text:
    No. 11,000
    Orleans
    Y. M. C. A. v. CITY OF NEW ORLEANS
    (June 24, 1929. Opinion and Decree.)
    W. O. Hart, of New Orleans, attorney for plaintiff, appellee.
    Bertrand I. Cahn and Henry B. Curtis, of New Orleans, attorneys for defendant, appellant.
   JANVIER, J.

Plaintiff, alleging that, on June 30, 1920, it became the owner of two lots of ground and the improvements thereon, brought suit, seeking the annulment of an adjudication of said property to the city of New Orleans for taxes for the year 1920.

The grounds of annulment urged in the original petition are:

(a) “That the notice required by law was not given to petitioner preceding said tax sale.
(b) “That said tax sale was not advertised for 30 days as required by the Constitution and laws of the state of Louisiana, but was advertised for but 27 days.”

The city of New Orleans denied the material allegations of the petition. Shortly after the case was tried and submitted, the trial judge, in support of a judgment annulling the adjudication, rendered written reasons, the material portion of which reads as follows:

“Defective advertisement is alleged. The law provides that the last pub.ication, if an evening paper, carrying notice of tax sale, must be on the day before the crying and sale of the property. In this case the notice was published on the day of the sale and probably after the salo.”

Motion for a new trial was filed, and there appears on the bottom of that motion, in ink, the word “Refused,” and the figures, “4/29/25.” It is evident, however, that the new trial was in fact granted, because some time later plaintiff filed a supplemental petition, and later still, after appropriate pleadings by defendant, we find another judgment annulling the adjudication. It is from this judgment that the city of New Orleans prosecutes this appeal.

In its supplemental petition plaintiff alleges, as an additional grounds for the nullity of the adjudication:

“That petitioner is a legal, voluntary, eleemosynary institution, charitable in its nature, and so recognized by the courts.”
“That under the legislative charter of petitioner, Act No. 89 of 1872, all its property up to $500,000 is exempt from taxation, and the property owned by petitioner does not exceed that amount.”

It thus appears that the adjudication of the property is attacked on three grounds, appearing in the tv o. petitions:

(1) Want of notice.
(2) Insufficient advertising.
(3) Exemption from taxation of property owned by petitioner.

The evidence shows that two notices -A delinquency were served — one at the domicile of the former owner of the property and another on plaintiff itself through Dr. Brown, whose capacity was admitted by counsel for plaintiff in the following words:

By Mr. Hart: “It is admitted that he is the secretary of the Young Men’s Christian Association.”

It seems quite apparent, then, that the contention as to want of notice is not well founded.

The advertisement seems to us to have fully complied with legal requirements. It appeared first on August 31, then on September 7, September 14, September, 21, and September 28. The sale took place on October 3, 1921, or 32 days after the first advertisement. It win be seen that the advertisements appeared once during each calendar week, or five times in all.

But, argues counsel for plaintiff, the last advertisement, though it appeared in an afternoon paper, did not appear on the day immediately preceding the day of sale, and, therefore, did not comply with the provisions of Act 167 of 1914. Section 1 of that act reads as follows:

“Be it enacted by the General Assembly of the state of Louisiana, that all sales by public auction or otherwise, of movable or immovable property, required by law or order of any court in this state, to be advertised in a newspaper, published either in the morning or afternoon, provided that when such advertisement is placed in a newspaper published and issued in the afternoon R shall be a legal and vaiid advertisement if the last ao vertisement shall appear in the issue of said afternoon newspaper on the day immediately preceding the day of sale.’’

We are thus asked to hold that, in enacting the statute in question, the legislators intended to require that the last advertisement, if in an afternoon newspaper, must, under penalty of nullity of the sale, appear on the day immediately preceding the sale.

In considering this question it seems to us important to determine what was the reason for the enactment of the statute. Was it to add additional requirements, or was it to removo difficulties? Was it to broaden, or was it to restrict? In view of the fact that, at the time of the passage of this law, our Supreme Court had held (In re Lindner, 113 La. 772, 37 So. 720; Buckingham vs. Negrotto, 116 La. 737, 41 So. 54) that, if the last insertion appeared in an afternoon newspaper, and was not published until after the hour of the sale, this last insertion could not be considered in determining whether there had been a sufficient advertisement, and because of these decisions it was thus thought that advertisements in afternoon newspapers might be illegal, it would seem that the object of the statute was not to add an additional requirement to the effect that the last insertion must appear on any particular day, but was merely to grant permission that it might appear on the day preceding the sale, and to declare that it should not appear after the hour of the sale.

The wording of the statute itself leads us to the conclusion that it was not intended that, if the last insertion appeared on any other day than that immediately preceding the sale, the sale should be null, because, if that had been the purpose of the legislators, it would- have been a very simple matter for them, in unambiguous terms, to have made it mandatory that it should appear on that day, instead of using language which indicates rather permission than command.

If, prior to the enactment of the statute, there had been, in the law** of Louisiana with reference to legal advertisements, any requirement that the last insertion should, under penalty of nullity of the sale, appear on the day of the sale, or on any other particular day, then we would agree with plaintiff in the contention that the purpose of this.act was to require that the last insertion appear on the particular day mentioned. But, until that time, there was no requirement that the advertisement appear on the day of the sale or on any other named day. Prior to 1914 all that was required was that the first insertion should appear more than 30 days prior- to the sale, and that there should thereafter be an insertion once during each calendar week. Article 1117, R. C. C., and article 670 of the Code of Practice, are based on Act 104 of 1878, which reads as follows:

“Be it enacted by the Senate and House of Representatives of the state of Louisiana in General Assembly convened, that judicial advertisements shall be made by publication in a daily paper on three different days before the expiration of the term fixed by law, if the term be of ten days; and for those advertisements for which the term of thirty days is fixed, it suffices if they are published in a daily paper once a week during that term.1 * * * ”

In re Lindner, 113 La. 772, 37 So. 720, in which case it is true the sale was set aside by reason of deficient advertisement, the court said: .

“There was no advertisement on the 20th, 21st, 22d, 23d, 24th, or 25th of the last week.’’

The sale took place on the 26th. It seems to us that what the court intended to say was that, if the advertisement had taken place on any one of the days mentioned, it would have been sufficient.

In Buckingham vs. Negrotto, 116 La. 737, 41 So. 54, the court said:

“The advertisement of a tax sale in the last week of the 36 days must be published before the day and hour fixed for the sale.”

It will be noted that the court used the words “in the last week or the 30 days.”

In In re City of New Orleans, 52 La. Ann. 1078, 27 So. 592, the advertisement complained of appeared once during each calendar week for five weeks. It did not appear on the same day of each week. The Supreme Court held that all that was necessary was that the first advertisement should be at least 30 days prior to the sale, excluding the day of sale and the day of the appearance of the first advertisement, and that it should appear oncé during each succeeding calendar week. Nowhere do we find any requirement that the last-advertisement appear on the day of the sale.

It appears, then, that the purpose of Act 167 of 1914 was to broaden rather than to restrict, and since, at that time, there was no requirement as to the particular day on which the last advertisement should appear, other than it must be during the last week, we think it illogical to hold that the act does restrict, and doés fix the particular day on which the last advertisement must appear. It seems to us that the advertisement in this case complied fully with all legal requirements.

Plaintiff’s ownership of the property did not commence until June 30, 1920. ' For the purpose of determining whether or not property is exempt from taxation for any year, its status is to be taken as of January 1st of that year. Gulf Public Service Co. vs. La. Tax Commission et al., 167 La. 757, 120 So. 286; Home Ins. Co. vs. Board of Assessors, 48. La. Ann. 451, 19 So. 280; Southern Ins. Co. vs. Board of Assessors, 49 La. Ann. 401, 21 So. 913; Palfrey vs. Sheriff, 106 La. 699, 31 So. 148; Bunkie Brick Works vs. Police Jury, 113 La. 1062, 37 So. 970; Hammond Lumber Co. vs. Smart, 129 La. 945, 57 So. 277, 38 L. R. A. (N. S.) 856; City of New Iberia vs. Police Jury, 135 La. 775, 66 So. 193; Morgan’s La. & Tex. R. R. & S. S. Co. vs. White, 136 La. 1078, 68 So. 130; Jasper & E. Ry. Co. vs. Martin, Tax Collector, et al., 142 La 1047, 78 So, 112.

In the Gulf Public Service Case, supra, which is the latest expression on the subject, the Supreme Court said:

“In jurisdictions where all taxable property is required to be assessed, at a particular date, it has been held that, if, under the local statutes real estate is exempt from taxation on that date, it does not become subject to taxation during the current year, even though transferred to a person in whose hands it is no longer exempt. Clearwater Timber Co. v. Nez Perce County (C. C.) 155 F. 633; Wildberger v. Shaw, 84 Miss. 442, 36 So. 539; Baltimore v. Jenkins, 96 Md. 192, 53 A. 930; Ohio Val. Ry. Co. v. Commonwealth (Ky.) 49 S. W. 548; Electric Co. v. New Orleans, 45 La. Ann. 1475, 14 So. 231; County of Martin v. Drake, 40 Minn. 137, 41 N. W. 942; King v. City of Madison, 17 Ind. 48; Long v. Culp, 14 Kan. 412; Swann & Billups v. State, 77 Ala. 545.”

We can see no reason yrby the converse should not be equally true; that property taxable on January 1st cannot, by reason of a transfer of ownership, thereafter become exempt from the payment of taxes for that year.

