text:
    No. 3363
    Second Circuit
    JOE DOVER v. ATLAS ASSURANCE CO. OF LONDON, ENGLAND JOE DOVER v. HOME INS. CO. OF NEW YORK JOE DOVER v. VIRGINIA FIRE & MARINE INS. CO. OF RICHMOND, VA. JOE DOVER v. NORTH BRITISH & MERCANTILE INS. CO. OF LONDON & EDINBURG
    (November 7, 1930. Opinion and Decree.)
    (December 23, 1930. Rehearing Refused.)

      Thigpen, Herold, Lee & Cousin, of Shreveport, attorneys for plaintiff, appellant.
    Crow & Coleman, of Shreveport, attorneys for defendants, appellees.
   DREW, J.

In these four suits, which were consolidated for the purpose of trial, the plaintiff sued for judgment against the defendants in the following amounts:

1. For judgment against the Atlas Assurance Company of London, England, in the sum of $1,500, on policy No. 8810259, covering insurance of $500 on building and $1,000 on stock of merchandise;

2. For judgment against the Home In surance Company of New York, on policy No. 1280 for $1,500, covering insurance of $500 on building and $1,000 on stock of merchandise;

3. For judgment against the Virginia Fire & Marine Insurance Company of Richmond, Va., on policy No. 12517, covering insurance of $500 on building, $500 on stock of merchandise, and $500 on furniture and fixtures;

4. For judgment against the North British & Mercantile Insurance Company of London and Edinburg, on policy No. 295804, covering insurance of $500 on building, $500 on stock of merchandise, and $500 on furniture and fixtures.

The total insurance for which judgment is sought against the four companies by plaintiff is the sum of $6,000, in the following proportions: $2,000 on building; $3,000 on stock of merchandise in building; and $1,000 on furniture and fixtures in -building.

Plaintiff further sued for 12 per cent damages for failure to settle with the insured within sixty days after proof of loss by the insured, and for reasonable attorney’s fees, under Act No. 168 of 1908.

In each suit plaintiff alleged that on or about the 6th day of January, 1927, at the hour of 1 or 2 o’clock in the morning, his store building, together with the furniture and ’fixtures and the stock of merchandise kept therein, located in the town of Florien, Sabine parish, La., was entirely destroyed by fire, no part thereof being saved, and that the total amount of merchandise de: stroyed in said fire was in excess of $15,-000; that the store building destroyed by fire was worth in excess of $2,500; and that the furniture and fixtures destroyed in the fire- were worth in excess of $1,500. Plaintiff alleges on the different policies of insurance as the basis of his suit.

Defendants admit the fire and the destruction of the store building and its contents, but deny liability under the policies on the ground that two warranty stipulations in the policies had been violated by the plaintiff, as follows:

1. Change in interest, title, or possession.

“This entire policy, unless otherwise provided, by agreement and endorsed hereon or added hereto, shall be void * * * if the interest of the insured be other than unconditional and sole ownership, or if the subject of insurance be a building on ground not owned by the assured in fee simple * * * or if any change, other than by death of the insured, take place in the interest, title or possession of the subject of insurance (except change of occupant without increase of hazard), whether by legal process or judgment, or by voluntary act of the assured, or otherwise.”

In 'that Joe Dover, the plaintiff, on or about December 29, 1926, by authentic act did bargain, sell, convey, and deliver, with full warranty of title, unto J. L. McDaniel, all his right, title, and interest in and to the property covered by said insurance and did, surrender possession and ownership of and control over said property to the said McDaniel, who, on said date, accepted title to and took actual possession and control over said property, and who was the owner and in possession of said property at the time of the fire, all without the knowledge and consent of defendants; and:

2. The iron-safe clause.

“The following covenant and warranty is hereby made a part of this policy:
“The assured will take a complete itemized inventory of stock on hand at least once in each calendar year, and unless such inventory has been taken within twelve calendar months prior to the date of this policy, one shall be taken in detail within thirty days of the issuance of this policy, or this policy shall be null and void from such date, and upon demand of the assured, the unearned premium from such date shall be returned.
“The assured will keep a set of books which shall clearly and plainly present a complete record of business transacted, including all purchases, sales and shipments, both for cash and credit, from the date of inventory, as provided for in first section of this clause, and during the continu-. anee of this policy.
“The assured will keep such nooks and inventory and also the last preceding inventory, if such has been taken, securely locked in a fire-proof safe at night, and at all times when the building mentioned in this policy is not actually open for business; or, failing in this, the assured will keep such books and • inventories in some place not exposed to a fire which would destroy the aforesaid building.
“In the event of failure to produce such set of books and inventories for the inspection of this company, this policy shall become null and void, and such failure shall constitute a perpetual bar to any recovery thereon.”

In that Joe Dover, the plaintiff, did not take the inventories and did not keep a set of books in compliance with said warranty stipulation in said policies, and that he did not keep such inventories and set of books securely locked in a fireproof safe at night, in compliance with said policies, nor did he produce sáid inventories and books to defendants fof their inspection, though often demanded to do so, and that, by reason of these facts, the said policies are null and void.

The case was tried in the lower court on these issues and resulted in judgment declaring that the “Iron Safe” clause in the policies had been violated by plaintiff, and rejected his demand in each suit for insurance on stock of merchandise. He further held there had been no change of interest, title, or possession of the subject of the insurance, and rendered judgment for plaintiff against each of defendants for the amount of insurance covered by the said policies on the store building, fixtures, and furniture, amounting in all to $3,000. From this judgment, the defendants have appealed to this court. The plaintiff did not appeal. However, on the trial of the case in this court and after arguments had begun, counsel for plaintiff offered to file an answer to the appeal praying that the judgment be increased to the full amount sued for. Said filing was objected to as coming too late, and was allowed by the court, subject to the objection, stating that the question of plaintiff’s right to file same at that stage of the case would be passed upon at the same time of passing on the merits of the ease.

Act No. 103 of 1908, being an act to amend article 890 of the Code of Practice, controls this question. That act stated that answer to appeal may be filed in the Court of Appeal during the first three days of the term of that court, provided the answer is filed before argument. The language of that act is plain. It does not say during argument or before submission of the case, but specifically says before argument of the case in which the answer is filed. The act needs no interpretation. The language is plain and unmistakable, and, unless an answer to an appeal is filed before the beginning of the argument of the case in which it is attempted to be filed, it comes too late and cannot be allowed.

Our holding that the answer to appeal was filed too late dispenses with the necessity of our passing on the second defense in this case, unless we should find that the violation of the “Iron Safe” clause will make void the insurance policies on the building, furniture, and fixtures, as well as on the stock of merchandise. We are' of the opinion that it does not. The insurance on the merchandise, store building, and fixtures and furniture are included in one policy. However,' the “Iron Safe” clause only affects the stock of merchandise when said clause is violated.

In the case of Thompson v. State Assurance Co., reported in 160 La. page 690, 107 So. 489, and the case of Stovall v. Sterling Fire Insurance Co., reported in 163 La. 284, 111 So. 707, it was held that a violation of the iron-safe clause did not affect the insurance on the building, furniture, and fixtures, although all were covered by one insurance policy.

In Cooley’s briefs on “Insurance,” volume 3, page 2995, we find the following:

“Though in some jurisdictions the fact that the consideration for the policy is entire has led the courts to declare the contract entire, an examination of the cases justifies the statement that the rule established by the weight of authority is that, if the policy covers separate classes or items of property, separately valued and insured for separate amounts, the contract is divisible and a breach of warranty or condition which affects only one of the classes or items covered will not avoid the insurance on the other classes or items. The fact that the policy contains a declaration that the entire policy shall be void on a breach of condition does not change this rule.”

The only question remaining to be passed on by this court is, was there a change in the interest, title, or possession of the property prior to January 6, 1927, the date of the fire?

