text:
    No. 9852.
    Orleans Appeal.
    VIOLA BENNET, DIVORCED WIFE OF JAMES BRIDGEMAN, WIDOW BY SECOND MARRIAGE OF JOHN BONDERENT, v. NATIONAL LIFE & ACCIDENT INSURANCE COMPANY.
    (January 19, 1925, Opinion and Decree.)
    (February 16, 1925, Rehearing Refused.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Insurance—Par. 33, 175.
    A beneficiary claiming under an accident policy for the loss of the insured’s life, assumes the burden of proving — as the terms of the policy require — that death resulted “directly and independently of all other causes, from a bodily injury sustained while the policy was in force and which was effected accidentally.” Where disease, and not bodily injuries, are shown to have been the direct cause of death, there can be no recovery:
    Appeal from First City Court of New Orleans, Section “C”, Hon. Henry Renshaw, Judge.
    This is a suit on an accident insurance policy.
    There was judgment for plaintiff and dedefendant appealed.
    Judgment reversed.
    Frank S. Norman- attorney for plaintiff and appellee.
    Solomon S. Goldman, attorney for defendant and appellant.
   BELL, J.

This is a suit for $288.75, on an accident insurance policy. The assured, Charles Young, was found dead in his bed the evening of August 20, 1923. Plaintiff, the named beneficiary under the policy, brings this suit. There was judgment as prayed for, from which the defendant insurance company has appealed.

It is alleged in the petition that on the morning of July 23, 1923, Charles Young was descending the stairs leading from the second story of his residence, wnen he accidentally slipped and fell down the entire length of the stairway, sustaining severe bodily injuries, from the effects of which he died about three weeks later.

The answer admits the issuance of the policy under which plaintiff is the beneficiary and also admits the correctness of the amount claimed thereunder. All other allegations of the petition are denied, and defendant further answering avers:

“That Charles Young did not die under such circumstances as to entitle plaintiff to the amount demanded under the said policy, for your respondent shows the said policy insures against loss of life ‘resulting directly and independently of all other causes from a bodily injury which is sustained while this policy is in force and which is effected accidentally’, and was not the result directly and independently of all other causes of a bodily injury effected accidentally.”

From the record before us it does not appear that there were any eye witnesses to the accident. The evidence is to the effect that Young was about forty-five years of age, employed at the date of the accident and for many years prior thereto by the United Fruit Company in unloading bananas from banana ships at New Orleans. From a signed statement made by plaintiff as claimant under the policy, it appears that Young quit work about August 12, 1923, which would have been some thirteen days after the date of the accident, as alleged in plaintiff’s petition. It also appears from this signed statement that Young “died before consulting a physician”, and that “the deceased did not realize the severeness of his condition and died a natural death”. The undertaker’s certificate, furnished to and offered in evidence by the defendant, reads as follows:

“This is to certify that we buried deceased Charlie Young — who died this city, August, 1923. At time of his burial we noticed nothing abnormal and the body was in good condition. Cause of death being heart block.
“(Signed) Yours truly,
Geo. D. Geddes U. & E. Co., Ltd.,
by M. L. Kellar.”

The assistant coroner who examined the body testifies that Young died of “heart block”, and in the record we find the statement written and signed by this witness, which reads as follows:

“New Orleans, March 11, 1924.
“In reference to above I will state that ‘heart block’ is a natural condition and not due to any external violence.
“Respectfully,
“(Signed) E. J. DeBergue, M. D.,
“Assistant Coroner.”

Despite the written declarations above quoted, we find the assistant coroner, on the trial of this case, April 30, 1924, testifying that he concluded after issuing the above certificate, and after having been given a whole day to examine the records from which it was prepared, that Young’s death was due to a fall, which caused the “heart block” resulting in his death.

Dr. Charles L. Eshlemann, a recognized heart specialist and practitioner of long experience in the City of New Orleans, testifies as an expert for defendant, that “heart block” is a disease causing interference with the heart’s natural and proper impulse to beat. His testimony, not qualified or varied by cross-examination, is, in part, as follows:

“Q. Now, doctor, what causes this lack of co-ordination V
“A. Disease of this bundle of fibres, such as syphillis, acute inflammatory rheumatism,. acute effects of any infection, like diphtheria or influenza or pneumonia, and in a group of cases in later years, fibre degeneration in the muscle fibres themselves.
“Q. Now, doctor, taking a hypothetical case of a man around fifty years, apparently in good health, had been doing strenuous work, is said to have suffered a fall on the 20th day of July; for about a week after the fall he didn’t work, but thereafter he went back to work, continues for about two weeks of strenuous work, carrying bundles of bananas, is found dead in bed on a certain date about three weeks after this fall, and the death is diagnosed as heart block. Would you say that the heart block in that case results from an accident occurring three weeks before, which did not interfere with the man’s working two weeks before his death, or does that come from the diseased condition that you testified to?
“A. I never heard of or I have never seen a case in which an accident caused heart block. It is produced by disease. Therefore, I should say that disease in that bundle of muscle fibres caused death in that case.
“Q. Now, doctor, as a matter of fact, an injury which affects a heart so seriously that death results in three weeks, would-n’t such an injury prevent work for two weeks preceding the death, as a rule?
“A. It would.
“Q. In other words, it is very improbable that an injury could be suffered and the injured party could be able to work two weeks before his death, and then be found dead as a result of that injury to the heart?
“A. Yes, sir, that is very improbable.
“Q. This diseased condition of the muscles that you speak of is that accompanied by pain or not?
“A. Sometimes it is and sometimes it is not.
“Q. Then it is possible for a person to suffer with this diseased condition and not realize it on account of lack of pain?
“A. That’s correct.
. “Q. Do heart blocks produce sudden deaths?
“A. Yes. sir.
“Q. That is the usual course, is it?
“A. Sometimes the blocking continues for a long time in a partial way and not as a complete block. In that ease, the heart gradually weakens, causing a gradual death.
“Q. What is the condition of the health of the person during that period?
“A. He is confined to bed with dropsy and shortness of breath and blueness of his fingers and lips and other symptoms of heart disease.”

We find from the record that the hypothetical case propounded to Dr. Eshlemann. and as herein set forth, is in consonance with the facts existing in the present case.

We are unable to agree with the learned trial judge in his appreciation of the facts of this case. Fourteen witnesses have testified in this proceeding. There are more than eighty pages of testimony concerning a claim of less than three hundred dollars. We have carefully reviewed the entire record and find nothing which justifies the conclusion of the lower court to the' effect that the deceased sustained a fall of some sixteen feet or that he was unable to resume his work after the fall. No one saw or heard him fall, nor is there any evidence whatever in the record to the effect that he had to be carried or assisted to his bedroom after the fall. The allegations in the petition to this effect are wholly unsupported by any proof in the record. As we appreciate the evidence, it is plain that no serious bodily injury whatever was suffered as a result of the fall. The bruises and cuts which appear in Young’s face and which healed within a week or so after the accident, seem to have been the extent of the injury. We are impressed by the fact that though Young had previously collected accident disability benefits on the policy now sued upon and upon another policy known as “industrial insurance”, and though he was thoroughly familiar with the manner of making claim for such relief, and was able to work and did work, except for the week immediately following his accident, still no claim for disability was presented by him in regard to the accident which it is now claimed caused his death.

Young’s friend who was living directly under him in the same house and another friend, a restaurant keeper across the street, from whom he purchased his morning coffee, and also the laborer employed alongside of him in unloading bananas, all testified to his being up and about and even at his work for some time after the accident. No doctors were ever called to assist or prescribe for the deceased during his alleged illness of three weeks, and although three of the plaintiff’s witnesses testified that he was groaning and in apparent agony and was declaring his fears that he would soon die, still under all of these circumstances no medical aid was secured by him or his friends about him. The testimony of the three mysterious negro women not. related to him and not shown to have had any reasons for calling on or administering to him during his alleged sickness, is not worthy of consideration, and the unlikelihood of their statements prevent us from giving any credence to their stories. The assistant coroner’s certificate, taken with the undertaker’s certificate, and considered also in the light of the expert testimony of Dr. Eshlemann, convince us that Young died a natural death and not from an accidental bodily injury resulting directly and independently of all other causes.

Plaintiff has failed to carry the burden imposed upon her by law of proving by a preponderance of evidence that death in this case was .accidental. The authorities cited by counsel for plaintiff have no application to the instant case, for the reason that defendant here offers no plea in avoidance of liability upon averments such as were made in the cited cases, to the effect that some breach in the term or condition of the contract had barred recovery thereunder. Of course, in such cases it is sound law that he who pleads the breach must prove it. ' Here, however, the plaintiff, suing upon the contract, must prove herself, as claimant or beneficiary, to be within all the terms of the contract.

Kling vs. Masons' Fraternal Accident Assn., 104 La. 763, 29 South. 332; 1 C. J. Verbo: “Accident Insurance,” Sec. 284, page 496; 73 Fed. 774.

For the reasons herein stated, we are of the opinion that the judgment appealed from should be reversed.

It is, therefore, ordered that the judgment appealed from be and the same is hereby reversed, and it is now.ordered and decreed that there be judgment in favor of defendant, the National Life and Accident Insurance Company of Nashville, Tenn., and against the plaintiff, Viola Bennet, dismissing plaintiff’s suit at her costs in both courts.


source: Caselaw Access Project

author: WESTERFIELD, J.

license: Public Domain

text:
    No. 9874.
    Orleans Appeal.
    NORWICH UNION INDEMNITY CO. v. CHARLES COHEN, Appellant.
    (January 19, 1925, Opinion and Decree.)

      (Syllabus by the Court.)

    I. Louisiana Digest — Automobiles—Par: 4; Municipalities — Par. 225.
    When two vehicles approach an intersection at about the same time, the one having the right of way is entitled to proceed and it is culpable negligence for'tile other to attempt to cross.
    (Civil Code, Art. 2315. Editor’s note.)
    Appeal from First City Court, Hon. Val J. Stentz, Judge.
    This is a damage suit growing out of an automobile collision.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Eraste Vidrine, attorney for plaintiff and appellee.
    Carbajal & Gaudin, Milton De Reyna, attorneys for defendant and appellant.
   WESTERFIELD, J.

