author: t JANVIER, J.

text:
    No. 13,741
    Orleans
    DAVIS v. COHEN
    (November 3, 1931. Opinion and Decree.)
    Frederick G. Veith, of New Orleans, attorney for plaintiff, appellant.
    Cobb & Jones and H. B. Baginisky, of New Orleans, attorneys for defendant, appellee.
   t JANVIER, J.

Plaintiff, the mother of a tenant of defendant, reeeivéd injuries to her back and other parts of her body and, alleging that they had resulted from a fall sustained because of defective stairs on the premises, she seeks to recover from the landlord the sum of $300.

Defendant in his answer admitted that the steps “were somewhat loose,” but averred that plaintiff had been warned not to use them - until the necessary repairs could be made and that ’two other means of ingress and egress were available to her.

The lower court rendered judgment dismissing the suit and plaintiff has appealed.

While there is considerable irreconcilable testimony as tq the condition of the steps at the time of the alleged fall, we feel that in' view of defendant’s admission that “the steps were somewhat loose,” the sole question left for our consideration is that presented by defendant’s averment that plaintiff had been several times warned not tq use the said steps. This averment is a plea of contributory negligence.

The testimony with regard to the giving of the warning is hopelessly conflicting. Both plaintiff and her daughter state positively that no such warning was given while defendant’s mother, who collected the rents, as well as two other witnesses, one of them the helper of a carpenter who had been employed 'to make the repairs, are certain that the said warning was given and that, the occupants of the house, particularly plaintiff, were told not to make use of the steps, but to use either of the other two passages to and from the room occupied by them.

It is conceded that there were two other means of entrance, although both are said to require the user to follow a route slightly longer than that available by the usé of the steps in question.

It is proven that at the time of the alleged injury lumber for the purpose of making the repairs had already been delivered on the premises and that the carpenter had been instructed to proceed with the work.

We doubt from the evidence whether plaintiff, at the time of the accident, was actually using the steps, as it appears to us that she seems to have realized that they were defective because she does not claim that she was descending by means of them, but merely that she was standing on them and reaching over the fence or through a hole in the fence which was some distance away. If she had not realized that the steps were defective it would have been easier for her to have descended by them to the ground and walked over to the fence instead of trying to reach it from the top of the steps.

Reading the evidence as a whole we feel that it amply supports the finding that the warning had been given and that plaintiff was at fault in using the steps.

WJe are well aware of the decision rendered by our Supreme Court in Boutte v. N. O. Terminal Co., 139 La. 945, 72 So. 513, 516, in which it was sought to defeat recover-y for the death of a tenant on the plea that the tenant, who used a gallery with knowledge of its defective condition, was guilty of contributory negligence and in which case our Supreme Court said:

“To assume that the lessee, in this case, knew that the balcony was so rotten that it could -not withstand her weight would be to assume that she committed suicide.”

We, feel, however, that the facts of -this case bring it rather within the doctrine announced in Parker v. Kreber, 153 La. 191, 95 So. 601, 602, in which under facts sufficiently resembling those presented here, a plea of contributory negligence was sustained. In that case the wife of the tenant was injured when a rail on which she was leaning gave way. She knew that the rail was defective and that the. carpenter with whom, at the time, she was conversing, had come for the purpose of repairing it, the court said:

“While plaintiff may be mistaken in testifying that all of the spindles were missing, yet with the above knowledge in her possession, she must have known that it was unsafe to lean against or over the railing, and her negligence, in having done so, prevents her from recovering judgment.’’

Here, we find as facts that plaintiff knew of the condition of the steps and had been warned not to use them; that she must have known that the lumber to make the repairs was on the premises; and that other safe routes were open to her.

We believe that the necessary consequence is that she cannot recover.

The judgment appealed from is affirmed.


source: Caselaw Access Project

author: JANVIER, J.

license: Public Domain

text:
    No. 13,747
    Orleans
    GAUGHAN v. J. J. LIPS, INC.
    (November 3, 1931. Opinion and Decree.)
    Edwin J. Prinz, of New Orleans, attorney for plaintiff, appellee.
    Joseph Morales, of New Orleans; attorney for defendant, appellant.
   JANVIER, J.

Plaintiff sues for $110 claimed to be due him by defendant corporation for services rendered as bookkeeper. The answer is in effect a general denial. Although plaintiff summoned as witnesses defendant’s secretary-treasurer and issued a subpoena duces tecum in which defendant was called upon to produce its books, when the matter came on for trial defendant produced no witnesses, and did not tender the books in compliance with the subpoena duces tecum. Plaintiff thereupon submitted evidence in support of his claim, and judgment was rendered in his favor, as prayed for.

Thereafter defendant suspensively appealed to this court. When the matter was called for hearing before us, no brief was filed on behalf of defendant, and counsel for defendant contented himself with stating that -he submitted the matter on the record.

The evidence amply justified the judgment rendered below, and it must be affirmed.

Counsel for plaintiff in his brief and oral argument asks that the judgment be amended by the allowance of damages for the delay caused by the appeal, which was plainly frivolous. However, no answer to the appeal was filed, and, in the absence thereof, the damages cannot be awarded.

The judgment appealed from is affirmed.


author: WESTERFIELD, J.

text:
    No. 13,736
    Orleans
    MONTICELLO v. SPANO
    (November 3, 1931. Opinion and Decree.)
    Stanley McDermott and John C. Moulin, of New Orleans, attorneys .for plaintiff, appellee.
    John J. Wingrave, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

This case grows out of an intersectional collision and is a suit for damages in the sum of $105.50, alleged to have been sustained by plaintiff’s car, a Peerless sedan, which collided with a Ford truck belonging to defendant, at the corner of Conti and Decatur streets at 2:00 a. m., August 17, 1930. There was judgment below in favor 'of plaintiff and defendant has appealed.

At the time of the accident the Peerless was driven by plaintiff’s daughter, Miss Margaret Monticello, and was occupied by five other young people. The party had been to a roadhouse and afterward to the French Market for a cup of coffee, and were on their way home when the accident occurred. All of .the occupants of plaintiff’s car testified in substantial agreement that the Peerless was driven at a moderate speed and the truck at a very rapid rate; that, as the two cars approached the intersection, the horn of the Peerless was blown and the horn of the truck was not. On the other hand, the four occupants of the Ford truck testified that the truck was going very slowly and the Peerless very fast, and attribute the accident to the excessive speed of the Peerless, which one witness placed at 45 miles per hour.

As often appears in similar cases, the testimony of the witnesses is, for the most part, irreconcilable. It is not disputed, however, that the Peerless was struck in the rear right side, indicating, as plaintiff’s witnesses claim, that it had almost completed the crossing when defendant’s truck entered. This circumstance is sufficient to turn the scale in plaintiff’s favor, even were the evidence otherwise in balance. Felder v. Horn et al., 16 La. App. 603, 135 So. 121; Seawell v. Louisiana Coca-Cola Bottling Co., 15 La. App. 704, 133 So. 176; Krousel v. Thieme et al., 13 La. App. 680, 128 So. 670.

The judgment appealed from is affirmed.


author: HIGGINS, J.

text:
    No. 13,733
    Orleans
    FEDERATED METALS CORP. v. CHAMBERS
    (November 3, 1931. Opinion and Decree.)
    Merrick, Schwarz, Guste, Barnett & Redmann, of New Orleans, attorneys for plaintiff, appellant.
    Lazarus, Weil & Lazarus, of New Orleans, attorneys for defendant, appellee.
   HIGGINS, J.

This is a suit to recover damages alleged to have resulted from the breach of a contract. The petition alleges that on or about December 10, 1924, a written contract was entered into between the plaintiff and defendant, whereby defendant agreed to sell and plaintiff agreed to buy a carload of dry battery plates, to be delivered at Chicago at $121 per ton, all as evidenced ' by a series of telegrams which are annexed to and made part of the petition; that on December 13, 1924, defendant refused to carry out the contract; that as a result of»1 defendant’s refusal plaintiff suffered damages in the sum of $291, “the difference between the contract price and a higher market value at Chicago, Illinois, at the time of the breach.”

Defendant filed exceptions of vagueness and no right or cause of action and, reserving the benefit of them and only in compliance with the rules of the court requiring the answer to be filed at the same time as the exceptions, answered denying that he had entered into a contract with the plaintiff.

There was judgment dismissing the suit arid plaintiff has' appealed.

The sole issue before the court is whether or not Ben Holz, the sender of the telegrams, was acting as the authorized agent of the defendant and whether defendant is estopped to deny authorization.

The evidence introduced by the plaintiff consisted of the testimony taken by deposition' of its assistant general manager, who stated that the respective telegrams were exchanged between the plaintiff company and the defendant and identified them together with a letter which he had written on December 10, 1924, confirming the contract evidenced by the telegrams, and also a letter received from the defendant on December 13, 1924.

The evidence of the defendant consisted of the testimony of Ben Holz and his own to the effect that the Crescent Battery Manufacturing Company, of which defendant was a stockholder, was liquidated and defendant purchased the assets of the company on November 25, 1924; that he conducted a battery business under the trade name of the Crescent Battery & Light Company, as successor to the Crescent Battery Manufacturing Company; that Ben Holz was an itinerant junk dealer who came to the defendant’s place of business on or about December 9, 1924, and, seeing a lot of old batteries, asked the defendant if he would be interested in selling it as junk; that the defendant replied in the affirmative and requested Holz to see what prices or offers he could obtain; that Holz then sent a telegram to the plaintiff on December 9, 1924, requesting a price on clean dry battery lead plates; that the plaintiff quoted a price of $121 per ton, which offer Holz, in a telegram the same day, accepted; that on December 10, 1924, the plaintiff company wrote a letter confirming the contract; that the defendant was out of the city when the exchange of telegrams took place and did no.t know of their existence until his return to the city; that he did not direct, empower, or authorize Holz to sell the battery plates, but simply to get prices on them; that Holz was not employed by defendant and had no previous business relations with him; that on December 13, 1924, after having been apprised of what Holz had done, defendant reprimanded him and sent a letter to the plaintiff repudiating the agreement.

