text:
    No. 3712
    Second Circuit
    AMERICAN SLICING MACHINE CO. v. ROTHSCHILD & LYONS ET AL.
    (December 31, 1929. Opinion and Decree.)
    (January 31, 1930. Rehearing Refused.)
    (March 10, 1930. Writ of Certiorari and Review Refused by Supreme Court.)

      Dale, Dale & Dale, of Yidalia, attorneys for plaintiff, appellee.
    Calhoun & Calhoun, of Vidalia, attorneys for defendants, appellants.
   REYNOLDS, J.

Plaintiff sued defendants to be decreed owner of a certain slicing machine numbered 217427 and restored to the possession of it, and, in the alternative for $128.20, as its value, if restoration were not made.

It alleged that it had conditionally sold' the machine to one Chrest Slavent, at the time a resident of the state of Louisiana, for the price of $200, and that he had paid $71.80 and still owed $128.20 of the amount; that the offer of purchase was made to it in the state of Illinois and accepted by it there, and the machine delivered to a carrier in the state of Indiana for transportation and delivery to Slavent in the state of Louisiana; and that the sale was upon condition that the title should not pass from it to the purchaser until the price was paid.

The contract is made part of the petition and reads as follows:

“Order

“Date 10 — 21—27.

“American Slicing Machine Co., 209 South State St., Chicago, 111. — Gentlemen:

“Please, enter order for one American Slicing Machine, f. o. b. Indianapolis, Indiana.

“Price of Scout Machine without Pedestal $200.00.

“The machine hereby ordered is purchased subject to a discount of five per cent, if the amount is paid in cash within thirty days from date of shipment.

“The said machine shall be property of the American Slicing Machine Company until fully paid for by the undersigned.

“No verbal agreement can change or modify the conditions of this contract, and the undersigned states that there is no verbal or written understanding or agreement different from or other than the printed conditions of this contract. The undersigned also states that no machine nor any other article of trade or barter is to be received by the American Slicing Machine Company in payment or part payment of the purchase price of the American Slicing Machine therewith ordered.

“All payments must be made direct to the Chicago office.

“This machine is not purchased subject to trial.

“This order shall not be countermanded.

“Signed: Chrest Slavent

“Shipping { St. and No.

“Address: { City, Ferriday. State, La.

“If Direct Current, give voltage.

“If Alternating, give voltage 110.

“Cycles 60 Phase 1 2 wire 3 wire.

“Machine No----------------- Pedestal No............

“Salesman: Reginald Smith.’’

(All of the foregoing appears on the obverse of the sheet, and the following on the reverse:)

“Guaranty.

“The American Slicing' Machine Company guarantees the machine or machines shipped by virtue of this order to he constructed of good material and free from defective workmanship. This guaranty holds for one year from date on which shipment is made, and if the machine is paid for in full within one year from date of shipment the guaranty is extended for another year.

“American Slicing Machine Co.,

“By W. B. Wollf, President.

“The American Slicing Machine Company also agrees, upon receiving written notice to that effect made by the party whose name is signed to the within order at the time the within order is given and not otherwise, that it will permit payment of the purchase price to be made in the following manner:

“$24.00 cash accompanying said notice and $16.00 to be paid during each and every succeeding month thereafter until paid for in full.

“The American Slicing Machine' Company further agrees to accept a receipted freight bill covering freight only for the freight that has been paid by the party whose name is signed to the within order as such a part of the second payment as the amount of freight paid, provided that said second payment is forwarded within thirty days' from date of shipment from the factory or other point from which delivery is made.

“A default in making payment of any monthly installment when due and payable shall cause all the unpaid remainder "f the purchase price to become immediately due and payable, and the American Slicing Machine Company may, at its option, take possession of the machine or machines, and retain all money therefor received in part payment as its liquidated damages.

“The undersigned hereby gives notice of making payment, in accordance with the above terms.

“Signed: Chrest Slavent.”

The defendants admitted the sale by plaintiff to Slavent of the machine for $200 and that $128.20 of the price was owing, but denied that the contract was entered into in the state of Illinois or the state of Indiana, and alleged that it was entered into in the state of Louisiana, and denied that the plaintiff was the owner or entitled to the possession of the machine.

Further, answering, they alleged that, as shown by the contract, the machine was to be shipped by plaintiff, from the state of Indiana, to Chrest Slavent, in the state of Louisiana, and that it did so ship it and he so accepted it, and that such shipment and acceptance constituted the transaction a Louisiana contract.

They further alleged that it was the intention of the plaintiff and of Chrest Slavent that the contract should be a Louisiana contract and be construed and controlled both as to its form and effect by the laws of the state of Louisiana.

And they further alleged that they purchased the machine in good faith and in ignorance of plaintiff’s claim from the sheriff of the parish of Concordia at a sale thereof made by him as the property of Chrest Slavent under a seizure thereof upon a writ of fieri facias issued upon a judgment rendered by the district court of Concordia parish in suit No. 5015 styled Rothschild & Lyons vs. Chrest Slavent.

By agreement entered into between plaintiff and defendants it was admitted:

First. That both in the state of Illinois and the state of Indiana the sale of a chattel upon condition that the title shall not pass to the purchaser until the price has been fully paid is legal, and that if the contract between plaintiff and Chrest Slavent be either an Illinois or an Indiana contract, he never acquired title to the machine.

Second. That the contract sued on was prepared and printed by the plaintiff and presented to Chrest Slavent in Eerriday, La., on October 21, 1927, for his signature, by Reginald Smith, at the time a salesman of plaintiff, and that Slavent then and there signed the contract, after inserting therein the words “Eerriday” and “La.” and the figures “24.00” and “16.00” and paid to plaintiff’s salesman $24 in cash, and that Smith then and there signed the contract himself. That Slavent had not previously seen the contract.

Third. That the machine was delivered to the carrier at Indianapolis, Ind., consigned to Chrest Slavent, at Eerriday, La., and was by the carrier delivered to him at the latter place upon his paying the transportation charges thereon.

Fourth. That defendants purchased the machine at sheriff’s sale in good faith and in ignorance of plaintiff’s claim.

On these issues the case was tried, and judgment was rendered decreeing plaintiff owner of the machine and entitled to the immediate possession thereof and ordering defendants to surrender it to plaintiff, and the defendants appealed.

OPINION

Contracts of conditional sale, or sale by which the vendee is to become at once unconditionally bound for the price, and the vendor is to continue to be the owner of the property sold until the price is paid, are not possible under the laws of the state of Louisiana (Barber Asphalt Co. vs. St. Louis Cypress Co., 121 La. 152, 46 So. 193), and where entered into here the effect is to vest title in the buyer immediately (Byrd vs. Cooper, 166 La. 402, 117 So. 441); but such contracts, when entered into in states allowing them, will be enforced by the courts of Louisiana, through comity, when not designed to circumvent our own laws (Overland Texarkana Co. vs. Bickley, 152 La. 622, 94 So. 138).

It is contended by plaintiff that no particular machine was agreed to be sold Slavent in the negotiations between him and its agent in Louisiana, but only a machine of a certain class of which it owned many, and that not until it had segregated one of these from the lot and delivered it to the carrier for transportation and delivery to Slavent was the contract completed, and that it was completed only when and where this act was done, and that it being admitted that it was done in Indianapolis, Ind., the contract was completed there; and that it being further admitted that under the laws of Indiana a contract of conditional sale is valid and also that Slavent had not fully paid -for the machine, the title never passed from it to him. And plaintiff cites articles 1915, 1916, and 1917 of the Civil Code, and State vs. Shields, 110 La. 547, 34 So. 673, George D. Witt Shoe Co. vs. J. A. Seegars & Co., 122 La. 145, 47 So. 444, and Morotock Mfg. Co. vs. Britt & Norris, 1 La. App. 692, and other cases, in support of its contention.

Defendants contend that inasmuch as the machine was sold to be delivered to and used by the purchaser in this state and the remainder of the (price was to bo paid here, the whole beneficial operation and effect of the transaction was to take place in this state, and hence the sale was a Louisiana contract; or, if not, then that the transaction was merely a device to circumvent the effect of our laws in respect of contracts of conditional sale entered the method adopted by plaintiff to effect into here, and that our courts will not lend their aid to the accomplishment, of the purpose; and they cite the cases of Beggs vs. Bartels, 73 Conn. 132, 46 A. 874, 84 Am. St. Rep. 152, and David Bradley & Co. vs. Kingman Implement Co., 79 Neb. 144, 112 N.W. 346, 347, and others, as supporting their contention.

In Beggs vs. Bartels, a stationary engine and other machinery were seized in Connecticut under an execution against one Roberts, who had bought them in New York under a written contract of conditional sale executed in that state, from whence they were shipped into Connecticut.

It was conceded that by the laws of New York it was a valid conditional contract of sale, which did not divest the seller of title to the property, either as against the purchaser or his assigns or creditors.

Had it heen executed in Connecticut, it would have been an absolute sale, except between the seller and buyer and their personal representatives, because not acknowledged according to the laws of that state.