Plaintiff, as subrogee of one H. D. Cothran, the owner of a Cadillac automobile, sues the defendant for damages sustained- by the Cadillac car as the result of a collision with a Chevrolet automobile belonging to defendant.

The defendant denies all negligence on his part and imputes all the fault to the driver of the Cadillac. He reconvenes against plaintiff, claiming compensation for damages to his car. There was judgment for plaintiff and defendant has appealed.

The collision occurred at the intersection of Prytania and St. Andrew Streets in this City. The Cadillac car, driven by a negro chauffeur, was proceeding up Prytania Street in the direction of Audubon Park and the Chevrolet, driven by defendant, was crossing Prytania Street at St. Andrew and proceeding in the direction of the river. There is the usual conflict of testimony as to the speed of the colliding vehicles. The Cadillac is said to have been traveling 35 to 40 miles per hour by defendant and two of his witnesses. This is denied by the chauffeur of the Cadillac and a witness by the name of Hannon, who put the speed of the Cadillac at from 18 to 20 miles per hour. It appears that the Cadillac had a short while before the collision injured a child and the injured child was in the car in the arms of the witness Hannon, a bystander who had been asked to accompany the child to the Touro Infirmary where it was proceeding at the time of the accident. This circumstance, it is claimed, tends to corroborate the testimony concerning excessive speed, since, it is argued that it was natural for the Cadillac to hasten to the hospital under the conditions. It might also be said that the presence of the injured child in the car would induce caution in the driver who had just experienced an accident.

The defendant,. driving his own car, claims to have stopped, looked and listened before entering the intersection of Prytania Street, and the fact is established by the evidence. Having stopped and looked he should have seen the Cadillac in Prytania Street and to have .allowed it to pass before crossing. His attention seems to have been focused on a Ford truck which was coming down Prytania Street in the opposite direction to the course of the Cadillac. He says that he did. not see the Cadillac and that his vision in that direction was affected by the fact that there is a bend in Prytania Street as it approaches St. Andrew. He had only driven six or seven feet when struck by the Cadillac. The evidence is to the effect that the bend in Prytania Street is some distance below St. Andrew and that clear vision is possible for quite a long way down the street. If defendant looked in that direction as he should and as the record shows that he did, he will be presumed to have seen what he could have seen, the Cadillac car, and his entering the intersection under the circumstances was culpable negligence.

In Gibbons vs. Terminal Co. et al., No. 8738 Orl. App. we said:

“But plaintiff says that he looked but did not see any train on the track. That is his fault or his misfortune. The law is not satisfied with a plaintiff looking and not seeing; he must look at such a time and in such a manner .as he may see things as he should have been if he had looked properly. The presumption of law, juris et de -jure, is that a plaintiff saw a thing he should have seen had he looked, and that he failed to look at the opportune time and in the proper manner if he did not see the things he should have seen by looking properly. Kelly vs. Schmidt & Zeigler, 142 La. 91, 76 South. 250; Huddy on Autos, p. 397, Sec. 336.”

The Cadillac had the right of way and while that fact could not excuse reckless driving or gross carelessness, we can not on this record conclude that the driver of the Cadillac was driving recklessly or carelessly. The two cars were approaching the intersection at about the same time. Defendant says he had only progressed six or seven feet when struck. It was defendant’s duty to have given way to the Cadillac car.

On the question of quantum which defendant contends was not sufficiently proven, we think the evidence sufficient.

For the reasons assigned the judgment appealed from is affirmed.


author: LECHE, J.

text:
    No. --
    First Circuit Appeal
    JOHN HARRISON v. NORMAN BREAUX LUMBER CO.
    (Jan. 21, 1925, Opinion and Decree.)
    (Feb. 18, 1925, Rehearing Refused.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Master and Servant— Par. 158.
    where an employee’s leg is injured and nearly a year later his leg is amputated the proof showing that the possibility that the amputation was caused by the accident is very remote and improbable, the injured employee cannot recover compensation under the Employer’s Liability Act, No. 20 of 1914.
    2. Louisiana Digest — Master and Servant— Par. 158.
    Where an employee’s leg is injured and nearly a year later his leg is amputated, it being proven that the cause of the amputation was due either to bad circulation, poor blood supply, which may have resulted from age, hard labor, or syphilis, the injured employee cannot recover compensation under Employer’s Liability Act, No. 20 of 1914.
    Appeal from the parish of St. Mary, Hon. James Simon, Judge.
    This is a suit for compensation under the Employer’s Liability Act No. 20 of 1914. There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Chas.-J. Mundy of Franklin, attorney for plaintiff, appellant.
    Paul Kramer of Franklin, attorney for defendant, • appellee.
   LECHE, J.

Plaintiff was in the employ of defendant as a laborer near Morgan City, in the parish of St. Mary, and on November 15, 1922, was injured and he sues for compensation under the Employer’s Liability Act.

At the time of the accident plaintiff was carrying bricks and placing them upon a scaffold, which gave away under load, and he fell to the ground with the bricks. He says that he received severe contusions, bruises and cuts on his leg. Other witnesses say that the injury was apparently very slight and consisted merely of an abrasion of the skin on his leg.

After his fall plaintiff got. up, went off and sat down. He then returned home and did not again present himself to resume his work until February 38, 1923.

'During this time, he consulted Dr. DeG-ravelle and he received in wages from defendant, eighty one G0/100 dollars. He then, came back and worked six or eight days. After leaving defendant in March 1923, he went to work for J. N. Pharr’s Sons on Avoca plantation where he worked for two or three months, then went to New Orleans and his leg was amputated at the Charity Hospital the latter part of October, 1923.

The question of fact which controls the decision of this case is whether the injury; received by plaintiff on November 15, 1922, was the sole cause or a contributing cause which necessitated the amputation of his leg at the Charity Hospital in New Orleans.

In the case of Haddad vs. Commercial Motor Truck Co., 150 La. 327, 90 South. 666, it was held that “In a proceeding under the Workmen’s -Compensation Act to obtain compensation for death of servant, it is not enough to show that death was probably the result of an accident, but that such was the case must be made out to a legal certainty.”

In cases where a person is afflicted with some constitutional disease, it must appear that the accident was the proximate cause of the injury, that the disease was accelerated or brought into activity by the accident or that the accident added, to the disease, superinduced the physical disability. Johnson vs. Vernon Parish Lumber Co., 151 La. 665, 92 South. 219; Fox vs. United Chemical & Organic Products Co., 147 La. 865, 86 South. 311; Behan vs. Honor Co., Ltd., 143 La. 349, 78 South. 589.

The history of the injury is not clearly established, but some facts in regard thereto are not contested. Plaintiff did not lose control or use of his leg after the accident which apparently only produced a slight and bloodless abrasion of the skin. Evidently there must also have been a; bruise of the flesh or muscles of the leg, but to what extent, is impossible to determine from the record. The witnesses who were near the scene, did not believe from what they saw that plaintiff had been badly hurt. As to his physical condition previous to the accident, plaintiff testifies that he had been injured by a wagon tongue several years before, but that this injury was on the other (his left) leg and that it had healed, that his blood was clear or free from syphilitic taint.

Mr. N. G. Johnson, an employee of defendant for several years, testifies that plaintiff had a sore leg previous to the accident but does not know on which leg was the sore.

Mr. K. S. Foster, employed by the U. S. government and paymaster for Pharr’s Sons, knew plaintiff when a laborer on Avoca plantation. Plaintiff then had an ulcerated sore leg and told Mr. Foster that this sore had been there a number of years.

Dr. DeGravelle, who treated plaintiff immediately after the accident of November 15, 1922, testifies that there was only a slight abrasion óf the skin. He noticed evidence of- a large area of former chronic sores on plaintiff’s leg. He treated plaintiff from November 28, 1922, to February 16, 1923. He says there was no necessity for this long treatment, but that plaintiff did not follow his instructions, that plaintiff went about, did not observe the quiet and rest which he had prescribed, that plaintiff also applied poultices of leaves and other nostrums on the sore thereby retarding the healing process.

He admits the possibility that the injury from the fall, might have been a contributing cause which necessitated amputation of plaintiff’s leg but did not consider it at all as probable. He did not believe that there was any connection between the injury of November 15th and the amputation.

Dr. O’Niell treated a sore, the size of a half dollar on plaintiff’s leg, between February and September, 1923. He saw plaintiff three or four times, there was old sear tissue all around the' sore. He has no idea of the cause of the sore. It was stubborn and repair is very slow in that kind of a sore. From appearances there had evidently been a sore prior-to this one because there was quite a bit of scar tissue around on the outside.

Dr. Gessner, who amputated plaintiff’s leg, at the Charity Hospital in New Orleans, says in substance, that - when he first saw plaintiff in the hospital, there was a sloughing of a muscle along the front of the leg, the tibialis anticus. He cut down to the periostium where he found some thickening of the surface of the bone and simply removed the sloughing tendon and muscle. The foot then became gangr.enous and he had to amputate higher up, at the knee. The sloughing of that muscle could not have been due to an injury inflicted one year before. He could see no connection in the amputation of the leg with the injury received a year previous. The nearest he could come to the cause of this condition of the leg, was bad eirculaion in the leg and poor blood supply, which may have resulted from age, hard labor or syphilis, he could not say which, though the Wasserman test showed negative. That condition could not be due to trauma, a year before, though such is a very remote possibility.

It thus appears from all the evidence in the case, that plaintiff had been able to prove merely the possibility that the injury which he alleges to have received on November 15, 1922, was the cause which necessitated the amputation of his leg and this possibility in the opinion of medical experts, is very remote and improbable, and it is apparent from this fact and the law as construed by the Supreme Court, that this court would not be justified in allowing plaintiff any compensation under the Employer’s Liability ’ Act.