We find only one case (Citizens’ Bank & Trust Co. vs. Board of Assessors, 129 La. 1091, 57 So. 528, 38 L. R. A. (N. S.) 1157) which, on first reading, would seem to he an exception to this rule, and in the Gulf Public Service Company Case, supra, the Supreme Court of Louisiana has explained and distinguished it in the following manner:

“The only exception to this rule which has been called to attention is the decision in Citizens’ Bank & Trust Co. v. Board of Assessors, 129 La. 1091, 57 So, 528, 38 L. R. A. (N. S. 1157. In that case, it was held, that the real estate and improvements of the Citizens’ Bank, exempt from taxation on January 1, 1911, became subject to taxation after being acquired by the Citizens’ Bank & Trust Company on February 6th of that year.
“This decision was rendered when Act 170 of 1908 was in force, and fixed an assessment period beginning on January 1st and ending on March 1st. The court held the property assessable on the theory that the exemption was lost during the period of listing, since the property during that period had been acquired by an owner in whose hands it was no longer exempt.
“The decision in the Citizens’ Bank & Trust Co. case is not pertinent to the present case, since, during the entire period fixed by the Louisiana tax commission for the listing, and for the review by local boards of assessments for 1927, the property involved in this case was a public plant, owned and operated by the city of Crowley, and was exempt from taxation under article 10, sec. 4, of the state Constitution of 1921.’’

The property was therefore not exempt from taxation for the year 1920. The notice was properly given and the advertisement was sufficient. Plaintiff’s case must therefore fall.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be and it is annulled, avoided, and reversed, and that there now be judgment in favor of defendant, against plaintiff, rejecting plaintiff’s demand and dismissing this suit, at the cost of appellant.


source: Caselaw Access Project

author: WESTERFIELD, J.

license: Public Domain

text:
    No. 10,968
    Orleans
    ALEX F. DREYFOUS CO., INC., v. KEIFER
    (May 27, 1929. Opinion and Decree.)
    (June 24, 1929. Rehearing Refused.)

      Albert B. Koorie and A. D. Danziger, of New Orleans, attorneys for plaintiff, appellee.
    Sidney F. Fautier, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

The plaintiff corporation is engaged in the business of buying and selling real estate. It sues the defendant for a commission in the sum of $300, under the following circumstances:

Defendant was a tenant of property owned by Mr. or Mrs. E. B. Wilken. (There is some dispute as to whether the property was community or paraphernal.) An employee of plaintiff induced defendant to sign an offer to purchase the property from which we quote the following:

“I offer to buy 1425-27 Marshall Street for $7500.00, on terms of part cash and balance homestead. If this offer is accepted, I will deposit $750.00 immediately, but not as earnest money, either party reserving the right to demand specific performance. Should I fail to, comply, I obligate myself to pay the commission and all fees in enforcing collection. This offer to remain good through August 20th, 1925, 5:00 p. m.”

This offer was signed by Mrs. E. B. Wilken. Plaintiff failed to deposit the $750, and this suit resulted.

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

A number of defenses are presented, but in the view we take of the case, it is necessary to consider only one, to-wit, that the offer was not accepted within the time mentioned therein, that is to say, 5:00 p. m., August 20, 1925. The evidence on this point, as presented by plaintiff, is to the effect that Mrs. Wilken’s signature to the offer was obtained in the afternoon of August 20th and communicated to the defendant over telephone some time between 4:30 and 5:00 p. m. The defendant, Keifer, denies having received the telephone message on that day, asserting that the alleged telephone conversation occurred the next day or August 21st. The acceptance of Mrs. Wilken, - which is evidenced by her signature on the same document which contains plaintiff’s offer, is undated.

It is apparent that plaintiff intended his offer to be open until 5:00 p. m., of August 20, 1925, and no longer, and we are not convinced that he had any knowledge whatever of Mrs. Wilken’s acceptance before that time, even if the telephone communication was sufficient notification of acceptance.

Under Revised Civil Code, article 2275, contracts relative to the transfer of immovable property must be in writing. Article 1798 Revised Civil Code provides that:

“As there must be two parties at least to every contract, so there must be something proposed by one and accepted and agreed to by another to form the matter of such contract; the will of both parties must unite on the same point.”'

In Barchus vs. Johnson, 151 La. 985, 92 So. 566, it was held:

“According to the cited provisions of the law in this state, it is apparent that an option to buy or not to buy immovable property must be evidenced by a written instrument, that the acceptance of the offer made in such instrument must equally be evidenced by writing, and that it must be tendered to the proposer before the time limited in the option has expired. See Elmer v. Hart, 121 La. 537, 46 So. 619.”

We are of the opinion that the acceptance of plaintiff’s offer was not communicated to him within the time limited for its expiration' and that, therefore, without considering the other defenses raised hy the pleadings, the plaintiff cannot recover.

For the reasons assigned the judgment appealed from’ is reversed and it is now ordered that there be judgment in favor of defendant, dismissing plaintiff’s demand.


author: HIGGINS, J.

text:
    No. 11,247
    Orleans
    AMERICAN MULTIGRAPH SALES CO. v. PEACH BLO PRODUCTS, INC.
    (June 24, 1929. Opinion and Decree.)
    L. R. Wertheimer, of New Orleans, attorney for plaintiff, appellant.
    L. R. Hoover, of New Orleans, attorney for defendant, appellee.
   HIGGINS, J.

This is a devolutive appeal from a judgment, which through error, failed to recognize plaintiff’s vendor’s lien and privilege. The judgment appealed from is the same judgment which was amended by consent and as amended, considered by us in American Multigraph Sales Company vs. Globe Indemnity Company, 11 La. App. 353, 122 So. 359, this day decided.

We have been favored with a brief on behalf of the Globe Indemnity Company, surety on the sequestration release bond and defendant in that case. This brief, filed by its attorneys as amici curiae discusses the effect of an amendment of the judgment now before us.

It is sufficient to say that whatever may be the effect of the amendment of the judgment appealed from, the question is not before us, at this time, for determination.

Appellant is clearly entitled to have the judgment amended so as to recognize the lien and privilege.

It is therefore ordered, adjudged and decreed that the judgment appealed from be amended so as to read:

“It is therefore ordered adjudged and decreed that there be judgment in favor of the American Multigraph Sales Company and against the Peach Bio Products, Inc., in the full sum of $607.50 with 8 per cent interest from September 1, 1921, until paid, and in the further sum of $100.00 with legal interest thereon from judicial demand until paid and with full recognition and maintenance of plaintiffs’ lien and privilege on the property sequestered herein and also maintaining the writ of sequestration herein. The costs of both courts to be paid by defendant and appellee.”


author: JANVIER, J.

text:
    No. 11,370
    Orleans
    DUPUY v. DUPUY
    (April 29, 1929. Opinion and Decree.)
    Benj. Y. Wolf, of New Orleans, attorney for plaintiff, appellee.
    Wm. J. Curren, of New Orleans, attorney for defendant, appellant.
   JANVIER, J.

Plaintiff sues defendant for $479.20; $471.20 of which is claimed as the balance due on certain cows sold to defendant, and $7.50 of which plaintiff alleges he paid for account of defendant for hauling certain cattle to the stock yards. Judgment was rendered for $429.70. Defendant has appealed and plaintiff has answered the appeal, contending that the trial court was in error in allowing a certain credit of $49.70.

Defendant contends that one of the cows sold was about to give birth to a calf and that it was understood that the agreed value of this cow, to-wit, $200, was to be paid only if she came safely through this delivery, but that, as she died shortly after the birth of the calf, this $200 is not due. He also claims that plaintiff broke into his barn and took one of his cows, which he had bought for $125, and sold it to the slaughter house for $33.25, for which amount credit was given him, but that he should have been given additional credit for $91.75; the difference between the value of the cow and the credit allowed. We find no other defense worthy of consideration and if defendant were correct in both of his above contentions he would still owe $137.75. Let us now consider his two contentions.

As to the item claimed for the cow, which he contends was sold conditioned on its surviving the birth of the calf, the trial judge found that the evidence did not sustain his claim that there was such an agreement. The conclusion of the trial judge in this regard seems to us to be justified by the evidence. Furthermore, even if there had been such an undei’standing that this cow was not to be paid for unless she survived the ordeal of delivery of her calf, the evidence shows that after the calf was born the cow lived sixty days, and there is no satisfactory proof that the death of the cow resulted from the birth of the calf. In the absence of such proof, defendant’s contention as to this cow would have to be rejected, even if it had been conclusively shown that there was an understanding such as we have discussed.

As to the contention that plaintiff broke into defendant’s barn and took out one of his cows, for which he had paid $125, we find the evidence very unsatisfactory and confusing. Plaintiff claims that he was authorized to remove certain of defendant’s cows and to sell them for defendant’s account. Credit seems to have been given for all amounts received from the sale of these cows and a credit of $33.25 was given for this particular cow. So far as the record shows, no protest was made at that time that a credit for the whole amount, to-wit: $125, should have been given. Furthermore, the evidence shows that, at the time this cow was bought for $125 she was fresh — in other words, in good dairy condition, whereas, when she was sold to the slaughter house, she was fit only for butchering. At any rate, whether the removal and sale of the cow was authorized is solely a question of fact. The trial judge has decided this question in plaintiff’s favor and we believe his finding is warranted by the evidence.

This brings us to plaintiff’s contention that a credit of $49.70 was erroneously allowed. A great many payments on account were made at various times — some in cash, some in checks. All of this evidence and all of these mathematical calculations were before the trial judge. His reasons for judgment show that he gave all of this evidence consideration and our study of it convinces us that there is no reason to disturb his finding in this regard.

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


text:
    No. 11,891
    Orleans
    BAQUIF v. MERAUX
    (June 24, 1929. Opinion and Decree.)

      James G-. Schillin and Wm. J. O’Hara, of New Orleans, attorneys for plaintiff, appellee.
    Eraste Vidrine and M. E. Schaefer, of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

'Plaintiff sues the defendant for damages for physical injuries which she suffered by reason of being run into by the automobile of defendant, which was being driven by his daughter. There was judgment below for $3000 and defendant has appealed. Plaintiff has answered the appeal, asking that the amount be increased to $5000.

The plaintiff, Miss Olivia Marie Baquie, with three other female companions, were walking on the right side of the St. Bernard highway in the direction of the City of New Orleans. The defendant and his daughter were driving along the same highway in the same direction, and, as they reached a point upon the road near the “Pakenham Oaks,” and just below the city, ran into and injured the plaintiff.

