author: CLAIBOKNE, J.

text:
    No. 9476
    Orleans
    THOMPSON v. STEINKAMP
    (November 15, 1926. Opinion and Decree.)
    (December 13, 1926. Rehearing refused.)

      (Syllabus by the Court)

    1. Louisiana Digest — Evidence—Par. 339.
    One witness is sufficient to prove an account composed of several items aggregating more than $500, where no single item of the account exceeds that sum.
    2. Louisiana Digest — Appeal—Par. 565, 568.
    A defense which has not been raised in the pleadings will not be considered on appeal.

      Appeal from the Twenty-eighth Judicial District Court of Louisiana, parish of Jefferson. Hon. Prentice E. Edrington, Judge.
    Action by George Thompson against Mr. and Mrs. Frank Steinkamp.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Fred A. Middleton, of New Orleans, attorney for plaintiff, appellee.
    A. T. Higgins, Arthur Landry, of New Orleans, attorneys for defendant, appellant.
   CLAIBOKNE, J.

This is a suit for labor and materials furnished for a building.

The plaintiff alleged that on January 20, 1923, he contracted with the defendants to build an eight-room house in consideration of $525 for labor and extra for any additional labor, and all the materials furnished by plaintiff to be paid by defendants; that the cost of labor, including extra, was $695.20, and the cost of materials furnished by plaintiff was $1060.78, making a total of $1755.98, in part payment of which the defendants, have paid him $460.00, leaving a balance due of $1295.98, which defendants refuse to pay him.

Annexed to the petition is an itemized statement of all the lumber', bricks, sand, factory work, roofing paper, hardware, paint, lime, cement, and extra labor; no one item amounting to $500.

The defendants denied each allegation of plaintiff’s petition. Further answering, they averred that on December 1, 1922, Mrs. Frank Steinkamp made a verbal contract with B. Boudreaux to build a house according • to a plan for $525 for the carpenter work and the labor; she to furnish the necessary materials specified by Boudreaux; that the plaintiff, as agent for the Mid City Lumber Co., sold lumber to Mrs. Steinkamp to the amount of $901.50 for which she gave a mortgage to said company on said property.

There was judgment for plaintiff against both defendants and they have appealed.

The testimony of the witnesses was not taken down as given, but a statement of the testimony given by them was agreed upon.

From that statement it appears that four witnesses testified; the plaintiff, the two defendants, and Boudreaux. From this testimony we gather that the defendants originally contracted with Boudreaux to build the house; that all the materials that had been used in the house had been purchased through the plaintiff representing the Mid City Lumber Co.; that Thompson interfered with Boudreaux who abandoned the job, and turned it over to Thompson, and instructed Mrs. Steinkamp to pay Thompson the money; that she paid Thompson $460; that she gave the Mississippi Lumber Co. a mortgage for $901.59 for lumber furnished by them; but that this sum did not cover other articles used such as nails, paint, sand, lime, grates, hinges, locks, doors, door frames, paint, additional ceiling and bricks; that for these articles she has never paid anyone and has never received a bill from anyone for the same except from the plaintiff; that the house is insured against fire for $2250, and is rented $16 a side, or $32; that Boudreaux never called upon her for money; that she always sent the money to Boudreaux through the plaintiff.

Boudreaux worked for plaintiff on that and four other jobs and was paid by plaintiff $283.33.

The plaintiff verified the correctness of his petition.

The defendants are in possession of a double house built by plaintiff which is insured for $2250 and is rented for $32. All they claim to have paid on the house is $460 to plaintiff and $901.50 to the Lumber Company, making a total of $1361.59. It is evident that the house cost more to build than that sum. No one has claimed any amount from the defendants. It is evident, therefore, that the plaintiff is the only creditor. His bill must be correct; $1361.59 amount paid by defendants and $1295.88 amount sued for by plaintiff make the probable cost of the building $2657.57.

The defendants in their brief say that the contract sued on and the amount claimed exceed $500 and have not been proven to meet the requirements of Article C. C. 2277 (2257). This article requires proof “by one credible witness and other corroborating circumstances”. The contract .is sworn to by plaintiff and admitted by both defendants. ,The only difference is that the defendants say it was with Boudreaux. But the evidence shows that it was originally with Boudreaux and that he abandoned it and transferred it to Thompson who completed the building.

Other corroborating circumstances fully establishing plaintiff’s claim. O’Niell vs. Guyther, 123 La. 109, 48 South. 759.

It is true that the amount claimed exceeds $500. But it is composed of separate and distinct items not one of which exceeds $500. In such a case Article 2277 does not apply. A. T. Stewart & Co. vs. L. Haas, 23 La. Ann. 783; Stribling vs. Stewart, 19 La. Ann. 71; Rossignol vs. Est. of Triche, 28 La. Ann. 144.

It is argued in defendant’s brief that a married woman cannot be sued for her husband’s debts nor for those of the community. No such defense was made in the pleadings, and it will not be entertained in this court for the first time.

Theodore vs. New Orleans Mutual Insurance Association, 28 La. Ann. 917; R. M. Walmsley & Co. vs. Nicholas, 36 La. Ann. 798; Quaker Realty Co. vs. Maier-Watt Realty Co., 134 La. 1030, 64 South. 897; Shalley vs. New Orleans Public Service, 159 La. 524-525, 105 South. 606; Young vs. Firemen’s Fund Ins. Co., 160 La. 275, 107 South. 108; Chase vs. New Orleans Gas Light Co., 45 La. Ann. 302, 12 South. 308 and 108 South. 230; 12 Orl. App. 346.

Judgment affirmed.


source: Caselaw Access Project

author: WESTERFIELD, J.

license: Public Domain

text:
    No. 9446
    Orleans
    SELIGMAN v. THRIFFILY
    (November 2, 1926. Opinion and Decree.)
    (November 29, 1926. Rehearing Refused.)
    (January 4, 1927. Writs of Certiorari and Review Denied by Supreme Co.urt.)

      (Syllabus by the Court.)

    1. Louisiana . Digest — Pleading—Par. 40; Bills and Notes — Par. 45, 225.
    Special defenses must be specially pleaded. Defendant, who, when sued on a note, admits his signature, and makes the special defense that the note was without consideration, will not be permitted, over objection of counsel, to prove the consideration of the note to have been a gambling transaction.
    Appeal from Civil District Court, Division “E‘”. Hon. E. K. Skinner, Judge.

      Action by Jerome H. Seligman against Paul J. Thriftily.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    Feitel & Feitel, H. N. Polmer, of New Orleans, attorneys for plaintiff, appellant.
    A. B. Booth, of New Orleans, attorney for defendant, appellee.
   OPINION.

WESTERFIELD, J.

This is a suit on three promissory notes aggregating $1698.87. Defendant admitted his signature to the notes and specially pleaded that the notes were without consideration; that “the said notes were signed and executed as a mere matter of accommodation for H. Botnick; that at the time of the signing and executing of said notes and delivering them to the said Botnick your respondent was not indebted to the said Botnick for any sum whatever nor did he receive from the said Botnick any consideration whatsoever for said notes”.

It is further pleaded that plaintiff knew the notes were given Botnick without consideration as an accommodation.

There was judgment for defendant, and plaintiff has appealed.

On the trial of the case it was established that plaintiff was the holder in due course for value before maturity, he having paid $1500.00 for the notes, which were originally issued to Botnick. When demand, on plaintiff’s behalf, was made, through his counsel, new notes, the ones sued on, were issued.

The defense of accommodation maker seems to have been abandoned, as it seems to us it should have been, Sec. 29 Negotiable Instrument Act. Defendant], presented considerable testimony tending to show that the notes were given to Bot-nick, who sold them to plaintiff, in settlement of a bet, or bets, on a horse race. In other words a gambling transaction, reprobated by law with which courts will have nothing to do. It was on this ground that the judge a quo decided the issue in defendant’s favor. This question is at least debatable in view of R.' C. C., Art. 2982, but we think the evidence, which was admitted over the objection of counsel, should have been excluded, for the reason that such defense was made in the answer. The rule of procedure, to the effect that special- defenses must be specially pleaded applies. Templemen Bros. Lumber Co. vs. Sinnott, 9 Orl. App. 305. “One who files a special plea is to be judged on that plea and none other. All else is admitted.” Burbank vs. Haas, 9 La. Ann. 528.

The purpose of the rule is to prevent surprise and to give notice to opposing litigants of the issues to be considered on the trial of the case. It is based upon principles of the soundest equity. We are referred to Byrnes vs. Hibernia National Bank, 31 La. Ann. 81, from which the following quotation is made:

“The matters of defense that must be specially pleaded are those set up in evidence or extinguishment of an obligation, admitted or proved to have existed.

“Under the plea of general issue, the defendant may prove any fact or circumstance which tends to show the non-existence of falsity of the facts -alleged by plaintiff.”

Assuming that the plea of the general issue is not, in view of Act 157 of 1912 and amendments, requiring articulate pleadings, now obsolete, we fail to see anything helpful to defendant in the cited case, or in the last paragraph of the quotation which is evidently relied on. There is no denial of the existence of the notes sued on or the allegation of their falsity, but an admission of their reality and this case is squarely within the rule as stated in the first paragraph of the quotation, the attempted defense, designed to extinguish an obligation admitted to have once existed.

We conclude that the Court, a qua, erred in admitting this evidence and that since the defense set up in the pleadings, is not now, nor can it reasonably be, insisted on, the case is with plaintiff.