On cross-examination, counsel for plaintiff elicited from Holz that he sent the telegrams and received the replies thereto at the defendant’s place of business, and that Holz used the company’s name because he could more readily make a draft. The .defendant acknowledged writing the following letter:

“December 13, 1924.
“Federated Metals Corporation, St. Louis, Mo.
“Gentlemen:
“Your letter of the 9th inst., answering wire of the Crescent Battery Mfg. Co., received. I was out of the City at the time telegram was sent. On my return I find the sender of the telegram was mistaken in thinking he had a carload of lead. I regret very much the trouble it caused you, and if you will send me bill for cost of the telegrams I will be glad to reimburse you.
“Yours truly,
CRESCENT BATTERY & LIGHT COMPANY
(Signed) O. L. Chambers, Proprietor.”

Counsel for plaintiff now argues that, since defendant authorized Holz to see what price he- could obtain for the battery plates and the telegrams were sent and received at defendant’s office and defendant did not state in his letter of December 13th that Holz was unauthorized, these circumstances show that Holz was authorized, and, if not properly authorized, that defendant was estopped to deny authorization, because he did not promptly repudiate the contract.

The question involved is primarily one o? fact, dependent upon the credibility and veracity of defendant and his witness. As the defendant and Holz both testified before the learned trial 'judge, who apparently believed them, we do not think the fact that the telegrams were sent and received at defendant’s office and the defendant’s failure, in his letter of December 13th, to expressly state that Holz was not authorized, is sufficient for us to say that the judge a quo was manifestly in error in giving weight and credence to their testimony. We feel that the defendant, upon learning what Holz had done, as promptly as possible repudiated the contract.

For the reasons assigned the judgment is affirmed.


author: DUNBAR, Judge ad hoc.

text:
    No. 13,746
    Orleans
    GRENNON v. NEW ORLEANS PUBLIC SERVICE, INC.
    (July 20, 1931. Opinion and Decree.)
    (October 19, 1931. Rehearing Refused.)
    (November 30, 1931. Writ of Certiorari and Review Refused by Suprerde Court.)

      Milner & Porteous and P. M. Milner, of New Orleans, attorneys for plaintiff in rule, appellee.
    Ivy G. Kittredge, of New Orleans, attorney for defendant in rule, appellant.
   DUNBAR, Judge ad hoc.

The plaintiff, Joseph Grennon, obtained a judgment against the New Orleans Public Service, Inc., for $13,500 in the district court, and on appeal to this court the judgment was amended by reducing the judgment of the district court to $7,500, and, as thus amended, the judgment was affirmed. No interest was - prayed for and no interest was given in either the judgment of the district court or the judgment of the Court of Appeal. The case is reported in 10 La. App. page 641, 120 So. 801. The defendant corporation paid the principal amount of the judgment ana costs, and receipt was given for the amount paid. No interest was embodied in the payment and no receipt given for interest, nor was "there any protest at the time of receipt of payment by the plaintiff that interest had not been ,paid. At the time the payment of the amount of the judgment was made and accepted, plaintiff states that he was ignorant of the existence of Act 206 of 1916, which he claims creates in his favor a legal right to interest on the judgment from judicial demand. After counsel for plaintiff became aware of the existence of this act, he made demand on the defendant to pay interest on the judgment on the ground that under Act 206 of 1916 legal interest from date of judicial demand automatically attaches to the judgment. The demand was refused, and a rule for payment of interest on the judgment was taken, and the rule was made absolute. The defendant, New Orleans Public Service, Inc., has appealed from this judgment.

Counsel for defendant-appellant contends that the judgment of the district court is erroneous on two grounds, to-wit: (1) That Act 206 of 1916, properly interpreted, should be construed so as to prevent plaintiff from recovering interest, because he failed to pray for it in his petition, and because interest was not mentioned in the judgment; and (2) the acceptance by plaintiff from defendant of the full amount of the principal due on the judgment in payment of said judgment, without reservation or protest, amounted to a waiver of interest.

Act 206 of 1916 reads as follows:

“Be It Enacted, by the General Assembly of the State of Louisiana, that legal interest shall, hereafter, attach from date of judicial demand, on all judgments, sounding in damages, ‘ex delicto,’ which may be rendered by any of the courts of this State. (Italics ours.)
“Be It Further Enacted, etc., that all laws in conflict with the provisions of this act are hereby repealed and this act shall take effect from date of the passage thereof.”

The • Legislature could not have selected stronger or more significant language than the words “shall attach” to indicate an intention that interest automatically becomes due and payable on a judgment sounding in damages from the date of judicial demand, irrespective of whether or not it is prayed for in the petition or mentioned in the judgment. The words “shall attach,” as defined in the cases and dictionary (see Webster’s Dictionary and Words and Phrases, 1st, 2nd and 3rd Series, Attach), mean that interest becomes automatically “annexed to,” “connected with,” “joined to,” or “made a part of” the judgment, and the inference is inescapable from the use of these words alone, without any subsequent qualifying or restrictive language, that interest need not be prayed for or mentioned in the judgment to entitle a successful litigant in an action ex delicto to claim it. In order to counteract and qualify the plain meaning of the words “shall attach,” and the logical and necessary inference and meaning flowing from the use of these words, the Legislature would have had to specifically and expressly provide that, although “interest shall attach,” it will, nevertheless, be lost or waived in case of a failure to claim it. No such exception is provided for in the Act of 1916, and such an exception (which is inconsistent with the plain meaning of the words “shall attach”) cannot be inferred or, implied by a court and read into the law without doing violence to the plain meaning and intendment of the words used in the act, which, in the absence of ambiguity, are the real test of legislative intent.

Article 13 of the Louisiana Civil Code, under chapter 4 relative to the application and construction of laws, provides:

“Spirit and Text. When a law is clear and free from all ambiguity, the letter of it is not to be disregarded, under the pretext of pursuing its. spirit.”

It is also elementary that unless there is uncertainty or ambiguity in the words of a law, courts are not at liberty to consider or compare laws in pari materia. See article 17 of the Louisiana Civil Code.

In Webster’s Dictionary, already referred to, after defining the word “attach” in general terms along the lines we have indicated, Cooley is referred to in connection with the legal meaning of the word, who defines it from a legal standpoint as follows :

“To come into legal operation in connection with anything; to vest; as, dower will attach.”

A court should not lightly assume; and, under the guise of statutory interpretation, read into a statute, which in plain and unambiguous language gives a right without qualification or reserve, a presumption of a waiver or loss of such right (based on a single fact or circumstance such as a failure to pray for interest as in the instant case), except in an extreme case and for the most' convincing reasons.

Counsel for defendant, evidently proceeding on the theory that the language of Act 206 of 1916 is ambiguous, argues that, as a matter of reason and analogy, the Act of 1916 should be interpreted as establishing a rule similar to the rule announced in the articles of the Code of Practice in relation ■to the allowance of interest on debts, which is waived if not prayed for in accordance with the express and detailed provisions of the Code of Practice; or to state the argument of counsel^ for defendant in another way and with reference to the articles of the Code in relation to costs, he contends that the Act of 1916, properly interpreted, does not contemplate that interest in actions ex delicto shall attach and be recoverable, in the same way as the costs of the suit are recoverable, as provided for in the Code of Practice.

In the first place, unless the words, shall attach are ambiguous under the well-settled rules of statutory interpretation (Articles of the Civil Code arts. 13 to 18, inclusive), we have no right to consider the language used or the principle announced in the articles of the Code of Practice, referred to by counsel for plaintiff, as an aid in interpreting and determining the meaning and intent of Act 206 of 1916. If we disregard, however, the difficulty in finding uncertainty and ambiguity in the words and language of the Act of 1916 for the moment, and consider the articles of the Code referred to by counsel, we find they are not, upon analysis, helpful in the interpretation of the language of the act, but, on the contrary, support plaintiff’s theory of the meaning and effect of the act. The language used in the articles of the Code of Practice in relation to interest on debts and the costs of suit is very specific and detailed in describing the conditions under which interest and costs are payable and when interest is waived, and the phraseology used in the Code of Practice is substantially different from that used in the Act of 1916.

Article 554 of the Code of Practice reads as follows:

“Interest at the rate of five per cent shall be allowed on all debts from the time they become due, unless otherwise stipulated.” (Italics ours.)

Article 553 of the Code of Practice reads as follows:

“Interest shall not be allowed by the judgment, unless the same have been expressly claimed, and then only in cases in which the law permits such interests to be stipulated.” (Italics ours.)

Article 157 of the Code of Practice reads as follows:

“If, in an action of debt, the plaintiff fail to claim the interest due to him, or to amend his petition, in order to include it, he cannot, after judgment,, demand such interest by another action; he shall be considered as having remitted it.
“But, as relates to the costs of the suit, it is not required that they should have been claimed in the petition or answer, in order to recover them; they are due to him in favor of whom the judgment has been rendered, even if nothing is said on the subject in the judgment.” (Italics ours.)

Article 549 of the Code of Practice reads as follows:

“In every case the costs shall be paid by the party cast, except where compensation has been allowed, or real tenders made, as heretofore provided by this Code.
“All appellate courts of the State shali have the power to tax the costs of the lower or appellate court or any part thereof, against any party to the suit, as in its judgment may be deemed equitable.” (Italics ours.)

Article 551 of the Code of Practice reads as follows:

“If the court have not decreed in their judgment that the party cast should pay the costs, the same are nevertheless due to the party in whose favor the judgment had been given; and such party shall be entitled to have the same taxed, on execution of the . judgment.” (Italics ours.)

It should be particularly noted that after stating in article 554 that “interest at the rate of five per cent shall be allowed on all debts from the time they become due,” which language in itself, because of the use of the word “allowed,” inferentially indicates that interest must be prayed for, the Code of Practice goes further and specifically provides in article 157, that “if, in an action of debt, the plaintiff fail to claim the interest due to him, or to amend his petition, in order to include it, he cannot, after judgment, demand such interest'by another action; he shall be considered as having remitted it,” which indicates that the Legislature felt it necessary to specifically and expressly provide for a waiver of interest in the case of a, failure to claim it in the petition, in order to qualify the language previously used and to prevent the natural and reasonable inference from the use of such language, that interest would be allowed, irrespective of whether it was claimed or not.

Furthermore, the Legislature again, in article 553 of the Code of Practice, reiterated the qualification and exception already referred to and again pointed, out that interest would not be allowed by the judgment unless prayed for, in the following definite language (see article 553, Code of Practice):

“Interest shall not be allowed by the judgment, unless the same have been expressly claimed, and then only in cases' in which the law permits such interests to be stipulated.”