The judgment of the district court was in favor of defendant and it is

Affirmed.


text:
    No. -
    First Circuit Appeal
    FELIX A. BONVILLAIN v. VITAL PELEGRIN
    (January 21, 1925, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Landlord and Tenant Par. 5.
    The price is an essential element in the contract of lease. In such a contract, like the contract of sale, three things are necessary, to-wit: The thing, the price, and the consent.
    2. Louisiana Digest — Landlord and Tenant —Par. 102.
    Attorney’s fees are allowed as damages for dissolution of a wrongful seizure where there is no agreement as to the price of the lease under which the seizure was taken.
    Appeal from the Parish of Terrebonne. Hon. J. A. O. Coignet, Judge.
    This is a provisional seizure for rent alleged due. An exception of no cause of action was filed. There was judgment dissolving the writ of provisional seizure with damages and maintaining the exception of no cause of action.
    Plaintiff appealed.
    Judgment affirmed.
    Harris Gagne and Howell & Wortham, of Donaldsonville, attorneys for plaintiff, appellant.
    Butler & Wurzlow and Wurzlow & Watkins, of Houma, attorneys for defendant, appellee.
   LECHE, J.

The record in this case presents two appeals, one from a judgment dissolving a writ of provisional seizure and the other from a judgment maintaining an exception of no cause of action.

Plaintiff in his petition claims rent under an alleged lease in which he admits that no agreement was entered into as to the amount of rent to be charged, and he alleges that the sum of two hundred dollars would be a fair and just amount. He then prays for a provisional seizure and for judgment in the sum of two" hundred dollars. Both' pleas filed by defendant are based upon the ground that the facts alleged in the petition do not disclose the existence of any lease. These pleas were properly maintained, the provisional seizure was properly set aside and the suit properly dismissed, and the two appeals may therefore be disposed of in one judgment.

The price is an essential element in the contract of lease. In such a contract, like the contract of sale, three things are absolutely necessary, to-wit: The thing, the price, and the consent.

The judgment dissolving the provisional seizure condemns defendant to pay thirty-five dollars as damages for attorney’s fees. That is just and legal.

The judgments appealed from are affirmed.


text:
    No. -
    First Circuit Appeal
    ANDREW ROBINSON v. THOMASILE LANDRY
    (January 21, 1925, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Automobiles — Par. 4 (a).
    In an automobile collision where plaintiff had almost stopped his car on the right side of the road when defendant drove his car into him, -although there was plenty room to pass, defendant was negligent and plaintiff was not negligent.
    (Civil Code, Art. 2315. Editor's note.)
    Appeal from the Parish of Lafourche. Hon Robert B. Butler, Judge.
    This is a damage suit to recover the cost of repairs necessitated by an automobile collision. There was a reconventional demand.
    Judgment for plaintiff and rejecting re-convention demand of defendant.
    Defendant appealed.
    Judgment affirmed.
    Chas. Mundy, of Thibodaux, attorney for plaintiff, appellee.
    Montet & Ellender,. of Thibodaux, attorney for defendant, appellant.
   LECHE, J.

Plaintiff’s demand is . for damages caused by a collision between his automobile and that of defendant near a curve on the St. James Plantation on August 19, 1922. He alleges negligence on the part of defendant and prays for damages in the sum of two hundred and fifty dollars. The answer of defendant admits the collision but charges that it was the result of plaintiff’s negligence, and the prayer thereof is for damages in reconvention in the sum of thirty-four and 75-100 dollars. No one of the persons in the automobiles was hurt and the damages prayed for are alleged to have resulted from injury to the respective machines.

Plaintiff was going from Thibodaux to Chac Bay in a Dodge with four passengers and .defendant was coming from the opposite direction in a Ford with one passenger.

The road was through a cane field, estimated from fifteen to twenty-two feet in width, and the place of the accident near a sharp curve with the view of both the chauffeurs obstructed by the sugar cane. These conditions were apparent and probably already well known to the plaintiff and to the defendant, and clearly indicated the ’necessity of exercising great care and caution in driving around the curve. Although very narrow, ’ the road was wide enough for two automobiles to safely meet and pass one another.

The district judge found substantially that both drivers sounded their horns, that plaintiff heard but that defendant did not; that plaintiff either stopped entirely or so materially slackened his speed and shut off his power that he was on the point of stopping before reaching the. curve; that plaintiff was on the right and de.fendant on the wrong side of the road; that defendant drove around the curve at such a speed and along such a course that he was unable to avoid the accident which happened before plaintiff reached the curve; and therefore he concluded that defendant’s negligence was the cause of the collision.

While there is some conflict in the testimony, we believe that the trial judge’s findings are supported by a preponderance of the evidence and" that defendant is liable.

Plaintiff in answer to the appeal prays for an increase of the sum awarded by the trial judge. He made claim for an axle in the sum of twenty-two dollars, but as it was shown that the axle on his Dodge oould be effectively repaired for three dollars, he was only allowed that sum. We believe this award was fair and sufficient.

The district judge rendered judgment in favor of plaintiff for seventy-two and 20-100 dollars, itemized as follows: Repairs $50.70, watchman $1.50, and deprivation of the use of automobile' $20.00.

Believing that the judgment appealed from is sustained by the evidence and law of the case, it should be affirmed and it is so ordered.


text:
    No. 8721.
    Orleans Appeal.
    STEWART CARNAL & CO., LTD., Appellant, v. EUGENE REBOUL & SON.
    (February 2, 1925, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest, Obligations — Par. 17.
    Where parties contemplate a written agreement, there is no contract until the written agreement is perfected and signed.
    Appeal from the Civil District Court, Hon. Hugh C. Cage, Judge.
    . This is a suit for damages for alleged breach of contract.
    Judgment for defendants. Plaintiff appealed.
    Judgment affirmed.
    Merrick & Schwarz, Herman L. Barnett, attorneys for plaintiff and appellant.
    Delvaille Theard, attorney for defendant and appellee.
   WESTERFIELD, J.

This is a suit for damages growing out of the alleged breach by the purchaser of a contract of sale of 250 bags of coffee.' Plaintiff claims to have entered into a verbal contract with defendant through a broker named Feibleman whereby it sold and defendant bought the coffee in August for delivery in October. The defendants admit having agreed to buy the coffee from Feibleman, though without any knowledge of whose coffee they were buying, but assert that immediately after having agreed with Feibleman verbally they were asked to sign a contract with plaintiffs which contained objectionable provisions which they had not agreed to verbally and which they refused to sign. They invoke the legal principle to the effect that where parties contemplate that their agreements shall be reduced to writing there is no contract until the writing is made and signed. Fredericks vs. Fasnacht, 30 La. Ann. 117; In re Woodville, 115 La. 810, 40 South. 174; Timken vs. Wisner Estates, 153 La. 266, 95 South. 711. In the alternative it is contended that the agreement contains a potestative condition.

There was judgment below in defendant’s favor and plaintiff has appealed.

Plaintiff is a coffee dealer and defendants are grocers who sell large quantities of coffee. Feibleman, the broker, called defendants on the telephone and solicited an order for coffee, which after agreement upon the number of bags, the price and date of delivery, was given. It was customary for brokers to send a written memorandum te buyer and seller of verbal sales, but the evidence is conflicting as to whether a written contract was customary. In this instance, however, a contract in duplicate was sent defendants bearing the signature of plaintiff with a request for defendants’ signature. Defendants refused to sign the contract upon the ground that the contract contained the clause “to be shipped by steamer ‘UNADVISED’ ” and the words “ex ship” and “no arrival no sale”.

There was considerable testimony taken in an effort to establish the meaning in the trade under the prevailing custom of the words “ex ship” and “no arrival no sale” but we are unable to appreciate its importance. If the sale was completed by the verbal understanding between the parties as plaintiff insists, there is no pretense that anything was said about the ship or its arrival. If on the other hand it was the intention to reduce the agreement to writing, as defendants contend, the written agreement in which these phrases alone occur was not signed, hence it is immaterial what it provides. The first inquiry here is what was the intention of the parties with respect to reducing their agreement to writing?

Mr. Rehoul testified:

“Q. When he was talking to you about it, did you contemplate or understand that he was to send you a contract and that you were to sign it?
A. When I bought the coffee over the phone from him?
Q. Yes.
A. I said yes, send me down the contract.
Q. Did you tell him that, and did he say he would send it?
A. I says, send me down the contract.
Q. What did he say then?
A. He says, I will mail it.”

He also testified that he had considerable experience in buying coffee both “spots” and “futures” and that whenever he bought futures he always signed a contract.

' F. R. White, an employee of plaintiff who acted in plaintiff’s behalf in this transaction, testified that it was not customary to have signed contracts evidencing the sale of coffee for future delivery and that the broker’s memorandum of confirmation was sufficient, but he also said that “when we want to have the thing in more definite form and technical in such a way that in case of any death of any one, or anything like that, we try to get a formal signed contract”. When asked whether plaintiffs understood that a written contract was essential to the perfection of the agreement he replied:

“We did not consider it necessary. We would like to get it, but did not consider it necessary. We do that when we cannot get a contract signed by a man, we give it up, because we consider the other part is the contract, and if the buyer of a contract of that sort, and we find it hard to get it out of him, we let it go. Cases of that kind come up every now and then.”

Peibieman the broker testified that he did not remember Reboul asking for a written contract. He says that as soon as he made the sale he drew up a memorandum of the agreement in duplicate and sent both drafts to the plaintiff for signature and then to Reboul & Son “for them to return the duplicate signed so that it would then be. a legal contract”. He says he thinks there, is a greater quantity of coffee sold by verbal understanding than by written contract; that he kept after Reboul & Son in an effort to get them to sign the contract without success, though one of the Rebouls promised him to sign it.

One other witness was examined, Mr. Levy, but his testimony dealt with the custom of the trade and market conditions relative to decline in prices.

