text:
    No. 11,480
    Orleans
    MARCUSE v. UPTON, ET AL.
    (June 4, 1928. Opinion and Decree.)
    (July 2, 1928. Rehearing Refused.)
    J. C. McGee, of New Orleans, attorney for plaintiff, appellant.
    Hugh S. Suthon, F. Zengel, Jr., of New Orleans, attorneys for Sou. Music Co.
    L. C. Guidry, of New Orleans, attorney for Louis C. Bergman.
    Spencer, Gidiere, Phelps and Dunbar, of New Orleans, attorneys for American Equitable Assurance Co., defendant, appellee.
   CLAIBORNE, J.

Plaintiff obtained judgment for $3200 against the defendant Upton. She issued a fieri facias and garnisheed five insurance companies.

They denied owing anything to the defendant Upton. The plaintiff took five rules to traverse the answers filed by the five insurance companies. There was judgment dismissing the rules. From this judgment the plaintiff has appealed. The facts of the case are as follows:

The defendant Upton was associated with one Tromhino, and both conducted a restaurant under the name of the “Silver Slipper” at No. 426 Bourbon Street. They were insured against loss by fire in five insurance companies. The policies were variously dated from April, 1927, to October 19, 1927, and expired one year thereafter and were in their joint names and for their joint benefit.

By an act before de Verges, Notary, dated January 7, 1928, John M. Upton sold to Ferdinand Trombino, Jr:

“All and singular his one-half undivided interest in the business owned and operated between himself and Ferdinand Trombino, Jr., under the name of the ‘Silver Slipper Restaurant’ and located at 426 Bourbon Street in the City of New Orleans.”

On January 30, 1928, a fire partly destroyed the restaurant above mentioned.

On February 10, 1928, plaintiff herein issued a fieri facias and garnisheed whatever amount the insurance companies might owe Upton. As part of their answers the insurance companies averred that they owed Upton nothing, for the reason that at the date of the fire and some time prior, he had sold all his interest in the restaurant and its contents to Trombino and consequently he had no longer any interest in the insurance policy to transfer.

The trial court maintained that defense and dismissed plaintiff’s traverse of the answers of the insurance companies.

On March 10, 1928, Upton assigned all his interest in said policies to Trombino by an endorsement thereon.

The contention of the plaintiff is that the sale made by Upton of his interest in the restaurant to Trombino and his assignment of the insurance to him were equivalent to the transfer of a credit, a right, or claim, of which the “transferee was possessed, as regards third persons, only after notice had been given to the debtor of the transfer having taken place” C. C. 2643 (2613), and inasmuch as his seizure in the hands of the insurance company preceded notice of the assignment to the insurance company, his seizure should take precedence over the assignment.

We are clearly of the opinion that the transfer made by Upton of his interest in the contents of the “Silver Slipper” was not a sale of “credits, rights, or claims,” but was a sale of his undivided half of the things themselves forming a component part of the “Silver Slipper,” the corporeal movables belonging thereto, and that under the fundamental law of fire insurance which is a contract, not of speculation but of indemnity alone, a party insured loses all title or interest ir a policy the instant he parts with ownership, or interest in the thing insured, and has no longer any interest in the policy susceptible of assignment by him.

Consequently _ the moment Upton sold his interest in the Silver Slipper, that moment his interest ceased and any policy of insurance in his name terminated.

“A fire policy is a personal contract with the insured; if he parts with all his interest in the property before the loss, the policy becomes void, unless assigned to the new proprietor with insurer’s consent.” Leavitt vs. Western Marine Fire Ins. Co., 7 R. 351; 1 H. D. 705 (c) 52 N. Y. 502.
“The insured must have an interest in the property at the time of insuring, and at the time the loss happens.” Smith Mere Law, p. 475 note.
“It is necessary that the insured should have an interest in the property protected and in case of loss he will only be able to recover to the extent of that interest.” Id. p. 476.
“In order that a creditor may maintain garnishment proceedings there must be a subsisting right of action at law by defendant in his own name, and for his own use, against the garnishee.” 20 Cyc. 983.

III. A. 28 C. J., p. 44 S. 46.

“It is essential that there should be an interest at risk. The interest of the assured must be subsisting at the time of the loss, in order . to give a claim for indemnity.” Bell vs. Ins. Co., 5 Rob. 423 (443).
“The definition of the contract as one of ‘indemnity’ requires that an insurer shall have some interest in the property which will be injuriously affected or imperiled by desti'uction of, or injury to, the property by fire. If the person procuring or holding the contract of insurance has no such interest the contract is invalid.”
“To render the contract valid insured should have, an interest in the property at the time of making thp contract as well as at the time of loss. Nevertheless if at the time of the loss there is no interest there can. be no recovery under the contract.” 26 C. J., p. 18 S. 2; 19 Cyc., p. 583 II C.
“The general rule being that there must be an insurable interest at the time of the loss as well as at the time of the making of the contract, a total extinguishment, of the interest of insured in the property after the making of the contract' and prior to a loss, as by an absolute transfer of the property will prevent recovery under the contract for the loss.” 26 C. J., p. 37 S. 23.
“An assignment of a policy by one having no insurable interest in the property, transfers nothing, even though the assignee is the owner of the property.” Id., ip. 38 S. 24.

Finding that Upton had sold to Trombino his interest in the Silver Slipper Restaurant prior to the fire, and that on the date of the fire, Upton had no ownership of, and no interest of any kind in, the things insured, and none therefore that he could assign, and that his assignment of March 10, 1928, assigned nothing, and was a nullity, and that at the time the garnishment process issued herein Upton had no cause of action against the insurance companies.

It is therefore ordered that the judgment herein rendered on March 16, 1928, dismissing the rules to traverse the answers filed by the five insurance companies herein be affirmed.


source: Caselaw Access Project

author: ELLIOTT, J.

license: Public Domain

text:
    No. -
    First Circuit
    FAVROT v. PAINE & BOURGEOIS, INC., ET AL.
    (June 12, 1928. Opinion and Decree.)
    (June 30, 1928. Rehearing Refused.)
    (October 2, 1928. Writs of Certiorari and Review denied by Supreme Court.)

      Cross & Moyse, of Baton Rouge, attorneys for plaintiff, appellant.
    Justin C. Daspit and J. Oliver Bouanchaud, of Baton Rouge, attorneys for defendant, appellee.
   ELLIOTT, J.

Mrs. Laura Favrot, wife of Edgar D. Favrot, brought suit against Paine & Bourgeois to enjoin the sale of “A certain tract or parcel of land situated in the Parish of East Baton Rouge, containing eight superficial acres, fronting one acre on the east side of the Brooks-town road and running back between parallel lines eight acres; bounded west by said road, north by Randolph succession and Matta, east by Kildare plantation and south by Deam Succession,” which the said Paine & Bourgeois, Inc., had caused the Sheriff to seize and advertise for sale in the execution of a judgment which the said Paine & Bourgeois, Inc., had obtained against Edgar D. Favrot, her husband.

She alleges that the said property is her paraphernal property, purchased by her from said Paine & Bourgeois, Inc. She prays that the same be enjoined, for judgment decreeing that the seizure was illegal, that the property be released to her and the sale thereof under said writ decreed to be null and void, and that she be adjudged to be the true and lawful owner of said property, and as such, entitled to the possession of the same.

The defendant, after excepting that plaintiff’s petition disclosed no cause of action, filed an answer denying that plaintiff was the owner of the property.

The lower court after hearing, as provided by the law, Act 29 of 1924, refused the injunction and then after trial on the merits, decided in favor of the defendant. The plaintiff has appealed.

The appellee moves to dismiss plaintiff’s appeal, showing as a ground, that the appeal is devolutive and that the Sheriff has sold the property in suit.

The plaintiff attacks the seizure, prays that it be set aside, that any sale made thereunder be decreed to be null and void, and that she be recognized as the owner, etc. Her petition is in the nature of an opposition to the sale. The law provides that a sale made by the Sheriff pending an opposition shall be null if the opposition be sustained. Code of Practice, Article 400. The motion to dismiss is overruled.

The plaintiff contends that her husband gave her $1500 as a manual gift, which amount was used for the purpose of paying for the property the title to which was taken in her name, and that although the title does not so state, the purchase was for her separate use and benefit.

The evidence shows that the property in question is part of a larger tract, which was bought by her husband. The title to that part which she claims was taken in her name, while that to the larger part was taken in the name of her husband. But under the terms of the title which was taken in her name as shown by the evidence adduced on the trial, that part of the purchase which was taken in her name as well as that part taken in the name of the husband, was an acquisition of the legal community of acquets and gains which existed between her husband and herself. If the two titles, one in the wife’s name and the other in that of her husband, had both been made out in the name of the husband, the result would have been the same.

The amount due Mrs. Katie Y. LeBlanc, which plaintiff’s husband assumed, was due as a part of the purchase price of the entire tract, which the defendant had agreed to pay Mrs. LeBlanc for the same and was a community debt. The balance due the defendant on that part, the title to which wag made out in the name of the husband was a community debt. The $1500 used by Edgar D. Favrot in paying defendant for that part of the tract, the title to which was taken in his wife’s name, was his money. He never delivered the money to his wife, never put it in her name, in her hands; nor under her control, but paid the amount directly to the defendant.

The authorities cited by the plaintiff on the subject of manual gifts of money and the effect on title when the gift has been used to pay for property, the title to which is taken in the name of the donee, are very respectable and authoritative, but they cannot influence the result in the present case, because the money used by Mr. Favrot in paying defendant for that part of the tract the title to which was taken in the name of the plaintiff, was never delivered to the plaintiff. In Gibson vs. Hearne, 164 La. 66, 113 So. 766, the money involved in the suit had been delivered to the minor, Mary Arnold Hearne. The delivery was accomplished by the deposit of same in her name and for her benefit.

In this case the judgment appealed from is correct. Judgment affirmed, plaintiff and appellant to pay the costs in both courts.


text:
    No. —
    First Circuit
    SLIMAN v. JOSEPH MRS. HAWKINS CALLED IN WARRANTY
    (May 8, 1928. Opinion and Decree.)
    (June 30, 1928. Rehearing Refused.)
    (October 2, 1928. Writs of Certiorari and Review denied by Supreme Court.)