A study and analysis of articles 554, 553, 157, and 551 of the Code of Practice reveal, therefore, that the language used in the articles of the Code of Practice is essentially different from the language used in Act 206 of 1916, and, therefore, cannot properly aid us under well-settled principles of statutory construction in the literal interpretation of the language of the Act of 1916. The comparison further emphasizes the significant fact that the Legislature used the words “shall attach,” which are clear and unambiguous in the Act of 1916, rather than the weaker and more ambiguous word “allowed” previously used in the Code of Practice in relation to interest on debts, and finally the comparison reveals. that the Legislature seems to have deliberately and intentionally omitted to provide specifically in the Act of 1916 (as was done in the Code of Practice articles governing interest on debts) that a failure to pray for interest would be considered as a conclusive presumption that interest had been waived. In the light of the comparison and considerations we have outlined, it would seem to be more reasonable 'to assume that the Legislature intended to establish a different rule in the case of interest in actions ex delicto than in the case of interest on debts.

The most that can be said, after reading the articles of the Code of Practice referred to above, is that, aside from any question of literal interpretation or comparison of the language used, it is only reasonable to assume that the Legislature, as a matter of analogy and logical policy, must have intended to deal with interest on judgments sounding in damages in the same way as it had previously dealt with interest on ordinary debts, and accordingly the Legislature contemplated that in both cases interest would be conclusively deemed to have been waived unless, prayed for or mentioned in the judgment. Such a presumed intention on the part of the Legislature, although logical and reasonable, as a matter of policy and equity, should not be arbitrarily assumed by a court when the Legislature seems to have indicated a contrary intent by the use of plain and unambiguous language. Furthermore, the Legislature has given actions ex delicto preference as a matter of procedure and at other times, shown a desire to favor such suits, and a presumption that the Legislature did not intend to discriminate and treat interest in the case of actions ex delicto different from interest in the case of actions on debts is to say the least difficult to support, as a matter of legislative history.

However much, therefore, we may feel that, as a matter of equity and logic, there should not be a discrimination in favor of actions ex delicto or a different rule applicable to interest on claims and judgments sounding in contract, and claims and judgments sounding in tort, and though we may feel that the Legislature should not be presumed, as a matter of fairness and reason, to have intended such an illogical and unfair result, we are. bound, in the performance of our judicial functions, to find the legislative intent from the language used by the Legislature, and we are not at liberty to inquire into and consider the wisdom of legislative policy and the analogy of similar laws, and collateral matters unless there is uncertainty and ambiguity in the language used by the Legislature requiring such an inquiry as an aid in arriving at the real meaning and intent of an ambiguous statute. .

The conclusion we have reached as to the meaning and intent of the Act of 1916 is in accord with our previous decision involving this same question in the case of Webb v. Lambert, 14 La. App. page 149, 129 So. 200. In that case we reversed the judgment of the lower court and gave judgment in favor of Webb -and against P. L. Lambert and Prank Moroy in the sum of $1,200.00. The judgment was silent as to interest, and the attorneys for the plaintiff applied for a rehearing and asked that the judgment be amended so as to allow interest from judicial demand. In refusing the request this court said:

“We are asked to amend our decree so as to allow interest from judicial demand. In view of the phraseology of Act No. 206 of 1916, the amendment asked for is unnecessary.”

The quotations from Caldwell v. City of Shreveport, 150 La. 465, 97 So. 763; Powe et al. v. Railroad Co., 7 La. App. page 55; O’Neil v. Railroad Co., 5 La. App. 94; Ventrilla v. Tortorice, 160 La. 516, 107 So. 390; Richard & Sons v. Director General of Railroads, 160 La. 1019, 107 So. 891; Dejean v. Louisiana W. R. Co., 167 La. 111, 118 So. 822; Gallagher v. Louque, 169 La. 362, 125 So. 272; and Southern Surety Co. v. Railroad Co., 6 La. App. 575, 577, cited by counsel for defendant, discuss only the time when interest begins to run under the Act of 1916, and the cases are not helpful in connection with ‘ the solution of the problem involved in this case, because a different issue was involved in each of the cases, and the language quoted was not used by the court in contemplation of the problem involved in the present case.

Counsel for defendant argues, however, that even if interest attaches and automatically becomes a part of a judgment sounding in damages from date of judicial demand, irrespective of whether it has been prayed for or mentioned in the judgment within the meaning and intent of Act 206 of 1916, nevertheless, the payment of •the full amount of the judgment by defendant and the acceptance of this payment without protest or reservation by the plaintiff operates as a waiver or release of the interest on the part of the plaintiff. This contention that there was an implied waiver in the instant case presents very interesting and troublesome questions as to whether the rule in Louisiana is different from the common-law rule in relation •to the necessity for a consideration to support a waiver of interest admittedly due.

In the first place, it must be remembered that in the case under consideration there were no circumstances of doubt or uncertainty in the minds of the parties at the time of the payment and its acceptance, and no dispute or controversy as to the amount due, and, therefore, the payment of the judgment was in no sense a compromise or an accord, and satisfaction. It is not contended arid could not be contended, therefore, that the principles of law in relation to compromise or accord and satisfaction apply. The evidence is clear that defendant sent a check for the amount of the judgment and plaintiff acknowledged receipt of the amount sent him without comment. The plaintiff was unaware at the time of the existence of Act 206 of 1916, and when this act was called to his attention he immediately took the position that the full amount due him as a matter of law had not been paid.

It seems to be a well-established and ancient rule of' the common law that the payment by a debtor of part of what he owes, at the place where the debt is due in the medium of payment which was due, and at or after maturity of the debt, • is. not valid consideration for either an express promise or an implied waiver of the balance due, because the debtor incurs no detriment by paying part of what he owes and is legally bound to pay, and a creditor obtains no legal benefit by receiving it. This situation most commonly arises when a debtor pays part of a liquidated debt in return for the creditor's agreement that the debt shall be fully satisfied, and such an agreement on the part of the creditor, it is held, needs for its support other consideration besides the mere part payment. ' See Williston on Contracts, Yol. 1, sec. 120 and the numerous cases cited.

Applying the rule stated above, the common-law courts universally recognize the right to recover interest after the payment of the principal debt, where the interest was expressly provided for by the terms of the contract, because under such circumstances ' the interest becomes an integral part of the debt. In this class of ea^es it is said:

“There would be no more reason for holding that the payment of the original principal extinguished the claim for interest than that a part payment of such principal destroyed the right to the remainder.” See Note 40 L. R. A. (N. S.) page 588; Bennett v. Federal Coal & Coke Co., 70 W. Va. 456, 74 S. E. 418, 420, 40 L. R. A. (N. S.) 588, Ann. Cas. 1913E, 578, and Note in Ann. Cas. 1912B, page 1333.

On the other hand, it seems to be equal-, ly well recognized at common law that if interest is not express ly stipulated for in a contract, but on the contrary is allowed merely by way of damages for the wrongful detention of money, or for neglect to pay promptly, it is. a .mere incident of the debt, which fails when the debt itself is extinguished, and, in such a case, if the debt is paid, there can be no recovery afterward for the interest which might have been collected. Davis v. Harrington, 160 Mass. 278, 35 N. E. 771; 22 Cyc. 1572; Note in Ann. Cas. 1913E, page 582. .Where, however, the obligation is one that by. statute bears interest, as in the ease under discussion, some common-law courts regard this as an equivalent of contractual interest, and therefore allow a recovery, even though the principal sum has been paid; while other courts regard it in the nature of damages and refuse recovery after the payment of the principal sum. See Note 40 L. R. A. (N. S.) page 592; Devlin v. New York, 131 N. Y. 123, 30 N. E. 45; Hobbs v. United States, 19 Ct. Cl. 220; Ludington v. Miller, 38 N. Y. Super Ct. 478; Brady v. New York, 14 App. Div. 152, 43 N. Y. S. 452.

. It is not necessary, however, for us to decide whether the interest given by the Act of T916 is to be treated in the same way as contractual interest is treated in the common-law cases referred to above, or whether it should be analogized to interest in the way of damages. ' Article 2925 of the Louisiana' Revised Civil Code seems to establish in' Louisiana a general and comprehensive rule with reference to the waiver of interest, and the language of this article, which is unqualified, indicates that the distinction established by the common-law cases we have referred to is not recognized or applied in Louisiana. Article 2925 of the Code reads as. follows:

“Art. 2925. The release of the principal, without any reserve as to interest, raises the presumption that it also has been paid, and operates a release of it.”

If the above article establishes a conclu sive presumption of a waiver of interest in all eases where the principal is paid and accepted without protest, irrespective of whether the interest is due as a result of an express contract or by way of damages, it is clear that in Louisiana the necessity for consideration in the way of detriment to the promisee is not required, as it is at common law, to support such a release, at least in the case of interest, where the principal has been paid and accepted without reservation or protest.

Counsel for plaintiff, however, contends that Article 2925 quoted above merely raises a presumption of waiver which can be rebutted and as a matter of fact was rebutted in the present action, because the uncontradicted testimony in this ease, which was admitted without objection, was to the effect that interest was not and has never been paid on the judgment in ques-tion.

Although the question raised by counsel for plaintiff is not free from doubt, we are of the opinion that the article establishes a'conclusive presumption of law, or, in other words, a presumption juris et de jure. Article 2925 of the Louisiana Civil Code was taken without change from the Code Napoleon, and is. a literal translation of article 1908 of the Code Napoleon.

Article 1908 of the Code Napoleon is interpreted by some French authorities as establishing a presumption which may be rebutted by evidence showing that as a matter of fact interest has not been paid. Toullier, t. 10, n. 31, et s., 541; Duranton, t. 13, n. 431; t. 17, n. 606; Cotelle, De l’interet, n. 212; Duvergier, n. 260; P. Pont. t. 1, n. 320; Guillouard, n. 137. The weight of French authority, however, seems to support the view that the article of the Code Napoleon in question establishes a conclusive presumption, i. e., a presumption juris et de jure, and that evidence or proof that interest has not in fact been paid will not be permitted or considered. Delaporte, Pand. franc sur l’art. 1908; Zachariae, Massi et Verge, t. 4, p. 487, Paragraph 709, note 3; Aubry et Rau, t. 4, p. 602; Paragraph 396; note 8; Troplong, n. 414; Toullier, t. 6, p. 449; Boileux, t. 6. p. 429; Laurent, t. 26, n. 518; Baudry-Lacantinerie, t. 3, n. 834.