For the reasons assigned the judgment appealed from is reversed and it is now ordered that the judgment in favor of plaintiff, Jerome H. Seligman, and against defendant, Paul J. Thriftily, in the full sum of $1695.87 with 8 per cent per annum interest thereon from November 24, 1922, until paid with 10 per cent as attorney’s fees.


text:
    No. 9487
    Orleans
    WOOLEY v. DARNELL-BERRY HORSE AND MULE CO.
    (November 29, 1926. Opinion and Decree.)
    1. Louisiana Digest — Sales—Par. 240, 243.
    In order to recover in a redhibitory action, the buyer must prove that the vice existed before the sale.
    Appeal from Civil District Court, Division “D”. Hon. Porter Parker, Judge.
    Action by Joseph G. Wooley against the Darnell-Berry Horse and Mule Company.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed. •
    J. D. Nix, W. W. Wright, of New Orleans, attorneys for plaintiff, appellee.
    Frymire and Ramos, L. Walter Cock-field, of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

Plaintiff sues for $340.00 and defendant reconvenes asking $121.25. From a judgment, as prayed for, in plaintiff’s favor, defendant has appealed.

Plaintiff alleges that, on December 6, 1922, he bought two black horses from defendant, a livestock dealer, with the understanding that the horses could be returned if found unsatisfactory for plaintiff’s ice delivery business; that the horses did not suit him and that on February 25th they were returned to defendant and exchanged for two other horses, plaintiff agreeing to pay $150.00 additional, because of the alleged better quality of the second pair of horses; that one of the horses received in exchange was represented as lame and not delivered to plaintiff until Saturday, April 14, 1923, and that when delivered on said date 'the horse “was affected with a redhibitory vice, and the malady became so pregnant that said animal was removed on Monday, April 16, 1923, to the Veterinary Hospital at 1283 Dryades Street where the said animal died”; that the treatment of the horse cost plaintiff $52.50 which with the amount paid on the purchase price of the animal $187.50 (erroneously stated as $287.50) is due plaintiff by defendant.

Defendant denies the presence of any redhibitory vice in the animal sold at the time of delivery, before or since, and avers that the horse was sold and delivered to plaintiff on February 24, 1923, and that, at plaintiff’s request, was left in defendants charge for the purpose of having the horse clipped; that on returning the horse to defendant’s stable after having it clipped a nail pierced one of its feet or the horse “picked up a nail” and that at plaintiff’s suggestion the horse was treated in defendant’s stable at an expense of $71.25 for food and veterinary services; that on April 13, 1923, the horse was again delivered to the plaintiff in apparent good health; that there is $50.00 due defendant on the purchase price and in addition he should recover the expense of treating the horse.

The following articles of the Civil Code are pertinent:

Art. 2520. “Redhibition is the avoidance of a sale on account of some vice or defect in the thing sold, which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice.” .

Art. 2530. “The buyer who institutes the redhibitory action, must prove that the vice existed before the sale was made to him. If the vice has made its appearance within three days immediately following the sale, it is presumed to have existed before the sale.”

Art. 2456. “The sale is considered to be perfect between the parties, and the property is of right acquired to the purchaser with regard to the seller, as soon as there exists an agreement for the object and for the price thereof, although the object has not yet been delivered.”

The evidence is clearly to the effect that the two horse.s, one of which is the subject of this suit, were sold and- delivered to. plaintiff on February 24, 1923, and were simply left with defendant to be clipped. Plaintiff himself testified to this, effect.

“He said, ‘You want them horses?’ I said: ‘Yes’. I tried them in my wagon. They worked all right, and I says: T will take them.’ He said: ‘You got to pay $150.00 more for them horses.’ Well, I says: T can’t do no better; I guess I got to take them; you all got my money.’ They needed to be clipped and shod, and he said he would get them clipped and shod for me, and I give him the money for it, and so I accepted — he says: ‘Come back tomorrow and get the horses.’ ” (Wooley, Tr. p. 4.)

What killed, the horse, is difficult to determine. It does,not seem likely that the nail in his foot caused his death, for he apparently recovered from that accident. There is testimony to the effect that after receiving the horse from defendant following his recovery from the nail in his foot, he was injured severely on his side by blows of by kicks from another horse. At least the evidence is that he had the appearance of having been injured in such manner. Whatever may have caused the death of the horse defendant can not be held responsible. There is nothing in the record to indicate that there was anything the matter with the horse at the time of the sale. When he “picked” the nail he was plaintiff’s property and whatever consequences might have ensued must be at plaintiff’s cost. The horse died nearly ninety days after the sale and so far as the cause of death may be considered as established, it was due to something which happened after the sale.

The judgment appealed from must be reversed and plaintiff’s suit dismissed and it is so ordered.

It is further ordered that defendant, Darnell-Berry Horse and Mule Co. do have and recover judgment, in its reconventional demand, in its favor, and against plaintiff, Jos. G. Wooley, in the sum of $121.25 with costs of both courts.


author: CLAIBORNE, J.

text:
    No 9524
    Orleans
    RICHARDSON v. BEVERUNG AND BURG, Appellants
    (Jan. 3, 1927. Opinion and Decree.)

      (Syllabus by tbe Court)

    1. Louisiana Digest — Sales—Par. 226.
    A purchaser of cattle can claim warranty only from his immediate vendor and not from an anterior vendor.
    Appeal from Civil District Court. Hon. Mark M. Boatner, Judge.
    Action by Wm. A. Richardson against Geo. Beverung and L. M. Burg.
    There was judgment for plaintiff and defendants appealed.
    Judgment affirmed.
    Eugene Tharp, E. N. Gonzelmann, of New Orleans, attorneys for plaintiff, appellee.
    John Wagner, H. Mithoff, of New Orleans, attorneys for defendants, appellants.
   CLAIBORNE, J.

This is a suit upon the following promissory note:

“$2293.00 Jeff. Parish, La.

“October 11, 1921.

“Six months after date I or either of us, promise to pay to the order of W. A. Richardson, two thousand two hundred and ninety-three dollars, value received, with interest at the rate of 8 per cent after maturity until paid, and attorney’s fees.”

Then follows certain conditions concerning the transfer of the note.

“Signed Geo. Beverung.

“Endorsed L. M. Burg.

“W. A. Richardson.”

Annexed to the petition are the note and protest and notice of protest.

The plaintiff alleged that he is the owner of said note; that $1500 had been paid on account thereof, leaving due $793 and interest at 8 per cent from April 11, 1921, and 10 per cent attorney’s fees and he prayed for judgment for said amount agaipst both defendants in solido.

There was judgment by default against Beverung.

For answer, Burg admitted his endorsement of the note but denied owing it “because there was a failure of consideration; the said note was given in a transaction involving the purchase of certain cows and as part payment; that the said cows were not as bought and there was a failure of the consideration and he so notified the said Wm. A. Richardson”.

In a supplemental answer Burg alleged “that on or about the 11th of October, 1921, George Beverung, co-defendant, purchased at public auction in the parish of Jefferson, at plaintiff’s place of business, a number of cows and heifers numbering about 19, more or less, with cans and stools, for the price of $2293; that while said sale was conducted by an auctioneer, the plaintiff herein William A. Richardson, stood by and publicly guaranteed that each animal sold and offered for sale was sound and healthy, and that should any purchaser find after delivery that this condition did not exist, then he would become responsible to said purchaser for any defects and for the reimbursement of any amount suffered by the purchaser; that under the terms of this sale George Beverung, the maker of the note sued on in this action, on which note respondent became endorser, purchased said cows and heifers”; then follows an enumeration of a list of cows and the price paid for each, represented by the note sued on; and the allegation that' a certain number of those cows were afflicted with tuberculosis, while another number were falsely represented with calf, and the depreciation resulting from said causes amounted to ■$895 for which Richardson was entitled to a credit on said note.

The plaintiff further alleged “that as between the said George Beverung and respondent, co-defendants in this action, the purchase of the aforesaid animals and implements was made on a basis of certain pro-rata between themselves; that your respondent, Burg, took cows, heifers, and implements by agreement' between him and said Beverung amounting to the sum of $1384, and said Beverung took and retained cows and heifers amounting to the sum of $907”.

Defendant Burg prayed for judgment in his favor rejecting plaintiff’s demand.

There was judgment for plaintiff and. Burg has appealed.

The defendant’s answer is essentially an action for the reduction of the price of the animals sold for which the note sued on was given, an action quanti minoris C. C. 2520-2548. This action lies only on behalf on the purchaser against his immediate vendor. But in. the present case the vendor, it is true was Richardson, but the purchaser, according to repeated allegations in the petition, was Beverung, and not Burg. It was only “as between the said George Beverung and respondent (Burg) co-defendants in this action” as was also correctly said in the same petition, that the purchase “was made on a basis of certain pro-rata among themselves”.

Plaintiff testified that “Beverung bought the cattle”; they were all sold by the auctioneer; none of the cows were sold to Burg; he did not buy any; Burg endorsed Beverung’s note; the cattle were bought by Beverung; plaintiff never knew anything of Burg.

Lucas Schiro the auctioneer who cried and sold the cows was asked:

“Q. Just tell us who purchased the cows?

“A. George Beverung.

“Q. Your record shows that they were purchased by George Beverung.

“A. Yes, sir.

“Q. All the cows then were charged to George Beverung?

“A. Yes, sir.

“Q. Were all of them bought in by Mr. Beverung?

“A. Some by Burg and some by Beverung, both were bidding in.

“Q. Do you know which cows Mr. Burg bought in from your sales book?

“A. After the sale we marked some cows off so they could separate each cow separately among themselves.”

In Burg’s answer it is repeatedly alleged that Beverung purchased the cows, and that Burg took cows by . agreement between him and Beverung.

The defendant Burg himself does not testify that he. bought any cattle from the plaintiff. Under these conditions he cannot have a claim in warranty against him.

It is therefore ordered that the judgment in favor of plaintiff be affirmed.


text:
    No. 10,087
    Orleans
    MILLER v. KAISER, Appellant
    (Nov. 15, 1926. Opinion and Decree.)
    (Dec. 13, 1926. Rehearing Refused.)