      Dubuisson, Perrault & Burleigh, of Opelousas, attorneys for plaintiff, appellant.
    R. L. Garland, of Opelousas, attorney for defendant, appellee.
    Griffin T. Hawkins, of Lake Charles, attorney for Mrs. Sallie Hawkins, called in warranty, appellee.
   ELLIOTT, J.

Alexander Sliman is the owner of a certain lot or parcel of ground acquired by him from J. F. Phillips; by Phillips from Mrs. H. B. Tolivar, and by Mrs. Tolivar from James E. and ,Martin S. Hatfield, described in the title from the Hatfields to Mrs. Tolivar as follows:

“A certain lot of ground situated at Palmetto in the Parish' of St. Landry, La., on the south side of the Texas and Pacific Railroad track, and bounded on ihe north by the T. & P. Railroad land; on the south by the land of vendor; on the east by the land of vendor, and on the west by the land of vendor; said lot measuring on the north line fronting railroad track one hundred feet, and on the south line one hundred feet; on the east and west lines one hundred and twenty feet respectively; said lot beginning at a point one hundred and sixty-four feet east of the store building occupied by M. L. Fabre, and owned by vendor.”

The title (provides that twenty-nine feet next to the railroad is to be left open for street purposes. This title bears date January 19, 1903, and was recorded January 19, 1903, in the conveyance records of the Parish of St. Landry.

The plaintiff alleges that the defendant Charles Joseph has, without any right or title thereto, taken possession of the' eastern twenty feet of said lot, erected improvements thereon, and withholds same from him. He prays that his ownership of said lot be recognized to the full extent of its limits; that he be placed in possession accordingly and that said Joseph be required to remove his improvements therefrom.

The defendant Joseph, for answer admits that he has possession of the locus in quo and denies that same is a part of plaintiff’s lot. He alleges that the ground in question is the western (portion of a lot which he acquired April 21, 1914, by title from Mrs, Sallie Hawkins, recorded April 21, 19Í4, in the conveyance records of the Parish of St. Landry.

He alleges that the land in question was enclosed to the knowledge of said Sliman at the time he acquired, same, pleads the prescription of ten years ac.quirendi causa in aid of his title, location, limits and possession, and called Mrs. Hawkins in warranty.

. Mrs. Hawkins appeared, and for answer joined defendant in his defensive averments. She also urges the prescription of ten years acquirendi causa. She denies that the ground in question is part of plaintiff’s lot and alleges that it is part of the lot which she acquired from Martin S. Hatfield under the following description:

“And the said lot Numbered Two, measuring one hundred feet on railroad right of way by ninety-four feet in depth, and bounded on the north by railroad right of way; on the east by street running north and south; on the south by lot of Mary Hatfield Stokes, Number Three, and on the west by lot sold to Tolivar, with all the buildings and improvements thereon.”

This title bears date March 3, 1904, and was recorded March 8, 1904, in the conveyance records of the Parish of St. Landry. She alleges that said lot was enclosed when she acquired it and that she received and took possession accordingly. That her limits and possession covered and included the ground now claimed by plaintiff herein, and that she so owned and possessed with the full knowledge of the plaintiff, etc. She further alleges that during the month of November or December, 1901, or in the early part of 1902, the land owned by Martin S. and Mary Hatfield was surveyed and platted into streets, blocks and lots and designated as the “Hatfield Addition to the town of Palmetto,” which plat was filed and recorded as the law provides in the office of the Clerk of Court of the Parish of St. Landry.

The prescription of ten years filed by defendant and warrantor was sustained, and the plaintiff appealed.

The title from Mrs. Hawkins to Charles Joseph calls for:

“A certain piece and plat of ground situated and being in the town of Palmetto,- and being the west portion of lot known as the Hatfield lot, fronting on Railroad Avenue bounded north by- Railroad- Avenue south by Mrs. Stokes; west by Tolivar east by vendor,- and measuring forty feet front by the depth from the front of the Stokes lot.”

It is the western portion of-he lot which Mrs. Hawkins acquired from Martin S. Hatfield, as above said. The western boundary referred to in the title from Martin S. Hatfield to Mrs. Hawkins, and again in that from Mrs. Hawkins to Charles Joseph is the eastern boundary limits of the lot which now belongs to Sliman under said title from James E. and Martin S. Hatfield to Mrs. Tolivar.

The plaintiff, defendant and warrantor do not claim in their pleadings nor contentions any land beyond their title limits. It is true the defendant and warrantor alleges and claims that the parcel of land in question was an enclosed part of their lot and limits at the time they acquired same, and that they have each posessed same by enclosures in good faith as owners for more than ten years, and have in that way acquired a right to the location and limits fixed by their enclosures, but their claim is based on their alleged title limits and not beyond same. Therefore this action, though brought, defended and tried as a petitory action, is not in fact a conflict of titles, but of limits, and is in fact an action of boundary under the Civil Code, Art 823, etc. The limits in question have never been determined nor fixed by a boundary survey.

The prescription against the rectification of an erroneous survey provided for by the Civil Code, Art 853, is not invoked, and if it had been, would not be applicable.

Defendant’s title and that of the warrantor was acquired with reference to the eastern limits of plaintiff’s lot which is a point two hundred sixty-four feet 'east of the store building occupied by M. L. Eabre, and the eastern limits of plaintiff’s lot is the western, boundary of that of defendant. As the controversy is not in regard to titles but concerns only the location and limits of adjoining parcels of land, it follows that the prescription of ten years under C. C. Art. 3478 cannot be applied. The cases of Bourguignon vs. Boudousquie, 6 N. S. 697; Williams vs. Bernstein, 51 La. Ann. 115, 25 So. 411; Bendernable vs. Foret, 145 La. 115, 81 So. 869, cited in plaintiff’s brief, and Babineau vs. Cormier, 1 N. S. 456; Broussard vs. Duhamel, 3 N. S. 11, and Opdenweyer vs. Brown, 155 La. 617, 99 So. 482, are pertinent to the question at issue.

The question in the case is, whether the ground in controversy is in fact part of the lot which Sliman acquired from Phillips by title deraigning from James E. and Martin S. Hatfield in January, 1903, or part of that which Mrs. Hawkins acquired from Martin S. Hatfield in March, 1904.

R. M. Hollier, surveyor, measured one hundred sixty-four feet east from the Eabre store building at which place plaintiff’s lot commences, and thence one hundred feet east, and the measurement proved that the ground in question is part of the lot which James E. and Martin S. Hatfield sold Mrs. Tolivar. The plaintiff has the eldest title and the first location, and his limits must have precedence; C. C. Art. 844, 845, 846.

The land of the plaintiff and of the defendant and warrantor is all part of the tract which James E. and Martin S. Hatfield acquired from Preval Rideau on October 29, 1901.

The allegations of Mrs. Hawkins that the Hatfields, during the month of November or December, 1901, or the early part of 1902, surveyed and platted the Rideau tract into streets, blocks and lots and that said plat was filed and recorded in accordance with law in the office of the Clerk of Court of the Parish of St. Landry previous to the sale to Mrs. Tolivar, is not supported by the evidence. Act 53 of 1896 was in force at the time, but the Hatfields at the time of selling to Mrs. Tolivar, had not complied with the law requiring maps to be made and filed. They did not sell to her with reference to plats nor streets nor blocks nor lots, but according to the limits to be fixed by reference to the store building then occupied, by M. L. Fabre. They were the owners at the time of all the land situated south, east and west of that sold to Mrs. Tolivar, and had the right to sell and fix the limits of the land sold her as they saw proper.

The land referred to in the title to Mrs. Tolivar as “On the east by land of vendor,’’ is that which Martin S. Hatfield subsequently sold to Mrs. Hawkins. In her title she accepted from Martin S. Hatfield as her western limit, the eastern limit of the land which her vendor and his co-owner had previously sold to Mrs. Tolivar. She bought up to a boundary limit two hundred sixty-four feet east of the Fabre store building. James E. Hatfield, one of the co-owners in the sale to Mrs. Tolivar, after selling to her, departed this life. Martin S. and Mary Hatfield became at his death, the owners of his remaining interest in the Rideau tract by inheritance from him. Martin S.' and Mary Hatfield subsequently partitioned the remainder between themselves, and Martin S. Hatfield became the owner of lot Two, which he subsequently sold to .Mrs. Hawkins as above said.

The evidence shows that when the defendant acquired from Mrs. Hawkins the lot which he now owns, the land in question was enclosed by Sliman, the plaintiff, as part of his lot. That Sliman subsequently moved his fence west, upon which defendant moved his western fence further west, enclosing the land vacated by Sliman. The moving was, as set forth in the suit entitled Charles Joseph vs. Alexander Sliman, Court of Appeal Reports, Vol. 6, p. 552, etc., but since the decision in that case it seems that Joseph is not willing, and in which he is supported by his warrantor, to yield back to Sliman the land which Sliman vacated in order to enable Sliman to replace the .boundary fence along the eastern limits of his lot in the place where it stood at the time he acquired it from Phillips; however, neither Joseph nor the warrantor, at the time of his title, has acquired a title to any land beyond that called for by his title. He must return to his former western limits fixed in his title at a point two hundred sixty-four feet east of the store building formerly occupied by M. L. Fabre, the same being the eastern limit of Sliman’s lot, as above stated.

• The judgment appealed from is contrary to the law and the evidence, and must be annulled, avoided and set aside and judgment rendered in favor of the plaintiff as prayed for.

The judgment appealed from is therefore annulled, avoided and set aside. The plea of ten years prescription acquirendi causa filed herein by Charles Joseph and Mrs. Sallie Hawkins is overruled.

It is further ordered, adjudged and decreed that the above described land of the plaintiff Alexander Sliman commences one hundred sixty-four feet east of , the M. L. Fabre store building and extends thence east from said place of commencement, fronting the railroad right-of-way, for one hundred feet by a. depth between parallel lines, as provided for in said title from James E. and Martin S. Hatfield to Mrs. H. B. Tolivar. That the eastern limits of (plaintiff’s said land is the western limit of the land - belonging to Charles Joseph under his title from Mrs. Sallie Hawkins; and it is ordered that the boundary line between' them be accordingly fixed, and that Charles Joseph yield the land which he now occupies west of said boundary line to' said Sliman, and remove his improvements therefrom.