The evidence convinces us that whatever may be the custom with reference to verbal sales of coffee by brokers and it is not at all clear, that in this case both parties contemplated a written contract. In the first place, the defendants had no dealings with plaintiff at all until they were asked to sign the contract. They did not know whose coffee they were buying. Peibieman immediately presented a contract to plaintiffs for their signature and obtaining it sent it to defendants to be signed. Plaintiff signed the contract in this case and their employee who signed it for them testified that they try to get contracts signed in all cases but sometimes they do not insist upon it.

The case is clearly with the defendants and for the reasons assigned, the judgment appealed from will be affirmed.


author: BELL, J.

text:
    No. 8739.
    Orleans Appeal.
    JOSEPH SCHWARTZ & CO., INC. v. FRANK KIEFER.
    (February 2, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Appeal—Par. 625..
    Where issues ol fact alone are involved, the finding of the trial judge will be affirmed' unless clearly erroneous.
    Appeal, from Civil District Court for the Parish of. Orleans, Division “B”, Hon. Fred. D. King, Judge.
    . This; is, an. action to recover the cost of repairs ,on an automobile.
    There .was, judgment for plaintiff and defendant appealed.
    Judgment amended and' as amended affirmed'.
    Legier & Gleason and D. V. Doussan, attorneys for plaintiff’ and appellant.
    M. C. Scharff, attorney for defendant and appellee. '
   BELL, J.

Plaintiff sues defendant for $232.21, covering' costs of certain parts, repairs apd labor furnished to defendant’s automobile. Plaintiff appeals from a judgment allowing only $52.05, an amount admitted by defendant to have been due. There are no written reasons for judgment. After, careful examination of the record, we are of the opinion that plaintiff should recover an additional amount of $80.16.

. Under a written contract, defendant purchased from plaintiff, on June 5, 1920, one Victory -Model Moon automobile, for $2,685.00, and also one. set of wind shield wings for $25.00. The total purchase price of the car and the wings was $2,710.00, of which amount $1,400.00 appears to have been paid in cash, and the balance in notes subsequently paid. The amount now sued upon is for items of repair and for extra parts and labor, as shown by -various invoices annexed to the petition. The written contract, however, stipulates that plaintiff “does not agree to perform any free labor on said automobile nor assume any other expense involved thereon.’’

The defense to the suit is, in effect, a general denial. Defendant claims in his testimony, against the preponderance of proof to the contrary, that nearly all of the extra parts furnished as per invoices were sold him as parts included in the general equipment of the car and at prices included in the purchase price of the car. We do not find this to be a fact. In addition to the several items admitted to be due, and amounting to $52.05, the following items should be allowed, as still ■ due and unpaid;

$52.05
Adjusting brakes .............$ 1.50
Bumper ..................................... 12.00
Extra cord tire ................ 57.33
Grey tube ........................... 5.58
Tire cover ............................ 3.75 80.16
Total ............. ..........................$132.21

All other charges for labor and repairs should be disallowed. These items are for work and materials made necessary because of certain damages to plaintiff’s car while in possession and use of plaintiff’s agent and salesman. This agent borrowed the car for demonstrating purposes in a sale which he was attempting to make for account of the company. We think the trial judge was correct, therefore, in disallowing these items. It follows that the judgment should be amended, increasing the amount allowed from $52.05 to $132.21.

It is, therefore, ordered that the judgment appealed from be amended so as to allow plaintiff the total sum of One Hundred and Thirty-two and 21/100 Dollars ($132.31), with legal interest thereon from judicial demand until paid, and that defendant be taxed with costs, in both courts. As thus amended, the judgment is affirmed.


text:
    No. 8747.
    Orleans Appeal.
    HARRY N. HOLDEN, Appellant, v. TOYE BROTHERS AUTO AND TAXICAB CO., INC., AND THE SEWERAGE AND WATER BOARD OF THE CITY OF NEW ORLEANS.
    (February 2, 1925, Opinion and Decree.)
    (March 16, 1925, Rehearing Refused.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Municipalities—Par 259, 261.
    The placing of several red lanterns, intended as a warning, upon a plank loosely supported by wooden horses, situated before a large street excavation, is not sufficient precaution or such reasonable care in the interest of public safety due by one charged with such responsibility in order to warn vehicular traffic of impending danger when it appears that at the time the lanterns were put in place a high wind was blowing, well calculated to destroy the insecure support of the lanterns or danger signals.
    2. Louisiana Digest — Negligence—Par. 1 41; Act of God — Par. 4, 8.
    A fortuitous event or act of God, the consequences of which could reasonably hav.e been anticipated and averted by ordinary ca.re and prudence will not relieve defendant from responsibility for the result of his negligence. Brannon vs. Y. and M. Y. Railroad Co., 129 La. 916, 57 South. 172. '
    (Civil Code, Art. 3556, Par. 15. Editor’s note.)
    3. Louisiana Digest — Act of God — Par. 4.
    The responsibility of a carrier for the safety of passengers though imposing the duty to exercise a high degree of care is not absolute and the carrier cannot be held for consequences beyond his control.
    Appeal from the Civil District Court, Hon. H. C. Cage, Judge.
    This is a damage suit for personal injuries. There was judgment for defendan and plaintiff appealed.
    Judgment for plaintiff and against the “Sewerage-‘and- Water Board,” and judg ment for defendant, “Toye Brothers Auto and Taxicab Co., Inc.”
    Samuel Wolf, Ed.. Rightor, Solomon S. Goldman, attorneys for plaintiff and appellant.
    Walter L. Gleason, special counsel.
    J. P. Sullivan and D. Sessler, P. M. Milner, attorneys for defendant and appellee.
   WESTERFIELD, J.

This is a suit for personal injuries brought by the plaintiff against the Toye Bros. Taxicab Co., and the Sewerage & Water Board. There was judgment below in' favor of both defendants and plaintiff has appealed.

The undisputed facts are as stated by counsel for plaintiff:

“On the evening of September 21, 1920, between 8 p. m. and 8:30 p. m., Mr. Holden and his wife engaged a ‘for hire’ automobile, owned and operated by Toye Bros. Auto & Taxicab Co., Inc., to take them from the Grünewald Hotel to their home at 387 Audubon St., this city. The Taxicab Company’s starter at the hotel called an automobile, gave instructions to the chauffeur as to the route he should take, and the automobile started off with plaintiff and his wife seated on the rear seat. The automobile proceeded out Canal St. and turned into Carrollton Ave., going in the direction of St. Charles Ave.
“When the automobile reached a point at about the intersection of Carrollton Ave. and Panola St., it ran into an excavation in the roadway of Carrollton Ave. made by the Sewerage & Water Board. As a result of the accident, plaintiff sustained very severe injuries, the principal injury being a fractured knee cap which necessitated a serious and painful operation, the removal of several pieces of bone, confined plaintiff to the Touro Infirmary for about four weeks, and to his home for another three or four weeks. Plaintiff was first able to walk about with the aid of a cane about December 1, or something more than two months after the injury. Up until the time of the trial,-November, 1922, fourteen'months after plaintiff had sustained the injury, the wound was still sensitive and the injured knee would not flex more than 70 or 80 degrees. He had incurred a hospital bill of $679.20, a surgeon’s bill of $750.00, nursing bills of $416.00, bills for crutches, surgical appliances and anesthetic, $25.75, and $50.00 to a hospital orderly who aided plaintiff in regaining his ability to walk and recovering the use of his injured leg, a total expense of $1,920.95”

Plaintiff contends that the accident was caused by the joint negligence of the Taxicab Company and the Sewerage & Water Board, the Taxicab Company in that it failed to operate its automobile with the care required of a public carrier, and the Sewerage & Water Board in that it failed to properly guard the hole excavated by it in the roadway and to warn the public of its presence.

• Both defendants deny all charges of negligence.

The accident occurred on the upper side of Carrollton Ave., where under traffic regulations vehicles may proceed in one direction only or from the lake towards the river. Carrollton Ave. is a wide street separated by a neutral ground and the upper roadway is at the point where the accident occurred 24 feet in width. The excavation into which the automobile was driven Was a large one considering the width of the street, approximately 6 by 9 feet, and about 4 feet in depth. It was within 5 feet of the neutral ground and extended 6 feet crossways of the street. There was not room for automobiles to pass between the hole and the neutral ground, thus requiring all motor vehicles to pass between the hole and the curb of the sidewalk on the upper side of the avenue. It was a most dangerous obstruction of the highway, fraught with peril to all vehicular traffic unaware of its presence. It was, of course, the duty of the Sewerage and Water Board to give warning of the danger by proper lights and barriers. Did the Board take proper measures to safeguard the public? The testimony shows that three red lanterns were placed about the hole suspended to a plank 1x12 inches in thickness and length supported by two wooden horses; that these lanterns were filled with oil and lighted by laborers employed in the excavation under the direction of their foreman at the time that work ceased for the day or between 5 and 6 o’clock in the afternoon. When the accident happened we are satisfied, as was the judge of the trial court, that there were no re'd lights about the hole and no street lights, or white way lights as they are termed, burning along the neutral ground. A heavy rain was falling and a high wind blowing. It is contended on behalf of the Sewerage and Water Board that the lights and barrier were placed about the hole in the usual manner and were sufficiently protected and supported to have remained in place under ordinary conditions and that if they were not there or not burning at the time of the accident it was due to the extraordinary conditions prevailing, the wind and rainstorm, which was of unusual intensity. In other words, vis major, or as it is termed in the common law, the act of God. There is no question that the weather • conditions were unusual. It was blowing and raining hard. But it had-been blowing and raining at intervals all day. It was raining much harder at 1 p. m. than at 9 p. m., the time of the accident. The wind steadily increased in velocity. At 6 a. m. it was six miles per hour. At 7 a. m. it was 7 miles per hour. At 8 a. m. 9 miles. At noon, 15. It blew steadily at this, rate with gradual increase in velocity all afternoon, and at 5 p. m. when work ceased and the lights were, placed about the hole it was blowing 20 miles per hour and when the accident occurred, 34 miles per hour.

