text:
    No. 10,318
    Orleans
    MASON, Appellant, v. OGDEN
    (May 24, 1926. Opinion and Decree.)
    (June 7, 1926. Rehearing Refused.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Evidence—Par. 348.
    Effect will be given to parol testimony, introduced without objection, notwithstanding its tendency to controvert the terms of a contemporaneous written agreement.
    Appeal from First City Court, Section “A”. Hon. W. Alexander Bahns, Judge.
    Action by Edmond B. Mason against Oswald Ogden.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Clancy A. Latham, of New Orleans, attorney for plaintiff, appellant.
    Guión & Upton, and W. Ogden, of New Orleans, attorneys for defendant, appellee.
   WESTERFIELD, J.

Plaintiff, an architect, sues the defendant on a written contract for $240.00, the sum mentioned therein as the consideration for drafting plans and specifications concerning certain proposed structural changes to defendant’s residence. Defendant admits his signature to the contract and—

“Further answering the allegations of said paragraph respondent says that it was understood, and agreed between petitioner and respondent that the said plans and specifications therein referred to were to be submitted- to the Eureka Homestead Association, through which Association respondent expected and hoped to finance the remodeling of his residence No. 315 Walnut St. by a loan from said Homestead Association, and that it was distinctly understood and agreed between petitioner and respondent that in the event that said Eureka Homestead Association refused to make the necessary loan to respondent for the purpose of remodeling said residence in accordance with said plans and specifications, said contract would be without any force or binding effect whatever. Respondent further avers that predicated upon such understanding and agreement had with plaintiff, he signed said agreement of September 9, 1924. Further answering respondent says that the said Eureka Homestead Association refused to loan to 'your respondent the amount necessary to remodel said premises in accordance with said plans and specifications, and respondent avers therefore that said contract is ■ without any force or effect in law or in fact.”

From a judgment- in favor of defendant, plaintiff has appealed.

Plaintiff’s contention is that evidence of a contemporaneous verbal agreement is inadmissible to contravert the terms of a written contract. Defendant’s counsel accepts this issue and seeks to show that this agreement is not within the rule invoked. We can not conceive of any reason for excepting the oral agreement, pleaded here, from the general and universal rule:

“Parol evidence of a contemporaneous oral agreement is not admissible to vary, modify or contradict the terms of a written contract in the absence of fraud or mistake.” La. Digest, Vol. Ill, Verbo “Evidence”, p. 202, Sec. 221.

There is here no allegation of fraud or error and it can not be contended that there is anything ambiguous in the contract or any necessity to explain its terms and conditions. The oral agreement here set up is expressly declared to be contemporaneous and not subsequent as was the case in Harvey vs. Mouncou, No. 9127 Orl. App., Adv. Sheets, La. App. No. 7, p. 236.

But the parol evidence rule is not self operative. It is necessary that objection 'should be made to the introduction of parol evidence, otherwise, the party in whose interest the rule might be invoked, will be presumed to have waived its protection. This has long been the jurisprudence in this state.

The record in this case is barren of any objection to the introduction of parol testimony, affecting the contract sued ón; consequently the evidence must be considered.

“The testimony to prove the contract for the emancipation of Pauline and her child, was parol. It was admitted without objection. It is conceded by defendants’ counsel, that if effect must be given to the parol contract proven in this case, there should be judgment in favor of the plaintiff. But it is contended ‘that the contract for the emancipation of the slave is but a sale of the slave to herself, and that under Article 2415 C. C., a verbal sale of a slave is null as well for third persons as for the contracting parties themselves, and the testimonial proof' of it shall not be admitted. That the law does not say that parol evidence of a verbal sale of a slave is inadmissible, if objected to; but it says, that the verbal sale of a slave is void, even as between the vendor and vendee, and to say, that a certain form of sale declared void by express law, because made in that form, shall nevertheless be held valid because it is proved to have been made in the very form reprobated by the positive law, is an absurdity.’