That article 2925 of the Louisiana Code establishes a legal or conclusive presumption of law seems to be supported also by’ the language of article 1352 of the Code Napoleon and article 2287 of the Louisiana Code, defining and describing the effect of the legal presumption. Article 2287 of the Louisiana Code provides:

“Legal Presumption dispenses with all other proof, in favor of him for whom it exists.
“No proof is admitted against the presumption of the law, when, on the strength of that presumption it annuls certain acts or refuses, a judicial action, unless it has reserved the contrary proof, and saving what will be said on the judicial confession.” (Italics ours.)

In both the Louisiana Article and the analogous article of the Code Napoleon, a presumption is consideréd and interpreted as a legal or conclusive presumption, unless in its terms and language “it has reserved the contrary proof.” It is to be. noted that in neither Article 2925 of the' Louisiana Civil Code nor the identical article, 1908, of the Code Napoleon, has the law “reserved the contrary proof.” In other words, since the two similar articles referred to do not contain language expressly or impliedly indicating that the presumption created can be rebutted by “contrary proof,” it follows, logically, in the light of articles 2287 of the Louisiana Code and 1352 of the Code .Napoleon, that the presumption created is a legal presumption.

The following quotation from Laurent (26 Laurent, p. 539, sec. 518) is. illustrative of the reasoning of the French commentators, who interpret the similar article of the French Code (1908) as establishing a conclusive or legal presumption of law:

“Cette présumption admet — elle la preuve contraire? La question est controversée. D’aprés Part. 1352, nulle preuve n’est re-cue contre le présumption de la loi lorsque, sur le fondement de cette présumption, elle dénie Paction en justice. II s’agit de savoir si l’on peut dire que la loi dénie Paction en justice. A notre avis, l’affirmative n’est pas douteuse. Tout le monde admet que, dans le cas prévu par Part. 1282, le préuve contraire n’est pas admise contre la présumption de liberation que la loi établit en faveur du debiteur, lorsque le creancier lui remet volontairement, le titre original sous signature privée qui constate le dette; la raison en est que dans ce cas la loi dénie Paction en justice au créancier, non pas qu’il lui soit défendu d’agir contre son débiteur, mais s’il le poursuit, il -sera repoussé pas l'exception resultant de la présumption; cette exception est péremptoire, puisque la loi dit qu’il y a preuve de la liberation. II en doit étre de méme dans le cas prévu par Part. 1908, puisque le loi dit aussi que la quittance, sans reserve des interéts, opére la libération. On objecte que c’est forcer le sens des mots que de dire que la loi en établissant une présumption de liberation, dénie Paction en justice; il faudrait, dit-on, une disposition formelle qui, sans équivoque aucune,' dénie Paction en justice, pour que l’exception de Part. 1352 füt applicable. Notre response est simple et décisive; interpretér ainsi la disposition de Part. 1352, e’est l’effacer du code, car la,s loi ne dénie jamais en termes forméis Paction en justice.” —which we translate as follows:
“Does this presumption admit of contrary proof? The point is controverted. Following Art. 1352, no proof is admitted against a presumption of law when on the basis of ^that presumption it denies the right to sue (Paction en justice). The question is — Can we say that this law denies the right to sue? In our opinion the affirmative cannot be doubted. Everyone admits that, in the case covered by art. 1282, contrary proof is not admitted against the presumption of release which the law sets up in favor of the debtor when the creditor voluntarily turns over to him the original act under private signature which witnesses the debt; the reason for this is that in this case the law denies the right to sue to the creditor, not that it is forbidden to him to proceed against the debtor, but if he does so, he will be defeated by an exception resulting from the presumption; this exception is peremptory, since the law says that there has been proof of liberation. It must be the same in the case of Art. 1908, since the law also says that the release, without reservation of the interest, operates as a liberation. It may be objected that this is to force the sense of the words in order to say that the law, in establishing a presumption of liberation, denies- -the right to sue; one might say that it is necessary to have a formal provision,' without any equivocation, which denies the right to sue in order for the exception of Art. 1352 to apply. Our response is simple and decisive; to interpret the phraseology of Art. 1352 thus is to erase it from the code, for the law never denies the right to sue in formal terms.’’

See, also, 6 Aubry et Rau, sec. 396, p. 106; 20 Baudry-Lacantinerie & Wahl (De La Depot, etc.) Sec. 919; French Civil Code, Arts. 1352, 1356, 1357; City of New Orleans v. Jackson, 33 La. Ann. 1038.

The remaining question in this connection to be considered is whether the facts involved in the present case come within any exception to the general rule as to the legal presumptions established by the Louisiana and French Codes and jurisprudence. The French authorities we have heretofore cited, which announce the rule that article 1908 of the Code Napoleon (similar to article 2925 of the Louisiana Code) establishes a legal or conclusive presumption of law, also state certain exceptions to the rule. In this connection, in 20 Baudry-Lacantinerie & Wahl (De La Depot, etc.) p. 490, sec. 920, it is said: *

“In every case the presumption of Article 1908 may be destroyed by the admission of the debtor, affirming that he has not paid the interest, or by the oath of the creditor, in denunciation of the debtor, that it has not been paid." All legal presumptions, even those which do not allow contrary proof, may be combatted by admission or oath.’’

See, also, Cass. 13 Janv. 1875, S. 75, 1, 244; D. 75, 1, 117, Jour. P. 75, 1, 598; 26 Laurent, p. 539, sec. 518, et seq.

The law as stated by Baudry-Lacantinerie is supported by the express language of article 1352 of the Code Napoleon, which we translate as follows:

“The legal presumption dispenses with all other proof in favor of him for whom it exists. No proof is admitted against the presumption of law when on the strength of that presumption it annuls certain acts or refuses a judicial action, unless it- has reserved the contrary proof and except what will be said on oath or on judicial confession.’’

If the legal presumption created by Article 1908 of the Code Napoleon can be rebutted either by a judicial confession of the debtor or by the oath of the creditor, as pointed out in article 1352 of the .Code Napoleon quoted above, it would follow, in the present case, according to French law, that the creditor has the right, on oath, to show that interest has not been paid, and this proof under oath has been made in the lower court according to the testimony taken in connection with the trial of the rule.

The Louisiana Code, however, seems to be different from the French Code in relation to this particular exception. The language of article 2287 of the Louisiana Code is identical in all respects with article 1352 of the French Code, except it will be noted that the words “on oath’’ are omitted from the Louisiana Code article, and the last clause of the Louisiana0 Code article reads as follows: “Saving what will be said on the judicial confession.’’ In short, article 2287 of the Louisiana Code omits the additional exception in the form of the oath of the creditor described in ■the French Code, and provides at least insofar as Louisiana is concerned, that only judicial confessions are permitted to rebut a legal or conclusive presumption of law.

Since it is not permitted in Louisiana, as it is in France, to rebut a presumption juris et de jure by the oath of the creditor, the evidence and proof in this case, which was under oath and was not objected to by defendant, cannot avail the plaintiff. It is not contended and could not be contended, of course, that there has been a judicial confession by the defendant in this case. We conclude, therefore, that, whatever may be the law of France, the facts presented in the present case do not come within the exception to the rule in relation to legal presumptions described in article 2287 of the Louisiana Civil Code.

The final and only remaining question to be considered is the contention of plaintiff that, when he accepted the payment of the principal without protest or reservation, he was ignorant of the existence of ■the Act of 1916, which entitled him to interest on the judgment. The Louisiana Civil Code and the civil law, as opposed to the general rule of the common law, recognize that errors of law invalidate contracts and other specially described transactions under certain circumstances. Rev. C. C. art. 1846. The Louisiana Civil Code seems to clearly provide, however, that “er- • ror of law can never be alleged as a means of acquiring.” Revised Civil Code, 1846) subparagraph 3. It is also important to note in this connection that article 2287 of the Louisiana Code, previously quoted, provides that a legal presumption, can be voided only in case there has been a judicial confession, and article 2291, defining a judicial confession expressly states that “it can not be revoked on a pretence of an error in law.” We have not been referred to nor have we been able to find any article of the Civil Code which indicates that a legal presumption may be disregarded or defeated in case an error of law is shown. In fact, the fundamental theory of a legal presumption, as we understand it, is that the law conclusively attaches a certain significance and effect to certain facts based on considerations of public policy, and refuses to permit the real facts to be shown or to be inquired into on the theory that in the average case such a conclusive presumption will be in accord with the real facts and will work out justice. To permit the effect of a conclusive or legal presumption to be avoided and nullified by an allegation of an error of law would seem to defeat the very purpose and policy of the law in establishing such presumptions.

We are of the opinion, therefore, that the acceptance of the payment of the principal by the plaintiff in this case, without any protest or reserve as to interest, operates as a release of the interest within the meaning of the article of the Louisiana Civil Code hereinabove referred to. •

For the reasons assigned, it is ordered, adjudged, and decreed that the judgment rendered December 1, 1939, and signed January 19, 1931, maintaining-the rule-herein taken by Joseph Grennon, be, and it is, annulled, avoided, and reversed, and that there now be judgment in favor of the defendant in rule, the New Orleans Public Service, Inc., and against the plaintiff in rule, Joseph Grennon, dismissing and discharging said rule at plaintiff’s cost.

WESTERFIELD, J., and MORENO, Judge ad hoc, participating.


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    No. 13,732
    Orleans
    MARSHALL v. GUIDING STAR BENEFIT ASSN., INC.
    (November 3, 1931. Opinion and Decree.)

      Robert E. O’Connor, of New Orleans, attorney -for plaintiff, appellee.
    F. B. Smith, of New. Orleans, attorney for defendant, appellant.
   JANVIER, J.

Plaintiff was named beneficiary in a certificate of fraternal insurance issued by defendant on the life of plaintiff’s wife.

On the death of the wife defendant refused to make payment, claiming that, at the time of the issuance of the certificate, slightly more than two years prior to the death of Angeline Marshall, she, the wife, was already afflicted with the diseases from which she later died and that, therefore, no recovery can be had, since, in her application for the insurance certificate, she had stated that she was in sound bodily health.