“An injury caused by the act of God or a superior agency without the fault of defendant will not impose any liability on him. An act of God is defined as inevitable accident without the intervention of man and the public enemy. To constitute an act of God in such sense as to relieve defendant from liability for injury it must have been so far outside the range of ordinary human experience that the duty of exercising ordinary care did not require it to be anticipated or provided against. Thus it has been decided that winds of extraordinary violence, extraordinary rainstorms, floods and frosts are classed as acts of God within the rule exempting defendant from liability.” Cyc., Vol. 29, Verbo. Negligence, P. 441.

But occurrences which might reasonably be anticipated are not acts of God in the legal sense. Corpus Juris Verbo. Act of God, Vol. 1, p. 1175. R. C. C. 3556 §15.

Negligence consists in failing to act with such Gare and" skill as the circumstances of the particular situation require. It frequently happens that the natural consequences of an act of God may by the exercise of reasonable prudence and foresight be averted. The sudden and unprecedented overflow of a river is such an act of God as would relieve a railroad company from liability and danger to freight caused thereby if after knowledge of the danger the company did not unnecessarily expose it but made all effort to save it. U. S. vs. Kansas City Southern R. R. Co., 109 Fed. 471.

“The foundation of the rule that the act of God excuses the failure to perform a duty is the maxim ‘Lex neminm cogit at impossibilia’. If by the use of reasonable care, prudence and diligence under the circumstances of a particular case, it is possible to discharge the duty, then those circumstances do not constitute a valid excuse for a failure to perform it. Nothing less than such a fortuitous gathering of circumstances preventing the performance of a duty as could not have been foreseen or overcome by the exercise of reasonable prudence, care and diligence constitutes an act of God which will excuse the discharge of the duty. Southern Pacific Co. vs Shover, 114 Fed. 466.” Corpus Juris, Vol. 1, Verbo. Act of God, p. 1174. Note 28b.

The defendant Sewerage and Water Board failed to exercise reasonable prudence and care demanded by the circumstances of this case. It was not sufficient to hang their red lanterns on the frail structure employed by it on the day in question. It was apparent that unusual conditions obtained; that an unusual wind w'ould prevail during the night and it could reasonably have been anticipated that the lanterns and the flimsy barrier supporting them would be blown away, however sufficient such measures might have been for ordinary occasions. The excavation was particularly dangerous and extraordinary care was required. The failure to exercise such care was culpable negligence. This is not a case of sudden and unexpected elemental violence. There was every indication of the approaching climax of the windstorm which had been steadily gathering force during the day. It was at a season, when in this climate, such conditions though unusual are nevertheless to be expected.

As to the Taxicab Company, co-defendant, we find no culpable fault notwithstanding the high degree of care which the law exacts of public carriers of passengers. The chauffeur was driving slowly at the time of the accident. He was driving near the neutral ground because the curb side of the street w'as flooded to such an extent that he feared his engine might stop if he should drive through the water. He could not anticipate the presence of the large hole in the street and he couljd not see it. There was nothing to give warning or notice of the dangerous pit in the roadway. His headlights he testifies were in good order, but due to the rain and darkened appearance of the wet asphalt pavement of the roadway lighted only a very limited path before him.- We can find no fault with the chauffeur’s management of his car and can not see how he could have avoided the accident under the circumstances.

There remains only the question of the quantum of damages. The defendant was seriously injured. His knee cap was broken. Several small pieces of the knee cap removed by an operation following the accident were offered in evidence. He was four weeks in the hospital and could not walk without a cane for a month more. He cannot flex or bend his knee more than 80 per cent of normal. He limps when he walks and this condition is likely to be permanent. He spent about $2,000.00 in hospital charges for nurses and doctors as a result of the injury.

Under the circumstances we think an award of $5,000.00 would be proper.

For the reasons assigned it is ordered that the judgment appealed from be reversed in so far as it is in favor .of the defendant Sewerage and Water Board of the City of New Orleans, and it is now ordered that there be judgment in favor of the plaintiff, Harry N. Holden, and against the Sewerage and Water Board of the City of New Orleans in the sum of $5,000.00 with interest thereon at the rate ■of 5 per cent per annum from March 2, 1921, until paid, and with costs of both courts.


text:
    No. 8760.
    Orleans Appeal.
    MARKS RIBBON CO., Appellant, v. M. ROSENSTOCK.
    (February 2, 1925, Opinion and Decree.)

      (Syllabus by the Coiirt.)

    1. Louisiana Digest, Sales — Par. 59.
    Where goods are sold for future delivery under an agreement that- the vendee shall have the benefit of any decline in the market at the time of -delivery, the vendee is under no obligation to accept delivery unless the vendor is willing to accept a diminution of the price commensurate with the decline of the market. '
    Appeal from 28th Judicial District Court, Hon. Prentice E. Edrington, Judge.
    This is a suit for the purchase price of goods and damages for defendant’s refusal to accept delivery.
    There was judgment for plaintiff for a small amount and plaintiff appealed.
    Judgment affirmed.
    Alfred E. Billings, and Justin Wolff, attorneys- for plaintiff and appellant.
    C. A. Buchlér, attorney for defendant and appellee.
   WESTERFIELD, J.

The plaintiff whose place of business is in the City of. New Orleans, sold to defendant, who resides in the Parish of Jefferson, certain merchandise for future delivery. The defendant declined to accept delivery of the merchandise and this suit followed. Plaintiff claims $763.55, made up as follows: For the purchase price of merchandise, $524.65, and for damages resulting from breach of contract of sale, $138.80. In other words, some of the merchandise sold defendant was resold upon his refusal to accept delivery and the difference in price obtained by resale claimed as damages and other merchandise w’as stored for account of defendant and the purchase price claimed in this suit. . The defendant admits the purchase of plaintiff’s goods but says that it was agreed that the prices were to be guaranteed. That is to say that if prices declined between the date of giving the order and the date of delivery, defendant was to be given the benefit of the difference. Defendant also raises a question of law, contending that it was plaintiff’s duty to minimize his damages with respect to the merchandise for which he claims the full purchase price and that he should have sold the goods for that purpose at the time of defendant’s alleged breach and not subject defendant to the risk of deterioration.

There was judgment below in plaintiff’s favor for $34.00 and plaintiff alone has appealed.

It is admitted that plaintiff refused to give the defendant the benefit of the decline in prices between the time of the giving of the order and the time of attempted delivery and the defendant claims to be justified in refusing delivery on this ground alone.

We must therefore determine whether there was any such condition in the sale or sales made defendant.

It is in evidence, and a fact concerning which we might well take judicial cognizance, that due to the World War then (1920) lately terminated, most unusual trade conditions obtained and the price of all commodities was most unstable. One of the witnesses testified that it was the custom in all lines to guarantee prices and that sales could not otherwise be consummated. This circumstance to our minds transforms defendant’s contention from the improbable to the probable. Under ordinary conditions we would not expect a manufacturer or dealer to market his wares upon such uncertain terms particularly when, as in this case, months intervened between the sale and proposed delivery. Moreover, a purchaser of goods in quantity usually anticipates the possibility of a decline in market value and in assuming this risk he comforts himself with the hope of an advance and balances one against the other. But a World War produces many changes in its wake many times more remarkable than we are considering here. Therefore we approach the consideration of this question of fact entirely free of any sense of improbability which under ordinary and more tranquil conditions would beset us. Rosenstock, the defendant, testifies:

“Q. Mr. Rosenstock, what was the agreement actually made with reference to prices of goods?
A. The prices were guaranteed to me; the bills of goods were bought to be delivered October X.
Q. What did you mean by guaranteeing prices ?
A. To mean, if the price is down to 5 cents a yard, I will get the benefit, and if it is_ up, it is going to be the same price; but it was no chance to go up, there was a chance to go down.
Q. Were you willing to buy the goods without guaranteeing the prices?
A. No sir, I wouldn’t buy it from no man at that time.”

His testimony is assailed by plaintiff’s counsel because of a letter written to counsel under date of November 13, 1920, in reply to a letter making demand for payment. In this letter defendant makes the following statement. “In other words I have not .signed a written agreement and do not see how they can sue me by it.” In the same letter, however, defendant complains of plaintiff refusing to allow him a reduction in price commensurate with the fall in the market and while his defense to the claim seems to be based upon his mistaken conception of the validity of verbal agreements it appears from his letter as well as his testimony generally that he is á man of little education whom we would be loath to hold to the responsibility for exact statement expected of a more sophisticated litigant. Besides- there is ample corroborative evidence to sustain his legal position in this regard were we to ignore his testimony altogether.

The witness Sandros, a former clerk of defendant, testified that he was present in defendant’s store when the sale was made by plaintiff’s salesman and heard the conversation and in response to an interrogatory by the Court, said:

“Mr. Rosenstock said he didn’t want to buy any goods because the prices were dropping every day, so Mr. Quigley (plaintiff’s salesman) said he would guarantee the prices, if the prices would go down, Mr. Rosenstock would get the benefit.”

Whitmore, a traveling salesman for the Progress Knitting Mills testified that he was present and heard Mr. Rosenstock say that the only .condition upon which he would buy would be a guarantee of price which plaintiff’s salesman agreed to and he, •Whitmore, assisted the salesman to write the order. This witness also states that he had been tw’enty-one years with the Progress Knitting Mills and that he on behalf of his employer had to guarantee prices to date of delivery.

The witness Meyer, a shoe salesman for the Seld Shoe Co., testified that:

“Mr. Whitmore and myself were in the place, and this representative of the Marks Rihhon Company came in and I had plenty of time and we gave him full power to work with Mr. Rosenstock awhile, and after talking to Mr. Rosenstock, Mr. Rosenstock wasn’t inclined to buy any goods and they were arguing for a long time and the representative said he guaranteed prices up to the time of delivery. Then Mr. Whitmore said ‘You don’t have to worry, Mr. Rosenstock, you are protected’, and Mr. Rosenstock bought some goods.”