In a contest between the seller and the execution creditor over the property it was contended by the former that the sale was a New York contract, under which the buyer never acquired title, and, dealing with this contention, the court said:

"Whether or not the defendants, who were Connecticut creditors of Roberts, obtained a title, by the levy of their execution, upon the property in Connecticut, depends entirely upon whether the validity of the contract of conditional sale is to be determined by the laws of this state or of the state of New York. From the facts that the contract was executed in New York, and the goods delivered to Roberts upon the cars in that state, it does not necessarily follow that the laws of New York govern upon the question of the validity and effe.ct of the contract. The general rule that the lex loci contractus is applicable to the validity and construction of contracts assumes that the contract is to be performed where it is made, and the reason of the rule is that parties are ordinarily supposed to contract in view of the laws in force at the time and place of the making of their contracts. That general rule does not apply when it appears that the contract is to be performed or is to have its beneficial operation and effect elsewhere, or that it is made with reference to the laws of another place. Burnett vs. Railroad Co., 176 Pa. 45, 34 A. 972; Wharton Confl. Laws, sec. 401; Story, Confl. Laws, sec. 280. ‘It is an established principle that' * * * contracts are to be construed according to the laws of the state in which they are made, unless it is perceived from their tenor that they are entered into with a view to the laws of some other state.’ Smith v. Mead, 3 Conn. 253, (8 Am. Dec. 183); Greathead v. Walton, 40 Conn. 226-236. ‘The general rule that the lex loci contractus shall govern * * * is theoretically, at least, founded upon the presumed intention that the parties contracted with reference to that law; and when the contract is to be performed elsewhere, or is to have its entire beneficial operation and effect elsewhere, then the law of the latter place is to govern, because, in the absence of anything to the contrary, it is presumed that the parties so intended.’ Chillingworth v. Tinware Co., 66 Conn. 306-317, 33 A. 1009. * * *

“The purposes of the conditional contract of sale in the present case were these: To ultimately transfer, upon the payment of the purchase price as agreed, the title to the property in question from the plaintiffs to Roberts; to give to Roberts in the meantime, and while he performed his covenants, the use of the property; to secure the plaintiffs against loss, by enabling them to retake the property upon Roberts’ failure to pay 'his notes and by preventing a sale of the property by Roberts to third parties, or a taking o.f it by attachment by his creditors. For the accomplishment of these purposes, the parties intended that the property should be located in Connecticut. * * *

“While the formal execution of the contract was in New York, the principal acts necessary to effect its objects were * * * to be performed in Connecticut. As affording to the plaintiffs a security upon the property described, and as transferring to Roberts the apparent ownership of the property by giving to him the possession, the right to use, * * * and as granting to him the absolute title upon payment of the purchase price, the contract was intended to have its operation upon property situated in Connecticut. * * * The transaction was begun in New York, but was to be performed and completed here, and the parties must be held to have contracted with reference to the law of this state, and that law must govern. * * *”

In David Bradley & Co. vs. Kingman Implement Co., the court, dealing with a contract of conditional sale, said:

“The contract between Meinen and the David Bradley Company was made in Council Bluffs, Iowa. No copy thereof was filed in the office of the clerk of Thayer county (Nebraska), where Meinen resided and carried on his business. It is insisted by appellant that the contract, being an Iowa contract, was not required to be filed in Thayer county in order to protect the David Bradley Company as against a purchaser or judgment creditor of Meinen; that a conditional sale of property made in Iowa, although to a resident of Nebraska, the property to be taken and used in Nebraska, does not come within the provisions of our statute requiring a conditional sale to be»in writing and assigned by the vendee and a copy thereof filed with the clerk of the county. We do not think that this position can be sustained. While it is true that the contract of conditional sale was made in Iowa, both parties thereto contemplated that it was to be performed in Nebraska. The goods were to be taken to Nebraska and there sold, and absolute title passed to the purchasers from Meinen. Meinen was to remain in possession until a sale was made. * * *”

Plaintiff sent its salesman to Slavent in Louisiana, who there contracted with Slavent in plaintiff’s name to sell him a certain kind of machine for a certain price, part of which was then and there paid to the salesman by Slavent and. the remainder of which he was to pay in installments in the future; the machine to be shipped from out of the state to Slavent in Louisiana and there used by him and the remainder of the price sent from there.

We see no difference in principle between this case and that of Beggs vs. Bartels.

What effect contracts of conditional sale, entered into in states where they are valid, have when sought to be enforced in Louisiana, was considered in the cases of Overland Texarkana Co. vs. Bickley, 152 La. 622, 94 So. 138; Hinton vs. Rouse, 4 La. App. 471; Powell Motor Co. vs. Christina, 8 La. App. 174; Baldwin Piano Co. vs. Thompson, 8 La. App. 212; Equitable Credit Co. vs. Miller, 8 La. App. 254; Security Sales Co. vs. Blackwell, 9 La. App. 651, 120 So. 250.

In none of these cases, though, does it appear tha^ the property conditionally sold was removed to Louisiana with the consent of the seller.

Nor does any of them go farther than to hold that the buyer cannot deprive the unpaid seller of his property by unauthorized removal of it to this state.

And though all of them do uphold the right of the unpaid seller to invoke the aid of the courts of this state to repossess himself of his property unauthorizedly brought into Louisiana, yet none of them involved his right to invoke such aid where, as here, he had himself shipped the property into Louisiana and the reservation of the title thereto in himself manifestly was an effort to avoid the effect of the very laws whose protection he invoked.

The judgment appealed from is erroneous and must he reversed. It is therefore ordered, adjudged, and decreed that the judgment he annulled, avoided and reversed, and that plaintiff’s demands be rejected and its suit dismissed at its cost.


source: Caselaw Access Project

author: WEBB, J.

license: Public Domain

text:
    No. 3567
    Second Circuit
    BODCAW LUMBER COMPANY OF LOUISIANA, INC., ET AL. v. CLIFTON HEIRS
    (July 1, 1929. Opinion and Decree.)
    (January 6, 1930. Rehearing Refused.)
    (January 6, 1930. Writ of Certiorari and Review Reversed £y Supreme Court.)
    White, Hollomand & White, of Alexandria, attorneys for plaintiff, appellee.
    H. W. Ayres, of Jonesboro, attorney for defendants, appellants.
   WEBB, J.

Defendants, heirs of Minnie Clifton, appeal from a judgment rendered against them, recognizing plaintiffs, Mansfield Hardwood Lumber Company of Louisiana, Inc., and Bodcaw Lumber Company of Louisiana, Inc., (hereinafter referred to as Mansfield Company and Bodcaw Company) as the owners, respectively, of the southeast quarter of southwest quarter of section 20, township 13 north, range 5 west, of Winn parish, Louisiana, and the pine timber thereon.

It is conceded, and the record establishes, that Minnie Clifton acquired title to the land from Semma Clifton, as well as any reversionary rights which the latter may have had in certain pine timber described as “all of the merchantable pine timber of twelve inches in diameter and greater at the stump growing, standing or being on the said land,” which had been sold by Semma Clifton to the Bodcaw Company, the purchaser being given a period of ten years in which to remove the timber, and that pr.ior to the expiration of the period the title to the land passed from Minnie Clifton to N. B. Hyde and from Hyde to the Mansfield Company; that the Bodcaw Company did not cut or remove any of the timber purchased by it within the period stipulated, and that at the expiration of the period the title to the land was held by the Mansfield Company, which thereafter transferred all of the pine timber on the land to the Minden Lumber Company, from which the Bodcaw Company acquired.

Under the facts stated it is apparent that the Mansfield Company was the owner of the land, and it is conceded that the judgment recognizing its ownership is correct, and it. is also conceded that, if the Mansfield Company, as the owner of the land, became the owner of the pine timber thereon, the Bodcaw Company is the owner, of such timber; and the only question to be decided is, whether or not such timber passed under the transfers above mentioned.

In the transfer from Semma Clifton to Minnie Clifton, it was declared that the land was sold “together with all the improvements thereon, said land sold with full legal warranty of title and with full subrogation to all the rights of warranty and all other rights held therein by said vendor,” and in the transfer from Minnie Clifton to Hyde the declaration contained the words quoted above with the additional words “Less the pine timber on said land,” which were written immediately after the description of the land, and preceding the words quoted from the declaration in the transfer from Semma Clifton to Minnie Clifton, and the declaration in th§ transfer from Hyde to the Mansfield Company was practically the same as in the transfer from Minnie Clifton to Hyde.

In support of the judgment, the declaration in the transfer from Minnie Clifton to Hyde is considered from many points of view, in all of which, however, reference is had to the prior transfer by Semma Clifton of the pine timber on the land, and the intent of the vendor and effect of the declaration is construed with reference to the fact that Semma Clifton having sold the timber on the land as above, she had only a reversionary right in such timber, and that Minnie Clifton could not have acquired any greater rights than the vendor had in the timber which had been sold.

And with this view of the property and rights acquired by Minnie Clifton, it is urged that the words “Less the pine timber on said land” were written into the declaration merely to protect the vendor against any obligation of warranty as to the timber which had been sold by Semma Clifton, and were not used with intent to reserve any timber on the land, and that the declaration that the land was sold “with full subrogation to all the rights of warranty and all other rights held therein by said vendor,” was made for the purpose of transferring the reversionary rights, and, as to the effect or sufficiency of the reservation, it is urged that, if Minnie Clifton desired to retain the reversionary rights, it was essential that such rights should have been expressly reserved, and that such rights were not reserved under the declaration that she sold the land “Less the pine timber on said lands * * * together with all the improvements thereon, said land sold with full legal warranty of title and with full subrogation to all the rights of warranty and all other rights held therein by said vendor.”

Considering the question as to the intent of Minnie Clifton as expressed in the declaration, we do not think that there is any ambiguity in the declaration, considering that, with the exception of the stipulations, the land was sold “Less the pine timber on said land” and “with full subrogation to all the rights of warranty,” all else expressed in the declaration would have been implied by law, and in ascertaining the intention of the vendor, as to the property transferred, all else expressed in the declaration, except the stipulation that the land was sold “Less the pine timber thereon,” may be ignored, and construing the stipulation with reference to the ordinary meaning of the words used, there is not any ambiguity, and no doubt if none of the timber on the land had been sold, as much would be conceded, but in view of the fact that some of the timber on the land had been sold, another meaning is sought to be given to the stipulation by reference to the prior transfer of the timber.