It is further ordered, adjudged and decreed that Mrs. Sallie' Hawkins, called in warranty herein, yield to Charles Joseph forty feet front on the railroad between parallel lines adjoining Sliman’s said land, as provided for in her said title to him. Charles Joseph to pay the cost in both courts; Mrs. Sallie Hawkins, in turn, to pay him all the costs which he is condemned to pay herein.


author: CLAIBORNE, J.

text:
    No. 11,054
    Orleans
    ARNDT ET AL. v. D. H. HOLMES CO., LTD.
    (August 13, 1928. Opinion and Decree.)
    (September 4, 1928. Rehearing Refused.)
    A. M. Guilbeau, M. P. Lacompte, of New Orleans, attorneys for plaintiff, appellee.
    McCloskey and Benedict, of New Orleans, attorneys for defendant, appellant.
   CLAIBORNE, J.

This is a damage suit for the sale of unsound food.

The plaintiff, Charles Arndt, alleged that on September 18, 1925, his wife bought of defendants a cake, commonly called “Boston cream cake,” and brought the same to the residence of plaintiffs who ate of the same; that the defendants are engaged in the business of manufacturing and selling cakes and pastries of all kinds; that the Boston cream cake purchased by Mrs. Arndt from the defendant was unfit for human consumption; that it contained ptomaine poison, and that every member of her family who partook of said cake, became ill, especially plaintiffs’ two minor children, Odessa and Bernadette; that they were stricken with ptomaine poisoning; that they were confined to their beds and put under the care of physicians; that the poison in their system infected their appendix as well as their heart; and that they were both taken to a hospital where they were operated for appendicitis; that both children are still confined to their beds and are now treated for heart disease; that the two girls are aged respectively, 12 and IS, “that prior to the eating of the said cake and the poisoning and resultant illness, neither of these children had suffered from appendicitis or heart disease;” that from the ptomaine poison and from the operation for appendicitis and from their affected hearts they have suffered and will suffer during all their lives great pain and privations of the pleasures of their age; the plaintiffs claim for the use of their two minor daughters as follows:

For physical and mental pain endured in the past by each daughter $5000 or both________________$10,000.00

For physical and mental pain to be endured in the future through life $10,000.00, or both.................. 20,000.00

Making a total of.............$30,000.00

The defendants denied every allegation of plaintiffs’ petition.

Further answering they admitted that they were engaged in the manufacture and sale of cakes. as well as of the cake commonly known as “Boston Cream Cake” that it happened that on September IS, 1925, they sold a number -of said cakes and that a number of customers were taken ill with nausea and vomiting; but they denied that, as manufactured, said cakes were unfit for human consumption; that said cakes were made from flour, sugars and milk purchased from the most reputable dealers in this city and manufactured by employees of the highest skill; that no such accident-had happened before; that the condition of the cakes was caused by the abnormally protracted hot weather and was unknown to defendants; they admit that for all such damages as might have been foreseen they are liable under the case of Doyle vs. Fuerst and Kramer, 129 La. 838, 56 So. 906, 40 L. R. A. (N. S.) 480, Ann. Cas. 1913B, 1100. They further averred that the cakes did not bring on the appendicitis but that the two minor children were suffering from chronic appendicitis and that it was an error to have removed their appendix. They further denied that the children were suffering from heart disease or that it was caused by eating the cream cakes. They specially averred that they could be held liable only for such damages as were consequent upon nausea, vomiting, or purging, but in no event for appendicitis or heart trouble' which were not caused by eating the cakes.

On May 2, 1927, Odessa Arndt had reached majority and made herself a party to the suit and adopted the action of her parents.

The jury by a vote of 9 to 3 returned a. verdict of $10,000.00 in favor of the “plaintiff.”

The verdict was made the judgment of tho court in accordance with the petition.

After an ineffectual application for a new trial the defendants appealed.

As admitted by the defendants they are liable for all the legitimate and natural consequences of eating the cream cakes presumably unfit for human food, as established by the Supreme Court in Doyle vs. Fuerst and Kramer, 129 La. 838, 56 So. 906, 40 L. R. A. (N. S.) 480, Ann. Cas. 1913B, 1100, affirming the opinion rendered by this court in the same case in 8 Orl. App. 408, also Farrel vs. Manhattan Market Co., 198 Mass. 271, 84 N. E. 481, 15 L. R. A. (N. S.) 884, 126 Am. St. Rep. 436, 15 Ann. Cas. 1076.

In that case this court said:

“Their liability is restricted to such damages as were contemplated or may reasonably be supposed to have been contemplated .by the parties at the time the contract was entered into. C. C. 1934-2516; Allen, Bush & West vs. (Steers) Stiers, 39 La. Ann. 586, 2 So. 199. Among these must certainly be included the damages resulting directly as the natural and logical result of eating poisoned food.’’

In the Doyle case, after an exámination of the civil and of the common law as to the liability of a vendor of articles of food and the extent thereof, covering five pages, the court said:

“~“The measure of damages sustained by a purchaser of food, who is made ill through its unwholesomeness, is not merely. reimbursement of the price, but all damages that were foreseen or could have easily been foreseen as likely to have resulted.”

And the court allowed $100, affirming the judgment of the Court of Appeal.

There is no difference of opinion about the facts; the'plaintiffs and the defendants differ only as to the consequences of those facts.

The established facts are that Mrs. Arndt bought some “Boston Cream Cakes” at the defendants’ place of business, carried them home, where she, her husband, and their two daughters, one 13 and the other 20, ate them; that a few hours after, they were all taken ill, all with the symptoms of ptomaine poisoning; Mr. and Mrs. Arndt were but slightly ill, but their two daughters, Bernadette and Odessa, were violently ill; that on the day after they had eaten the cakes they called in Dr. Peter B. Salatich of whom the defendants say:

“We will admit you have a very enviable reputation in this community as a surgeon, very enviable; I have understood for many years that you are one of the best surgeons in the city, but not necessarily a physician, that your specialty was that of a surgeon.”

This doctor found the two girls vomiting, and purging, and suffering much pain; especially from their abdominal right side. After he had exhausted the ordinary methods of relief with ice bags and others, his patients still suffered, and complained in addition of pains in their heart; he then came to the conclusion that one of the girls was affected with appendicitis; he brought her to the hospital for an operation; he could not use a general anaesthetic because “her heart was too bad,” and he resorted to a local; a week afterwards, he observed the same symptoms of appendicitis and heart trouble upon the other sister and he removed her appendix, also by the same means; the two girls were then taken to their homes where they continued to suffer of their heart and to be treated by Dr. Salatich.

They-were confined to their bed for eight or nine months; one of them missed her school during that time; and the other had to put off her engagement to marry; on the day of trial, eighteen months after, the two girls were still suffering from their hearts, and were under treatment by Dr. Salatich. Prior to their eating of the cakes their general health was good; they were never sick; this was testified by their parents, by their family physician, by playmates and by themselves; they testified that ¡prior to the accident they played ball, golf, tennis, that they walked and danced but that since the accident they had not been able to indulge in those sports. Six of their friends corroborated them in those statements.

But the defendants plead that there was no necessity for removing the appendix and that it was error to have done so, and that they cannot be held liable for the operation nor for the consequences thereof. The doctors, however, testify that the surgeon is the only judge of that necessity.

Dr. Lewis H. Levy, for the defendants, testified as follows.

“Q. In other words, you wouldn’t let a laboratory report tell you what to do?
“A. No, sir.
“Q. Now, Doctor, suppose in that same case, that you went ahead and operated, could you say that you had made an error of the most serious medical nature?
“A. Well, I wouldn’t say the most serious medical nature. I would say that I made an error in judgment. I would say, if the case was to save the life of the human being, that I operated, and, when I found the report showed a chronic appendicitis, and it would show chronic when I looked at it myself when I opened the abdomen up, I would see it was chronic and not acute or sub-acute, I would say, as we frequently do at the operating table: ‘Well, this case was not as severe or bad as I had expected, and it probably would have been just as well or better if I had waited longer to operate or waited indefinitely to operate.’ We frequently do that.
“Q. But you would have gone ahead with your operation?
“A. Yes, sir, we never allow a laboratory to influence us since we have made up our opinion.”

The defendants deny that the eating of the cakes could have provoked appendicitis or heart trouble.

Upon that subject Dr. Poster M. Jones testified as follows:

“Q. Doctor, you stated that a violent attack of ptomaine could bring on an acute appendicitis?
“A. I believe that is a matter of record.
‘‘Q. Do you believe that?
“A. I have never seen a case, but it is a matter of record.”

Eight doctors testified in the case, four on each side. They each indulged at length in an erudite exposition of the medical conditions and possibilities of this case.

In their explanation they soared too high in the use of technical words and phrases for the judicial mind to contemplate.

Their efforts consisted, upon one side, to prove that ptomaine poison could not he the cause either of appendicitis or of heart trouble. Some doctors were of the opinion that it could not, others swore it could.

We are inclined to the latter belief, because one doctor said it was as to appendicitis of record, while the others only declared that they knew of no case; Moore vs. Lambeth, 5 La. Ann. 72-73. Inasmuch as poison affects the heart, sometimes to the extent of arresting its palpitations, and as ptomaine is a poison, it is reasonable to believe that it may affect the heart. But we must decide rather from facts than from opinions or theories.

The facts are that both girls suffered from appendicitis and heart trouble, and no other cause can be attributed to them except the poisoned cakes. Dougherty vs. N. O. Ry. & Lt. Co., 127 La. 225, 53 So. 532. Not one of the doctors, with the exception of Dr. Salatich, whose superior talent and experience are admitted, ever examined the two girls. They were tendered in open court to the expert doctors of the defendants for examination, but the tender was not taken advantage of.

In the case of McCubbin vs. Hastings, 27 La. Ann. 718, the Supreme Court said:

. “When scientific gentlemen undertake to tell us under such a state of facts that the enema as administered, was' a benefit to the patient instead of an injury, that a substance as powerful as alcohol in which camphor, a violent stimulant, has been dissolved, can be injected into one of the tenderest parts of the human frame, when the patient is suffering from a severe attack of such a disease as the yellow fever is, without doing any harm, but, on the contrary, doing good, we see in our mind’s eye the unfortunate victims upon whom the experiment has been tried as she is described by the witnesses, writhing in agony, dying, dead; and we say that dreadful fact alone destroys all their theories; and we think that he who, by himself or those for whose acts he is responsible, caused the agony not to say death, should be made to answer for the suffering which he caused.”