In November, 1926, plaintiff and J. L. McDaniel entered into a preliminary verbal contract and agreement whereby plaintiff agreed to sell and Mr. McDaniel agreed to buy the property covered by the insurance policies sued on, together with a gin located at Florien, and the deed was to be passed when the value of the merchandise was ascertained by taking of inventory. At that time Mr. McDaniel paid to plaintiff the sum of $1,000, to assure plaintiff of his good faith, which sum was to be forfeited in the event that Mr. McDaniel failed to consummate the purchase. During the month of December, 1926, and before there was a final agreement as to the price to be paid by McDaniel for the property that plaintiff had verbally agreed to sell him, McDaniel sold his business at Esto, La., and moved his family to Florien. Plaintiff, acting on this tentative agreement, began making arrangements to take over the Ford agency at Many, La. On the 26th or 27th of December, 1926, plaintiff, McDaniel and other helpers took inventory of the stock of merchandise and, based on said inventory, the final purchase price was agreed on for the property covered by the insurance policies and the gin. On December 29, 1926, there was passed an authentic act of sale whereby it recited that Joe Dover, the plaintiff, granted, bargained, and sold to J. L. McDaniel all the property covered by the insurance policies, describing same, together with a certain gin and the land on which it was situated in the town of Flo'rien, La. The consideration cited in said deed was the sum of $16,000 cash in hand paid. This deed was signed by plaintiff and McDaniel and delivered to the Sabine State Bank at Many, La., with letter attached to said deed reading as follows:

“Herewith annexed is deed from J. Dover to J. L. McDaniel, which is deposited with you to be delivered to said J. L. McDaniel upon payment by him of the sum of $12,-000.00, which amount is to be placed to the credit of J. Dover, Florien, Louisiana.
“(Signed) J. Dover
“J. L. McDaniels.’’

At the time the deed was prepared and signed, McDaniels paid to the plaintiff an additional $3,000, making his total payments up to that time amount to $4,000. Both Dover and McDaniels testify that the true consideration agreed upon by them was $17,000, consisting of the $4,000 paid in cash and $1,000 worth of merchandise that plaintiff, Dover, was to take from the store during the year 1927, and $12,000, to be paid in cash before or at the time that McDaniels was to get delivery of the deed. They both further testify that it was understood and agreed that, if McDaniels did not raise the $12,000, and pay to the bank' by the 10th or 12th of January, 1927, there was no sale, and the $4,000 already paid was to be forfeited. McDaniels testified that he was sure he could rais.e .the.$12,000 and.would have raised it and paid for the property within the time agreed upon had not the fire occurred. From and after the date of the deed above referred to, McDaniels went into the store, was given a key to the store by plaintiff, plaintiff also having a key to the store, and spent a part of each day in the store with McDaniels, both selling goods. However, the money derived from the sales was turned over to McDaniels and all goods purchased from that date until the date of the fire, January' 6, 1927, were purchased in the name of McDaniels. The day before the fire, plaintiff left for New Orleans, and, before leaving, gave McDaniels the insurance policies sued on herein, stating to him that, if he wanted to close out the deal before his return (that is, to pay the $12,000 to the bank), he could have the insurance policies changed, to which statement McDaniels replied that he would wait until plaintiff returned. The bookkeeper in the store, it seems, was working for both plaintiff and McDaniels after the date of deed and received pay from McDaniels for the time between the date of the deed and the fire, and also received pay from plaintiff for services. performed for him during that time.

Defendants contend that the above state of facts constitutes a sale from plaintiff, Dover, to McDaniels, of date December 29, 1926, and cite in support of their contention a number of authorities which we will discuss hereafter.

We might say here that the evidence is uncontradicted that the storehouse, stock of merchandise, furniture, and fixtures, weré completely destroyed, by fire on the morning of January 6, 1927, and that the storehouse was well worth the sum of $5,000', and the furniture and fixtures well worth the sum of' $2,000, and the stock of merchandise was worth $12,800.

Defendants rely on article 2456 of the Civil Code, which reads as follows:

“The sale is considered to be perfect between the parties, and the property is of right acquired to the purchaser with regard to the seller, as soon as there exists an agreement for the object and for the price thereof, although the object has not yet been delivered, nor the price paid.”

And article 2479 of the Civil Code, which reads as follows:

“The law considers the tradition or delivery of immovables, as always accompanying the public act, which transfers the property. Every obstacle which the seller afterwards interposes to prevent the taking of corporal possession by the buyer, is considered as a trespass.”

And cites the case of State v. Whited & Wheless, 104 La. 125, 28 So. 922, as the correct interpretation of said articles. The facts in that case are entirely different from the case before us. Plaintiff sold to defendant certain shares of stock in a lumber company, and the defendant gave notes for the payment of same, and, by agreement between plaintiff and. defendant, the stock and notes were placed in a bank with an agreement that, as the notes become due, the bank was to collect the money and release the stock to defendant. The court held that there was not only a sale of the stock, bu* a pledge of the same to secure the payment of the price, by delivering to the person agreed upon between the parties. In the case before us, no notes were given' for the purchase price, and there was nothing to be pledged. The deed was for cash to be delivered to McDaniels upon the payment of cash and not before. The only way for plaintiff to have protected himself for the purchase price, if the property had been delivered, was by credit deed and mortgage. That was not the trade.

The case of Barfield v. Saunders, 116 La. 136, 40 So. 593, cited by defendants, is also distinguished from the case before us in that the plaintiff, Barfield, verbally agreed to purchase land from defendant, gave his five promissory notes in payment, paid :r ¡ first note and took from defendant a receipt for same, in which receipt it was stated that the note went as a payment on the Prudhomme place, leaving four more notes of $400 each, with interest from specific dates. The court held in that case that the receipt was a promise ,to sell which had not only been accepted, but partially executed, and which granted to the promisee all the rights of a vendee from the day that he partially executed his promise by paying one of the notes.

The purchase price in that instance was represented by a series of notes executed by the plaintiff, purchaser. It was a credit sale in which one of the notes had been paid and receipted for and Barfield had been put in possession of the property. The case before us involves a cash deed with a suspensive condition; that is, the deed was to be delivered to McDaniels only upon the paying of $12,000 in cash.

Defendants cite one other Louisiana authority, McCain v. Hicks et al., 150 La. 43, 90 So. 506. This case is distinguished from the case before us in that the promise to sell, 'in writing, called for a cash payment of $1,000 and the balance in installments. Two of the installments were paid and the vendee took possession of the place and placed it in the hands of realtors for sale at a much larger price than they had agreed to pay for it. After having paid two installments, amounting to $10,500, and having complete control and possession as owners of the place and advertising same for sale, the vendees became dissatisfied and sued for the return of the money paid by them to the vendor, alleging defects in the title to one eighty acres of the land. The court said that the true reason for the vendees wanting to recede from the sale was that they were not able to raise the money to make the other payments as they fell due, and said that the facts in this case showed that the vendees had accepted the sale. The facts in this case distinguish it from the case before us. One is a promise to sell, stipulating that the payments are to be made in installments at specific times. Part of the installments were met. The other is a cash sale not to be completed and no delivery of deed to be had until the full purchase price is paid.

Article 2021 of the Civil Code reads as follows:

“Conditional obligations are such as are made to depend on an uncertain event. If the obligation is not to take effect until the event happen, it is a suspensive condition; if the "obligation take effect immediately, but is liable to be defeated when the event happens, it is then a resolutory obligation.”

Article 2026, Civil Code. Conditions are express or implied:

“They are express, when they appear in the contract; they are implied, whenever they result from the operation of law, from the nature of the contract, or from the presumed intent of the parties.”

Article 2028, Civil Code. Conditional contract complete by assent:

“The contract of which the condition forms a part is, like all' others, complete by the assent of the parties; the obligee has a right of which the obligor cannot deprive him; its exercise is only suspended, or may be defeated, according to the nature of the condition.”

It is clear that McDaniels had the right to meet the condition set out in the deed and letter attached, but it was necessary that he do so before acquiring title to the property.

Article 2487 of the Civil Code reads as follows:

“The seller is not bound to make a delivery of the thing, if the buyer does not pay the price and the seller has not granted him any term for the payment.”