      (Syllabus by the Court)
    1. Louisiana Digest — Landlord and Tenant —Par. 65, 76.
    The fact that a tenant is in arrears in his rent does not relieve his landlord of his obligation to keep the leased premises in safe repair.
    Appeal from Civil District Court, Division “B". Hon. M. M. Boatner, Judge.
    Action by Susie Miller against John S. Kaiser.
    There was judgment for plaintiff and defendant appealed.
    Judgment amended and affirmed.
    J. O. Denny, of New Orleans, attorney for plaintiff, appellee.
    Chas. Osterberger, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

Plaintiff sues her landlord, claiming $10,000.00 as damages for personal injuries, resulting from a fall alleged to have been caused by defective steps, attached to the leased premises.

There was judgment in plaintiff’s favor for $1182.00 and defendant has appealed.

The evidence satisfies us that plaintiff was injured in the manner claimed: that is to say, by the collapse of the steps leading from the kitchen to the back yard. The defendant contends that he can not be held responsible for the failure to repair the steps because plaintiff was in arrears in the payment of the rent, and, therefore should have repaired the steps, and credited his account with the expense. If plaintiff was indebted to defendant, at the time of the accident, the record fails to establish the fact, for there is nothing but defendant’s statement and plaintiff’s denial. However, the failure to pay the rent promptly does not relieve the landlord of his obligation to keep the leased premises in proper repair. His remedy would be an eviction of the tenant, sequestration or ordinary process, but so long as he allows the tenant to remain on the leased premises, the fact he extends credit for rent, does not affect his obligation, as landlord, to keep the property in repair.

The owner of a building is answerable in damages to those, who being lawfully on the premises, are injured by reason of its defects. Pierre vs. Levy, 3 La. App. 769.

“A lessor guarantees the lessee against all the defects of the leased premises even in case it should appear he knew nothing of the existence of such defects and he is bound to indemnify the lessee for any loss resulting from those defects.” Moran vs. Maestri, 3 La. App. 228.

“The privilege conferred upon the lessee under Art. 2694 R. C. G. of causing repairs to be made to leased premises at the expense of lessor, creates no obligation upon the lessee to make such re- . pairs.” Morgan vs. Cusimano et al., 2 La. App. 112. See also Waus vs. Hollander, 2 La. App. 409.

Plaintiff is a cook, earning $11 per week when employed. Her leg was broken by the accident. It was in a plaster cast three weeks, during which time she remained in bed. She was unable to work for three months. Her doctor charged her $50.00. Her wages during the time she was incapacitated plus her doctor bill amounts to $182.00. We will allow in addition $750.00 for pain and suffering making $932.00 in all.

For the reasons assigned the judgment appealed from is amended by reducing the amount allowed plaintiff to $932.00 and in all other respects it is affirmed.


text:
    No. 9486
    Orleans
    LIVINGSTON FINANCE CORPORATION v. LEE APARTMENTS
    (Jan. 6, 1927. Opinion and Decree.)

      (jSyllabus by the Court)
    1. Louisiana Digest — Bills and Notes— ■ Par. 77,. 125.
    A rent note which upon its face bears a ' statement of the consideration for which it is given is a negotiable instrument and a pledgee for value and before maturity is a holder in due course.
    ■ Appeal from Civil District Court, Division “D”. Hon. Porter Parker, Judge.
    Action by Livingston Finance Corporation, Inc., against The Lee Apartments, ' Inc., et als.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    James G. Schillin, of New Orleans, attorney for plaintiff, appellant.
    B. J. Cahn, of New Orleans, attorney for defendant, appellee.
   WESTERFIELD, J.

Plaintiff, as pledgee of three rent notes of $50.00 each, sues Mrs. Eleanor Buffington, the maker, and the Lee Apartments, Inc., and John L. Costa as endorsers.

Mrs. Buffington does not appear to have been cited. There was judgment by default against the Lee Apartments, Inc., and in favor of the defendant Costa dismissing plaintiff’s demand.

The plaintiff alone has appealed.

Costa’s defense is based upon the alleged non-negotiability of the rent notes because of the appearance on their face of a statement that the consideration therefor is the rent of a certain apartment. He alleges that there was a failure of consideration, and in the lower court was permitted to offer ©roof in support of the allegation which apparently convinced the judge a quo.

We are of opinion that this evidence was inadmissible. The plaintiff was a holder in due course of a negotiable instrument and proof of equities existing as between the parties to the instrument inadmissible.

The statement of the consideration for which the note was given did not affect its negotiability under well settled juris.prudence.

Wm. D. Seymour & Co., Inc., vs. Frank Artz et al., 10612 Orl. App. (not yet reported). It is unnecessary to consider whether a defense of failure of consideration can be made by an endorser.

After the filing of plaintiff’s petition a payment of $75.00 was made by the Lee Apartments, Inc. Credit must be given accordingly.

For the reasons assigned the judgment appealed frqm is reversed and it is now ordered that there be judgment in favor of plaintiff, Livingston Finance Corporation, Inc., and against the defendant John L. Costa in the sum of $150.00 with interest at the rate of five per cent' per annum from December 15, 1922, and ten per cent attorney’s fees upon principal and interest, subject to a credit of $75.00 as of April 26, 1923. ' ' 1 fc|


text:
    No. 10,580
    Orleans
    MAXON v. MILLER
    (December 13, 1926. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Courts — Par. 88; Partnership — Par. 178.
    The First City Court has no jurisdiction in a suit involving the liquidation of a partnership.
    Appeal from the First City Court, Division “A”, Hon. W. Alexander Bahns, Judge.
    Action by John Maxon against James Miller.
    ■ There was judgment for defendant and .plaintiff appealed.
    Judgment affirmed.
    A. M. Wolfson, of New Orleans, attorney for plaintiff, appellant.
    Paul W. Maloney, of New Orleans, attor-ney for defendant, appellee.
   WESTERFIELD, J.

This is a suit by one partner against another for $200.00. Its determination involves a liquidation of the partnership. The lower court maintained a plea to the jurisdiction, ratione materiae, and plaintiff has appealed.

The plea was properly maintained by the court, a qua. We know of no provision of the constitution, defining the jurisdiction of the First City Court, which would give jurisdiction in this case, and we have been referred to none.

The judgment appealed from is affirmed.


text:
    No. 10,275
    Orleans
    TAYLOR v. SMITH AND SON, Appellants
    (Nov. 15, 1926. Opinion and Decree.)
    (Nov. 29, 1926. Rehearing Refused.)
    (Jan. 4, 1927. Writs of Certiorari and Review denied by Supreme Court.)

      (Syllabus by the Court)

    1. Louisiana Digest — Master and Servant —Par. 154, 156; Courts — Par. 168.
    The maritime character of the contract does not of itself determine the question of jurisdiction but rather. the locality of the accident.

      2. Louisiana Digest — Master and Servant . — Par. 154, 156; Courts — Par. 168.
    Where an employee engaged in unloading a vessel is struck by a winch while on the wharf and knocked into the river and drowned; held: the injury occurred on land and the state courts had jurisdiction.
    Appeal- from Civil District Court. Hon. Mark M. Boatner, Judge.
    Action by Fannie Robinson, widow of George Taylor against F. Smith and Son.
    There was judgment for plaintiff and defendants appealed.
    Judgment affirmed.
    E. Y. Parham, of New Orleans, attorney for plaintiff, appellee.
    John May, of New Orleans, attorney for defendants, appellant's.
   CLAIBORNE, J.

This is a suit under the Employers’ Liability Law of this State.

Plaintiff alleged that she is the widow of George Taylor and mother of two children Essie Ruby Taylor, aged 12, and Lynn H. Taylor aged 9 years, issue of their marriage; that' on March 12, 1925, the defendant's were stevedores engaged in the business of loading and unloading cargoes of vessels in this city; that on said date her husband was in the employ of the defendant as a longshoreman and was assisting unloading the cargo of the ship “Texas Maru” then lying at the Stuyvesant docks; that he was earning 65 cents per hour and working ten hours per day or $6.50 per day or $39.00 per week; that on said day at about 3 o’clock p. m., the deck of the ship was much higher than the floor of the wharf, and a stage, which is a part of the stevedore’s equipment, and was about 18 or 20 feet long and 5 feet wide extended beyond the wharf a distance of 4 or 5 feet, to the side of the ship; that said stage rested solely upon the wharf on a length of 14 or 15 feet; that at that hour while her deceased 'husband was performing the services arising out of, and incidental to, his employment in the course of defendants’ business, and while he was standing upon said stage assisting in unloading the cargo of said ship, a sling loaded with five sacks of soda weighing 200 pounds each, was being lowered over the side of said ship by means of a winch upon the ship, which was operated by a longshoreman in the employ and under the control of the defendants; that the sling was swinging back and forth, and in trying to catch it and steady it in order to lower it on a waiting truck, plaintiff’s husband was struck by the sling on the upper part of the body and knocked off the stage into the river where he was found dead; that at the time of her husband’s death she was living with him and was dependent upon him for the support of herself and of her children; that she paid $143.10 fox her husband’s funeral. Plaintiff prayed for judgment for $6,000 payable $20 per week for 300 weeks with interest and for $143.10 burial expenses.

The defendants admitted that they were stevedores engaged in the business of loading and unloading cargoes of vessels; that plaintiff’s husband was in their employ and earning $39 a week; that the stage rested upon the wharf and extended 4 or 5 feet beyond it and was 26 feet long and 12 feet wide; they denied all the other allegations; they denied that plaintiff’s husband was struck by the loaded sling, but aver that after handing a sling to a fellow laborer on deck, he stepped back too far and “fell from the platform”; they specially aver that the accident to plaintiff’s husband and his resulting death occurred in and on a navigable stream and while he was engaged in a maritime employment and under a maritime contract; that the rights and obligations of all parties are exclusively within admiralty jurisdiction; that Act 20 of 1914 of the State cannot legally regulate the rights of parties in such cases as it would be in violation of the Constitution of the United States Article I, Section 8, 5th and 14th amendments, and of Article 3, Section 2 conferring exclusive admiralty jurisdiction upon the courts of the United States; and also in violation of the State Constitution Article I, Sections 2 and 6.

