text:
    No. 10,055
    Orleans
    CHARLES MILES v. NEW ORLEANS PUBLIC SERVICE, INC.
    (March 1, 1926. Opinion and Decree.)
    (March 15, 1926. Rehearing Refused.)

      (Syllabus by the Oourt.)

    1. Louisiana Digest—Carriers of Passengers and Goods—Par. 25, 27, 28.
    The general obligation imposed by law upon a carrier to protect its passengers from injury by other passengers, strangers oj intruders, exists only when the danger is apparent, or when under certain circumstances the danger should have been anticipated.
    2. Louisiana Digest—Street and Interurban Railroad—Par. 21; Carriers of Passengers and Goods—Par. 27.
    The operators of a street car upon which a disturbance has been created by trespassers suddenly boarding the car for purposes of committing mob violence upon a passenger, are not obligated to desert their post of duty in order to summon necessary assistance for protection to the passengers.
    (Civil Code, Article 2315. Editor's note.)
    Appeal from Civil District Court, Parish of Orleans, No. 154,205, Division “B”, Hon. M. M. Boatner, Judge.
    This is a suit for damages against the street railway company because the plaintiff was assaulted while a passenger on a street car.
    There was judgment for defendant and plaintiff appealed. Judgment affirmed.
    J. J. Wingrave of New Orleans, attorney for plaintiff, appellant.
    Benj. W. Kernan, of New Orleans, attorney for defendant, appellee.
   BELL, J.

The plaintiff in this case, who was mercilessly beaten and assaulted while a passenger on a suburban street car near the City of New Orleans, sues the defendant carrier and its bondsman for damages in the sum of $5,000.00. Prom a judgment in favor of defendant, plaintiff has appealed. The act of negligence charged in the petition is that the railway company’s employees who were operating the car at the time of the assault encouraged several white men, members of the State National Guard encamped near the scene of the assault, to enter the car, and that by so doing, said employees were negligent in the performance of their duty 'to protect plaintiff, who was a passenger on said car. This is the sole act of negligence charged in the petition. The brief submitted to this Court by counsel for plaintiff urges, as a further act of negligence, that the employees failed to leave the car before or at the time of the assault and call for assistance, which would have enabled them to quell the impending riot or disturbance. There is no proof whatever in the record to the effect that the crew of the car, that is to say, either the motorman or conductor thereof, encouraged or offered any inducement or invitation to the parties who entered the car and assaulted the plaintiff.

The defendant denies generally the allegations of plaintiff’s petition, and, specially answering, avers:

“That they are informed and believe that on January 22, 1924, about 6:00 p. m., several members of the National Guard who were encamped at Metairie Road and Harlem Place, boarded the car of the Napoleon line, No. 661, and a fight between the members of the National Guard and some negroes who were in the car was started. That the disturbance was quelled, but after the car had proceeded a few blocks several soldiers boarded the car- and engaged in a general fight with negro passengers who were in the car. That the motorman and conductor made every effort to quell the disturbance and to ascertain the names of the soldiers who had been engaged in the difficulty, and without success.”

The facts, as set forth in the above quoted paragraph of defendant’s answer, we find to be substantially established by the evidence. Five witnesses for defendant and one for plaintiff all testify that the motorman and conductor of the car made every possible effort to quell the disturbance. Those same witnesses further testify that when the car in question left the terminus at Shrewsbury, there' was - a slight discussion or altercation between members of the two races then on the car, and that this first trouble had been entirely subdued when the car proceeded on its way for a block or more, and at that point some of the soldiers on the car chased a negro therefrom and pursued him along the track of the railway, and that the car, coming to a stop, again resumed its journey for a short - distance toward Metairie Ridge, when • soldiers who had been previously on the car and other soldiers stood on the track and forced the motorman to stop his car, and then boarded the car and without provocation brutally assaulted the plaintiff, a negro passenger, striking him on the head with the metal projection of the screens which separated the races, and that this projection penetrated the negro’s forehead at a point near one of his eyes, and caused the eye to be forced from its socket. These so-called “soldiers,” after indulging in this cruel and merciless attack upon the defenseless plaintiff, then left the car, and, though persistent effort was made on the part of defendant railway company to establish the identity of these assaulters, no results were obtained. There is further proof that the negro was brought in the car to the police station near Metairie Cemetery, and there turned over to the police authorities, who conveyed him to a hospital.

We have searched the record in vain for any acts of negligence which could fix liability upon the defendant in this case.

Plaintiff has testified that after he was injured the conductor of the car tried to put him off and leave him without assistance of any sort. There is no corroborative evidence to sustain this charge. While the Court has seldom had occasion in its experience to review a more pitiful case' than the instant one, nevertheless, as a proposition of law, the liability sought to be attached to the defendant in this case cannot be maintained.

The general rule of law regarding the high degree of care due by carriers to passengers, as well as the modification of the rule, almost universally observed in cases similar to that now under consideration, is clearly stated in Corpus Juris, Vol. 10, pp. 906, 907, verbo “Carriers,” par. 1334:

“Tbe carrier owes to a passenger tbe duty of exercising a bigb degree of care to protect bim from insult and injury by strangers or intruders on its cars or premises, if the danger is, or in tbe exercise of due care can be, known to tbe employees of tbe carrier and prevented by them, and if it fails in .its duty in tbis respect it is liable for the resulting injury. Thus ibe carrier may be liable for tbe robbery of a passenger by strangers, if by due diligence it could bave been prevented by those in charge of tbe conveyance. This duty, however, arises only when tbe danger is actually foreseen in time to prevent it, or is of such a nature and under such circumstances that it might be anticipated; and, in general, tbe carrier is not liable for tbe acts of third persons intruding into tbe waiting rooms or on tbe depot grounds, or within tbe cars, and causing injury to passengers, where tbe disorderly conduct which caused tbe injury could not have been anticipated or where tbe carrier’s employees, although knowing of tbe threatened danger, could not in tbe exorcise of due care prevent it.”

In tbe case of Pittsburg, Ft. W. & C. R. R. Co. vs. Hinds, 53 Pa. 512, a mob, defying tbe conductor, entered a train which bad stopped at a wayside station 'and started a fracas which resulted in injury to a passenger who sought to bold tbe carrier liable. Tbe court denied recovery, stating that while tbe carrier was bound to furnish a crew sufficient for tbe ordinary demands of transportation, it could not be held for failure to anticipate or provide against such an unusual 'occurrence. See also Fewings vs. Mendenhall, 93 N. W. 127.

In Batton vs. So. & North Alabama R. R. Co., 77 Ala. 591, tbe court, noting many decisions as to a carrier’s duty to exercise great care in protecting its passengers against violence of intruders or strangers, said:

“There are many well considered eases which support this view, but none of them fail to impose tbe qualification that tbe wrong or injury done tbe passenger by such strangers must bave 'been of such a character and perpetrated under such circumstances as that it might reasonably bave been anticipated or naturally expected to occur.”

This Court, in tbe recent case of Adkins vs. N. O. Ry & Lt. Co., et al., 1 La. App. 130, denied recovery to a colored passenger who was thrown from the platform of a street car by disorderly passengers attempting to escape from tbe car after raising a disturbance with tbe conductor who bad refused to honor certain transfers. We there held, citing many authorities, that tbe carrier was not liable in a street car fracas where tbe action of fellow passengers was unexpected, and the employees of the company were unable to' cope with tbe situation so as to afford protection to tbe injured passenger. Va. Ry. & P. Co. vs. McDemmicb, 86 S. E. 744.

We find no error in the judgment appealed from; it should be affirmed.


source: Caselaw Access Project

author: WESTERFIELD, J.

license: Public Domain

text:
    No. 9196
    Orleans
    SUCCESSION OF JOHN EVERETT, HARRY R. GOULD, Administrator, Appellant, v. NEW ORLEANS GREAT NORTHERN R. R. COMPANY
    (February 15, 1926. Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest—Prescription — Par. 78, 109.
    Claims arising out of tbe operation of railways by tbe Director General during Federal control, are, under Section 206 (a) of tbe Act of Congress of February 28, 1920, known as tbe “Transportation Act,” governed by tbe prescription “now prescribed by State or Federal statutes,” and in tbis State under Art. 3526, R. C. C. Tbe prescription is one year.
    (Civil Code, Article 2315. Editor’s note.)

      Appeal from Civil District Court, Div. “A”, Hon. Hugh C. Cage, Judge.
    This is a suit for damages resulting from a railroad accident. The Director General of railroads filed a plea of prescription, which was maintained.
    Plaintiff appealed.Judgment affirmed.
    Legier & Gleason and D. V. Doussan, of New Orleans, attorneys for plaintiff, appellant.
    Miller & Burns, of New Orleans, attorneys for defendant, appellee.
   WESTERFIELD, J.

Plaintiff sued the New Orleans" Great Northern Railroad. Company in damages alleged to have resulted from an accident which is alleged to have happened during Federal control of the defendant railroad. Defendant filed an exception of no cause of action, which was overruled, but following the decision in the case of Missouri Pacific R. R. Co. vs. Ault, 256 U. S. 564, holding that no liability arising out of the Federal operation of railroads rested upon the owner companies, and the case of Taylor vs. U. S. & P. R. R. Co., 151 La. 270, 91 South. 732, which followed the Ault case, the exception was renewed by defendant, and this time, because of the jurisprudence referred to, maintained. This judgment, however, was annulled by consent of parties and plaintiff filed a supplemental petition making the Director General of Railroads a party defendant.

The Director General filed a plea of prescription of one year under Article 3536 R. C. C. and Sec. 206 (a) of the Act of Congress of February 28th, 1920, known as the “Transportation Act 1920.” The Transportation Act provides that suits may be brought against the Director General on causes of action arising out of the operation of railroads during Federal control “within the periods of limitation now prescribed by State or Federal Statutes, but not later than two years from the date of the passage of this act.”

The Director General was made a party defendant on November 29th, 1921, more than two years after the day. on which the accident is alleged to have occurred. The prescription of one year established by the Civil Code was properly maintained. It is clear that under the jurisprudence referred to there was no liability on the part of the railroad company, the original defendant.' This conclusion was apparently quite obvious to counsel for plaintiff and he seems to have abandoned his appeal, for he made no appearance in this court at the hearing of the cause and filed no brief.