The defense is, first, a denial of responsibility upon the ground that defendant was neither the owner nor the driver of the automobile at the time of the accident; secondly, a denial of negligence on the part of his daughter, and, in the alternative, a plea of contributory negligence.

The first defense is based upon the averment that the car which caused the injury was the property of defendant’s daughter, a young woman twenty-four years of age, having been given her by her father shortly after its purchase. The evidence in support of this contention consists of the statement of the father and daughter to that effect. It is admitted, however, that the car was bought by the father, paid for by him, registered and insured in his name, and that he rode in and drove the car when it pleased him to do so. At the time of the accident it was being driven in defendant’s service by his daughter. Defendant has failed to establish to our satisfaction that he was not the owner of the car. Miss Meraux testifies that she was driving very slowly —ten or fifteen miles per hour she estimates her speed to have been — that she was constantly blowing her horn, and, as she neared the young women, she slackened her speed to five miles per hour and could have stopped, but did not do so for the reason that plaintiff and her companions started to move off the roadway and out of her path, and would not have been hit by the car if plaintiff had not suddenly reversed her steps and moved quickly to the left and in the path of the automobile. Plaintiff, corroborated by her three companions, testifies that she was not aware of the approach of the automobile until just before it struck her, when the horn was blown and she heard one of her companions shout a word of warning to her.

The accident happened on December 14, 1926, at about 1:00 p. m. The road was straight and the weather clear. The group with which plaintiff was walking could be plainly seen, and were seen by Miss Meraux, long before she reached the scene of the accident.

When the driver of an automobile sees four pedestrians walking along the highway in front of him, it is his duty to take extraordinary care to prevent injuring them, and he must take reasonable precautions to make certain that the pedestrians are aware of his approach. The duty of care rests more heavily upon the motorist than the pedestrian. The degree of care necessary to be exercised must be commensurate with the danger involved.

“The rule of reasonable precaution which the law enjoins upon a driver of an automobile upon a public highway includes the necessity of making certain that foot passengers are aware of the rearward approach of the vehicle; that the vehicle itself is at such a distance from the pedestrian as to avoid running over him in his sudden panic from surprise at knowledge of its unexpected approach; and finally, that the vehicle is under such control as that it may be stopped promptly.”

Berry on Automobiles, 6th Ed., Vol 1, page 293.

In Weidner vs. Otter, 171 Ky. 167, 188 S. W. 335 (1916), it was held that:

“It is a familiar rule in the law of negligence that the care to be exercised must correspond with the capacity to injure, and accordingly the automobilist is under a much higher degree of care to look out for the pedestrian than the pedestrian is to look out for the automobilist. The pedestrian cannot merely by the manner in which he uses the street harm the automobilist, but the automobilist may by his manner of using the street kill the pedestrian; and so, generally speaking, the pedestrian is only required to look after his own safety, and not the safety of others, while the automobilist must look out for the safety of the pedestrian rather than his own.”

We are not satisfied that sufficient warning was given of the approach of the Meraux car. In any event, we are convinced that, if the horn was blown at intervals, as claimed, it was not heard until just before the plaintiff was run into. If she exhibited confusion and darted, first one way and then the other, her actions in that regard, even though she ran directly across the path of the automobile, cannot be regarded as contributory negligence for the reason that, in the emergency created by the unexpected appearance of the automobile she could not be expected to exercise the same degree of judgment as one not subject to the fear of sudden disaster. Blashfield’s Cyclopedia of Automobile Law, Vol. I, page 597.

If the Meraux car had been driven as slowly as it is said to have been, the accident could have been easily avoided by stopping the automobile altogether, until the safety of the four pedestrians was assured. In Jacoby et ux. vs. Gallaher, 10 La. App. 43, 120 So. 888, a case involving injury to a child, we said:

“In the country the public roadway is shared by vehicles and pedestrians and there is no impropriety, nor is there any negligence implied, in the practice of country residents walking along the side of the road. The highway is intended for their use as well as for the use of automobiles. Consequently, when a motorist observes pedestrians on the roadway he must be careful not to injure them. It is his duty to give warning of his approach and to keep his automobile under control. This is true in the case of adults, but in the case of children, 'extraordinary precaution is necessary.”

See also Kelly vs. Ludlum, 9 La. App. 57, 118 So. 781.

Plaintiff’s injury was to her spine. The coccyx and the sacrum, which, we are informed by the medical testimony in the record, are the two bones which form the caudal extremity, were fractured and, at the time of the trial had not been satisfactorily repaired, due to the fact that plaintiff has declined to submit to an operation. She describes her suffering as intense and varied. For example, she says:

“My bladder is affected, my vagina is affected, my rectum is affected. I have a constant sticking and burning and itching sensation. It does not leave me one moment at work or taking a drive for pleasure, or anything I do. This thing is with me, just like a constant aching tooth that aches all the time, and it has just about got my nerves all to pieces. Some day I know it is going to be an operation, because I am not going to be able to stand this constant misery.”

All of the symptoms she describes are subjective and must largely be taken on faith. Nevertheless, we are convinced that her injuries are serious. It must be borne in mind, however, that in awarding damages for physical injuries, it is impossible to compensate claimants on a quid pro quo basis. The result is, as we are often ■reminded, that an apparent inconsistency exists in the amounts allowed under circumstances nearly similar. The cases in this jurisdiction and, we fear, in others, cannot be reconciled. Each case in this respect must very largely justify itself. Plaintiff is a midwife by occupation and as a result of the accident her earning capacity was considerably impaired. She has incurred an expense for medical services amounting to about $300. The trial court allowed her $3000, and we will not disturb its finding.

For the reasons assigned the judgment appealed from is affirmed.


text:
    No. 11,084
    Orleans
    NORTH RAMPART LUMBER & SUPPLY CO. v. HUPPENBAUER ET AL.
    (June 24, 1929. Opinion and Decree.)

      Eugene Thorpe, of New Orleans, attor- I ney for plaintiff, appellant and appellee. ]

    Paul L. Eourchy, of New Orleans, attorney for Pisciotta, defendant, appellees and appellants.
    Martin E. Kranz, of New Orleans, attorney for Huppenbauer, defendant, appellees and appellants.
   JANVIER, J.

Defendant Huppenbauer ; was a contractor engaged in the construction of buildings. Defendant Pisciotta en- : tered into a contract with Huppenbauer, - for the construction by Huppenbauer of cer- ■ tain work. The contract was not in writing, was not recorded, and no bond was required.

The contractor had for some time made purchases of material from plaintiff. On March 30, 1926, he owed a balance of $603.34, and, at the request of plaintiff, executed notes for that amount. The notes were not paid at maturity, and this suit is the result.

So far as Huppenbauer is concerned, there is no defense, and the correctness of the judgment against him is conceded. Judgment is asked against Pisciotta, however, for $493.67, being the balance alleged to be due to plaintiff for material bought for and delivered to the work which was under construction for him.

Pisciotta contends that he has paid Hup- • penbauer in full. Conceding that he has done so, he is not relieved from liability to a materialman, who has not received his money, because, under the circumstances set forth, he (Pisciotta) stands in the shoes of the surety, and is liable to the same extent as the surety would have been. Act 139 of 1922.

The serious defense, however, is that the materialman (plaintiff here) has been paid an amount which, if- imputed properly on its books, would have extinguished the debt for which defendant Pisciotta is here sued. This defense is based on the fact that, a short time prior to the execution of the notes sued on, the contractor, Huppenbauer, had been indebted to plaintiff in a sum approximating $1,900, and had, by a cash payment of $1,300, reduced the balance due to $603.34.

Defendant Pisciotta contends that the $1,300 payment should have been imputed to the oldest and most onerous accounts on plaintiff’s books against Huppenbauer, and that, as the accounts resulting from the sales for the Pisciotta work were among the oldest and most onerous, such imputation would have extinguished them.

The legal contention above referred to is undobutedly correct. Madison Lbr. Co. vs. Bachemin et al., 9 La. Ap. 382, 120 So. 508. Therefore, if the fact is that the Pisciotta accounts were older and more onerous than those to which the payment was imputed, defendant’s contention must prevail.

The evidence" on this question is not clear, but leaves us under the impression that there were sufficient other purchases made by Huppenbauer from plaintiff after the purchases for Pisciotta, to represent more than the amount of t.he notes herein sued on. If this is so, then it would appear reasonable to hold that the notes were given for those later purchases, and that the $1,300 payment should be imputed to and should extinguish the earlier accounts.

As we have heretofore stated, the evidence is not clear on this point, but we are fortified in our interpretation of it by the finding of the trial court, and also by the fact that the burden of proving the details of the account was on plaintiff. Plaintiff realizes that it has, to some extent, fallen short in its proof, but explains this by saying that payment had not been pleaded, and therefore it (plaintiff) was not prepared to offer evidence as to the details of the account.

We think that Pisciotta’s answer was sufficient to put plaintiff on notice as to the defense that was to be urged, and that, under the circumstances, defendant should have offered the proof referred to. It follows that the ruling of the trial judge in admitting the evidence was correct. As we have stated, the judgment was rendered for plaintiff and against Huppenbauer for the amount of the notes, but plaintiff's suit as against Pisciotta was dismissed.

For the reasons given, it is therefore ordered, adjudged, and decreed that the judgment appealed from be and it is affirmed, at the c®st of appellant.


text:
    No. 11,135
    Orleans
    CODY v. VERGEZ
    (June 24, 1929. Opinion and Decree.)
    Titche, Kiam and Titche, of New Orleans, attorneys for plaintiff, appellee.
    Emile Pomes and Charles J. McCabe, of New Orleans, attorneys for defendant, appellant.
   HIGGINS, J.