There was judgment for plaintiff as prayed for and defendants have appealed.

It is admitted on both sides that the plaintiff was engaged in a maritime contract, and that this fact is immaterial in determining the question of jurisdiction; that the jurisdiction is determined by the locality of the accident. 234 U. S. 52; 244 U. S. 206; 262 U. S. 756; 226 Fed. 581; 284 Fed. 174; 294 Fed. 549; 298 Fed. 620.

The whole controversy therefore resolves itself into the question whether the accident occurred on land or in the river.

The plaintiff contends that the accident happened on land, while the defendants’ plea in their own words “is simply that the death of petitioner’s husband occurred in and upon a navigable stream”.

Upon that question of fact four witnesses were heard, three for the plaintiff and one for the defendants.

Plaintiff testified that she saw her' husband’s body at Pointe a la Hache three weeks after the accident; that there were one or two marks or bruises on one leg and on the right side of the face.

Zacharie Scott was working for the defendants; the deceased, Taylor, “went with' a sling in his hand to throw it on the deck of the ship, and a load of soda came over the side of the ship and struck him and knocked him into the river”; there was space between the ship and the stage; the greater part of the stage rested upon the wharf and the balance extended beyond the wharf; he was looking right at Taylor when the sling struck him; it struck him on the head and shoulder, in the sling was a load of soda in 100 pound sacks; some of it is hard, Taylor did not come .up after he fell in the river; Taylor was standing on the platform when he was struck; Taylor was standing there to catch the load; the stage belongs to the stevedores; they remain on shore; the stage was below the deck of the ship; sometimes the ship would move and the stage would touch the sides; at the time of the accident there was a young man at his side with a truck ready to load it.

Monroe Smiley was working for the defendants unloading the ship “Texas Maru”; just as Taylor went to throw the sling to the deck.the load swung off and struck him; Taylor was on the stage; witness .was standing 10 to 12 feet from him on the stage; the load struck him on the back and he was knocked overboard; the sling is a double rope put around ten sacks in the hold of the ship to lift them up and into the truck; then the sling is taken back and thrown back on the ship.

On behalf of defendants Elizah Albert testified that he was unloading the “Texaá Maru” on the morning of the accident; he was on the ship about five feet above Taylor’s head; whenever the load was pulled out of the hold his duty was to remove the hook from the sling and attach it to the second derrick so that' the load could be hoisted from the vessel down to the truck; there were three skids or stage planks; they laid flat on the1 wharf; two of them were about 20 feet long and one 14 feet and both of these skids extended about eight feet from the wharf; ten bags are put on the skid. He was asked:

“Q. Now tell us how this accident happened? .

“A. Well, this gentleman who got drowned he came in with his sling and he came to me and handed me the sling. I was five feet overhead, and he was standing on these three skids, and he handed me the sling and stepped back like this, and' one of the ring bolts was on the wharf, the bolt and ring that size, and he stepped on that ring and lost his balance and slipped down in the water.

“Q. He fell in the water between the side of the vessel and the dock?

“A. Yes, sir.

“Q. How far is the side of. the vessel from the dock at the point where these skids project out over the dock?

“A. Right jam up against it. The aft end where this accident happened, was about eight feet from the vessel’s side to the side of the dock, the three skids projected over the water about eight feet.

“Q. This ring that you say Taylor stumbled on was that on the skid or on the dock

.“A. On the dock; the rope that they tied the ship with.

“Q. How did he step on that ring bolt if that ring bolt was eight feet from the ship?

“A. He goes on the skid and gets back like this, out of the way of the load, and when he went to step off the skid, he steps like this and he didn’t get quite off, and he stepped on that cap about this far from the deck and instead of stepping down here he stepped on that ring, which was stationary of the dock and he fell in.”

The plaintiff and all the witnesses are colored people.

There are several reasons why the testimony of the witnesses for the plaintiff is entitled to more weight. In the first place their testimony that they saw the load in the sling strike Taylor is affirmative and entitled to more weight. In the second place, two witnesses testify to that fact, as against defendants’ single witness, and they are not impeached.

The testimony of the witness for 'the defendants is confused and improbable. In describing the stage of skids he says they are 14 and 20 feet long and extend eight feet beyond the dock. Such a skid could not support the weight of ten bags and one man without tilting. He says Taylor tripped upon a ring bolt upon the dock and yet fell into the river. Since he fell into the river it is more probable that the cause of his falling arose upon the skid and not upon the dock. But this witness was in the employ of the defendants at the time of the accident, a circumstance calculated to weaken his testimony. “In suits against common carriers the testimony in their behalf of their clerks and servants must be received with great caution.” State vs. Crozat, 8 La. Ann. 297; C. C. 2282 (2261).

But the trial judge saw and heard the witnesses and his conclusion cannot be reversed unless clearly erroneous. The answer itself alleges that Taylor “fell from. the platform”.

But the defendants argue that conceding that Taylor was knocked off of the stage or slipped from it, is immaterial; that it was not the fall from the stage that was the cause of his death but his immersion into the water which drowned him, and that this was clearly a maritime accident conferring exclusive jurisdiction upon the admiralty court.

In support of that proposition he quotes many authorities, among which is the case of City of Lincoln, 25 Fed. 835. There the Steamship City of Lincoln was discharging booms upon, a wharf. The wharf broke down, causing the booms to be thrown into the water and lost. A libel was filed, and the same exceptions were made as have been interposed in this case. In overruling them Judge Brown said:

“The injury to the libellants' steel booms was effected wholly in the water, into which they were thrown through the breaking down of the wharf. The whole ‘substance and consummation of the injury’ were therefore in the water. It was the water that did the damage. That was the place of the damage, and consequently the place of the tort, for the purposes of jurisdiction. If the booms in this case had not been thrown into the water, the injury in question would not have arisen.”

The distinctions made in the above case are too subtle for the judicial mind to contemplate. But even so, in that case the booms themselves had not been struck or injured prior to their immersion in the water; while in the present case, we have found that Taylor had been knocked down by bags of soda. The defendants in their very elaborate and learned brief cite other cases in line with the Lincoln case. The plaintiff in his equally exhaustive and able brief cites many decisions in opposition . to the Lincoln case. These last 259 U. S. 263; 226 Fed. 590, cases are more in accord with our views on the subject and we adopt them.

•We are of the opinion that the plaintiff is entitled to relief, and that if it was denied her in this case she would get none. The case is perhaps equally balanced in technicalities, and if we err, we prefer to do so on the side that is supported by the judgment of the trial court and possesses all the equities rather than on the one that may be technically right.


text:
    No. 10,266
    Orleans
    JARROW v. SABRIER
    (October 18, 1926. Opinion and Decree.)
    (November 15, 1926. Rehearing Refused.
    (January 4, 1927. Writs of Certiorari and Review denied by Supreme Court.)

      (Syllabus by the Court)

    1. Louisiana Digest — Master and Servant —Par. 158.
    A workman who is employed with others in a gang by the job to unload staves from a car at 35 cents per ton is no longer in the course of his employer’s business after he has unloaded the car and has gone to attend to business of his own.
    Appeal from Civil District Court, Hon. Mark M. Boatner, Judge.
    Action by Ernest Jarrow against Jules L. Sabrier.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    P. E. Edrington, of New Orleans, attorney for plaintiff, appellant.
    Leslie P. Beard, of New Orleans, attorney for defendant, appellee.
   CLAIBORNE, J.

This is a compensation suit. The plaintiff alleged that in March, 1925, he was employed by the defendant to unload staves and lumber from cars on the river front; that this occupation is hazardous and that he is entitled to the benefits of Act 20 of 1914 known as the Employer’s Liability Act; that on March 31 about 11 o’clock a. m. during the course of his employment a switch engine of the Public Belt Railroad ran over him cutting off both of his feet above the ankle by reason of which he is permanently disabled; that he was earning at the time he was injured an average of $25 per week, and that he is entitled to receive from the defendant, his employer, 65 per centum of his weekly wages for a period of 400 weeks.

He prayed for judgment for $5500.

The defendant admitted that plaintiff was in his employ engaged on March 31, 1925, in unloading staves from cars but that the employment terminated at or before twelve o’clock noon that day; he admitted that the occupation was hazardous; he admitted that on that day the plaintiff met with an accident, but denied that said accident happened at the hour alleged in the petition, or that the same occurred during the cohrse of his employment; that when the accident happened plaintiff’s employment with defendant had terminated and that said accident did not arise out of or in the course of his employment with defendant and was not in any manner due to, or occasioned through, said employment.

Defendant denied all the other allegations of the petition.

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

The issue is thus clear cut, and the question is, did the plaintiff get hurt during the course of his employment as contended by him, or was it, as alleged by defendant, after his employment had terminated?

The plaintiff testified that he was employed by defendant with Reily and others by contract to unload staves from cars at the rate of thirty cents a ton; they started at about eight o’clock; he does not know at what time they got through; after he finished unloading the cars, he went to the toilet; and when he came back he ran across the track and was hurt; they get (paid at one o’clock for the car they unload; when he returned from the toilet he was going back to work to unload another car; defendant’s runner, Joe Mack, and Reiley told- him that; Reiley told him not to go too far, to keep near the staves, as they had another car of staves to unload; he worked for the defendant a good while, about three years, about two or three days in the week; he worked before with Reiley.

Reiley Stewart testified that he has been working for the defendant for about thirteen or fifteen years; that he never worked with plaintiff before; that he worked with him. and three others the morning that plaintiff got hurt; they unloaded the car and piled up the staves; they worked until ten or twelve o’clock; he went off and left plaintiff and Miller standing up in the ear smoking; he told plaintiff not to go too far as they might have another car to unload, although there was none there at that time; he did not see the accident; he learned of it ten minutes after; he went a half a block away to see what time it was, and it was ten minutes after twelve.