“Were the Articles of the Civil Code on the subject of verbal sales a new question, the argument urged might have occasioned us much trouble, for it is in the light of a sale, we think, in which the contract between Pauline and Bourgeat for Julie, should be viewed in the present controversy.

.“But the Article in question has been so often and with so much uniformity construed adversely to defendants, that the law on the subject must be considered as long since settled.

“Article 2415 of the present Code is identical with Art. 2, p. 344, of the Code of 1808. Under that Code the Article was construed, first, as contended for by defendant’s counsel, but, after much discussion, it was held that a party who would object to parol evidence must except to its introduction. 5 M. R. 422. In the case of Bateman vs. Cormier, 1 N. S., the court said, parties have certainly a right to acknowledge a parol contract for land and they have a right to consent that their stipulations in regard to it, may be proved by parol. In the case of Mills vs. Hunter, 5 N. S. 121, the court, after comparing the other Articles of Code of 1808 on the same subject, arrived at the same conclusion. In the case of Strawbridge vs. Warfield, 4 La. 22, the court considered the corresponding Articles of the present Code and amendments, and adopted the same construction as had been given to them in the old Code, and gave effect to parol proof of the sale of a slave, such proof having been received without objection. This decision has been uniformly adhered to since. Hopkins vs. Lacoutere, 4 La. 64; Brown vs. Frantum, 6 La. 46; Henry vs. Hinkgrave, 19 La. 483; Jacob vs. Davis, 4 An. 39; 7 An. 33, Packwood vs. White; see also 3 An. 136. The question must, therefore, be considered as at rest.”

The evidence in the record, its admissibility thus established, supports the defense by a clear preponderance of testimony. We omit any detailed discussion as useless.

It follows that the judgment appealed from must be and it is affirmed.


source: Caselaw Access Project

author: CLAIBORNE, J.

license: Public Domain

text:
    No. 9416
    Orleans
    BARRERE, Appellant, v. SCHUBER
    (July 19, 1926. Opinion and Decree.)

      (Syllabus by the Court.)

    "1. Louisiana Digest — Damages—Par. 41.
    A mother cannot recover damages for her mental suffering and anxiety arising from injury to her .son.

      2. Louisiana Digest — Automobiles — Par. 7 (c).
    A child eight years old who suddenly dashes across a street in the path of an automobile and is knocked down and injured is guilty of negligence and cannot recover damages.
    Appeal from Civil District Court. Hon. Porter Parker, Judge.
    Action by Widow Albert Barrere against P. J. Schuber.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Eraste Yidrine, of New Orleans, attorney for plaintiff, appellant.
    Wm. P. Conkerton, of New Orleans, attorney for defendant, appellee.
   CLAIBORNE, J.

This is a suit for injuries caused by an automobile.

The plaintiff alleged that on September 16, 1922, at about 5:30 p. m., her son aged eight years was playing on Baronne street on the right side near Erato street; that her son perceived the automobile running up Baronne street on the right hand side, also; he ran across from the woods side of Baronne street, but the automobile, turning to the left, struck him from the back while he was about in the middle of the street and threw him down and passed over him; that he sustained severe, contusions of the head, legs, and body, and was confined for one week in the Presbyterian hospital and in his house for more than a week; that the hospital bill was $20, the doctor’s bill $25 and pain and suffering $500; that the child’s mother was running a rooming house; that on ae-' count of absence from her house she lost the opportunity of renting two rooms at five dollars per week for six weeks or $60; that for nursing her child and for her worry and anxiety she is entitled to recover $250; that the acicdent was caused by the negligence of the defendant.

She claims $515 for the child and $310 for herself.

The defendant excepted that plaintiff’s petition for herself disclosed no cause of action.

The exception was maintained.

The defendant denied all the allegations of the plaintiff on behalf of the minor and further alleged “that the accident herein alleged was due to no fault or want of care on the part of your respondent but was caused exclusively by the want of care on the part of said minor Albert Barrere, Jr., the plaintiff herein”.

