text:
    No. 481
    First Circuit
    DAVIS v. POITEVENT & FAVRE LBR. CO.
    (October 10, 1929. Opinion and Decree.)
    Henry L. Garland, of New Orleans, attorney for plaintiff, appellant.
    Spencer, Gidiere, Phelps & Dunbar,, of New Orleans, Harvey E. Ellis, of Covington, and R. D. Jones, of Franklinton, attorneys for defendant, appellee.
   ELLIOTT, J.

John E. Davis, plaintiff, instituted a suit against Poitevent & Pavre Lumber Company, defendant, in the district court of the parish of St. Tammany, for the purpose of recovering of the said defendant damages alleged to have been sustained as the result of an injunction suit brought against him by the defendant in the United States District Court for the Eastern District of Louisiana.

Defendant excepted to plaintiff’s demand on the ground that his petition was vague and indefinite and did not set forth a cause or right of action against it. The court sustained the exception of vagueness on May 16, 1928, but granted plaintiff the right, until the first day of the June term of eourt, to amend his petition. The exception of no cause of action was at the same time and by the same ruling taken under advisement, to be acted on on the first day of the June term.

On June 11, 1928, plaintiff presented to the court an amended and supplemental petition in the suit. The court signed an order on the same day, directing that it be filed and served on the defendant. Defendant accepted service, waived citation, and it was filed on the same day. This amended and supplemental petition, at least in the main, not only supplied the averments on which the exception of vagueness was based, but at the same time and in the same way and by documents annexed to, made part of and filed therewith, supplied facts which bore on the exception of no cause or right of action, leaving only the legal question whether the averments contained in the original, amended, and supplemental petition and documents annexed, constituted sufficient cause or right of action under the law.

There appears to have been no court held in June. At any rate, the court did not act on the exception of no cause or right of action until January 14, 1929, about six months after it had been filed. We do not find any objection urged to the amended and supplemental petition; consequently, we assume that it was timely filed and constituted part of plaintiff’s pleadings at the time the court ruled on the exception of no cause or right of action and dismissed the suit.

It does not appear from the minutes of the court nor from the judgment itself, which was signed on January 16, 1929, that the amended and supplemental petition was taken into account in acting on the exception. It would likely have been mentioned if' it had, because of the averments which it contains, and of the documents which were annexed, made part of and filed therewith.

The plaintiff states in his brief that the lower court did not have the amended and supplemental petition before him nor in mind at the time of ruling on the exception of no cause or right of action. He states that the deputy clerk of court had misplaced it and did not put it in the record where it belonged. The defendant admits as much in its brief. It says that the district judge did not see nor have before him the amended and supplemental petition, and the documents thereto annexed at the time of ruling on the exception of no cause or right of action; that the same had been mislaid by the clerk of eourt and was not brought to his attention. It appears plain that such was the case, and that it was not due to the fault of the plaintiff. The court had signed an order on June 11, 1928, directing that it be filed and served on the defendant, which was some six months previous; but we are satisfied that in ruling, due to the reason stated, it was not taken into account.

Taking cognizance of the amended and supplemental petition and its averments, the ' documents annexed thereto and filed therewith, the order signed by the judge directing that it be filed and served on the defendants, defendants’ acceptance of service and waiver of citation, and the fact that it was evidently not considered nor acted on by the court in ruling on the exception, our judgment under the present situation would not be a review of the case as it existed, resulting from the amended and supplemental petition.

The amended and supplemental petition with documents annexed supplies very important facts, which, taken in connection with the original petition, the legal situation is not the same as it was before the amended and supplemental petition was filed. As the lower court did not act on the amended and supplemental petition, he did not act on the case as it existed at the time he dismissed the suit. As far as the lower court was concerned, it was an oversight but it necessitates setting aside the judgment appealed from and remanding the case.

We go no further than to set the judgment aside and remand the case, in order that the lower court may act on the amended and supplemental petition and the documents annexed and filed therewith.

For these reasons the judgment appealed from is annulled, avoided, and set aside, and the case is now remanded to the lower court for the purpose stated.

Defendant and appellee to pay the cost of appeal.


source: Caselaw Access Project

author: MOUTON, J. ELLIOTT, J.,

license: Public Domain

text:
    No. 492
    First Circuit
    DONALDSON v. SHERIDAN
    (October 10, 1929. Opinion and Decree.)
    J. J. Jackson, of Hammond, attorney for plaintiff, appellee.
    Ott & Johnson, of Franlclinton, attorneys for defendant, appellant.
   MOUTON, J.

Plaintiff sues defendant for $375. His suit is based, substantially, on the allegations that he was given the exclusive agency by defendant to sell a property located in Hammond for $9000 on a five per centum commission by written agreement on the sale price within a fixed period of thirty days from the date of the agreement; that shortly after the date agreed upon, defendant personally or through the mediation of another, sold the property for $7500, which made it impossible for plaintiff to carry out his contract of agency with which he was willing to comply. Defendant was properly cited, a preliminary default was entered against him and subsequently confirmed within the legal delays for the amount claimed.

In the record appear the petition, citation on defendant at domicile, with proper return by the sheriff. There is, however, no written agreement in the record constituting plaintiff the agent of defendant to sell the property on a per centum basis as by him alleged, and no proof, oral or documentary, showing that defendant had violated his contract by selling the property through himself or another agent.

The contention of defendant appellant, is that the absence of such proof is fatal to plaintiff, and that the judgment confirming the default should be annulled and the case dismissed.

It may be proper to state at the outset that “we are not called upon in this case to review a statement of facts or a note of evidence taken upon the trial, and to decide whether the judgment is sustained by the proof,” as was stated by the court (Stout vs. Henderson, 157 La. 169, 102 So. 193, 194), in a case involving similar issues to those presented herein. The question here is as to whether, in the absence of a note of evidence, it must be presumed that the lower court proceeded to judgment on proper or sufficient evidence.

The clerk in his minute entry says in reference to the confirmation of the default that it was confirmed upon plaintiff “offering in evidence the original citation with the sheriff’s returns thereon, together with the record in the case, etc.”

If, as counsel for appellant contends, the offering was restricted to the petition, citation and return of the sheriff, why should the clerk have said in that minute entry that this offering was made “together with the record in the case?” If the offering had been limited to the citation and return, the words “together with the record” would not have been used. The word record, so used, must have reference to documentary proof or oral testimony which constituted that record referred to in connection with the citation and return, as hereinabove stated. Besides, this view of the minute entry is corroborated by the fact that in the judgment confirming the default it is stated it was rendered on the production by the attorney of “due proof in support of plaintiff’s demand.” See Ansley vs. Stuart, 123 La. 330, 48 So. 953, and where it is also stated, that the certificate of the clerk must yield to the minute entry.

Counsel for appellant contends that the judgment should be annulled, particularly, because the suit was predicated on a written contract of agency which is not in the record.

In Smith vs. City of New Orleans, 24 La. Ann. 20, where the suit was on a note a similar objection was raised, but the court held that though the note was not •offered in evidence, and that the record did not show that any proof had been introduced, the presumption was that the lower court had proceeded on proper evidence. Hence, the presumption .in this case is that sufficient evidence was offered on the written agreement, and also to show that defendant had violated his contract. See also Stout vs. Henderson, 157 La. 169, 102 So. 193; Ansley vs. Stuart, 123 La. 330, 48 So. 953.

ELLIOTT, J.,

dissenting.

The argument in the brief of defendant appellant that copies of two conveyances brought up in the record were not offered in evidence and are therefore not part of the record, and his citation of the case entitled Patsey Peters Daniels ys. John Wesley Peters et al., are not noticed in the opinion of the majority of the court.

I concur in the opinion to that extent.

Defendant Sheridan brought up the appeal in the form of a record under a certificate from the clerk of court which declares: "The foregoing to be a complete original record containing all the papers and documents filed therein and certified copy of the minute entries in the suit entitled Robert L. Donaldson vs. D. E. Sheridan, No. 2210 on the Civil Docket of this Honorable Court.”

7|he copies of conveyances do not bear a filing mark, but it does not necessarily follow that they were not offered in evidence. All documents offered in evidence should have been filed, but if offered in evidence the court could act on them, even though the clerk of court neglected to file them.

Under the certificate the record containing them is “complete,” therefore without them, it would not be; consequently, it' must be assumed that all the papers and documents brought up were offered in evidence and constitute the proper record of the suit.

The opinion of this court mentioned, supports defendant’s contention, and it is not supposed that the copy of it attached to defendant’s brief may not he a true copy, but the court was not then composed as it is now. It is not a reported decision, and therefore it should have been certified to by the clerk of court.

But the contention of defendant appellant that the judgment by default against him herein was confirmed without sufficient evidence, is in my opinion, well founded, and I dissent from the majority of opinion on that subject. Plaintiff’s sole cause of action is set out in averments 3 and 4 of his petition as follows:

“3. That on the 11th day of June, 1928, petitioner accepted the irrevocable, exclusive employment tending toward the sale of certain property of said Sheridan, located in the City of Hammond, Louisiana, for the price of $9000.00, to extend through a period of 30 days from the date of such agreement, petitioner’s compensation being fixed at 5 per centum of the sale price of said property, as will appear from said agreement, which was in writing and is hereto attached by reference and made part hereof, the same though as if written herein in extenso.
“4. That subsequent to said agreement and shortly after the day therein shown, petitioner is informed, believes and so alleges, that said Sheridan himself, personally or through the mediation of some other person or persons, sold, transferred and delivered the said property to Evon G. Till for the price and sum of $7500.00, which said transfer and act of sale, so petitioner is informed, believes and alleges, is of record in this parish and state, and is made part hereof, the same as if wholly written herein.”

In confirming a default the plaintiff must prove his demand in all cases. Code Practice, arts. 312 and 315. The demand could not be proved in this case except by the production and offering in evidence of the written agreement declared on in plaintiff’s petition.

The minute entry showing the confirmation says that plaintiff — “upon offering in evidence the original citation with sheriff’s returns thereon, together with the record in the case, it is ordered that there be judgment in favor of the plaintiff and against the defendant as prayed for.”