The defendant, Sabrier, testified that he is an unloading contractor; he pays every day at one o’clock; every car is placed in the morning and finished up by twelve o’clock and is paid for at one o’clock; if a car is placed in position in the afternoon he pays the men if they are his regular men before the car is finished at half past two; the men are paid 35 cents a ton.

John McNulty has been working for defendant sixteen or seventeen years; the plaintiff has not been working for defendant; he hired him in the morning of his accident to unload that car; the men are paid by the tonnage; the gang is paid to unload the car, $10 or $15, and they divide the money; Reiley was no more than the other members of the gang.

Rufus Miller has been working for the defendant three years; the plaintiff was not working for the defendant; he worked that morning, not before; the accident happened about two rail lengths from the car they had finished unloading; after they got through Jarrow smoked a cigarette and he smoked a pipe, and Jarrow told him he was going to the restaurant to get something to eat; they had no work in sight for the afternoon; they did unload staves that afternoon; they hired a man to fill out the gang.

The defendant testified that he employs Joe McNulty (or Mack) as a sort of foreman; when he gets a car he writes down the weights and contents and turns it over to him; as a rule there is only one car for his men; if there is more than one car, they pick up some other men, four to each car, and they are paid at the rate of 35 cents a ton, and they divide that among themselves; they are paid immediately after the car is through; he did not tell any of the men that they would be engaged that afternoon to unload another car of staves; he never saw Jarrow before that morning, and he had not worked for him to his knowledge; he employs the men by the job.

It is perfectly evident, and we agree with the trial judge, that after the car was unloaded, which was the sole and exclusive object of plaintiff’s employment, his employment ceased. ’ He was not engaged to unload another car, and was at the time of his injury free to go wherever he pleased. Barry vs. Shreveport, 10 Adv. Rep. La. App. 18.

He was employed by the job for a specific purpose and none other.

It is immaterial that there was a possibility of another car coming in later to be unloaded. None had been engaged to unload that possible car. If the car came it would have been the subject of another employment.

The plaintiff and others lingered around the stave yard with the hope of obtaining work in discharging staves. Plaintiff was no more engaged for the afternoon than he would have been engaged for the next day when the defendant expected to receive other cars. We are therefore of the opinion that plaintiff did not receive his injury during nor in the course of his employment, and that the judgment appealed from is correct, and it is therefore affirmed.


text:
    No. 9495
    Orleans
    HIRSCH, Appellant, v. ASHFORD
    (January 6, 1927. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Automobiles—Par. 4 (b).
    Where two automobiles approach each other at a right angle on intersecting streets and one of them enters the intersection some time before the other, it is entitled to proceed, notwithstanding the other car is traveling on a street given the right of way over the one from which the car first entering the intersection emerged.

      Appeal from Civil District Court, Division "C”, Hon. E. K. Skinner, Judge.
    Action by Henry B. Hirscb against M. J. Ashford.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Beer & Robert, L. P. Beard, of New Orleans, attorneys for plaintiff, appellant.
    Edw. Dinkelspiel, of New Orleans, attorney for defendant, appellee.
   WESTERFIELD, J.

This,suit grows out of a collision of automobiles at a street intersection. Plaintiff claims, by original petition, $570.97, and defendant, by reconventional demand, $148.85.

There was judgment rejecting plaintiff’s demand and in favor of defendant as prayed for on his reconventional demand and plaintiff has appealed.

Only two witnesses, plaintiff and defendant, testified concerning the accident. As might be expected, they do not agree. The trial judge gave more weight to the evidence of defendant, and we cannot say he was manifestly in error.

We find the facts to be as follows:

Plaintiff during a heavy rainstorm and at a rate of speed between fifteen and eighteen miles per hour, was proceeding along Canal Street, toward the river, and as he approached Scott street, being, say, one-half square away, defendant drove across Canal street at its intersection with Scott. Before defendant could cross and as he neared the neutral 'ground, he was struck violently on the ieft and in the rear of his car, the force of the impact driving the car against a post on the neutral ground and damaging the right as well as the left rear wheel.

Plaintiff insists that even under the circumstances we have found as the facts in this case, he can not be held liable because he had the right of way. But in this he is mistaken for the right of way must be understood with certain qualifications, some of which we have heretofore alluded to.

“A driver of a taxicab, running twenty miles per hour on a dark rainy night over slippery streets is guilty of gross carelessness and culpable negligence notwithstanding the fact that he has the right of way and is not exceeding the speed limit.” Lala vs. Williams, et al., 9212 Orl. App.

In Vance vs. Poree, No. 9415 Orl. App., not yet reported, we said:

“The right of way established by municipal ordinance in favor of vehicles using certain streets is not an exclusive privilege and it must be exercised with due regard to the right of other vehicles to use the intersecting streets.” (Syllabus) Quoting further from that opinion, which incidentally referred to facts strikingly similar to those we are considering.

“If, therefore, the Studebaker was where it should have been, near the curb on the lake side of St. Charles Avenue, it could not have struck the Ford car near the neutral ground and the Ford, being near the neutral ground when struck must have entered the intersection some little time before the Studebaker and therefore may be said to have preempted the crossing and the Studebaker, notwithstanding its right of way, should not have proceeded under the circumstances but should have given way to the Ford, for as we have frequently held, the right of way confers no exclusive right to the possessor to monopolize the streets and intersections. Oscar J. Lala vs. L. M. Williams, et al., No. 9212 Orl. App.; Levy vs. Russell, 9291 Orl. App.; Accordo vs. Aiken, 9610 Orl. App. See also Sec. 7, par. (9), Ord. 7490, C. C. S.”

In the case at bar the plaintiff was driving too fast under the weather conditions obtaining. This is indicated by the force of the blow struck defendant’s car. He was apparently too near the neutral ground and not near the sidewalk curbing as he should have been. He should have allowed defendant to cross his path because he had entered the intersection some time before he (plaintiff) approached it. We agree with the trial judge in holding plaintiff alone responsible for the accident. The judgment appealed from will be affirmed.


text:
    No. 9980
    Orleans
    WEIR v. N. O. PUBLIC SERVICE INC., Appellant
    (October 18, 1926. Opinion and Decree.)
    (November 29, 1926. Rehearing Refused.)
    (January 4, 1927. Writs of Certiorari and Review denied by Supreme Court.)

      (Syllabus by the Court)
    1. Louisiana Digest — Street and Interurban Railroads — Par. 25, 34; Negligence —Par. 41.
    In order to recover damages against a street car railway company for being run over and injured by one of its cars the plaintiff must establish negligence on the part of those in charge of the car.
    Appeal from Civil District Court, Hon. Hugh C. Cage, Judge.
    Action by Mrs. Lotta A. Weir against New Orleans Public Service, Inc.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed.
    Woodville & Woodville, of New Orleans, attorneys for plaintiff, appellee.
    Benj. W. Kernan, of New Orleans, attorney for defendant, appellant.
   CLAIBORNE, J.

Plaintiff was knocked down and injured by one of defendant’s street cars; hence this suit.

She alleged that on November 29, 1922, at about 8:15 p. m., she was walking out upon the upper side of Nashville Avenue going towards the river; when she reached the corner of Hurst street she stopped and looked in both'directions; upon said Hurst street the defendant company operates a double line of ears; she then saw a car going downtown on the track furthest from her nearest to the river, she saw a car below Nashville Avenue coming uptown upon the track nearest to her; that Nashville Avenue is a very wide street; that she proceeded to cross the track and was struck by said car; before she was safely across; that said car was running at an excessive rate of speed of thirty-five miles an hour, and due to said excessive rate o.f speed the motorman was not able to stop his car; that the motorman violated the rules of the company which required him to have his car under perfect control within .100 feet of a paved cross street; that the motorman gave no warning of his approach; that after striking her the car ran for more than 100 feet; that when she saw the car at some distance below1 Nashville Avenue she believes that it was traveling at a reasonable rate of speed which would have given her time to cross the track; that she suffered injuries to the extent of $10,000.00.

Defendant denies all the allegations of plaintiff’s petition. Further answering, it averred that “the car was being prudently operated up Hurst street and was about to cross over Nashville Avenue when the said Mrs. Jefferson Davis Weir, without looking or listening for the approach of the car attempted to cross Hurst street at the upper side of Nashville Avenue; although the motorman sounded his gong and otherwise tried to attract her attention, she proceded to cross directly in front of the car and was struck. * * That if the plaintiff was injured as alleged in the petition her injury was due to her own careless, negligent and imprudent conduct in attempting to cross the track at a time when the car was so close upon her as herein-above set forth, and in her failure to exercise that degree of care required by the circumstances then and there existing.”

The case was tried by a jury who rendered a verdict of $3500.00, for which judgment was rendered against the defendant.

The defendant applied for a new trial. The trial judge in a lengthy written opinion reviewed the evidence and came to the conclusion that the plaintiff stepped in front of the uptown going car; that the motorman did all in his power to stop his car, without avail, and ran down the plaintiff. He expressed astonishment at the verdict of the jury, but refused the new trial on the ground that the case would have to go to the Court of Appeal.

The defendant appealed.

A reading of the testimony satisfies us that the trial judge was right.

The plaintiff testified that she had lived in New Orleans about thirty years; she left the St. Charles Avenue car on Nashville Avenue and walked along the upper side of Nashville Avenue towards Hurst street; when she reached Hurst street she looked down to see where the uptown car was, and she saw it a block away; she observed a ear coming downtown at a short distance; there is not a foot of space between the curbing and the track that goes up, in the middle of which she was standing. She stepped upon and stood in the middle of the uptown track of the car going up waiting for the car going down to pass her; in less time than it takes to tell the car from downtown was upon her; she knew she was in danger when she saw the flash on her face; to go forward would have been death because that would throw her in front of the car going downtown, and in trying to throw herself back, that brought about a terrible gash in the back of her head.