The conjectural and conflicting opinions of physicans who never saw the patient are not sufficent to establish a case. Roy vs. Roy, 5 La. Ann. 591; Suc. of Dejean, 5 La. Ann. 593; Suc. of Bozant, 5 La. Ann. 709; Sargent vs. Slatter, 6 La. Ann. 72; Montross, etc., vs. Byrd, 6 La. Ann. 518; Demoruelle vs. Sugg, 7 La. Ann. 42; Leonard vs. Kleinpeter, 7 La. Ann. 44; Stackhouse vs. Kendall, 7 La. Ann. 670; Williams vs. Talbot, 12 La. Ann. 408; Alford vs. Hughes & Randolph, 14 La. Ann. 727; Gouse vs. Bullard, 16 La. Ann. 107; 1 Orl. App. 9; 13 Orl. App. 165.

But if the appendicitis and the organic heart trouble, endocarditis, call it by what name you please were not produced by the sour cakes, what was it that caused them? No one has intimated to us another cause and Dr. Salatich tells us he came to that conclusion by “exclusion” of all other causes.

The defendants answer that the hospital report states that Bernadette was already suffering from “chronic exudative and proliferative appendicitis” and from a base faint blow from the heart.

Dr. Salatich testified that “their hearts were rather bad. They both had murmurs, very loud murmurs.”

The evidence is that one may be afflicted with the “chronic appendicitis” for years and not know it, without the need of an operation. The same may be said of the blow of the heart, until some accident arouses the dormant infirmities which then demand attention. We must conclude that those two girls were afflicted with chronic appendicitis and heart trouble; that those diseases were dormant and were superinduced by the Boston cream cakes, in a state of decomposition. There is no other theory and we can arrive at no other practical conclusion. When that condition exists, the defendants who wake up the dormant diseased organ are liable in damages. Plaintiffs are entitled to be compensated only for so much of their affliction as was the result of the accident. Taylor vs. Penny, 5 La. Ann. 7; Heirs of Duverge vs. Salter, 5 La. Ann. 94; Behan vs. John B. Honor Co., 143 La. 348, 78 So. 589, L. R. A. 1918F, 862; Caldwell vs. City of Shreveport, 150 La. 469, 90 So. 763; Haddad vs. Commercial Motor Truck, 150 La. 327, 90 So. 666; Graft vs. Gulf Lbr. Co., 151 La. 281, 91 So. 736; Hicks vs. Meridian Lbr. Co., 152 La. 975, 94 So. 903; Donohoe vs. Scharfenstein & Son, 154 La. 815, 98 So. 256; Durrett vs. Woods, 155 La. 540, 99 So. 430.

Therefore' we think that the amount allowed by the jury is exeessive.

There must be some uniformity in the amount of damages allowed. Joynes vs. Troye, No. 11,268, 119 So. —, this day decided.

In the case just quoted, Caldwell vs. City of Shreveport, 150 La. 469, 90 So. 763, the traumatic injury inflicted upon the plaintiff superinduced locomotor ataxia •which is incurable, -progressive, permanent, while the two injuries produced in this case were, as to one, removed by the operations, and as to the other, cured by the recuperative powers of youth, nature, and medicine. As we have just said, the plaintiffs can recover only such damages as were the result of the accident, and reasonably contemplated.

In that case judgment rendered by the trial court in favor of plaintiff for $3,000 was reduced by the Supreme Court to $2,000.

It is therefore ordered that the judgment herein be amended by reducing it from ten thousand dollars to four thousand dollars, and as thus amended that it be affirmed, the defendants' to pay the costs of appeal.


author: MOUTON, J.

text:
    No. -
    First Circuit
    SANDERS v. DANTONI
    (February 15, 1928. Opinion and Decree.)
    (March 7, 1928. Rehearing Refused.)
    Reid and Blache, of Hammond, attorneys Cor plaintiff, appellee.
    Rownd and Warner, of Hammond, attorneys for defendant, appellant.
   MOUTON, J.

In February, 1922, plaintiff acquired a lot of ground in the City of Hammond, from James B. Arnold. In 1925 the property was sold at tax sale for the taxes of 1924, and was bought in by the defendant, Vincint S. Dantoni. This suit is brought by plaintiff to annul the sale.

It is well established by the record that plaintiff was the record owner in 1924, and also that he was living on the property at the time. It is shown that notice of delinquency for the taxes that were due on the property for 1924 was given to Arnold, from whom plaintiff had acquired but that no such notice was sent to or received, by plaintiff.

This notice of delinquency to plaintiff, then record owner, was a jurisdictional pre-requisite to the tax sale.

The failure to serve this notice on plaintiff was fatal to the sale, and which was properly annulled by the District Judge. Recker vs. Dupuy, 161 La. 392, 108 So. 782. Plaintiff was correctly decreed owner of the property.


author: JONES, J.

text:
    No. 11,445
    Orleans
    ITEM CO., LTD., v. DR. VINCENT LI ROCCHI
    (July 2, 1928. Opinion and Decree.)
    Deutsch and Kerrigan, of New Orleans, attorneys for plaintiff, appellant.
    P. L. Fourchy, of New Orleans, attorney for defendant, appellee.
   JONES, J.

Judgment was rendered in this case in favor of plaintiff for the full amount prayed for, two hundred sixty-four and 56-100 dollars, with interest and all costs.

Plaintiff then examined the judgment debtor as to his assets, and having located certain property, seized it, in due course, under a writ of fieri facias. Then Mrs. Josephine Eckert filed an affidavit with the Constable, stating that the property seized belonged to her.

Plaintiff after filing a bond for double the value of the property seized, proceeded by rule to set aside the affidavit. After hearing, judgment was rendered against plaintiff in favor of defendant in rule, maintaining the affidavit, and from this judgment plaintiff has appealed suspensively.

Here appellee moves to dismiss appeal on the ground that this Court is without jurisdiction, judgment being interlocutory.

Defendant has filed no brief here.

Article 566 of the Code of Practice reads as follows:

“One may likewise appeal from all interlocutory judgments, when such judgment may cause him an irreparable injury.”

The term “irreparable injury” has been construed several times.

“It is not necessary, however, that the injury should be absolutely irreparable; and it is sufficient to render the judgment appealable that the injury may become irreparable by the final judgment or action of the supreme court on the judgment.” — 3 C. J. 460.
“To entitle a party to an appeal from an interlocutory judgment it is unnecessary that the injury be absolutely irreparable. It suffices that it may become irreparable by the final judgment or action of the Supreme Court on that judgment.” —Katz and Barnett vs. Sorsby, 34 La. Ann. 588.
“We think the correct doctrine on this subject is stated by this court in Hyde vs. Jenkins, 6 La. 427, to the effect that, to entitle a party to an appeal from an interlocutory judgment, it is unnecessary that the injury be absolutely irreparable * * * If this final decree can not replace the party in the advantageous position which he occupied before- the interlocutory judgment', the injury is irreparable.”— State ex rel. Cole vs. Judge Fifth Judicial District, 29 La. Ann. 803.
“That said order or decree may cause irreparable injury is possibly not apparent on the face of the record, but, as an appeal is a remedy that is favored in law, we prefer, in a case of doubt, rather to sustain than deny the right.” — Succession of Bothick, 52 La. Ann. 1863, at 1865, 28 So. 458.
“An order which might work irreparable injury, though merely interlocutory and upon a matter within the discretion of the court, is appealable.”-Demarest vs. Burne, 36 La. Ann. 751.

Thus an appeal has been allowed from an order dismissing a third opposition.

“An appeal will lie from a judgment on the opposition of a third person to regulate the effect of the seizure in what relates to him, and a writ of mandamus will, in case of the refusal of the judge a quo to grant the appeal, issue compelling him to grant it.” — State vs. Judge of the Eighth District Court, 24 La. Ann. 599.

An aippeal has been allowed from a judgment on a rule dismissing an opposition to an order of seizure and sale.

“This rule must be viewed as an answer or an opposition, to the order of seizure and sale, going to show that the order of executory process had improvidently been issued and that it ought to be set aside. The judgment upon the rule was certainly a final judgment, and either party had the right to appeal. Suppose that the judgment had made the rule absolute, would not the plaintiff and appellee have been entitled to an'appeal? The answer must be in the affirmative.” — Heft vs. Kelty, 17 La. Ann. 143.
“If relief cannot be obtained by .a judgment on the merits, as a general rule, appeal lies from an interlocutory decree. Suspensive appeal will not be dismissed from a judgment refusing to hold sequestration release bond insufficient.” —Goss vs. Turner, 149 La. 327, 89 So. 20; Ex rel. Lamothe, 46 La. Ann. 1047, 16 So. 363.
“After the interlocutory order had destroyed the plaintiff’s hold on the body of the debtor, and on the property secured or attached, no judgment of the first court nor of this could replace him on the schedule he was before’ the judgment against which he seeks relief, and this suffices to authorize him to forbear the exercise of his right of appeal till after the final judgment of the cause.” — Hyde vs. Jenkins, 6 La. 427.
“The property attached was released, and it is held by a third person, by whom it was bonded as being his own. His right as owner cannot be questioned on the trial before the district court in the present condition of the case, even if he be not the owner. The judgment dissolving on attachment is binding on all concerned until it be reversed on appeal, if reversible. If a plaintiff in attachment has any right at all, he should have the right to hold the property attached (or its equivalent in case it has bee.n bonded) until the decision of the case. Here the property was released, and the bond can-celled by the effect of the decision dissolving attachment. A similar question, in our view, was decided in Laverty vs. Anderson, 4 Mart. 606. The court held that the order discharging the garnishee was so far final that an appeal lies. A similar view was announced in Hyde vs. Jenkins, 6 La. 427. In view of the foregoing, we think an appeal should be heard.” —Bayne vs. Cusimano, 50 La. Ann. 361, 23 So. 361.

See also numerous authorities cited under Art. 566 C. P. (Marr’s Edition in 1927).