The act of transfer from Minnie Clifton to Hyde did not refer to the prior transfer of the timber, and in determining the intention of Minnie Clifton in transferring the property to Hyde, or construing the meaning of the words used to express her intention,, where there is not any ambiguity, we do not think it is permissible to resort to prior transfers, as the property involved is immovable; but if it is permissible, reference to the transfer by Semma Clifton shows that she did not sell all of the pine timber on the land but only “all of the merchantable pine timber of twelve inches in diameter and greater at the stump, growing, standing or being on the said land;” and unless it can be said that such timber, in the absence of proof to the contrary, should be presumed to include all of the pine timber on the land (see Dowies vs. Pickering Lumber Co., 159 La. 860, 106 So. 331), it cannot be said that the words “Less the pine timber on said land,” in the transfer from Minnie Clifton to Hyde, did not refer to the pine timber which had not been sold, and further if it is permissible to refer to the prior transfers of the property and thus determine the intent of Minnie Clifton, or meaning of the words used to express her intent in the transfer to Hyde, or to determine what was sold by what was acquired, reference to the transfer from Semma Clifton to Minnie Clifton shows that the land was sold with full warranty of title and without any reservation whatsoever, and as between Semma Clifton and Minnie Clifton the latter acquired all timber on the property (Young vs. Sartor, 152 La. 1064, 95 So. 223) and we do not think it could be said that Minnie Clifton, in transferring the land “Less the pine timber on said land”, did not refer to the timber which she had apparently acquired with the title to the land from Semma Clifton.

Therefore, we conclude that under the terms of the declaration in the transfer from Minnie Clifton to Hyde, she did not intend to transfer any of the pine timber on the land.

Considering the position of the plaintiffs as to the effect or sufficiency of the declaration, in which as stated, it is urged that, Semma Clifton having sold the pine timber on the land prior to the transfer to Minnie Clifton, the latter acquired only a reversionary right in such timber, and that in order for Minnie Clifton to retain the reversionary right when she transferred the land to Hyde, it was essential that an express reservation of such right should have been made in the transfer, and that the declaration that the land was sold .“Less the pine timber on said land” was not equivalent to a reservation of the reversionary rights.

In this contention plaintiffs apparently concede that whatever right Semma Clifton had in the timber sold by her prior to the transfer of the land to Minnie Clifton, passed with the title to the land, and decisions are cited in which it is held that, when the timber on land is sold, any remaining after the expiration of the period stipulated for the removal of the timber reverts to the land owner, in the absence of some stipulation which clearly indicates a different intention of the parties. However, only one of the decisions (Hickman vs. Enterprise Lumber Co. 159 La. 280, 105 So. 343) can be said to consider the question as to the manner in which the reservation should be made; and although that case may be distinguished from the present in many respects, we think it may be fairly inferred from that case that the stipulation that the land was sold “Less the pine timber on said land”, was a, sufficient reservation of any reversionary rights that the vendor may have in timber previously sold (Southern Pine Lumber Co. vs. Martin, 274 S. W. 281), and we are of the opinion that plaintiffs are without title to any of the pine timber on the land.

It is therefore ordered that the judgment appealed from be amended and that the demands of plaintiffs to be recognized as the owners of the pine timber on the SE% of SW% of Section 20, Township 13 North Range 5 West, of Winn parish, Louisiana, be dismissed, and as thus amended the judgment appealed from is affirmed; plaintiffs to pay cost of appeal.


author: ODOM, J.

text:
    No. 3707
    Second Circuit
    HAMILTON v. LA. CENT. LBR. CO.
    (December 31, 1929. Opinion and Decree.)
    (January 31, 1930. Rehearing Refused.)
    (March 10th, 1930. Writ of Certiorari and Review Refused by Supreme Court.)
    Julius T. Long of Shreveport, attorney for plaintiff, appellant.

      Thornton, Gist & Richey of Alexandria, attorneys for defendant, appellee.
   ODOM, J.

Plaintiff was employed by the defendant company as a section hand on a logging road at a daily wage of $2.25. He contends, and alleged in his petition, that on November 15, 1927, while at work in the course of, his employment, he was lifting a cross tie and, due to the strain, the abdominal wall on the right side gave way, causing a hernia about half way between the groin and the waistline, which has totally and permanently disabled him to do work of a reasonable character. This suit is to recover compensation for 400 weeks. The defense is that plaintiff was not injured while at work for the defendant company. Plaintiff’s demands were rejected by the lower court and he prosecutes this appeal.

Paragraph 17, Section 8, p. 115, Act 85 of 1926, provides that ‘‘Where there is real traumatic hernia resulting from the application of force directly to the abdominal wall, either puncturing or tearing the wall, compensation will be allowed.”

Conceding that a hernia produced in the manner in which plaintiff says his was would entitle a laborer to compensation, as provided in the Act, the question to be determined in this case is whether, conceding that plaintiff is afflicted with hernia, the hernia was brought about by an injury sustained by plaintiff while at work for the defendant company. The fact that plaintiff at the time of the trial and for many months prior thereto was afflicted with hernia is not disputed. But the testimony convinces us, as it did the trial judge, that the hernia was not produced by any injury or strain received by him while at work for the defendant.

In the spring of 1926, plaintiff was operated on in the city of New Orleans for appendicitis. His case had developed to such an extent that the appendix had ruptured, and after the operation the wound had to be drained for a considerable time. Infection then set in and continued to such an extent that there was sloughing of the tissues and the wall of the abdomen in the region of the scar became so weak that it would not support the weight and pressure from within. Shortly after plaintiff returned from New Orleans, he was examined by Dr. Holloman who found that he was not in any condition to do heavy work and who suggested to him that he should receive further treatment, and later on Dr. Holloman proposed to him that he would go with him to Monroe to have an operation performed. Plaintiff himself says, and other witnesses testified, that in the year 1926, a knot or lump appeared on plaintiff’s side at the scar left from the appendicitis operation. The testimony shows beyond question that the hernia which developed practically a year before plaintiff claims he received the injury, for which he now claims compensation, grew progressively larger and worse, which condition, the doctors say, is to be expected under conditions which they found after the operation. The testimony further shows that for some time previous to the date on which plaintiff claims to have received the injury for which he now claims compensation, he stated and complained that he was not able to do heavy work on account of his side. Dr. Holloman suggested to him that if he would wear a bandage or belt that he would be relieved to some extent of his trouble, and explained to plaintiff how to make and wear the belt. Plaintiff did wear the belt up until the time he claims to have been injured.

Pour physicians who examined plaintiff, Doctors Sanderson, Holloman, Rand and Mecom, were each of the opinion and testified that plaintiff has what is termed a post-operative hernia. Dr. Mecom said:

“His condition is due at this time to the infection following the. operation destroying the muscles in the region of the scarry tissue of the operation;” and further testified that the hernia was not due to traumatic injury, hut,

“It is due to the sloughing away or destruction of the abdominal tissues from the infection.”

Dr. E. L. Sanderson, who testified for plaintiff, said:

“The examination shows a very large scar on the right side of the abdomen in the region of appendix operations and at the site of this scar is a large direct hernia. * * * It is what is known as a post-operative hernia. Evidently a hernia that has been produced by breaking through a weakened abdominal wall when an operation has been performed.”

Such was the testimony of all the other physicians who examined plaintiff. Plaintiff himself testified that he had this “bulging” or knot on his side long before he claims to have received the injury. But he contends and testified that while at work loading ties and while stooping over, he felt a tearing, and that the hernia was then made larger. He further testified that he at once stated to those who were working with him that he had hurt his side and that he notified Mr. Wilson, the section foreman. The testimony of the witnesses on this point is very conflicting and somewhat confused. One of the witnesses stated that he did hear plaintiff make some complaint about hurting his side, but according to his recollection, it was a day or two before plaintiff quit work. Mr. Wilson, the section foreman, testified that plaintiff had on several occasions shown him the hernia and had complained that he was not able to do heavy work. Wilson denied that plaintiff told him that he had received an injury, but said he was aware of the fact that plaintiff’s condition' was growing progressively worse.

The record fails to Convince us that plaintiff received any injury while at work on this particular occasion. He says that he felt something “tear loose” while at work, but he admits that he continued at the same work until the ties were all loaded and that he reported for work the next morning, but explained to the section foreman that he was not able to do heavy work and, for that reason, asked for a lighter job, when he was told by the section foreman that if he was not able to do the kind of work which he had been doing, he would have to look' for another job. Plaintiff went to Dr. Holloman on the following day for treatment and Dr. Holloman says that on that occasion he found the hernia worse than it had been on previous occasions when he had seen it. But the doctor says that was to be expected because the hernia had been gradually growing worse all the time.

Counsel for plaintiff argues that even though the hernia was not produced by an accidental injury sustained, if the injury augmented or aggravated the condition which already existed, plaintiff would still be entitled to compensation. That is unquestionably true, but plaintiff’s failure to prove that he received the injury as he alleges is fatal to his case. There is no question but that he is unable to do heavy, manual labor, but the testimony shows that his condition was brought about, not by accident received while at work, but by a hernia which developed as a natural and necessary consequence of an abdominal operation, which conditi.on grew progressively worse from a short time after the operation up to the time he quit working for defendant.

The judgment appealed from is correct, and is therefore affirmed; with costs in both courts.


text:
    No. 3714
    Second Circuit
    CHILTON v. LA. CENT. LBR. CO.
    (December 31, 1929. Opinion and Decree.)
    (January 31, 1930. Rehearing Refused.)
    (March 10th, 1930. Writ of Certiorari and Review Refused by Supreme Court.)
    Julius T. Long of Shreveport, attorney for plaintiff, appellant.
    Thornton, Gist & Richey of Alexandria, attorneys for defendant, appellee.
   WEBB, J.