The amount claimed is $260. It is not disputed that this is the amount due, if defendant’s contention be not sustained, and this is the amount for which judgment was rendered below.

In view of the language of the Supreme Court in Goff v. Mutual Life Ins. Co., 131 La. 98, 59 So. 28, it is extremely doubtful that this defense would prevail, even if the evidence sustained defendant’s contention. But the sole witness, relied on to prove that the ailments from which death later resulted had been contracted priqr to the issuance of the certificate, was Dr. T. D. Hayes, who testified solely as a medical (¡Xpert and not as the physician who treated the deceased, and who did no more than to state that in almost all cases of chronic myocarditis and chronic nephritis, which are the causes of death as- given in the death certificate, development is slow and death usually occurs only after two years or more have elapsed since the first contraction thereof.

The evidence falls far short of proving that, in this particular case, the diseases mentioned were in existence when the policy was applied for, and the defense must, therefore,. fail.

We are asked to amend.the judgment by the allowance of damages ■ for the delay caused by the so-called frivolous appeal.

The record is quite convincing- of the fact that the appeal was taken for no other reason than to delay payment of the judgment, and therefore, the damages asked for will be allowed and will be fixed at 10 per cent.

1 The judgment appealed from is amended by the allowance of 10 per cent damages for frivolous appeal and, as thus amended, it is affirmed.


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    No. 13,718
    Orleans
    ROBINSON LUMBER CO. v. BOUDREAU
    (May 11, 1931. Opinion and Decree.)
    (June 8, 1931. Rehearing Refused.)
    (July 20, 1931. Writ of Certiorari and Review Granted by Supreme Court.)
    (November 3, 1931. Opinion and Decree in Supreme Court.)
    Arthur B. Hammond and John E. Unsworth, of New Orleans, attorneys for plaintiff, appellant.
    Hopkins & Talbot, of New Orleans, attorneys for defendant, appellee.
   WESTERFIELD, J.

Plaintiff, a commercial co-partnership, composed of Robert G. Robinson and Mark H. Robinso.n, brought this suit against the partnership of Tracka and Boudreau and against the individual members thereof, Prank J. Tracka and Benjamin C. Boudreau, alleging that it is the holder in due course of a promissory noté dated January 24, 1924, in the sum of $2,000, payable at the Whitney-Central Trust & Savings Bank, New Orleans, Louisiana, ninety days after date and signed by the partnership; that the note is wholly due and unpaid and judgment is prayed for accordingly.

The partnership and Prank J. Tracka individually failed to answer and the suit was prosecuted against Boudreau alone. Boudreau answered admitting the signature to the note sued on and admitting that no payment had been made on account, but averred that the note was given without consideration under an expressed agreement that payment was not to be demanded or expected.

There was judgment in favor of the defendant Boudreau dismissing plaintiff’s suit and plaintiff has appealed.

The facts in the case are as follows:

On the 26th day of September, 1923, plaintiff acquired from John Lambert and other owners, by notarial act, certain cypress timber upon land, belonging to the Lamberts in St. Charles parish, for the sum of $4,000 cash. The act of sale stipulated that the purchaser was to cut and remove the timber within two years unless weather conditions prevented and in the latter event an extension of six months was to be allowed. On the 27th day of September, 1923, by notarial act before Charles P. Pletchinger, plaintiff sold the timber which it had acquired the day before to Prank J. Tracka and Benjamin C. Boudreau for the sum of $5,200, for which sum Tracka and Boudreau gave their promissory note maturing 120 days after date and payable at the Whitney-Central National Bank in the city of New Orleans with 7 per cent per annum interest. The same stipulations with reference tq the removal of the timber which were in the act by which the vendor acquired, were repeated in this act of sale and the note was secured by a mortgage containing the customary pact de non alienando. On the same day, but subsequent to the sale of the timber, a" supplementary agreement in the form of a letter written by the Robinson Lumber Company and accepted by the firm of Tracka & Boudreau was entered into by the terms of which, Tracka & Boudreau agreed to manufacture the timber which they had bought into cross ties at the “greatest speed possible and convenient” and tq pay to the Robinson Lumber Company 50 cents per tie for each tie sold when and as sold “to be applied against mortgage note in the sum of $5200.00 given us this day in payment of said timber, until note is fully retired.” The $5,200 note matured January 24, 1924, and was not paid. On that day the defendant executed a promissory note' in favor of plaintiff for $2,000, the note sued on in this case.

According to the testimony of the members of the plaintiff firm, the $2,000 note was given for the purpose of obtaining an extensfon of ninety days on the $5,200 note and to prevent foreclosure and consequent dispossession of the timber. Defendant is said to have begged this additional time in order that it might have an opportunity to remove and cut the timber and realize a large profit which Boudreau thought could be made out of the deal. Plaintiff, it is claimed, finally yielded its consent upon representation that the $2,000 would be paid in cash, but when it later developed that Boudreau was unable to raise the cash, accepted the note. ■

Boudreau’s explanation of the transaction is that he signed the note, at the request of the Robinsons in order to deceive his partner, Tracka, with whom he had had a disagreement. In his own words, “At the time when we first entered into it, I was in partnership with Mr. Tracka. Mr. Tracka was to help in the management of the camp and to help finance it. In the meantime, he secured a contract with the Pennsylvania Railroad and went over to Columbia, Miss., and did not assist me in any way in carrying out my contract with the .Robinson Lumber Company, but still he wanted to retain his half interest. The Robinsons suggested to me that it was not fair.” Just how he was to be relieved from the claim of his partner by signing this note does not appear from the record nor is there any helpful suggestion in that regard by his counsel. We cannot accept his statement, which is unsupported by any other fact or circumstance in the record and lacking in any element of probability. The idea of a man signing a promissory note for $2,000 and relying upon a verbal agreement that he would not be expected to pay it makes too much demand upon our credulity.

■ It is argued, however, that if plaintiff’s version of the transaction be true and the note, given for an extension of time in which to pay the $5,200 note, it was nevertheless, an unlawful consideration; first, because the $5,200 note had already been extended by the supplementary agreement which had changed the stipulation in the original act of sale requiring it to be paid within 120 days to an arrangement whereby it was to be liquidated gradually during the entire two years mentioned in the contract at the rate of 50 cents per cross tie, when and as the ties were manufactured, and in the alternative, if the supplementary agreement is not so interpreted, the consideration is nevertheless unlawful and finally that the exaction of the sum of $2,000 for the extension of the note of $5,200 for 90 days was usurious and without consideration on that account.

Relative to the first point our opinion is that the letter did not have the effect of changing the maturity of the note and the method of payment, but was simply intended as additional security by providing that as the timber which was subject to plaintiff’s mortgage was removed and its security diminished to that extent, payment should be made upon the note in the manner stipulated in the contract in order that the debt might be diminished in proportion to the exhaustion of the timber which had been pledged as security.

Our view is that the note sued on was given for the purpose of extending the time of payment of the $5,200 note and to prevent foreclosure and ouster of defendant from the land. Was such consideration unlawful per se or because tainted with usury, is the final question..

In Benner v. Van Norden, 27 La. Ann. 473, our Supreme Court said;

- “A valuable consideration may, in general terms, be said to consist either in some right, interest, profit, or benefit accruing to the party who makes the con-' tract, or some forbearance, detriment, loss, responsibility or act, or labor or service ,ón the other side; and if either of these exist, it will furnish a sufficient valuable consideration to sustain the making or endorsing of a promissory note in favor of the payee or other holder.”

In 13 Corpus Juris 344, sec. 194, verbo ‘.‘Contracts,” we find the following:

' “The actual forbearance, or the promise of forbearing to prosecute a claim on which one has a right to sue is universally held to be a sufficient consideration.”

In Poster v. Wise, 27 La. Ann. 538, where the defense was usury, it was held:

■ “The extension of the time of payment' of a certain mortgage note was really the consideration of the note in suit, and this was a lawful consideration.”

Poster v. Wise was confirmed in the Matter of Leeds & Co., 49 La. Ann. 501, 21 So. 617. See, also, O'Conner v. Levy, 4 Orl. App. 3.

There is authority in other jurisdictions to the contrary, particularly where there is a veiled attempt to circumvent the laws relating to. usurious interest. In this case, however, the plaintiff is in the lumber business, and there is nothing in the record to cast any suspicion upon its action in regard to the receipt of the note.

Por the reasons assigned, the judgment appealed from is reversed, and it is now ordered that there be judgment in favor pf the plaintiff, Robinson Lumber Company, and against the defendant Benjamin C. Boudreau in the full sum of $2,000, with legal interest from judicial demand and all costs.


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    No. 13,668
    Orleans
    McMAHON v. HALSALL
    (November 16, 1931. Opinion and Decree.)
    ■ Milner & Porteous and W. A. Porteous, Jr., of New Orleans, attorneys for plaintiff, appellee.
    Matthew A. Grace and Wm, H. Talbot, of New Orleans, attorneys, for defendant, appellant.
   HIGGINS, J.

M. J. McMahon sueS 'W'ílmot Halsall to recover the sum of $243.30 for property damages alleged to have been sustained by his Buick sedan automobile as a result of a collision with the defendant’s Studebaker sedan car on March 23, 1930, about 1 o’clock p. m., at the corner of North Claiborne avenue and St. Anthony street. The charges of negligence against the driver of the defendant’s car are that he was operating his car at an excessive rate of speed; that he failed to stop before entering a right of way street; that he did not accord the right of way to the plaintiff’s car, which had almost crossed the intersection; and that he did not keep a proper lookout, due to the fact that he was blind in his left eye. Defendant denied the alleged charges of negligence, and, in reconvention, claims the sum of $300 for damages to his own car, averring that his car had the right of way, as it had entered the intersection first, and that plaintiff’s car was being operated at an unlawful rate of speed, and, in the alternative, pleaded contributory negligence.