For above reasons, motion to dismiss appeal is denied.


text:
    No. 10,647
    Orleans
    SWEETEN v. FRIEDMAN AND WIFE
    (August 13, 1928. Opinion and Decree.)
    E. A. Theard and W. F. Conkerton, of New Orleans, attorneys for plaintiff, appellee.
    P. L. Fourchy, of New Orleans, attorney for defendant, appellant.
   CLAIBORNE, J.

The plaintiff claims $20,000 damages for physical injuries and for false arrest.

She alleged that she answered an advertisement published by the defendants in the Times-Picayune in the following words:

“Permanent wave, 6 months guarantee, this week $7.60”; that she entered defendant’s place of business conducted under the name of “Parisienne Hair Store” at No. Ill University Place, to obtain a permanent wave in accordance with the advertisement; that without any request. on her part she was first given a “shampoo” and afterwards the defendants’ employees proceeded to give her a permanent wave; that through their negligence, they burned and bruised plaintiffs head and scalp until the blood flowed down her face, and caused her much pain for which she was treated by a doctor for several weeks; that her hair has been ruined and has fallen; that although her hair has not been permanently waved she offered to pay defendant $7.60 plus 75 cents for the shampoo which defendant refused to accept, claiming in addition the price of a water wave which she had not received; that thereupon the defendant, Samuel Friedman, insulted her in the presence of a large crowd of patrons, shook his finger in her face and threatened to hav.e her arrested, and locked the door of the establishment, saying that he would not let her out' until she paid $1.50 for the water wave; that he kept petitioner imprisoned in his store for at least 30 minutes until the arrival of a policeman; for all of which she claims the following damages:
Physical pain from burns ____________________$5000
Issults __________________________________________________________ 5000
False imprisonment ...................... 5000
Injury to her hair ________________________________ 5000
Total ......................................................$20,000

On exception the suit against Mrs. Friedman was dismissed.

Sam Friedman admitted the advertisement and the fact that the plaintiff had called in his parlors, but denied all the other allegations of the petition. Further answering he averred that the condition of plaintiffs hair was Such that no work could be done., until it had been properly cleaned and shampooed, to which the plaintiff agreed, and that if she suffered a slight burn she had assumed such a risk and signed a release "in favor of defendant; and that when she was called upon to ipay she created “such a disturbance in defendants place of business that the police had to be called as a matter of precaution.”

There was judgment for damages in favor of plaintiff for the burning and suffering $500, and for the wrongful closing 'of doors and detention of plaintiff $500 more, making in all $1000.

From this judgment the defendant has appealed.

The advertisement read as follows: “Permanent Wave 6 months. Written guarantee. This week $7.60.”

The facts of the case are that the plaintiff read the advertisement we have copied above and then called at the defendant’s place of business to have a permanent wave for $7.60; that her hair was i first shampooed, then she took her seat in a chair and her hair was wrapped to receive the electric treatment; that while the operation was going on, she suffered from the excessive heat and called off the machine on three occasions in the space of 25 minutes; at the termination of the treatment her head was burned and blistered in several places and from a few spots blood was oozing; these accidents happen sometimes but not often; she was then told that she would be given the “water wave”; she refused to take it then, because there was an extra charge of $1.50 for it, although there could be no permanent wave without a water wave; presented by the defendant with a bill for $9.S5, composed of $7.60 for the permanent wave, 75 cents for the shampoo, and $1.50 for the water wave, she denied owing more than $7.60, but finally offered to pay $8.35, being $7.60 for the permanent wave and 75 cents for the shampoo, but positively refused to pay for the water wave because, she said, she had refused to take it and had not taken it; thereupon a loud and animated discussion took place between the plaintiff and Samuel Friedman and he told her that she would not leave his place until she had paid the full bill, $9.85, and with that he proceeded to close the exit door and stood over it to carry out his threat. Mrs. Friedman, who was occupied in the adjoining room, hearing the discussion, walked into the parlor to ■inquire into the cause of it; her husband directed her to call for the police through the phone, which she did; at the expiration of some twenty minutes, during which the defendant guarded the door and the plaintiff was restrained from leaving the room, a policeman arrived and inquired as what was the trouble; the defendant told him that the plaintiff refused to pay him what she owed him, to which the officer answered that he was not a collector and that he had better resort to a Civil Court; on the suggestion of Mrs. Friedman, Mr. Friedman accepted of the plaintiff $8.35 and she walked out with the policeman. At the expiration of several hours she visited a doctor who cauterized her scalp and put salve upon it, and for two weeks she could not sleep because it pained her so; she finally went to a barber and got her hair trimmed; it was three weeks before the scabs came off, leaving scars on her head.

It was certainly an illegal exaction on the part of the defendant to demand payment for the shampooing and the water wave. He had advertised “permanent wave” for $7.60 and in-as-much as the shampooing and the water wave formed part of the “permanent wave” the defendant had no right to demand more than $7.60 for the services necessary to attain a complete “permanent wave.”

We consider $500 a reasonable amount of damages for the injuries inflicted upon the plaintiff.

We are of the opinion, however, that $500 is excessive for the illegal detention of the plaintiff for some twenty minutes without pecuniary loss and in the presence of only a few persons.

False imprisonment has been defined in Crossett vs. Campbell, 122 La. 650, 48 So. 141. It is the unlawful restraint of the liberty of locomotion of a person. See Wells vs. Sheriff, 52 La. Ann. 723, 27 So. 185.

In the case of James vs. Wilson, 119 La. 491, 44 So. 275, plaintiff was arrested at a railroad station, marched to the Mayor’s office, where he was chained to the floor with a chain fastened to the floor for two hours — arrest groundless. Damages $500.

In the case of Smith vs. Dulion, 113 La. 882, 37 So. 864, plaintiff was arrested in the street of Covington and after a struggle and with the assistance of two citizens dragged to jail, where he remained about an hour. Damages $100; same in Roberson vs. Town of Arcadia, 134 La. 117, 63 So. 758. In Wells vs. Sheriff, 52 La. Ann. 727, 27 So. 185, the plaintiff was arrested at his home at 9 o’clock at night, carried to Monroe and incarcerated in jail for eight days. Damages $300.

In Gann vs. Varnado, 51 La. Ann. 370, 25 So. 79, the plaintiff on September 24th was arrested “publicly in his own store in the [presence of his clerks and customers and in the near vicinity of his own family and residence” and carried to the parish jail, where he was kept in custody by the sheriff until September 28th, when he was released on a bond of $500 for his appearance in Court to answer said charge of robbery of one bale of cotton. Damage $500. '

In Pace vs. Aubrey, 43 La. Ann. 1052, 10 So. 381, the defendant on October 13th charged plaintiffs with arson and caused their arrest and incarceration until November 4th, when they were discharged. Damage $500.

In Block vs. Meyers, 33 La. Ann. 776, the plaintiff was arrested on January 21, 1874, while at dinner with his family; he was taken to the custom-house and released the next day at three o’clock. Damages $1000.

In Hardy vs. Stevenson, 29 La. Ann. 173, the plaintiff, a woman, was arrested, charged by defendant with insult and abus'e and incarcerated in prison where she remained in’ a filthy cell for about ten hours. Damages $1500.

King vs. Dittrich, 28 La. Ann. 243, imprisonment. $1000. 24 La. Ann. 336.

Mortimer vs. Thomas, 23 La. Ann. 163, under arrest three and a half hours, and detained six days. $500.

Block vs McGuire, 18 La. Ann. 417. $150.

In Hall vs. Acklen, 9 La. Ann. 219, the plaintiff was arrested, taken a considerable distance before a magistrate and committed, to prison where he remained for the space of five days. $1250.

It will be perceived that in all the above cases the plaintiff had been incarcerated in a public prison and subjected to all the humiliation of such a condition. In the present case the plaintiff was merely deprived of her freedom of locomotion for some twenty minutes in an elegant parlor. We think $250 sufficient compensation. A' larger amount would resemble vindictive damages.

It is therefore ordered that the judgment herein be amended and reduced in capital to seven hundred fifty dollars, and as thus amended that it be affirmed at the cost of defendant in both Courts.


author: WEBB, J.

text:
    No. 2493
    Second Circuit
    WHITEHEAD v. E. J. DEAS CO., INC.
    (June 28, 1928. Opinion and Decree.)
    (July 14, 1928. Rehearing Refused.)
    (October 2, 1928. Writs of Certiorari and Review denied by Supreme Court.)
    John F. Philips, of Shreveport, attorney for plaintiff, appellee.
    L. C. Butler, of Shreveport, attorney for defendant, appellant.
   WEBB, J.

The plaintiff, on October 9, 1926, filed this action, in which he alleges that he had been employed by the defendant as night operator of a machine used in excavation work for three nights of ten hours each (October 3rd, 4th and 5th) at the rate of ninety cents- per hour, and that he had been discharged and that, the defendant had refused to pay him the amount of wages due, or twenty-seven dollars, after demand, and prayed for judgment for the amount of wages alleged to be due, and penalties under Act No. 150 of 1920.

The defendant, in answer, admitted that the plaintiff had been employed to operate the machine, and that he had made a demand for payment of wages, but alleged, in substance, that the plaintiff had been employed temporarily or under the express agreement that he was competent to operate the machine, and that the rate of compensation had been agreed upon with express reference to his competency, and that it had developed that the plaintiff was incompetent and had not worked for the full period of ten hours per day, and while operating the machine had damaged it to the extent of more than two and 50-100 dollars, which should be deducted from any amount due him, and that the plaintiff’s incompetency had caused defendant to sustain heavy losses, and, further, that notwithstanding it had disclaimed liability it had, on suit being filed, offered to pay plaintiff a reasonable sum for the work done, but that plaintiff had refused to accept any sum less than nine dollars per day from the date of the employment.

Trial was had on February 19, 1925, and judgment was rendered in favor of plaintiff for the amount of the wages claimed and penalties to the date of the judgment, excluding Sundays and the period pending the trial and decree, aggregating one thousand fifty-three dollars., with legal interest from date of judgment, from which defendant appealed.