Two wholly disinterested witnesses and a former clerk who was not in Rosenstock’s employ at the time he testified, positively corroborate the defendant. Against this testimony we have only plaintiff’s salesman whose testimony we will not review under the circumstances. The evidence clearly preponderates in defendant’s favor.

For the reasons assigned the judgment appealed from is affirmed.


author: CLAIBORNE, J.

text:
    No. 8791.
    Orleans Appeal.
    SUCCESSION OF JOHN OLIVER.
    (February 2, 1925, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest, Continuance — Par. 16.
    When a litigant gives the correct name and address of a witness whom the Sheriff reports as having moved, he is entitled to a continuance of the trial in order to find the witness.
    (Code of Practice, Art. 471, Editor's note.)
    2. Louisiana Digest, Pleading — Par. 71.
    An issue raised and determined on an exception may he reviewed by the court at-any time until final judgment.
    (Code of Practice, Art. 330, Editor’s note.)
    3. Louisiana Digest, Appeal — Par. 729, 730.
    A new trial shall he granted if the litigant has discovered since the trial evidence important to his cause and which he could not with due diligence have obtained before.
    (Code of Practice, Art. 560, Editor’s note.)
    Appeal from the District Court for the Parish of St. John the Baptist, Hon. H. N. Gautier, Judge.
    Motion for a new trial was refused and defendant appealed.
    Judgment reversed and case remanded.
    Prentice E. Edrington, Jr., attorney for plaintiff and appellee.
    J. V. Chenet, attorney for defendant and appellant.
   CLAIBORNE, J.

Upon the death of John Oliver, Sam Haskins representing himself as his half-brother and sole heir obtained an ex parte judgment recognizing him as such. Whereupon Eliza Harris, on January 30, 1922, filed a petition in which she alleged that she was married on September 3, 1897, by Claiborne Scott of Belle Point, Parish of St. John the Baptist, to the deceased John Oliver, who died intestate. She prayed for judgment setting aside the judgment in favor of Sam Haskins and to be recognized as the widow in community of John Oliver and as such entitled to all the property left by him, under Act 80 of 1916, p. 201, which provides that when either husband or wife shall die, leaving no ascendants or descendants, and without having disposed, by last will and testament, of his or her share of the community property, such undisposed of share shall be inherited by the survivor in full ownership and c.

The defendant, Sam Haskins, on February 11th, excepted to the petition of Eliza Harris on two grounds: 1st, that she was neither the wife nor the widow of John Oliver and therefore had no interest in his Succession; and, 2nd, that if she had married John Oliver, at the time stated by her, that her marriage was null as she was at that time and still is the lawful wife of William Lomax to whom she was married in the year 1880 by the Reverend Dennis Burrell in the Parish of St. John the Baptist on Belle Alliance Plantation.

On February 25, 1922, the exceptions were tried, and evidence in support thereof heard.

The defendant moved for a continuance on the following grounds: That Moss Cook and Ames Johnson, who had been summoned as witnesses, could not be found, by the Sheriff at their domicile in the Parish of St. John the Baptist and were reported out of the parish, and were absent from the trial, although the defendant had used due diligence to secure their attendance, and that said witnesses would swear that they knew of the marriage of William Lomax and Eliza Harris, that it had taken place in the Belle Point Plantation and that the marriage ceremony had been performed by Dennis Burrell, a Baptist minister. The motion was sworn to by the defendant Haskins.

The application for a continuance was denied, and after trial the court overruled the exceptions.

The defendant then, on March 1, 1922, filed an answer practically reiterating all the allegations of the exception.

The case was tried on the merits on March 30, 1922. Upon the trial, the defendant attempted to further examine the witnesses upon the question of the previous marriage of Eliza Harris to William Lomax, to which the plaintiff objected. The court maintained the objection for the reason that the question has been investigated extensively, and defendant had been given every opportunity upon the trial of the exceptions, an'd that further testimony would only be a rehearsal.

The trial continued until April 5, 1922, and on the same day judgment was rendered in favor of plaintiff.

On April 8, 1922, defendant applied for a new trial on the ground that the judgment was contrary to the law and the evidence,, and upon the further ground that:

“Since the trial of his exception of want of capacity in plaintiff to stand in judgment, involving the question of the previous and subsisting marriage vel non of plaintiff with William Lomax, mover discovered new evidence important to the cause, which he could not with due diligence have obtained before; that the refusal of the court to hear said evidence at the trial of the case on its merits, when tendered, was error; that the decree overruling said exception was an interlocutory decree and as such subject to revision and recall, when the issue was raised in the answer and defendant’s new evidence tendered to the court; that mover can an'd desires to prove by said new evidence, to-wit: by the testimony. of Ed. Burkley, who resides at Little Hope, this Parish,. that he was present at the marriage of Eliza Harris and William Lomax, solemnized by Rev. Dennis Burrell, in this Parish, about 40 years or so ago; by the testimony of Madam Rose Davis, who resides at Belle Point, this Parish; and by the following witnesses, to-wit: Josephine Francois, Mary Butler, and Mose Cook, all of them residents of this Parish, that said Eliza Harris was married as aforesaid to William Lomax and is his lawful wife,” and c.

This motion was supported by the affidavits of the defendant’s attorney and of the defendant himself.

The motion for a new trial was refused and defendant has appealed.

We are of the opinion that the judge erred:

1st. In refusing the application for a continuance of the trial of the exceptions.

Article 471 of the Code of Practice provides that if a witness duly summoned do not appear, the party who has had him summoned may, on showing that such witness could not be found have the trial put off until such witness has been brought before the court.

The defendant was entitled to a reasonable delay and an opportunity to procure his witnesses. Succession of White, 45 La. Ann. 632, 12 South. 758; Blossman Hayes vs. Isaac Hayes, 8 La. Ann. 468.

The case had been pending only a short time, from January 30th to February 25th. As was said in the case of Montgomery vs. Insurance Co., 18 La. Ann. 227.

“A continuance and delay of the trial for a few months could have caused hut little injury to either party; hut irreparable injury might have been done to defendant by the trial which excluded the evidence on which it relied.” Winter vs. Donaldsonville, 6 Mart. N. S. 536; Bell vs. Williams, 3 La. 448; Klathenhoff vs. Ardry, 14 La. 301; Thomas B. Harrison and Wife vs. D. F. Waymouth and Wife, 3 R. 340; Hewlett vs. Henderson, 9 R. 379.

2nd. The taking of testimony in .support of the exceptions was irregular as they contained defenses on the merits. But the judgment thereon was only interlocutory and subject to revision by the judge. As the exceptions filed by the defendant had been decided against him but reiterated in the answer, every opportunity should have been afforded the defendant to establish them, especially after the court had refused him a continuance to produce the material witnesses.

The interests of justice required that those witnesses should have been heard.

3rd. Article 560 of the Code of Practice provides as follows:

Art. 560: A new trial shall be granted 1st and 2nd, “if the party has discovered since the trial - evidence important to the cause which lie could not, with due diligence, have obtained before”.

The affidavits satisfy all the requirements of the law, and the law is 'mandatory. They disclose the names of five witnesses whose testimony will establish defendant’s answer. The motion is sworn to by two witnesses, one of them, defendant’s attorney. None hut the most cogent and satisfactory reasons would justify the denial of the new trial. We see none here. The new trial under the law as it now reads is practically a continuance. Act. 247 of 1908, p. 368, provides:. . ,

“On such new trial it shall not be necessary to resummon the witnesses or hear them anew, if their testimony has once been reduced to writing; but all such testimony and all evidence offered on the former trial shall be considered as already in evidence provided the same be filed as part of the record and c.”

No hardship can be worked upon the plaintiff by the delays of a new trial under the law inasmuch as she is in possession of all the property left by the deceased, while justice might he denied the plaintiff by refusing it.

It is more in accordance with correct practice that the plaintiff should undergo some delay than that the defendant should he denied the opportunity of establishing' his defenses.

We again refer to what was said by Justice Hyman in Montgomery vs. Insurance Co., 18 La. Ann. 227, quoted above.

In the case of Stone vs. Rose, 2 La. Ann. 225, the court said:

“Where the affidavit of a plaintiff sets forth that, since judgment was rendered, material evidence in support of her demand has been discovered, which could not have been obtained before, though due diligence was used, and states fully the facts expected to he proved, and the names of the witnesses to establish them, and the facts are such as, if satisfactorily established, would authorize a discovery, and no circumstances are disclosed which conflict with the affidavit or indicates a want of due diligence, a new trial should be granted.” C. C. 560-561; Jonas Robison vs. Joseph Howell, 22 La. Ann. 524; Union Nat. Bank vs. Evans, 43 La. Ann. 372; 9 South. 44; Succession of Werner, 36 La. Ann. 987.

It is therefore ordered that the judgment appealed from be reversed and set aside; and it is now ordered that this case be remanded for a new trial in accordance with the views herein expressed.

The costs of appeal to he paid hy plaintiff, and the costs of the District Court to await the final determination of this case.


text:
    No. 8797.
    Orleans Appeal.
    GEORGE H. HELD v. NEW ORLEANS RAILWAY & LIGHT CO. ET AL.
    (February 2, 1925, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Street and Interurban Railroads — Par. 27, 28.
    It is the duty of pedestrians at all times— particularly at night — before crossing electric street car tracks, to look and listen for an approaching car, and to stop, when the exercise of this duty is bound' to have disclosed the necessity for stopping.
    2. Louisiana Digest — Street and Interurban Railroads — Par. 27, 28.
    Failure to see a well-lighted car or to hear signals of its approach, when to look and listen would have revealed its presence, constitutes negligence barring recovery.
    3. Louisiana Digest — Appeal—Par. 625, 635.
    A judgment fully supported by preponderance of evidence will not be disturbed on appeal.
    (Civil Code, Art. 2315. Editor’s note.)
    Appeal from Civil District Court for the Parish of Orleans, Division “D”, Hon. Por,ter Parker, Judge.
    This is a damage suit for personal in juries.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    W. H. Byrnes, Jos. F. Peyronni, attorneys for plaintiff and appellant.
    Dart, Kernan & Dart, attorneys for defendant and appellee.
   BELL, J.