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

The record shows that -the plaintiff’s car was. being operated by his chauffeur on the river side roadway of North Claiborne avenue, going downtown. This avenue has a neutral ground in the center, with paved roadways on each side, and runs uptown and downtown. It intersects at right angles St. Anthony street, a paved thoroughfare, which runs from the river to the lake. The defendant’s car was being operated by his son on St. Anthony street, going in the direction of the lake. In an effort to avoid the collision, the driver of plaintiff’s car swerved to his left and attempted to go out St. Anthony street, in the same direction in which the Studebaker car was traveling. The two cars met in collision somewhere past the middle of the intersection, towards the downtown lake corner. The Buick car came to rest about ten feet in St. Anthony street towards the lake, adjacent to the downtown portion of the neutral ground of North Claiborne avenue. The Studebaker car came to rest on the downtown neutral ground of North Claiborne avenue against a telegraph pole, which it liad struck squarely with the middle of its front bumper. The photographs introduced in evidence show considerable damage to the right rear side of the Buick car, from the back door to the extreme rear end. There is also some damage to the left front fender and hub cap. The Studebaker car was badly damaged directly in the front, as well as on the left front and the left rear side.

The evidence is conflicting as to the respective speeds of the two cars; the two witnesses for the defendant testifying that the plaintiff’s car was going at an excessive rate of speed, and the three witnesses and the driver of the plaintiff’s car stating. that the defendant’s car was going at a very rapid and unlawful rate of speed.

There is no dispute that North Claiborne avenue, is a right of way street under the provisions of Traffic Ordinance No. 7490, C. C. S. It is also clear that the defendant’s car did not come to a full stop before entering the intersection, as required by the provisions of the ordinance. It appears to us that the Buick entered the intersection before the Studebaker, and therefore the driver of the Studebaker car should have accorded the plaintiff’s car the right of way. We have no doubt that the major blow that the Studebaker struck the Buick was in its right rear side, because practically all of the damage is at that point. Goldsby v. Lowrey, 6 La. App. 450.

It is our opinion that the proximate cause of the accident was the negligence of the driver of defendant’s car in operating it at an unlawful and excessive rate of speed, in failing to stop before entering a right of way street in disobedience of the traffic ordinance, and in not according plaintiff’s car the right of way, which it clearly had, since it was on a right of way street and had entered the intersection first. De La Vergne v. Levy, 10 La. App. 768, 123 So. 182; Hirsch v. Ashford, 5 La. App. 290; Union Indemnity Co. v. Harrison, 6 La. App. 239.

For the reasons assigned, the judgment is affirmed.


author: ELLIOTT, J.

text:
    Nos. 832 and 833 (Two Cases)
    First Circuit
    GUINN v. KEMP ET AL.
    (October 7, 1931. Opinion and Decree.)
    (November 4, 193L Case Compromised and Application for Rehearing Withdrawn.)
    Benton & Benton, D. J. Sanchez and Dudley Weber, of Baton Rouge, attorneys for plaintiff, hppellee.
    Breazeale & Sachse, of Baton Rouge, attorneys for defendants, appellants.
   ELLIOTT, J.

• An automobile belonging to and while being driven by Mrs. Ola Guinn, widow of W. J. Guinn, deceased, and in which was riding as her guest Eugenia Guinn, her niece, minor daughter of J. L. Guinn, was struck by an automobile belonging to W. J. Kemp, while being driven by his wife, Mrs. Pearler Kemp, with the result that Mrs. Ola Guinn and Eugenia Guinn were both badly injured.

The collision occurred on September 10, 1930, in the city of Baton Rouge, Subdivision Istrouma, at the intersection of Ontario and Pocahontas streets.

Mrs. Ola Guinn brought suit against W. J. Kemp and his wife, Mrs. W. J. Kemp, for damages resulting from the collision. Her claim is for physician’s and nurse’s fees, medical and surgical bills, pain and suffering, impairment of hearing, and loss of her automobile — a total of $7,800.

J. L. Guinn brought suit at the same •time for $300 as due himself on account of physician’s and nurse’s fees, medical, hospital, surgical bills, and X-ray pictures necessary in the treatment of his . daughter Eugenia. He further claims of them the sum of $10,000 for the use and benefit of his daughter Eugenia on account of her personal injuries, impairments, pain, and suffering — a total of $10,300. The petitions of the two plaintiffs each allege that the collision was due to the reckless, excessive speed and want of care on the part of Mrs. Kemp in driving her automobile into said intersection from Pocahontas street, into which the plaintiff Mrs. Ola Guinn had already entered from Ontario street.

That the defendant W. J. Kemp has an insurance policy in the Georgia Casualty Company under the terms of which the said company being primarily liable to each of them for the amount claimed, the company was made a party defendant in each case.

W. J. Kemp and Georgia Casualty Company each filed an exception of misjoinder in each of the suits, urging that the casualty company should not have been made a party defendant. While this exception was pending and without action having been taken thereon, Georgia Casualty Company filed a further exception of no cause or right of action, in that $5,000 being the limit of the policy issued to W. J. Kemp, it could not be sued for an amount in excess of that sum. That no suit should be filed on the policy until after the amount of the loss had been fixed and rendered certain by a final judgment against the assured. It further urged alternatively that the Act No. 55 of 1930 under which the suit against it had been brought, if applied to the policy in question, was unconstitutional.

The exception of no right or cause of action was sustained and both suits as to Georgia Casualty Company were dismissed.

There was no appeal from that ruling. This judgment of dismissal, in so far as regards the joinder of Georgia Casualty Company as a defendant herein, is therefore not before us on appeal and calls for no action on oui part. The failure 'to appeal from this judgment also eliminates from the case the question of applicability of Act No. 55 of 1930 to the policy in question.

The defendants Mr. and Mrs. Kemp, each answering each of the suits, deny the negligence alleged by the plaintiffs against Mrs. Kemp and allege that the collision was due entirely to the fault and negligence of the plaintiff Mrs. Ola Guinn and Eugenia Guinn. In the alternative and in case it be found that there was negligence or want of care on the part of Mrs. Kemp, they allege that there was also negligence and want of care on the part of Mrs. Guinn and Eugenia Guinn, leading to the collision; that their negligence contributed to bring it about and that no recovery could be had of them on said account.

The two suits, each based on the same collision, the defenses in each being practically the same, the issue in each largely dependent on the same testimony, were consolidated, tried together, and decided in the same judgment.

There was judgment in the lower court in favor of Mrs. Ola Guinn and against Mrs. W. J. Kemp for $1,200, and in favor of J. L. Guinn and against Mrs. W. J. Kemp for $3,000 for the use and benefit of Eugenia Guinn.

No judgment was rendered on the demand of Mrs. Ola Guinn and J. L. Guinn against W. J. Kemp.

The failure of the lower court to act on the demand of Mrs. Ola Guinn and J. L. Guinn against W. J. Kemp amounts to a rejection of their demand against him. The failure is not urged in plaintiffs’ brief as error, so we look on plaintiffs’ claim against W. J. Kemp as abandoned and have not considered it on appeal.

The court did not act on the claim of J. L. Guinn individually against Mrs. W. J. Kemp for $300, for which he was obligated legally as father of Eugenia. The failure amounts to a rejection of the same, but J. L. Guinn has appealed and urges i’n his brief that this was error; consequently this matter will be reviewed.

The' petition of the plaintiffs aver, and the answer of the defendants practically admits, that the Subdivision Istrouma is within the limits of the city of Baton Rouge, but the city ordinances concerning speed, traffic, rights of way, etc., at the place in question, if any exist, were not offered in evidence, proven on the trial, and there - are no admissions in¡ the record on the subject.

Act No. 169 of 1898, with amendments, under which the city of Baton Rouge was incorporated, contains no provisions, of the kind mentioned.

The evidence shows that Ontario and Pocahontas streets are both public streets and used as such by the public.

Speaking generally all streets may be said to be highways.' Elliott on Roads and Streets (3d Ed.) subject Streets, sec. 1®, p. 21; Dillon on Municipal Corporations, vol. 2, subject Streets, pp. 805 and 806, secs. 676 and 680.

All highways are not streets, but the streets in question may be regarded as coming within the law on that subject.

The word “highway” is defined in Act No. 296 of 1928 (section 2) to mean, “Every way or place of whatever nature open to the use of -the public, as a matter of right, for purposes of vehicular travel.”

The word “street” is used in the title of the act and in section 11 of the body of the act.

The term “local authorities” is defined in the act (section 2) to mean, “Every parish, municipal and other local board or body having authority to adopt local police regulations under the constitution and laws of this State.”

Section 5, subsection (c), section 18, subsection (b), and section 35 makes the traffic and speed ordinances, and regulations of local authorities, 'subservient to the act, except in particular and specified instances. In this instance no ordinance, regulation, or other provision of the city of Baton Rouge. having been produced, we take as governing law the Highway Act to! the extent applicable to an intersection of the kind in question.

The evidence shows that.Mrs. Ola Guinn was driving west on, Ontario, and Mrs. Kemp south. on Pocahontas streets, at about 9 o’clock a. m. on the day stated. Weather conditions are not spoken of as unfavorable to seeing ahead. We therefore assume that ordinary weather conditions as to seeing prevailed at the time.

The speed at which Mrs. Guinn and Mrs. Kemp were each driving and the care' or want of care which each observed on entering the intersection are therefore matters of great importance in the determination of the case.

Mrs. Guinn estimates her own speed as she reached the intersection at about 12 or 15 miles an hour. Eugenia Guinn estimates it at about 12 or 14 miles an hour.

Mrs. Guinn, speaking of the time she reached tire intersection, says that she looked up and down the intersecting street and did not see the Kemp car:

“Q. You could have stopped it instantly if you had wanted to?
“A. Yes.
“Q. You looked up and down the street when you got to the corner?
“A. Yes.
“Q. You did not see this car coming?
“A. I didn’t.' It came out so, fast.
“Q. That is an open street?
“A. One side of it.
“Q. The side Mrs. Kemp was coming on was open?
“A. Yes.
“Q. You could have seen her?
“A. Yes.
“Q. But you did not see her?
“A. No.
“Q. You do not remember anything immediately after the accident?
“A. No. I was knocked unconscious.”

Eugenia Guinn:

“Q. You did not see Mrs. Kemp’s car at any time?
“A. No. I do not remember seeing it at all.
“Q. You do not remember seeing it at all?
“A. No.”

Mrs. Kemp says:

“Q. As you approached this intersection did you see any car approaching from the east?
“A. Just before I got to the corner I blew my horn; there was a lot of weeds on that side and just as I entered the intersection I seen this car coming and I threw on my brakes. She was in the middle of the street; that is when the collision took place.”