Plaintiff instituted this action to recover compensation for disability alleged to have resulted from an accidental injury sustained by him while in the course of his employment with defendant.

He alleged that, on or about December 8th, 1927, while he was superintending construction work on a tram road operated by defendant, he had fallen from a bridge a distance of about twelve feet to the ground, striking his head against a snag or stump and causing a wound on the left side of his head which had rendered him unconscious for a short time, but that he had not regarded the injury as serious, but that on the 28th of November, 1928, he suffered a stroke of apoplexy which had permanently and totally disabled him, and he alleged that the stroke of apoplexy was the result of the accident on September 8th 1927.

The action was filed on January 3rd, 1929, and defendant excepted that no notice had been given of the alleged accident within six months after the alleged date as required by the statute, (Sec. 11, Act No. 20 of 1914, as amended by Act No. 243 of 1916) and further, that the action was barred by the prescription of one year under the statute (Sec. 31), and under reservation of its rights under the exceptions, defendant answered denying that plaintiff had sustained any serious injury at the time of the accident, and while admitting that plaintiff had suffered an apoplectic stroke as alleged, denied that it was caused hy any injury sustained while in its employ.

On trial judgment was rendered rejecting plaintiff’s demands, and he appeals.

The execeptions were not passed upon by the trial court and are not urged here, and the only question argued by counsel is' whether or not the evidence established that the injury sustained on the 8th of September, 1927, had caused the condition or the illness on November 28th, 1928.

It was shown that neither plaintiff nor the physician who attended plaintiff following the accident on September 8th, 1927, thought that plaintiff had sustained any serious injury, and while plaintiff alleged that he suffered a stroke of apoplexy on November 28th, 1928, as the result of the injury sustained on the date of the accident, the physicians called by him stated that they were of the opinion that plaintiff had not suffered a stroke of apoplexy as the result of the injury, but that they were of the opinion that the fall may have caused an injury of the brain from which a blood clot had formed and finally resulting in a stroke of paralysis on November 28th, 1928.

There was not any evidence of an injury of the brain, and the deduction of the physicians that there was such an injury is based upon their conclusion that plaintiff did not suffer a stroke of apoplexy, but had suffered a stroke of paralysis which could be accounted for on the theory that the fall may have caused an injury of the brain from which a blood clot had formed.

However, the physicians who attended plaintiff on November 28th, 1928, expressed the opinion that he had an apoplectic stroke on that date, and the majority of the physicians called also expressed the same opinion, and it was shown that plaintiff had at that time and since high blood pressure and a disease of the arteries, which all of the physicians admit often foreshadows an apoplectic stroke. The great preponderance of the evidence also shows that if the injury sustained on September 8th, 1927, had caused the formation of a blood' clot on the brain, finally resulting in paralysis, that the right side of plaintiff’s body would have been affected and not the left, as the evidence clearly established was the case after the illness of November 28th, 1928.

There was some evidence that, if plaintiff had high blood pressure and hardening of the arteries on the date of the accident, September 8th, 1927, the fall may have accelerated the condition. It was not shown that the condition existed on the date of the accident and the physicians who stated that the fall may have accelerated such condition expressed the opinion that if the condition existed on that date and was accelerated by the accident, plaintiff would not have been able to continue to work for more than a year after the accident.

The evidence established ■ that plaintiff suffered a stroke of apoplexy on November 28th, 1928, and that at the time there existed a condition, high blood pressure and hardening of the arteries, which fully accounts for the illness suffered by plaintiff, and we are of the opinion that the evidence failed to establish any connection between the accident on September 8th, 1927, and the illness of plaintiff on November 28th, 1928, and the judgment appealed from is affirmed.


author: JANVIER, J.

text:
    No. 11,567
    Orleans
    TOBIAS v. THE A. H. WHITE CO., LTD.
    (December 16th, 1929. Opinion and Decree.)

      Cross and Moyse and Peitel and Peitel of New Orleans, attorneys for plaintiff, appellee.
    Cahn and Cahn of New Orleans, attorneys for defendants, appellants.
   JANVIER, J.

Plaintiff, Mrs. Tobias, sues the A. H. White Co., Ltd., for the cost of replacing a roof which that company, as sub-contractors, had placed upon a building which was being erected for her by Heartfield & Heartfield, general contractors.

Very soon after the completion of the building it became apparent that water was entering the premises and, on investigation, Mrs. Tobias came' to the conclusion that the roof was defective both in material and workmanship. She thereupon called upon The White Company to repair the roof and, after waiting a short time without receiving satisfaction from them, replaced the roof herself and now sues for the cost of the new one. She bases her suit on the ten-year guarantee which had been executed by The White Company at the time of the completion of their sub-contract. Defendants admit that they constructed the roof, but contend that the guaranty was given to the general contractors, Heartfield & Heartfield, and not to Mrs. Tobias, the owner, and they also claim that the water entered the building not as a result of defective material or workmanship in the roof, but solely because of structural defects in the building itself. They also claim that, since they received only $456.75 on their contract, which called for a total payment of $1,087.00, there has been a failure of consideration, or want of consideration, and that therefore, since the consideration for which the guarantee was given was not received, they are not bound under it.

It appears to us proper to first consider the question of fact involved. That is, whether the roof was defective. Because, if the water entered the building not as the result of a bad roof, but because of structural defects in the building, or if the structural defects in the building made it impossible for the roof to function properly, the roofing contractors are not liable.

Both the architect and a roofing expert from the City of Baton Rouge, Louisiana, where the buildings were located, -testified that the trouble came about entirely because of a defective roof; that the laps of the roof material did not stick together and that the edges along the parapets were not properly flashed. These edges, according to the specifications, should have been turned up for several inches and cemented to the parapets, and an additional strip of flashing should have been placed over these edges. It is evident from the record this was not done. Defendants contend that the edges had been originally properly turned up against the parapets, but had been pulled away by the sagging in the other portion of the roof. We are quite convinced that this was not the case, as the sag in the roof was only about six inches at most and, though it is true that a straight line is the shortest distance between two points, a sag of six inches at or near the middle section of a roof the size of the one in question could not have caused the edges to pull away from the parapets enough to be noticed, if at all. Roofing material such as that used will certainly stretch enough to allow for a sag of only a few inches. Of course, if the sagging had taken place near the edges or parapets, it might well be that, as a result thereof, the flashing would have been torn loose, but the only depressions or sags in the roof were located a considerable distance from the edges.

The testimony shows that the laps failed to stick together and that it was between these laps that water entered. This defect was plainly the result either of defective roofing material, or of improper workmanship. The best proof of the fact that the leaks resulted from improper roofing, and not from structural defects, is the evidence that the new roof was laid over the same structure without any changes therein, and that it proved watertight. We are, therefore, well convinced that the original roof was defective.

But, says The White Company, Mrs. Tobias cannot claim any right under the guaranty because it was not given to her, but to Heartfield & Heartfield, her general contractors, who are the only persons who can take advantage of the guarantee.

We do not feel that the principle of law contended for by defendants, that only he in whose favor a bond or guarantee of surety runs can sue thereon, is applicable here. This guarantee was rather a warranty running with the building itself and enforceable by the owner of the building.

It should be remembered that the guarantee was not addressed to any particular person, but read as follows:

“We hereby guarantee Composition Roof on main roof and awning Tobias Bldg., Main St. Bet. L. R. & N. R. R. and Fufrocq St., Baton Rouge, La., installed by us for the period of Ten years, in which we agree to repair any leaks which may occur in our work which are due to rotting or wearing away of material and for Ten years which may be due to improper workmanship.***”

“[Signed] A. H. White Roofing Co.,

“By Y. L. Grosbeck, Mgr.”

In this regard the following quotation from 1 A. L. R. at page 861 is interesting and pertinent:

“While there is a seeming conflict among the decisions as to who may enforce a contract of guaranty, it appears from an examination of the eases that this conflict arises more from the application of well-accepted principles to the facts of given cases than from any disagreement as to the rules of law governing such contracts. Thus, it is generally agreed that those for whose benefit the guaranty was intended may enforce it, and that a person who is only incidentally benefited by the guaranty has no right of action thereon. The difficulty arises over the determination of the fact as to whom it was intended to benefit by a particular guaranty. Where the guaranty is general in its terms, and addressed to no particular person, it is uniformly held that anyone acting on it may enforce it.”

But whether originally, and without any other action on the part of the general contractors, Mrs. Tobias could have proceeded against them directly, it is very evident that the estoppel which has been pleaded against The White Company, to the effect that they cannot' set up such a defense against Mrs. Tobias, is quite sound. This estoppel results from the testimony of Mr. White, president of defendant company, that, although his company had not been paid the full contract price, nevertheless it issued the guarantee in order that the general contractors, Heartfield & Heart-field, might obtain from Mrs. Tobias further payments on the general contract. Mr. White’s testimony on this point is as follows:

“Well, I will say this, from my own knowledge, the guarantee was issued with the understanding that these parties were permitted to use that guarantee in order to get their payments, that it was helping him to get their payments.”

“The guarantee was necessary in order that they (the contractors) could get a settlement.”

If Mrs. Tobias refused to make payments until the guarantee was issued, and if The White Company issued the guarantee for the purpose of prevailing upon her to make the further payments, it does not lie in their mouths now to say that Mrs. Tobias has no right to rely on that guarantee.

Furthermore, the evidence shows that when the defect was first discovered complaint was made by Mrs. Tobias, or her representative, direct to The White Company and not through the general contractors. The White Company, in response to that complaint, did not take the position that Mrs. Tobias must complain to the general contractors, but sent to Baton Rouge to investigate the complaint.