The judgment confirming the default recites that: “On motion of John J. Jackson, attorney for plaintiff, and on producing due proof in support of plaintiff’s demand, the court being of the opinion, and the law and the evidence being in favor of the plaintiff and against the defendant, and for the oral reasons assigned,’’ etc.

Neither the recital of the minute entry nor the above language used in the judgment justifies the deduction, in my opinion, that there were any papers or documents produced to the court and offered in evidence on the confirmation of this default, except those contained in the record certified to by the clerk of court.

The Code Practice, arts. 585 and 896, intend that the record of appeal certified to by the clerk of court shall show to the appellate court what evidence was before the lower court, when there is a record brought up certified to as the law provides. The “record” referred to in the minute entry was brought up. It shows that the statement contained in the judgment can refer to no proof except that contained in the record. The record contains no agreement of the kind mentioned in the petition; nor does it indicate that any was produced to the court and offered in evidence. The statement that the plaintiff produced due proof, etc., must be judged by the minute entry and certificate showing that no written proof was adduced, and from which it follows that the default was confirmed without due proof. See Deblanc vs. Deblanc, 15 La. Ann. 224.

In La. State Bank vs. Senecal, 9 La. 225, the syllabus reads as follows:

“In taking judgment by default and making it final in the absence of any defense, on proving the plaintiff’s demand, no evidence can be legally given of a fact not alleged.”

In that case the opinion shows that the fact not alleged, was notice of protest, and the court said in the body of the opinion:

“The counsel for the bank urges that notice may have been proven on the trial and before obtaining final judgment. He further contends that no defect of pleadings can be assigned as error, on the face of the record, which might be cured by legal evidence. This would be correct if there had been a trial on an issue made up by filing an answer; for then the consent of the party might be inferred from the want of objection being made to the omission or defect. But in the absence of any defense, no evidence can be legally given of a fact not alleged in the petition.”

In Lockett vs. Toby, 10 La. Ann. 718, rehearing p. 717, the defendant was absent at the time of the trial but had filed an answer in the case. Parol evidence was introduced as to the ownership of real estate. The court held, that the defendant having answered, the parol evidence showing the ownership of real estate might be considered. Citing and approving 9 La. 225; but that such evidence could not have been considered if it had been offered in confirming a default.

In Underwood vs. Lacapere, Landry & Bush, warrantors, 10 La. Ann. 766, the syllabus reads:

“A defendant in a suit, having filed an answer, is presumed to have been present at the trial, and can, if no bill of exception is taken to the admissibility of testimony, avail himself of an objection in the Supreme Court.
“When a warrantor has made default, the party who has called him is bound to prove his demand, and this by testimony that appears prima facie to have been taken according to law.”

In Craver vs. Gillespie, 148 La. 182, 86 So. 730, the syllabus reads in part:

“When defendant defaulted, evidence received in proving up the default could not enlarge the cause of action pleaded, because defendant was not present consenting.”

In Gubernator vs. City of New Orleans, 20 La. Ann. 106, the syllabus reads in part:

“Where the record discloses the fact that a judgment by default has been confirmed without introducing the evidence on which it is founded, although it is on file in the case, the judgment will be declared null and void on appeal, and the case will be remanded to be proceeded in according to law.”

In Dunham & Co. vs. Locke, 149 La. 897, 90 So. 256, the syllabus reads in part:

“C. P., Art. 312 requires that to confirm a judgment taken by default, the plaintiff must in all cases prove his demand. And to recover for materials furnished a contractor and used in the owner’s building, the judgment not showing contractor’s default or failure to carry out his contract, or that any demand was ever made upon him or his surety, will not be sustained.”

In the Gubernator and Dunham cases the Supreme Court, acting on the record, reversed the judgment appealed from because of the lack of evidence to support the confirmation.

In the present case Sheridan never made any appearance; consequently the cause of action alleged could not be enlarged against him. But even if the record had shown that parol evidence of the alleged agreement had been offered, it could not have been considered.

Stout vs. Henderson, 157 La. 169, 102 So. 193, 194, cited in the opinion of the majority of the court, in which the court said: “We are not called upon in this case to review a statement of facts or the note of evidence taken upon the trial, and to decide whether the judgment is sustained by the proof offered,” appears to have been a case |n which there was no note of testimony, and in which parol evidence might have been admitted in confirming the default.

In the case now before us the minute entry shows that the record before us was offered in evidence, and the certificate shows what it contained.

The effect of the provisions of the Code Practice, arts. 175, 324, 325, 326, and Civil Code, arts. 2244, 2245 is that the maker of a note is supposed to admit his signature to the note, if he does not appear and deny it. Kearney vs. Fenner, 14 La. Ann. 870. But certainly the note sued on, must, on confirming the default, be produced and offered in evidence.

I think the judgment against the defendant in this case should be annulled, avoided and set aside, and plaintiff’s demand rejected as in case of non-suit.


author: WESTERFIELD, J.

text:
    No. 11,308
    Orleans
    N. O. COAL & BISSO TOWBOAT CO. v. MERMELSTEIN
    (October 21, 1929. Opinion and Decree.)

      Bond, Curtis & Hall, of New Orleans, attorneys for plaintiff, appellant.
    Feitel and Feitel, of New Orleans, attorneys for defendant, appellee.
   WESTERFIELD, J.

This is a suit for §121.95, the alleged value of certain brass said to have been sold and delivered defendant by plaintiff. Defendant denies having bought or received the brass.

On behalf of plaintiff, its president, Wm. A. Bisso, testifies that an agreement of sale was entered into with defendant in plaintiff’s place of business and that thereafter the brass was removed by trucks. He is to some extent corroborated by his son, Wm. A. Bisso, Jr., but neither are able to testify that the brass was in fact delivered to defendant. On the other hand, the defendant denies any knowledge of the transaction and says that it is the custom in that line of business to pay spot cash on delivery and that he had followed this custom in several other transactions which he had with the plaintiff. He also testifies that he has two brothers in the same line of business intimating that the brass might have been bought by one or the other of his brothers.

The trial court evidently concluded that plaintiff had failed to connect the defendant with the sale since judgment was rendered in favor of defendant dismissing plaintiff’s suit. We are unable to say that the court was manifestly in error, and, consequently, the judgment will be affirmed.

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

JANVIER, J., having been counsel, takes no part.


text:
    No. 11,680
    Orleans
    STOUT v. LEWIS ET AL.
    (June 24, 1929. Opinion and Decree.)
    (November 4, 1929. Writ of Certiorari and Review Refused by Supreme Court.)

      J. C. McGee, of New Orleans, amicus curiae.
    Wm. A. Porteous, of New Orleans, amicus curiae.
    Andrew Booth, M. C. Scharff and Eugene Thorpe, of New Orleans, attorneys for plaintiff, appellant.
    Ivy Kittredge, of New Orleans, attorney for John A. Lewis, defendant appellee.
    Miller, Miller & Fletchinger, of New Orleans, attorneys for Christian Hahn, defendant, appellee.
   WESTERFIELD, J.

Plaintiff sues Christian Hahn and Dr. John A. Lewis in so-lido, claiming $30,000 as damages for physical injuries suffered by his 18-year old minor son, John Stout, Jr., as the result of a collision between an automobile belonging to Hahn, and an automobile belonging to Dr. Lewis. There was judgment below in favor of both defendants dismissing plaintiff’s suit. Plaintiff has appealed.

The accident occurred at the intersection of Birch Street and Carrollton Avenue. The Hahn car was driven by Christian Hahn, Jr., the defendant Hahn’s minor son, for whose negligence the defendant Hahn is responsible. Sutton vs. Champagne, 141 La. 469, 75 So. 209. It was a 7-passenger Studebaker and was occupied by six young men, three of whom were inside and three outside on the running board, John Stout, Jr., whom, for convenience, we shall hereafter refer to as plaintiff, being one of the three on the running board.

Hahn, Sr., had requested his son to drive the car to his place of business for the purpose of taking him to a prize fight, and, in compliance with that request, the young man left his home about 7:30 p. m., and invited the other young men to ride with him a part of the way. It was the intention of plaintiff and that of the other two young men on the running board to alight from the car near the point where the accident happened, in order to attend a picture show in that vicinity.

The Hahn car had crossed the upper roadway of Carrollton Avenue and the car tracks and had made a three-quarter turn into the lower roadway when struck by the Lewis, car. The Lewis ear was ¡proceeding along the lower or downtown side of Carrollton Avenue in the direction of the basin, the direction in which the Hahn car intended to proceed after having completed the turn. The impact of the collision was not very severe since the damage to each car was very slight, the Lewis car being repaired at an expense of $5. However, it was sufficiently violent to throw young Stout off his balance and on to the pavement, breaking his leg.

After carefully considering the evidence bearing on the. question of fault of the drivers of the colliding automobiles, as contained in the voluminous record, we have reached the same conclusion in this regard as the trial judge, and find the Hahn car at fault for the failure of its driver to observe the provisions of the City Ordinance. We refer to Section 7, of the Traffic Ordinance, No. 7490 C. C. S., particularly sub-divisions “c” and “d” thereof, which read as follows:

“(c) On all other streets, and at intersections of right-of-way streets with one another, all vehicles approaching intersecting streets from the left shall give right-of-way to vehicles approaching from the right.
“(d) On streets and avenues having neutral grounds and carrying street car Unes, vehicles crossing such neutral grounds shall have right-of-way to complete the crossing of the roadway of such street or avenue under the following conditions:
“Provided the vehicle shall come to a full stop when about to leave the neutral ground and enter the roadway, shall signal with horn, and give opportunity for approaching vehicles in the roadway to come to a stop; it being the intention of this provision to require vehicles in said roadway to stop upon receiving reasonable warning in order that vehicles standing on the neutral ground shall be permitted to complete the crossing of or turning into the roadway.”