Judgment affirmed.


author: WESTERPIELD, J.

text:
    No. 9200
    Orleans
    JOSEPHINE PARATORE, WIFE OF WILLIAM CHORDORFF, Appellant, v. MRS. WILLIAM CUMMINGS DAVIS, WIDOW OF JOHN BROWN HUMPHREYS, ET AL.
    (February 15, 1926. Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest—Costs and Fees— Par. 50, 54.
    Where a reasonable objection by the purchaser is made to vendor’s title, based upon existing jurisprudence, and, during the pendency of a suit, by the purchaser, for the return of his deposit, a decision of the Supreme Court is rendered, modifying, if not changing, the former jurisprudence, and, removing plaintiff’s objection to defendant’s title, defendant will be cast for costs.
    Appeal from Civil District Court, Hon. Hugh C. Cage, Judge.
    This is a suit for the return of the balance of the amount deposited on the purchase price of a piece of real estate.

      There was judgment for defendant and plaintiff appealed.
    Judgment amended as to cost only and affirmed.
    B. Y. Wolf, of New Orleans, attorney for plaintiff, appellant.
    Daly and Hamlin of New Orleans, attorneys for defendant, appellee.
   WESTERPIELD, J.

Plaintiff entered into an agreement with defendant to purchase a certain piece of real estate for $5,000.00 and deposited $500.00 on account of the purchase price with defendant’s agent. Plaintiff’s attorney rejected the title and this suit for the double of the deposit resulted. (Plaintiff seemingly treats the deposit as earnest money.)

From an adverse judgment of the trial court plaintiff appeals.

Plaintiff originally contended that the defendant had no title to the property which was the subject of the agreement of sale upon the ground that in the year 1885 the property was adjudicated to the State for the unpaid taxes of 1882 by Act before Joseph H. Spearing, Notary Public, recorded C. O. B. 122, fo. 132, and “that after the State of Louisiana had purchased the said property, the said City of New Orleans attempted to sell same for taxes and attempted to convey to itself a title to said property by act before J. D. Taylor, Notary Public, on March 23rd, 1891; that the property of the State of Louisiana can not be sold for taxes; that the City of New Orleans attempted to sell said property to one Simon Newberger (defendant’s predecessor in title) by Sheriff’s sale on May 30th, 1895.

In other words, the adjudication to the state vested in the adjudicatee a paramount title, which could not be divested by a subsequent sale by the city for taxes.

Whatever merit there may have been in this contention is, admittedly, swept aside by the decision in' the case of Garnet’s Estate vs. Lindner, 159 La. 658, 106 South. 22.

The only contention here is concerning the costs.

In this connection we can not say that plaintiff’s objection to defendant’s title was unreasonable at the time it was made, for before the decision in the Garnet case the jurisprudence on the subject was at least doubtful, and since this decision .was rendered long after the filing of this suit, we will allow plaintiff the costs of suit. See Zahn vs. Arensburg, 154 La. 70, 97 South. 301, and Thomam vs. Dutel, 158 La. 1026, 105 South. 52.

For the reasons assigned the judgment appealed from is amended so as to condemn defendant to pay all costs, and in other respects it is affirmed.


text:
    No. 10,321
    Orleans
    S. SANFORD LEVY v. EBEYER & WINTELER, Appellant
    (March 1, 1926. Opinion and Decree.)
    (March 15, 1926. Rehearing Refused.)

      (Syllabus by the Court.)

    1. Louisiana Digest—Sales—Par. 236.
    Warranty against redhibitory vices is implied- in every contract of sale unless expressly excluded.
    2. Louisiana Digest—Judgment—Par. 66.
    In awarding plaintiff the restitution of a note it was proper for the trial court to decree that in default of such restitution there should be judgment for the amount of the note, notwithstanding the absence of a prayer to such effect in the petition. The prayer for general relief was sufficient to embrace this additional remedy.

      Appeal from First City Court for the City of New Orleans, Hon. Val J. Stentz, Judge.
    This is a redhibitory action in which the plaintiff asks to avoid a sale. There was judgment as prayed for, and, in addition, condemned defendant to pay a further sum of $180.00 in default of the return of the note within a reasonable time.
    Defendant appealed. Judgment affirmed.
    Miss Anna J. Vetters of New Orleans, attorney for plaintiff, appellee.
    Paul W. Maloney of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

This is a redhibitory action. Plaintiff seeks the avoidance of a sale to him of one Super-Heterodyne Radiola upon the ground that it possessed rehibitory vices. He paid $256.00 for the Radiola. He asks for a judgment for $76.00, the amount he paid in cash, and for a judgment ordering the defendant to return to him his note for $180.00, representing the credit portion of the purchase price.

The judgment, Was as prayed for, and in addition, condemned defendant to pay a further sum of $180.00 in default of the return of the note within a reasonable time. Defendant has appealed.

Defendant admits that the Radiola was defective, and removed it from plaintiff’s house for the purpose of having it repaired. Defendant claims that repairs could not be made here because the “catacomb” where the principal parts of the Radiola are located, its heart, so to speak, is sealed up and “the factory guarantees would be void should we open that Catacomb.” The Radiola was, therefore, delivered by defendant to a local jobber, from whom defendant bought it, for the purpose of having the jobber transmit it to the factory for repairs. This proceeding usually requires two or three months, according to the evidence of defendant’s manager, and no other and more rapid method of repairing defective Radiolas is available to defendants’ customers.

It is contended that this delay is not unreasonable, that the Radiola was sold without express warranty and that' the present status of the radio is experimental and uncertain, with no perfect radiolas yet on the market.

Upon the question of warranty, it is sufficient to say that the contract in this case was silent on the subject and that no warranty being expressly waived, it is implied. R. C. C. 1764.

The suggestion concerning the primitive state of the radio seems to us much exaggerated, and, if we are not mistaken, radio activity is in an advanced state of development. Besides, this particular radio had something the matter with its “Catacomb” and was admittedly defective, by which we understand it was defective in view of the present state of development of the radio.

R. C. C. 2520 declares:

“Redhibition is the avoidance of the sale on account of some vice or defect in the thing which renders it either absolutely useless or its use so inconvenient or imperfect that it must be supposed that the buyer would not have purchased it had he known of the vice.”

A defect which requires the return of the thing purchased to the factory for repairs requiring two or three months for completion and return, would certainly render the use of the thing “so inconvenient or imperfect that it must be supposed that the buyer would not have purchased it had he known of the vice.” Melancon vs. Robichaux, 17 La. 97.

Moreover, this particular radiola was a Super-Heterodyne, costing $256.00, and representing, we are informed, the last word in radiolas. More is expected of a SuperHeterodyne and much better facilities for repairing defective machines should be offered purchasers than was done in this case. It appears from the record that the note given by plaintiff for the credit portion of the purchase price had been negotiated by defendant, and to meet this situation tlje trial judge decreed that in the event of defendant’s failure to return the note, there be judgment for its face, or $180.00. Defendant’s final contention is that this cannot be done because it is ultra petition'em.

We think the action of the Court in this regard was proper and supported by the decision in the case of Dubourg vs. Anderson, 7 Morlin 268, to which we have been referred, and from which we quote the following:

“The appellant further contends that the judgment of the District Court is wrong and ought to be reversed, because it awards to the appellees that which they did not ask for, the petition praying for the restitution of the note, and the judgment decreeing payment of a sum of money. We think with the appellant that the judgment ought to have been for the thing prayed for, but' in awarding the restitution of a note in hand which the plaintiffs are liable to pay if not returned, the court had a right further to provide that, in defect of such restitution, the amount of the note should be paid'. At any rate, the prayer for general relief surely embraced that additional remedy.”

See also Ran and Sons vs. Smith, Tessier’s Digest, 127.

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


author: CLAIBORNE, J.

text:
    No. 9753
    Orleans
    FIREMEN’S INSURANCE CO. v. BROOK TARPAULIN CO., INC., Appellant
    (March 1, 1926. Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest—Corporation's—Par. 210, 212.
    In suits against corporations since Act 267 of 1914, it is not essential that citation should be served within the time of prescription in order to interrupt prescription; the mere filing of the petition is sufficient.
    2. Louisiana Digest—Automobiles — Par. 4 (d).
    Where the violation of a city ordinance regulating traffic is the cause of a collision, the party violating the ordinance must pay the damage.
    (Civil Code, Article 2315. Editor’s note.)
    Appeal from Civil District Court, Hon. E. K. Skinner, Judge.
    This is a suit for damage done to an automobile in a collision. The defendant pleaded the prescription of one year.
    There was judgment for plaintiff and defendant appealed. Judgment affirmed.
    M. M. Boatner, E. J. Jacquet and M. H. Manion and H. W. Kaiser of New Orleans, attorneys for plaintiff, appellee.
    Carroll and Carroll, H. G. McCall and A. J. Plough of New Orleans, attorneys for defendant, appellant.
   CLAIBORNE, J.

This is a suit for damages done to an automobile in a collision.

Plaintiff alleged that on November 14th, 1919, an automobile belonging to the United States Shipping Board was proceeding along the right hand side of the roadway next to the wharves going downtown in the direction of Canal Street; that when said automobile reached the intersection of Eighth Street an automobile truck, belonging to the defendant, Brook Tarpaulin Company, Inc., came out of Eighth Street at a high rate of speed without sounding its horn or checking its speed and turned to the right in the direction of uptown, and collided with the left front wheel of the car of the shipping board and inflicted damage upon it to the .extent of $434.19; that plaintiff had insured the car of the shipping board and paid the loss to it and was duly subrogated.

The defendant pleaded the prescription of one year.

The accident happened on November 14th, 1919; the suit was filed against the defendant corporation on November 13th, 1920, less than one year after the accident, although the citation was served only on the 17th. Prescription had not accrued according to Section 27 of Act 267 of 1914, p. 521 (534), which reads as follows:

“That in all suits against corporations, whether foreign or domestic, all prescriptions against corporations shall be interrupted by the filing of the suit in the Court having jurisdiction of the action against the corporation.”

In the case of Bank vs. Board, 145 La. 641, 82 South. 732, the Court, interpreting the above Act, said, on p. 644:

“It is not necessary that citations to corporations should be served within the prescriptive period to interrupt the running of the prescription. The plea of prescription should have been overruled.”

In that ease the petition was filed before prescription had accrued, but the citation was served the day after.