In another place she says:

“Q. Who got into the intersection first?
"A. It must have been me, because I hit her in front of the car; more in front than I did in the back.
‘‘Q. You mean to say you got into Ontario street, which is a street that runs east and west, before she got into Pocahontas street?
“A. We were in there just about, the same time, or I could not) have hit her as near the middle of the car as I did.
”Q. What part of Ontario street was she driving on?
"A. She was coming right up the center of the street.
‘‘Q. What part of the street were you driving on?
‘‘A. Coming on my right-hand „ side.
‘‘Q. You weren’t in the center of the street?
“A. I wasn’t in the center of the street.
“Q. You were on the right-hand side of the street?
“A. I was on the right-hand side of the street.
“Q. Going south?
“A. Going south.
“Q. Were you in the middle of the street or on the right-hand side of the street at the time you struck Mrs. Guinn?
“A. I was on my right side.
“Q. You stayed right on the right side of the street?
‘‘A. I was right on my right -side of the street.
“Q. And you were on the right side of Pocahontas street at the time you struck Mrs. Guinn’s car?
“A. I was on my side, the right side.
“Q. Just how far into Pocahontas street had Mrs. Guinn’s car gotten at the time you struck her?
“A. I hit the front of it on my side, on the right-hand side.”

Mrs. Grace Kent Evans living on the southeast corner at the intersection of Ontario and Pocahontas streets' says that she was within about 20 feet of the place where the collision took place, looking straight at it when it occurred. She tes'tifies that she did not know at- -the time either the plaintiff or the defendant, has no interest in the controversy, and none that we can see appears. Her testimony is plain and straightforward.

Asked to estimate the speed of' Mrs. Guinn, she said that the Guinn car was concealed from her view by the house in which she lived, except for a distance estimated at about 20 feet, before the impact between it and the Kemp car took place. Her testimony on the subject, at one place, is as follows:

“Q. How fast was the Guinn car going?
“A. I don’t know just how fast it was going; just ordinarily, because it was not going very fast; just ordinary driving.”

In another place:

“Q. You couldn’t see Mrs. Guinn coming? You didn’t see her car until it got to the intersection?
“A. Yes, I saw it before it got to the intersection. I saw it when it got to the corner of my house, about 20 feet from the intersection.
“Q. You did not see it approaching then?
“A. No.
“Q. You did not have any way of telling what speed it was coming?
"A. Not until it got there.
“Q. That only gave you 15 or 20 feet from the corner to the intersection?
“A. Yes.
"Q. You could not tell anything about the car?
“A. I just saw it as it came across there.
“Q. Was Mrs. Kemp coming toward you?
“A. Toward me from the north. I could see her car about a block or a block and half away.”

In another place:

“Q. You couldn’t see Mrs. Kemp approaching very far?
“A. I could see Mrs. Kemp a block and a half.
“Q. I mean Mrs. Guinn?
“A. No, I couldn’t see her beyond my house.”

According to Mrs. Evans, she was about 20 feet from the place and looking right at the parties at the time the collision took place.

She fixed the speed of Mrs. Guinn at ordinary driving, having reference of course to the intersection in question, the driving at which she was accustomed to observe.

She estimated the speed of Mrs. Kemp, as she came to the place, at between 35 and 40 miles an hour. Defendant introduced evidence for the purpose of weakening the testimony of Mrs. Evans, but we do not regard her -testimony as weakened thereby.

Frank O. Gibbs, son of Mrs. Evans, testified that he saw the Guinn car about 80 feet from the intersection and estimated that it was going at that time about 25 miles an hour. Mrs. Guinn could have slowed down to the speed, she claims before entering the intersection.

Mrs. Kemp testified that the Guinn car was running at the time she saw it in the inteVsection at 30 or 35 miles an hour, and that her own speed at that time was 18 or 20 miles an hour.

Mr. Weber testified that he lives on Pocahontas street about a block from its intersection with Ontario; that he saw the Kemp car pass his house going to the intersection and estimates its speed at the time at about 35 or 40 miles an hour. Mrs. Weber, his wife, says the same.

Mrs. Shelton also testified that she was at the time in a house on Pocahontas street, the third house from the intersection, which she marked on a picture, and that the Kemp car passed her house going toward the intersection at a speed which she estimated at 35 or 40 miles an hour. The speed testified to by Mr. and Mrs. Weber and Mrs. Shelton could have been slowed down before the intersection was reached, but according to Mrs. Evans it was not done.

According to Mr. Brooks, he and his wife arrived at the scene about three minutes after it had happened. Mrs. Guinn and Eugenia Guinn were at the time still in the wreck. Mrs. Kemp had gotten out of her car and was standing at the place talking. He testifies that he addressed her, saying: “Are you the lady that had the wreck?” She said, “Yes.” He then said, “I don’t see where you put the brakes on.” She said: “No, I didn’t put any brakes on. I didn’t see it until I hit the other car.” Mrs. Brooks testified, corroborating her husband.

Mrs. Kemp denied making such a statement and claims that she did not see Mr. and Mrs. Brooks.

There is nothing in the record that indicates the width of Ontario and Pocahontas streets, save some pictures made for other purposes. Looking at these pictures the intersection does not appear to be wide enough to give parties entering same with automobiles, and going forward without stopping, to cross more than a few brief moments to see an automobile coming into it from the opposite sides.

The Highway Act, section 5, subsection (b), par. 3, provides, regarding speed:

“Fifteen miles an hour when approaching within fifty feet and in traversing an intersection of highways when the driver’s view is obstructed. A driver’s view shall be deemed to be obstructed when at any time during the last fifty feet of his approach to intersection, he does no£ have a clear and uninterrupted view of such intersection and of the traffic upon all of the highways entering such intersection for a - distance of two hundred feet from such intersection.”

Section 20, subsec. (a):

“When two vehicles approach or enter an intersection at approximately the same ti:ee, the driver of the vehicle on the left shall yield the right-of-way to the vehicle on the right except as otherwise provided in section 20. The driver of any vehicle traveling at an unlawful speed shall forfeit any right-of-way which he might otherwise have hereunder.” Dameron Pierson Co. v. O. T. Stafford, 1 La. App. 506, 507.

It is well settled in our jurisprudence that a party driving an automobile who first reaches a street intersection has the right of way, provided there is no ordinance or regulation making either one or the other streets a right of way street. 8 Louisiana Digest, Supplement, subject, Automobiles, sec. 37.

A person is not presumed without evidence to violate the law on the subject of speed.

The testimony on the subject, attendant facts and circumstances, does not justify us in holding that the Guinn car was being driven at the time it entered and while crossing this intersection at a speed faster than 15 miles an hour. The evidence shows that it entered the intersection first and had crossed to the western side of it at the time of the impact. It shows that the Kemp car struck the Guinn car and that it was being driven at the time faster than the law permits, entirely too fast for safety; that the speed was such •that it did not admit of stopping after entering, rendering a collision between it and the Guinn car, which had already entered and had crossed to the western side of the intersection, the necessary result of its excessive speed.

The noise made by the impact and the damage done to the Guinn car supports the finding that the Kemp car was being driven about as fast as estimated by Mrs. Evans.

According to Mrs. Kemp she kept on the western side of Pocahontas street and the impact took place almost the moment she entered the intersection,

Mrs. Guinn says that she looked both ways as she entered the intersection but that she never saw the Kemp car. Eugenia Guinn says that she never saw it.

Defendant urges this as a reason why plaintiffs cannot recover.

If the occupants of the Guinn car, on entering the intersection, had looked far enough up Pocahontas street, they could not have helped seeing the Kemp car. They either looked too soon, else, after arriving at the proper place to see, they did not look close enough. According to our estimation, the Kemp car was 60 or 70 feet away and its approach should have been observed.

But that cannot excuse Mrs. Kemp. She had the last clear chance. She was coming forward to an intersection already occupied by another car, traveling twice as fast as the occupying car. The Guinn car was making its way across at the rate of about 20 feet a second. The Kemp car, distant 60 or 70 feet at the time up Pocahontas street, was coming to the intersection at a speed of 40 or 50 feet a second. Mrs. Kemp was bound to have anticipated danger ahead of her in the intersection. She was bound to have seen the Guinn car ahead of her. She had ample time to and could and should have slowed down, checked her speed, let the Guinn car, already in the intersection, have the right of way, and pass on its way in safety.

In the case of Tyer v. Gulf, C. & S. F. Ry. Co., 143 La. 177, 78 So. 438, the Supreme Court held (Muotatioh from the syllabus):

“In order to enforce the humanitarian doctrine of ‘the last clear chance,’ it must appear that plaintiff has clearly shown that defendant, after seeing the danger, could by the exercise of ordinary care have avoided the injury, or, if defendant did not see the danger, it must appear that plaintiff has cleany shown that defendant might by the exercise of ordinary care have seen the danger in time to avoid the injury.” Norwood v. Bahm, 14 La. App. 261, 129 So. 183; Cyclopedia of Automobile Law, by Blashfield, vol. 2, subject, Last Clear Chance, pp. 1277 to 1299, secs. 11, 14, 16, 17, 18, 19, and 20, etc.

We therefore find that Mrs. Kemp was entirely to blame for. the collision, for the loss and injuries sustained by Mrs. Ola Guinn, the pain and suffering endured by Eugenia Guinn, and for the loss and damage sustained by J. L. Guinn. Defendant contends that Eugenia Guinn was at fault and cannot recover because she should have seen the approach of her car in time to have warned her aunt, caused her to stop and avoid the collision. Eugenia was a school girl, 16 years of age at the time of the trial. She was riding as a guest of her aunt and charged with no duty in the driving. She says that she never saw the Kemp car; but suppose it be said that she would have seen it when she reached the intersection had she looked closer up Pocahontas street, she had entered the intersection first, had nearly crossed it at the time of the impact. Mrs. Kemp, coming on Pocahontas street and at a distance of 60 or 70 feet away at the time, was bound to have expected danger at the Ontario street intersection, and could not help seeing the car in which Eugenia was riding, and having ample time to do so, she could and should have slowed down, checked her speed, and let the car ahead of her, already nearly across, have the right of way and pass on in safety. Mrs. Kemp is therefore liable to Eugenia Guinn and to her father, J. L. Guinn, for all the damage, injuries, pain, and suffering which they sustained as a result of the collision.