Plaintiff, a real estate broker, sues defendant for commission and attorney’s fees upon a written coiitract which provided: “Should I fail to comply with the terms of this offer, if accepted, I obligate myself to pay the commission, and all fees and costs incurred in enforcing collection.” Defendant admits signing the contract, but denies liability upon the ground that he was induced to sign the contract through fraud and misrepresentation by plaintiff’s agent, Ralph Cucullu, who stated that the property defendant sought to purchase was rented for $60 per month, but as a matter of fact and truth the said property was rented for $50 per month. There was judgment in favor of plaintiff and defendant has appealed.

The evidence shows that plaintiff’s agent called upon defendant in order to sell defendant a double cottage for the sum’ of $5,400, stating that the property brought $60 per month rent; that defendant signed an offer to purchase the property for $5,400, and agreed to pay plaintiff’s commission amounting to $216, and all fees and costs incurred in enforcing collection, in the event that defendant failed to comply with the terms of his offer. The offer was dated October 3, 1925, and on October 5, 1925, plaintiff obtained the signature of the owner to the contract, accepting defendant’s offer.

The defendant contends that, subsequent to October 5, 1925, he and Mi’. Cucullu went to view the property, and then learned from the tenants that the property was bringing $50 per month rent, instead of $60; that the defendant and Mr. Cucullu then went to plaintiff’s office, and defendant protested against putting up the deposit, because he had purchased the property for an investment, and that the revenue would not justify the purchase price, in view of the fact that the property brought $50 rent per month, instead of $60 per month.

Plaintiff admits that there was some discussion about the rent, but contends that defendant refused to put up the deposit and comply with his contract because the property was in need of certain repairs. It is to be noted that the written contract does not provide that the property should he repaired, and does not in any way state what the condition of the property was. The contract does not contain any provision making the offer conditional upon the property bringing a rental of $60 per month. The evidence shows that plaintiff relied upon the statement of Mr. Cucullu, a friend of defendant, that the property brought $60 per month rent.

Mr. Cucullu testified as a witness for defendant, and from his testimony we are convinced that there was no intention to mislead or defraud defendant, but' that Mr. Cucullu was simply in error as to the amount of rent the property was bringing. The record shows that the property was accessible and convenient for defendant to examine it, and ascertain from the owner or tenant what amount of rent the property was bringing. This avenue of information was readily accessible and open to defendant, and he failed to avail himself of this source of information, and depended upon his own judgment as to whether or not he would purchase the property. Under the circumstances, we do not feel justified in setting aside the contract on the ground of fraud or misrepresentation.

In the case of Davitt vs. Long-Bell Farm Land Corporation et al., 162 La. 59, 110 So. 88, the Supreme Court quoted the following language with approval:

“ ‘Statements o'f a vendor of land as to the value and worth of the land and the uses to which it had been and might be put, are not such misrepresentations as to cause the contract of sale to be set aside, where all such matters could have been verified by an inspection of the land, which was accessible to the purchaser at all times.’ Pike v. Kentwood Bank, 146 La. Ann. 704, 83 So. 904; Forsman v. Mace, 111 La. 28, 35 So. 372; Melka v. Brooks-Scanlon Co., Court of Appeal First Circuit, February 27, 1915 (opinion filed in Tangipahoa parish March 3, 1915.)”

Article 1847 of the Civil Code provides:

“A false assertion as to the value of that 'which is the object of the contract, is not such an artifice as will invalidate the agreement, provided the object is of such a nature and is in such a situation that he, who is induced to contract by means of the assertion, might with ordinary attention have detected the falsehood; he shall then he supposed to have been influenced more by his own judgment than the assertion of the other.”

The learned judge a quo reached the conclusion that the defendant has failed to prove fraud and misrepresentation, and the record shows that his decision is correct. In Davitt vs. Long-Bell Farm Land Corporation, supra, the court quoted the following language with approval:

“The burden rests on appellant to show, to the satisfaction of this court, that the judgment appealed from is erroneous. And that burden is not discharged, in a case involving only issues of fact, by the appellant merely pointing out that the evidence is conflicting and that the trial judge or jury might, on such conflicting evidence, have reached a different conclusion,” citing Hanton v. N. O. & C. R. L. & P. Co., 124 La. 562, 583, 50 So. 544; Winn v. Strickland, 151 La. 235, 91 So. 719; Wall v. Dudley, 152 La. 911, 94 So. 441.

There is a slight error in the judgment of the district court that must be corrected. The commission amounted to $216, and the district judge found that $25 would be a reasonable attorney’s fee, making a total of $241; however, the court allowed $258, with legal interest thereon, and $25 attorney’s fee.

It is therefore ordered, -adjudged, and decreed that the judgment appealed from be amended, granting unto plaintiff and appellee the sum of $216, with legal interest thereon from judicial demand until paid, and $25 additional as attorney’s fees, and, as thus amended, affirmed. Defendant and appellant to pay the costs of both courts.


text:
    No. 11,171
    Orleans
    EISEMAN v. NATIONAL OIL WORKS CO. OF LA., INC.
    (June 24, 1929. Opinion and Decree.)
    Lazarus, Weil and Lazarus, of New Orleans, attorneys for plaintiff, .appellant.
    Dart & Dart and Louis C. Guidry, of New Orleans, attorneys for defendant, appellee.
   HIGGINS, J.

This is a suit by a real estate agent for a commission. The sole ■question involved is whether the real estate agent had obtained a purchaser within the time mentioned in the contract of employment. There was judgment below dismissing plaintiff’s suit, and plaintiff has appealed.

Plaintiff was employed, on December 4, 1925, for the purpose of selling certain real estate; his authority so to do to expire on December 30, 1925. He failed to obtain a purchaser during the term of the contract, which was allowed to expire. On January 4, 1926, he addressed the following communication to defendant:

“Mr. Peters S. Cooney, President,
“National Oil Works of Louisiana,
“Dublin Street & Carrollton avenue,
“New Orleans, La.
“Dear Mr. Cooney: In re: Sale of Carrollton & Oleander Station—
“Your authorization of December 4th recently expired, and I will thank you if you will renew your contract for an additional thirty days. I have been negotiating with a client and the matter seems to be going on pretty well to a successful conclusion.
“Thanking you in advance for your immediate reply, I am
“Very truly yours,
“Meyer Eiseman,
“PRF: C By _________________”

To this letter the defendant answered under date of January 6, 1926, as follows:

“Reply to your valued favor of the 4th inst., beg to say that this your authority to go right on for another thirty days on service station and property mentioned.”

On February 3, 1926, plaintiff succeeded in obtaining an offer for the property, which, when submitted to defendant, was not signed; defendant giving as his reason the alleged tardiness of the offer.

If the letter of defendant of January 6, giving plaintiff the authority “to go right on for another thirty days,” means that his authority is to begin January 6 and end February 6, it is obvious that plaintiff has complied with his undertaking under his mandate, and procured a purchaser for defendant’s property, which entitles him to a commission. If, on the other hand, the letter of defendant can be construed to mean the expiration of 30 days from the date of the expiration of the original contract authorizing plaintiff to sell the property, or December 30, 1925, his authority expired January 30, 1926, and, the offer procured by him having been obtained after the expiration of the term mentioned in his contract as extended, he is not entitled to any commission, for the reason that he has not performed his part of his agreement.

It will be recalled that, in requesting the extension, plaintiff used the word “renew,” asking that his contract be renewed for “an additional thirty days.” We are referred to the case of Carter vs. Insurance Co., 110 N. Y. 15, 17 N. E. 399, where the word “renew” and “renewal” is the subject of definition at the hands of the court. It was there held that “to renew, in its popular sense, is to refresh, revive, or rehabilitate an expiring or declining subject; but it is not appropriate to describe the making of a new contract or the creation of a new existence. Webst. Diet.; Worcester Diet.”

Considering the correspondence and the testimony in the record, we have concluded that the conclusion reached by the trial court, to the effect that the parties intended only to extend the original term by 30 days, and not to revivify the contract as of date of the letter requesting its extension, is correct. This was the view of the learned judge.a quo, and we are in accord with his findings.

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


author: LECHE, J.

text:
    No. 456
    First Circuit
    THIBODAUX BOILER WORKS v. PEOPLES SUGAR CO., INC.
    (May 7, 1929. Opinion and Decree.)
    (June 28, 1929. Rehearing Refused.)
    (October 8, 1929. Writ of Certiorari and Review Refused by Supreme Court.
    Howell & Howell, of Thibodaux, attorneys for plaintiff, appellant.
    Wurzlow & Watkins, of Houma, attorneys for defendant, appellee.
   LECHE, J.

Plaintiff made certain repairs to defendant’s sugar factory, furnished the labor and material necessary for that purpose, and had its claim attested by a detailed statement duly sworn to recorded in the mortgage records of the parish of Terrebonne, where the property is situated. The repairs aforesaid were made during the year 1923, the account was recorded in December, 1923, and duly reinscribed in 1924, 1925, 1926, and 1927, each time within a year succeeding the date of the preceding registry. The account is also attested by a note of the Peoples Sugar Co., Inc., made January 1, 1926, bearing 7 per cent, interest per annum, for the sum of $974.60, and stipulating for the further payment of 10 per cent, attorney’s fees in case of suit.

The present suit was filed November 29, 1927, and its purpose is to recover the amount of plaintiff’s claim and to have the same recognized and decreed as being secured by lien and privilege upon defendant’s sugar factory and the land upon which the factory is situated.

The only contested issue in connection with plaintiff’s demand, on this appeal, is whether the claim is secured by the asserted lien and privilege. The district judge after mature consideration, as shown by elaborate reasons for judgment, was of the opinion that plaintiff had no lien and privilege, and plaintiff has appealed from his judgment.

Plaintiff relies for authority, as sanctioning its demand for recognition of a lien and privilege, upon section 1 of Act 229, p. 494 of 1916. Defendant, in its answer, does not deny the existence of the claim, nor its registry as alleged, but contends that the claim is not secured by any lien and privilege; the same having been prescribed in one year. Defendant has not filed any brief, but, we assume, depends upon the trial judge’s reasons for judgment to sustain its defense.