It is conceded that the Hahn car did not stop in crossing the neutral ground and did not signal with its horn, but it is contended that the purpose of the quoted provisions of the ordinance is to give the vehicles crossing the neutral ground the right-of-way when the driver observes the precautions referred to, and that the failure of the driver to signal with his horn and stop can have no other effect than to leave the right of way with vehicles approaching the intersection in the roadway. Assuming that the ordinance will bear this narrow construction, its application to the circumstances of this would nevertheless result in a finding of negligence on the part of the driver of the Hahn car, for the reason that it was its duty to have respected the right-of-way of the Lewis car and not dispute the crossing with it.

We are inclined to the view, however, that the intention of the quoted section of the ordinance is to require vehicles on the neutral ground either to sound their horn as a warning of their intention to proceed, or to stop and await the clearing of traffic in the roadway before entering.

We also agree with the trial judge in finding the Lewis car without fault. The evidence concerning hi's excessive speed is not satisfactory, and, while his testimony indicates that he was somewhat confused, this circumstance is not sufficient to discredit his testimony. He had a right to assume that the Hahn car would observe the city ordinance, and when he discovered the contrary it was too late to stop his car in time to avoid the collision.

There remains for consideration the question of the contributory negligence of the plaintiff. Both defendants have pleaded contributory negligence, but since we have found the Lewis car without fault, it is only of interest in connection with the liability of the defendant Hahn. Article 8, sub-section 2 of the Traffic Ordinance reads as follows:

“No person shall ride on the running board or fenders of a vehicle or hang on or hitch on the rear of any vehicle.”

The plaintiff was, therefore, negligent in riding on the running board. Can his negligence be said to be the proximate cause of the accident? Shick vs. Jenevin, 145 La. 334, 82 So. 360; Manceaux vs. Hunter Canal Company, 148 La. 97, 86 So. 665.

In Berry on Automobiles, 6th Ed., Vol. 1, page 480, we read the following: .

“A child, even of tender years, who trespasses on the running board or other part of an automobile in the highway, is entitled only to the duty owed to a trespasser; i. e., the duty on the part of the operator not to injure him wilfully or wantonly and the duty to take proper precautions against injuring him after discovering his presence.”

But, in this case, the plaintiff was not a trespasser but was a guest of the defendant Hahn, and he was on the running board with the knowledge and consent of the driver of the Hahn automobile. The defendant’s relation to plaintiff was that of a private gratuitous carrier. He was obliged to exercise ordinary care to prevent plaintiff’s injury.

That plaintiff was guilty of negligence in assuming a position on the running board of defendant’s car in violation of the City Ordinance cannot be gainsaid, and, it might be said that were it not for his negligence in riding upon the -running board, the collision with the Lewis car, though due to the negligent operation of the Hahn car, would not have caused the injury of which he complains. In other words, if he had been inside of the car the collision was not sufficiently violent to have injured him.

A superficial consideration of the subject would lead us to this result. Indeed our first impression of plaintiff’s conduct was fatal to his recovery, being largely influenced by the perilous position voluntarily assumed by him in violation of the traffic ordinance. But, upon reflection, we are convinced of the error of this view.

The negligence of the plaintiff in this case, as affecting his right to recover, his contributory negligence involved the assumption of the risk and peril incident thereto. He assumed the risk of his dangerous position. If it may be said that his injuries were the natural consequences of the risk he assumed, he cannot recover.

It is not sufficient to say that he would not have been hurt if he' had not been on the running board, because he might have remained upon the running board until he had reached his destination without injury- but for the negligent management of the car, on the running board of which he was riding, a risk which he 'did not assume. Whatever danger may have been involved in riding upon the running board, and such risk as would ordinarily be incident thereto, in the ordinary and usual operation of defendant’s automobile,' were assumed by the plaintiff. But plaintiff was a passenger and defendant owed him the duty of ordinary care, an obligation he was not relieved of by plaintiff’s carelessness.

In Gornstein vs. Priver, 64 Cal. App. 249, 221 Pac. 396, the Court of Appeal for California, in a very well considered case, held that a passenger seated in a truck with her legs hanging over the end with the owner’s tacit approval and consent, did not assume the risk of danger created by the negligence of the owner’s driver and she was held not to be contributorily negligent. We quote from that opinion:

“If plaintiff was imprudent in seating herself as she did, then, while she may be deemed to have assumed all the risks of danger ordinarily incident to such position of peril, she did not assume the risk of danger created by the negligence of defendant’s drivers in their operation of the trucks. Her position on the truck, however perilous it may have been, was taken with defendant’s tacit approval and consent, and it did' not dissolve the contract of carriage. It did not sever plaintiff’s relation of passenger to defendant as a private carrier for hire. Nor did it relieve defendant from that duty of protection which he owed plaintiff as a passenger on one of his trucks. For her safety while she was such passenger, defendant owed plaintiff the right to ordinary care on the part of his servants; that being the degree of care which is due by a private carrier for hire and was the degree of care which plaintiff was entitled to demand and to expect. In other words, though she assumed all the risks ordinarily incident to the position in which she seated herself on the truck, whether it was known to her to be dangerous or not — such risks, for example, as might be due to the ordinary and usual swaying of the truck or its ordinary and usual movements — still she did not forfeit her right to exact from defendant and his servants the same care to which she would have been entitled had she taken the safest seat on the vehicle. See Willmott vs. Corrign, etc., Ry. Co., 106 Mo. 535, 17 S. W. 490. Had plaintiff sustained injury solely because of the position in which she had seated herself, and without any negligence qn the part of defendant’s drivers in their operation of the trucks, she probably could not have recovered any damages from defendant. Thus, for example, if, during the usual and ordinary movements of the truck on which she was riding and without any negligence on the part of defendant’s drivers in their management of the machines, plaintiff, solely by reason of the position which she had taken, had been bounced off the truck, she probably would have had no remedy against defendant, for the very good reason that in that case she would have to attribute her injury solely to her own voluntary conduct. That would be one of the risks ordinarily incident to plaintiff’s position on the truck. But, while assuming risks of that character, plaintiff did not assume the risk of danger created by the negligent misconduct of defendant’s drivers; and for injury caused by such misconduct defendant is liable.”

See also Robinson vs. American Ice Co., 292 Pa. 366, 141 Atl. 244.

If the plaintiff, in the instant case, had been jolted off the running board by reason of some unevenness in the roadway, while the automobile was being driven in the customary way, we would say that he could not recover for any injuries he might have sustained, because he had assumed the risk involved. But, on the other hand, he had a right to rely upon the proper discharge of defendant’s duty to him and was not obliged to anticipate negligence on the part of the driver of the Hahn automobile. The following quotation from Ruling Case Law cited in the case of Gornstein vs. Priver, supra, is declarative of the principle referred to:

“While a person who asserts a right to recovery on the ground of negligence must be prepared to show that he exercised vigilance to discover and avoid the danger embodied in the offending instrumentality, he excuses himself for an omission to take active measures — such as looking, listening and making inspections —by proof that the defendant owed to him a duty of care, and that he relied uipon the performance thereof. The presumption is that duties fixed by law or custom will be discharged in due form; and every one to whom a duty is due has a right to assume that it will be performed — he need not anticipate negligence on the part of his obligor, even though the latter has been negligent on other occasions.”

20 R. C. L., title: Negligence, sec. 101.

See also Wright vs. Foreman 86 Cal. App. 595, 261 Pac. 483; Rignell vs. Font, 266 Pac. 590.

Our conclusion is that the defendant Hahn is responsible for plaintiff’s injury and that plaintiff should recover.

As to the quantum of damages, the injuries to plaintiff’s son are thus described by his physician:

“A compound comminuted fracture of both bones of the left leg with loss of bone substance from the tibia which subsequently developed an infection and injury to the nerves with production of ulcers; there was regeneration of the majority of the bone substance. There still persists an ulcer on the heel which is very resistant to treatment. There is still over the tibia, which for a time had a tendency to break down, but which has remained healed for several months. The sensation has returned, which indicates that the nerve was not completely severed, but was sufficiently injured to produce atrophic disturbance. There is limitation of the motion of the angle and there is still some contraction of the toes as the result of this injury to the nerves.”

He was confined to the hospital for six months. We will allow $3500.

For the reasons assigned the judgment appealed from insofar as it is in favor of the defendant, Christian Hahn, is reversed and it is now ordered, adjudged and decreed that there be judgment in favor of John S. Stout, on behalf of and for the use and benefit of his minor son, John S. Stout, Jr., and against Christian Hahn, in the full sum of $3500. In all other respects the judgment appealed from is affirmed.


author: ELLIOTT, J.

text:
    No. 508
    First Circuit
    LIPSCOMB v. STANDARD HIGHWAY CO., INC.
    (October 10, 1929. Opinion and Decree.)

      Robt. M. McGehee, of Hammond, attorney for plaintiff, appellant.
    Rownd & Warner, of Hammond, attorneys for defendant, appellee.
   ELLIOTT, J.

Prank Lipscomb, while driving an automobile west on East Thomas street in the city of Hammond, La., state highway No. 190, was badly injured in a collision with a log wagon, being drawn by four mules, belonging to Standard Highway Company, Inc., and driven by Jim Aikens, its employee. The collision occurred at about 8 o’clock p. m. on July 18, 1928.

The plaintiff alleges: That he approached the rear of an automobile, going west, the direction in which he was going. That he signaled with his horn to pass, and, as he turned to the left to do so, there approached a double mule team hitched to a large heavy wagon driven in an eastern direction. That, while he was in the act of going around the car traveling in the same direction as himself, the wagon hit the front end of his car, driving the wagon tongue through the radiator, engine, and about 6 inches inside through the floor boards, demolishing his car, striking and rendering him unconscious, etc.

That the place was dark where the accident happened, being surrounded on one side by a pine thicket and by a large oak and pecan tree on the other. That had it not been for the dark place and the fact that he was engaged in making a curve around the car he was passing, the approaching vehicle would have been shown to him by the lights on his own car.

That the laws of the state and the city ordinance of Hammond require that all animal drawn vehicles using the streets and highway must be equipped with lights on the left-hand side of the vehicle, of such visibility as to be seen at least 300 feet either in front or behind.