Defendants contend that the guarantee, even if Mrs. Tobias had a direct right of action under it, was in the nature of a stipulation “pour autrui,” and that, therefore, the third person in whose favor it was made can have no greater rights than the person who made the stipulation, and that, since the failure or partial failure of consideration could have been set up against Heartfield & Heartfield, it can now be set up against Mrs. Tobias. This argument overlooks the same fact to which we have already referred, namely, that the stipulation was made or given for the purpose of persuading the third party, in whose favor it was made, to do something, i. e., to pay money, that that third party would not otherwise have done. We fail to see how the party who made the stipulation, under such circumstances and such purpose, can now be heard to complain. The White Company does not contend that Mrs. Tobias had not paid everything that she was obligated to pay under the contract, but merely that they did not receive their portion of what she paid to the general contractors. When they, by their action, induced her to pay to the general contractors the balance due — and we assume that the entire balance has been paid — they in effect agreed to look to the general contractors and their bondsman for payment. If they did not get their payment, Mrs. Tobias was in no way to blame. If they chose to waive or abandon their legal rights and their statutory remedies, they cannot now be heard to complain so far as she is concerned.

We cannot agree with counsel for plaintiff that The White Company should have tendered back to Mrs. Tobias the amount which they had received on account before they could claim that the consideration for their guarantee had failed, and that thus the contract was cancelled and they were released from the obligations of the guarantee. The cases to which our attention has been directed refer to contracts of sale where a portion of the contract price has not been paid, and in those cases the courts have held that that portion which has been paid must be tendered back before the cancellation of the contract can be claimed. But here the things sold, to-wit, the materials and labor which had been put into the roof, could never be handed back, and therefore, since the parties could not be put back into their original situations, the eases that counsel cite do not seem to be applicable.

But so far as Mrs. Tobias is concerned, full and complete consideration was given for the guarantee. True, it was not given to The White Company, but it was by the action of The White Company given to Heartfield & Heartfield, and if The White Company did not protect themselves, that is their own misfortune.

- The. record convinces us that the new roof, was . placed, upon the building at a Seasonable cost and that Mrs. Tobias has complied with all of her obligations in' regard 'to. 'the '.installation -thereof, and', for the reasons we have given, we feel that the judgment of the lowér court in awarding her .the amount which she' was called Upon to spend is correct.

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


text:
    No. 3655
    Second Circuit
    P. P. WILLIAMS & CO. ET AL. v. ROACH
    (December 31, 1929. Opinion and Decree.)

      W. M. Murphy, of Tallulah, attorney for plaintiffs, appellants.
    Snyder & Sevier, of Tallulah, attorneys for defendant, appellee.
   ODOM, J.

The defendant, Roach, contracted with the Federal Government to construct the “Cabin-Teele” levee in Tensas parish and sublet a portion of the work to Davis, and Davis, in turn, sublet to Arthur Moore. Moore, while building that portion of the levee sublet to him, became indebted to P. P. Williams & Com pany for goods, wares and merchandise obtained and used while the work was in progress. Government engineers in ’.harge of the work made estimates at the end of each month showing the amount due each contractor during the current month. The amount due subcontractors was paid by the Government direct to Roach, the principal contractor, and he in turn paid the subcontractors. In order that Williams & Company might be paid the amount due them, Moore executed the following written assignment or order to Williams & Company, to-wit:

“Oct. 18, 1927.

“T. W. Roach Company,

“Memphis, Tenn.

“Dear Sirs:

“Please pay to P. P. Williams & Company my October estimate as soon as you get it.

“Very truly yours,

“Arthur Moore.”

On the same day Williams & Company mailed this order' to’Roach with a letter in which they asked Roach to acknowledge receipt thereof. On October 24th, Roach, not having acknowledged receipt of the order, Williams & Company again wrote him calling his attention to the fact that the order had been mailed, and requested an acknowledgment of the receipt of the order. Whereupon, Roach addressed the following letter to Williams & Company:'

“Octo. 26th, 1927

“P. P. Williams & Co.,

“Vicksburg, Miss.

“Gentlemen:

“This will acknowledge receipt your letter 18th inst., with order of Arthur Moore, to pay you his October estimate.

“Yours very truly,

“T. W. Roach.”

There seems to have been no further communication between the parties about the claim until November 29th, when Roach wrote Williams & Company, as follows:

“November 29th, 1927

“P. P. Williams & Co.,

“Vicksburg, Miss.

“Gentlemen:

“Referring to October estimate for Arthur Moore on the Cabin Teele work. His estimate has been received as turned in for October and I understand he will have a small estimate for November.

“I certainly will look out for your interests in this matter and make settlement, as soon as possible. Mr. Moore moved off his work without my permission which of course he had no right to do; he may have some accounts applying on this work for which I may be responsible; I would not feel safe in making settlement at this time, not before matters have had time to clear up.

“I believe you fully understand the position I am placed in and trust you will appreciate same.

“Your very truly,

“T. W. Roach.”

In reply to the above letter, Williams & Company wrote Roach the following letter, dated December 2d, 1927:

"December 2, 1927

“Mr. T. W. Roach,

“401 North Memphis Savings Bank Bldg., “Memphis, Tenn.

“Dear Sir:

“We thank you for your letter of November 29th, about Mr. Arthur Moore’s estimate. He was in to see us today, and stated that he had an addition in November estimate which he felt would take care of any bills for which you might be responsible, and which would leave his October estimate clear for us.

“We hope you will get his November estimate soon and as soon as you have checked up we will appreciate a check for what you may be due him.

“Our account against him amounts to $618.55, and we will appreciate it if you will take care of this before making remittances to him. We know this to be satisfactory with him, because he assigned his October estimate to cover our account, and he expected this estimate to be more than sufficient.

“Your truly,

“P. P. Williams & Co.”

On December 19th, Roach wrote Williams & Company as follows:

“December 19th, 1927

,'“P. P. Williams & Co.,

.“Vicksburg, Miss.

“Gentlemen:

“In regards to Mr. Moore; the last estimate rendered him gives him about $500.00 due him; he was of the opinion he had due him another estimate of around $600.00 or $700.00 on which the U. S. Engineers did not estimate him anything this month, so I presume Mr. Moore is somewhat mistaken in this last estimate; of course he is due some percentage of his last estimate as the engineers only estimate 80% of unfinished work; this will be a great deal less than $600.00.

“I have a gasoline and oil bill for $691.77 and your bill for $618.55 and of course a balance of $500.00 due Moore will not these bills; so I will have to wait until the work is finally finished so as to not to lose any money myself; I told Moore that I would pay these bills, but it was on the assumption he had another estimate due him that would give me enough money to pay same; I rendered Mr. Moore an estimate on the last estimate sent me by the II. S. Engineers showing station numbers, yardage and amount due him also retained percentage.

“It looked like that-old work would be finished by Jany. 1st, but I am afraid this rise in the river will stop the work and flood the pits before I can get it finished; the Cabin Teele new loop or this year’s contract was finished about the 15th all except sodding which 1 presume will be done before Jany. 1st.

“Yours very truly, T. W. Roach.”

We have quoted the above correspondence in extenso because it discloses the issues involved in the case. and has an all-important bearing upon them.

The October estimate made 'by the government engineers on the CabinTeele levee account of Arthur Moore shows a balance due him for that month of $532.98, (plus a small amount retained. Moore, it seems, quit the work, and, if there was another estimate turned in for him, the record does not disclose it.

Passing now to'the pleadings, this suit was filed in July, 1928, to recover of Roach the sum of $618.55, • the amount of Williams & Co.’s account against Moore, Williams & Co. were joined in the suit by Moore, who sues for their use and benefit; he having transferred his claim to them. The petition sets out the facts as above stated and shown by the correspondence. In addition, it is alleged that Roach collected Moore’s October estimate, and in paragraph 5 of the petition it is especially alleged that “said estimate for October, collected by said Roach amounted alone to more than enough to pay said account, which said Roach accepted said Moore’s order for, in favor of petitioner, said P. P. Williams & Company, and afterwards promised to pay in full.”

Roach answered the suit, denying that he owed plaintiff any sum, and denying that he accepted the assignment and agreed to pay the account. As a special defense, Roach set up that he had entered into a contract with the federal government to construct a levee, and had given bond for the faithful performance of the contract and for the payment 9f all labor and material furnished for the building of the levee, as required by Act of Congress of date February 24, 1905 (chapter 778, 33 Stat. 811), see U. S. Code Annotated (1928), title 40, page 92, sec. 270, and that, while the October estimate showed a small balance- due Moore yet Moore was due for that mcnih a certain account for oil and gasoline used to operate the trucks and tractors on the work, and that it was necessary for him to pay said amount under the statute and the bond which he had given, before he could settle with the government for the work done, which amount, he alleges, he did pay and charge to Moore, and that, after paying said amount, there was nothing left in his hands due Mqore.

Plaintiffs’ demands were rejected by the district court and they appealed.

OPINION

An itemized account ■ filed in evidence by plaintiffs as Exhibit L shows that during the months of August, September and October, 1927, P. P. Williams & Co. sold to Arthur Moore goods and merchandise amounting to $618.55. Moore says the goods purchased were used by him in the prosecution of the levee work. But, in passing, we note that only $81.40 of this amount was advanced for the month of October, 1927, the last items on the account having been sold and shipped to Moore on October 18th, which happened to be the date on which Moore assigned to Williams & Co. his October estimate.