It is not controverted that plaintiff originally did have a privilege, but it is contended that section 6 of the cited act of 1916, which, although limiting the right of the lienholder to one year, permitted him to renew such lien in acco'rdancé with law, has been repealed by section 11 of Act 139, p. 290 of 1922, wherein the right of renewal is not mentioned or recognized.

Section 6 of the act of 1916 says that the privilege provided for by that act may be enforced by a civil action, and that such right of action shall prescribe within one year from the date or recordation of the privilege in the office of the recorder of mortgages, unless renewed in accordance with law. Both parties concede that the renewal mentioned in the statute means reinscription within one year. Such reinscriptions in this' case appear to have been made in time, and that fact is not denied. But defendant contends that section 11 of the act of 1922, at page 294, says that the privilege of the contractor, furnisher of material, and others, as their interest may arise, is limited to the period of one year from the completion or occupancy of the building, and that there is no clause recognizing the right of renewal by the lienholder, and therefore that, to that extent, the provision permitting renewal in section 6 of the act of 1916 is repealed and no longer exists.

In order to ascertain whether the Act of 1922, No. 139, was intended to repeal the provisions of Act 229 of 1916, it may not be amiss to consider the history of our law in regard to privileges of contractors, subcontractors, workmen, and furnishers of material on buildings which have been erected or repaired by such contractors, etc., or in which such material has been used. At one time this whole subject-matter was regulated by the articles of the Civil Code, contained in section 3, chapter 3 (article 2756 et seq.), in regard to the letting out of labor of industry. The first statute amending these provisions of the Code, that we can find, is Act 180 of 1894, p. 223, which is entitled an act “relative to contracts for buildings and the security of workmen and furnishers of material.” Its provisions are limited in their application to cities of 50,000 inhabitants. In 1896, at page 179 of the Acts of that year (No. 123), its provisions were enlarged so as to apply to cities of 10,000 inhabitants. In 1906, Act 134, p. 223, was adopted under the title of an act “relative to building contracts in cities in this State of over 50,000 inhabitants; providing for the bond to be given therein for the protection of the owner, sub-contractor, workmen, laborer, mechanics, and furnishers of materials, for the recording of the same, and the proceedings to be had thereunder.” In 1908 there was adopted Act 65 entitled an act “relative to contracts for the repair, reconstruction, building and construction of buildings and the security of the sub-contractors, mechanics, painters, plumbers, tinners, carpenters, bricklayers, journeymen, laborers and other workmen employed in the repair, reconstruction, building or construction of buildings, and the furnishers of material and supplies to be used in said buildings and the manner of procedure thereunder.” That act contains a special provision “leaving unimpaired Act 123 of 1898 and Act 134 of 1906, in so far as they affect cities of over 10,000 and over 50,000” inhabitants. Section 6.

In 1912 another act, No. 167, p. 302, was adopted, entitled an act “relative to building contracts in this State,” etc.

In 1914 was adopted Act 221, p. 418, entitled an act “To amend and re-enact section One of Act 167 of 1912, approved July 11, 1912, entiled, ‘An act relative to building contracts in this State,’ ” etc.

In 1916 there was adopted Act 262, p. 536, of the acts of that year, which has for its object, amendments of the Acts 167 of 1912 and Act 221 of 1914. In 1922, at page 290, of the Acts of that year, was adopted Act 139, the purpose of which, according to its title, is “relative to the (sic) Building Contracts; providing for the bond to be given in connection therewith, for the recordation of the contract, and bond and proceedings to be had thereunder and to provide for the creation, recordation and recognition of liens and privileges and the protection of contractors, architects, consulting engineers, subcontractors, laborers, material men, mechanics, journeymen, cartmen, truckmen, and all others who shall do or perform any work or labor upon or furnish material, machinery or fixtures for any building or other structure upon land in this State.”

In 1924, at page 504 of the Acts of 1924, No. 230, there was adopted an amendment to section 5 of Act 139 of 1922, and in 1926 there was again adopted Act 76, p. 93, of the Acts of that year, making it a criminal offense for a contractor or subcontractor who shall default in performing a contract, and who shall apply money received on account of said contract to any other purpose than the settlement of claims for labor and labor due under the contract. These two last cited Statutes have no bearing upon the question at issue in this case.

Such is the legislation which we have been able to collect upon the subject of the liens and privileges of contractors and workmen, and of furnishers of material upon buildings, as it exists at the present time.

It is to be noted that all of these acts of the Legislature, from 1894 to the present time, relate to building contracts, and that the titles of all of them contain the words “building contracts” or words of equal import. It is then remarkable that the Act 229 of 1916, upon which plaintiff relies for the existence of the lien and privilege which it claims, does not use these words or any other words importing the idea of a building contract in its title. The title of Act 229 of 1916, reads as follows: “To provide for the creation, recognition and recordation of the liens and privileges of laborers, contractors, subcontractors, material men, mechanics and furnishers of machinery or fixtures, and to enforce the payment of said liens and privileges, and to repeal all laws in conflict herewith.”

It is again to be noted particularly that this title does not state upon what property these liens and privileges bear. But section 1 does say that it bears upon any building, erection or improvements and upon land belonging to the owner of such building, etc.

At the same session of the Legislature, that body also adopted Act 262, p. 536 of the Acts of 1916, amending Act 167 of 1912, relative to building contracts. In the previous act, No. 229, is a provision saying that this Act 229 shall not be construed to repeal or affect the operation of Act 167 of 1912, as amended by an Act No. 262 passed at this session of General Assembly.

Prom all of this,' it seems patent that it was never intended by the Legislature that Act 229 of 1916 should affect, amend, or repeal any act on the subject of "Building Contracts,” and, vice versa, that those acts recognizing and regulating "Building Contracts” should not affect, change or repeal Act 229, unless there is expressly contained therein a provision to that effect. In other words it seems that the Legislature intended Act 229 of 1916 to be applied to repairs and alterations of already existing buildings, while the other acts, especially Act 139 of 1922, were intended to apply only to the construction of new buildings. This distinction is sustained by the language of section 6 of Act 229 of 1916, which maintains the existence of the privilege for one year from the date or recordation of the privilege, unless renewed, while section 11 of the Act of 1922, No. 139, maintains the existence of the privilege for the term of one year from the completion or occupancy of the building, without any right of renewal on the part of the lienholder.

It is also recognized, as a firmly settled rule of jurisprudence in this state, that repeals by implication will not be presumed, that the two statutes must be so inconsistent that they cannot co-exist, and finally that wherever possible they should be so construed as to harmonize and not to clash with one another.

Guided by this rule and for the reasons herein before stated, we are of the opinion that there is no conflict between section 6 of Act 229 of 1916 and section 11 of Act 139 of 1922; that the former applies to buildings already constructed, while the latter applies to new construction; that plaintiff’s rights as a privilege holder are regulated by the cited section of Act 229 of 1916; and that its privilege has been preserved and is still enforceable. This view of' the subject is sustained by legislative interpretation, for by Act 298 of 1926, p. 548, Act 229 of 1916 is expressly repealed. If Act 229 of 1916 has been repealed by Act 139 of 1922, or by any other subsequent act, there would have been no necessity for this express repeal in the act of 1926.

For these reasons the' judgment appealed from is avoided and reversed in so far as it fails to recognize and enforce the lien and privilege claimed by plaintiff, and in all other respects said judgment is affirmed, and it is ordered that plaintiff’s claim be recognized as secured by lien and privilege upon the property described in its petition and that defendant pay all costs of both courts.


text:
    No. 437
    First Circuit
    LANDRY v. McNEIL HUNTER MOTOR CO. ET AL.
    (May 7, 1929. Opinion and Decree.)
    (June 28, 1929. Rehearing Refused.)
    (October 8, 1929. Writ of Certiorari and Review Refused by Supreme Court.)

      Chappuis & Chappuis, of Crowley,, attorneys for plaintiff, appellee.
    P. M. Milner, of New Orleans, and W. J. Carmouche, of Crowley, attorneys for defendant, McNeil ■ Hunter Motor Co., defendant, appellant.
    St. Ciair Adams, of New Orleans, and Medlenka, Bruner & Chambers, of Crowley, attorneys for defendant Acadia Rice Mills, appellant.
   LECHE, J.

Adonis Landry, a resident of the town of Rayne, parish of Acadia, while on his way home during a heavy shower of rain stopped for shelter near the door forming the side entrance of the garage and automobile repair plant of the McNeil Hunter Motor Company, Inc., and there engaged in conversation with Ovide Servat, a mechanic, and Hoffpauir, foreman of the garage, when he was struck by an incoming Ford sedan automobile, under the control of Archie Morgan, also a mechanic employed in the same garage. Both of his legs were broken and he suffered severe physical injuries. He thereupon filed the present suit against the McNeil Hunter Motor Company, Inc., and the Acadia Rice Mills, Inc., for damages in the sum of $54,000, with legal interest and costs of court. The district court awarded him a judgment against the two defendants jointly and in solido, in the sum of $7,500. Both defendants have appealed, and plaintiff has answered the appeal, and prays for an increase of judgment to the sum of $24,734.40.

The main facts in the case are not seriously questioned, except as to minor details, but the conclusions from these facts are very earnestly contested, and are the subject of forceful arguments by experienced and learned, counsel on behalf of each of the three parties litigant.

