who is a dentist with offices in New Orleans. They both testified that the automobile in which they were riding was struck a terrific blow by the defendant’s car, and that both of them were knocked unconscious. Plaintiff was removed from the automobile to a taxicab and taken to the French Hospital, where her right cheek, which was severely lacerated, was sutured, serum injected, and her other injuries given attention by Dr. Bates. Dr. M. Q. Miller, who attended her from the morning following her injury until her recovery, described her injuries .as follows:

“A lacerated wound of the right side of the face which had previously been sutured (the doctor meant that the wound had been sutured by another physician previous to the arrival of Dr. Miller), and she had a laceration of the nose and a smali laceration of the left side of the cheek and a laceration of the tongue and a laceration of the lower lip, brush burns of the knees and a contusion of the neck and from the history of the case, a concussion of the brain.’’

As to the concussion of the brain Dr. Miller said:

“Q. If the effects of the concussion disappeared in 48 hours, why did Miss Dyess have to remain in bed for some ten days in the hospital?
“A. After a head injury, it is not good policy to let the patient up under ten or fifteen or twenty days. The brain is a delicate organ, and when it receives an injury, the patients have to remain at rest fbr a long period of time.
“Q. That was a precautionary measure, wasn’t it, keeping Miss Dyess in bed for ten days?
“A. She had an injury to her back, and this concussion, and I don’t think that she should have been allowed to walk under ten or fifteen days.”

The plaintiff’s testimony corroborated the doctor’s, and she further testified as follows:

“Well, I suffered severe pains in the head, in the abdomen and a blow in the neck and a blow on the knees and in my back and in the laceration of the face and a good deal from the laceration in the tongue and the lip, especially so, because I wasn’t able to swallow for about eight days, nothing except water and liquids.”
“Q. Were those pains mild?
“A. No, they were very severe. I was extremely nervous and am until yet, not as much as I was at first immediately following the accident.
“Q. For six or eight weeks after the accident you were extremely nervous?
“A. Yes.
“Q. You say you still suffer from some nervousness?
“A. Yes.”

Dr. Miller also testified that the scar on plaintiff’s cheek was about two and one-quarter inches in length and about a sixteenth of an inch in width, and that it is permanent.

The trial judge, in his reasons for judgment stated:

“The plaintiff is a very comely young lady, only twenty-three years of age and unmarried. The scar upon her right cheek appears as shown upon the photograph introduced in evidence and is very noticeable even at a distance of from thirty to fifty feet. There is a discoloration of the skin and the scarred portion of the flesh of the cheek bulges slightly.- Dr. Miller testified that the scar is permanent but that its appearance might be improved by plastic surgery, which, of course, would involve an additional operation together with the expense and suffering incident thereto.”

The record further shows that the plaintiff was confined to her bed in the hospital for ten days and remained there convalescing for an additional eight days, from whence she was removed to her home. On account of her injuries, she was unable to work for two months.

While there is no set rule for awarding damages, and each cas'e must be judged by the special circumstances attending it, and although the law clothes the trial judge with discretion in assessing damages in tort actions, yet there should be some uniformity. Joynes v. Toye Bros. Auto & Taxicab Co., 11 La. App. 124, 119 So. 446. After carefully considering all the evidence in the case, we have reached the conclusion that the award of $3,500 is excessive in the light of the cases of Dill v. Colley, 3 La. App. 310; Duvic v. Friedrichs & Dupas, 9 La. App. 394, 120 So. 494; Landry v. Checker Cab Co., 10 La. App. 723, 122 So. 912; Mutti v. McCall, 14 La. App. 504, 130 So. 229; Escalante v. Richard, 14 La. App. 579, 580, 130 So. 567. Without attempting to separate the items of damage for pain and suffering, physical and mental shock, nervousness, physical injury, and permanent disfigurement, we believe that the sum of $3,000 is adequate to cover these items, which, together with the amount of $635, which we have hereinbefore approved, makes a total of $3,635.

Counsel for defendant contended that the damages should be restricted to strict compensation, and was vicariously liable, as the defendant was a person in impecunious circumstances, citing Gallman v. Young, 6 La. App. 137; Thiel v. Shiff, 7 La. App. 582. The only evidence offered by defendant in this connection was his testimony to the effect that he was an engineer by occupation, had his own office, and worked for himself; that during the last six months he had earned a living for himself and his family, consisting of a wife and four children, but had not made expenses. However, the defendant does not say that he does not have any property, stocks, bonds, etc., and that he was in a poor or ordinary financial condition. Our learned brother below was of the opinion that a reasonable moneyed judgment would not be onerous to the defendant, and, as this presents only a question of fact, i. e., the defendant’s financial ability to respond in damages, we cannot say that his opinion in that respect was erroneous.

It is therefore ordered, adjudged, and decreed that the judgment of the district court be amended by reducing the same from $4,135 to the sum of $3,635, and, as thus amended, it is affirmed.

JANVIER, J.,

dissenting. For two reasons I cannot concur in this decree:

First, because I think that the amount allowed is in excess of what is warranted by the facts and is considerably in excess of awards made in other cases for similar injuries; and

Second, because I believe that the judgment of a trial court on a question of amount in a tort action should neither be increased nor reduced, unless by a substantial amount.

A question of quantum is a question of fact. Loney v. High, 13 La. 271. The finding of a trial court on a question of fact should not be interfered with unless manifestly erroneous. Bobbs-Merrill Louisiana Digest, vol. IX, “Appeal,” sec. 625.

If a judgment for $4,135 is manifestly erroneous because excessive, then a reduction of only $500 is only a step in the right direction, and falls far short of entirely correcting the error. I believe that a total award of $2,500 for all expenses and losses and injuries would be proper.

I therefore respectfully dissent.