The claim for penalties is based upon Act No. 150 of 1920 which reads as follows:

“An Act
“To provide for the payment within twenty-four hours after discharge of laborers and employees by every employer when demanded by the discharged laborer or employee at the place where said employee or laborer is usually paid, and providing that failure to pay such discharged laborers or employees upon such demand shall make the employer liable for their full time from such demand until they are paid, or tendered payment.
“Section 1. Be it enacted, etc., that it shall be the duty of every person, individual, firm or corporation employing laborers or other persons of any kind whatever when they have discharged said laborer or other employee, to within twenty-four hours after discharged pay the laborer or employee the amount due him under the terms of his or their employment, whether by the day, week or month upon demand being made by the said discharged laborer or employee upon his employer at the place where said employee or laborer is usually paid.
“Section 2. Be it further enacted, etc., that any individual, firm, person or corporation employing laborers or others in this state who shall fail or, refuse to comply with the provisions of section 1 of this act, shall be liable to the said laborer or other employee for his full wages from the time of such demand for payment by the discharged employee until the said person, firm or corporation shall pay or tender payment to the amount due such laborer or other employee.”

The defenses set up related both to the right of plaintiff to the wages claimed as well as to the penalties, the defenses urged, as against the indebtedness, being that plaintiff had represented himself as competent to operate the machine, when he was incompetent, thereby causing defendant to sustain heavy losses 'in excess of any amount due’ him, and that he had not put in full time, and had damaged the machine, for which deductions should be made, and the defenses urged, as against the penalties, being that his employment was dependent upon his competency to operate the machine, his right to claim the wages was dependent upon his competency, and that thus the amount of wages was not fixed under the terms of the agreement, and that plaintiff could not demand the penalties under the statute, and further, that the defenses interposed to the claim for wages were made in good faith, and that defendant was willing at all times to pay plaintiff the amount justly due, and that plaintiff should not be permitted to recover the penalties, even though the defenses to the claim for wages were not established.

The evidence offered went beyond the pleadings, and without relating it, we are of the opinion that while it established that plaintiff’s employment was on trial, and dependent upon his ability to operate the machine efficiently, yet it shows that the amount of wages to be paid was agreed upon, and it does not establish that plaintiff had damaged the machine, or that he had not put in full time, and although the evidence shows that he was not thoroughly familiar with the machine and did not operate it efficiently, he was entitled to receive the wages agreed upon for the time he worked, and that he was under the statute entitled to demand the penalties for non-payment however, on trial it was shown that after the suit had been filed defendant offered to pay the full amount of wages claimed, and that plaintiff would not accept the amount due for wages without the payment of the penalties.

The statute must be strictly construed as to the right to recover penalties, against which equitable defenses may be interposed (Deardorf vs. Hunter, 160 La. 213, 106 So. 831), and the evidence showing .that the defendant, although urging that the employee was not entitled to be paid the wages claimed, offered to pay same, we think that the offer should have been accepted and further accumulation of penalties stopped (St. Louis Southwestern Ry. Co. vs. Bryant, 122 S. W. 996; Robinson vs. M. L. Co., 204 Pac. 671), and that plaintiff cannot recover penalties after the date of the offer to pay the amount of wages claimed.

As to the penalties which had accumulated prior to the date of the offer to pay, the amount claimed for wages, the evidence failing to show that the defendant was entitled to make any deductions for alleged damages or failure of plaintiff to put in full time, the defendant is liable for such penalties, which the evidence shows amounted to fifty-four dollars.

It is therefore ordered that the judgment appealed from be avoided and set aside, and that plaintiff have and recover judgment against defendant in the sum of twenty-seven dollars, the amount of wages earned, and fifty-four dollars for penalties or for the total sum of eighty-one dollars, with legal interest from judicial demand, plaintiff to pay the cost of the appeal.


text:
    No. 10,244
    Orleans
    THE GARDEN CONSTRUCTION & SERVICE CO., INC., v. WAGUESPACK
    (June 4, 1928. Opinion and Decree.)
    (July 7, 1928. Rehearing Refused.)

      Wm. McL. Fayssoux. of New Orleans, attorney for plaintiff, appellee.
    W. J. & H. W. Waguespack, of New Orleans, attorneys for defendant, appellant.
   JONES, J.

Plaintiff, as subrogee of Harold J. Neale, sued defendant on March 7, 1923, on quantum meruit for five hundred sixty-five and 20-100 dollars, the sum alleged to be due for labor, filling and plants furnished at his residence, 15 New-comb Boulevard, in this city, between July 17th and September 6, 1922.

The itemized account filed under Judge’s order upon defendant’s plea of vagueness shows the following:

460% hours of labor at 50c per hour $230.13 113 loads of filling at $2.50 per load 282.50 For shrubs, manure and lumber ________ 52.57

Defendant answered as follows.

In July, 1922, he made a verbal contract with plaintiff to grade and fill terrace in front of and around his residence on his lot at 15 Newcomb Boulevard, measuring 60 feet by 119 feet, to plant grass, shrubs, vines, flowers and fix the yard, all for the sum of two hundred dollars; that Neale did not carry out his contract in any particular and that after two months of useless waiting he was obliged, after putting Neale in default, to employ Werner, another gardener for the reasonable price of eighty-one and 50-100 dollars to complete the partially performed contract.

Finally, as plaintiff in reconvention, defendant prayed for a judgment against plaintiff in the sum of eighty-one and 50-100 dollars, as per the itemized receipted bill of the second gardener, Werner.

After the taking of voluminous testimony both by commission and in open court, there was .judgment for plaintiff in the amount claimed with dismissal of reconventional demand.

Defendant has appealed.

As the oral evidence on the existence of contract vel non is highly conflicting and in many respects contradictory, we have based our conclusion on this point largely on the letters of plaintiff and defendant.

On August 7, 1922, defendant wrote plaintiff as follows:

“August 7th, 1922.
“Mr. Harold J. Neale, “1303 Calhoun St., “City.
“Dear Sir:
“I am today in receipt of your bill for $176.50, which I am returning to you as it is evidently in error.
“I made a contract with you whereby you agreed to grade, terrace, fill, plant grass, shrubs, vines on house and some flowers for $200.00 and as you expressed it put the yard in good condition with a few shrubs and flowers.
“Up to the present you have only planted grass, and graded yard, which by the way will have to be gone over, as it is not quite level in the back, and the terrace in the front has slid slightly; also you have not touched' the ground between sidewalk and street.
“I would appreciate your rushing the balance of the work, all possible, as I am anxious to get finished.
“Very truly yours,
(Signed) “F. P. Poche Waguespack “FPW—
“Personal
“15 Newcomb Blvd.”

On August 9th, defendant again sending the bill answered in part, as follows:

“I note that you say you have a contract with me whereby I agreed to grade, terrace, fill, plant grass, shrubs, vines on house and some flowers for $200.00. It is my recollection that the price agreed upon was between $200 and $250.00, for which amount. I was to do all possible and make a satisfactory showing. This I intend to do. You will remember that after our first agreement I talked with you in the back yard regarding filling and you' asked what it would cost and I said it would take about 20 to 25 yards of filling and the cost would be about $3.00 per yard. You will note that I obtained it for you at $2.50 iper yard. I expect to have to patch the terrace for some time to come, as I explained to you that it might crack and not to worry about it if it should. When the grass roots become established the soil will remain more stationary. I will have the cracks patched at once and intend to finish the planting of grass between the sidewalk and the street at the same time.”

It will be noted that Neale in this letter does not deny the contract alleged by plaintiff, but says it was his recollection that he had agreed to do “all possible and make a satisfactory showing” for a price not definitely fixed, but somewhere between two hundred dollars and two hundred fifty dollars.

On August 15th, defendant again returned Neale’s bill and again wrote that the agreed contract price was two hundred dollars, not two hundred fifty dollars, that yard and terrace were not “holding up” and that he would not send check for two hundred dollars until the work was satisfactorily completed.

On August 17th, Neale wrote that he had not planted shrubs and vines because he did not think defendant was satisfied with the grading and he wished that properly done before going further, that he was leaving the City until September 5th and would be represented by Chase, if defendant wished anything.

Apparently there was a break in the correspondence for thirty days as the next letter is one from defendant, dated September 16th. In this letter defendant returned Neale’s bill for five hundred sixty-five and 20-100 dollars, dated September 14th and refused to recognize it. He again stated that he has a contract for two hundred dollars, by which Neale was to grade, terrace, plant, etc., that work was incomplete, and he formally notifies Neale that he will .have some one else complete the work and hold him for damages, if the contract it not executed by October 15th.

On September 21st, Neale wrote return- ■ g Ole bill for five hundred sixty-five and 20-100 dollars and giving a history of the case from his viewpoint. In this letter he says when he was asked by defendant to make a contract for the work, he said he preferred having someone else do the actual work, under his supervision, unless defendant would permit him to draw up complete plans and specifications.

“You asked me what could be done for $200.00 and I said I thought it would make a fair start and be sufficient for the present, but that price would not include my fee of $50.00. I did say that I would not make the 10% charge if I had the work done by my organization. You then asked if $250.00 would cover and I said I would try and make a satisfactory showing, and if you desired I would make that amount go as far as it would and then advise you. This you agreed to and the work was done and you were notified on the first of August by the aforementioned bill dated July 31st.
“You returned the bill and under date of August 9th I made you a full explanation of it and returned the bill to you. On Aug. 15th you again returned the bill and made further complaints. Upon receipt of that letter, I went to your place with Mr. Chase and Mr. Ramsey to look over the work. While looking it over you came out of your house and we all discussed the work done, as you no doubt recollect. I explained to you that I was leaving the city for about three weeks and wanted to have these gentlemen carry on the work during my absence, and advised you that any agreement or changes made with these gentlemen would ■ be the same as if made by me. You complained at that time that the grade of the back yard was not satisfactory to you. I said it was filled as much as you were told it would be under the original price that you specified as being willing to expend. You said you wanted more filling and I told you I would have it done but that it would cost you more than the original pr'ee, as you would have to pay' for the additional material and labor, to which you agreed. I agree to repair the terrace in front without further charge, but I impressed it on you that you were to pay for the extra work done in the back yard.”

Here Neale admits that he was to repair the terrace at his own expense.

It will be noted that Neale claims In this last paragraph that defendant agreed verbally on August 15th at his residence in the presence of Chase and Ramsey to pay for back yard filling additional to that provided in the original contract, as the grading of the back yard was not satisfactory.

This purported oral agreement of defendant is Neale’s sole justification for nearly tripling the bill and even the most credulous could hardly extend a verbal promise to pay for additional filling in the back yard as authority for going to such apparently extreme lengths in both filling and labor.