In the case of Lapene v. Badeaux, 36 La. Ann. 194, page 197, the Supreme Court of this state said:

“It is apparent from the spirit and letter of those different texts of law, that it is the contract which is perfected by the agreement of competent parties as to the thing and price; but that title to the property is really transferred from vendor to vendee only when the terms of sale have been complied with. The. failure to pay, when unjustified, is equivalent to a refusal. An adjudicatee or purchaser, in legál contemplation, is in default as well by an unfounded failure as by an unwarranted refusal.
“The contract of sale does not make the buyer master and possessor, and does not give him a right to enjoy, to use and to dispose of the thing sold, but only a right to demand the delivery of it. This delivery of the thing, together with the payment of the price, consummates the sale and makes the buyer fully master and possessor of the thing, which was the end of the contract of sale. R. C. C. 2487; Domat, note to art. X, sec. 11; Tit. 11, Book I, part 1, sec. 275; Marcade, vol. 6, p. 142, on Art. C. N. 1583.
“It is only when the purchaser is entitled to demand and obtain delivery, where it is not given to him, that he can be considered as the absolute owner and entitled to enjoyment as such.
“The purchaser has a right to receive possession only after he has performed all his part of the contract, as by paying the price or settling for the same, as may have been agreed upon between him and the vendor.
“Article 2487, R. C. C., is explicit on the subject. It reads:
“ ‘The, seller is not bound to make a .delivery of the thing if the buyer does not pay the price.’
“The French law, from which ours derives, is textually the same. C. N. 1612. * * *
“There exists similar provision in the Spanish law, which, like the French, once prevailed here. * * *
“The theory has its foundation in the Roman law. * * *
“The principle finally consecrated by our law has been applied by the Courts. Washburn v. Green, 13 La. Ann. 332; Doll’s Heirs v. Kathman, 23 La. Ann. 486; Mazoue v. Caze, 18 La. Ann. 31; Losee v. Sauton, 24 La. Ann. 370; Haynes v. Breaux, 16 La. Ann. 142; Hills v. Jacobs, 7 Rob. 406; Osterberg v. Union Trust Co., 93 U. S. 424, 23 L. Ed. 964.”

In the case of Wells v. Blackman, 121 La. 394, page 413, 46 So. 437, 444, the Supreme Court of this state cited with approval, the following extract from “Benjamin on Sales,” Am. Ed. 330:

“ ‘If it can be inferred * * * from the acts of the parties and the circumstances surrounding the transaction, that it was the intent that delivery and payment should be concurrent acts, the title will be deemed to have remained in the vendor until the condition of the payment has been complied with’ ” — citing case of Kessler & Co. v. Manhein, 114 La. 619, 38 So. 473.

This principle of law covers the case before us completely, for we have the uncontradicted testimony of both the vendor and vendee that delivery of the deed should be concurrent with the payment of $12,000, and the further evidence of the written letter to that effect attached to the deed.

In the ease of Centreville Bank v. Boudreaux et al., 133 La. 75, 62 So. 412, 413, the court said:

•“No complete title of ownership passes to the purchaser at a cash sale until he had paid the price thereof.” (Citing with approval the case of Lapene v. Badeaux, supra.)

In the case of Kessler v. Manhein, 114 La. 619, 38 So. 473, the Supreme Court of this state again upheld the decision in Lapene v. Badeaux, cited supra.

In the Centreville Bank v. Boudreaux case, cited above, the thing sold was mules, and they had been delivered to the vendee. The court held that the sale was for cash and the cash had not been paid, and there was no sale, although they had been delivered and the vendSe had taken actual possession of them and worked them.

In the case of Capital Building & Loan Association v. Northern Insurance Co., 166 La. 179, 116 So. 843, 844, the Supreme Court of this state has used language that is very pertinent to the issues here before us:

“The counsel for the insurance company, in support of his contention that the adjudication amounted to a perfect and complete sale, cites article 2439 of the Civil Code, which provides that a sale is perfect when three circumstances concur, to-wit, the thing sold, the price, and the consent. And article 2456, which declares that the sale is considered to be perfect between the parties, and the property is of right acquired to the purchaser, with regard to the seller, as soon as there exists an agreement for the subject, and for the price thereof, although the object has not yet been delivered, nor the price paid.
“If counsel’s construction of the two articles were adopted, then all that would be necessary to avoid a fire policy, on account of a change of ownership, would be simply to prove that the insured had agreed to sell his property to another, and at a fixed price which the proposed purchaser had agreed to accept.
“And the forfeiture would likewise be' visited on the mortgagee, if it had been informed of the agreement of sale and had failed to notify the insurance company thereof.
“Such is not the meaning of the articles of the Code, an'd such is not the interpretation placed upon said articles by the decisions of this court.
“Article 2440 of the Code declares that all sales of immovables shall be made by authentic act or under private signature, and evexy verbal sale of immovables shall be null, as well for third persons, as for the contracting parties themselves, and the testimonial proof of it shall not be admitted.
“The articles referred to must be construed with article 2462. That article qualifies the language used in articles 2439 and 2456,- and clearly defines the meaning of such articles. It is therein declared that where the thing, the price, and the reciprocal cons'ent exists, if it relates to immovables and is in writing, it amounts to a sale, in so far as to give either party the right to enforce specific performance of same.
“It will not do, therefore, to say that the mere concurrence of the thing, the price, and the consent creates a perfect and executed contract of sale such as ■ to transfer the ownership of the property from the seller to the buyer.
“Nor will it do to say in a judicial sale that the mere adjudication by the sheriff operates a transfer of the property from the seized debtor to the adjudicatee at such sale.
“Like the promise of sale, the adjudication is a sale in the sense that it gives the right to either the adjudicatee or the seizing creditor to compel compliance with the terms of adjudication.
“The question here presented has been up frequently for consideration, and this court has invariably held that where the purchaser for cash refuses to comply with the terms of sale by paying the price, he is considered as never having been owner.”

In this case, the court cites the case of Lapene v. Badeaux, supra, with approval.

In the case of Etta Contracting Co. v. Bruning, 134 La. 48, 63 So. 619, 621, the court said:

“There is a line of cases whereby it may be regarded as settled (certainly, with regard to judicial sales) that, where the purchaser refuses to comply with the terms of the adjudication, he is considered as never having been the owner.”

The same rule will apply in a case where the condition agreed to by the vendor and vendee' is that the payment of the price and the delivery of the deed shall be concurrent. And failure of the vendee to pay the price and receive delivery of the deed fails to change the ownership of the property.

Defendant contends that. the placing of the deed in the bank was done by the plaintiff, that it was pledged ■ with the said bank acting as agent for plaintiff for the sole purpose’ of security and collateral. If the act of executing the deed transferred and delivered the property, then there was nothing to pledge, and the deed itself which stated a cash consideration and acknowledged receipt of same could not possibly have been any security to plaintiff’

Counsel for plaintiff, we think, has correctly stated the law applicable to change of interest, and we quote from his brief:

“The general jurisprudence is to the eL feet. that ‘there is no change of title, interest or possession, if by the alleged transfer, no interest passes, no possession or right of possession is given and the parties thereto do not intend any such change.’ Under the Louisiana law, ‘interest’ refers to a proprietary or insurable ‘interest’ in the property covered by the fire insurance policy.
“In the case of Stenzel v. Penn. Fire Insurance Co., 110 La. 1019, 35 So. 271, 98 Am. St. Rep. 481, the Supreme Court said:
“ ‘A condition against change in “interest” refers to a proprietary or insurable interest in the property, and does not embrace a mere change in the insured’s interest in the preservation of the property, such as, for instance, results from a realization that a mortgage on the property-will be foreclosed.’
“Whether the execution of a deed placed in escrow would effect'a change in interest, title or possession, depends on whether or not in such a transaction, title passed to the vendee. The universal rule is that unless the conditions of the ■ escrow agreement are complied with, no title passes, and without title, the legal possession does not pass, since legal possession, as a rule, follows the title. In this condition, one must not confuse occupancy with possession, for there exists quite a distinction between the occupancy of property and the possession of property. To illustrate, a tenant may occupy the property", but the possession is that of his lessor; and likewise, a licensee may occupy the property, but the possession is that of the licensor, or owner.”

The rule applicable to this case, we think, is correctly stated by the Kansas Supreme Court in- the case of Pomeroy v. Ætna Insurance Co., reported in 86 Kan. 214, 120 P. 344, 3 L. R. A. (N. S.) 142, Ann. Cas. 1913C, page 170, and is in line with the jurisprudence of this state. The court said:

“While a deed is -in escrow, awaiting the performance of conditions precedent to the delivery thereof by the vendor to the vendee, there is no change in the title or right of possession to the property, although the purchaser occupies it with the consent "of the vendor in anticipation of completing the contract of sale and purchase.
“Where in such case, the vendor has a fire insurance policy on a house situated on the premises, and the house is destroyed by fire while so occupied and before the conditions of the escrow are performed, the hazard from fire not being increased, the right to recover on the contract of insurance is not forfeited.”