For answer the defendant denied all the allegations of plaintiff’s petition. Further answering, it averred that the automobile belonging to the shipping board at the time of the collision was being driven near the left-hand side of the roadway and not on the right-hand side, as alleged in plaintiff’s petition, and that when said automobile reached the corner of Seventh street, and not Eighth street, it ran into and collided with defendant’s truck; that defendant’s truck was proceeding along Seventh street in the direction of the river very slowly and that- the driver sounded his horn and tried to avoid the collision, which was due entirely to the negligence of the driver of the automobile.

There was judgment for plaintiff, and defendant has appealed.

The accident occurred on the roadway fronting the river.

The roadway at that point is about 23 feet wide. On both sides of the roadway there were stacked barrel staves to the height of eight or ten feet.

Plaintiff’s car was an Oldsmobile roadster; at the time of the accident there were three occupants in plaintiff’s car; all three seated upon the front seat, viz.:

W. R. Buoeh, at the time of the accident, driver for the U. S. Shipping Board, but at the time of the trial of this case “not doing anything”; 2nd, J. L. Cunningham, machinery inspector for the U. S. Shipping Board; and, 3rd, F. M. Kirsehmier, chief time and material keeper for the U. S. Shipping Board. All three occupants testify that between 10 and 11 o’clock a. m. they were driving downtown toward Canal Street on the front river road at about 10 or 12 miles an hour at about five feet from the extreme right of the road, and that when they approached the corner of Washington Avenue they reduced their speed to about five miles an hour, both on account of the crossing and because they intended to stop at about 100 fee.t beyond Washington Avenue to put off Cunningham, who was on his way to inspect a ship; that when they got some few feet from the corner, they perceived- defendant’s truck running at a rapid speed emerging from the uptown wood side corner of Washington Avenue on the right side' of the street within a few feet of the side walk curbing; that they immediately blew their horn; but that the defendant gave no signal of its approach; that the defendants’ truck was long 'and heavy; that it turned into the roadway going uptown; but that instead of making a short turn to the right, which it could not do, on account of its length, it described a wide arc and, driving to the river side of the roadway, ran into the left side of plaintiffs’ car, smashing it and injuring the passengers.

Three witnesses testified for the defendant:

1st. Alphonse Giles, chauffeur for the defendant;

2nd. Joshua Sanders, employed by the defendant for at least 27 years;

3rd. George A. West, a police officer for the last 18 years.

Giles was driving the truck on the day of the accident. He says that the accident happened at the corner of Seventh and the River or Front road; that the truck was loaded with 75 splash cloths; that he was driving on second speed, four miles an hour; the maximum speed of his truck is 13 miles; that he was driving in the center of Seventh Street; he could not see anything coming down the roadway on account of the staves piled up at the corner of Seventh and roadway; plaintiff’s car was coming down “over fifteen miles or more”; he blew his horn when he got near the corner; he heard no horn from plaintiff’s auto; the crank case of his truck was hit by the auto and broken; the left front wheel of the auto struck his truck; he had been driving that truck; six months; his truck is of one ton; plaintiff’s auto was more to the left hand side, about five feet from the staves; the accident could have been avoided if the auto had been driven to the right of the road, where he could haye seen it; going four miles in second speed, he could stop his truck in five feet.

Joshua Sanders was seated on the right hand of Giles; he. corroborates Giles as to the place of the accident, the speed of the truck, that Giles had sounded his horn, that plaintiff was driving to the left of the road, about five feet from the staves; he did not hear any horn from plaintiff; the plaintiff ran into the truck; he did not see the auto until it ran into the truck; he talked the matter over with Giles and with defendant’s attorney and kept a record; the auto struck the truck head on; the right hand side of the truck was struck by the left hand- side of the auto.

Officer West testified that he saw the accident, that he was a block away on the wharf; his attention was attracted when he heard the collision; the plaintiff’s car was coming down on the left hand side of the roadway; he does not remember what damage was done to the truck; it is- all told in a detailed report of the accident made by the police; the Shipping Board car was damaged on the right hand side right in the middle; the Shipping Board car was damaged to the front; it hit the Shipping Board car on the side; it ran into the truck.

The testimony of this last witness is not reliable. He states that the plaintiff’s car ran into the truck, and yet that the right side of the car was damaged in the middle. He is candid enough to admit that he does not remember and refers to the police record. The trial judge attached no weight to his testimony, neither do we. The judge says in his reasons for judgment “that the preponderance of the evidence is in favor of the plaintiff, also by the greater credibility of its witnesses.” His opinion on that question of fact is of great weight. We cannot say that his judgment was wrong.

But whatever contradiction and doubt might exist as to which one of the auto or of the truck ran" into the other, and as to what side of the street the plaintiff was running, on the left or upon the right, one fact is established beyond question, and that is, that the defendant was running out Seventh Street or Washington Street to the intersection of the roadway or Front Street, and that the plaintiff was on his right going down town towards Canal Street, and that both the plaintiff and the defendant reached the intersection at about the same moment of time; under those conditions the plaintiff had the right of way, which the defendant was bound to see and to yield. No. 10227 Ct. App. If the defendant was driving at the rate of four miles an hour, and if he could stop his truck within five feet going at that rate, to both of which he testified, he could and should have seen the plaintiff in time to have avoided the accident.

Paragraph 8 of Article 1 of Ordinance No. 5181 C. C. S., promulgated August 6th, 1918, offered in evidence, reads as follows:

“On all other streets and at intersection of above streets and avenues all vehicles shall have right of way over other vehicles approaching on intersecting streets from the left and shall give the right of way to those approaching from the right.”

We have repeatedly decided that where the violation of a City Ordinance regulating traffic is the cause of a collision, the party violating the ordinance must pay the damage. Orleans Appeal, Nos. 7891, 8191, 8232, 8245, 8249, 8250, 8297, 8820, 8905, 9205.

It is immaterial whether the accident happened at the head of Seventh Street or Washington Avenue, as the testimony relative to the place of the accident was admitted without objection.

The correctness of the items of damage allowed by the judgment was established by the testimony of H. A. Chayer.

The judgment appealed from is correct and it is therefore affirmed.


author: LECHE, J. ELLIOT. J.

text:
    No..........
    First Circuit
    SOUTH LA. FAIR ASSOCIATION v. OMER ROBERT, ET AL.
    (December 8, 1925. Opinion and Decree.)
    (January 28, 1926. Rehearing Refused.)

      (Syllabus by the Editor.)

    1. Louisiana Digest—Surveyors and Surveys—Par. 6, 7; Sales—Par. 193.
    Where there is apparent conflict between the description of land construed in connection with the conveyance record and that shown between lines on the map of the survey, the map controls the description.
    Appeal from the Parish of Ascension, Hon. Sam LeBlanc, Judge.
    This is a suit in which the plaintiff prays to be recognized to be owner of certain immovables.
    There was judgment for plaintiff and defendant appealed. Judgment affirmed.
    Walter Lemann and Howell and Worth-am of Donaldsonville, attorneys for plaintiff, appellee.
    C. C. Weber of Donaldsonville, attorney for defendant, appellant.
    Elliot, J., dissents for written reasons below.
   LECHE, J.

The Peytavin Sugar Plantation adjoins the town of Donaldsonville, which at one time formed its western boundary. In the year 1914, the South Louisiana Fair Association acquired a tract of land theretofore forming part of said plantation, in the shape of a parallelogram, approximately 1080 feet by 568 feet, along its western boundary. In the year 1916, the South Louisiana Fair Association acquired two other tracts adjoining the land which it already owned and also formerly part of the Peytavin plantation. In the year 1917, at the request of the owners, a survey was made of the Peytavin plantation by J. S. Webb, C. E., in the making of which two other additional strips in the shape of two small parallelograms adjoining the land already acquired by the South Louisiana Fair Association were ordered by the owners to be excluded from the limits of the said plantation, for the reason that these strips had been verbally sold to the South Louisiana Fair Association. The latter two small parallelograms were contiguous to land already deeded to the South Louisiana Fair Association and were excluded from the limits of the Peytavin plantation for the above stated reason, though no formal transfer in writing had, at that time, been made to the South Louisiana Fair Association.

The defendants acquired the Peytavin plantation on March 13, 1920, and the South Louisiana Fair Association received a written title or sale on February 9, 1923, ■ of the two small parallelograms, excluded from the limits of the Peytavin plantation in the Webb survey of 1917.

In the present suit, the South Louisiana Fair Association, alleging that defendants are in possession of part of the property which it acquired, as shown by Notarial Act of February 9, 1923, prays to be recognized as owner thereof.

Defendant’s title describes the Peytavin plantation in accordance with the delineation contained in the map made by Webb in 1917, and the pertinent part of that description in regard to the western boundary of said plantation, reads as follows:

“Thence in a northerly and easterly direction around the property of the South Louisiana Fair Association” * * * “all being more fully shown by a map of James S. Webb, Civil Engineer, which is annexed to and made part of an act of sale” to defendants’ authors.

The conveyance records of the parish of Ascension at that time, March 13, 1920, did not show the two strips of land as being the property of the South Louisiana Fair Association, but the map made by Webb did show these strips as already being the property, as they were in point of fact, of the South Louisiana Fair Association, and therein lies the reason for the present litigation.

There is an apparent conflict between the description construed in connection with the conveyance record and that shown by the lines on the map of survey by Webb in 1917, and the single question involved, is which should control. That question, in our opinion, has passed the stage of uncertainty and is now settled by the decisions in Canal Bank vs. Copeland, 6 La. 548; Gray vs. Coco, 113 La. 33, 36 So. 878; Perry vs. Board of Commissioners, 132 La. 428, 61 South. 511; Werk vs. Leland University, 155 L. 991, 99 South. 716. The diagram or map referred to controls the description.

What the defendants bought in 1920 was not the lands which may originally have constituted the Peytavin plantation, but only the lands contained within the limits as defined and designated in the Webb map of 1917. The District Judge was of that opinion, and we agree with him.

Judgment affirmed.

Elliott, J., dissents for written reason attached.

DISSENTING OPINION OF

ELLIOT. J.

I think the judgment appealed from in the above case is erroneous and should be reversed and judgment rendered in favor of defendants as prayed for by them. The facts are not disputed. Under the law on the subject of the execution of titles to land and the registry of land titles, can the ownership of certain parts of a plantation be reserved in the seller by figures on a map indicating that the property of Smith Louisiana Fair Association is greater in extent than it is in fact, according to the recorded titles, with the results that the Peytavin plantation area, adjacent and contiguous thereto, is thereby made correspondingly less?