There was judgment for defendant and plaintiff has appealed.

Three witnesses testify as to how the accident happened: the injured minor himself, James Gordon, aged 11, and Oswald Molere, age 15. There is no conflict in their testimony. Six or seven boys were playing "cops and robbers” on the wood side sidewalk of Baronne ’street between Clio and Erato streets, near Erato street. The game is thus described by Molere: “The robbers would go out, and the cops would go behind them and catch them, and we would put them in the yard, and that was supposed to be the jail.”

Gordon and Molere were holding the minor by the hand, when he jerked away from them and dashed across the street; just then defendant’s automobile came up the center of Baronne street. The minor testifies: “When I ran in the street, and he hit me, he hit ,me on the hip, and I fell down and hit my head, he hit me sideways.”

Gordon says the automobile was half way across the street and the fender hit the boy.

Molere did not see ■ the automobile hit the boy; but when he turned around he saw the boy under the automobile, and when he raised his head the back axle hit him on the head; the automobile stopped at about its own length.

We fail to see that the defendant was guilty or any fault or negligence. On the other hand we are satisfied that the minor brought the accident upon himself by dashing across the path of the automobile and against it and causing himself to be thrown down and injured. Montford vs. Schmidt, 36 A. 750; Campbell vs. New Orleans City Ry. Co., 104 La. 183, 28 South. 985; Downey vs. Baton Rouge Elec. & Gas Co., 122 La. 481, 47 South. 837; Cusimano vs. City of New Orleans, 123 La. 574, 49 South. 195; Legendre vs. Consumers Seltzer & Mineral Water Co., 147 La. 120, 84 South. 517; No. 10,261 Orl. App. July 5, 1926.

The mother’s claim for damages for her mental suffering and anxiety arising from the injury to her son is not recognized by law. Pattison vs. Gulf Bag Co., 116. La. 963, 41 South. 224; Sperier vs. Ott, 116 La. 1087, 41 South. 323; Brinkman vs. St. Landry Cotton Oil Co., 118 La. 835, 43 South. 458.


text:
    No. 10,098
    Orleans
    KELLY & SON v. YELLOW CAB CO. Appellant
    (July 19, 1926. Opinion and Decree.)
    (Aug. 16, 1928. Rehearing Refused.)

      (Syllabus hy the Court.)

    1. Louisiana Digest — Automobiles—Par. 4.
    The owner of an automobile who drives into another automobile and causes it to run against a wall which it destroys is alone liable in damages.
    2. Louisiana Digest — Damages—Par. 38.
    As a rule speculative loss of profits are not allowed as damages unless they are established with reasonable certainty.
    Appeal from Civil District Court. Hon. E. K. Skinner, Judge. ’
    Action by P. J. Kelly and Son against Yellow Cab Co. et al.
    There was judgment for plaintiff and defendant appealed.
    Judgment amended and affirmed.’
    Miller & Fletchinger, Gordon Boswell, of New Orleans, attorneys for plaintiff, appellee.
    David Sessler, of New Orleans, attorney for defendant, appellant.
   CLAIBORNE, J.

The plaintiff sued for damages done to their property by defendant’s automobile.

The plaintiff alleged that on December 7, 1923, they conducted a retail grocery store on the downtown woodside of Freret and Robert streets; that on the above date. Mrs. Nathan Stern’s chauffeur was driving her car down Freret street, when upon reaching Robert street, it collided with a taxicab owned by the Yellow Cab Company, which was running out Robert street to the woods;, that Mrs. Stern’s chauffeur swerved his car towards his left over the sidewalk and against and into the front of the plaintiff building, and stopped only after it had forced its way partly through the front wall thereby demolishing it; that according to traffic ordinance No. 7490, Freret street was a right-of-way street having two parallel lines of street cars in its center, and vehicles were required on approaching same and, before crossing samé, to. come to a full stop, and the chauffeur in charge of the taxicab approached Freret street without stopping and without observing the approach of the automobile; that the chauffeur of. the automobile was also driving at an excessive speed and neglected to observe the approach of the taxicab coming out Robert street; that the damage to plaintiff’s property was caused by the negligence of the chauffeurs of the two automobiles; that by reason of the demolition of the front wall and the temporary closing of the front entrance and the loss of trade caused thereby plaintiff has lost $320 and the cost of a watchman $5; that the cost of reconstructing the front wall and erecting a temporary wall was $441.73.