In the case before us, there is no claim that the fire hazard was increased by the occupancy of the store by McDaniels, with the consent of the plaintiff herein.

| In the case of Budelman v. American Insurance Co., 297 Ill. 222, 130 N. E. 513, the court said:

■ “That since legal possession follows the legal title, an executory contract of sale of land, and delivery of the premises to the vendee thereunder was not a change of possession within the meaning of the provision of the policy.”

And in Mackintosh v. Agricultural Fire Insurance Co., 150 Cal. 440, 89 P. 102, 119 Am. St. Rep. 234, the Supreme Court of California said:

.“There is not a change of possession [or forfeiture, of policy] * * * where one, given an option to purchase, is given right of possession for experimental purposes, subject to free access and management of the owner.”

In the case of Trichel v. Home Insurance Co., 155 La. 459, 99 So. 403, the Supreme Court of this state held that, although a promise to sell had been entered into and part of the purchase price paid, and a number of. installments had b.e.en paid, the property was destroyed by fire before she had paid the number of installments required under the contract to entitle her to a deed, and that there had been no change in interest, possession, or title such as to avoid the fire insurance policy held by her vendor.

Under the facts of this case and the jurisprudence of our courts, we are forced to hold that there was no change in interest, possession, or title in the property covered by the insurance policies prior to the date of the fire, and the judgment of the lower court in that respect is correct.

Plaintiff prayed for 12 per cent damages for failure of the defendants. to settle or pay the insurance that was due within sixty days after proof of loss, and for reasonable attorney’s fees under Act No. 168 of 1908.

Act No. 168 of 1908 requires the insurance company, in case of loss by fire, to furnish the assured blank forms of statements and proofs of loss, after having been informed of such loss by fire, and, in case the company fails or neglects to furnish such blank forms of proof of loss, then such company is deemed to have waived the requiring of any statement or proof of loss at the hands of such insured, and, upon suit being brought upon the policy, the company shall not be heard to complain of the failure of the insured to furnish such statements of proof of loss. In this case no blank forms or statements were furnished the insured by the insurance companies; -they cannot now complain of the failure of plaintiff to make the proof. Thompson v. State Assurance Co., 160 La. 686, 107 So. 489.

The lower court awarded judgment for plaintiff and against the defendants for the 12 per cent, damages on the sums allowed, and allowed attorney’s fees of $100 in each case. Act No. 168 of 1908 also provides for a reasonable attorney’s fee in each case. The lower court fixed the fee as above stated, and we are not disposed to disturb that part of his judgment.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court in the case of Joe Dover v. Atlas Assurance Company of London, England, be affirmed, with all costs; and the judgment in the case of Joe Dover v. Home Insurance Company of New York be affirmed, with - all costs; and judgment in case of Joe Dover v. Virginia Fire & Marine Insurance Company of Richmond, Va., be affirmed, with all costs; and that judgment in the case of Joe Dover v. North British & Mercantile Insurance Company of London and Edinburg be affirmed, with all costs.


source: Caselaw Access Project

author: WEBB, J.

license: Public Domain

text:
    No. 3874
    Second Circuit
    SUGGS v. SAENGER THEATRES, INC., ET AL.
    (November 7, 1930. Opinion and Decree.)
    (December 23, 1930. Rehearing Refused.)
    (February 2, 1931. Writs of Certiorari and Review Refused by Supreme Court.)
    Barksdale, Bullock, Warren, Clark & Van Hook, of Shreveport, attorneys for plaintiff, appellant.
    Jackson & Smith, of Shreveport, attorneys for defendants, appellees.
   WEBB, J.

Plaintiff, Mrs. O. F. Suggs, brought this action against defendant, for damages alleged to have resulted from personal injuries sustained by her while attending a moving-picture show operated by defendant in the city of Shreveport.

Plaintiff alleged that the building in which the theater was operated fronts on Milam street forty feet and extends back more than one hundred twenty-five feet; that the entrance to the building consisted of a lobby extending across the entire width of the building; that the entrances to the floor on which the pictures were shown were two vestibules on the sides of the lobby, leading up a flight of stairs; that the floor was an incline, with considerable ascent, from the front, or entrance, to the rear; that the seats were arranged in tiers of two rows with aisles at the sides and center, along which aisles access was had to the seats; and that each tier of seats was placed on a platform elevated above the aisles about four inches.

She further alleged that she entered the theater in the afternoon of June 12, 1929, through one of the vestibules, and that it was dark, particularly to one just entering; that she had never been in the building before and was not familiar with the seating arrangements, and that no usher was present to direct or assist her to a seat; and that there were not any floor or other lights to disclose the platforms on which the seats were placed nor any notice or warning of such obstacles;’ that she passed along one of the aisles a distance of approximately fifty feet and, on turning from the aisle to enter between tiers of seats, tripped on the edge of the platform on which the seats were placed and fell, sustaining serious injuries.

Plaintiff especially charged that defendant was negligent (1) in operating the theater in the building “which was in an unsuitable, unfit and dangerous condition for its patrons, by reason of the inclined floor and aisles and. elevated step platforms upon which the seats were placed; (2) in failing and neglecting to furnish an usher to guide, direct and assist petitioner to a seat after she entered the building; and (3) in failing and neglecting to provide floor or other lights sufficient to disclose the step platform on which the seats were placed or to give notice or warning in some other manner of the existence and presence of the platform.”

Defendant excepted that the petition failed to state a cause of action, and the exception being sustained and judgment rendered dismissing plaintiff’s suit, she appeals.

Counsel state that the exception was based on the decision in the case of Givens v. DeSoto Building Company et al., 156 La. 377, 100 So. 534, in which there is a marked similarity between the facts there found and the facts alleged in the present case, especially with relation to the charge of negligence in the seating arrangements and the failure to place floor lights at the ends of the rows of seats next to the aisles, and with relation to the theater being in semi-darkness; but in the case cited the evidence established that the plaintiff had found her way along the aisles and mounted the platform and had taken a seat where she remained during the performance, and it was said that had she been looking when passing from the platform into the aisle she would have seen the platform, and it is urged that the ruling in that case is not applicable in the present instance, where the facts alleged are that the plaintiff tripped on the platform as she turned from the aisle to enter between the rows of seats.

While the facts in the two cases are not altogether alike, the complaint in each case was that the defendant was at fault in operating a theater with the seats arranged on platforms above the level of the aisles, without having sufficient light to enable one passing between the seats into the aisle or from the aisle to the seats to see that the aisle was on a lower level than the seats.

In each case, however, it appears that 'the light was sufficient to enable the plaintiff to find her way along the aisles and that the accident in each case was due to the fact that the plaintiff assumed that the aisle was on the same level as the floor between the rows of seats; and in both cases we think that the facts show that the plaintiff did not have any right to act upon such an assumption.

There cannot be any doubt that one, in passing along the aisle, with the seats rising in tiers along the side of the aisle, must have realized that the aisle was on an incline and that the seats were arranged so as to compensate for the incline; and it having been held in the case cited that the defendant was not guilty of any negligence in having the theater so arranged, and it being necessary to maintain the theater .in semi-darkness-, as stated in the case cited, we do not think that plaintiff should have assumed that the aisle was on the same level as the floor between the tiers of seats, but that,' knowing that’ the aisle was on an incline and that the seats were arranged in tiers, she should have assumed to the contrary; and if she had done so, and proceeded accordingly, the accident would not have occurred.

The judgment is affirmed.


author: DREW, J.

text:
    No. 2903
    Second Circuit
    SHEPHERD v. LOUISIANA-TEXAS MOTOR CO., INC.
    (November 7, 1930. Opinion and Decree.)
    (December 23, 1930. Rehearing Refused.)
    Cook & Cook and C. D. Egan, of Shreveport, attorneys for plaintiff, appellee.
    C. B. Prothro, of Shreveport, attorney for defendant, appellant.
   DREW, J.

Plaintiff sued defendant alleging that she was the owner of a Moon sedan automobile and that it was in the possession of defendant who refused to surrender it to her though demanded. She alleged the necessity for the issuance of a writ of sequestration and prayed that it be sustained and that she be recognized as the owner of the property sequestered.

Defendant answered admitting plaintiff’s ownership of the car and that the car was in its possession and that it refused to deliver it to plaintiff; and, assuming the position of plaintiff in reconvention, it alleged that the car was damaged in an accident while being driven by plaintiff and was brought to defendant’s garage for repairs. That it repaired the automobile and put in new parts where necessary, and that the cost of repairing the car together with the new parts furnished amounted to the sum of $107.65. And it alleged that it has a lien and privilege on the car for the payment of said amount, and prays that the demand of plaintiff be rejected at her cost and for judgment in reconvention for the amount of $107.65, with recognition of its lien and privilege on the automobile.