On September 27th, defendant wrote a long letter again insisting upon completion of the contract, denying .all verbal changes and specifying the many particulars in which the work was totally unsatisfactory. We quote from this letter the following relevant paragraphs:.

“This is true; it is also true „that we discussed price, etc., for some time, but I distinctly told you that I would not make any agreement unless I knew the exact cost, and that the ©rice agreed upon must include fee for your services. * * *
“* * * I asked you whether you could take job for $150.00 to $200.00; to which you replied ‘Yes, for $200.00 I can do very nicely,’ and as you expressed it, you would ‘Fill, grade, terrace, plant grass, shrubs, vines, and some flowers, and fix the yard in first class condition for $200.00 and this was the agreement between us.
“You, Mr. Chase, Mr. Ramsey, and myself then inspected the work that had been done.
“The front terrace had slid and was full of holes, the back yard was not leveled; grass had not been properly planted, or in any event had not properly grown, side yard and neutral ground between sidewalk and street had not been touched, and neutral ground was full of rocks.
“You yourself admitted work was not properly done, and told Mr. Ramsey he would have to do the work over again as you could not afford to ruin your reputation with such a job. You told him to order more filling for the back yard, replant grass, and reconstruct terrace which you advised your foreman had never been lined off properly in the first place.
, “When you mentioned ordering more filling I suggested to you that you get some different filling and not get any more sand, to which you replied that you knew your business, and that sand was the proper thing, and that you would show me in the final results. You also advised me that you were leaving the city, and that Mr. Chase would take your place in your absence. And at this time the work that had been done was in such a condition that ‘It would ruin your reputation.’
“* * * Today the yard is in a terrible condition. In the back it is very uneven, sandy, and with patches of grass here and there, and what grass there is, is not of good quality, but are for the most part weeds. No attempt has been made to plant a vine, shrub, or flower, and you send me bill for $565.20 and expect me to pay same, or to pay, as you stated over the phone the other day, for materials used.
“You admitted to me over the phone the other day when I called you up on receipt of bill, that you did not expect me to pay for labor, as you knew the work had not been properly performed, and that you had discharged your foreman for incompetency, but that you expected to be paid for materials used.”

In his testimony, ¡page 4, Neale confirms defendant’s statement in part as follows:

“Defendant said, ‘Would $150.00 furnish me any shrubs?’ I said, ‘It all depends on how much time it takes to do the first cleaning up and getting the place in readiness for the plants.’ He said, ‘Would $200.00' do anything?’ I said, ‘$200.00 would make you a nice start and get it ready for the fall planting.’ ”

Chase differs from1 Neale as to conversation of August 15th. He says he heard nothing at that time of any prior agreement or prior bill, but Neale agreed to do all additional grading free of charge and defendant agreed to pay for “any further filling or anything to beautify the place.”

Chase further says that on August 16th, after Neale left, defendant' told him of the contract for two hundred dollars and he wired Neale for further instructions before going on.

On cross-examination, he states that the general effect of the conversation was that the grading had not been done, i. e. the filling up of the ruts in the terrace, where the excessive rains had washed the earth away.

He admits that he went there only three times during the three weeks from August 15th to September 5th, when he was supervising the work, which was directly managed by Ramsey as foreman, that no planting whatever was done during that time, but all the labor was spent in filling up the back yard, in regrading the terrace and in seeding Bermuda grass.

The evidence of Ramsey, the foreman, whom Neale says he. discharged after this job was finished, was taken by commission in Worcester, Mass. After testifying that the account was correct from records in his diary, he testifies as follows:

Interrogatory No. .10:

“Were you present at any conversation or discussion between Neale and defendant wherein manner of work done and to be done was discussed, if so kindly state what said conversation or discussion transpired?”
Ans. “On August 10th, I was present when defendant and Neale were discussing the appearance of some spots on the terrace not full covered, Neale agreeing to correct and same was done on the following day.”

He further testifies that most of the labor was used iri grading, which was frequently stopped by rain, but some labor was spent in sowing grass and cleaning up, that “slips” were signed for each load of filling.

It is thus seen that neither Chase nor Ramsey agree with Neale as to the details of the purported conversation of August 15th.

Although Bartholomew testified that he had furnished a large number of loads of filling, he could not give the exact number and the signed slips were never found.

As the record shows that the lot was only 60x119, that a two-story house was built thereon with a ten-foot concrete driveway from front to rear and the former owner, Werk, had, prior to sale to defendant,' nearly -filled the back ya,rd to grade, it hardly seems-probable that 113 yards of filling could have been wisely or properly used thereon. Furthermore, the terrace had also ■ been built originally by Werlt and the regrading was necessitated solely by the fact that the defendant had a porch on the front.

Neale admits that defendant at first insisted on a fixed price for work without plans; it hardly, seems probable that he would have given “carte blanche” for practically ' unlimited material and labor three weeks later cn August 15th, especially when the record shows that he was justly complaining at that time both of the quality and quantity of the work.

For above reasons we conclude that defendant had a contract with Neale for the work at a fixed price of two hundred dollars.

As to reconventional demand, Werner, an experienced reputable florist, testifies work was badly done, when he and one man finished the terrace and planted ail the grass and shrubs in two and one-half days for eighty-one and 50-100 dollars, which amount he had been paid by defendant. He charged for grading terrace in front of residence, twenty-five dollars and for shrubs, plants and winter grass fifty-six and 50-100 dollars. Of this amount five dollars was for winter grass and six dollars for planting boxes upstairs. He would have charged only one hundred fifty dollars for all the work done there by Neale.

On cross-examination he says he -regraded the terrace with dirt already there and then spaded it up for the winter grass. His bill was dated November 1st and paid November 13, 1922.

Defendant, as plaintiff ip reconvention, is not entitled to recover for the five dollars winter grass, for the six dollars upstairs planting, or for spading up terrace which we estimate at five dollars, as they were not included in the contract, but he is entitled to recover for the balance of the amount paid Werner as the regrading of the terrace and planting of shrubs was specifically covered.

For above reasons, it is now ordered, adjudged and decreed that plaintiff, the Garden Construction Service Co., Inc., have judgment against defendant, F. P. Poche Waguespack, in the sum of two hundred dollars, with legal interest from judicial demand.

It is further ordered, adjudged and decreed that defendant, F. P. Poche Waguespack, as plaintiff in reconvention, have judgment against plaintiff, The Garden Construction & Service Co., Inc., in the sum of sixty-five and 50-100 dollars, with legal interest from November 13, 1922.

It is further ordered that defendant pay the costs of the lower court and plaintiff the costs of this appeal.


text:
    No. 11,364
    Orleans
    TRUSTEES LOAN AND GUARANTY CO., INC., v. RICHARDSON
    (July 2, 1928. Opinion and Decree.)

      Milling, Godchaux, Saal & Milling, of New Orleans, attorneys for [Plaintiff, appellee.
    Lloyd Cobh, of New Orleans, attorney for defendant, appellant.
   CLAIBORNE, J.

The plaintiff alleges that he is the owner and holder of a promissory note for $250 made by the defendant, Joseph B. Richardson, dated December 30, 1922, payable to the order of plaintiff, the Trustees Loan and Guaranty Co., Inc., in equal installments of $21 on January 15, 1923, and on the 15th of each succeeding month, the failure to pay any one installment within ten days after it becomes due to cause the maturity of all installments; that said note bears eight per cent per annum interest from date until paid, together with fifteen per cent attorney’s fees in case of suit; that eighty-nine dollars have been paid on account of said note, leaving a balance due of one hundred sixty-one dollars, for all of which plaintiff claims judgment.

A copy of the note in the record is signed.

“J. B. Richardson.”

Citation was addressed to the defendant, “Joseph B. Richardson,” and served upon him by leaving the same on December 12, 1927, at No. 361 Broadway in the hands of a servant who refused to give her name.

In the absence of any appearance, judgment by default was rendered on December 23, 1927, against the same Joseph B. Richardson for $161 with interest and attorney’s fees as prayed for.

Notice of judgment addressed to Joseph B. Richardson was served on December 27th “by leaving the same at his domicile, No. 361 Broadway, in the hands of the maid residing there,” “defendant being absent at the time of said service.”

On January 11, 1928, the plaintiff issued a fi. fa. against the defendant, “Joseph B. Richardson,” by virtue of the above judgment.

It appears that on April 27, 1927, before filing the above suit, the attorneys of the plaintiff addressed to the defendant, the following letter:

“In re: Claim of Trustees Loan and Guaranty Company.
“Mr. Joseph B. Richardson, 5325 St. Charles Avenue, Apartment G. New Orleans, La.
“Dear Sir:
“We have had placed in our hands for collection by the above concern 'claim against you amounting to $161.00 with interest and attorney’s fees, being a balance due upon a promissory note in the sum of $250.00 dated December 30th, 1922, payable to the order of Trustees Loan and Guaranty Company, Inc., in equal installments of $21.00 each on or about the 15th day of each month beginning with the 15th day of January, 1923, and bearing interest at the rate of 8% per annum from date until paid, together with 15 per cent additional as attorney’s fees on the unpaid amount. If you are disposed to settle this matter amicably, we would be pleased to hear from you or have you call at this office at any time. Failing however, to hear from you by Monday, May 2nd, 1927, we shall be obliged to take such action in the matter as our client may direct.
“Very Truly Yours,
(Signed)
“Milling, Godchaux, Saal and Milling.”