Plaintiff claimed $766.73.

Both defendants pleaded vagueness and no cause of action. The first exception was maintained and the second dismissed.

The taxicab company denied all the allegations of the fourteen articles of plaintiff’s petition. Further answering it averred:

“That on December 7, 1923, at or about the hour of seven p. m., the cab of the defendant herein, the Yellow Cab Co. of New Orleans, Inc., was being driven on Robert street from St; Charles avenue towards the woods; that as said cab was about to cross Freret street going towards the woods, said cab was struck by a Cadillac, car owned by its co-defendant herein, Mrs. Bertha Kaufman Stern,-and operated by her colored chauffeur in the course of his employment; that said cab of defendant herein was being driven in a careful and lawful manner, but that said Cadillac car of the co-defendant herein ran into the cab of the defendant herein, and said cab of the defendant herein was damaged as a result of the gross negligence of the driver of said Cadillac car, which Cadillac car was being driven, at the time of the accident, at an excessive rate of speed down Freret street in violation of the city ordinance; that said chauffeur of the Cadillac car was incompetent and did not have said Cadillac car under control and did not apply his brakes, and that said chauffeur of said Cadillac car was not looking in the proper 'direction; that immediately after said Cadillac car struck the cab of defendant herein, said Cadillac car turned and swerved to the left across Freret street towards the woodside, jumped the ditch, ran over the sidewalk, and struck the front part of a grocery store located at the corner of Freret and Robert street on the wood downtown side. Defendant avers that whatever damage was done to petitioner was caused solely by the gross negligence of the driver of the Cadillac car owned by the co-defendant herein, Mrs. Bertha Kaufman Stern.”

Mrs. Kaufman Stern admitted that her car had collided with a building corner of Freret and Robert, but denied all the other allegations of the petition and averred “that if plaintiff sustained any damage the same did not result from the negligence of any one over whom she had any control, and that at the time and place alleged in the petition her automobile was being operated by her employee who was then and there not acting within the scope of his employment with or as agent for respondent”.

Upon the verdict of a jury, judgment was rendered in favor of plaintiff against the Yellow Cab Company for $766.73 and in favor of the defendant Mrs. Kaufman Stern.

The plaintiff and the Yellow Cab Company have appealed.

We had occasion to pass upon the issues of this case in the suit entitled Bertha Kaufman Stern vs. Yellow Cab Co., 2 La. App. 273, No. 9871 of this court reported in La. App. Ad. Rpts., No. 4, p. 1076. In that case the trial judge examined all the defenses urged in this case and concluded' by attributing the fault of the collision to the Yellow Cab Company and rendered judgment against it.

That judgment was affirmed by this court on appeal. The same issues were again raised before a jury and they decided again, 30 days before the judgment of this court, against the Yellow Cab Company.

A patient re-examination of this case covering some 200 pages of the testimony has convinced us that our original opinion was correct.

If it is true, as two courts and a jury have found, that it was the fault of the chauffeur of the taxicab that caused Mrs. Stern’s auto to crash into the plaintiff’s wall and damage it, then the judgment in favor of Mrs. Stern is correct. See the squib case Scott vs. Shephard, 2 W. Bl. 892; Latta vs. N. O. & N. W. Ry., 131 La. 283, 59 South. 250.

The only question left is the amount of the damage.