It appears that A. L. Daboval, a rice grader and an employee of the Acadia Rice Mills, drove a Ford sedan, the property of the Rice Mills, to the McNeil Hunter garage, in order to have broken glasses inclosing the top of the Ford sedan replaced with new whole glasses. That was the only repair which was indicated as the purpose of bringing the Ford to the garage. Daboval spoke to Hoffpauir, foreman of the garage, who told him that the job would require an hour or two. A heavy rain was falling at the time, and at the request of Daboval, Hoffpauir directed Archie Morgan, a mechanic in the employ of the repair shop, to go with Daboval to the rice mill, some 8 or 10 blocks distant, and bring back the ' Ford to make the repairs requested. Morgan got into the automobile, sat next to Daboval, and when they reached the rice mill, Daboval got but and Morgan moved over into the driver’s seat and started back to the garage. As Morgan approached the garage, he realized upon turning, at a distance estimated at 35 feet from the doorway of the garage building, that he had lost control of the motor. The engine was racing, and he could not stop it. it seems that the accelerator got bound, or was stuck, and though he tried, he could not release it. He says that he cried out aloud to Hoffpauir, Servat, and Landry, who were near the door, “Look out,” for under great excitement in this sudden and unlooked for situation, his foot had slipped off the brake pedal which was wet and slippery, and he could not foretell what was going to happen. He could neither stop nor guide the automobile which was running at a speed estimated at 12 miles per hour. Instead of entering the open door of the garage, the car veered to the right and struck the door frame, pinning Landry against the wall, and breaking both of the latter’s legs. It is but natural that Morgan should have lost the use of his better judgment in this trying situation, which came upon him so quickly and unexpectedly that he could not even guide the automobile through the open doorway. Hoffpauir and Servat were both standing in the open space, in the doorway, and they rapidly moved away. Hoffpauir went into the garage and Servat passed in front of Landry and remained on the sidewalk. Landry did not move, though he says he saw the car coming towards him. Landry says further that he did not hear Morgan cry, “Look out,’’ and that he thought that Morgan was playing a practical joke to frighten Hoffpauir and Servat Who were in the doorway. Milner, another mechanic, employed in the same garage, says he was standing on the sidewalk, near the door of the garage, on the opposite side from the place where Landry was, that he heard Morgan cry “Look out,” and that he got out of the way. After the accident it is said that Landry made the remark that he believed Morgan was only joking, and it appears that he made this remark, not because he had heard Morgan cry, “Look out,” but because he thought Morgan was guiding the car towards Hoffpauir and Servat in a spirit of levity, to frighten them.

At the time of the accident the Ford sedan was in the possession of and under the control of the McNeil Hunter Motor Company. Morgan accompanied Daboval to the rice mill, not as agent of the rice mill, but as an employee of the motor company, upon the instructions of Hoffpauir, foreman of the shop. Of this we believe there is no question of doubt. It is shown that it was customary for the motor company to accept delivery of automobiles to be repaired, wherever the customer might request, in the town of Rayne, and that return delivery from the motor company to the owner of the automobile was, upon request, made in the same manner, without reservation of non-liability in case of accident. It therefore seems to follow as a consequence that when Daboval got out of the automobile at the rice mill, delivery to Morgan was delivery to the motor company.

The questions then to be decided are whether there was fault or negligence on the part of either or both of the defendants, and if so, then, whether or not plaintiff himself was guilty of contributory negligence.

Nearly every automobile is equipped with two gas controls, one that may be regulated by hand on top of or near the steering wheel, and the other by a pedal which is operated by the chauffeur’s foot. The model Ford involved in this case was equipped at the factory solely with a hand gas-control, and in order to enhance facility in managing the car, Daboval, acting on behalf of the rice mill, bought an accelerator or pedal gas-control from the Western Auto Supply House in New Orleans and himself placed it in position on the Ford sedan. One distinct difference between the hand and foot controls is that the hand control remains wherever it is placed by the chauffeur’s hand, while the foot control, as soon as released by taking the foot off the pedal, is automatically returned, by means of a spring, to its neutral or noneffective position. Both controls are used for the purpose of feeding gasoline from the carburetor to the motor. The hand control, in order to be operated, must be pushed and pulled by the hand, while the foot control may only be pushed by pressure of the foot and it is pulled back by means of a spring. The accelerator bought by the rice mill and installed on its Ford sedan is what is called among auto mechanics an “outlawed” part. It was not made by the manufacturer of the Ford automobile, and the automobile itself is not designed to be equipped with it. Daboval says that about three weeks before the accident which gave rise to this suit, this same accelerator got stuck while he was using the car and that the rice mill engineer found that the rod connecting it to the carburetor was bent, and after straightening it with his hand it again operated properly. When Morgan took control of the car at the rice mill, in order to drive it back to the garage, he knew nothing of this weakness or defect of the accelerator, and as he made the turn from the street to enter the garage, the accelerator did as it had done before, it stuck, and though Morgan tried to release it with his foot, he was unsuccessful, and the engine fed with an oversupply of gasoline raced at great speed. His other foot slipped off the brake pedal, which had gotten wet from the rain, he lost his better judgment in this sudden and unforseeable emergency, and ran into the door frame of the garage, causing great personal injury to plaintiff. Under these circumstances we do not see that any fault or negligence can be attributed to Morgan or to the motor company, and that the prime and proximate cause of the accident was due to the fault of the rice mill in equipping the car with a defective attachment or accessory, the “outlawed” accelerator. It may be argued that Morgan could have cut out the ignition by using the control on the dash, or could have used the emergency brake, which witnesses say. is seldom used on Fords, and this may appear as reasonable while considering the case in the quiet chambers of the courtroom; but when one places himself in the position of Morgan, in a sudden emergency, his conduct and his failure to resort to other means to avert the accident is quite excusable. It must be borne in mind that from the time he realized that the accelerator could not be released, to the time he ran into the wall of the garage, was only a fraction of a minute, ■ and the dangerous speed at which he was compelled to approach the entrance to the garage left him no time to exercise deliberate judgment.

The same reasons which excuse Morgan’s conduct apply equally in excusing plaintiff from changing his position as the car approached the entrance to the garage. Hoffpauir, Servat, and Milner, practical mechanics and no doubt experienced in the handling of automobiles, were impressed, as soon as Morgan turned from the street to enter the garage, with the idea that he had lost control of the car, and it is only reasonable that Landry, the plaintiff, a carpenter by trade, should not have been so impressed, especially as he was not standing in the doorway. For these reasons we do not believe that Landry was guilty of contributory negligence.

The only other question at issue on this appeal is the quantum of damages. It appears from the evidence that both of plaintiff’s legs were broken and that he was compelled to undergo several surgical operations, the last of which consisted of placing a Lane plate where the ends of a bone had failed to properly unite. It also appears that he was confined to a sanitarium for a long time, and that his earning capacity was completely destroyed for quite a while, and in the opinion of experts will in time only be restored to 80 per cent, of its normal condition.

Our jurisprudence abounds with decisions holding that the amount of an award in damages is peculiarly within the discretion of juries and trial courts. Surrounding local conditions and circumstances are more within their knowledge and appreciation, and their judgment is of great weight and should not be disturbed unless for serious or grave error. We see no reason, although the amount of the award in damages may appear to be inadequate, to disturb the finding in this case, and the award will remain as fixed by the trial court.

For these reasons the judgment of the district court is avoided and reversed as to the McNeil Hunter Motor Company, and plaintiff’s demand against that company is rejected, but said judgment is otherwise affirmed as against the Acadia Rice Mills, Inc., at the cost of said rice mills in both courts.


text:
    No. 11,833
    Orleans
    BARRETT v. COLLINS ET AL.
    (May 27, 1929. Opinion and Decree.)
    (June 24, 1929. Rehearing Refused.)
    (October 8, 1929. Writ of Certiorari and Review Refused by Supreme Court.)

      Spencer, Gidiere, Phelps and Dunbar, of New Orleans, attorneys for Esther Marvin Barrett, plaintiff, appellee and appellant.
    P. M. Milner, of New Orleans, attorney for defendants Mr. and Mrs. Collins.
    E. Y. Parham, of New Orleans, attorney for defendant Harry Arnold.
   WESTERFIELD, J.

Plaintiff, while walking on the sidewalk of St. Charles Avenue near the corner of Third Street, was run into and injured by an automobile belonging to the defendant Stephen D. Collins, and at the time of the accident driven by his wife. The Collins automobile was forced upon the sidewalk as a result of a collision with a Ford truck, owned and driven by Harry Arnold. Mr. and Mrs. Stephen D. Collins and Harry Arnold are sued in solido.

On the trial of the case, the following admission was made by counsel:

“It is agreed between Plaintiff’s counsel and counsel for the respective co-defendants, that the liability is fixed at $750.00, and that if the Court finds any one liable or renders a judgment against any one or the two, the amount awarded shall- be $750.00 and costs:
“By the Court: It is admitted by all parties in interest that the fact of the Plaintiff being on the sidewalk where she had a right to be, the fact that she was injured and the fact-that she was guilty of no contributory negligence whatever, relieves her of any necessity of administering evidence and all the evidence in the case will be administered by the defendants in the case, Mr. and Mrs. Stephen D. Collins and the defendant Harry Arnold, and it is further agreed that the plaintiff shall be entitled to take advantage of all the testimony offered by either defendant.”

There was judgment below in plaintiff’s favor in the sum of $750 against Mr. and Mrs. Collins alone. Both plaintiff and Mr. and Mrs. Collins have appealed.

The two automobiles collided in the intersection of St. Charles Avenue and Third Street or a short distance beyond- the intersection, as counsel for Mr. and Mrs. Collins insists. In our view, it is immaterial.

The Arnold- truck was being driven on the lake side of St. Charles Avenue in the direction of Carrollton Avenue. As it neared the intersection óf St. Charles Avenue and Third Street, the Collins car turned to the right and into St. Charles Avenue from Third Street, with the intention of proceeding up St. Charles Avenue in the same direction as the Arnold truck. In making the turn, the Collins car turned very wide, and thus failed to observe the Traffic Ordinance No. 7490, C. C. S., section 4 of which requires a vehicle in turning to the right at a street intersection to “hug the right hand curb.” The result of this improper turn was a collision with the Arnold truck near the neutral ground. It is apparent that the driver of the Collins car was negligent.