It will be noticed that plaintiff’s testimony as to the manner of the accident is in conflict with the allegations of her petition sworn to by her. In her petition she swears she walked across the track, while in her testimony she says she was standing in the middle of the track.

The plaintiff produced no other witness to the accident.

The defendant on the other hand produced several.

Walter C. Wright is the publisher of the Lumber Trade Journal; he got off a street car at St. Charles Avenue and Nashville Avenue; a lady followed him and he stepped aside to let her pass going towards the river; she got about twenty paces ahead of him; when she got to the curb on Hurst street he heard the clanging of a car bell; the lady tried to cross, which horrified him; she took two steps on the track with the car approaching, and then one step back out of the track, but not enough to avoid the fender striking her, and as the car passed he called to the conductor and told him the car had struck a lady.

Walter PI. Egerton testified; he is a'member of the firm o.f Grelle-Egerton Engraving Company; he was present when the accident occurred; he was in front of his residence on the opposite side of the street at No. 1505 Nashville Avenue, corner of Hurst, lower wood corner; he heard a great ringing of car bells; he turned and noticed the form of a woman on the first rail; she swerved back and the car struck her, and he walked into his residence and telephoned to the Touro as he felt there must have been an accident.

William Treadway, the motormon, testified; he first saw the lady on the edge of the curbing; he rang his gong; and when he noticed the lady going across the street in his track in front of his car, and another car coming down and she was about to step into the side of the car coming down about the third window, and when she saw the car she stepped back in the uptown track right in front of his car, and as she did he applied the brakes and pulled the reverse and dropped the fender, and the left side of his fender struck her around the ankle and threw her back upon the fender.

In the presence of the testimony of these three witnesses, we are forced to the conclusion that no negligence has been shown on the part of the motorman, and that on the contrary the plaintiff’s negligence has brought upon herself the accident and its consequences.

It is therefore ordered that the judgment herein be reversed and set aside and that there now be judgment in favor of the defendant rejecting plaintiff’s demand at her cost in both courts.


author: REYNOLDS, J. Per curiam.

text:
    No. 2754
    Second Circuit
    HART v. TOWN OF LAKE PROVIDENCE
    (December 10, 1926. Opinion and Decree.)
    (January 28, 1927. Rehearing Refused.)

      (Syllabus by the Court)

    1. Louisiana Digest — Municipalities—Par. 246.
    A municipality engaged in the business of generating and selling electricity for sale to the occupants of the town is liable for damages for its laches to the same extent as a private corporation engaged in a similar enterprise would be.
    Elias vs. City of New Iberia, 137 La. 691, 69 South. 141.
    Solomon vs. City of New Orleans, 156 La. 634, 101 South. 1.
    Bannister vs. City of Monroe, 4 La. App. 182.
    2. Louisiana Digest — Municipalities—Par. 246.
    Incorporated towns in Louisiana have full control over and are responsible for not' maintaining their streets free from danger to foot or vehicle traffic; and where such a town owns and operates its own electric light plant and strings wires on poles along its streets for the transmission of electricity, it is guilty of negligence if it allows a tree with a dead limb 8 to 10 inches in ' diameter and 35 to 40 feet long on it to stand in a public street in close proximity to an electric light wire so that it is dangerous for the public to travel along the street.
    Act 136 of 1898.
    McCormack vs. Robin, 126 La. 598, 52 South. 779.
    Robertson vs. Town of Jennings, 128 La. 795, 55 South. 375.

      3. Louisiana Digest — Municipalities—Par. 256, 257, 260.
    •A tree standing in First street in an incorporated town in Louisiana with, a dead limb 8 to 10 inches in diameter and 35 to 40 feet long on it is a menace to the safety of the public and is in itself a signal of danger constituting constructive notice to the governing authorities of the town.
    Lorenz vs. City of New Orleans, 114 La. 802, 38 South. 566.
    4. Louisiana Digest — Municipalities—Par. 151, 260; Electricity — Par. 4, 6.
    Where the- superintendent of an electric light plant owned and operated by an incorporated town had known for more than a year that a tree with a dead limb 8 to 10 inches in diameter and 35 to 40 feet long on it stood in a public street of the town in dangerous proximity to an elecertic light wire and took no steps to remove it or protect the wire from the impending danger of the limb breaking and falling is guilty of culpable negligence making his employer responsible for injuries resulting from the limb breaking off and falling.
    Williams vs. La. E. L. & P. Co., 43 La. Ann. 295, 8 South. 938.
    Atkins vs. Bush, 141 La. 180, 74 South. 897.
    Jacobs vs. Jacobs, 141 La. 272, 74 South. 992.
    5. Louisiana Digest — Municipalities—Par. 263.
    Persons lawfully making use of a public , street in an incorporated town are not guilty of contributory negligence in not assuming that the town authorities have failed to make the street safe for use by the general ¡public on foot or in vehicles.
    Buechner vs. City of New Orleans, 112 La. 599, 36 South. 603.
    Nessen vs. City of New Orleans, 134 La. 455, 64 South. 286.
    Appeal from the Sixth Judicial District Court of Louisiana, parish of East Carroll. Hon. P. X. Ransdell, Judge.
    Action by Mrs. Susan Ei Hart, et al., against the Town of Lake Providence.
    ■ There was judgment for plaintiffs and defendant appealed.
    Judgment amended and affirmed.
    James H. Gilfoil, Jr., of Lake Providence, attorney fqr plaintiffs, appellees.
    Robert P. Kennedy, of Lake Providence, attorney for defendant, appellant.
   STATEMENT OP THE CASE.

REYNOLDS, J.

This is a suit by Mrs. Susan E. Hart, in her own right and as tutrix of her minor children Susan Helen Hart, Charles M. Hart, Jr., James Michael Hart and Ernest Erwin Hart, issue of her marriage with Charles M. Hart, to recover damages for his death resulting from a guy-wire pole to which was attached a guy-wire bracing an electric light wire pole, part of an electric light and current plant owned and operated by the town of Lake Providence, falling on plaintiffs’ husband and father, while he was traveling along First street in that town in an automobile, striking him on the head, fracturing his skull, breaking his neck and causing his death. The cause of the guy-wire pole falling was the falling on the guy-wire stretching from it' to a nearby electric light pole of a dead limb 8 to 10 inches in diameter and 35 to 40 feet long from a tree standing in the public street in close proximity to the guy-wire pole.

Plaintiffs allege that the injury to and death of Charles M. Hart was the result of the negligence of the governing authorities of the town of Lake Providence in permitting the tree and dead limb on it to remain where they were.

Defendant denied liability on the ground that the death of Charles M. Hart was due to an act of God or vis major. It also denied that it was guilty of any negligence and alleged contributory negligence on the part of the deceased.

On these issues the case was tried and there was judgment in favor of the plaintiffs for $15,000.00; in favor of Mrs. Susan E. Hart for $7,000.00 and in favor of the minors for $8,000.00.

• The defendant has appealed.

OPINION.

The evidence clearly establishes that the husband and father of plaintiffs, Charles M. Hart, was killed on February 22, 1925, on a public street of the town of Lake Providence by a guy-wire (pole falling on and crushing his head while he was traveling along the street in an automobile and that the cause of the falling of the guy-wire pole was the breaking and falling of a dead limb 8 to 10 inches in diameter and 35 to 40 feet long from a tree standing in the street nearby onto the guy-wire stretching from the guy-wire pole to a, nearby electric light wire pole.

Defendant contends that the falling of the limb was vis major or an act of God for which it is not responsible.

An act is held to be vis major only when it is of such nature that ordinary foresight and prudence could not anticipate it.

It is a matter of common knowledge that the wind often blows hard in this state and that a dead limb on a tree is liable to fall any time, even in an ordinary wind. It is necessary, therefore, that we should consider the kind of wind the evidence shows was blowing at the time the limb fell.

Defendant’s witness, G. M. Franklin, testified, page 89:

“Q. Mr. Franklin, what would you consider the nature of that wind?

“A. Pretty strong.”

Steve Voelker, another witness of de-’ fendant, testified, pages 90 and 91:

“Q. Do you remember that a cloud came up that evening and resulted in rain and wind?

“A. Yes.

“Q. From your recollection, please state what was the nature of it?

“A. Rain, rather severe, heavy; I do not remember any wind more threatening and violent.”

Richard Bell, a witness for defendant, testified, page 94:

“Q. Do you remember the condition of the weather on the evening of February 22, 1925?

“A. Well, I know that we had a rain and a little wind, if that is the evening that Mr. Hart was killed; I don’t remember it otherwise on that date.”

Meyer Kaufman, another witness for defendant,. testified, page 102:

“Q. Would you say that it was of great violence than usual?

“A. I have seen storms something like it before; I don’t know that it was anything unusual.”

W. P. Hider, another witness for defendant, testified, page 228:

“Q. Could you state the conditions of the atmosphere at that time?

“A. Well, I would say threatening to a storm.

“Q. This wind you speak of, was never a hurricane, or a tornado ?,

“A. No, sir.”

These five witnesses as to the nature of the wind blowing at the time of Mr. Hart’s death strongly corroborates the testimony of plaintiffs’ witnesses that the wind at the time was not out of the ordinary, and we are satisfied that it was not such, a one as could not have been foreseen.

Besides, a dead limb 8 to 10 inches in diameter and 35 to 40 feet long is liable to break and fall in the slightest wind or even in the absence of any wind from its own weight.

In our opinion defendant’s contention that the cause of the dead limb was vis major for which it is not responsible cannot be sustained on the evidence in the case.