Plaintiff claims them on three causes:

1st Loss of trade. They say that by reason of having their store closed on the Freret street side during the 60 days that the reconstruction of the wall lasted they lost business to the amount of $20 a day or $1200,’ upon which their • profit would have jjeen twenty per cent or $240. This damage is problematical and speculative and has not been established with that degree of certainty required by law.

There is no evidence to show what the receipts of their business were in any 60 days of the current year or of any prior year, and what their receipts were during the 60 days that the repairs lasted. Cable vs. Leeds & Co., 6 La. Ann. 293; State of Louisiana ex rel. Bell vs. Hufty, 11 La. Ann. 303; Gebelin vs. Hamilton & Scott, 18 La. Ann. 646; Bohn vs. Cleaber and Lindsey, 25 La. Ann. 419; Bergen vs. New Orleans, 35 La. Ann. 523; Faysoux & Coleman vs. New Orleans, 35 La. Ann. 1202; Riggs and Co. vs. Bell, 42 La. Ann. 667; Blymer vs. McDonald & Hart, 48 La. Ann. 439, 19 South. 459; Mirandona vs. Burg, 51 La. Ann. 1190, 25 South. 982; Whitney vs. Parish of Vernon, 126 La. 13, 52 South. 176.

2nd For the inconvenience and annoyance to which the (plaintiffs were put during 60 days, for having to work in obscurity under artificial light, the noise while the work was going on and the cold in the store resulting from the open front, we think the sum of $100 claimed is reasonable as well as the $5 for a watchman.

3rd The testimony establishes with certainty that the repairs to the house cost $441.73 which plaintiff paid.

It is therefore ordered that the judgment herein be reduced from seven hundred and sixty-six 73-100 dollars to five hundred and forty-six 73-100 dollars and as thus amended that the judgment be affirmed; the defendant to pay costs in both courts.


author: WESTERFIELD, J..

text:
    No. 10,355
    Orleans
    WOMACK, Appellant, v. NEW ORLEANS PUBLIC SERVICE INC.
    (May 10, 1926. Opinion and Decree.)
    (June 7, 1926. Rehearing Refused.)
    (Oct. 5, 1926. Writs of Certiorari and Review Denied by Supreme Court.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Master and Servant —Par. 154, 159 (a).
    The compensation paid injured workmen under the compensation statute is based upon disability and it is immaterial whether the injury alone, or in conjunction with a latent systemic infection, caused the disability.
    2. Louisiana Digest — Master and Servant —Par. 160 (j).
    Positive testimony will prevail over negative, consequently when a doctor, testifying as a medical' expert gives his professional opinion to the effect that an injury to the inguinal glands can be caused by a strain and declares that he has seen fifteen cases of such injury originating in that manner his testimony must prevail over another medical expert who expresses the opinion that a strain does not and can not produce such injury.
    Appeal from Civil District Court, Div. “C”. Hon. E. K. Skinner, Judge.
    Action by Harvey B. Womack against New Orleans Public Service Inc.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    Habans & Coleman, of New Orleans, attorneys for plaintiff, appellant.
    Benj. W. Kernan, of New Orleans, attorney for defendant, appellee.
   WESTERFIELD, J..

Plaintiff alleges that he was injured in the course of his employment as motorman by the defendant street railway company. He sues for compensation at the rate 'of $13.00 per week for .100 weeks beginning April 9, 1925. His injuries are described in his petition as “an extensive enlargement and induration of the right inguinal glands, very apparent upon inspection and painful on pressure” and “an injury to his abdominal wall and a tendency to inguinal hernia”.

He alleges that he was employed by the defendant after a thorough physical examination by' a physician, in defendant’s employ, who pronounced him fit for the duties of motorman and “that your petitioner was broken in for eighteen (18) days chiefly • with pneumatic brakes, and later placed on a car operated by hand brakes; upon the second day of his run, while operating the hand brakes, he endeavored to stop the car quickly and, in pulling at the hand brakes, experienced a severe strain at which time he felt a severe pain in the right groin”, and “that some time later your petitioner again strained himself while trying to stop the car quickly in an effort to avoid an accident”.