The Arnold truck was admittedly on the left-hand side of the roadway near the neutral ground, where it should not have been, for the reasons that sections 1 and 2 of the Traffic Ordinance referred to requires that vehicles, except when passing another vehicle going in the same direction, shall keep to the right and as near the right-hand curb as possible, and, when driving on streets divided by a neutral ground, “shall keep to the right of the center of the roadway so as to permit passing of faster moving vehicles on the left.” It follows that the driver of the Arnold truck was also negligent.

The manner in which the collision occurred convinces us that the negligence of each driver contributed to the accident. It therefore follows that both defendants should be held jointly liable for the resulting damage.

For the reasons assigned, it is ordered that the judgment appealed from be amended, so as to read:

It is ordered, adjudged, and decreed that there be judgment in favor of plaintiff, Esther Marvin Barrett, and against the defendants Stephen D. Collins and his wife, Mrs. Stephen D. Collins, and Harry Arnold in solido, in the full sum of $750, with legal interest thereon from judicial demand until paid, and all -costs.


text:
    No. 466
    First Circuit
    SMITH v. N. O. & G. N. R. R. CO.
    (June 10, 1929. Opinion and Decree.)
    (June 28, 1929. Opinion and Decree.)
    (October 8, 1929. Writ of Certiorari and Review Refused by Supreme Court.)

      Bascom D. Talley, of Bogalusa, attorney for plaintiff, appellee.
    Miller & Heintz, of Covington, attorneys for defendant, appellant.
   LECHE, J.

The present suit was instituted to recover damages to live stock while being transported from Bogalusa, La., to New Orleans.

Plaintiff shipped two carloads of cattle, one load in car 10039 N. O. G. N. on November 30, 1927, and another in car 10057 N. O. G. N. on March 8, 1928. He claims that in the first shipment, one cow of the value of $35 was.killed and two other cows bruised and damaged to the extent of $61.25, resulting in a loss to him amounting to $96.25. He further claims the value of five oxen killed and one ox bruised on the second shipment, entailing a loss upon him amounting to $325; that his said losses amounting to $421.25 were caused by the fault and negligence of the defendant; and that he is entitled to recover said amount as well as costs of this proceeding.

The main defense is that in both shipments the cars loaded by plaintiff himself were overloaded and improperly loaded, and that the injury to the cattle was the result of plaintiff’s own fault and negligence.

The district court awarded judgment in favor of plaintiff as prayed for, and defendant has appealed.

It does not appear to be questioned that in a contract of affreightment, it is the duty of the carrier to transport safely the commodity which is intrusted to it for transportation, and to deliver the same to the consignee in the same order and condition as when it was received. This recognized rule then imposes upon the carrier, when it disclaims responsibility for injury to property in transit, carried by it, the duty of proving defendant has proved itself free of any fault or negligence.

The bill of lading admits that defendant received all the cattle in both shipments in apparent good order and condition, and the injury and damage to such cattle when delivered to the consignee is not questioned. It remains therefore to be determined whether defendant has proved itself free of any fault or negligence.

Two veterinary surgeons were sworn as witnesses, and through them defendant attempted to prove that the cattle were affected with tick fever and that they died from that cause. The most that we can gather from the testimony of these gentlemen is that such a cause was a mere possibility, but they by no means certify to that as a fact. One of them admits that if the animals had been suffering from tick fever, they could not have stood the dipping to which they were subjected just previous to their being loaded on the cars. It is shown by the testimony of several witnesses that the cattle had been dipped a couple of weeks before shipment, kept in tick-free inclosures, and again dipped before being loaded. So that this defense does not appear to account for the death of the animals. Again, all these cattle originally came from tick-infested territory where they were bred and kept, and other witnesses experienced in cattle raising say that cattle raised under these conditions never die of tick fever.

Nor are we impressed with the defense that the cars were overloaded. It is shown that the weight of the cattle in each of the two cars was approximately that usually carried in cars of that type and dimension. W. L. Hodges, a livestock commission merchant in New Orleans, who says that he handles about BO per cent, of the incoming shipments at the stock landing and about 90 per cent, of shipments outgoing, says that the best, and we judge the safest, way to ship cattle is to load them close up so that they cannot lie down, and that the ears involved in this case did not appear to he overloaded. The only reasonable deduction to be drawn from the testimony is that the damage done, at least to the car containing 43 head, was caused by improper and rough handling, and violent jarring, jerking, and sudden stoppings of the car. Plaintiif claims damages to the stock in this car amounting to $96.25, and we think he is entitled to recover that sum.

The other car, containing 5 bulls and 23 steers, was improperly loaded, and we are of the opinion that the damage and injury to the stock which it contained was caused by plaintiff’s own fault. The bulls were not securely tied. Plaintiff used small cotton rope, which could not stand the strain to which it was subjected, and it is shown that one of the bulls broke loose before the car left Bogalusa, pranced about, and caused the small cotton ropes with which the other 4 had also been tied to break or loosen, and soon there was a “free for all” fight.

This car was loaded by the plaintiff, and it was incumbent upon him to tie and securely fasten these bulls, whose naturally ferocious nature is well known. There is no doubt that he failed to do this, and that the bulls got on the rampage, caused all the damage of which the plaintiff complains, and that the loss occurred through plaintiff’s own fault.

For these reasons the judgment appealed from is amended and reduced to the sum of $96.25, and as thus amended and reduced, it is affirmed; plaintiff to pay costs of appeal.

MOUTON, X, not participating.


text:
    No. 430
    First Circuit
    YOUNG v. LOUISIANA HIGHWAY COMMISSION
    (April 13, 1929. Opinion and Decree.)
    (June 28, 1929. Rehearing Refused.)
    (October 8, 1929. Writ of Certiorari and Review Refused by Supreme Court.)

      Benton & Benton, of Baton Rouge, attorneys for plaintiff, appellant.
    J. H. Inman, of Ponchatoula, attorney for defendant, appellee.
   LECHE, J.

Plaintiff claims that while he was working for the Louisiana Highway Commission as day laborer and practical mechanic, on or about October 1, 1927, he was accidentally injured and that said injury caused and- inflicted upon him a traumatic hernia. He' alleges the existence of all the concomitant circumstances and conditions required and defined in paragraph 17 of subsection (d) of section 8 of Act 85, page 110, of 1926, the law in force at the time of his alleged injury, and prays for compensation at the rate of $12.13, payable every Saturday from the second week in October, 1927, until he has received $3639, and for medical fees, etc.

The district judge refused his demand, and he has appealed.

The present controversy involves mainly questions of fact, the proof of which is by law, imposed upon the plaintiff. It seems that plaintiff was ploughing in a pit and while so doing, claims that the point of the plough struck some obstacle in the ground, and that he was thereby hurled against the handle of the plough and thus injured. He then called on some one else to handle the plough. Several witnesses who were in the pit at the time, relate what they saw and heard, but no one heard plaintiff say that he was suffering from severe pain in the hernial region or that plaintiff was so prostrated as to be compelled to cease work immediately. Some of them say that plaintiff got some one else to take the plough because he said he was tired, and that he soon returned to work to do something else. Pullin, a superintendent on the work, says that plaintiff complained to him of suffering on the following day, not however of having been ruptured by the alleged accident in the pit, and that he advised plaintiff as a friend to call on some doctor at the hospital at Shreveport.

Canfield, another witness, went in an automobile with plaintiff from Gibbsland to Shreveport on Sunday, the day after the accident, conversed with him along the trip, but plaintiff did not then claim that he had been ruptured by the accident in the pit or that he was suffering to any extent.

It is shown by the testimony of other witnesses that plaintiff had, before the alleged injury, stated that he had been ruptured, burnt up and diseased.

The testimony does not impress us as disclosing that the hernia from which he was suffering, was caused by the alleged accidental injury, that the descent of the hernia immediately followed the alleged injury, that there was severe pain in the hernial region, that there was such prostration that plaintiff was compelled to cease work immediately, or that there was such physical distress that the attendance of a physician was required within forty-eight hours, some of the attendant conditions necessary to entitle him under the statute to compensation.

The witnesses upon whose testimony we base our findings seem to be unbiased, and they are disinterested.

We believe the judgment appealed from is sustained by ‘the evidence and it is therefore affirmed.


author: ELLIOTT, J.

text:
    No. 465
    First Circuit
    SCHLOSS v. REYMOND
    (June 10, 1929. Opinion and Decree.)
    (June 28, 1929. Rehearing Refused.)
    (October 8, 1929. Writ of Certiorari and Review Refused by Supreme Court.)
    Benton & Benton, and Taylor, Porter, Loret & Brooks, of Baton Rouge, attorneys for plaintiff, appellee.
    Charles A. Holcombe, of Baton Rouge, attorney for defendant, appellant.
   ELLIOTT, J.

Edward W. Schloss claims of Samuel I. Reymond $386.90 as damages, on account of injuries to an automobile belonging to Edward S. Levy, but which was at the time in the possession of said Schloss and being driven by one of his employees. The injuries to the Levy car were sustained in a collision with an automobile belonging to and while being driven by said Reymond. The plaintiff, Schloss, holds all the right, title and interest of said Levy, in the claim and action against Reymond on account of the collision.

The collision occurred in the early evening of February 4, 1928, in the city of Baton Rouge at the intersection of Conrad and America streets. The plaintiff alleges that the Levy car, called the Buick, was damaged in the collision to the extent claimed, solely as the result of the gross fault and negligence of said Reymond.

The defendant denies the negligence and fault alleged against him and alleges in turn that the collision was due entirely to the fault, negligence and want of care on the part of Isaac Mackie, plaintiff’s employee, who entered the intersection driving rapidly at a dangerous speed and without care. Defendant alternatively charges the plaintiff with contributory negligence and urges that he is not responsible to the plaintiff on that account. He alleges that his automobile, called the Lincoln, was damaged in the collision to the extent of $192.80.

He prays that the demand of the plaintiff against him be refused and rejected and that he have judgment against said Schloss in reconvention for the amount of the damages done to his car.