Moore, assuming that Roach would be due him something out of his estimate for October, that is, that Roach would be indebted to him, assigned to Williams & Co. on October 18th what is referred to as a debt due by Roach to Moore. He did not assign to Williams & Co. any specified amount of the debt or claim which he assumed Roach would owe him. The assignment is worded as follows:

“Please pay to P. P. Williams & Company my October estimate as soon as you get it.”

Moore knew, and no doubt Williams knew also, that the estimate would not be made until the last of the month. Until the estimate was made, it was not possible, of course, to determine what amount would be due Moore, if anything at all, for we gather from the evidence and documents filed that it was customary for Roach to make advances to his subcontractors as the work progressed. It cannot, therefore, he said that Moore transferred or assigned to Williams & Co. a debt which Roach owed him, for, at the time of the assignment, October 18th, there was no debt certain to be assigned.

All that Moore had at the time of the assignment was a mere expectancy or contingency. That being all that he had, that was all that he could assign and all that Williams & Co. got or could get. The assignor can assign no better rights that he has, and the assignee, of course, acquires no better rights or anything more than the assignor has. Adams v. Webster, 25 La. Ann. 117; Kugler v. Taylor, 19 La. Ann. 100; Gray v. Thomas, 18 La. Ann. 412.

The effect of this assignment was to place Williams & Co. in the place and stead of Moore. Had Moore made no assignment of this claim, he would have received from Roach whatever was . due him. Williams & Co., having received the assignment, has precisely the same rights, that is, to be paid whatever was due Moore by Roach. The testimony of the witnesses, taken in connection with the documents filed, shows that there was nothing due Moore from the October estimate. Document V, filed in evidence, is an estimate turned in by the engineer in charge. It shows that, after deducting former payments, expenses of engineering, and percentage retained, there was a balance due Moore of $532.98. The percentage retained by the engineer was $218.76, but it is not shown that this last amount ever went into the hands of Roach nor what became of it. But Roach was paid the item of $532.98, which would have been due Moore or his assignee, Williams & Co., if Moore had not incurred an indebtedness of $691.77, which it became necessary for Roach to pay before he could get a settlement from the government. That debt was to the Yerger O'il Company for gasoline and oil used by Moore to operate the machinery which he used in building the levee. It is admitted by counsel for plaintiff that gasoline and oil furnished and used as this was by Moore, the subcontractor, was material used in the prosecution of the work, and that the amount of the bill could have been collected out of the contractor’s bond, in other words, it was a debt, for which Roach was responsible.

In the case of United States, for Use of Hill, v. American Surety Co., 200 U. S. 197, 26 S. Ct. 168, 50 L. Ed. 437, it was decided and settled, we assume, that a principal contractor and the surety on his bond are liable for labor performed and advances made to a subcontractor, under Act of Congress of date February 24, 1905. The debt of $691.77 was due by Moore to the Yerger Oil Company, hut could have- been collected out of Roach’s bond. Roach, was therefore responsible for it, and could make no final settlement on his contract until it was paid. He did pay it arid charged it back to Moore, so that Moqre’s balance of $532.98 shown by the engineer to be due on the October estimate was more than consumed, and Moore, therefore, had nothing coming to.'him.

Learned counsel for plaintiff in his exhaustive brief concedes that the Yerger Oil Company could-have proceeded against Roach on his bond and forced payment of its claim, and that the amount thereof collected by judicial process would have been a proper charge against Moore. But he says in effect that Roach had no right to constitute himself “judge, jury and executioner” and make the payment and charge it back to Moore; that he should have waited until forced to make the payment. The legal effect of making the payment voluntarily, under such circumstances, is the same as if it had been made under compulsion, for what one may be compelled to do through judicial process he may do voluntarily. However, in a strict sense, this was not a voluntary payment, for Roach says the claim was placed in the hands of an attorney for collection, and that suit was threatened.

The federal statute, under which this contract and bond were made, provides that suits on the bond shall be prosecuted in the federal courts and nowhere else, and counsel in brief says: “Where Congress has legislated on a subject and provided that suits arising under said legislation shall be filed in the Federal Courts and nowhere else, a state court is without jurisdiction to interpret or enforce that law,” and he argues that this court 'has no authority to interpret or apply the provisions of the act of Congress under which the contract was made, in order to determine whether it was necessary for Roach to pay the oil bill. The answer to that argument is that we are not called upon to interpret the federal statute, because counsel has done that for us. He says in brief: “It is true that this oil and gas bill due Yerger Oil Company could have been collected out of the contractor’s bond.”

Roach paid the Yerger Oil Company’s bill after Moore assigned his claim to Williams & Co., and counsel points out that a debtor cannot compensate or plead set-off as against the claim against him a debt arising after notice of the assignment has reached him. Civil- Code, art. 2212; Gray v. Trafton, 12 Mart. (O. S.) 702; Gillet v. Landis, 17 La. 470; E. F. Golsan & Co. v. Powell, 32 La. Ann. 521.

If the assignment made by Moore to Williams & Co. had been in fact an assignment of a debt, and if the Yerger Oil Company’s claim, which, unquestionably became a debt for which Roach was liable, had arisen after the assignment, the law cited would be applicable. But, as we have already observed, this was not an assignment of a debt, because Roach was not indebted to Moore at the time the assignment was made nor did he become indebted to him later. Whether Roach would become indebted to Moore on the October estimate depended on whether the amount due for work exceeded the legitimate charges against it and the advances made. Roach, in settling with Moore, had a right to charge him with all advances made as well as the charge against the work for which he was liable, and to deduct the amounts from the estimate. See Willey v. St. Charles Hotel Co. et al., 52 La. Ann. 1581, 1590, 28 So. 182. Having made these deductions, there was nothing due on final settlement. Then, too, the Yerger Oil Company debt, while not (paid until later, was in fact due prior to the date on which the estimate was turned in.

The point is urged that the account of Williams and Co., being for goods advanced to Moore, was of equal rank with that of the Yerger Oil Company, and could have been enforced against Roach’s bond also. That may or may not be true; but 'conceding that it is true, and conceding that Williams & Co. could have proceeded against Roach on his bond in the federal courts and forced a pro rata distribution of the amount due Moore among the creditors of equal rank, the facts are that Williams & Co. did not pursue this method, and did not at any time claim liability against Roach on his bond, but instead brought a personal action in tne state courts to collect a debt alleged to be due Moore which had been assigned to them. Counsel makes a clear statement on this point in his brief when he says:

“Plaintiff in this case is not suing on a bond nor for any ranking of claims or liens nor for any construction to be put upon Roach’s contract. He is suing for funds in the hands of Roach in his personal capacity, which funds have been assigned to plaintiffs, a personal debt, in which the United States has no interest for these funds passed out of its hands into the hands of Roach who owed them to Moore, who assigned them to Williams & Company.”

But the Yerger Oil Company, on the other hand, did seek to hold Roach liable on his bond, and placed its claim in the hands of an attorney who threatened to file suit.

Plaintiff alleged in his petition that defendant accepted Moore’s order in favor of Williams & Co. for the amount of the claim, and afterwards promised to pay it in full. There is no proof that Roach accepted the order and promised to pay the debt. The letters filed in evidence and quoted above show that he merely acknowledged receipt of the order and promised to take care of the claim if there was anything due Moore on final settlement.

The district court rejected plaintiffs’ demands; that judgment is correct, and is affirmed, with costs in both courts.


text:
    No. 3681
    Second Circuit
    OGLESBY v. LIFE INS. CO. OF VIRGINIA
    (November 18th, 1929. Opinion and Decree.)
    (December 31st, 1929. Rehearing Refused.)

      Bryan E. Bush, of Shreveport, attorney for plaintiff, appellee.
    Wilkinson, Lewis, Wilkinson & Bur-ford, of Shreveport, attorneys for defendant, appellant.
   WEBB, J.

The defendant appeals from a judgment rendered against it on an insurance policy written by it on the life of Mrs. Bessie Oglesby, which was signed by the assurer on June 25, 1928, and delivered a few days thereafter to the assured, who died on January 6, 1929.

The amount (payable under the contract in event of death of the assured was less than $500, and the premiums were payable weekly, thus placing the contract within that class of insurance defined by Act No. ^5 of 1906, as' industrial insurance; and appellant complains of the ruling of the court sustaining an objection to the introduction of any evidence to support the defendant’s allegations that the assured had made false and fraudulent statements in an application, for insurance on the faith of which, it is alleged, the defendant contracted or in support of the allegation that the assured was not in sound health on the date the policy was delivered.

Appellant-urges that the objection to the introduction of evidence in support of its allegations was based on Act No. 52 of 1906, as amended and re-enacted by Act No. 227 of 1916, and Act No. 97 of 1908, and that the ruling was based upon those statutes, which appellant urges were not applicable to the contract sought to be enforced, and, in any event, that Act No. 97 of 1908 alone was applicable, and not Act No. 52 of 1906, as amended.

Defendant concedes that those statutes have often been applied to industrial insurance contracts (Brown v. Casualty Company, 161 La. 231, 108 So. 464, 45 A. L. R. 1521; Whitmeyer v. Liberty Industrial Ins. Co., 166 La. 328, 117 So. 268; Kilbourne v. Life & Casualty Ins. Co., 2 La. App. 275; Silver v. National Life Ins. Co., 6 La. App. 97; Pierce v. Liberty Industrial Ins. Co., 7 La. App. 626; Polite v. National Accident Ins. Co., 9 La. App. 83, 118 So. 846), but it urges that the court’s attention was not directed to Act No. 65 of 1906, in which industrial insurance - contracts are defined, and the conditions with which corporations and other legal persons who undertake tq write such class of insurance must comply, nor to Act No. 256 of 1912, providing for the organization, admission, and conditions under which fraternal societies are permitted to write insurance contracts in this state, and the decision in Mull v. Sovereign Camp of the Woodmen of the World, 2 La. App. 401, in which it was held that Act No. 52 of 1906, as amended, was not applicable to insurance contracts written by fraternal associations.