The defense is in effect a general denial.

There was judgment for defendant and plaintiff has appealed.

The fact that plaintiff suffered from a physical disability substantially as he claims is not disputed. Nor is the amount of compensation asked questioned, assuming there is liability. The sole question is whether plaintiff was injured in the’ course of his employment? In maintaining the negative, defendant relies entirely upon the alleged impossibility of the accident happening in the manner stated. In other words the inguinal glands, it is said, can not be injured by a strain due to an effort to stop a street car with a hand brake. Plaintiff’s condition defendant says is the result of an infection, a systemic infection becoming suddenly active and manifesting itself in this form. We are gradually becoming accustomed to the originally startling dogma of our brethren of the pill and scalpel to the effect that there often lurks in the human system, a source of evil, inert, inactive, dormant, and in that quiescent state, like the crouching jagaur, innocuous to our physical welfare — but when aroused to action by a trauma or shock,'or other abnormal incident, a veritable juggernaut crushing in its path all the vital forces of the body and . causing disease, disaster and death. These evil forces, we are told, usually hide behind our teeth and tonsils where from day to day they “ripe and ripe”. We understand this theory is now orthodox, and, we humbly make our confession of faith, but we venture the assertion that its progress in medical esteem is strewn with many innocent teeth and tonsils, the erstwhile property of our fellow citizens, as vicarious sacrifices upon the altar of medical science. However interesting this subject may be, it is of no consequence in compensation cases for recovery in such cases depends upon disability whether caused by the injury alone or in conjunction with a latent disease. Craft vs. Gulf Lumber Co., 151 La. 281, 91 South. 736; Hicks vs. Meridian Lumber Co., 152 La. 972, 94 South. 903.

Two physicians testify for plaintiff and two for defendant. We recognize that all doctors are not alike in learning skill or reputation, but we can, not make invidious distinctions, therefore, unless the record discloses something to indicate that the opinion of one or more of them, like that of Papinian, should be preferred to the rest, we treat the statement of each medical expert with the same credulity. Consequently when Dr. Rudolph, for plaintiff, with whom Dr. LeBlanc concurs, tells us that the plaintiff Womack’s condition could have been caused by a muscle strain and Dr. Wymer for defendant with whom Dr. Lyons concurs tells us it would not, we find the testimony on this point in balance. But when Dr. Rudolph adds “I have easily seen fifteen cases at least” caused by strain, the scales, by operation of the familiar rule concerning negative and positive testimony, begin to tip toward plaintiff. And, when Dr. Wymer testifies that he gave plaintiff “a rigid physical examination” before he, as examining physician for the defendant company, accepted him, and, that he, Womack, did not have a weakened abdominal wall or infection at that time otherwise he would not have been employed the scales tip a little more, for we have the word of Dr. Wymer for it that so far as a rigid physical examination would reveal, Womack was in a normal physical condition when he entered defendant’s employ. We have seen that the medical testimony preponderates in favor of the possibility of plaintiff’s condition being due to a strain, and it is established that when he entered defendant’s employ he was, as far as a rigid medical examination would disclose, a healthy man. We take no notice of potential systemic infection, for the reasons we have given. There remains for consideration the question of whether as a matter of fact plaintiff was injured in the course of his employment.

He testifies that in the early part of May while acting as motorman on a car of the Henry Clay line, in order to “make a sudden stop to avoid an accident and I gave a quick start that way and threw my weight against the brake which caused a strain in my side”; that about a day after this occurrence he experienced pains in his abdomen and in the glands of his leg; that he promptly reported his symptoms to Dr. Wymer, the defendant’s doctor who told him it would amount to nothing; that he continued to work and on another occasion a few days later while operating a Coliseum car also equipped with a hand brake, “when I went to make a curve. It was after dark. I was going to this curve, and before I got to it, my conductor spoke to me, and I looked to take the curve and I threw my weight against the brakes to keep from hitting the curve”; that following this second incident he again experienced pain in the same locality and reported his injury to the barn foreman, a Mr. Van Mannen the next day. Peter Coste, the conductor on the Coliseum car, at the time Womack claims to have received his second injury testifying for defendant said that as the car approached Webster street at full speed and as he did not hear the “power go off” he walked through the car and addressing Womack said “watch yourself, you are on that curve” and he (Womack) “threw the juice off and jammed the brake”.