That defendant was operating its said vehicle on said street and highway without a light, and in so doing was negligently violating said ordinance of the city and law of the state. That his injuries and damages were caused solely and entirely by the negligence, carelessness, and want of precaution on the part of the defendant. That he did not in any way contribute thereto.

He claims of the defendant $10,214 in damages on said account, of which amount $450, is for the loss of his automobile.

Defendant denies the negligence and carelessness alleged against it. Denies that it was the cause of plaintiff’s injuries, denies responsibility therefor, and alleges that the accident was caused solely by the gross fault, carelessness, and recklessness of the plaintiff.

It further avers that its wagon did not run into plaintiff’s car; that plaintiff’s car ra'n into its wagon; that one of its mules was killed in the collision; and that it suffered a loss of $265 on account of same.

It prayed for the rejection of plaintiff’s demand and for judgment against the plaintiff in reconvention for $265.

The lower court for written reasons held that defendant was negligent, but that the accident was caused by the contributory negligence of the defendant, and rendered judgment rejecting the demand of both parties.

The plaintiff appealed.

Plaintiff’s brief in support of his demand cites many authorities, and contains a diagram which purports to show the course of plaintiff’s car, and that of defendant’s wagon, just previous to the accident, and their positions in the street at the moment of the impact.

No brief has been filed by defendant.

The evidence shows that defendant’s wagon and mule team was being driven on the public street and highway mentioned without a light. If there is an ordinance of the city of Hammond on the subject, it was not offered in evidence. The state law, Act No. 232 of 1926, sec. 5, provides:

‘‘All animal drawn vehicles, using the highways of this state, shall display a white light on the left hand side of the vehicle, so as to be plainly visible a distance of 300 feet from the front and rear of such vehicle.”

Defendant was therefore committing a negligent violation of this law.

The question in the case is whether the plaintiff was at fault, negligent and reckless, as alleged by defendant, and whether his fault, negligence and reckless act contributed to bring about the collision and his own injury.

The defendant does not allege contributory negligence on the part of the plaintiff in express terms, but does charge explicitly that the plaintiff’s fault, negligence, and recklessness was the sole cause of the accident, and prays that his suit against it be dismissed. This, in our opinion, includes the question of contributory fault, negligence, and recklessness on the part of the plaintiff.

The plaintiff’s version of the occurrence is as follows:

“I was going in on East Thomas street in a westerly direction and fell in behind a car right ahead of me, and in so doing I turned to my left and blew my horn. As I did, I saw this .object ahead of me, a wagon with a team. I applied the brakes and that is all I can remember.”

That he was traveling between 12 and 15 miles an hour at the time.

Speaking of the occurrence later, he says:

“When I fell in behind the car and blew my horn to give the signal that I wanted to pass, I didn’t see the object until then, then I saw this object right ahead of me and I applied the brakes as quick as possible, but it was too late, I was just right on him.”

Cross-examined:

“Q. Did you pass that car?
“A. No, I never did pass it.
“Q. You testified a few minutes ago that you passed it?
“A. I went to pass it, I blew to pass.
“Q. You blew to pass it?
“A. But I never did pass it.
“Q. How fast were you going?
“A. Well, 12 or between 12 and 15 miles an hour.”

He further testifies that he was not more than 15 or 20 feet from the mules when he first saw them; that the wagon ran into him; that the Day car at which he had blown to pass was about 15 or 20 feet ahead of him at the time of the collision, on his right; that the headlights on his own car were burning bright; that he could see about 35 feet ahead under the headlights of his own car.

“Q. Why didn’t you see the mule team before you got within 15 feet of them?
“A. I was behind this car and the lights didn’t go that way. I couldn’t see them for this car.
“Q. But didn’t you pull over to the left?
“A. When I went to pass.
“Q. He was only 10 or 15 feet in front of you before you pulled over to the left?
“A. Yes, sir.
“Q. Is that correct?
“A. Yes, sir.
“Q. And as soon as you pulled over to the left you hit the wagon?
“A. Yes, .sir.
“Q. And you were only going 12 miles an hour?
“A. 12 miles. Between 12 and 15 miles an hour.”

The wagon was an 8-wheeled log wagon, being pulled by four mules working in pairs, two in the lead and two under the tongue. The driver, Jim Aikens, was riding the tongue mule on the right-hand side. The car at which plaintiff had blown was being driven by Collins Day, accompanied by his wife.

Mr. Day, witness for plaintiff, testifies that Mr. Lipscomb blew his horn, and that he pulled over to the right-hand side of the road to let him pass; that he (Day) had already passed the mules at the time, and just as Lipscomb turned to the left the collision occurred. He estimated that he had gone about 25 or 30 feet when he heard the crash.

On cross-examination:

He repeated that Lipscomb did not pass him at all; that about 20 feet was the nearest that Lipscomb got to him.

“Q. You state that you pulled over to the right-hand side. At the time you pulled over did you see the mules?
“A. I had already passed them when I pulled over.
“Q. Did you have any trouble seeing the mules?
“A. No, sir, not at all. You could have heard them clear down the street, the mules with the wagon like that, four mules on the pavement, that way or on the ground either, you could have heard them.”

Asked if there was room between his car and the wagon for another car, and he replied in the affirmative.

Asked how far Mr. Lipscomb’s car was behind him when the impact occurred, and he said he did not know exactly; that he heard the horn and pulled over, and then, just a second after, he heard the crash; that he had gone 25 or 30 feet after hearing plaintiff’s horn and passing the team, before the sound of the hitting.

Asked again, when meeting the wagon, if he had any trouble in seeing it with his light, and he answered that he did not have any trouble seeing them; that you could hear them a good while before you saw them. You could hear them for a block; that the mules were walking at the time.

Mrs. Day, witness for plaintiff, was in the car with her husband. She testifies that, when Mr. Lipscomb blew, they thought he was blowing for them. Asked to tell what happened, and she said that they heard the horn and drew to the side of the road for the car to pass; that they had passed the wagon, and just about that time they heard them crash together.

“Q. Did you pull over from the sound of the horn before you passed the wagon or after?
“A. It was a little after we passed the wagon.”

Cross-examined:

“Q. You noticed the wagon when you passed?
“A. Yes, sir.”

Jim Aikens, the negro driver of defendant’s wagon, testifies that he met and passed the Day ear; that, after passing it a distance of about the width of the street, he was run into by the plaintiff; that he first noticed the lights of plaintiff’s car about 100 feet ahead of him coming forward in a zig-zag course.

The plaintiff speaks of the place where the collision occurred as having been dark, but he is not corroborated in that respect by Mr. Day.

The evidence shows that the collision took place on the right-hand side of the road, in the direction the wagon was going, which was the right side for the wagon and the wrong side for the plaintiff, except for the purpose of going around another car . traveling in the same direction as himself. He was not making a curve at the time around the Day car, as he alleges. The Day car and defendant’s wagon had at the time passed each other. Plaintiff never got up to the Day car; he was behind it a distance estimated by Mr. Day at 50- feet, at the time he blew, and the collision between him and defendant’s team occurred almost immediately thereafter.

The Day car was not concealing defendant’s team from plaintiff’s view, as plaintiff testified, at the time he turned to the left, because it was ahead of him on the same side of the road on which he was himself; while defendant’s team was advancing east toward plaintiff, not behind the Day car, but on the opposite side of the road, and was nearer to the plaintiff at the time than was the Day ear. But, when plaintiff turned to the left, it was for the purpose of going around the Day car, and the collision occurred almost immediately after he had turned; but not before plaintiff had had opportunity to get on the left-hand side of the road, because his car hit the lead mules, broke the leg of one, and threw the other up on top of the hood against his windshield, and hit straight forward against the end of the wagon tongue.

At the time plaintiff blew and turned he must have been within 15 or 20 feet of defendant’s team. Two pair of mules walking one behind the other, the driver riding one of the tongue mules, the 8-wheeled wagon following, was a conspicuous object, so close to him that he could not help seeing it under the headlights of his own car if he had been looking or exercising any care in the direction he had turned. At such a close distance he could not have helped seeing it in the dark without lights, unless the place was exceptionally dark.

Plaintiff was asked:

“Q. Are you-in position to state to the court that, if this object had had a light on it, this accident would have been avoided?
“A. It would.”

This opinion is negatived by the showing that he could and would have seen it under his own lights if he had been looking. Without lights, he could not have helped seeing it if he had been looking, unless the place was exceptionally dark.

Under the law the plaintiff is charged with seeing what he must necessarily have seen, if he had been looking in the direction he had turned. Kelly vs. Schmidt & Zeigler, 142 La. 91, 76 So. 250; Gibbens vs. N. O. Terminal Co., 159 La. 347, 105 So. 367.

Negligence is a failure to observe or do something one ought to have seen or done, and would have noticed or done with ordinary vigilance. It is the failure to be prepared for something visible or at least of probable occurrence, or that might be reasonably expected to happen. Hearn vs. St. Charles St. R. Co., 34 La. Ann. 160, p. 163; Gallaher vs. Crescent City R. Co., 37 La. Ann. 288, p. 291; Hanson vs. Mansfield R. & T. Co., 38 La. Ann. 111, p. 117, 58 Am. Rep. 162; Barnes vs. Shreveport City R. Co., 47 La. Ann. 1218, p. 1224, 17 So. 782, 49 Am. St. Rep. 400; New Orleans & N. E. R. Co. vs. McEwen & Murray, 49 La. Ann. 1184, p. 1196, 22 So. 675, 38 L. R. A. 134; Clerc vs. Morgan’s Louisiana & T. R. & S. S. Co., 107 La. 370, p. 380, 31 So. 886, 90 Am. St. Rep. 319; Northern Pac. R. Co. vs. Adams, 192 U. S. 440, p. 450, 24 S. Ct. 408, 48 L. Ed. 513.