On January 26, 1928, the plaintiff took the following rule:

“On motion of Trustees Loan and Guaranty Co., Inc., through its attorneys, Milling, Godchaux, Saal and Milling, and on suggesting to the Court that mover has secured in this proceeding a final judgment against Joseph B. Richardson and has had issued a writ of fieri facias and under said writ has seized certain furniture which was located in the premises No. 361 Broadway Street; and on further suggesting to the Court that one John B. Richardson has filed with the Constable of the First City Court a bond to stand in lien of said furniture and has also filed an affidavit alleging himself, the said John B. Richardson, to be the third person and to be the owner of the furniture and has withdrawn the furniture from the custody of the said Constable, and on further suggesting to the Court that the said John B. Richardson who has filed said bond and withdrawn said furniture is the identical J. B. Richardson who signed the promissory note upon which this suit is predicated and on further suggesting to the Court that in response to a letter written by the above named attorneys herein addressed to Joseph B. Richardson at his former address No. 5325 St. Charles Ave., Apartment G, New Orleans, under date of April 27, 1927, a copy of which said letter is annexed hereto, the said John B. Richardson called upon the said attorneys in person and acknowledged the debt to the said attorneys, stating that he had just been married and had purchased practically everything which he owned on a time basis and that he was at that time thoroughly unable to pay the indebtedness without depriving his bride of the necessities of life, and at that time requested that he be given until March 1st, 1928, to pay the indebtedness and on further suggesting to the Court that thg designating of the said John B. Richardson as Joseph B. Richardson was an error of which the said John B. Richardson was cognizant and aware before this suit was instituted, having called upon said attorneys in response to said letter addressed to Joseph B. Richardson; and on further suggesting -to the Court that the citation in said suit was addressed to Joseph B. Richardson, and according to the Constable’s returns, was served on the said Joseph B. Richardson, No. 361 Broadway Street, this City, but which was in truth and in fact served upon said John B. Richardson, the said John B. Richardson being the only male person over the age of 21 years by the name of Richardson living at that address; and on further suggesting to the Court that the said John B. Richardson has actual knowledge of the error in the name in said citation when same was served upon him, and on further suggesting to the Court that the proper remedy of the said John B. Richardson was by exception io the citation at the time; and on further suggesting to the Court that the said John B. Richardson is now estopped from denying that he is the identical person who had been served and who signed the said note upon which this suit was predicated, and that the seizure herein made should be maintained against the said John B. •Richardson and that the said property herein seized belonging to the said John B. Richardson should be sold in satisfaction of the judgment obtained in this cause; it is ordered by the Court that the said John B. Richardson do show cause on the 7th day of February, 1928, at 1.30 o’clock, P. M., why the said seizure of the property which he has alleged in his affidavit belongs to him and now against the bond which has been filed in lien thereof should not be maintained; and why the said John B. Richardson or his bondsman should not be condemned to pay the final judgment herein rendered.”

There is in the record no affidavit by anyone claiming property.

John B. Richardson answered that he had never been made a party defendant in this suit, that this Court is without jurisdiction, that the rule discloses no cause of action, that the plaintiff has not filed any bond with the Sheriff and that this rule is a method of altering the judgment not recognized by law, and he denied all the allegations of the rule.

After trial the Judge entered the following judgment:

“Rule absolute, ordering the Constable to continue with the seizure; in all other respects dismissed. Exceptions filed by defendant dismissed.”

From this judgment John B. Richardson has appealed, and has filed the transcript in this Court.

Judge’s certificate reads as follows:

“I hereby certify the foregoing to be a true and correct transcript of the docket of this Court in the above entitled and numbered cause, embracing all the proceedings had; and that attached hereto are all. the papers on file, except the testimony taken on the trial of the rule herein filed which was not reduced to writing and except the appeal Bond, a copy of which is herewith transmitted.”

This Court can consider only such documents and evidence as form part of the transcript; and where it is evident that the ■ transcript does not contain all the evidence upon which the case was tried, this Court will not reverse the judgment but will dismiss the appeal ex proprio motu. 1 La. Dig. p. 489, S. 430; Lanfear vs. Devaind, 20 La. Ann. 161; Nugent vs. Stark, 34 La. Ann. 631; Harrison vs. Soulahere, 52 La. Ann. 710, 27 So. 111; Bank of Minden vs. Lake Bisteneau Lbr. Co., 47 La. Ann. 1432, 17 So. 832; Thibodeaux vs. Winder, 39 La. Ann. 227, 1 So. 451; Chaffe & Sons vs. Walker, 39 La. Ann. 37, 1 So. 290; State vs. Johnson, 37 La. Ann. 621; Morrison vs. Lynch, 36 La. Ann. 611.

Appeal dismissed.


author: WEBB, J. ODOM, J.

text:
    No. 3257
    Second Circuit
    KELLY v. LUDLUM
    (June 28, 1928. Opinion and Decree.)
    (July 14, 1928. Rehearing Refused.)
    (October 2, 1928. Writ of Certiorari and Review denied by Supreme Court.)
    J. B. Thornhill, of Bastrop, attorney for plaintiff, appellant.
    Madison and Madison, of Bastrop, attorneys for defendant, appellee.
    ODOM, J., dissents for written reasons.
   WEBB, J.

Plaintiff, B. E. Kelly, while walking along the highway in the daytime, was struck and injured by an automobile which approached from his rear, and in this action, brought against the owner of the automobile, J. W. Ludlum (who was riding in the automobile, which was at the time being driven by his chauffeur) to recover damages, judgment was rendered rejecting plaintiff’s demands, from which he appeals.

The evidence establishes that plaintiff was walking along the right side of the roadway and that the automobile was being driven on the same side in such relative position to that of plaintiff that if each had continued their courses without deviation the automobile would have passed plaintiff by a margin of about one and one-half feet, and that .the driver of the automobile sounded the horn as the automobile approached (of which plaintiff did not take any apparent notice and which he claims not to have heard) but did not change the course of the automobile until about the moment of the collision when plaintiff deviated from his course about two feet, thus placing himself in front of the automobile, when the driver of the automobile vainly attempted to avoid striking him by changing its course.

The evidence does not show with certainty the course of plaintiff’s deviation, but it shows that he suddenly stepped to his left a distance of about two feet, and that he did so in apprehension of being struck by the automobile, the presence of which he became aware of at that time, either from hearing the horn sounded in close proximity to him or from a warning cry of the person with whom he had been walking along the roadway.

It is conceded, of course, that plaintiff was not negligent in walking along the roadway, and it is, we think, well settled, that he did not have to maintain a lookout for automobiles approaching from his rear (McKenna vs. Lynch, 233 S. W. 175; Davis vs. West, 191 N. W. 506; Blashfield, Automobiles, volume 2, page 1057), having the right to assume that the driver of the automobile would exercise care in maintaining a lookout for him, and the sole question is, whether or not the driver did maintain such lookout and exercise ordinary care in operating the automobile.

The statute (section 17, Act 120 of 1921) requires the driver of an automobile approaching a pedestrian who is upon the traveled portion of the highway, shall slow down and give a timely signal, and while the driver of the automobile may in the present instance have literally complied with the statute, the speed at which the car was being driven did not enable the driver to stop instantly and the evidence does not indicate that plaintiff heard the signals or was aware of the approach of the automobile until the moment of the accident.

The driver of the automobile had a clear view of the situation as the car approached plaintiff and there was ample time, distance and space for him to have changed the course of the automobile so as to allow a greater margin of safety, and when the plaintiff apparently did not notice the signals given he was bound to realize the hazard of driving the automobile so close to plaintiff due to the fact that plaintiff might deviate from his course or that he might be taken unawares by the sudden discovery of the automobile and make such a deviation as to bring him in front of the automobile (Blashfield, Automobiles, volume 1, page 597).

Each of the parties had the right to use the highway b,ut the danger or hazard from a collision was much greater for plaintiff than for the driver of the automobile, and the driver was bound to take notice of the danger and to drive the automobile accordingly; that is, the driver of the automobile was charged with notice that plaintiff might vary slightly from his course or that he might be taken unawares by the discovery of the automobile in close proximity to him and involuntarily place himself in front of the automobile, and the evidence showing that the driver operated the car with such danger in view and that the accident resulted from the danger which should have been anticipated by the driver of the automobile, the owner of the automobile, under whose direction the automobile was being operated, was liable.

Plaintiff was knocked off of the road by the collision, sustaining an injury to his head which has caused a numbness in the muscles of his face and also a noticeable defect in his eye, and his leg was bruised, causing the development of a varicose vein, and he was disabled from following his occupation for twenty-two days, ten of which he spent in a hospital» where he suffered with severe pain for about five days, and although he has been able to follow his occupation, he suffers at intervals with severe headache, and considering the injury and its apparent results and the pain suffered by him and loss of time and expenses, we think one thousand dollars would be a minimum allowance. Ferringer vs. Crowley Oil Co., 122 La. 441, 47 So. 763; Jones vs. Tremont Lumber Co., 139 La. 616, 71 So. 862; Quintell vs. Ferren, 147 La. 153, 84 So. 570.

The employer of defendant, through an insurance carrier, United States Fidelity & Guaranty Company, paid plaintiff compensation for loss of time and his hospital and physicians’ fees, amounting to one hundred forty-two and 17-100 dollars, and the insurance company filed an intervention asking for judgment against defendant for that amount, to which plaintiff has not made any objection, and the allowance will be made from the judgment awarded plaintiff.

It is therefore ordered that the judgment appealed from be reversed and that plaintiff, B. E. Kelly, have and recover judgment against defendant, J. W. Ludlum, in the sum of eight hundred fifty-seven and 83-100 dollars, with legal interest from date, and that the intervenor, United States Fidelity & Guaranty Company, have and recover judgment against the defendant, J. W. Ludlum, in the sum of one hundred forty-two and 17-100 dollars, with legal interest from date, and that the defendant pay all cost of suit.

ODOM, J.

I dissent from the majority opinion in this case. It is not held that the driver of the automobile was negligent in the operation of the car by exceeding the speed limit, by failure to slow down or by failing to give a warning signal.

The facts show and it is held that if the pedestrian had kept his course over on the right hand side of the road, he was in no danger. But he suddenly, and apparently without any reason whatever, stepped two feet out into the road directly in front of the car when it was so close upon him that the accident was unavoidable. This sudden move, without looking back, was gross negligence. The driver of the car had a right to assume that the pedestrian, who was walking straight ahead in a safe place on a ‘country road, would keep his course and stay in a safe place and would not, without looking back, make a sudden move toward the center of the road in the track of passing cars.

I think this negligence on the part of the pedestrian was the proximate, if not the sole cause of the accident.

It is held that the driver of the car was guilty of negligence in not allowing a greater margin of safety. There was ample margin of safety, and the pedestrian would not have been injured if he <had been ordinarily prudent. He was not frightened by the sudden approach of the automobile. He says he did not hear the signal and does not explain why he stepped out into the road.

But if it be held that the driver of the car was guilty of some negligence, it must be conceded that the negligence was very slight. I think, conceding that defendant was guilty of some negligence, the plaintiff’s contributory negligence in suddenly stepping out into the road is such as to bar recovery.