Plaintiff herein appeals devolutively from a judgment rejecting his demand for damages ex delicto against the New Orleans Railway & Light Co., and against its receiver, J. D. O’Keefe, and against the National Surety Company. As appellant, he has failed to appear in person or by counsel at the hearing before this court.

The petition sets forth that on August 11, 1918, at about 10:45 p. m., plaintiff, with his five-year-old daughter, alighted from a Milneburg train, at North Robertson Street and Elysian Fields Avenue, and was crossing defendant’s track at the lake side of North Robertson Street; that when on the track on which defendant’s cars are operated towards the river, he stopped to permit a car approaching from the river on a parallel track to pass; that while' standing on the track, a car going towards the river came suddenly upon him, without giving any warning of its approach, and that he was knocked down and his left leg was badly crushed, 'necessitating its amputation, and that his right foot was mashed and other severe injuries sustained. It is further alleged that the car which injured plaintiff was being operated at a very rapid rate of speed; that the track on which plaintiff was standing was straight: that plaintiff was there in full view of the motorman operating the car; that the electric light was lit on the corner near which the accident happened, and that plaintiff’s daughter, standing with him on the track, and whose hand he was holding, was dressed in white; that under all these circumstances, had the motorman exercised the slightest care, the accident would not have happened.

The excessive speed of the car and failure of the motorman to see plaintiff or his daughter while on the track, of to sound a warning of the approaching danger, constitute the alleged negligence upon which this action is .predicated.

The railway and light company and its receiver answer by averring that if the plaintiff was injured in the alleged accident, he was entirely at fault in attempting to cross the company’s track when he could and should have seen the car coming, and should have heard the warning sounded by the motorman as the ear approached the crossing; that plaintiff was so close to the crossing that anyone of ordinary understanding ought to have known that to attempt to cross in front of the car was exceedingly dangerous. Like defense is made by the National Surety Co. As against this last-named defendant there can be no recovery, for the bond under which its liability, if any, might he established, has not been annexed to plaintiff’s petition, nor has it been offered or filed in evidence. The judgment, dismissing this defendant, must, therefore, under any conditions, he affirmed. (Gardner vs. O’Keefe et al., 155 La. 447, 99 South. 398.)

Plaintiff has alleged and has attempted to prove by his own testimony and that of two other witnesses, that he was standing between the two rails of the particular track on which the car which injured him was approaching. He justifies his standing in this dangerous and unusual place by stating that he had no other place to stand while awaiting the passing of other cars on a track parallel to the one on which he stopped. We find from a preponderance of evidence that he was not standing on the track or between its rails when struck, but that he carelessly and in total disregard of all warning, promptly given him, walked onto or so near the track as to he struck by the right front portion of the car. These facts are made clear by the testimony of the motorman operating the car and by another motorman (at the time a passenger on the car) and by a wholly disinterested witness 'who was standing on the front platform of the car and to the left of the motorman operating the car. These three witnesses and a fourth witness who was sitting on the left front cross-seat of the car, all • testify positively that the motorman hollered at plaintiff, rang his gong and applied his brakes when plaintiff first started walking towards the track; that when plaintiff began his course toward the track, he was some four -feet therefrom, and that the various signals given by the motorman and his earnest attempt to avoid the accident, were all commenced while plaintiff was some thirty-five feet distant from the front of the car. The sounding of the bel'l and the shouting of the motorman were continued up to the moment plaintiff was struck.

It is further shown by the evidence that plaintiff’s daughter was not walking, or standing by his side at the time of the accident, but that she was being carried by plaintiff in his left arm and against his shoulder on that side of him which, was nearest the approaching car. This fact leads us to conclude, — perhaps more than does any other evidence in the record,— that the child’s body while elevated to the height of plaintiff’s head, prevented plaintiff from seeing and probably hearing the approaching ear. The testimony of two witnesses who were looking directly and constantly at the man and child confirm this belief. In throwing the child out of harm’s way, plaintiff admits* having turned in a circular direction, instead of stepping hack from the approaching car. He also states that he did not see the car until it was within fifteen feet of him, although he admits having looked towards Claiborne Avenue, in the direction from which the car was approaching. -There is abundance of testimony showing that the car was moving at a moderate speed, a-speed which was gradually reduced from the- time the car entered Elysian Fields Avenue from Claiborne Avenue until it was suddenly checked by application of the brakes in an attempt to avoid the accident.

Plaintiff’s sudden and reckless approach to the track at the moment when the car was almost upon him, renders it impossible to apply to the instant case the doctrine of last clear chance. In Wolf et al. vs. New Orleans Ry. & Light Co., 133 La. 891, 63 South. 392, it was held:

“Where decedent, in passing in front of a street car by which she was struck and killed, was guilty of contributory negligence which continued up to the happening of the' accident, and the motorman had no chance to avoid the accident after the danger became apparent, the doctrine of last clear chance was inapplicable.”

In Friedman vs. New Orleans Ry. & Light Co. et al., 153 La. 951, 96 South. 821, it was held that where a pedestrian in broad daylight left the sidewalk and went in- front of an approaching street car, after the gong was sounded and the motorman shouted and did all that was possible to avoid the accident, he was guilty of gross carelessness. In this same case it was further noted by the court that when contributory negligence of one struck by street car continues up to the happening of the accident, and where the motorman had no chance to avoid the accident after the danger became apparent, that the doctrine of last clear chance was inapplicable.

In .the case of Loyocano et ux. vs. New Orleans Ry. & Light Co., 154 La. 852, 98 South. 269, a child twelve years old was held to be of sufficient discretion to be guilty of negligence' in attempting to cross a street immediately after the passage of a street car, the boy running headlong in front of a car going in the opposite direction and on an adjoining track, without looking or listening. Under these circumstances he was held to be guilty of negligence, barring recovery.

Upon the foregoing authorities and from the facts cited in the instant case, we are of the opinion that the judgment of the trial- court is correct and should be affirmed.

It is, therefore, ordered that the judgment herein appealed from be and the same is hereby affirmed, at plaintiff’s costs in both courts.


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    No. 8801.
    Orleans Appeal.
    MISS LOUISE TOUPS, Appellant, v. EVANS P. BRIEN.
    (February 2, 1925, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest, Bills and Notes — Par. 235.
    Where a note or other evidence of indebtedness remains in possession of the payee the presumption is that the debt has not been discharged.
    Appeal from Civil District 'Court, Hon. Porter Parker, Judge.
    This is a suit on a promissory note.
    There was judgm’ent for defendant and plaintiff appealed.
    Judgment reversed.
    Woodville & Woodville, attorneys for plaintiff and appellant.
    E. P. Brien, L. W. Janin, attorneys for defendant and appellee.
   WESTERFIELD, J.

Plaintiff brings this suit upon the following evidence of indebtedness:

“Sept. 10, 1921.
I promise to pay Louise Toups $650 for money owing to her.
E. P. BRIEN.”

The defendant admits the execution of he instrument sued on and pleads.payment.

From a judgment against her plaintiff has appealed.

The record discloses the fact that plaintiff and defendant were married in October, 1920, and that shortly before their marriage the defendant borrowed $1,000 from plaintiff. Defendant claims that the amount was $700 and that he agreed to pay and did pay $1,000 for the loan. Be that as it may, defendant admits having contracted an obligation of $1,000 in favor of his prospective bride in September, 1920. Shortly after the marriage plaintiff discovered that defendant had been too precipitate in contracting the marriage with her since a decree of separation of a former marriage had not ripened into an absolute divorce. Plaintiff applied for and obtained an annullment of her marriage and in the settlement of her community rights received the acknowledgment of indebtedness for $650, the basis of this suit.

In support of defendant’s plea of payment a cancelled check for $800 dated Oct. 3, 1921, was offered in evidence. Plaintiff admits receiving the check but claims that it was in part-payment of the $1,000 loan. Defendant denies this and asserts that the entire $1,000 liad been paid defendant within a few days after it had been contracted and produces the following receipt:

“Received from E. P. Brien $200, balance due me on the $1,000 he borrowed from me Sept. 20, 1920. Paid in full.
LOUISE TOUPS.”

Plaintiff says that this receipt was issued by her after the check of $800 had been received and that the date appearing therein, Sept. 20, 1920, refers to the time the loan was made and not the time the receipt was given. The case turns in this point for if plaintiff had been paid the thousand dollars on Sept. 20, 1920, it is obvious that the $800 check of Oct. 3, 1921, could not be a partial payment on that loan. On the other hand, if the date refers to the time of making the loan there is nothing inconsistent with the probabilities in the contention that the receipt was given after the check for $800 referred to as having been paid was the balance of the first loan of $1,000.

The receipt itself is susceptible of either interpretation since there is no punctuation to guide us. The usual place for the date of an instrument of this sort is at the top and not at the bottom of the writing, though this custom is not universally observed. The two hundred dollars mentioned in- the receipt and the $800 paid by check total exactly $1,000, the amount of the loan. It seems unlikely that defendant would borrow $1,000 and pay it back in installments, completing the payment within a few days after the loan was .contracted. If this thousand dollar loan was paid when the $800 check was given, why did defendant pay $800 when he only owed $650? He answers that the excess was a gratuity. But on September 10, 1921, he was unable to pay $650 and gave his obligation for this amount. Is it likely that he would be able and willing to pay $800 in discharge of that obligation on Oct 3, 1921, twenty-three days thereafter? Is it likely that defendant who is shown to have been careful in getting a receipt for the $200 would pay his $650 loan without the return of the evidence of his obligation, his promise to pay? Counsel says that defendant was dealing with a woman with whom he had lived as man and wife and that circumstance he argues explains many of the improbabilities we have pointed to. We are not favorably impressed with this contention. The judicial severance of the marital tie does not tend to perpetuate or increase the affection of the former spouses. If we mistake not, the reverse is to be expected. In this case, however, the defendant practiced deception in contracting marriage with plaintiff when under the disability of a former-marriage. Counsel says that he was in good faith, meaning, no doubt, that he thought his decree of separation an absolute divorce. If he was so careless or ignorant in so important a matter as marriage, we cannot impute to his testimony the weight due a careful, prudent, conscientious witness.