In other words, it is urged that Act No.. "2 of 190-6, as amended, which declares that all life insurance policies shall contain the contract between the parties, and that, in order for the application of the assured and the statements made thereunder to be made a part of the contract, it is essential that the application and statements be written and indorsed or attached to the contract, and that Act No. 97 of 1908, which in substance declares that, where an insurance policy is issued without a medical examination of the assured, the solicitor of the assurer who takes the application for the policy or collects the premiums, shall be considered as the agent of the assurer, imputing the knowledge which the agent may have or could have obtained with the exercise of reasonable diligence to his principal, are general statutes, and not applicable to industrial insurance contracts, which it is urged are under the provisions of Act No. 65 of 1906, placed in .a special class, and that such contracts must be construed under the general law relative to contracts and according to the provisions of the contract.

The policy sought to be enforced here declares that it contains the entire contract between the parties, and on its face there appear all of the essentials of a valid contract on the part of the assurer; that is, its consent and a valid right and cause for its obligation, and there is not any reference whatsoever to any application or statements previously made by the assured and, although defendant alleges that the contract was entered into in faith of the truth of representations made by the assured, it is not alleged that there was any contemporaneous agreement, either verbal or written, between the parties stipulating, either that the assurer had consented to the contract in faith of the truth of any representations made by the assured or that the contract should be considered in connection therewith; and, even conceding that neither Act No. 52 of 1906, as amended, nor Act No. 97 of 1908, are applicable, the contract suggests that defendant could not avoid its obligations thereunder on the ground that the assured had made false representations as to matters which do not appear from the contract to have been considered by the parties.

But, considering the defendant’s contention that industrial life insurance contracts are placed in a special class, and that neither Act Ño. 52 of 1906, as amended, nor Act No. 97 of 1908, are applicable to such contracts we do not find anything in Act No. 65 of 1906 which could be said to indicate that it was the intention of the Legislature to place such contracts beyond the scope of general statutes previously enacted, or which might be subsequently enacted.

The title and body of the statute (Act No. 65 of 1906), we think, clearly shows that its only object was to permit corporations and other legal persons to issue life insurance (policies, when the amount payable under the contract was less than $500, and the premiums were to be paid at short intervals, without complying with other conditibns required' of companies writing policiés for larger amounts, or where the premiums were payable quarterly, etc., and, conceding that insurance policies issued by fraternal societies and associations to their members are not, under the provisions of Act No. 256 of 1912, affected by either Act No. 52 of 1906, as amended, or Act No. 97 of 1908, it is sufficient to state that it is not suggested that defendant is a fraternal society or that its business was conducted on the fraternal plan,, or that there was any other relation between defendant and the assured than resulted from their agreement.

As stated, the application and answers of the assured were not attached to the policy when it was issued, and it is conceded that, if Act No. 52 of 1906, as amended, is applicable, defendant could not under the (provisions of that statute use the applications and answers of plaintiff thereunder in defense of the action to enforce the contract (Whitmeyer v. Liberty Industrial Ins. Co., 166 La. 328, 117 So. 268), but, as previously stated, it is urged that Act No. 52 of 1906, as amended, is not applicable, and that Act No. 97 of 1908 is alone applicable.

There is not any apparent conflict in the provisions of Act No. 52 of 1906, as amended, and Act No. 97 of 1908, in so far as the statutes may be applicable to life insurance contracts, and, if Act No. 52 of 190.6, as amended, be considered as expressing the general policy of the law, the latter might be considered as supplementary of the former. However, the title of Act No. 52 of 1906, as amended, restricts its provisions to life insurance contracts, while the title of Act No. 97 of 1908 apparently restricts its provisions to life, accident, and health insurance policies which are issued with'out a medical examination of the assured, and it appears that the construction heretofore placed upon the statutes has been that Act No. 97 of 1908 is alone applicable when the policy is issued without a medical examination of the assured.

Defendant, however, apparently concedes that the statute (Act No. 97 of 1908) is not merely a declaration that certain facts will enable the assured to plead estoppel; and that when, as in the present case, the application of the assured has been taken by a solicitor of the assurer, and the policy has been issued without any medical examination of the applicant, the assurer shall be presumed to have waived any right to claim a forfeiture of the policy on the ground that the assured did not make full and true answers in the application as to his or her health, in the absence of an allegation that the solicitor of the assurer did not have an opportunity to ascertain the true condition of the health of the applicant, and that he could not have obtained such information in the exercise of reasonable diligence.

Defendant alleges that its agents had made an investigation of the health of the applicant, and we might assume that agents of the assurer had opportunity to ascertain the true condition of the health of the applicant, but defendant does not state what was the nature of the investigation made by its agents; that is, of whom they inquired as to the health of the applicant, and the answer, we think, clearly indicates that the agents of the assurer did. not make any inquiry whatsoever of other persons as to the condition of the health of the applicant, the excuse being that the applicant appeared to be in good health, and that the nature of the mortal maladies with which she is alleged to have been affected were such that only a physician could have ascertained her true condition.

We think the statute anticipated the very situation with which the answer of the defendant indicates its agents were confronted, but we do not think it regards the situation as showing that the agents of defendant were without an opportunity to ascertain the true condition of the applicant’s health, and relieve them of exercising reasonable diligence to obtain such information, otherwise the statute might as well not have been written, and we do think evidence was admissible under the answer to overcome the presumption that defendant waived any right it may have had to claim a forfeiture of the policy on the ground that the assured had not made full and true answers as to the condition of her health.

The policy contained a provision that the assurer did not assume any obligation thereunder, unless the assured was in sound health at the time the policy was delivered, and that in such event the contract should he void; and the answer of the defendant set up that the health of the assured was at the time of the delivery of the policy in the same condition as it alleged existed at the time of the application, and it is urged that, should it he held that defendant waived the right to claim a forfeiture of the contract on the ground that the assured had not made full and true answ.ers in the application as to the condition of her health; it should nevertheless have been permitted to show she was not in sound health by reason of the continuance of the pathological conditions existing at the time of the application.

The law, we think, clearly contemplates that the4 assurer must determine the risk by an investigation made before agreeing to contract; either from the answers of the applicant to questions propounded to him, and an examination made by the physician selected by the assurer, or from the answers of the applicant to questions propounded to him and an investigation made by the agents of the assurer. And where, as in- the present case, the as-surer has waived any right to claim a forfeiture of the policy on the ground that the answers of the assured were not full and true, the assurer should not be permitted to show that the assured was in fact affected by the diseases as to which she was interrogated and which she denied having, and to show that her answers were false and that the disease continued and existed" at the time the contract was delivered, and that the assured was not .thus in sound health at the time the policy was delivered. See Brown v. Continental Casualty Co., 161 La. 231, 108 So. 464, 45 A. L. R. 1521; Silver v. National Life Ins. Co., 6 La. App. 95; also Metropolitan Life Ins. Co. v. Moore, 117 Ky. 651, 79 S. W. 219.


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    No. 11,502
    Orleans
    MILLER v. NEWARK FIRE INS. CO. OF NEW JERSEY
    (December 16, 1929. Opinion and Decree.)
    (January 13, 1930. Rehearing Refused.)
    (March 10, 1930. Writ of Certiorari and Review Refused by Supreme Court.)

      William A. Green and Herbert W. Kaiser, of New Orleans, attorneys for plaintiff, appellee.
    John C. Hollingsworth, of New Orleans, attorney for defendant, appellant.
   JANVIER, J.

Plaintiff was the owner of a new Nash sedan automobile. He had obtained from defendant a policy of insurance under which the defendant company agreed to indemnify him against loss resulting from certain perils, including “theft, robbery or pilferage.” At about 10:30 o’clock of the night of the loss which resulted in this suit, the car had been placed by plaintiff in a public garage operated by Simon & Zeller. At the time the car was left, it was placed in the space allotted to. plaintiff by the proprietors and the keys were left' either in the car or were handed to' Arnold Jackson, a colored employee of the garage owners, who was in charge of the garage for the night.

At about 2:30 a. m. the car was taken out of the garage by Jackson and driven by him in the direction of Canal street for a distance of a few blocks, when it was wrecked as a result of colliding violently with a post, which it demolished, and then with a building. The wreckage was traded in on a new car, and in this suit plaintiff claims from h'is insurers the difference between the trade-in allowance on the old car and the price of the new one. There is no controversy over the amount claimed, but defendant resists payment on the ground that the car was not injured as the result of theft, pilferage, or robbery. It bases this theory on two contentions: One that the negro was not attempting to steal the car, but was merely “borrowing” it temporarily, intending to return it to the garage; and the other that, since the negro had come into possession of the car with the knowledge and consent of the owner, who had himself placed it with the negro, there could have been no theft, pilferage, or robbery, as a fundamental essential to each of the three crimes mentioned is the unlawful taking possession.

We will first discuss this second contention. It is true that the car was voluntarily left by the owner in the garage and in the custody of the negro. But to leave an article in the custody of a person is far different from leaving it in his possession. The evidence shows that the car was placed in its assigned spot, and that, so far as the interests of the garage owners were concerned, there was no reason for it to be even touched by the negro. His duties were confined to watching it, to guarding it. Surely a person who merely guards something has not possession of it in a legal sense, though he may have custody of it. Suppose a night watchman is employed to watch a residence and during the night he is tempted to remove from the residence some article, such as porch furniture. Can it he said that he has not committed theft because the article was left in his possession? We think not.

But, says defendant, he did not intend to steal the car, but was only borrowing it temporarily, and therefore the owner cannot recover under his “theft” policy. What the negro’s intention- was is entirely a question of fact.