There was judgment for the plaintiff, maintaining her writ of sequestration, and rejecting the demand of defendant in re-convention. Prom this judgment the defendant has appealed to this court.

Plaintiff’s car and a car driven by a man named Odom had a collision on the Shreveport-Marshall, Texas, highway, in or near the city of Shreveport. The accident was caused by the reckless and careless driving of the man Odom. Plaintiff’s car was damaged to the extent alleged by defendant, who repaired it. After the accident the plaintiff called defendant’s garage and asked that a man be sent to the scene of the accident, and she also called the sheriff’s department of Caddo parish and requested that an officer be sent out. Mr. Wilson, a mechanic of the defendant company, arrived at the scene of the accident about the same time that two officers from the sheriff’s department arrived there. The officers were in the act of arresting Mr. Odom when Mr. Wilson, of the defendant company, asked them not to arrest him, stating that he worked with Odom in Shreveport and knew him well and that Odom would put plaintiff’s car in first-class condition if they would not arrest him. Odom agreed to have plaintiff’s car placed in good condition, and Mr. Wilson, of the defendant company, agreed to accept Odom as responsible for the cost of the work. On this agreement of Wilson and Odom the officers did not arrest Odom. Wilson took plaintiff’s car to defendant’s garage and plaintiff’s husband rode in the car with him to the garage. Later in the evening or night Mr. Odom went to defendant’s garage and made arrangements to pay the bill, after finding out the amount of same, and left. Neither plaintiff, nor her husband, who was in the car with her, at any time held themselves out as responsible for the cost of repairing the automobile.

We find the following admission in the record:

“It is admitted that Mr. Shepherd did not make any arrangement, and the only authority for the Louisiana-Texas Motor Company to make those repairs was on the authority of Mr. Wilson.”

When plaintiff called for her car, after it had been repaired, she was told that Mr. Odom had made arrangements to pay the bill, and that defendant believed he would pay it, but that he had not yet paid it and she could not get the car until defendant’s bill for repairs to it was paid.

Defendant contends that Mr. Wilson was only a mechanic in its garage and that he was without authority to bind defendant.

However, in this case the question of the authority of the agent to bind the'corporation is not material.

According to the admission in the record, Mr. Wilson, who authorized the work to be done, was acting for Mr. Odom and not for the plaintiff, and before the work was begun Mr. Odom appeared and made the necessary arrangements with defendant for having the car repaired and was accepted by defendant as responsible for the bill. We think plaintiff was relieved of any further responsibility in the matter and that defendant was required to look solely to Mr. Odom for its pay.

The defendant knew, at the time it undertook the work, the circumstances regarding the accident and that the car it undertook to repair was not owned by Odom but by the plaintiff, and its only recourse is against Mr. Odom.

The car was repaired under an express contract between Mr. Odom and defendant, to which contract plaintiff was not a party, and she is in no way bound thereby.

We think the judgment of the lower court is correct and should be affirmed.

It is therefore ordered, adjudged, and decreed that the judgment of the city court of the city of Shreveport be affirmed, with costs.


text:
    No. 2904
    Second Circuit
    WILKINSON v. RANKIN
    (November 7, 1930. Opinion and Decree.)
    (December 23, 1930. Rehearing Refused.)
    Barksdale, Bullock, Warren, Clark & Van Hook, of Shreveport, attorneys for plaintiff, appellant.
    Thomas W. Robertson, of Shreveport, attorney for defendant, appellee.
   DREW, J.

Plaintiff sued defendant for the sum of $270, alleging same to be due him as a balance for furnishing of material and putting on roof on the North Louisiana Sanitarium and the Weiner-Loeb-Katzenstein building in the city of Shreveport.

Defendant is proprietor and owner of the Rankin Sheet Metal Works in the city of Shreveport; and plaintiff is engaged in the roofing business. For several years defendant would bid on the sheet metal work and roofing, always securing the figures from plaintiff as to what he would do the roofing for, and each would collect for the amount of his work.

Plaintiff contends that his figures to defendant on the North Louisiana Sanitarium job was $816 and that he received from defendant only $714, leaving a balance due him of $102 on that job. He further contends that on the Wiener-Loeb-Katzenstein job his bid was originally $2,160, from which he agreed to a reduction of $169.75, leaving a balance of $1,990.25, and that he received from defendant the sum of $1,822.25, leaving a balance due him of $168.

Defendant contends that the price agreed on for the North Louisiana Sanitarium job was not a lump sum, but figured on fifty-one squares of roofing at $14 per square, amounting to $714, which amount was paid to plaintiff, although only thirty-eight squares were put on the building; and that the price originally made by plaintiff bn the other job was $1,988, and that plaintiff agreed, befoire beginning the work, to a reduction of $165.75, leaving an amount due plaintiff of $1,822.25, which amount he paid to plaintiff.

Defendant, in reconvention, sued for the difference between the price of fifty-one squares at $14 per square and thirty-eight squares at $14 per square, alleging that plaintiff was overpaid on the North Louisiana Sanitarium job in that amount. However, on the, trial of the case, he testified that plaintiff did not owe this difference to him, but to the contractor on the North Louisiana Sanitarium job, of course putting an end to his reconventional demand.

The only witnesses to the contracts between plaintiff and defendant are the plaintiff and defendant themselves, and on every point in the case they contradict each other.

Counsel for appellant stated, in arguing the case, that, if it were not for mathematical calculation that showed the plaintiff to be correct, he would not have appealed the case; and he proceeded to figure on the Wiener-Loeb-Katzenstein job, basing his figures on an original bid of $2,160 made by plaintiff; but this very figure is denied by defendant, who testifies that the original bid of plaintiff on the job was $1,988.

Everything testified to by plaintiff that would have any bearing on the result of the case is emphatically denied by defendant, and the only question before the court is the credibility of the two witnesses. There is no evidence to corroborate either of them.

The case was tried in the city court of the city of Shreveport, and the judge of that court heard and saw the witnesses testify. He was better situated and qualified to pass on the credibility than we are, and undoubtedly gave the same weight to the testimony of each of them, as his judgment was one rejecting the demands of plaintiff and rejecting the reconventional demand of defendant. The witnesses being of equal credibility, then the plaintiff has failed to support the allegations of his petition with sufficient evidence to secure a judgment.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be affirmed, with costs.


text:
    No. 3807
    Second Circuit
    SEXTON v. STILES
    (November 7, 1930. Opinion and Decree.)
    (December 23, 1930. Rehearing Refused.)
    (January 2, 1931. Writ of Certiorari and Review Refused by Supreme Court.)

      Cook & Cook and Atkins & Meadors, of Shreveport, attorneys for plaintiff, appellee.
    Blanchard, Goldstein, Walker & O’Quin, of Shreveport, attorneys for defendant, appellant.
   DREW, J.

Plaintiff instituted this suit, alleging that approximately two and one-half miles west of Homer, Claiborne parish, Louisiana, on what is known as the Homer Oil Fields Road, said road goes up the rise of one hill, down the other side, and up another hill; that at approximately 6:45 p. m. on November 11, 1928, a light truck loaded with hay belonging to defendant J. -E. Stiles, was left parked in the approximate center of said road, the truck facing towards the oil fields approximately thirty or forty feet up the rise of the second hill; that one layer of hay was placed in the bed of the truck, and between the first layer of hay and the remainder of the hay in the truck three skinned wooden poles had been loaded, the poles projecting from the rear of the truck approximately six or seven feet in the direction of Ho-i mer, and that one of the poles projecting six or seven feet had worked around so that it projected at an angle of some thirty or forty degrees from the bed of the truck to the left of the rear of said truck, the end of the pole projecting out into the approximate center of the path of any car seeking to pass the truck.

He further alleges that at 6:45 p. m. on November 11, 1928, it was good dark and that said truck had no lights, either front or rear, nor did it have any danger signal of any character whatsoever on the truck or poles, nor was the truck equipped with either front or rear lights.

He further alleges that said truck had been operated by and was in charge of a negro employee by the name of Dennis Richardson, in the employ of J. E. Stiles, who, at the time of the accident, was engaged within the scope of this employment, and that said truck was left unattended in the approximate center of the said road, without any danger signals of any kind whatsoever, designed or intended to notify any person traveling said road of the dangerous character of said obstruction.