Plaintiff should not have turned to the left side of the road without first seeing if it was clear and open for him to do so. He did turn and drive right into defendant’s team, which he could not help but see. Such disregard for what must be taken to have been an obvious, apparent encounter was more than mere carelessness; it was recklessness.

Contributory negligence is where plaintiff and defendant have each done or omitted to do some act, through negligence, which it was their duty to do, and their combined negligence has produced the injury of which one or both of them complain. Bomar vs. Louisiana N. & S. R. Co., 42 La. Ann. 983, 8 So. 478; Cline vs. Crescent City R. Co., 43 La. Ann. 327, p. 333, 9 So. 122, 26 Am. St. Rep. 187; Paland vs. Chicago, St. L. & N. O. R. Co., 44 La. Ann. 1003, 11 So. 707; Ferris vs. Hernsheim, 51 La. Ann. 178, p. 180, 24 So. 771.

The plaintiff contends that defendant’s failure to have a light on its wagon was a violation of a law intended for the safety of all concerned, and that contributory negligence cannot avail as a defense against an act of that kind.

The burden of proof is upon the defendant to show that the fault and negligence of the plaintiff produced or contributed to bring about his own hurt as a result of the same.

That burden has been discharged; the fact appears, and it is sufficient if it is available.

It is well established that the violation of a city ordinance does not necessarily carry with it the abrogation of the application of the rules of contributory negligence or other questions affecting defensive liability of the defendants for damages in particular eases. Lopes vs. Sahuque, 114 La. 1004, 38 So. 810; May vs. T. & P. Railroad Co., 123 La. 647, 49 So. 272; Adams vs. Arkansas, L. & G. Railroad Co., 127 La. 567, 53 So. 865; Gibbens vs. N. O. Terminal Co., 159 La. 347, 105 So. 367.

In regard to the laws of the state, the same rule has been applied. Thus in Hailey vs. R. R. Co., 113 La. 533, 37 So. 131, 133, the court considered the neglect of a railroad company to comply with the provisions of Act No. 39 of 1882, the requiring language of which is about the same as that of Act No. 232 of 1926, sec. 5.

The court said;

“It is true that the failure to erect the tell-tale or ‘whipropes’ will not excuse negligence on the part of the employee in attempting to cross without stooping, if he is well aware that he should stoop; but if it does not appear that he was aware of the necessity of timely stooping about two feet to be safe, knowledge will not be imputed in the absence of testimony fixing it upon him.”

In Dalberni vs. N. O. Can Co., 139 La. 49, 71 So. 214, the court acted on the same question under Act No. 34 of 1906 and Act No. 301 of 1908, concerning the employment of children, and in so doing said:

“The only conclusion from the testimony is that the daughter of plaintiffs negligenly permitted her foot to rest on the treadle, and that the die descended on her thumb and injured it. In so doing, she contributed towards the damage, and plaintiffs cannot recover.”

The same defense based on the same acts was urged in Darsam vs. Kohlmann, 123 La. 164, 48 So. 781, 20 L. R. A. (N. S.) 881. The syllabus reads in part:

“Whilst the violation by the master of the provisions of a statute regulating the employment of his servants is negligence per se, and actionable, if injuries are sustained by the servants in consequence thereof, such provisions are not to be so construed as to abrogate the ordinary rules relating to contributory negligence, which is available as a defense, notwithstanding the statute, unless the latter is so worded as to leave no doubt that such defense is to be excluded.”

The question was re-examined in Alexander vs. Standard Oil Co. of Louisiana, 140 La. 54, 72 So. 806, and the ruling in Darsam vs. Kohlmann was approved.

In Flores vs. Steeg Printing & Publishing Co., 142 La. 1068, 1069, 78 So. 119, the syllabus reads in part:

“In a suit for damages resulting to a .child over 14 and under 16 in the course of his employment, contributory negligence may be pleaded and proved by the defendant.”

In Tatum vs. R. R. Co., 124 La. 921, 50 So. 796, 798, the Supreme Court approvingly quoted from Thompson on Negligence :

“Where the ease of the traveller’s contributory negligence in this situation is clear as a matter of law, the railroad company may urge this as a defense although itself violating a statutory regulation at the time of the accident.”

In Carlisle vs. La. Oil Refining Corporation, 3 La. App. 671, the syllabus reads in part:

“To recover damages caused to an automobile by its running into a truck operated without lights at night it is necessary for the plaintiff, owner of the damaged automobile, to prove that the accident was caused by the negligence of the operator of the truck, and that he, plaintiff, was not guilty of any negligence which created or aided in the accident.”

In Lemee vs. T. & P. Railroad Co., 141 La. 769, 75 So. 676, the court considered and applied, the Safety Appliance Act of Congress. In that case it was held that-the violation of the Safety Appliance Act of Congress constituted negligence per se on the part of the railroad company, and that contributory negligence on the part of the injured employee was excluded from consideration; that such was the evident intention of the Act of Congress, citing Southern Ry. Co. vs. U. S., 222 U. S. 20, 32 S. Ct. 2, 56 L. Ed. 72, and San Antonio & Aransas Pass R. Co. vs. Wagner, 241 U. S. 476, 36 S. Ct. 626. 60 L. Ed. 1110.

In the Lemee case the court held that it had not been shown that Lemee was at fault. The case was therefore no departure from the previous decisions based upon the statutes of this state.

The Steeg case, subsequently decided, adheres to the rule stated in Darsam vs, Kohlman, 123 La. 164, 48 So. 781, 20 L. R. A. (N. S.) 881.

We therefore hold that Lipscomb, having turned to his left and driven straight, ahead right into defendant’s team, in the obvious occupation of the side of the road on which it belonged to be, in the direction it was going, and having received his personal injuries and property loss, because of his disregard' of the same, that such conduct bars recovery notwithstanding the fact that defendant was at the time violating the law by failing to have lights on his wagon.

The finding of the lower court, in our opinion, was correct.

Judgment affirmed; plaintiff and appellant to pay the cost in both courts.

MOUTON, J., not participating.


author: JANVIER, J.

text:
      No. 11,344
    Orleans
    ANDERSON v. DRIVERLESS CARS, INC., ET AL.
    (October 21, 1929. Opinion and Decree.)

      M. C. Scharff and Quintero & Ritter, of New Orleans,- attorneys for appellant.
    Alexis Brian, of New Orleans, attorney for appellee, exceptor.
    A. Morgan Brian, of New Orleans, attorney for appellee Laurent.
    Arthur B. Hammond, of New Orleans, attorney for intervener.
   JANVIER, J.

Plaintiff sustained personal injuries as the result of a collision between the Ford automobile which he was driving and an Oakland touring car owned by Driverless Cars, Inc., one of the defendants, and rented to and operated by Sidney P. Laurent, the other defendant. It is alleged that Laurent is liable because of his negligent operation of the car, and liability is sought to be fastened on the Driverless Cars, Inc., because of alleged defective brakes on the car rented by it and for the reason that, so plaintiff contends, Laurent, the person to whom the car' was rented, had no driver’s license, as required by city ordinance, and was inexperienced and incompetent.

Plaintiff was in the employ of the Board of Commissioners of the port of New Orleans commonly known as the “Dock Board,” and, as his injuries were sustained in the course of his employment, the “Dock Board” paid him compensation, and also paid his hospital and other expenses, and intervened in this suit, asking that, out of any sum awarded plaintiff, the amount of these expenditures, to-wit, $59.87, be returned to it. In the court below judgment was rendered in plaintiff’s favor against Laurent for $200, but the suit as against Driverless Cars, Inc., was dismissed. Apparently through oversight, the intervention of the “Dock Board” was not adjudicated upon.

As Laurent has not appealed from the judgment against him, that judgment is final.

In considering the liability vel non of Driverless Cars, Inc., we deem it advisable to first dispose of the charge that the brakes of the car were defective. This is solely a question of fact, and our examination of the record convinces us of the correctness of the finding of the trial court to the effect that “the auto in question was in good condition at the time of the collision.”

Since the car was in good condition, the question arises whether the negligence of Laurent in operating the car would render the owner thereof liable.

If an automobile could be classed as an inherently dangerous agency, then there might be some force to the argument that an owner is liable for the damages caused thereby in the hands of a careless borrower or hirer. But, as was said by this court in Lanauze vs. A. Baldwin & Co., Limited, etc., 2 La. App. 345:

“There was a time, perhaps, when automobiles were regarded as ferae naturae. The man on the street or on the road regarded them as a dangerous toy of the predatory rich, and this sentiment was reflected in the courts, whose decisions indicated a disposition to hold the owners responsible as possessors of dangerous instruments. Now, ‘everybody has an automobile and every nigger a Ford,’ and the situation is different. * * *”

To the same effect, this court said in Bardt vs. Champon, 6 La. App. 763:

“Mere ownership of an automobile does not make one legally liable for the damage it causes while being operated by another, who is not an agent or employee of the owner.”

Since an automobile, though not an inherently dangerous agency, may become such if intrusted to incompetent hands, it follows that the owner lending or renting his car must make reasonable investigation to determine whether or -not the borrower or renter is an ordinarily competent operator.

In Baader vs. Driverless Cars, Inc., 10 La. App. 310, 120 So. 515, we held this same defendant liable for the damages caused by one of its cars while being operated by an intoxicated person, but that was because there the collision occurred so shortly after the renting of the car that we felt that the driver could not have become so highly inebriated unless, at the time of the renting of the car, he had made substantial progress towards complete intoxication. We therefore felt that the slightest investigation on the part of the defendant would have disclosed his condition. Here the facts are that no evidence of intoxication was present, and the competency and experience of Laurent are attested by the fact that he had previously rented cars from the defendant on at least four occasions, and had always returned the cars without accident of any kind. Defendant, therefore, had knowledge of the fact that Laurent was at least an ordinarily competent operator of motor vehicles, and, having this knowledge, there was no necessity for it to make a further examination or investigation before renting the car.