As stated, in 1917 J. S. Webb, C. E., made a map indicating South Louisiana Fair Association property, with figures, which if satisfied must include the two small parallelograms of land in suit, which at the time, according to the recorded title, were parts of the Peytavin plantation then belonging to the Leman Co., Ltd., and were not the property of the South Louisiana Fair Association.

In 1918, the Leman Co., Ltd., sold the Peytavin plantation to Peytavin Planting Co., Inc., by a description which so far as pertinent to the present matter reads: “Thence in a northerly and easterly direction around the property of the South Louisiana Fair Association,” and the further statements, “all as being more fully shown on attached map made by J. S. Webb, C. E., which is annexed hereto, initialed by appearers and made part hereof.”

The title which the Leman Co., Ltd., made to Peytavin Planting Co., Inc., does not state that the Leman Co., Ltd., reserved parts of the plantation covered up by these figures, designating the property as South Louisiana Fair Association. The title says “around the property of South Louisiana Fair Association,” and that is the way Peytavin Planting Co., Inc., bought, and, according to the recorded title, the sale included the two parcels of land involved in this suit. But if the figures on the map govern and amount, as the majority opinion holds, to a reservation of title in the Leman Co., Ltd., then the above descriptive language is untrue and deceptive, because, instead of South Louisiana Fair Association being the property surrounded, it was part of the Peytavin plantation reserved by the Leman Co., Ltd., that was surrounded.

The Peytavin Planting Co., Inc., bought in good faith and on the faith of the recorded title of South Louisiana Fair Association, according to which it did not own these parts of the Peytavin plantation and Peytavin Planting Co., Inc., sold in the same way to Omer Roberts, etc., defendants.

The map mentioned was not recorded with the act; therefore it can not govern the rights of Omer Roberts and his brother defendants in buying from Peytavin Planting Co., Inc.

Error and ambiguity is not claimed by either side to exist; consequently the map mentioned is not important as fixing their rights.

A map, annexed to an act of sale of land from boundary to boundary, as in this ease, is never important, except when the act is said to contain error or to be ambiguous; when it is consulted in the effort to ascertain the intent of the parties and correct the error or explain the ambiguity.

When error or ambiguity is not pleaded, the metes and bounds called for by the act, and in conformity with the recorded title, becomes the law of the parties. C. C., Arts. 2491-2-3-4 and 2495 (Amd. 1871, No. 87).

The plaintiff brought a petitory action. It must make out its title to the land in suit. If the Leman Co., Ltd., its author, likewise the author of defendant, did not explain itself clearly in the act of sale to the Peytavin Planting Co., Inc., which antedates the sale to plaintiff, then the plaintiff fails to make out its title. The seller is bound to explain himself clearly respecting the extent of his obligations; any obscure or ambiguous clause is construed against him. C. C., Art. 2474. The law is with the defendant, and he should have judgment as prayed for in his answer.


author: MO'UTON, J.

text:
    No..........
    First Circuit
    H. L. THOMPSON v. C. R. SHORT LUMBER COMPANY.
    (December 8, 1925. Opinion and Decree.)

      {Syllabus by the Editor)

    I. Louisiana Digest—Error and Mistake— Par. 17.
    Under Article 2302 of the Civil Code, he who has paid through mistake,. believing himself a debtor, may. reclaim what he has paid.
    (See Articles 2303 and 2304 of the Civil Code. Editor’s note.)
    Appeal from Yernon Parish, Hon. Hal A. Burgess, Judge.
    This is a suit for the collection of the sum alleged due the plaintiff. There was judgment for defendant, and plaintiff appealed.
    Judgment affirmed.
    S. I. Poster of Leesville, attorney for plaintiff, appellant.
    Hardin and Cavanaugh of Leesville, attorneys for defendant, appellee.
   MO'UTON, J.

Plaintiff instituted this suit against C. R. Short and the C. R. Short Lumber Company to recover against them in solido the sum of $360.40, alleging that he had sold to C. R. Short, some hay to that amount, and that it had been used in the sawmill business of the company. Plaintiff alleges that on the 2nd day of October, 1920, and for the purpose of paying on this indebtedness, the C. R. Short Lumber Company issued a check in his favor for $18.20 on the Lumberman’s Bank of De Ridder, La., and that later, on Oct. 23rd, 1920, the said C. R. Short Lumber Company issued another check in his favor on said bank for $342.20,' in payment of the claim he is herein suing for.

The defendants filed an answer to the petition, in which, after denying four articles of the demand, aver as follows: “Defendant admits giving the check for three hundred and forty-two and 20-100 ($342.20) dollars, as stated, but avers that said check was given in error, thinking they, defendants, were indebted unto plaintiff, but upon finding that neither defendant was so indebted, payment on said check was stopped.” It is clearly shown that the check for $18.20 referred to in plaintiff’s petition had been drawn in the name of C. R. Short by one Bennett and was a forgery. We are not concerned with this check in the consideration of this case, and will address ourselves to the issue arising out of the check for $342.20, which defendants admit to have drawn in favor of plaintiff. As defendants admit to have issued this check to plaintiff, the sole issue submitted is as to whether it was given in error or not.

The proof shows that Bennett, who forged this check for $18.20, was employed as a “logger” for defendant company and had no other connection with it. Bennett, the record shows, bought the hay in the name of the company, but had ho authority whatsoever to do so. The hay was shipped to the C. R. Short Lumber Company, and was placed on a siding of the railroad company. Plaintiff came to the sawmill and had a conference with Short in reference to his bill for the hay. One Force, the son-in-law of Bennett, and who was working in the store of the company, stated to Short that they had gotten the hay. Acting upon this statement, and seeing the shipment had been made to his company, he issued the check for $342.80 to plaintiff, the day after he was informed by Moses, the man who unloaded the feed for the company, that Bennett had unloaded the hay and carried it, some to his tent, and the other portion to his house. After making further immediate inquiries and ascertaining that the company had never received or used the hay, and had never been charged for it, he forthwith stopped the payment on the check. Civil Code 2302 saiys: “He who has paid through mistake, believing himself a debtor, may reclaim what he has paid." It is necessary, says Article C. C. 2303, that the thing paid be not due in any manner, either civilly or naturally. A thing not due is that which is paid on the supposition of an obligation which does not exist. C. C. 2304. The claim of the plaintiff was not due by the C. R. Short Lumber Company, either civilly or naturally. C. R. Short gave the check on the supposition of an obligation that did not exist on the part of his company, and had the perfect right to stop the payment of the check.

The claim - of the plaintiff against the company was correctly rejected.

Affirmed.


author: LECHE, J.

text:
    No. -
    First Circuit
    RONALDSON & PUCKETT CO. v. CITY OF BATON ROUGE
    (November 10, 1925, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Automobiles — Par. 4 (d), 6 (a).
    Where the sprinkling apparatus on a water truck was so arranged that the truck had to be driven on the left side of the street in order to properly sprinkle it, thus causing a collision with a merchandise delivery truck, the city operating the truck will be held liable in damages.
    (Civil Code, Art. 2315. Editor’s note.)
    Appeal from the Parish of East Baton Rouge. Hon. W. Carruth Jones, Judge.
    This is a suit for damages arising out of a collision between a sprinkling truck and a merchandise delivery truck.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Cross & Moyse, of Baton Rouge, attorneys for plaintiff, appellee.
    H. Payne Breazeale, of Baton Rouge, attorney for defendant, appellant.
   LECHE, J.

A collision between plaintiffs’ merchandise delivery truck and defendants’ street sprinkling truck took place on Main street in Baton Rouge, and this suit is for the recoveery of damages for injury to the merchandise delivery truck.

Main street runs almost due east and west and, true to its ñame, it is one of the principal highways of the city of Baton Rouge. It is almost continuously lined with heavy traffic of street ears, trucks and automobiles. Plaintiffs’ truck, loaded with merchandise, was being driven east, along the south or right side of the Street, where, under the-customary rules of the road, it should have been and where it had the right of way., When plaintiffs’ driver passed the intersection of Hart street he noticed two automobiles parked ahead of him against the right curb, and still another automobile passed him and also parked ahead of him, so that by the time he reached the center of the block there were three automobiles parked in his path, and as he steered to the left to pass these three automobiles, he was run into by defendant’s sprinkling truck.

Defendant’s contention is that plaintiffs’ driver had turned his head, was looking behind, and, without seeing, negligently ran into its sprinkling truck.

Plaintiffs’ driver admits in his testimony that he did glance behind, as he had to do, before driving his slow loaded vehicle towards the center of the street. to avoid the three parked automobiles, in order not to be run into by faster vehicles which might be in the rear of him, and about to pass him, while going in the same direction.

The sprinkling apparatus on defendant’s truck was so arranged that in order to effectively sprinkle the street the truck had to be driven on the left side of the street, and that, in our opinion, was the main cause of the accident. Of course, where the street is free of traffic, the driver of° a vehicle seeing ,the conditions under which the sprinkler was being operated, would be negligent, careless and foolhardy to run into it simply because it happened to be on the wrong side of the street. But it must be observed here, although the evidence is not clear on that point, that the views of both drivers, for plaintiff and for defendant, were either partially or totally obstructed by the three automobiles parked against the curb. Plaintiffs’ driver had no reason to believe tha't any vehicle coming towards him would be driven along the left or wrong side of the street, and it- was clearly negligence on the part of defendant to. have so,,, done- under the circumstances.

The impact was - severe and the damage to plaintiffs’ truck, as estimated by an expert, was fixed at seven hundred dollars, and this amount is not seriously contested.

The sprinkling of streets, like the maintenance of streets and sidewalks by a municipality, is not such a governmental function as will absolve the municipality from liability when done in a careless or negligent manner. Such acts are optional, purely of a municipal or local nature, for the comfort and convenience of its citizens, and are not compulsory for the health, safety or welfare of society in general.

The district judge awarded plaintiffs seven hundred dollars’ damages, and we believe his finding is justified by .the law and the evidence.


author: ELLIOTT, J.

text:
    No. 8080.
    First Circuit
    MRS. HENRIETTA HARRELSON, Natural Tutrix, v. MRS. MAMIE D. FITZGERALD AND HUSBAND.
    (November 10, 1925. Opinion and Decree.)
    (December 22, 1925. Rehearing Refused.)