Our learned brother, of the district court, in an able written opinion reviewed much of the evidence and said, in part—

“Wé next come to the contention of defendant that the death of Charles M. Hart was an act of God. In this connection it is urged that a storm raged at the time of his death, and that he suffered death as a dirct cause of that storm. The evidence on this question is conflicting. The testimony of those at the scene of the accident is to the effect that the wind blew hard, but that they did not consider it a storm, and that a hard gust came up which blew the limb down, though at the place of the accident nothing else was blown down, and it seems to me that this physical fact connected with the evidence of those present and observing the conditions, negatives the idea that the wind blowing at the time of Mr. Hart’s death was one of those extraordinary revulsions of nature which would necessitate the classing of accidents caused therefrom as acts of God. Such events being purely and simply consequences flowing directly from cyclones, hurricanes, earthquakes, qtc., of extraordinary violence. The fact that Amacker and the Cummings and Moore sought no special shelter but rather went outside to view the reputed storm, indicated a state of mind on their part which negatived a belief of the existence of a strong storm.

“It is also alleged that C. M. Hart was guilty of contributory negligence and that if the city was negligent his heirs are thereby precluded from recovering damages from the city. With this contention I cannot agree. Mr. Hart did what the many others who were out on that afternoon and who testified in this case, did, excepting possibly Jas. N. Turner who at the time of the accident was some twelve miles away, i. e., tried to go home by the most direct route. They did not stop on the way; neither did he. • There seems to have been á general and common purpose, i. e., that it was safe to drive home.”

The finding of the trial judge as to the nature of the wind that was blowing at the time of the lamentable accident and as to the deceased’s being entirely free from contributory negligence is entirely in accord with the evidence.

In an able and unusually readable brief counsel for defendant refers us to the cases of:

Wiltz vs. City of New Orleans, 2 La. App. 444.

Minor vs. City of New Orleans, 3 La. App. 448.

James vs. City of New Orleans, No. 8050, Orl. App.

The last named case has not been published, so far as we have been able to ascertain, and we can only judge of its applicability to the present case by the portion of it quoted in Wiltz vs. City of New Orleans, and that portion does not, in our opinion, indicate that the holding in that case in any way conflicts with our holding in this one.

In each of the other two cases the court held that the city was not liable on the ground that it had not been actually or constructively notified of the dangerous condition of the sidewalk causing the injury complained of.

In the present case we have expressly held that a dead limb 8 to 10 inches in diameter and 35 to 40 feet long remaining on a tree standing in a public street of an incorporated town for more than a year in dangerous proximity to an electric light wire strung on poles along that street is constructive notice to the governing authorities of the town of its nature and presence.

This brings us to the question of damages. It is not contended that the deceased suffered any from the injury. His death was instantaneous from the blow he received. Nor is it contended that the defendant is a populous or rich town. After much deliberation we have concluded that an award of $10,000.00 for all of the plaintiffs would be a fair allowance in this case.

It is therefore ordered, adjudged and decreed that the judgment appealed from be amended by reducing the award in favor of Mrs. Susan E. Hart from $7,000.00 to $3,000.00, and the award in favor of Susan Helen Hart, Charles M. Hart, Jr., James Michael Hart', and Ernest Irwin Hart from $8,000.00 to $7,000.00; and as thus amended the judgment appealed from is affirmed. Defendant to pay the costs of the lower court; the plaintiffs those of this court.

ON APPLICATION FOR REHEARING.

Per curiam.

The judgment of .this court, amending and affirming the judgment appealed from, by oversight omitted to allow interest on the sums awarded plaintiffs.

It is agreed by counsel for both plaintiffs and defendant that' our judgment be so amended as to allow interest on the amounts awarded, and, further agreed, that the court shall refuse a rehearing. ■

It is accordingly ordered, adjudged and decreed that the judgment rendered by this court be amended so as to read, as follows:

It is therefore ordered, adjudged and decreed that the judgment appealed from be amended by reducing the award in favor of Mrs. Susan E. Hart from $7,000.00 to $3,000.00, and the award in favor of Susan Helen Hart, Charles M. Hart,, Jr.,’ James Michael Hart, and Ernest Irwin Hart from $8,000.00 to $7,000.00; the said amounts to bear interest at the rate of five per cent per annum from judicial demand until paid; and, as thus amended, the judgment appealed from is affirmed. Defendant to pay the costs of the lower court; the plaintiffs those of this court.


text:
    No. 9457
    Orleans
    TRENCHARD v. CENTRAL LAUNDRY CO. AND VERLANDER
    (November 2, 1926. Opinion and Decree.)
    (November 29, 1926. Rehearing Refused.)

      (Syllabus by the Court)

    1. Louisiana Digest — Appeal—Par. 625.
    This court will not reverse the judgment of the trial court unless it is manifestly erroneous.
    Appeal from Civil District Court, Hon. PI. C. Cage, Judge.

      Action by Jos. L. Trenchard against Central Laundry - Co. and David E. Verlander, in solido.
    There was judgment for defendants- and plaintiff appealed.
    Judgment affirmed.
    Miller & Dedny, L. R. Hoover, of New Orleans, attorneys for plaintiff, appellant.
    .Paul L. Fourchy, of New Orleans, attorney for defendant, appellee.
   CLAIBORNE, J.

This is a suit for the recovery of a horse and wagon and harness, and for damages for the forcible taking away of the same.

The plaintiff alleged that- he was an “independent -laundry man” soliciting and collecting laundry from his own customers, delivering it back when laundered and collecting for the same, and receiving a commission of 25 per cent from laundries; that he made a contract with the Central Laundry Company, that it was necessary for him to have the use of a horse and wagon in order to carry on his business; that in April, 1913, he purchased a horse from the defendant for $75 payable two and 50-100 dollars weekly, and paid for it and kept it in his possession until it died in September, 1913; that then he purchased from the defendant a mule for $95 payable in the same manner, which he paid for and he kept until it died in February, 1914; that for the third time plaintiff purchased from defendant a horse named Jackson for $120 payable on the same terms, which he kept until August 25, 1916; that in March, 1913, at the solicitation of David E. Verlander, manager of defendant company, plaintiff bought a wagon from Joseph Delaney in the employ of the defendant company, for $45, payments to be made in the same manner and guaranteed by the defendant company; that between December 11, 1915, and August 19, 1916, plaintiff paid the defendant, the Central Laundry Co., $166.50 for the horse Jackson and wagon, thereby, through error, paying $1.50 in excess of the price; that on August 25, 1916, plaintiff called at the defendant laundry driving his horse Jackson and his wagon with one set of harness and other equipment; that he was accosted by the defendant Verlander, when about to leave the laundry, and informed that he intended putting another man upon plaintiff’s route and giving the new man plaintiff’s horse and wagon; that plaintiff refused to comply with his demand, whereupon the defendant seized plaintiff’s horse by the bridle and called to his assistance four persons in the employ of the defendant laundry, and again demanded possession of the horse and wagon with threats of bodily harm; that thereupon plaintiff, in: fear of bodily harm, descended from the wagon and delivered same to the defendant Verlander; that the defendant company is in possession of the horse and wagon and its appurtenances and is using the same in its business, and refuses to return the same to the plaintiff; that under the mistaken belief that he had not paid the full price for the horse Stonewall, plaintiff tendered $9 to the defendant, who told him that he owed nothing; that for want of his horse and wagon he cannot engage in th£ laundry business, which is the only one he knows, and has no means to buy another horse not to furnish a sequestration bond; that he had grown very fond of his horse, to which he had taught various tricks, and that he has suffered “intense mental anguish” when many times he had seen defendant’s drivers whip the horse, an act which he never performed himself; that in the absence of his horse and wagon he had to take employment at 20 per cent commission and to rent a team at a loss of $2.50 per day until his horse and wagon are returned to him; that the pecuniary damages suffered by plaintiff amount to $16,443.75 and that he is entitled to punitive and exemplary damages in the sum of $10,000. He claims $26,443.75 with reservation of all his rights for future damages, and for the further sum of $5 per day from date of filing the petition (October 10, 1916), until the return- of his property.

The plaintiff himself verified his petition.

The defendants admitted employing plaintiff upon a commission but not as an “independent laundry man”; that a horse and wagon are necessary for his business; that in April, 1913, he purchased from defendants a horse and in September, 1913, a mule; both of which died; that they rented to him the third horse at $4.50 a week, as at that time he still owed $110 on the price of the first horse and mule; they admit that the plaintiff paid $170, the price of the first horse and mule; they admit the return of the horse and wagon at the time they discharged the plaintiff; but they aver that the harness and accessories were left at the laundry by the plaintiff of his own free will; they admit ordering plaintiff off of the wagon; they admit being in use of the horse and wagon; they admit a conditional offer .of $9 and its refusal. They deny every other allegation.

On April 21, 1919, judgment was rendered in favor of defendants.

The plaintiff appealed to the Supreme Court. On December 10, 1923, the Supreme Court transferred the case to this court on the ground that the damages claimed were inflated and could not exceed $2000. Trenchard vs. Central Laundry Co., 154 La. 1003, 98 South. 558.

The plaintiff in his testimony has supported all the allegations of his petition. There was no other witness for him.

On behalf of the defendant, John B. Delaney, driver for the defendant company, testified that he never sold any wagon to plaintiff; that the wagon plaintiff was using got out of order, and that he gave him an order to get one of the company’s wagons at a repair shop.

- Clarence Freuter at the time he gave his testimony was working for the Burkenroad Company as export shipping clerk; he was present at the defendant laundry on the day that the plaintiff was discharged; he was employed that morning to take plaintiff’s wagon; Verlander told plaintiff his services were no longer, required and that he would take his place; plaintiff jumped on his wagon grabbed his book, then jumped off and went out Calliope street; there was no violence used; Verlander and witness drove out Calliope to the Union Depot; there Trenchard requested an officer to arrest them, which the officer refused to do; he worked for a commission of 20 per cent; the defendant furnished him with a horse and wagon; he worked there only two weeks.

Marion Verlander corroborates the testimony of Freuter.

H. S. Verlander, a brother of the defendant, is connected with the laundry; on the morning of plaintiff’s discharge he was standing on the sidewalk; his brother walked over to the wagon and put another solicitor on it; plaintiff got off and went down the street;' no violence was shown him by anybody.