The sole remaining point to be disposed of is the legal effect on a civil action of the failure of defendant to require of Laurent the production of a driver’s license issued by the city authorities. It is true that in the Baader case, to which we have above referred, we held that the failure of defendant to inquire as to the existence of a driver’s license was evidence of indifference on their part; but we did not intend that holding to establish the doctrine that the failure to exact the production of a driver’s license ipso facto renders the lessor or the lender of the car liable in a civil suit. On the contrary the law seems to be well settled, as stated by Berry on Automobiles (6th Ed.) sec. 227:

“While the failure of a person to perform a duty imposed upon him by statute or ordinance is sufficient evidence of negligence on his part, nevertheless, such neglect, however illegal, in the absence of evidence showing it to have been a proximate cause of the injury complained of, furnishes no legal ground for complaint.”

It is very evident that the absence of a driver’s license in this case had no causal connection with the subsequent accident. The evidence shows that Laurent had obtained licenses on several occasions in the past, and had, in fact, been driving automobiles in New Orleans for many years, having been employed as a taxicab driver for Toye Bros. Taxicab Company, and having also operated delivery cars for the D. H. Holmes Company, the Parcel Transfer Company, and the New Orleans Transfer Company. It is manifest that by the expenditure of $1 he could easily have obtained a driver’s license. We are of the opinion that, in a matter of this kind, the lender or the lessor of automobiles may relieve himself from possible subsequent liability by making a reasonable investigation as to the competency of the driver, or by accepting, in lieu of his own investigation and in the absence of actual knowledge of ineomspetency, the certificate issued by the city authorities that the person presenting it is competent. The adoption of either of these courses is sufficient.

It is therefore ordered, adjudged and decreed that the judgment appealed from be and it is affirmed, and that there now be judgment on the intervention in favor of Board of Commissioners of the Port of New Orleans, and against Sidney P. Laurent, in the sum of $59.87, with interest from date of judicial demand, and with preference over all other claims or interventions, and for all costs.

Judgment amended and affirmed.


text:
    No. 11,141
    Orleans
    BASHA v. ALES
    (October 21, 1929. Opinion and Decree.)
    P. L. Fourchy, of New Orleans, attorney for plaintiff, appellant.
    Walter B. Hamlin, of New Orleans, attorney for defendant and appellee.
   WESTERFIELD, J.

This is a suit by a landlord against a tenant for damages to leased premises. The court below awarded $196.90. After reviewing the evidence in the record, we are of opinion that with the exception of the removal of a plank in the floor of one of the rooms and the removal of several shelves, plaintiff has failed to establish the alleged damages claimed by a preponderance of evidence.

We believe that $50 will be a proper allowance under the circumstances.

For the reasons assigned, the judgment appealed from is amended by reducing the amount awarded from $198.90 to $50, and as thus amended affirmed.


text:
    No. 13,232
    Orleans
    COMMERCIAL INVESTMENT TRUST CORPORATION v. MARMILLION
    (October 21, 1929. Opinion and Decree.)
    (November 18, 1929. Rehearing Refused.)
    William J. Curren, of New Orleans, attorney for plaintiff and appellant.
    J. W. Woodville, of New Orleans, attorney for defendant, appellee.
   WESTERFIELD, J.

Plaintiff, alleging itself to be the holder and owner in due course of defendant’s promissory note in the sum of $348, secured by a chattel mortgage upon an automobile, sued out executory process and caused the automobile to be seized. Defendant averring that his signature to the note and mortgage were forgeries caused a rule nisi to issue ordering plaintiff to show cause why the seizure should not be enjoined. After a hearing the rule was made absolute and a preliminary injunction issued. Plaintiff appeals from this judgment.

The sole issue before us is the question of the validity of the defendant’s signature. Both defendant and his wife, when confronted with the act of mortgage, denied that the signature appearing thereon, purporting to be that of defendant, was genuine, but defendant also denied, and after-wards admitted, that his signature to the petition for injunction was genuine, and a comparison of all three signatures, that of the note, the chattel mortgage, and the petition, convinces us that they were written by the same hand. His counsel, in arguing the case before us, was frank enough to admit their similarity, and they seem to us to be identical.

Eor the reasons assigned the judgment appealed from is reversed, the preliminary writ of injunction avoided, set aside, and recalled, and this case remanded for further proceedings consistent with the views herein expressed.

Judgment reversed, and case remanded.


author: HIGGINS, J.

text:
    No. 11,379
    Orleans
    ZIEGEL v. ZIEGEL
    (October 21, 1929. Opinion and Decree.)
    Habans & Coleman, of New Orleans, attorneys for plaintiff, appellant.
    W. J. Waguespack, Jr., of New Orleans, attorney for defendant, appellee.
   HIGGINS, J.

This is a suit for the dissolution of a partnership, for an accounting, and for damages for breach of the partnership agreement.

Defendant admits the agreement, and pleads that the partnership was dissolved by mutual consent, and that an accounting, as far as possible, was made between the partners, and denies liability for damages for any breach of the partnership agreement. There was judgment in favor of defendant dismissing plaintiff’s suit, and plaintiff appealed. The case presents only issues of fact.

The evidence shows that plaintiff and defendant, two brothers, entered into a partnership by verbal agreement to manufacture well buckets. Plaintiff had been in the business before the formation of the partnership, and had the machinery and patent rights for the making of this particular kind of bucket. The defendant owned the building where the partnership business was conducted. A dispute arose between the brothers, and by mutual consent the partnership was dissolved, each blaming the other for the discontinuance of the business.

We are satisfied that the partnership was dissolved by mutual consent because they were unable to agreeably and successfully conduct the business.

As to the Question of an accounting, the affairs of the business were kept in the most irregular order, plaintiff testifying that he had “had this business pretty nearly all of his life” and he “did not have to have many bills to figure his business,” as he “only made one thing.” Defendant stated that he was not a bookkeeper, and only kept certain memoranda in a large book, some of the pages of which he tore out and produced in open court. According to the plaintiff’s statements, defendant was indebted to him, and, according to the defendant’s version, plaintiff was indebted to him. We are satisfied from the records that were kept that neither party can successfully prove the true condition of the partnership affairs and a correct and accurate accounting between the parties is impossible. The evidence indicates that the parties have practically been restored to their original positions, except for business losses that were entailed in the venture. As the affairs of the partnership have practically been liquidated, and since plaintiff and defendant contradict each other as to the true condition of the partnership’s liquidation, and there are not sufficient records from which to render an accounting, the court is unable to grant the relief prayed for. Plaintiff bore the burden of proving by a preponderance of the testimony that an accounting was due him and should be rendered, but failed to sustain this burden.

The defendant has not questioned plaintiff’s right to sue for damages in an accounting suit, and, without approving of plaintiff’s pleading in this respect, it is sufficient to say that the damages which he claims from defendant as the result of a breach of the partnership agreement are most general and speculative, and are therefore denied.

The trial court having decided the issues of fact in favor of defendant, and there being no manifest or apparent error, the judgment appealed from is affirmed.


text:
    No. 11,369
    Orleans
    MISSISSIPPI-LOUISIANA SYRUP CO., INC., v. RUSSELL SUGAR CO., INC.
    (October 21, 1929. Opinion and Decree.)

      Hubert M. Ansley, of New Orleans, attorney for plaintiff and appellant.
    Geo. P. Eberle, of New Orleans, attorney for defendant, appellee.
   JANVIER, J.

Defendant on January 28, 1925, by written contract, sold to Mississippi Cane Syrup Company 485 bags of washed raw sugar.

The purchaser, for the reasons we shall later set forth, refused to accept the sugar and brought this suit for the return of the amount paid on account.

The contract provided that defendant should hold the sugar in its warehouse for not more than 60 days, subject to the orders of the purchaser, and the purchaser paid to defendant a sufficient sum to protect it against a drop in the market price. The balance of the purchase price was to be paid as the sugar was withdrawn from defendant’s warehouse.

At the time of the sale samples of the sugar were given to the purchaser and other samples were taken at different times during the next four months.

During the early part of April, after the lapse of more than 60 days, defendant called on the purchaser to remove the sugar and to pay therefor and called attention to the fact that the sugar market was falling disastrously.

On April 8th the purchaser wrote to defendant, promising to remove and pay for the sugar shortly thereafter.

Subsequently, at various times, the purchaser was called upon in like manner, and on each occasion, to-wit, April 16th, April 23rd, April 28th, and May 21st, similar letters, asking for more time, were written. In none of these letters was complaint made about the quality of the sugar.

Finally, on July 6, 1925, more than five months after the date of the contract, a letter was written by the purchaser, charging that the sugar sold was not “Cypremort Washed Raw,’’ but was “Ninety-six Test Raw,” and an adjustment was demanded.

It appears that, on the request of the purchaser, defendant had on June 15th sold the sugar at the market price, but, as the market had dropped, there was a net loss of $199.40 over and above the amount deposited on account, and for this sum defendant has reconvened.

It seems very evident that the drop in the market value was largely responsible for the refusal to take the sugar. Whether there is a substantial difference in value between “Cypremort Washed Raw” sugar which the purchaser claims it bought, and “Ninety-six Test Raw” sugar which it claimed it received, is of no great importance in view of the fact that the sale was made on sample, and that other samples were, from time to time, taken.

It is quite significant that during five months no complaint was made, and we find it difficult to reconcile the various letters to which we have referred with the present claim that the sugar intended to be purchased was different in quality from that actually received. Certain it is that) there Was no semblance of fraud, as there could not well be where the purchaser had every opportunity to inspect and, in fact, actually inspected on several occasions.

The original purchaser, Mississippi Cane Syrup Company, has sold all of its assets, including this claim, to the present plaintiff, Mississippi-Louisiana Syrup Company, Inc.

The trial court rendered judgment in favor of the defendant on the main demand and in favor of plaintiff in reconvention as prayed for in the reconventional demand, and we think that that judgment was correct.

Appellee has answered the appeal and asks for damages for frivolous appeal. We do not believe that these damages should be awarded in this case.

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


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    No. 11,354
    Orleans
    DERBES v. DIXIE MILL SUPPLY CO., INC.
    (October 21, 1929. Opinion and Decree.)
    Lemle, Moreno & Lemle, of New Orleans, attorneys for plaintiff, appellee.