He further alleges that at approximately 6:45 p. m. on that day he, the plaintiff, in a Pontiac sedan, was traveling at a moderate rate of speed, operating same in a careful and prudent manner, observing all the rules of traffic, upon the road above described, from Homer, Louisiana, to the Homer Oil Fields, west of said town; that it was dark at the time, and plaintiff had put on his lights on his car prior to reaching Homer and had the lights on his car burning at the time he reached the location of the parked truck; that in descending the hill situated just to the rear of the location of said truck the truck was not visible to plaintiff and only became visible as he reached the bottom of' said hill and began to take the rise of the hill upon the side of which the truck was parked, and that the truck became visible to plaintiff only when his car was approximately twenty feet from the rear of said truck; and that in order to-avoid running directly into the rear of the truck he swerved his car to the left, to pass the truck on the left side, and would have passed the truck without a collision had it not been for the ¡pole heretofore described projecting in an angular direction from the rear of said truck, directly in his path. That the pole was a white wood, freshly skinned pole, and was not visible to plaintiff as he approached the truck.

The car of petitioner came in contact with the end of said pole, the pole entering the car through the right side of the windshield, striking petitioner on the right side of the lower jaw, tearing away his lower jaw and going through and projecting beyond the left door of his car.

He alleges that he was in no way responsible for the collision or the injuries received by him, and that the same were caused solely by the negligence of defendant, through his employee, in placing the dangerous obstruction in the road.

Plaintiff then alleges the damages he sustained by reason of the accident, itemizing them as follows:

Disfigurement and personal injury to face and body________________$30,000.00
Pain and suffering____________________________ 25,000.00
Doctors’ bills ...................................... 915.00
Nurses’ bills ........................................ 188.25
Hospital expenses ............................ 792.25
Traveling expenses to and from hospital ............................................ 200.00
Cost of repairs to automobile........ " 30.00
Loss of one-half of 8 months’ earnings ............................................ 563.00
Loss of 12 months’ earnings (estimated) —.......................................... 1,959.00
Hospital bills, nurses’ bills, doctors’ bills, and expenses incident to necessary operations yet to be performed (estimated).... 2,500.00
Total .................................................$62,147.50

He prays for a trial by jury, alleges that the defendant, J. E. Stiles, .should be made to repair the damages, and prays for judgment against him in the amount set forth above by items.

Defendant filed an exception of no cause of action, which was overruled by the lower court, and it is not urged here.

Defendant answered, denying the principal allegations of plaintiff’s petition. He admits that there are small hills at the point described by plaintiff. He alleges that at about 4 o’clock p. m., on November 11, 1928, one of his trucks, loaded with hay and then being operated by a competent and careful driver, stopped at about the lowest point between the hills described when, through no fault of defendant or his employee, the universal joint of the truck was broken; that the truck could not be operated in its then condition, and the driver, acting prudently, placed the truck as near the outside of the road as possible, and started immediately on foot to a camp of defendant, where defendant kept mule teams, located about a mile and -a half distant from where he left the truck, to secure a team of mules to remove the truck and hay; and that because the accident occurred on a holiday defendant’s employees usually at the camp were absent, and defendant’s driver was unexpectedly and unavoidably delayed in securing a team and returning to the truck, reaching it just prior to or about dark.

Defendant admits that the poles had been loaded as described, but specially denies that they projected from six to seven feet from the rear of the truck; he denies that the truck was not equipped with lights; and alleges that under the circumstances described, it was unnecessary and inadvisable to have left the lights of the truck burning when his employee started out for assistance, and that the delay in his return was unavoidable.

Defendant denies that the situation of the small hills described could have in any way obstructed plaintiff’s view and shows that if plaintiff did not see the truck long before reaching it, the cause was his own fault or negligence. He alleges that the front of plaintiff’s car actually collided with the rear of the truck. He admits that the poles were white and freshly peeled. He alleges , that plaintiff’s car was run practically full into the rear of defendant’s truck and alleges that the sole cause of the accident was the .negligence of plaintiff in the following particulars:

(a) That plaintiff’s eyesight was so defective and he was so near-sighted that he was totally incapacitated to drive an automobile; and that for him to do so under any circumstances was highly negligent and reckless;

(b) That plaintiff had that day driven from Hattiesburg, Mississippi, was tired, and, consequently, was paying little attention to his task; and

(c)That the lights of the car were not properly functioning.

Further, and in the alternative, defendant alleges that if he was negligent to any extent, the proximate cause of plaintiff’s injury was his contributory negligence in the respects hereinabove pointed out, and that a reasonably competent driver, acting as a prudent person should, would have seen the truck long before the collision occurred, and could and should have avoided it. He prays for the demands of plaintiff to be rejected.

The case was tried before a jury in the lower court and resulted in a judgment for the plaintiff in the sum of $33,367.50. From this judgment, defendant has appealed and plaintiff has answered the appeal praying that the judgment be amended by increasing the amount to the sum of $59,647.50. The facts in the case, as shown by the evidence, are as follows:

The truck driven by Dennis Richardson was owned by the defendant, and the driver was in the employ of defendant and had charge of the truck at the time of the accident and was acting within the scope of his employment. On the morning of November 11, 1928, the truck was loaded with hay and three peeled poles at defendant’s camp, at Smackover, Arkansas. The truck was an ordinary Chevrolet one-ton truck'. The destination of the truck was one and one-half miles west of the place .of the accident, this being another camp of defendant. The truck was loaded in the following manner: two bales of hay were standing on end, between the outside of the frame of the truck and the poles, then the hay was laid lengthwise between the bed and the center, and then the hay loaded crosswise. The back ends of the poles were elevated over the second plank in the back end of the truck and the front ends of the poles were jammed against the front end of the truck bed. Two poles were on one side- of the truck and one on the other. On each side, the poles were the distance' of the width of a bale of hay from the side of the truck. The bed of the truck was wide enough to carry four bales of hay. From the left side of the truck at the rear there was the frame of the truck, then a bale of hay standing on end, then a pair of poles, then two bales’ of hay and another pole, then a bale of hay standing on end and the frame of the bed of the truck or right side of bed of the truck. The poles were jammed against the front of the bed of the truck at the bottom of the truck and elevated at the back of the truck to about twelve or eighteen inches. The bed of the truck was eight and one-half feet long and the longest pole was twelve feet long, the other two poles being eleven feet, eleven inches and eleven feet, ten inches, respectively. Therefore, when they were loaded, the longest pole extended over the back of the truck not quite three and one-half feet. When the truck arrived at Homer, approximately two and one-half miles east of the scene of the accident, the poles were in the same position as when they were loaded and when the truck left Smackover, a distance of more than sixty miles. The facts as stated up to this point are uncontradicted.

When the truck arrived at the hill, just east of the scene of the accident, hereafter spoken of as the “East Hill,” the driver heard a popping of the universal joint. He coasted down this hill and, on reaching the bottom of the decline, threw his truck in gear, at which place' the universal joint broke and locked the car. Being unable to move the car with its own power, he therefore left it in the road and went to the camp of defendant about one and one-half miles distant, to secure a team to pull the truck in with. On arriving at the camp, he found no one present, and had much difficulty in catching and harnessing a team of mules. When he finally succeeded in getting the mules harnessed and returned to the truck, it was after dark and after the accident had happened. When the driver of the truck left it in the road, it was about 4 o’clock in the afternoon. The day was a bright sunshiny day, and it is admitted that the sun set at 5:19 o’clock on that evening. Ordinarily, he would have had time to secure the team of mules and return to the truck before night. When the driver left the truck he did not turn on the lights in front or rear nor did he place on said truck in front or rear any sign or warning to other persons traveling that road.

After the accident, the mules were hitched to the truck, but were unable to pull it until after it had been unloaded, then the truck was pulled in to defendant’s camp and the hay carried in on a wagon.

The evidence clearly shows that the truck was left in the valley between the two hills to the west of the lowest point in the valley, approximately fifty or sixty feet west of the lowest point; that the front end of the truck was near the right side of the road in the direction it was going, approximately three or four feet from the right edge of the road, and the rear end of the truck was angling towards the center of the road; the rear end of the truck being approximately to the center of the road; that the road was twenty-four feet wide, that * it had a crown of twenty-four feet and was graveled; and the preponderance of the testimony of the witnesses who saw the truck prior to the accident is that the poles were sticking straight out the hack of the truck, no£ exceeding four feet. The angle in whfeh the truck was placed caused the poles to extend slightly over the center of the road.