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

The defendant has appealed.

The Levy automobile was being driven at the time westward on America street, by plaintiff’s said employee.

This street runs east and west and has the right of way over Conrad street.

The defendant was driving south at the time on Conrad street. These two streets cross each other at right angles.

An irreconcilable conflict exists between the witnesses as to which of the parties, Isaac Mackie or defendant, reached and entered on the intersection first. The preponderance of the testimony is .to the effect, and we think the physical facts and circumstances support the witnesses who so testify, that plaintiff’s driver was first, but in point of time, a moment or instant only.

An irreconcilable conflict also exists regarding the speed of plaintiff’s driver and that of defendant at the time in question. The preponderance of the testimony on this subject is to the effect, and the physical facts and circumstances support the witnesses who so testify, that the defendant was driving between 30 and 40 miles an' hour, considerably faster than plaintiff’s employee.

The defendant, though a moment later than plaintiff’s driver, in point of time, in entering the intersection, reached the center of same at the same time that plaintiff’s driver did, as a result of his fast driving, on account of which they collided with each other in about the center of the intersection.

The evidence shows the corner at the intersection of Conrad and America streets which faces Conrad street looking south and America looking north, consists of a yard, enclosed by a fence. Facing Conrad street this fence is made of pickets about 3Yo feet high. Facing America street it is of boards, and about 5 feet high. Back about 25 or 30 feet from the corner on each street, inside the fence, there are some trees and shrubbery. These trees, shrubbery, and fence together obstruct the view near the corner from one street across to the other. After the trees and shrubbery are passed there is no obstruction to the view from one street across to the other, except the fence.

Supposing the fence, 25 or 30 feet from the corner facing each street, to be a partial obstruction to the view across to the other street, from a fast-running auto-driving at a moderate speed, going south mobile, still, if Mr. Reymond had been on Conrad toward its intersection with America street, he could have seen 25 or 30 feet before he reached the intersection, around the corner about the same distance westward on America street. Therefore the Levy car approaching the intersection a little in advance of him from America street was plainly within his view at a distance from him of about 50 or 60 feet.

Defendant testifies that he did, upon coming within 25 or 30 feet of the intersection, look westward up America street, and that he saw nobody approaching; but he did not look carefully and in a way to see if an automobile was approaching; because if he had really done so he could not have helped seeing the Buick car, because the forward advance of the Buick was a little more than his own.

1 Cyclopedia of Automobile Law by Blashfield, c. 14, sec. 2, p. 287, has this to say:

“Thus where two vehicles are approaching each other on a street, in daylight, and there is no obstruction of the view between them, and no excusing circumstances the driver of one vehicle is. negligent if he does not see the other vehicle. And evidence of the occupants of an automobile that, before starting to turn the car, so as to proceed in the opposite direction, they looked around without seeing any other vehicle in the vicinity, is of no weight, where it is. not disputed that at such time a vehicle with which it came into collision was being driven on the same street, in full view from the place where the automobile was when the attempt was made to turn.”

America street has the right of way over Conrad street. Defendant contends that he was not aware of that fact. Granting that such was the case, that cannot exdusé him, in a case of this kind, for not\knüwing the provisions of the town ordinance on the subject. His liability is to be judged of as if he had been aware of the precedence. It was his duty to have his car under control so as to give the right of passage to a party coming to the intersection from America street, and entering on it at the same time, or before he entered it.

He saw plaintiff’s car after he had reached the intersection, hut his speed was such that he could not stop nor swerve sufficiently to avoid a collision. He applied his brakes with such force that his car skidded, from about where the intersection commences, for about 10 feet, curving slightly to the left, until it was stopped by the impact. He .did not slow down nor take any precaution. He was therefore at fault. The district judge so held, and we agree with him.

But we find that defendant’s charge of contributory negligence against the plaintiff is also established.

Plaintiff’s driver could have seen Mr. Reymond for 25 or 30 feet up Conrad street if he had been looking, when he came within 25 or 30 feet of the intersection, on America street. He admits that he did not look northward up Conrad street, and that he was in the center of the intersection before he saw Mr. Reymond’s approach.

Asked on direct examination to again relate how the collision took place between his car and that of Reymond, he replied:

That he had slowed down as he approached the intersection to about 15 miles an hour, and blew his horn about half way in the block, back of a church; that as he came out the corner he could not see so good either way, on account of buildings and the fences; that he was half way across the street before he noticed Mr. Reymond’s car; that he tried to speed up and get out of the way, but just as the rear of his car got to the center of Conrad street he was struck.

“Q. Did you look in any other direction as you entered Conrad street?
“A. I was just looking straight ahead of me, and I looked south on Conrad street. I looked straight east on America street and south on Conrad street.”

Cross-examined, note testimony, p. 105:

“Q. You said a while ago that you did not look both ways; that you just looked east and south?
“A. I did not look both ways that time.
“Q. Why?
"A. I was just looking around the corner. I had looked but I could not see that way.
“Q. You told Mr. Benton a while ago that you came toward this intersection and you looked south and you looked straight ahead on America street, and that you did not look in any other way. Why didn’t you?
“A. I could not say just why I didn’t that time.
“Q. You know that you didn’t though?
“A. Yes.
“Q. Why you did not, you do not know?
“A. When I did look up that way Mr. Reymond was upon me.
“Q. If you had looked that way before, you would have seen him?
“A. Yes, sir.
“Q. The reason why you did not see him was, because you did not look?
“A. When I did look it was too late.
“Q. When you did look it was too late?
“A. Yes,” etc. •

We have already explained that the fence to the left of plaintiff’s driver on America street, coming east to its intersection with Conrad, did not prevent him, as he came within 25 or 30 feet of the intersection, from seeing northward 25 or 30 feet up Conrad street. The distance he could see up Conrad depended upon how close he was to the intersection; but when he was within 25 or 30 feet of the intersection he could have seen equally as far up Conrad street. If he had looked northward he could not have helped seeing Mr. Reymond, and if he had had his car under control he could have avoided the collision.

He should have taken the precaution to look northward up Conrad street in time and with his car in hand, to the end that his looking might be effective in avoiding a collision with anybody else about to enter the intersection. The fact that he was on a right of way street did not release him from this salutary precaution.

We agree with. the Court of Appeal in the case of Johnson vs. Item Co., 10 La. App. 671, 121 So. 369, in which the court held:

“Even when one has the right of way, he is not relieved from the necessity of looking into the direction from which others may be expected to approach, and where such care would, as in the case here, have prevented the accident, he who fails to look cannot recover, even though the other party was grossly at fault.”

In regard to the duty of parties driving on favored streets to look both ways and exercise care on coming to an intersection with a disfavored street, we quote from 1 Cyclopedia of Automobile Law by Blashfield, c. 22, sec. 20, p. 490, as follows:

“Where two persons are driving on lines that visibly intersect, the general obligation of ordinary care becomes for each a definite duty; and if, as they approach, their contiguity and mutual movements should suggest a probable or even possible collision, neither is entitled to act on the assumption that the other will give way.”

Section 22, p. 491:

“Where two drivers from different streets, enter an intersection at about the same time, each on his proper side of the street, and a collision is imminent it may be negligence for one driver to assume that the other will pass behind him, and do nothing to avoid the collision.”

Section 23, (p. 492:

“Although a driver of a motor vehicle has the right of way at an intersection, over a driver approaching on an intersecting road, either because of priority of approach, or because the traffic regulations give the right of way to vehicles approaching from the right, or to travelers on streets going in certain directions, the right of the driver who has the right so given is not exclusive; but on the contrary is at all times relative and subject to the fundamental common law doctrine, that he must use the right so as not to injure another. He is not absolved from the duty imposed by statute, to have his car under control and to operate it at a reasonable and proper rate of speed in approaching an intersection; nor from the common law obligation to use reasonable care, to avoid colliding with travelers approaching from the left, or proceeding on the disfavored street, if the latter disregard such fight of way. Such reasonable care being that degree of care which is ordinarily commensurate with the safety and welfare of others so approaching, and with whom he may come in contact at street intersections. Or, to state the rule of relative rights of the drivers of two vehicles converging toward an intersection, from the standpoint of both, the duty to use due care to avoid a collision still remains reciprocal, notwithstanding the right of way given to one of the drivers.And the driver of each vehicle may, within reasonable limits, rely upon the discharge of this duty by the other; including among other things, the reasonable observance of those municipal regulations with respect to speed and position, which are designed, not only to facilitate traffic and travel, but to make it safe for the public, as far as is humanly possible.
“Too firm an insistence upon the right of way, even when one is clearly entitled to it, may be the grossest kind of negligence. Under such rule, if it appears to the driver of the car having the right of way, or if he can, by the exercise of care, commensurate with the danger of the situation, discover that the other driver does not intend to yield the right of way, or intends to take precedence, and that a collision will likely occur, he can not recklessly proceed, but is bound to stop or turn aside, if in the exercise of ordinary care, for his own safety, he can do so. This rule being especially applicable, if the action of the driver last arriving at the intersection, is invited by the action of the other driver in stopping or starting to stop his car.”

It was the duty of plaintiff’s driver to exercise due care at this intersection. Due care required him, notwithstanding he was on a street which had the right of way over the intersecting street, to take the precaution to look northward, up the intersecting street before entering on the crossing. If he had done so in this instance he would have seen the imminence of a collision with the Reymond car and could and should have slowed down in time and in a way to avoid it. Not having himself exercised due care at the intersection, and the collision having resulted, due to the mutual fault, negligence, and want of due care on the part of himself and the defendant, he has no right under the law to recover of the defendant on account of his own fault. The judgment appealed from is for said reasons erroneous. It is therefore annulled, avoided and set aside. And the demand of Edward W. Schloss against Samuel I. Reymond herein is now refused and rejected.

Plaintiff and appellee to pay half the cost in both courts.

Defendant and appellant the other half.

MOUTON, J., not participating.