      (Syllabus by the Editor.)
    1. Louisiana Digest—Obligations;—Par. ,79, 81.
    Under Articles 1957 and 1958 of the Civil Code, a contract to drill a “flowing well” with no stipulation as to how long the flow should continue nor the amount per minute, if the well flows after it is brought in and continues to flow for a number of days afterwards, it will be considered in compliance with the conditions of the contract.
    Appeal from the Twenty-second Judicial District Court, Parish of East Baton Rouge, Hon. -, Judge.
    This is a suit to collect the contract price, of a verbal contract, of a flowing well.
    There was judgment for plaintiff and defendant appealed. Judgment affirmed.
    Cross and Moyse of Baton Rouge, attorneys for plaintiff, appellee.
    Shelby Taylor of Baton Rouge, attorney for defendant, appellant.
   ELLIOTT, J.

John W. Fitzgerald, acting as agent for the defendant, his wife, employed plaintiff’s minor son, Additon Humphrey Harrelson, by verbal contract, to put down on his wife’s place a “flowing well.”

The plaintiff’s son was to furnish the boring outfit and his own lábor and have charge of the work, while defendant was to furnish the pipe and two men to help in the work, and pay plaintiff’s son 30 cents per foot depth of the well.

Plaintiff’s son guaranteed to bring in for defendant a “flowing well,” but no amount was stipulated that it should flow, nor was anything said about the time, it should continue to do so. After considerable work her son obtained a flow of about a gallon in a minute and a half, at a depth of 382 feet. This well was left to flow at this rate for about a w'eek, after which he returned, and, thinking to get a larger flow, pulled up the pipe, cleaned the strainer and replaced it at the same depth; but instead of improving matters, the flow was reduced to about one gallon in 7 minutes and further efforts to improve the flow were unsuccessful. The flow, after a few weeks, commenced to decrease, and at the time of the trial, about six months after the well had been put down, it continued to run only a dripping or trickling stream at the ground, or just a little below it.

The plaintiff, claiming that her son had performed his part of the contract, requested payment, and, upon being refused, brought suit; and also to recover the value of 41 feet of pipe used in the w’ell.

Defendant resists, claiming that the well is not a “flowing well,” such as the contract contemplated.

A considerable amount of testimony was taken. Neighbors and witnesses living in the vicinity, comparing the well with others in the neighborhood, differ in their opinion as to whether the well satisfied the contract. Some of them contend that the contract was fulfilled, others did not think so.

The District Judge decided in favor of the plaintiff and the defendant appealed.

The Art. C. C. 1957 and 1958 reads: “In a doubtful case the agreement is interpreted against him who has contracted the obligation.” (Amd. 1971, No. 98, p. 199.) “But if a doubt or obscurity arise for the want of necessary explanation which one of the parties ought to have given, or from any other negligence or fault of his, the construction most favorable in the other party shall be adopted, whether he be obligor or obligee.”

In this instance the evidence shows that the well, at the time work was stopped and payment requested of the defendant, was a “flowing well.” That is, it flowed out of the pipe above the ground in a smooth and continuous stream. It did not give the amount of water that defendant wished and expected; but, nevertheless, technically speaking, it was a “flowing well,” and there was no stipulation as to how long the flow should continue nor as to the amount per minute.

We conclude that defendant was at fault and' negligent in not stipulating particularly and definitely the amount of water he was to receive and how long it should continue.

After thinking over the matter, we conclude that the judgment appealed from is correct and should be affirmed. Defendant and appellant to pay the cost of both courts.


author: MOUT'ON, J.

text:
    No.....—.
    First Circuit
    MRS. MATTIE M. KEAN v. OSCAR J. CHANEY.
    (November 10, 1925. Opinion, and Decree.)
    (December 22, 1925. Rehearing Refused.)

      (Syllabus by the Editor.)

    1. Louisiana Digest—Landlord and Tenant Par. 63.
    Agreements between the parties unless contrary to law is the law of the case. Improvements made by a tenant which by agreement were to be included in the rent must be so held.
    Appeal from the Parish of East Baton Rouge, Hon. W. Carruth Jones, Judge.
    This is a suit on a note coupled with a provisional seizure. Defendant filed a re-conventional demand for the value of improvements put on the property of the plaintiff. There was judgment for plaintiff on the main demand and for the defendant on the reconventional demand.
    Plaintiff appealed. Judgment affirmed.
    Cross & Moyse of Baton Rouge, attorneys for plaintiff, appellant.
    R. F. Walker of Clinton, attorney for defendant, appellee.
   MOUT'ON, J.

Defendant, on Peb. 1st, 1924, executed his promissory note in favor of plaintiff for $400.00 for the rental of 203 acres of land on a verbal lease. Plaintiff brought suit on the note and obtained the provisional seizure of some household effects of defendant to satisfy her demand. There is no attack of either the note or seizure by defendant, who claims $498.75 from plaintiff in reeonvention for the value of improvements he alleges to have made on the property duriñg his possession as lessee.

In his reconventional demand defendant claims that these improvements were made in the year 1924, which is the year for which the note sued upon was given. It developed in the course of the trial that defendant had been leasing the property from plaintiff for several years prior to the year of 1924. Upon proof being offered by defendant to show that these improvements had been placed on the premises during these prior years, plaintiff objected thereto, contending tjiat the pleadings did not authorize the introduction of evidence to sustain any agreement in reference to improvements preceding 1924. This objection, we think, was well grounded, as the answer of defendant regarding the alleged improvements was restricted to the year 1924. Such evidence was at least of doubtful admissibility, but, as it is in the record and disposes of the issue, we shall consider it. Counsel for defendant says the lessee is the owner of the improvements put by him on the thing let, and has the right to remove them at the termination of the lease. As a general proposition this is correct, and Article C. C. 2726 so declares, subject to the modifications as therein provided. Testifying in reference to these improvements, plaintiff says, it was positively understood that the repairs which defendant made on the property were not to be taken out of the rent. Further she says that her contract with defendant was his assumption of the rent and the repairs he made on the pla*ce. In this respect she is supported by the testimony of F. H. Kean, her agent, who conducted the transactions for the rent. It is shown that several settlements were made by defendant for rent for the years which preceded 1924, and that, at no time prior to 1924, he urged any reimbursements for these repairs. It was in 1924, for the first time that he laid claim thereto. Defendant testifies to a contrary state of facts, but his testimony can not prevail against the evidence of the plaintiff, corroborated by the testimony of her agent, by the circumstances of the case, and by which it appears that, according to the agreement of plaintiff. and defendant, which became the law between the parties, the improvements or repairs were to be included in the rent. The recovery of their value by defendant was therefore properly denied by the District Judge.

Affirmed.


text:
    No..........
    First Circuit
    DR. FRED. J. MAYER v. MRS. ISRAEL ROUGEAU, SERAN ROUGEAU, ET AL., Intervenors.
    (December 8, 1925. Opinion and Decree.)
    (January 28, 1926. Rehearing Refused.)

      (Syllabus by the Editor.)

    1. Louisiana Digest—Executors and Administrators—Par. 115.
    Although children may have an interest in the $1,000.00 widow’s dowry provided by Article 3252 of the Civil Code, this interest terminates when the money is converted into immovables.
    2. Louisiana Digest—Pleading—Par. 62; Marriage—Par. 234.
    A petition of intervention brought by the children claiming an interest in the property of the mother which was bought with the $1,000.00 which she obtained under Article 3252 of the Civil Code as a widow in necessitous circumstances will be dismissed on an exception no cause of action where it is shown that the money was converted into immovables and the children have no recorded lien or mortgage against the property.
    Appeal from the Parish of St. Landry, Hon. B. H. Pavy, Judge.
    This is a suit in which the owner of a mortgage proceeded to have the property sold under executory process. The children of the owner of the property intervened. An exception no cause of action was filed by plaintiff.
    There was judgment maintaining the exception no cause of action and dismissing the intervention. Intervenors appealed. Judgment affirmed.
    W. A. Robertson of Opelousas, attorney for plaintiff, appellee.
    Sandoz and Sandoz of Opelousas, attorneys for intervenors.
   LECHE, J.

The facts in this case are substantially that Mrs. Israel Rougeau bought property in the year 1909, from the succession of her husband, through an interposed person, and that she paid for the same with the one thousand dollar homestead she was permitted to receive from her husband’s succession, as a widow with dependent children in necessitous circumstances. The plaintiff acquired a mortgage upon the property, and in the year 1921 had the property sold under executory process. The intervenors appeared in the executory proceedings, filed a third opposition in which they claim as minor children of the late Israel Rougeau and of his wife, who is defendant in the executory process, that they are entitled to the one thousand' dollars collected for them by their mother and used by her for the purchase of the property seized by the plaintiff, and they ask that said amount be ordered to be paid to them out of the proceeds of sale, by privilege and preference, over the seizing creditor, who is plaintiff herein.

Defendant has made no appearance either in this Court or in the District Court, and the contest is between plaintiff and third opponents.

Plaintiff excepted to third opponent’s demand on the ground that their petition showed neither right nor cause of action,' and, this exception having been sustained by the trial Court, third opponents have appealed.

Both sides concede that the property was bought by Mrs. Rougeau as her own; that third opponents never had any proprietary interest therein; that Mrs. Rougeau has the usufruct only of the one thousand dollars, and that at the termination of that usufruct she is legally bound to account to her children for this amount of money. The property presumably has been sold, and is now no longer hers, but for all we know the usufruct of the one thousand dollars may still belong to her, for there is nothing to show that it has been legally terminated.

Third opponents by claiming the proceeds of the sale recognize their mother’s ownership of the property and ratify the validity of the sale. Their mother did not have the usufruct of the property, for it belonged to her in absolute ownership. Her usufruct was of the one thousand dollars in money.

We can’t conceive how third opponents can have any claim on the proceeds in preference to the seizing creditor, for even if their mother’s usufruct of the one thousand dollars in money had terminated, they do not allege or show any mortgage, lien or privilege on such proceeds. Secret mortgage, secret liens and secret privileges on immovables are unknown in this State. They must be recorded in order to affect third persons who deal on the faith of the public records. It is not shown or alleged that Mrs. Rougeau ever qualified as tutrix of her minor children and that any extract of inventory ever was recorded in the mortgage records in order to affect the property sold under the plaintiff’s executory process.