There is much evidence in the record as to the location of the car and truck after the accident and as to the distance the pole was projecting out of the truck after the accident, which clearly shows that the pole had gone through the windshield aud out the left-hand door of plaintiff’s car, extending one foot the other side of the door. It is argued that this indicated that the pole was extending more than four feet out the back of the truck. We do not think so. The preponderance of the testimony in regard to the poles before the accident clearly shows that they were not extending out the back of the truck more than four feet, and this is supported strongly by the manner in which they were loaded. The only probable way for the poles to extend farther out the back of the truck than four feet would be for them to be pulled out, which we think happened when the car hit the truck and bounced off to the left. The plaintiff was no doubt attempting to turn to the left as indicated by the position of the car after the accident and the pole was wedged against the windshield on the right and the steering wheel and door on the left, and when the car, with the force it struck, which is shown by the fact that the heavily loaded truck that could not be pulled by a team of mules was slided over to the left from six to eighteen inches, by the impact of the car, either bounced off or careened off to the left, it necessarily pulled the pole with it, causing the pole to then extend out of the truck some six or seven feet.

The least distance any witness gave the clearance on the road to the left of the truck, even after the accident, was from eight to ten feet, that is, on the south side of the road, and we are constrained to believe that the clearance was almost, if not entirely, half of the road, for the reason that it is shown that after the accident the impact had moved the truck over to the center of the road a distance ranging from six inches to qne and one-half feet, and after the accident, with the plaintiff’s car sitting almost entirely to the left of defendant’s truck, other cars passed on that side of the road without having to go into the ditch.

The contour of the road or the grade of the road from the location of the truck east for one hundred fifty .to two hundred feet is best shown by the photographs in the record, which were thoroughly identified, as showing the true situation as to the grade .of road, etc., as well as the testimony of witnesses who were more familiar with the lay of the land at that place, including Mr. Wideman, who owns and farms the land on both sides of the road at that point. The east hill is not a steep hill, being rather a long, slight decline, while the west hill is rather steep; between the two hills, which is shown to be about 2,000 feet from crest to crest, there is a valley of at least two or three hundred feet which is practically level, slightly rolling to the east. To the naked eye, the incline or decline of this two or three hundred feet stretch of road is hardly noticeable. The evidence is conclusive that the elevation at the point of the truck and the point where the "Wideman car was sitting, thirty-nine steps east of the truck, is practically the same and that the very lowest point in this valley is about middle ways between the location of the Wideman car and the truck.

We have stated that it was a clear, sunshiny day, and that the sun set at 5:19 o’clock. The time of the accident is not definitely fixed and is a point of contest in this case.

Plaintiff alleges that the accident happened at 6:45 p. m. However, he is mistaken as to his time, for that is the exact time the record shows that he entered the sanitarium at Haynesville. After the accident, the plaintiff was unconscious, a car drove up and turned around, plaintiff was removed from his car to the other car and drivén to Homer, a distance of approximately two and one-half miles, was taken out of the car and carried upstairs to the doctor’s office. The doctor was at supper at his home, at least one-half mile from his office. He was telephoned, and drove to his office and administered first-aid treatment, saw it was a hospital case and telephoned to the sanitarium at Haynesville. P.laintiff was removed from the office and placed in a car and carried to Haynesville, a distance of fourteen miles. He arrived at the sanitarium at Haynesville at 6:45 p. m. Defendant contends that it took at least one hour to do the many things that were done from the time of the accident until plaintiff entered the sanitarium at Haynesville, and we cannot disagree with him much. Certainly the accident did not occur after 6 o’clock and we believe it was between 5:45 and 6 o’clock when it happened. The evidence is very conflicting on the auestion óf the necessity of using lights on the cars at that hour, some witnesses had turned on their lights, others had not. The plaintiff had his lights bunting. It was safer to use lights on the cars at that time of day and, while one might have seen without them, it would have been unsafe to drive without lights. One negro witness correctly described the time of day as to light or dark when he said that it was “dusk dark.” It was that time of day when daylight is fastly fading and night fastly approaching, and when it is much safer to drive with lights than without. The law requires lights to be used on automobiles at that time of day.

Another controverted point is, did the car actually strike the truck or did it entirely miss the truck and only hit the (pole extending back of the truck?

The only witnesses who saw the accident are the plaintiff, his wife and Mrs. Edmonds. Plaintiff and his wife testify that they saw the truck when it was about twenty feet from them, that the car was turned to the left and missed the truck but was struck by the poles; and Mrs. Edmonds, who passed the plaintiff going in the opposite direction just a few seconds before the accident, testifies that she looked back and saw the collision. Mrs. Edmonds could not tell whether the car hit the truck and the (poles or just the poles; however, her impression was that the car missed the truck and struck the poles. We do not think the plaintiff and his wife could know whether the car hit the truck or the poles. They think it was struck' by the poles. But necessarily, the poles and the truck were struck at about if not exactly the same time and it would be very difficult for them to know just what happened. The undisputed testimony is that the car had a hole several inches in diameter in the cowl, near where the hood breaks in the middle and a little to the right of the center of the hood, and that the truck was marked with paint of the same color as the car on the corner of the body of the truck at a point that would correspond in height to the hole in the car, and that the bumper of the Sexton ear was dented. There was no attempt made to explain the dent on the bumper of the car or the hole in the cowl and the paint of the same color of the car on the truck. These are mute witnesses that, without explanation, are convincing that the car of plaintiff did strike the body of the truck.

Furthermore, the testimony shows that Mrs. Edmonds, on passing the plaintiff, immediately looked back and exclaimed: “That man is going to hit that truck, bound to, he is going straight in it.” Then said: “He hit that truck.” This was the exclamation of a witness made at the time' of the accident and while looking at it. A witness for the plaintiff and used by the plaintiff.

Plaintiff contends that he only saw the truck twenty feet before reaching it, and his wife testifies that he was driving twenty miles per hour. Assuming that to be true, _ plaintiff ■ .had only less than one and one-half seconds in which to dodge the truck after he saw it; and if he was driving at the rate of thirty miles per hour, he only had less than one-half second to dodge the truck after he saw it. In either instance, it was almost a physical impossibility.

There are only two witnesses who attempt to fix the rate of speed that plaintiff was driving; in fact only two that were questioned in regard to the speed. Plaintiff’s wife states that he was making twenty miles, and is rather positive in her testimony under cross-examination, although she states that she did not look at the speedometer, and that they had been making from thirty to thirty-five miles all day until after leaving Homer. One other witness testified that plaintiff was driving at a moderate rate of speed, and not so fast.

It is not contended that plaintiff was speeding, and under our finding as to .the contour of the road, it is immaterial to the case whether he was making twenty or thirty miles per hour, other than as to the Opportunity he had to Üodge the truck after seeing it only twenty feet ahead of him.

Plaintiff, with his wife and three small children, left Collins, Mississippi, on the morning of November 11, 1928, at about the hour of 7 o’clock, on his way to his home in the Homer Oil Fields, about five miles west of Homer, in Claiborne parish, Louisiana. He came by the way of Vicksburg, Monroe' and Homer. He was driving a Pontiac car. The distance from Collins to Vicksburg is 125 or 130 miles, from Vicksburg to Monroe 100 miles, Monroe to Homer 73 or 74 miles, and from Homer to the scene of the accident about two and one-half miles; making a total of 301 or 307 miles. He lost one hour and fifteen minutes in crossing the ferry at Vicksburg, twenty minutes for lunch at Monroe, time to get gas at Jackson, and stopped for his mail in Homer; all told not less than one hour and* fifty minutes, leaving approximately nine hours of actual driving time. He had averaged about shirty-four miles per hour during the day, including the delay in passing through incorporated towns, of which there are quite a number on this route. It is common knowledge that in order to make an average such as was made by the plaintiff on that day he must necessarily have driven forty to forty-five miles per hour when outside of the towns and cities, and there is no good reason given for his slowing down to half speed when nearing home.