David Verlander, defendant, testified that after the plaintiff lost the first horse and mule they bought a third horse, and rented it to plaintiff at $4.50 per week because lie did not want to buy another horse; the wagon that plaintiff used was the property of the laundry and was never sold to Delaney; they allowed plaintiff to use it free of charge; he told Trenchard that he did not need him any more, and that he was going to put another man on the wagon; he wanted to know why; he told him he owed the laundry for two weeks and part of a third; he made no claim for horse or wagon; he owed the laundry $140 and the witness $10.

The preponderance of the evidence is vastly in favor of the defendant and of the correctness of the judgment appealed from.

The plaintiff did not deny that he owed the laundry two or three weeks for laundry, nor $140.

But the plaintiff is confident that he should have a judgment for the harness which is confessedly his. This is true, but the defendants testified that they did not use the harness; that it was at the laundry yet; that they told him so the day he called on them to tender the $9. Plaintiff has not denied this, nor has he •testified that he called for it at the laundry which was the place where demand and delivery should have been made. C. C. 2484.

We have given this case diligent examination and close attention, ^nd we cannot say that the judgment is erroneous. It is therefore affirmed.


author: ODOM, J.

text:
    No. 2808
    Second Circuit
    MOREY v. GLADDEN
    (December 11, 1926. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Courts—Par. 3, 128.
    The test of jurisdiction of an appellate court, so far as it is determined by the amount or value in contest, is not the amount or value sued for, but the amount or value remaining in contest when the case has- been submitted for decision in the court of original jurisdiction.
    Appeal from the Fourth Judicial Dis-* trict Court of Louisiana, parish of Ouachita. Hon. Percy Sandel, Judge.
    Action by Mrs. E. S. Morey, et al., against Dr. A. H. Gladden, et al.
    There was judgment for plaintiffs and defendants appealed.
    Appeal dismissed on motion of defendant.
    Hudson, Po.tts, Bernstein & Sholars, of Monroe, attorneys for (plaintiffs, appellees.
    McHenry, Montgomery, Lamkin & Lam-kin, of Monroe, attorneys for defendant P. R. Parsons, appellee.
    Stubbs & Thompson, of Monroe, attorneys for Dr. A. H. Gladden, defendant, appellant.
   ODOM, J.

The plaintiffs, husband and wife, brought this suit against the defendants to recover the sum of $1075.00,. the sum of $500.00 for personal injuries to Mrs. Morey, $500.00 for injuries to their minor child, and $75.00 for damages to their automobile, all growing out of an automobile collision in the city of Monroe.

There was judgment in the District Court for plaintiffs for the sum of $66.85 for damages to Mrs. Morey’s car. The defendant Gladden has appealed.

ON MOTION TO DISMISS THE APPEAL.

The amount originally involved in. this suit was $1075.00, the sum of $1000.00 for personal injuries to Mrs. Morey and the minor child of plaintiffs, and $75.00 for damages to plaintiffs’ automobile.

Plaintiffs abandoned their claim for personal injuries both to Mrs. Morey and their child and offered no proof of damage for those items. There remained in dispute, therefore, only the item of $75.00 damage to the car.

Appellee moved to dismiss the appeal.

“The test of jurisdiction of an appellate court, so far as it is ' determined by the amount or value in contest, is not the amount or value sued for, but the amount or value remaining in contest when the case has been submitted for decision in the court of original jurisdiction.”

Crowell & Spencer Lbr. Co. vs. Lynch, 157 La. 21, 101 South. 797.

The amount remaining in dispute when this case was submitted to the District Court was only $75.00, which is below the minimum jurisdiction of this court.

Section 29, Article VII, Constitution of 1921.

It is therefore ordered that this appeal be dismissed at appellants’ cost.


text:
    No. 10.589
    Orleans
    DENDINGER, Incorporated, v. ROYAL INDEMNITY CO., Appellant
    (December 13, 1926. Opinion and Decree.)

      (Syllabus 6y the Court)

    1. Louisiana Digest — Prescription—Par. 173, 175.
    A verbal promise to pay, repeated from month to month, is sufficient acknowledgment to interrupt prescription.
    Appeal from First City Court of New Orleans, Sec. “C”. Hon. Wm. Y. Seeber, Judge.
    Action by Dendinger, Incorporated, against the Royal Indemnity Company.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    J. D. Dressner, of New Orleans, attorney for plaintiff, appellee.
    St. Clair Adams, L. Moses, of New Orieans, attorneys for defendant, appellant.
   WESTERFIELD, J.

Plaintiff, doing busi-. ness as the Madison Lumber Company, sues defendant for $300.00 on an open account.

Defendant filed a plea of prescription of three years, which was referred to the merits. On the merits the ease was decided against defendant and it has appealed.

The suit is* prescribed, on the face of the petition, because it was not brought until March 31, 1926, and the lumber, the price of which is sued for herein, was, it is alleged, sold and delivered October 11, 1922, more than three years before the suit was filed. But plaintiff pleads an interruption of prescription by a verbal promise to pay under the authority of Block vs. Papania, 121 La. 683, 46 South. 694.

The sole question, one of fact, which we are to determine, is whether an oral promise was, in fact, made by agent of defendant. We are admonished by counsel that in order to interrupt prescription, the promise to pay the debt must be definite and certain, not vague and evasive.

“An acknowledgment to interrupt prescription must be direct, specific and absolute.” Union National Bank vs. Evans, 43 La. Ann. 372, 9 South. 44.

“Evidence that a debtor, when presented with a long standing account of large debits and credits, acknowledged generally the indebtedness, but declined to acknowledge the account, and said he would have to look over his own papers, is not sufficient to interrupt prescription, since it left the debt claimed unacknowledged and open to free controversy.”

‘For the first purpose the evidence is manifestly insufficient, since it appears from plaintiff’s own testimony that defendant never acknowledged the correctness of the account, but said he would have to look over his own papers.” Schultz vs. Houghton, 36 La. Ann. 407 (Syllabus).

“The only question presented in this appeal is the interruption of prescription.

“The whole of the evidence on this point is in the testimony of one of plaintiff’s clerks, in the following words:

“ ‘In about 1863, in the spring, Mr. Levy was passing by the store, and Mr. Marqueze stopped him, and asked him about payment of the bill, and Mr. Levy stated that he would attend to it. That was all I heard.’

“This is not an acknowledgment of the creditor’s right, which, under Article 3486, C. C., interrupts prescription.

“The statement that he would see about a bill does not prove that plaintiffs had the right to demand payment of the bill, in suit,' from appellant, who made such a statement, or that the bill was correct, and the appellant bound to pay it. At most, it merely implies that he will inquire into its correctness, and his liability to pay.” Marqueze & Co. vs. Bloom, Kahn & Co., 23 La. Ann. 328.

“As the alleged interruption practically affects the rights and obligations of the parties to a contract, it is reasonable to require, then, the proof of an assent to such a change on the part of the debtor, should be clear and unequivocal.” Lackey vs. Macmurdo, 9 La. Ann. 15.

It is contended that the alleged promise to pay the debt, in the case at bar, falls within the rule exemplified by the cited cases in that it was at best indefinite and evasive.

The facts in this case are unusual. Defendant, a surety company, was surety for J. M. and J. D. Collins, who had undertaken the construction of several buildings, and who defaulted on their contracts. Defendant undertook to complete the contracts and thereby assumed the obligations of the contractors. See Klein vs. Collins, 159 La. 704, 106 South. 120. After taking over the building contracts defendants bought the lumber, for the payment of which this suit is brought, from plaintiff, a lumber dealer, for use in the completion of one of the buildings.

On November 14, 1922, plaintiff asked defendant’s manager verbally for its money and defendant wrote the following letter:

“New Orleans, La., November 14, 1922. “Madison Lumber Company,

“Julia and Derbigny Streets,

“City.

“Gentlemen:

“Attention Mr. J. J. Sheffield,

“In re Contracts of J. D. and J. M. Collins, Contractors.

“Relative to your conversation over the phone with me this day,* beg to advise thr we, the Royal Indemnity Company, as surety, are endeavoring in every way possible, to complete the contracts entered into by the above styled firm, and as soon as these contracts have been completed and accepted and payments received from the owners, we expect to disburse these monies to cover material and labor bills.

“At the present time it is impossible for us to determine whether there will be any shortage as the contracts have not yet been completed, but as soon as same have been completed, and bills are all in on these jobs, we will be in a position to know whether any shortage will exist; in that event the Royal Indemnity Company, as surety under the contracts, are liable for any unpaid balance due.

“We are hopeful of completing all of the contracts within the next week or ten days and securing the acceptance of same so that we may know where we stand.

“We appreciate your leniency in this matter and assure you that we will give our sincerest attention to the winding up of this account as soon as possible.”

“Yours very truly,

(Signed) “F. T. MIKELL, Manager.”

Mr. Sheffield, an employee of plaintiff, testified that he called upon defendant’s manager at least once a month covering the time between the receipt of the letter and one month prior to filing the suit, when matters were in charge of plaintiff’s counsel, in an effort to collect the account, and that Mr. Mikell always acknowledged the account.

By the court:

“Q. Did Mr. Mikell tell you whether or not they would pay it?

“A. Yes, he always said the account would be paid, but they were waiting for the completion of the job to find out what the financial condition was.

“Q. Did Mr. Mikell at any time deny the obligation?

“A. No, to the contrary he admitted it.”

Mr. Mikell did not testify and we have only the evidence of plaintiff’s witness, which we have no reason to disbelieve. It seems to us sufficiently definite to effect the purpose for which it was introduced. The letter written by defendant was calculated to disarm plaintiff by creating an impession of confidence in the collection, if it did not actually guarantee the account. The subsequent conduct of defendant was more definite and amounted to an assurance of payment though somewhat deferred. The authorities cited by counsel are without application.

For the reasons assigned the judgment appealed from is affirmed.