Believing that the trial Judge has properly disposed of the issue here involved, the judgment appealed from is affirmed.


text:
    No. 9872
    Orleans
    ELIZABETH FOSTER, Appellant, v. NEW ORLEANS PUBLIC SERVICE INC. ET AL.
    (February 1, 1926, Opinion and Decree)

      (Syllabus by the Court.)

    1. Louisiana Digest—Street and Interurban Railways—Par. 34.
    An injury to a passenger creates a presumption of negligence on the part of the carrier. But the presumption may be rebutted where a collision occurs between a street car and a truck caused by the backing of the truck across the car track for’ the purpose of turning around, the driver of the truck having seen the car before starting to back and calculated erroneously that there was sufficient time to complete his turning movement.
    (Civil Code Article, 2315. Editor’s note.)
    Appeal from Civil District Court, Division “F”, Hon. Percy Saint, Judge.
    This is a suit for damages arising out of a collision between a truck and a street car.
    There was judgment for defendant and plaintiff appealed.
    Judgment amended and affirmed.
    Geo. Piazza, of New Orleans, attorney for plaintiff, appellant.
    B. W. Kernan and Scott Beer, of New Orleans, attorneys for defendant, appellee.
   WESTERFIELD, J.

Plaintiff sues the New Orleans Public Service, Inc., as the operator of a street car, and Peter Abinanti as the proprietor of an automobile’ truck, in solido, for physical injuries alleged to have resulted from a collision between the street car and the truck. Both defendants denied all responsibility for the accident. There was judgment for defendants dismissing plaintiff’s suit, and plaintiff has appealed.

Plaintiff invokes the well established rule to the effect that an injury to a passenger creates a presumption of negligence on the part of a carrier. Hopkins vs. N. O. Ry. & Light Co., 150 La. 61, 90 South. 512. Frazier vs. South New Orleans Light & Traction Co., 8609 Orl. App.; Steinhardt vs. Hibernia Bank & Trust Co., 9071 Orl. App. But the presumption may be rebutted by the evidence and in this ease there is clearly no fault attributable to the street car and it is equally clear that the truck was entirely to blame. The driver of the truck was backing across the car track in front of the oncoming street car. His purpose in backing was to turn around, a common practice of drivers of automobile vehicles, particularly where there is not sufficient space to turn by a forward movement. He thought he had time enough to back on and drive off the track before the street car reached the locality. He might have succeeded had it not been for the fact that his truck or one of the wheels thereof bogged a little in a hole on the track, delaying him a few seconds. That the driver of the truck was negligent is self-evident. Res ipsa loquitur. But plaintiff says the street car was to blame under the doctrine of the last clear chance. The motorman, it is insisted, could have prevented the accident because he saw the truck backing toward the car track when forty-five feet away, and at a time when the car was moving only five or six miles per hour. It is argued that there was ample opportunity to stop the street car in that distance at that speed. No doubt there was, but we cannot assume that because the motorman saw the truck backing toward the car track that he knew or had any reason to surmise that the truck would continue to back and place itself directly across the track. It would be more reasonable to suppose that the driver of the truck would stop short of the car tracks as the prudent and proper thing to do. It must be remembered that street cars are fixed in their prescribed course by the rails upon which they travel, whereas, other vehicles move in all directions at the will of the driver, consequently, street cars are given the right of way on their tracks and vehicular and pedestrian traffic is charged with the knowledge thereof.

As to the quantum, it must be nominal. Plaintiff says that the jar of the collision threw her backward and caused her head to strike against some part of the car. She claims to have suffered for a considerable period after the accident and at the time of the trial, something more than a year later, she testified that she was still suffering. But she is not supported by anybody or anything connected with the transaction. No doctor testified in the case and no other witness knew of her injury, though a number of her fellow passengers took the witness stand. The collision was not a violent one. The truck was very slightly damaged, though it was a small Ford truck. The driver of the truck was able to drive away after the accident in his truck, the collision did not even stop his’ engine. We will allow one hundred dollars.

For the reasons assigned, the judgment appealed from is amended insofar as it is in favor of the defendant, Peter Abinanti, and it is now ordered that there be judgment in favor of plaintiff, Elizabeth Foster and against the defendant, Peter Abinanti, in the sum of $100.00, and all costs. In other respects, the judgment is affirmed.


text:
    No. 9164.
    Orleans
    A. F. PETERSON v. A. C. PERALTA, Appellant.
    (January 18, 1926. Opinion and Decree.)
    (February 1, 1926. Rehearing Refused.)

      (Syllabus by the Court.)

    1. Louisiana Digest—Builders and Buildings—Par. 12, 13.
    All that the law requires of a contractor is that he shall substantially comply with the plans and specifications.
    2. Louisiana Digest—Builders and Buildings—Par. 17.
    A contractor who fails to do the work according to contract may still recover the value of the work he has done; the remedy of the owner is a reduction of the price agreed on to an amount sufficient to complete the contract.
    3. Louisiana Digest—Builders and Buildings—Par. 18.
    Although a building contract provides that the contractor shall be entitled to charge for extra work unless the same is ordered in writing, the contractor may recover when the alteration or increase is so great that it cannot be supposed to have been made without the knowledge of the owner.
    Appeal from Civil District Court, Hon. E. K. Skinner, Judge.
    This is a suit by a building contractor against the- owner for $1,298.50 under a contract and for extras. Defendant in his answer prayed for judgment rejecting plaintiff’s demand and judgment in his favor instead for $2,145.00. There was judgment in favor of plaintiff as prayed for.
    Defendant appealed.. Judgment amended and affirmed.
    Westerfield, J., dissents.
    L. L. Dubourg of New Orleans, attorney for plaintiff, appellee.
    Terriberry, Rice and Young, of New Orleans, attorneys for defendant, appellant.
   CLAIBORNE, J.

This is a suit by a building contractor against the owner for $1,298.50 under a contract and for extras.

The plaintiff alleged that on May 22, 1922, he made a contract with the defendant for the construction of a building for the price of $5,810; that he completed the building in accordance with the contract; that there remains due to him on said contract the sum of $1,162.00; that in addition to the -contract the plaintiff did extra work under instruction of the owner and under his supervision amounting to $136.50, making a total of $1,298.50, which the defendant refuses to pay.

The defendant, in an extended answer divided into sixteen paragraphs, admits the contract and his refusal to pay the two amounts claimed, but denies all the other allegations of the petition.

Further answering, he alleges:

. 1st. That at the time he accepted the building he had not had the opportunity to examine the premises; that the plaintiff kept the keys of the building and refused to allow the defendant to inspect it until he had signed an acceptance;

2nd. That upon inspecting said build-' ing he ascertained there were numerous defects, which he enumerated in two letters addressed by him to the plaintiff;

3rd. That in accordance with the building contract J. B. Humphreys, building expert, inspected the building and reported that the building was not erected in accordance with the contract;

4th. That the building contract contained the stipulation that the fifth payment shall be due thirty days after the said building is completed and accepted, provided that in each case of said payments a certificate shall be obtained from said expert;

5th. That the building contract contained the further stipulation that no new work of any description shall be considered as extra unless the consent' of the owner is first obtained in writing;

6th. . That owing to the failure of the plaintiff to employ proper materials and workmanship and to erect the building in accordance with the plans, the defendant has been damaged in the sum of $2,000.00;

7th. That it is stipulated in said contract that the contractor shall be liable for all costs and attorney’s fees incurred in any legal proceeding made necessary by the failure of the contractor to comply with his contract, which fees were fixed at five per cent on the amount of the bond of $2,905, or $145.25.

Defendant therefore prays for judgment rejecting plaintiff’s demand, and for judgment in his favor against the plaintiff for $2,145 and all costs of suit.

There was judgment in favor of plaintiff as prayed for and defendant has appealed.

The contract under consideration was dated May 22, 1922; the building was accepted August 17, 1922; the case was tried in the District Court in March, 1923.

The presumption is that the plaintiff has complied with his contract.

He swears to it as a witness and he is corroborated by Hoduet and Scott, foremen for plaintiff.

The burden of proof is upon the defendant to show that he has not done so.

We shall examine each of defendant’s objections in their order.

1st. That the defendant had not had the opportunity of inspecting the building because the plaintiff kept the keys and refused to deliver them to the defendant until he had accepted the building.

Concerning this complaint the plaintiff testifies:

Q. Was Mr. Peralta around the work very often when the building was going on?
A. He was there every morning and always got home at two o’clock ■ in the afternoon, except when he took a trip for one week or ten days.
Q. He operated a grocery store in that block while the building was being erected?
A. Next door.

Wm. Scott says:

.Q “How often was Mr. Peralta around the building when it was being constructed?
A. “While I was there he was there every day; he runs a grocery store right beside the building.”

H. H. Hendricks says:

Q. How often was Mr. Peralta around the house while it was going up?
A. Quite often; 1 could not say exactly, but he was there every day while I was there.

The defendant does not deny this testimony.

2nd. Numerous defects enumerated in two letters.

Both letters are dated October 9, 1922, nearly two months after the defendant had accepted the building and occupied it, August 16, 1922.

The complaints mentioned in the first - letter are:

1st. That a canvas on the porch was essential and therefore not an extra. It was not mentioned in the specifications and therefore was not considered essential by the architect who prepared them. It was ordered afterwards and is therefore an extra. 2nd. The plans call for six-foot awning over the hanging part of the roof on the sidewalk. “You had it nine foot in point.” The defect in the awning is not pointed out. Morgan D. E. Hite, architect, expert for defendant, estimates $100 as the cost of putting it in proper shape; but he does not say why. 3rd. The plaintiff led the defendant to believe he would not charge for the bookcase, but he did not tell him so.

The bookcase cost the plaintiff $70.

4th. No damp proof slate course on foundation. One witness swears there was. 5th. No creosote on sills. Two witnesses swear that they were creosoted. 6th. Door in toilet should be lattice instead of panel. No testimony to that effect. 7th. Rear porch, water settles on same, leaks in front rooms; leaks over bath room; all windows leak from sills. Conflicting and insufficient evidence in support of any of these charges. No evidence that any repairs were made by the owner to remedy the alteged leaks. 8th. Cylinder lock on Orleans street entrance put on upside down. Scott, a carpenter, foreman, answers that charge as follows: “That is absolutely untrue.” There is no contradiction of his testimony. 9th. All sashes work hard. No evidence. 10th. Step on Orleans street entrance not up to plans. No evidence.