When the witness, the only one other than plaintiff’s wife, testified that he was driving at a moderate rate of speed “not so fast” we think the court would be justified in saying that thirty miles an hour is a moderate rate of speed, and that plaintiff was making from twenty-five to thirty miles per hour and therefore had not more than one-half second in which to turn so as to miss defendant’s truck — a feat almost impossible of performance unless he had known that he was going to see the obstruction when he was within twenty feet of it and was prepared to dodge it within that distance. It is conclusive to our minds that the car of plaintiff did hit the truck of defendant.

Under the facts as above stated is the defendant liable?

Plaintiff contends:

1. That defendant was negligent in leaving the truck parked or standing in the approximate center of the highway at or after dark, it having been practical for him to have placed 'it to one side.

2. That it was actionable negligence for him to have left the truck in the road at the time of ibe accident without having displayed on the rear of the same a red light visible for a distance of five hundred feet to the rear.

3. That it was also actionable negligence for the defendant to have upon the road a truck loaded with a projection more than four feet beyond the rear of the bed or body, without displaying a flag in the daytime or a yellow or red light in the nighttime which would be visible under normal conditions two hundred feet from the rear.

4.That even if leaving the truck standing at dark, and after, without lights or other warning signals, did not constitute negligence, nevertheless leaving the same parked in the center of the road, with a pole six or seven feet projecting beyond the center of the road and beyond the truck was grossly negligent.

The first contention loses its force, due to the fact that the evidence shows that it was not practicable for the truck to have been moved after the universal joint broke and that it was impossible to move it after the accident with a pair of mules until it was unloaded; and for the further reason that the driver is shown to have done his best to get a team and move the truck before the accident.

Contentions three and four lose their force due to our finding that the poles did not extend over the back of »the truck more than four feet prior to the accident; and therefore no necessity existed for displaying a flag in the daytime or a light at night on the rear end of the poles.

That brings us to the sole and only remaining contention of plaintiff, which is: Was it actionable negligence for the truck to have been left in the road after the hour for turning on lights on automobiles, under the law of the state, without having displayed on the truck a rear light visible for five hundred feet?

Section 57 of Act No. 296 of 1928 reads as follows:

“Whenever a vehicle is parked or stopped upon a highway whether attended or unattended during the times mentioned in Section 50 (half hour after sunset to a half hour before sunrise and at any other time when there is not sufficient light to render clearly discernible any person on the highway a distance of 200 feet ahead) there shall be displayed upon such vehicle one or more lamps projecting a white light visible under normal atmospheric conditions from a distance of five hundred feet to the front of such vehicle and projecting a red light visible under like conditions from a distance of five hundred feet to the rear,” etc.

We have found that it was near enough night for lights to be required burning on automobiles; therefore it was negligence to leave the truck parked on the highway without lights as described in Section 57 of Act 296 of 1928.

Defendant contends that the driver of the truck left before night and had every reason to expect to Return to the truck before dark, and that in not returning, due to the unavoidable delay in catching and harnessing the mules, he acted as any reasonable and prudent man would have done under the circumstances, and that the law requires nothing more. That defense, made to a charge under the criminal law, for parking his car without lights on the highway atfer dark, might have a tendency to mitigate against a heavy sentence, or even to bring a suspended sentence, but it cannot relieve him from liability in a suit for damages, if the lack of lights on the car was the (proximate cause of the accident and accompanying injuries. Lights are required to be displayed on automobiles after night when they are parked on the highway, for the purpose of protecting other users of that highway against accidents and collisions, and certainly the misjudgment of defendant’s driver, as to when he could get back to the car, or that he would get back to the car before dark, will not excuse him or his employer from liability occasioned by an accident the proximate cause of which was the absence of lights on the parked car.

The courts of this state have uniformly held that it is negligence per se for one to park a car on the highway without lights after dark, when an accident is caused by said failure. However, if the absence of the lights is not the proximate cause of the accident but same is brought about through the carelessness and recklessness and lack of precaution on the part of the one driving into the ¡parked car, then the courts have refused to hold the owner of the parked car liable.

Defendant contends that plaintiff was guilty of actionable negligence, in that he alleged that he could not see more than twenty feet ahead of his car due to the contour of the road, and was driving in excess of fifteen miles per hour, in violation of paragraph (b) of section 5 of title II of Act No. 296 of 1928. Under our finding of fact, it is unnecessary for us to pass on this question. The highway, for at least 150 to 200 feet east of the parked truck, was nearly level, only slightly rolling to the east, and there was no obstruction of any kind to prevent plaintiff seeing the parked truck long before he reached it. Plaintiff testified that he saw the Wideman car when he came over the east hill, a considerable distance before he reached it. It was parked on the opposite side of the road, just thirty-nine steps east of the truck of defendant, and was a coupe; defendant’s truck was directly in front of it and was loaded high with hay and should have been much easier to see than the Wideman car sitting on the left side of the road without any lights. The elevation of the road at the Wideman car and defendant’s truck was about the same, and there was certainly no reason for plaintiff not to have seen the truck when even with the Wideman car, which was 115 to 120 feet from the truck.

Just prior to and within fifteen minutes of the accident, it is shown that a number of cars passed the truck going both ways. No one else ran into it. Just a few seconds before the accident, plaintiff’s witnesses, Mr. and Mrs. Edmonds, had passed the truck, coming from the opposite direction, and had no difficulty in seeing it. After the accident, and when it had become good dark, there were a number of cars that passed the truck with plaintiff’s car sitting partially to the left of it and taking up the greater part of the road. No one ran into either car and undoubtedly saw the cars a sufficient distance away to turn around them, although neither defendant’s truck nor plaintiff’s car had any lights on them after the accident.

After Mrs. Edmonds had passed ¡plaintiff’s car, and' was looking back while her car was moving in the opposite direction, she could see the truck, and saw plaintiff’s car run into it.

Plaintiff’s ear had good lights, and the testimony is -that they were burning bright. He should have seen the truck, with his lights, long before he reached it, if he was traveling at the rate of twenty miles per hour, and in sufficient time to have turned out to the left and have avoided the truck, if he was going at thirty miles per hour.

There was no obstruction to prevent plaintiff from seeing the truck, if he had been keeping the proper lookout ahead and if his eyes were normal. Any normal man should have seen the truck at least 200 feet before he rpached it, and the fact that plaintiff did not see the truck until within twenty feet' of it lends strong support to the testimony of the three eye specialists that the plaintiff could see at twenty feet what a man with normal eyes could see at two hundred feet. His vision was either imperfect or he was not looking at the road ahead of him; either of which would bar his right to recover. The absence of a tail light from the truck was not the proximate cause of the accident; but the failure of the plaintiff to keep the proper lookout ahead was the cause of the accident.

The presumption of law is that one saw what he should have seen, and if his failure to see was because of defective vision or through failure to keep a proper lookout, he is not relieved from the consequences of his negligence.

If we should accept the view of the plaintiff that the contour of the road was such that he could not see the truck until within twenty feet of it, he would be no better off; for in that instance he would be guilty of violating the law of the road as set out in Act No. 296 of 1928, title II, section 5, paragraph (b), in that he was traveling at a greater rate of speed than fifteen miles per hour; and the principle of law repeatedly held by the courts of this state is, that when vision of the road ahead is obstructed, whether by curve or contour of the road, or anything else, it is the duty of a driver to bring his car down to such speed as to have it under such control that he can stop within the distance that he can see an obstruction.

Counsel for plaintiff have cited authorities holding that a person using the sidewalks or streets in. an incorporated city has the right to presume that the highway or sidewalk is safe for ordinary travel and that he is not required to be on the lookout for extraordinary dangers or obstructions to which his attention has not been called.

The courts have also held that a blind man has the right to walk the streets of an incorporated city and to presume that the streets and sidewalks have no ¡pitfalls in them for him caused by lack of repair. However, the law of the road is different, and a man who is blind or whose vision is bad is negligent if he attempts to drive a car on the road. Furthermore, it is reasonable for one to expect to find cars parked on the side of the road, cars without lights, due to lights burning out and broken down cars. It is no longer an unusual thing to see cars parked on the roadside, but it is unusual if you do not see many in traveling a great distance. It is no longer an extraordinary danger, not to be expected, but is an ordinary danger, to be expected; and the law of the road and the jurisprudence of this state require every person to keep a proper lookout ahead for such obstructions, and if one’s failure to keep the proper lookout is the proximate or contributory cause of the accident, he cannot recover damages occasioned by said accident.

It is therefore ordered, adjudged and decreed that the judgment of the lower ■ court be reversed and the demands of plaintiff be rejected at his cost.