      Milling, Godchaux, Saal & Milling, of New Orleans, and Lawrence K. Benson, of Hammond, attorney for defendant, appellant.
   WESTERFIELD, J.

This is a suit by a public accountant for $1,200 on a quantum meruit. The answer admits the employment of plaintiff but denies any indebtedness. There was judgment below in plaintiff’s favor in the sum of $450, and defendant has appealed.

In July, 1920, the defendant corporation employed plaintiff in connection with the abatement of certain additional income taxes assessed by the United States against the defendant for the year 1917, amounting to $23,790.52. With the exception of a small item of $573.13, which was conceded, the assessment related to an item of salary of defendant’s president for the year 1917, which was. charged on its books at $53,-099.21 and reduced by the government officials for income tax purposes to $16,000.

The services for which this suit is brought were largely rendered by an employee of plaintiff, George P. Eberle, and consisted of consultation with defendant and its counsel and the making of two trips to Washington, where the matter was discussed with the Commissioner of Internal Revenue; one of these trips being taken with M. E. Cahn, defendant’s president, and the other with John Marks, one of its attorneys. Plaintiff, Derbes, however, was active in the matter on one occasion when he succeeded in making arrangements with the local collector of internal revenue, whereby a seizure of defendant’s property was averted and a surety bond accepted as security, but he claims rather too much credit, since he adopts as his own a letter prepared by counsel for defendant and introduced in evidence by him as his own composition, for which letter he claims the merit of having caused the favorable outcome of defendant’s claim for abatement.

The position of defendant is that the personal services of Derbes were inconsequential, and that the whole matter was handled by Eberle, his employee, with whom an agreement was made whereby the sum of $200 paid to Eberle for Derbes’ account was accepted as payment in full for all services rendered. Eberle, testifying as a witness for defendant (his connection with plaintiff having been unpleasantly terminated), corroborates defendant’s contention as to the settlement; but the authority of Eberle to act for Derbes in this respect is denied. Defendant’s learned counsel refer us to several cases which deal with the question of implied authority of an agent to bind his principal, but we are of opinion that these authorities are not applicable here, for the reason that, before the arrangement for settlement of plaintiff’s claim with Eberle was made, the defendant was in possession of a letter from the plaintiff stating that he claimed $1,200 as compensation, which letter was written by Derbes after consultation with Eberle, who had been requested by the defendant corporation to find out the cost of plaintiff’s services. The sum mentioned in the letter was calculated upon the continued service of Derbes until the final disposition of the matter, whereas Eberle’s settlement involved only compensation for past services, and no further calls were to be made upon plaintiff for assistance. But defendant knew of the limitation of Eberle’s authority, because of the letter in its possession, the writing of which it itself had invoked. Defendant dealt with Eberle at its peril so far as the settlement was concerned. We conclude on this point that the settlement made with Eberle was not binding upon the plaintiff, and we view the case as one involving only the value of the services rendered by plaintiff and his employee.

We think $200, the amount received by plaintiff, is insufficient compensation. It is true, as plaintiff contends, that defendant was represented by able counsel, to whom it paid a total of $850, and that plaintiff’s only function was accountancy; but it is in evidence that at that time accountants enjoyed preferment over lawyers in matters involving the assessment of additional income tax, though the situation has happily changed in the meantime; lawyers now being practically in charge of the field. There is also testimony in the record of a number of accountants of wide experience and good standing in their profession, who value the services of plaintiff at figures considerably greater than the amount claimed in this suit, and then, too, as a result of the joint effort of legal counsel and plaintiff, without undertaking to estimate the contribution of each to the result, there was a saving to the defendant corporation, by reason of the successful outcome of the joint undertaking, of $17,562.61. We are inclined to believe that plaintiff’s efforts and services were a factor in the success of defendant corporation. It is apparent that they were considered of sufficient importance to have plaintiff’s employee, accompanied by a representative of defendant, make two trips to Washington; but on the other hand we are not inclined to place a .value on plaintiff’s services disproportioned to that allowed legal counsel, and are of opinion that $450 would be a proper allowance. Plaintiff having received $200, he should have judgment for $250.

For the reasons assigned, the judgment appealed from is amended so as .to reduce the amount allowed plaintiff to $250, and, as thus amended, affirmed.


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    No. 11,352
    Orleans
    ROMAN v. CARUSO
    (October 21, 1929. Opinion and Decree.)
    Wm. W. Ogden, of New Orleans, attorney for plaintiff, appellant.
    Harry McEnerny, Jr., of New Orleans, attorney for defendant, appellee.
   HIGGINS, J.

This is a suit to recover damages for the alleged breach of a real estate contract. The petition alleges that on February 26, 1927, plaintiff and defendant entered into a written contract whereby defendant agreed to sell plaintiff a certain piece of improved real estate in the city of New Orleans for the sum of $1920; that the usual 10 per cent, deposit was duly made, which was not to be considered as earnest money; on the same day defendant entered into another contract with one Joseph Ribet to sell him the same property for $2100 cash; on February 28, 1927, plaintiff entered into a written contract to sell the property to one A. J. Castaing for the sum of $2450 cash; on March 22, 1927, defendant sold the property to Joseph Ribet in accordance with the contract with him; that defendant therefore was guilty of a breach of his contract, and plaintiff is entitled to recover from him the difference between $1920 and the sum of $2450 or $530, as damages. The defendant filed an exception of no cause of action, based upon the following grounds:

First, that the sale of a thing belonging to another person is null;

Second, that the agreement sued upon contained a potestative condition, and was therefore null and void.

The district court overruled the exception, and the defendant, reserving the benefit of it, answered, admitting his signature and the terms of the agreement, but denying liability on the following grounds:

First, that the contract was subject to a condition precedent;

Second, that the defendant’s signature to the contract was obtained through misrepresentation.

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

The conclusion reached by us on • the facts makes it unnecessary to pass upon the issues raised by the exception of no cause of action.

The evidence shows that Williana Chabaud, real estate agent and broker, acting as the. exclusive agent for plaintiff, called at the home of the defendant in order to secure defendant’s signature to a contract to sell the property in question. The defendant and his wife and Chabaud were the only parties present. Defendant and his wife both testify that they apprised Chabaud of the existence of a written contract with F. Ferrier, real estate agent, whereby they had given him the exclusive right to sell the property for a period of six months and bound themselves to pay him the 4 per cent, commission; that therefore they were not at liberty to enter into an additional contract and did not wish to make themselves responsible for another commission; that the unexpired term of the contract was about six weeks; and that Chabaud then proposed that he had a client who would give $2,000 for the property less his commission of $80, which he, in turn, would give to his client, the defendant to receive $1,950 for the property, and that if defendant signed the contract he would hold the entire matter in abeyance until the expiration of the Ferrier contract; that if Ferrier failed to sell the property before the expiration of his contract, Chabaud would then deliver the contract to his client and have him make the necessary deposit. Defendant admits that on February 26, 1927, Ferrier tendered him an offer of $2,100 for the property from one Joseph Ribet and that he accepted the offer, and on March 22, 1927, sold the property to Ribet in accordance with the agreement.

Chabaud denies that defendant and his wife told him of the existence of the Ferrier contract and that he agreed to hold the matter in abeyance until the exrpiration of the Ferrier contract, but insists that he told defendant and his wife, when defendant signed the contract, it was a sale. However, he admits that he knew that Ferrier’s “for sale” sign was posted on the property, as he had seen the sign there when he went to view the property before he called at the defendant’s home. On cross-examination Chabaud denied that he had made any guaranty as to Ferrier’s commission, but, when confronted with-the document dated March 5, 1927, in which he made such a guaranty, he was forced to admit its genuineness.

The plaintiff contended that the defendant breached his contract solely because he would realize $300 more from the Ribet contract than from the Roman contract. By actual calculation it will be seen that this figure is incorrect and that the correct amount he realized was $96. On the other hand, Chabaud admits that he waived his commission of $80 in favor of Roman and two days Idler sold the property at an increase in price of $530.

We are convinced that the alleged contract sued upon by plaintiff was subject to a condition precedent, i. e., the expiration of the Ferrier contract, and that the signature of the defendant thereto was obtained upon the statement that the matter would be held in abeyance until then.

The judge of the lower court decided the case in favor of defendant, and we do not find any reason for disturbing the judgment.

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


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    No. 12,007
    Orleans
    MORRISON v. ANTOINE
    (October 21, 1929. Opinion and Decree )
    (November 18, 1929. Rehearing Refused.)
    (January 7, 1930. Writ of Certiorari and Review Refused by Supreme Court.)
    Eug. Thorpe, of New Orleans,' attorney for plaintiff, appellee.
    Ernest J. Robin, of New Orleans, attorney for defendant, appellant.
   HIGGINS, J.

Plaintiff, an attorney at law, sues defendant, a former client, for a fee earned under an alleged oral contract, whereby plaintiff was to receive a contingent fee of 20 per cent of any and all amounts collected by him, amicably or by suit, for defendant’s account, on all claims placed in his hands for collection.

Defendant admits the agreement and its terms, but denies liability, on the ground that the particular claim in question was placed in plaintiff’s hands for the purpose of drawing up a contract of assignment between himself and his debtor, but not for the purpose of collection.

There was judgment in favor of plaintiff for the sum of $750, and defendant appeals.

Defendant placed in plaintiff’s hands a number of claims for collection on a 20 per cent, contingent fee basis. Some of these claims resulted in litigation, and some were settled amicably. The claim in question, amounting to $14,000, was somewhat involved, and was outstanding for over two years. We are convinced that the prospects of collecting it were not bright. Plaintiff, as the attorney for defendant, negotiated a contract of assignment, whereby plaintiff was to recover $5,000 worth of merchandise in full settlement of the claim. The record shows that the recovery of the merchandise was the result of the efforts of plaintiff. After making demand by letter, he drew up the necessary petition to enter suit against the debtor, and the defendant signed the petition and furnished the sum of $50 for costs of court for the purpose of entering the suit. It was • only after this action was taken that the assignment was finally signed by the debtor. We are also convinced that defendant felt that the claim of plaintiff for his fee properly came under the contract, because defendant paid plaintiff the sum of $250 on account of the fee, and in a letter promised to pay the balance as soon as collections were better. The contract of assignment was a very short document, and, if defendant were only paying an attorney’s fee for its preparation, the sum of $25 would have been entirely adequate. The amount of merchandise recovered was $5,000, and 20 per cent contingent attorney’s fee would be $1,000, and defendant, having paid $250, left a balance due plaintiff of $750.