We think defendant has failed to prove payment of the obligation sued on and that the case is with plaintiff.

For the reasons assigned the judgment appealed from is reversed and it is now-ordered that there be judgment for plaintiff as prayed for in her petition.


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    No. 8802.
    Orleans Appeal.
    UNITED STATES FIDELITY AND GUARANTY CO. v. VILLERE & BERTUCCI, Appellants.
    (February 2, 1925, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest, Evidence — Par. 127, 150.
    The fact that the signature of a surety on an appeal bond is dissimilar in some respects from-the signature written by him in court on a rule to test the sufficiency of the bond will not justify the conclusion that the surety did not sign the bond when he swears repeatedly that he signed it.
    Appeal from Civil District Court, Hon. Porter Parker, Judge.
    This is a suit for a premium on a bond. Judgment for plaintiffs. Defendants appealed.
    Judgment in part affirmed and in part reversed.
    J. Zach Spearing, attorney for plaintiff and appellee.
    Woodville & Woodville, attorneys for. defendant and appellant.
   CLAIBORNE, J.

This is a suit for a premium on a bond.

The plaintiffs allege that they issued to the defendants a bond to secure the performance of a contract for hauling in favor Hampton Reynolds for a premium of $150.00; that they issued also to the defendants a workmen’s compensation policy for a premium of $217.45; that said policies provide for reasonable attorney’s fees in case of suit thereon. The plaintiffs pray for judgment for $367.45 and for $100 attorney’s fees.

The defendants admit both policies but aver that there was no partnership between them, and that they understood that Hampton Reynolds was to pay the premiums on both policies.

There was judgment in favor of plaintiffs and against the defendants as a partnership and as individuals and for $75.00 attorney’s fees.

The defendants were absent and unrepresented. They have appealed.

In the trial court the plaintiffs and appellees filed a motion to dismiss the appeal on the ground that the surety on the appeal bond was not good and solvent.

The rule, was made absolute and the appeal was dismissed. From this judgment the defendants and appellants have appealed.

In this court the plaintiffs ask for ten per cent, damages for frivolous appeal.

The surety, Sidney J. Barbera, has fully Qualified as sufficient in property. He owns a property in this city worth $7,000 upon which he has paid $2,000.

He owns also a property in Jefferson Parish upon which he has paid $1,500.00.

But the plaintiffs contend that the surety did not sign the bond.

The only foundation for their contention is that the signature “S. J. Barnera” on the bond differs from the one which the surety was asked to sign in court when he was examined.

While there may be differences, both handwritings are by one apparently not accustomed to write. But the surety swears he signed the bond. His positive testimony cannot be destroyed by mere suspicion, or opinions, or speculations.

Upon the merits plaintiffs’ claims are proven. But there is nothing to show a partnership between them.

The only damage suffered by the plaintiffs by the appeal is the loss of interest on their claim and their attorney’s fees. But the judgment allows them both; therefore they are not entitled to damages.

It is therefore ordered that the judgment dismissing the appeal he reversed and annulled.

It is further ordered that the judgment against Villere and Bertucci be reversed and annulled and that the judgment against D. G. Villere and D. T. Bertucci individually be affirmed, with cost in both courts.


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    No. 8809.
    Orleans Appeal.
    R. D. PITARD HARDWARE CO., INC., v. MRS. G. LALA.
    (February 2, 1925, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Appeal—Par. 625, 631 636.
    Where there is conflicting evidence, the conclusions of the trial judge, who saw and heard the witnesses, are entitled to great weight, and will not be disturbed unless manifestly erroneous.
    Appeal from the Civil District Court for the Parish of Orleans, Division “D”, Hon. Porter Parker, Judge.
    This is an action to recover the cost of merchandise sold.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    John J. Reilley, attorney for plaintiff and appellee.
    Emile Pomes, attorney for defendant and appellant.
   BELL, J.

Plaintiff brings this suit against Mrs. G. Lala, alleging that on certain dates, which are more particularly set out in the itemized statement annexed to the petition, it sold to defendant certain merchandise, which was used in painting the defendant’s house, located at No 721 Ursuline Street. The amount of the claim is $123.00.

It is alleged that on the 12th day of August, 1921, defendant was served with a sworn account, which account was on the same day recorded in the Mortgage Office of the Parish of Orleans. Accordingly, plaintiff prayed for a lien and privilege on the property of the defendant. The defendant filed a general denial. Judgment was rendered in favor of plaintiff for the full amount claimed, with legal interest from date of judicial demand, together with $1.50 costs for recording lien, and with recognition of lien and privilege on the property in question. From this judgment, the defendant prosecutes this appeal.

The president and general manager of the plaintiff company testifies that the paints and other materials, the price of which constitute the amount sued for, were sold to defendant and were delivered to and used in defendant’s residence. He further states that the sale of this merchandise originated from a written order, signed by defendant, and presented by a man who told witness he had a job to paint defendant’s house. It appears further from testimony of this witness that the written order was lost or mislaid. Without objection, witness has testified ’ that the contents of this lost letter read as follows:

“Kindly deliver to bearer such paints and materials as may be required to paint residence 724 Ursuline Street.
“(Signed) Mrs. G. Lala.”

On May 25, 1921, plaintiff received a letter signed “G. Lala”, and reading as follows:

“Mr. R. D. Pitard,
“155 Chartres Street,
“Local.
“Dear Sir:
“Just a few lines to let you know that I have not yet completed the job on No. 724 Ursuline St., but as soon as I do I will send you check to cover what I owe you. Haven’t yet completed job because tenants occupying first floor have not vacated. Thanking you, I am,
“Yours very truly,
“(Signed) G. Lala.”

On July 20, 1921, plaintiff wrote defendant as follows:

“Dear Madam:
“We hold your letter acknowledging receipt of paints delivered at 724 Ursuline Street, and you notified us that you would pay when the job was completed. We sent a collector to you today, and you in turn referred him to another party to collect this money. If we do not hear from you within the next two days, we shall lien this property and turn this account over to our attorney for collection.
“Yours very truly,
“(Signed) R. D. Pitard Hard-
ware Co., Inc.,
“By R. D. Pitard, Pres.”

The original of the last-quoted document is shown by the record to have come back into plaintiff’s possession, through defendant’s attorney, then acting for her. It is thus conclusively shown that she received this letter and well knew of the demands made upon her for the payment of this claim. There is abundance of proof before us that the materials listed on the attested and recorded account were actually used in defendant’s building, but she and her step-son have both denied under oath that any order was given therefor with his or her authority. It is contended by them that the painting contract on defendant’s building, under lien for this claim, was given to a man named Mahoney, for the total contract price of $200.00, materials included, and that he has long since been paid. Defendant has, however, failed to produce Mahoney as a witness, or to show in any manner that the materials used by him on defendant’s building were furnished by any other party than the plaintiff. It is impossible to believe, and no evidence has been offered to. show, that two contracts were let out by defendant for the painting of this building within the period covered by the transaction now sued upon. Defendant’s step-son has testified that he attended to all of defendant’s business. When confronted with the letter of May 25, 1921, purported to be signed by defendant, he declares that this letter is a forgery, and that the contractor (Mahoney) admitted to him that he had forged defendant’s signature. This witness admits that he made no effort to prosecute the alleged forgerer, and that the matter was of no consequence to him. This same Witness, on further cross-examination, admits and denies in the same breath, that the building was still being painted when plaintiff’s attested account was served and recorded. His entire testimony, as well as that of defendant, is full of contradiction and evasion. The testimony of plaintiff’s two clerks, as to demands for the payment of the claim, and as to the time service of the attested account was made, in accordance with law, is clear and convincing.

The claim is for less than $500.00. The contract arose prior to the year 1922. The owner of the building having failed to require or record any bond, and the lien having been recorded within forty-five days after completion of the work, it follows that said lien is preserved under Act 229 of 1916.

This case involves only issues of fact. The evidence is conflicting in many respects, but the conclusions of the trial judge are, in our opinion, correct, and should not be disturbed. (Louisiana Digest, Vol. I, Appeal XXI, Section 636, and cases there cited.)

It is, therefore, ordered that' the judgment herein appealed from be and the same is hereby affirmed, at defendant’s costs in both courts.


text:
    No. 8818.
    Orleans Appeal.
    WILLIAM H. FISHER ET AL., Appellant, v. N. O. TRUCK & DRAYAGE CO., INC.
    (February 2, 1925, Opinion and Decree.)

      (Syllabus by the Court.)

    1.Louisiana Digest, Appeal — Par. 544, 625.
    Where counsel for appellant fails to appear at the hearing in this court and files no brief, there is a strong presumption that the findings of fact by the trial court are correct.
    Appeal, from Civil District Court, Hon. Percy Saint, Judge.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Gerault Farrar, Maurice Wolfe, attorneys for plaintiff and appellant.
    F. C. Querens, F. Rivers Richardson, Higgins, McGee & Dobbins, attorneys for defendant and appellee.
   WESTERFIELD, J.

This is a controversy over the ownership of an automobile truck and trailer.

Wm. H. Fisher, the receiver of the N. O. Truck & Drayage Co., applied for and obtained an order of Court authorizing the sale of certain assets of the insolvent corporation for the purpose of paying claims. Among the assets which' the receiver proposed to sell was a truck and trailer. Joseph Grefer promptly intervened and obtained an injunction upon the ground that the truck and trailer was his property. From a judgment perpetuating the injunction the receiver has appealed.

We were not favored with oral argument or brief on behalf of appellant, whose counsel did not appear at the hearing of the case in this court. The record- is not mutely eloquent of appellant’s contention and we see no reason to disturb the finding of fact by the trial court. The judgment appealed from is affirmed.