The remaining question for consideration is the amount of damages that should be allowed to the plaintiffs. Mrs. Ola Guinn was awarded. $1,200 against Mrs. Kemp, and appealed, claiming that it is not sufficient.

Mrs. Kemp has appealed, and claims that she is not liable at all, but urges in case that the court finds that she is. that the amounts allowed should be reduced.

Mrs. Guinn alleges in her petition that her car was totally destroyed- but the evidence shows that it was only damaged and that it cost $99.25 to repair it. Mrs. Guinn has been to considerable expense on account of fees of physicians, nurses, hospital expenses, X-ray pictures, She suffered a fracture of the skull, puncture of the drum of her right ear, endured severe pain for a week or ten days. The evidence indicates that she has recovered from all her injuries, except that the hearing in her right ear has been permanently impaired to the extent of 25 per cent. There is evidence that an injury to the ear when the result of a fractured skull, as is the case here, is liable to produce and bring about atrophy of the nerves of hearing, and not only lead to greater loss of hearing in future, but may involve the other ear. But there is also testimony that such a result is not likely.

We look on the claim that Mrs. Guinn may suffer greater impairment of hearing than she now has, and that the injury may eventually involve the other ear, as not established with that certainty required by law.

We have concluded that the allowance in her favor by the lower court was correct and that it should neither be increased nor decreased.

The injury to Eugenia Guinn was far more serious.

The physical pain and suffering which she endured has impressed us. Her prin cipal injury consisted of a fracture of the pubic bone and ischium. The fracture has healed but with some overlapping of the ends, leaving an abnormal condition which physicians say will be permanent and may prevent bearing children. On account of this injury she was placed in a plaster cast and kept in a state of immobilization for more than two months.

A physician testifying in favor of plaintiff was very firm in his opinion on this subject. But according to other medical testimony, such a result is not certain, and we do not look on the disability claimed on her account as established with' that certainty required by law. But certainly she has undergone intense and protracted suffering. At the time of the trial, however, some five months after the injury, she was able to walk and get about without crutches.

The district judge allowed her father on .her account $3,000. The father prays that the amount be increased; the defendant, that it be reduced.

We have concluded that the amount is as near right as we can fix it, and judgment in that respect will stand.

J. L. Guinn, father of Eugenia, claims $300 due him individually on account of physicians’, nurses’, and hospital fees, X-ray pictures, etc., all necessary on account of her injury. The amount is established and he claims that same shojild havei.been allowed him in the. lower court. It seems, to us that the father should recover this sum. It is a part of the expenses occasioned by the fault of the defendant.

The judgment appealed from will be amended so as to allow the plaintiff J. L. Guinn to recover of Mrs. W.- J. Kemp the further sum of $300.

Por the reasons stated the judgment appealed from in favor of Mrs. Ola Guinn against Mrs. W. J. Kemp is affirmed.

The judgment in favor of J. L. Guinn for the use and benefit of Eugenia Guinn against Mrs. W. J. Kemp is affirmed.

But it is now ordered and decreed that, iu addition to the judgment mentioned, there be judgment in favor of the plaintiff J. L. Guinn, individually, and against Mrs. W. J. Kemp for $300 with legal interest thereon from judicial demand until paid, and that Mrs. W. J. Kemp pay all cost in both cases in both courts.


text:
    No. 13,824
    Orleans
    DAWSON ET UX. v. JAHNCKE DRY DOCKS, INC.
    (November 3, 1931. Opinion and Decree.)

      Milner & Porteous, P. M. Milner, of New Orleans, attorneys for plaintiffs, appellants.
    Gordon Boswell, of New Orleans, attorney for defendant, appellee.
   JANVIER, J.

This matter is again before us on appeal from a judgment maintaining an exception of no cause of action. On the first occasion we remanded the case in order to afford plaintiffs an opportunity to amend their petition because we felt that possibly allegations could be made which, by showing the character of the work which the deceased was engaged in performing at the time he met his death, might state a cause of action. See Dawson v. Jahncke Dry Docks, Inc., 18 La. App. 368, 131 So. 743.

The suit is brought under the Louisiana Workmen’s Compensation Act No. 20 of 1914 (as amended), and in the original petition it was made to appear that the deceased, at the time of his death, was on a completed vessel lying in. dry dock floating in navigable waters of the United States, but in that petition it was not clearly shown that the work he was engaged in performing was of a, non-maritime nature. We reached the conclusion that, if the work was of a maritime nature, then, since he was performing it on a vessel lying in navigable waters, injury received and death occurring were not cognizable under the State Compensation Act. Southern Pacific Co. v. Jensen, 244 U. S. 205, 37 S. Ct. 524, 61 L. Ed. 1086, L. R. A. 1918C, 451, Ann. Cas. 1917E, 900; Peters et al. v. Veasey, 251 U. S. 121, 40 S. Ct. 65, 64 L. Ed. 180; Knickerbocker Ice Co. v. Stewart, 253 U. S. 149, 40 S. Ct. 438, 64 L. Ed. 834, 11 A. L. R. 1145; State of Washington v. W. C. Dawson, 264 U. S. 219, 44 S. Ct. 302, 68 L. Ed. 646.

After the amendment of the petition an exception of no cause of action was again interposed, and again a judgment was rendered maintaining that exception and dismissing the suit.

From the amended petition it appears that the vessel had been damaged by grounding; that she had been dry-docked so that inspections might be made by defendant and by others to the end that they might bid for the making of the repairs; that deceased was requested, or invited by his superior, Slade, who was making the inspection on behalf of defendant, to assist him in the work; that the accident occurred while he was so engaged.

A reading of this amended petition removes all doubt as to the nature of the work the deceased was engaged in performing at the moment of his death, and makes it certain that, sincé this work was maritime, no recovery can be had under the state statute.

That deceased had never before been sent by his employer to do maritime work is of no importance. See Employers’ Liability Assur. Corp. v. Cook, 281 U. S. 233, 50 S. Ct. 308, 309, 74 L. Ed. 823, in which the Supreme Court said;

"Whether Cook’s employment contemplated that he should work regularly in unloading vessels or only when specially directed so to do is not important. * * * Under the circumstances disclosed the state lacked power to prescribe the rights and liabilities of the parties growing out of the accident.”

That at the time of. the accident deceased’s employer had not been contracted with to make the repairs to the vessel, but had only been requested to bid thereon, does not remove from ¡the work of making the inspection its character as a maritime occupation. As was said by our brother below in his written opinion:

> “Is not the work of one who has a share in determining what repairs should be made as necessary as that of him who bolts plates to frame? They co-operate for a common purpose, and the work of each is equally maritime.”

Counsel for plaintiffs requests that,'if we find that no rights exist under the state statute, we base our conclusion on the alleged fact that the claim is cognizable under the federal statute known as the Longshoremen’s and Harbor Workers’ Compensation Act of March 4, 1927 (chapter 509, 44 Stat. 1424, U. S. Code, title 33, secs. 901-950 (33 USCA secs. 901-950)).

It is true that in Nogueira v. New York, N. H. & H. R. Co., 281 U. S. 128, 50 S. Ct. 303, 306, 74 L. Ed. 754, the Supreme Court of the United States, in discussing the question of when the said Longshoremen’s and Harbor Workers’ Compensation Act is applicable, said that when it does apply the remedy therein provided “shall be exclusive and in place of all other liability of such employer to the employee, his legal representative * * * at law or in admiralty.” Nevertheless, whether the rights of plaintiffs should be asserted under that act, or whether such recovery should be sought as 'is known to admiralty, is not within our prerogative to determine. We can only say that they cannot recover under the state compensation laws.

The judgment appealed from is affirmed.


text:
    No. 13,932
    Orleans
    RYAN v. GOODWYN
    (November 16, 1931. Opinion and Decree.)

      M. C. Seharff, of New Orleans, attorney for plaintiff, appellant.
    A. C. Kammer and E. I. Mahoney, of New Orleans, attorneys for defendant, appellee.
   JANVIER, J.

At about 5 o’clock in the late afternoon on November 8, 1929, plaintiff, Dan L. Ryan, was driving his Oldsmobile on Jackson avenue near Baronne street, going towards the Mississippi river.

At the same time defendant and plaintiff in reconvention, Miss Lilly B. Goodwyn, was driving, her automobile up Baronne street; her course being across Jackson avenue.

The automobiles collided at the corner of Jackson avenue and Baronne street, and the two owners, each convinced that the other was at fault, seek to recover for the respective losses sustained.

In the trial court judgment was rendered dismissing both" the main and the reconventional demands. Only Ryan has appealed.

Under the traffic laws of the city, automobiles proceeding on streets on which are located street car tracks are given the right of way over those on intersecting streets. Thus, at that crossing, vehicles on Jackson avenue have a right superior to those on Baronne street.

This, of course, does not mean that those on Jackson avenue may be driven at reckless speeds or that their operators may disregard the rights of others. Nor does it mean that cars on Jackson avenue may force others already in the intersection to come to a stop.

But it does mean that a driver, in the position in which Ryan was, was justified in assuming that a car, in the position in which Miss Goodwyn’s car was, would not attempt to force its way across, regardless-1 of the superior right of the other.

The two cars reached the intersection at approximately the'same time, and the Ryan car had the right to proceed. We reach the conclusion that Ryan’s speed was not excessive, and we feel that the proximate cause of the collision was Miss Goodwyn’s failure to realize that she was approaching Jackson avenue, on which traffic might be expected, and to which traffic the ordinance accorded the right of way.

We do not find evidence warranting a holding that Ryan was under the influence of liquor.

The judgment appealed from, in so far as it dismisses the demand of Ryan, must be reversed.

The estimate made for the repair of the Ryan car was $640, and it is not contended that this amount is incorrect. Personal injuries sustained were shown to be a lacerated wound of the scalp, which required treatment for about ten days. One hundred dollars is proper compensation for such an injury.

The judgment appealed from is amended, in so far as it rejects the demand of plaintiff, and there is now judgment in favor of plaintiff, Dan L. Ryan, and against defendant, Miss Lilly B. Goodwyn, in the sum of $740, with legal interest from judicial demand, and for all costs, and, as thus amended, the judgment is affirmed.