For the reasons assigned, the judgment of the district court is affirmed, at appellant’s cost.


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    No. 11,185
    Orleans
    MAESTRI v. MAILHOS
    (October 21, 1929. Opinion and Decree.)

      Sidney F. Gautier, of New Orleans, attorney for defendant.
    Julius Howard Wiener and Sidney G. Roos, of New Orleans, attorneys for defendant in warranty.
   JANVIER, J.

B. Puissegur, desiring to dispose of certain dairy cattle and dairy equipment, employed an auctioneer, Schiro by name, to conduct the sale. At the sale on April 30, 1925, eight of the cows were purchased by the defendant Mailhos, who, in payment, gave his note for the sum of $432, payable October 30, 1925. This note was not paid at maturity. In the meantime, the note had been transferred by Puissegur to the present plaintiff, N. Maestri, who brings this suit on the said note.

It was originally alleged in defense that the present plaintiff was not the holder in due course, but had merely been interposed for the purpose of filing the suit, so that certain equities which had existed as between Puissegur and Mailhos could not be set up in defense.

Defendant also called B. Puissegur in warranty, contending that four of the cows which he had purchased were suffering with tuberculosis and had to be slaughtered.

On the main demand, judgment was rendered in favor of plaintiff. On the call in warranty, judgment was rendered against defendant in warranty, in the sum of $224.50. No appeal was taken by the main defendant, who has paid the judgment, and the only matter now pending before us is the 'call in warranty.

To this call in warranty, Puissegur has set up a plea of prescription of 48 hours, based on Act No. 106 of 1904, and a prescription of 60 days, based on article 2535 of the Civil Code.

Act No. 106 of 1904,seems to us to have no application. The 48-hour period allowed for inspection applies only to horses, mules, mares, vehicles, and harness, and has no application whatever to cattle.

It is quite evident that four of the cows purchased were suffering from tuberculosis. Tuberculosis is a latent defect and a redhibitory vice, and therefore, under article 2520 of the Civil Code, the sale could have been set aside, had action to that end been brought in time.

The prescription of article 2535, Civil Code, however, in our judgment, prevents recovery on the call in warranty. The sale, - as we have above stated, took place on April 30, 1925, and the action to rescind the sale due to redhibitory vices was not filed until November 23, 1925, when it appeared in the call in warranty.

It is therefore ordered, adjudged, and decreed that the judgment in warranty against B. Puissegur be and it is annulled, avoided, and reversed, and that there now be judgment in favor of defendant in warranty, dismissing the suit of plaintiff in warranty at the cost of plaintiff in warranty.


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    No. 424
    First Circuit
    STATE EX REL. MARSHALL ARCENEAUX v. BREAUX
    (April 13, 1929. Opinion and Decree.)
    (May 7, 1929. Rehearing Refused.)
    (November 12, 1929. Writ of Certiorari and Review Reversed by Supreme Court Docket No. 30,027.)
    Mouton and Debaillon, and W. H. Dugas, of Lafayetté, attorneys for plaintiff, appellee.
    J. J. Davidson and A. W. Dalferes, of Lafayette, attorneys for defendant, appellant.
   ELLIOTT, J.

Marshall Arceneaux claims to be the registrar of voters of the parish of Lafayette, his contention is based on an appointment by the Board of Registration, Commission of the Governor, and by having given bond and taken the oath required by law.

He alleges that George Breaux is unlawfully holding said office under an appointment by the police jury of the parish of Lafayette; that the appointment under which said Breaux holds the office is unconstitutional and null and void. He brought suit against said Breaux under the Intrusion into Office Act, Revised Statutes 2593 (amended Act 102 of 1928) to oust and remove him from said office, and to have himself inducted into the same under the appointment and commission which he claims.

The defendant excepted that plaintiff’s petition disclosed no cause or right of action. This exception was, by the court, referred to the merits.

Breaux then answered and set up that he was rightfully and legally in possession of said office by the appointment of the police jury. He attacks the appointment and commission under which the plaintiff claims, as being invalid and without legal effect. He prays that his right to the office be recognized and that the demand of the plaintiif be rejected.

There was judgment in favor of the plaintiff as prayed for.

The defendant has appealed.

The facts are admitted: George Breaux, registrar of voters, was, by the Board of Registration, on August 25, 1928, removed from office. He was thereafter on September 13, 1928, re-appointed by the police jury to succeed himself. The police jury claims to have acted under the Constitution of 1921, art. 8, sec. 18, and Act 122 of Acts of 1921, section 15 (amended Act 269 of 1926) enacted for the purpose of carrying the Constitutional provisions above mentioned into effect.

The Board of Registration, under the same article and section of the Constitution and act of the Legislature, took the position that the re-appointment of Breaux by the police jury was null and void, without effect and that the office was vacant, and appointed Marshall Arceneaux as registrar of voters for the parish of Lafayette.

The Arceneaux appointment bears date March 16, 1928. Arceneaux was commissioned by the Governor, gave bond, took oath as prescribed by the law and claimed the office, but Breaux refused to yield it to him. Bréaux holds no commission from the governor and has not given bond under his appointment by the police jury nor taken the oath prescribed by law.

The situation calls for. an interpretation of the meaning and effect of Article 8, Section 18 of the Constitution and Act 122 Section 15 (amended Act 269 of 1926) of 1921, as to the powers of the Board of Registration and police jury in the matter mentioned.

Breaux concedes that the Board of Registration has, and had, under the law, the power to remove, and that he was by the Board removed from said office on August 25, 1928, but he contends that his removal by the Board did not disqualify him from being re-appointed to the same office by the police jury as his own successor, citing in support of his contention the provision in the article and section of the Constitution mentioned, which reads:

“No Registrar of Voters shall be appointed or elected to any other office within 12 months after vacating that of Registrar.”

He claims that the word “other” means that a registrar of voters may be re-appointed as his own successor within 12 months, but to no other office. He also cites the instance in which the Constitution expressly provides that certain officers cannot succeed themselves, and the maxim “ex-pressio unius est exclusio alterius” as a supporting rule of legal construction.

The cases People of Sate of New York vs. John Ahearn, 196 N. Y. 221, 89 N. E. 930, 26 L. R. A. (N. S.) 1153, cited by relator, and State ex rel. Tyrell vs. Jersey City, 25 N. J. Law, 536, and the Wilkes Case, 2 Wils. (Eng.) 151 cited by defendant, are not accessible to us. The cases State vs. Dunn, 11 La. Ann. 549; State vs. Echeveria, 33 La. Ann. 709; State vs. Reid, 45 La. Ann. 162, 12 So. 189; State vs. Reid, 122 La. 590, 47 So. 912; and Saint vs. Irion, 165 La. 1035, 116 So. 549, cited by defendant, have no bearing on the present situation. They all, except the last mentioned, are cases in which a tax collector claimed re-appointment or re-election after he had failed to account for certain taxes, and all, including the last cited, involved the application of special laws, which cannot govern the constitutional and legal provisions on which, the present suit depends. In fact, the quotations from the New York, New Jersey, and English cases cited show that in those cases the party claiming the office had been re-appointed or re-elected by the same power at whose hands he had received the office in the first instance, which is not the situation here. In this case George Breaux has an appointment at the hands of the police jury, but has not been commissioned by the Governor, given bond, nor taken the oath of office under the appointment which he claims; consequently, while he claims the office, he is really not in fact an incumbent, because qualification is necessary before official status commences.

The plaintiff, Arceneaux, has the official status, but Breaux has the office. The board has the power to appoint whenever the office of registrar is, for any cause, vacant for a period of 30 days. The vacancy in question is claimed to have existed because the police jury, with power to fill the vacancy, undertook to set at naught and nullify the board’s power of removal.

Relator contends that if the police jury can immediately re-appoint the removed registrar as his own successor, then a removal cannot accomplish any reasonable end.

This contention is, in our opinion, well founded. It was not intended that the police jury should have power to render the removal of a registrar of voters ineffective. If the police jury could, as contended for by defendant, immediately reappoint the registrar, which the board had removed, such power1 would conflict with that of the board and render their power of removal only a nominal and ineffective power, not a real power. The real power would be in the hands of the police jury.

Such a construction of the constitutional provision in question and of the act of the Legislature enacted for the purpose of carrying it into effect would be contrary to the evident intention of the Constitution on the subject. The only construction permissible is one that will render a removal effective. A removal would be ineffective if the police jury could immediately reappoint such a party registrar to succeed himself.

It is claimed that under such a construction the board of registration may, if it sees proper, repeat its power of removal until it virtually dictates the appointment, and in that way deprive the police jury of their rights and discretion in the matter confided to them by the Constitution and law on the subject. That is a bare possibility, but the possibility that other constitutional officers charged with duties will violate their trust and disregard the public good and welfare also exists. Besides, it is not for the courts to amend, but to construe, the law as it is found to have been written.

In this case the board of registration could not have appointed Arceneaux unless, 30 days after Breaux’s removal, the office of registrar remained vacant, by the action of the police jury in failing to fill the vacancy caused thereby.

We think the action of the police jury in re-appointing Mr. Breaux as his own successor after he had been removed was contrary to the intendment of the Constitution and law oh. the subject, and might be looked oh by the board of registration as having no legal effect, and as being null and void; that in such a situation the office was, from a legal standpoint, vacant 30 days after the removal and open for an appointment by the board, as was done.

The judgment appealed from is, in our opinion, correct.

Defendant and appellant to pay the cost in both courts.