In the second letter of the same date the defendant writes to plaintiff:

“On September 18th you requested me to make them (the defects) in writing; so therefore I will mention them all while I am at it.” Then follows:

1st. Roof round instead of square on Orleans street. The defendant saw the change and acquiesced in it.

2nd. Staircase. The evidence is that the stairs were made wider at defendant’s request to permit the installation of a toilet beneath.

3rd. All windows leak. The plaintiff and his workmen deny this. The defect is not satisfactorily proven; nor is it shown that defendant ever repaired the windows, after his occupation of the house.

4th. Lavatory not what specifications called for under stairs. No evidence on that point.

5th. No clean out box for sewerage. The evidence is that it was attended to.

6th. Sash cord in window broke. No evidence in support.

7th. Two locks out of commission. No evidence.

8th. Gas jet leaks. No evidence.

9th. Putty on glasses off. No evidence.

10th. Transom rods instead of rope. It is sufficiently shown that a rod was not possible.

11th. Door frame set wrong. No evidence.

12th. Water settles in gutter on awning. That was adjusted.

13th. Pavement cracked on corner of store. No evidence.

14th. Plastering not up to specifications. The contrary is proven.

15th. Dormer on top of house. The evidence shows conclusively that the change in the style of the dormer from a hip to a gable was effected by the plaintiff at a greater cost to himself without charge and with the knowledge and approval of the defendant. “Besides, there was no resulting damage.” Dewey vs. Orleans R. Co., 115 La. 432, 39 So. 433; 19 Bandry S. 2930-2934; 9 C. J. 744, Sec. 79.

The contract was substantially complied with, Hebert vs. Weil, 115 La. 425, 39 So. 389; Dugue vs. Levy, 114 La. 21, 37 So. 995; Pratt vs. McCoy, 128 La. 572, 54 So. 1012; 7 Ct. App 73; 102 N. Y. 88; 8 Elliot on Contracts, S. 1606, 3693.

A contractor may recover the value of the work which has enured to the benefit of the owner, although the work be defective or unfinished, if a price has been agreed upon; the remedy of the owner is a reduction thereof to an amount necessary to perfect or complete the work according to contract. Babst vs. Peritz, 7548 Orl. App., 12 Orl. App. 126.

16th. Debris left after construction. No testimony that defendant paid any money.

Upon the trial of the case testimony was admitted beyond the objections set forth in the letters. The building contract contained this clause:

“Should any dispute arise respecting the true construction or meaning of the drawings or specifications, the same shall be decided by Mr. J. B. Humphreys, the expert of the party of the first part (A. C. Peralta), or by some other known capable architect to be appointed by said party of the first part, and his decision shall be final.”

Examined as a witness, Mr. Humphreys testified that he had been asked by Mr. Young to look the building over and toll if “it is in accordance with the plans and specifications.” Mr. Young is the attorney for the defendant and he loaned him the money to pay for ^ the erection of the building. Mr. Humphreys testified that the building was not in accordance with the plans and specifications. He was asked: “What do you think it would take in dollars and cents to put that building in shape in accordance with the plans and specifications?” He answered: “Between $550 and $600.”

Being asked how he distributed that cost, he answered:

1st. .The front stairs would have to be taken out, as they are not built according to the plans and specifications.

The only objections that he found to those stairs are that the plans call for panels on the newels and they are plain, and that there are no wall boards on the stáirs. He does not say how much it would cost to put up a panel or wall board. To state that these stairs must be taken down because of these defects is a patent exaggeration. This expert estimates the cost of taking down the steps and rebuilding them at $280.

2nd. The frames do not look like factory work, and it would cost $200 to replace them. No other objection to these frames is pointed out except that they do not appear to be factory work. Scott, plaintiffs’ foreman, says it was all factory work. But there is nothing on the contract that requires wood work to be made by the factory.

3rd. The gables or dormers are not in accordance with the plans. It would cost $80 to change them.

He says the gables are good as they are. It is only a matter of taste.

These three items amount to $555. The change of the stairs because of the absence of a panel or of a wall board is shown to be unnecessary to say the least; the charge against the factory work is not true, and the charge in the shape of the dormers was made with defendant’s approval.

Mr. Humphreys also complains that the stairs are not plastered. He does not say what part of the stairs, nor what the work would cost.

He also says that a sink has been put in the lavatory instead of a washstand. The difference in cost would be $15.

He further says that he was not in the building during its construction and was never called upon for a certificate.

Morgan D. E. Hite is also an architect. He is a brother-in-law of Mr. Young. He was called in by him “to see if it was in accordance with the plans and specifications.”

He examined the building in the presence of the defendant and of the plaintiff and his son, and Mr. Waldhom. He made a report which was signed by himself and Mr. Waldhorn, representing the plaintiff. The plaintiff denied that Waldhorn represented him or was authorized by him to sign the report'. Defendant did not prove Waldhorn’s authority and did not examine him as a witness; one who alleges agency must prove it. Phelps vs. Hodge, 6 La. 524; McCarty vs. Straus & Bauer & Straus, 21 La. Ann. 592; Patterson vs. Litton, 23 La. Ann. 274; 8276 Orl. App.; 2 C. J. 915 S. 635; 2 Greene S. 158. He estimates it would cost $575 to make the necessary repairs and changes as follows:

1st. Relaying canvas, $100, although Humphreys testified $30.00.

2nd. Putting the stairs in conformity with the plans, $14.

3rd. Leaks in roof, $150. No proof of any leaks.

4th. The awnings over the sidewalk. $100. No one points out defects in these.

5th. Electrical work, $20. No defects pointed out.

6th. $6 each for 18 windows in a very leaky condition. No other witness corroborates that testimony; it is denied,, and it is proven that the owner had made no repairs to the windows since he occupied the house. He knows nothing about Humphreys.

The last witness for defendant is A. C. Peralta himself. He w'as not in the city all the time that the building was going on; he has a grocery in the same square; he spends part of his time in his grocery; he was also, at the time, commissary for the markets of the city; he signed' the acceptance of the building, although there were lots of things to be done, because plaintiff’s attorney told him it was a mere formality to enable him to get a certificate from the mortgage office that there were no privileges; plaintiff never told him he would charge him for extra work: when he first saw the dormer windows plaintiff “had one up and the other one mighty near complete”; he could not have written two letters the same day unless they were written by Mr. Young; since the house was turned over to him he has been living in part of it with his family; there is a little grocery in the building run by his son; he has had nothing done to the building since he took it, nor has he spent a dime except to remove the debris; the plastering was not even in some places; the specifications did not call for a bookcase nor for a door in the kitchen.

In all his testimony there is not a word of complaint concerning anything else.

It thus appears that the two letters written by the defendant or by his attorney differ as to the defects, the testimony of Hite still more, while the testimony of the expert Humphreys points out no defects, but only deviations from the plans.

■ Nor is there any evidence that the defendant has suffered $2,000 damages or any part thereof.

On the other hand, the plaintiff and his two foremen and a carpenter all affirm that the building was properly constructed and deny that there were any leaks or defects about it. The trial judge has come to the same conclusion and has decided in favor of plaintiff.

C. Pumilier, building expert for the Italian Homestead Association, testified to the same effect. He says: “As an expert in the building line, and having had that experience for the last sixteen years in construction, I feel and know that the building is up to standard.”

The architect, Hite, himself, said in his report: “We find the building as a structure substantially constructed, but inferior in the finishing work and defective with respect to leak proofness of roof and water' proofness of windows.”

It is settled that although a building contract provides that the contractor shall not be entitled to charge for extra work unless the same is ordered in writing that the contractor may recover when the alteration or increase is so great that it cannot be supposed to have been made without the knowledge of the owner. C. C. 2764 (2735); Crook vs. Tensas Basin Levee Dist., 51 La. Ann. 285, 25 So. 88; State vs. Meche, 114 La. 231, 38 So. 152; Brink vs. Bartlett, 105 La. 336, 29 So. 958; Fitzner vs. F. A. Noullet & Co., 119 La. 900, 44 So. 722; Harvey vs. Monnier, No. 9127, Orl. App. 8488-7254-9613; Sauzeneau vs. Delacroix, 5 Mar. (O. S.) 386; Fossier vs. Heiries, 2 La. 490; Percy vs. Peyroux, 5 Rob. 179; Doyle vs. Ryan, 9 Rob. 404; Smelser vs. Williams, 10 Rob. 97; Patrick Lyons vs. Dymond & Lally, 23 La. Ann. 709; Succession of Bothick, 110 La. 111; 34 So. 163; Derouen vs. Romero, 110 La. 210, 34 South. 415; Queensborough Land Co. vs. Cozlaux, 136 La. 724, 67 South. 641; Collins vs. Hamilton, 14 La. 542; 6 Toull. 446; Alston vs. Ross, 4 Rob. 399.

It is therefore ordered that the judgment herein he reduced from one thousand two hundred and ninety-eight 50-100 dollars to one thousand two hundred and sixty-nine 50-100 dollars, the repairs to the stairs and the cost of a washstand, and as thus amended that it be affirmed, the plaintiff and appellee to pay the costs of appeal.

The parties to the building contract agree to abide by the decision of an arbitrator named in the contract. I see no reason founded upon fraud or extreme partiality to overthrow his findings. I therefore respectfully dissent.

(Signed.) W. W. WESTERFIELD, Judge.


author: CLAIBORNE, j.

text:
    No. 9699.
    Orleans
    LEE ROBY, Appellant, v. PETER GRAHAM, INC.
    (February 1, 1926. Opinion and Decree.)
    (February 15, 1926. Rehearing Refused.)

      (Syllabus by the Court.)

    1. Louisiana Digest—Automobiles—Par. 4 (d).
    An act committed in violation of a city ordinance does not impose liability for the injury resulting therefrom unless the injury was the natural and direct consequence of the violation.
    (Civil Code, Art. 2315. Editor’s note.)
    Appeal from Civil District Court, Hon. Hugh C. Cage, Judge.
    This is a suit in damages resulting from a collision between a motorcycle and a truck.
    There was judgment for defendant and plaintiff appealed. Judgment affirmed.
    J. J. Wingrave of New Orleans, attorney for plaintiff) appellant.
    Henry Mooney and J. C. Foster of New Orleans, attorneys for defendant, appellee.
   CLAIBORNE, j.