“It is true, as is contended, that an essential ingredient in the crime of larceny is the existence, at the time of the taking of a felonious intent to deprive the owner of his property against his will; yet whether or not such an intent existed is a question for the determination of the court or jury trying the cause. If there is evidence from which such an intent can fairly be inferred, an appellate court is not authorized to disturb a finding that such an intent existed.” Robinson vs. State, 113 Ind. 510, 16 N. E. 184, 185.

Apparently the trial court came to the conclusion that he did not intend to return it. The evidence' as to the circumstances amply justifies such a conclusion. If the negro merely wished to go for a cup of coffee, as counsel for defendant suggests, in all probability he would have “borrowed” a car more readily. accessible than this particular car, which could only be taken out after removing several others which were in front of it. ' Furthermore, it is shown that the negro had in his .pocket, at the time of his arrest later, money belonging to his employers, and then, too, it appears that he had been working for Simon & Zeller for only .a very short time. But, whatever may have been the undisclosed intention of the negro, it is certain that, up to the time of the accident, there was nothing in his actions to indicate any purpose other than to unlawfully take the car and remove it as far as possible from the place in which it was his duty to keep it.

Defendant cites interesting authority to the effect that the unlawful use by a garage man of a car left in his custody is not theft, or larceny. Van Vechten vs. American Eagle Fire Ins. Co., 239 N. Y. 303, 146 N. E. 432, 38 A. L. R. 1115. This doctrine appears sound, and if the record warranted us in finding that the negro intended to return the car, the case mentioned would be applicable. The facts, however, do not justify such U conclusion, particularly in view of the finding of the trial court to the contrary. The Van Vechten case holds that, in determining what is theft within the meaning of a policy of this kind, courts should accept the usual lay meaning of the term. In the state of New York a special statute declared that it was larceny for a garage owner to use the car of a customer, and it was sought to hold an insurance company liable under a theft policy in such a case. It was contended that, since the taking out of the car by the garage owner was made by statute a larceny the owner could recover under a theft policy. The court held that the usual meaning of the word “theft” should be applied in cases of this kind, and that inasmuch as in the particular case, it was the intention of the garage owner to return it, as in fact he did later return the wreckage, there was no intent to deprive the owner of his property, and therefore there existed no such theft as is -usually contemplated by the word. This case and many others cited are interesting but do not appear to us-to be in-point.

Defendant further contends that plaintiff in leaving the car unlocked, or in leaving the keys with Jackson, breached the special warranty in the policy to the effect that the car would be equipped with a transmission locking device and that he would use “all diligence and care in maintaining the efficiency of said locking device, and in locking the automobile when leaving same unattended.” It seems to us that such a warranty was not intended to apply in a situation of this kind. The car was not unattended, and it is necessary, in public garages, that keys be left in the cars, as they must on occasion be moved from place to place, to accommodate other cars. Then, too, the warranty was intended to apply only in the case of theft by persons having no right either to the possession or to the custody of the car, and it would be most unreasonable to so consider the warranty as to prevent the owner from leaving his car in a public garage unless locked and unless the keys were removed by him. Such a ruling would be tantamount to holding that in such a case the car could not be placed in any of the modern garages, for it is a matter of common knowledge that such garages will not accept a car unless the keys are left in it and that this particular garage so requires is in evidence.

Plaintiff also filed suit against the garage owners, and in the case now before us the judgment in his favor against the defendants also included a judgment declaring that the- defendant insurance company is entitled to be subrogated to plaintiff’s rights' against the garage owners in the other suit. This holding was manifestly correct.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be, and' it is affirmed.


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    No. 12,016
    Orleans
    STEVENS v. HAMANN
    (January 27, 1930. Opinion and Decree.)
    James G. Schillin, of New Orleans, attorney for plaintiff, appellee.
    Lazarus, Weil & Lazarus, and Herman S. Lindy, of New Orleans, attorneys for defendant, appellant.
   JANVIER, J.

Plaintiff, Stevens, was injured as the result of a collision between the motorcycle on which he was riding and an automobile truck owned by defendant and operated by one of his employees within the scope of his employment.

Stevens, an employee of an agency which furnishes to customers the services of private watchmen, was required to ride a motorcycle in going from one to another of the various establishments guarded by his employer, and was riding his motorcycle up Broad street towards Canal street at about 5:10 p. m. in the late afternoon of November 7, 1928.

The truck was going in the same direction, and, as Stevens desired to go a little faster than the truck, he attempted to pass between it and the neutral ground which was on the left of both vehicles.

Just as the two vehicles reached the uptown driveway of Bienville street, which, like Broad street, is at that point a neutral ground street, having two driveways, the truck turned to its left in an effort to enter the uptown driveway of Bienville street on its way towards the river. As it made this turn, the collision occurred.

Whether the truck turned its left front wheel into the side of the motorcycle or the motorcycle dashed headlong into the left front wheel of the truck is one of the disputed questions of fact.

In spite of plaintiff’s allegation that the truck was being operated at an excessive rate of speed, he made no effort to prove this, and it is now conceded that the speed of the truck was very moderate.

Plaintiff’s theory of the cause of the accident, he having now abandoned his charge of excessive speed, is that the truck was proceeding near the right-hand curb or sidewalk, when suddenly and without a hand signal or other warning its driver turned it sharply to the left in an effort to enter the intersecting street.

Defendant, on the other hand, stoutly maintains that the truck for at least several hundred feet prior to the collision had been near the left-hand curb or neutral ground, and that the driver had extended his .hand as a signal of his intention to turn to the left when suddenly and without warning plaintiff attempted to squeeze through the narrow opening between the truck and the neutral ground and ran into the left front wheel of the truck just after it commenced to make the turn.

We have made a particularly careful study of the testimony because of the earnest contention of counsel for the defendant that the witness Miguel, on whose statements the trial judge seems to have largely relied, is unworthy of belief.

The testimony of this man and the circumstances surrounding his appearance as a witness convince us that his evidence, if accepted at all, should be seasoned with the proverbial grain of salt. He stated that he did not even know the plaintiff prior to the accident, although it appears that he and plaintiff lived only a few doors apart. According to his testimony, although he was nearer the scene of the accident than anyone else, he did not go to plaintiff’s assistance, and he gave as his reason his fear that plaintiff had been killed. This testimony strains our credulity almost to the breaking point, because it is certain that Stevens, the injured man, arose almost immediately after the accident and did not appear to be badly hurt.

Although Miguel did not go to Stevens’ assistance because of his fear that he had been killed, he states that he waited in his car at the scene of the accident for at least 25 or 30 minutes after Stevens had been taken to the hospital in the truck, and after all persons and vehicles concerned in the catastrophe had left. ■

The fact that Miguel was not summoned as a witness when the case was first fixed for trial, although his testimony .was certainly most important, that other witnesses who were subpoenaed were never placed on the stand, and that, although the witnesses were separated, Miguel’s testimony was taken before that of (plaintiff himself, '.and while plaintiff himself remained in the courtroom, are circumstances which* tend to throw a shadow of doubt upon his statements.

Last, but by no means the weakest link in the chain of circumstances which tend to affect the credibility of the witness, is his insistence that he has never, at any time, told anyone what he knew about the facts of the case. It is almost unheard of for a witness to testify without first disclosing to the party or to the attorney what he knows. There is, of course, nothing improper in a witness so doing, but his denial that he has done so is so highly improbable as to influence us considerably in our opinion that his statements are unworthy of belief.

If we eliminate Miguel’s testimony, the evidence preponderates in favor of defendant. The driver of the truck states that he put out his hand before making the left turn. He is corroborated in this by the testimony of his friend, Trigo, who was riding with him on the seat of the truck. Against this we have only the evidence of Stevens himself, who was plainly trying to squeeze through a dangerously small opening, and who, with his attention focused on this hazardous maneuver, may not' have noticed the hand of the driver, which, on account of the height of the truck as compared with that of the motorcycle, would have been considerably above his line of vision.

That the truck was very near to the left-hand curb or neutral ground seems certain. In addition to the testimony of the two men on the truck, we have the statement of Edward A. Betz,- an entirely disinterested witness, who was on the other driveway of Broad street, and who states that he saw the truck near the neutral ground and about to turn into Bienville street.

Plaintiff states that in his effort to pass the truck he sounded his horn several times. If the truck was near the right-hand curb, there was no necessity for this, as the motorcycle could have parsed easily without requiring the truck to move further to the right. On ’this point also we find the testimony of. Miguel impossible of acceptance, because he testifies that the truck was on the right-hand side of the driveway and yet that he blew his horn several times for it to move over to the right so that he might pass to the left.

Another circumstance which leads us to believe that the testimony of plaintiff is not entirely in'-line with the facts is his statement that the truck ran into the side of his motorcycle, whereas it seems to be well established that his motorcycle dashed headlong into the wheel of the truck. This is evidenced by the location of the damage to the motorcycle.

In his pleadings plaintiff’s case was pitched on three charges of negligence: • First, the high speed of the truck; second, that the truck turned from the right side of the driveway sharply to the left; and third, that no hand signal was given.

The first charge was abandoned. The second is completely disproved, and we think that on the third the evidence preponderates in favor of defendant. Plaintiff’s case must therefore fall.

Of course, what we have had to say should not in the slightest degree reflect on the integrity or the professional standing of counsel for plaintiff, whom we have known for many years, and for whom we have the highest regard.

The facts of this case are almost identical, even as to the respective locations of the witnesses, with those which appeared in the Floyd W. Alford v. J. Clifford Lyons (No. 11,168) 11 La. App. 670, 124 So. 690, decided by us on November 18, 1929.

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