This is a suit in damages resulting from a collision with an automobile.

The plaintiff alleged that on November 9, 1923, defendant’s employee operating a truck belonging to the defendant collided with petitioner, who was riding a motorcycle, and inflicted upon him a double fracture of his right leg; that the injury sustained by petitioner was wholly the fault of the colored chauffeur and employee ■ of defendant company, and was due to the negligence and violation of the automobile traffic laws by the- said servant of the defendant; that on the uptown side of Dumaine Street and the rear side of Prieur Street and about 20 feet from Prieur Street the automobile truck of defendant was parked; that as petitioner approached the Prieur and Dumaine intersection the chauffeur of defendant cut diagonally across from the upper side of Dumaine Street in order to follow traffic down Prieur Street; that had the chauffeur of defendant come to the intersection of the streets and followed traffic the collision and injury sustained by petitioner could have been averted; that when defendant’s chauffeur cut diagonally across petitioner’s path in violation of the traffic laws, defendant, its agent and employee was negligent and because of said negligence on the part of defendant and their servant petitioner sustained the injury to his right limb and lacerations of the head and body, etc.

Petitioner prayed for $10,000 damages.

The defendant admitted the accident, but denied all the other allegations of the petition. Further answering, it alleged:

That defendant company is engaged in the wholesale grocery business; that its truck was driven on that day by one Moore and was engaged in delivering groceries to customers;. that Moore is an experienced chauffeur; that Moore had stopped at the grocery of one Weixel on the uptown side of Dumaine Street at about twenty feet from the corner of Prieur Street; that after making a delivery there he crossed the intersection and proceeded down Prieur Street; that he had crossed the downtown river corner and his truck was almost entirely on Prieur Street, leaving only the rear end remaining on Dumaine Street, when plaintiff’s motorcycle crashed into the rear portion of the truck; that not only the plaintiff was riding on the motorcycle, but two other companions, which overloaded it so that plaintiff could not properly control it; that the plaintiff was driving at the rate of 25 miles an hour; that the proximate cause of the accident was plaintiff’s negligence in not looking ahead to avoid the traffic on the street, in not avoiding defendant’s truck when he had ample space to do so, and in carrying two companions upon the motorcycle.

Upon the trial of the case the plaintiff did not offer in evidence the whole of the traffic ordinance, but only that portion of it “relating to the correct way to turn to the right and left.”

There was judgment for defendant and plaintiff has appealed.

In his reasons for judgment the learned Judge a quo says: “His (plaintiff’s) sole charge of negligence is, that the truck driver did not proceed to the center of Prieur Street before turning down Prieur Street, so as to leave ■ the central point of the intersection of these two streets on his left hand side. The driver of the truck and the grocer Weixel testified that this is exactly what the truck did do.”

Without passing upon the correctness of these conclusions, we are of the opinion that it is not shown that this omission, even if true, was the cause of the accident, and the accident might have happened even if the defendant’s chauffeur had obeyed the traffic ordinance in this particular.

Considering that the only issue involved in the case was that stated by the District Judge, we see no error in his judgment, which is therefore affirmed.


author: BELL, J.

text:
    No. 9126.
    Orleans
    LUDGER ROME, ET AL., v. THE MEXICAN PETROLEUM CORPORATION OF LOUISIANA.
    (January 18, 1926. Opinion and Decree.)
    (February 1, 1926. Rehearing Refused.)
    (March 1, 1926, Writ of Certiorari and Review Denied by the Supreme Court.)

      (Syllabus by the Court.)

    1. Louisiana Digest—Master and Servant —Par. 160.
    Under Section 8, subsection 2(g) of Act 20 of 1914, as amended, a father and mother may recover compensation in suit brought under Employers’ Liability Act against the former employer of their deceased son, if they be shown to have been actually dependent to some extent upon their son’s support at the time of his injury and death.
    (The recent amendment of Sec. 8 of Act 20 of 1914 is Act 216 of 1924. Editor’s note.)
    2. Louisiana Digest—Master and Servant —Par. 154, 160 (e).
    Liberal interpretation of the law is the rule of reason governing courts in compensation cases, and no definite inflexible rule can be established. Each case must be considered in the light of its own facts and attending circumstances.
    3. Louisiana Digest—Master and Servant —Par. 160.
    Where a minor son, absent from home during eight months of employment, is shown to have made remittances with reasonable regularity to one of his parents, with the evident purpose of assisting in the maintenance of an overburdened if not impoverished parental household consisting of five unmarried children, four of whom are also minors unemployed, a case of actual dependency, with reasonable expectation of continued pecuniary assistance, is established, and recovery under the Act is justified. (Section 8. Subsection 2 (g) of Act 20 of 1914.)
    Appeal from the Twenty-sixth Judicial District Court, Parish of St. Charles, Hon. H. N. Gautier, Judge.
    This is a suit for compensation brought by the father and mother of the deceased employee for recovery under Section 8, Subsection 2(g) of Act 20 of 1914, as amended by Act 43 of 1922. The only question is that of the meaning of the Word “dependency” as used in the Workmen’s Compensation Act.
    There was judgment for plaintiffs and defendant appealed.
    Judgment affirmed.
    J. A. Carville of Hahnville and A. A. Provosty of New • Orleans, attorneys for plaintiffs, appellees.
    P. M. Milner of New Orleans, attorney for defendant, appellant.
   OPINION.

BELL, J.

By record admissions made in this case, all issues have been eliminated except that of dependency, within the meaning and intendment of the Employer’s Liability Act of Louisiana (No. 20 of 1914) and subsequent amendments, up to and including those of Section 8, subsection 2 (g) of Act 43 of 1922.

Appellants, as the father and mother, respectively, of their minor son Albert Rome, killed while in the employ of the defendant Company, seek compensation under the Act as dependents of the deceased.

The petitioners allege that their son was employed by defendants as a pipe fitter; that he was ordered by defendants’ foreman to help in extinguishing a fire, and while so engaged a gasoline tank exploded, burning their son severely and causing his death, the next day, at Touro Infirmary.

There was judgment in favor of plaintiffs for $9.45 per week for 300 weeks from November 5, 1921, until paid, and for the additional sum of $100.00 as funeral expenses. Prom this judgment defendant has appealed.

The evidence shows that plaintiffs had ten children. Two sons, including Albert Rome, were killed in recent accidents. The deceased and three married children lived away from home. Plaintiff’s immediate family, at the time of Albert Rome’s death, consisted of themselves and five children, four of whom were minors attending school. The father, one of the plaintiffs herein, was employed as overseer on a plantation at a salary of $125.00 per month, this being his only source of revenue. He testifies that it took all of his salary and sometimes more to feed and clothe himself and family. At the time of the trial he was not in debt and had about $20.00 in a savings bank. The deceased son lived with a married sister, to whom he paid board. The father and another son (the only witness in the case) testified positively that deceased brought portions of his salary regularly to his mother, whenever he visited her at intervals from two or three weeks, and one of these witnesses (the brother) swears that he saw deceased turn the money over to the mother; neither witness was - able to state definitely as to the amounts which were, paid when the deceased visited his home, the father saying: “Sometimes $5.00, sometimes $20.00. I cannot tell exactly.” None of the payments appear to have been made to the father. He states further that- none of the children at home contributed to plaintiff’s support, and that he never asked the deceased for any money; that the wife took care of everything, and that “all the boys” (meaning evidently those who worked) “brought money home to their mother.” These are all the facts which are material to the determination of -the issue as to dependency of the parents.

The evidence satisfies us that an unquestionable condition of dependency has been established in this case. It is contended for defendant that the testimony of neither witness is convincing or certain; that no positive proof has been made as to the dates or amounts of the contributions given by the deceased. There is sufficient proof, in our opinion, of the fact that some assistance was given— whatever' may have been the amount—and that it came with reasonable regularity, sufficient to justify the conclusion in the light of other evidence as to the excessive burden imposed upon the parents for maintaining the home; that plaintiffs were dependent upon the deceased for needed support at the time of the latter’s injury and death. The mother, who was shown by the evidence to be more or less an invalid, did not testify. Much is made of this fact in appellant’s brief. Her failure to do so does not in any manner prejudice plaintiff's casé. If called, she could have but corroborated the .testimony of the other members of the household, who have amply presented the. circumstances under which plaintiffs were struggling to maintain an existence, not perhaps of approaching impoverishment, but certainly one far from luxury or ease.

It is also fair to conclude, in this case, that plaintiffs reasonably expected and depended upon a continuance, during their son’s life, had he lived, of that assistance which he had been in the habit of giving them.

In Gregory vs. Standard Oil Co., 151 La. 228, 91 South. 717, the Court said:

“The statute does not attempt to define what shall constitute ‘actual dependence for support to any extent,’ and the court cannot make any definite inflexible rule to govern each case. Each case must be construed in the light of its own facts and attending circumstances. Our conclusions in this case is that it is not necessary that the plaintiffs should have been actually receiving from their son contributions. or pecuniary aid at the time of his death; that the son’s parents, being in necessitous circumstances and he being a minor, that he had contributed his personal labor, in making a crop the year previous to his death and which went to their support; and when, after the crop was harvested, the son left, with the consent of his parents, to seek employment, promising his parents to send a stated amount of his monthly wages to employ a hand to take his place, constitute the parents actual dependents to such an extent as to bring them within the meaning of the statute.”

In the foregoing case, as well as in Hamilton vs. Texas Oil Company, 151 La. 692, 92 South. 301, the jurisprudence on the subject of dependency under compensation statutes was extensively considered; In the Gregory ease it was further held:

“Our statute does not require that the father and mother should be absolutely dependent on their son for support before they can recover compensation for his death. The only requirement is that they should be actually dependent to any extent, that is to say, to some extent.”

Our brothers of the Second Circuit Court of Appeal have recently determined in two well-considered cases the same rule of interpretation and have granted recovery, such as should now be had in the instant case. See Cauthorn, et al., vs. Cypress Tank Co., 1 La. App. 100; also Nelson vs. Henderson Iron Works and Supply Co., 1 La. App. 332.

We find no error in the judgment of the Trial Court.

For the foregoing reasons, it is ordered that the judgment appealed from be affirmed, at defendant’s cost in both courts.