Van Mannen, the barn foreman testifying for defendant, said that Womack complained to him about, his side being strained. He thinks the complaint was made “around the 23rd of May”.

Charles Russel, who worked with Womack as a conductor on May 17th, testifying for defendant said that Womack “said to me that he didn’t know how he was going to make out that evening as his side hurt him”.

Our conclusion is that plaintiff has made out his case by a clear preponderance of the . testimony. His injury can be explained upon no other reasonable hypothesis, except in the manner he alleges. The judgment appealed from is for the reasons assigned reversed and it is now ordered that there be judgment in plaintiff’s favor and against the defendant ordering the defendant to pay to plaintiff the sum - of $13.00 per week for 100 weeks beginning April 9, 1925, with interest at the rate of 5 per cent upon each weekly installment from its due date until paid and all costs.


author: WESTERFIELD, J.

text:
    No. 10,311—10,312
    Orleans
    SUCCESSION OF DUCATEL
    (May 10, 1926. Opinion and Decree.)
    (June 7, 1926. Rehearing Refused.)
    (Oct. 5, 1926. Writs of Certiorari and Review Denied by Supreme Court.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Taxation—Par. 358. Where the description of property bought out at a tax sale is uncertain resort will be had to the title of the tax debtor to identify the property.
    2. Louisiana Digest — Taxation—Par. 362.
    A purchaser at a tax sale who takes possession of the wrong property can not be maintained in his possession against the claims of the lawful owners no question of prescription being involved.
    Appeal from Civil District Court for the Parish of Orleans, Division “E”. Hon. William H. Byrnes, Judge.
    Action in effect a petitory action involving the question whether certain lots belong to Succession of C. G. Ducatel and Billaud.
    There was judgment declaring Bordes to have no title and Bordes appealed.
    Judgment affirmed.
    J. B. Kosser, Jr., of New Orleans, attorney for plaintiff, appellant.
    D. V. Dusson, of New Orleans, attorney for defendant, appellee.
    Felix Puig, of New Orleans, curator ad hoc.
   OPINION.

WESTERFIELD, J.

This- suit is in effect a petitory action and involves the title to two adjoining lots in square 1055 (formerly 81) bounded by Bourbon (formerly Bagatelle) street, Miro (formerly Liberman) street, St. Anthony and Galvez (formerly Genius) street.

The question presented is whether the lots belong to the Succession of Ducatel and Billaud, in the proportion of one lot each, on the one hand, or to Joseph Bordes on the other.

Both Ducatel and Billaud have long since died and their successions were opened in the old probate court and lately transferred to the Civil District Court. On February 26, 1925, an order was obtained in the Succession of Ducatel, No. 155,679, Civil District Court, by which one of the lots was sold at public sale early in March, 1925, to pay debts of the succession, and on the same day, a similar order was obtained in the Succession of Louis Charles Andre Billaud, No. 21,608, Civil District Court, by which the other lot was to be sold on the same day to effect a partition. These proceedings represented sudden activity in the two successions, which were long inactive and were caused by the zeal of counsel who informed those interested in the two successions of his belief that their title to the lots in question was valid and took this direct method of provoking the issue.

Under the authority of these orders the lots were advertised for sale and signs announcing the sale placed on the property. At this juncture Joseph Bordes filed injunction proceedings in both successions and obtained a restraining order preventing the sale of the property upon the ground that the lots belonged to him. A rule to dissolve the restraining order was filed in each succession and consolidated for hearing in Division “E” of the Civil District Court. Upon the trial of this issue it was agreed that in view of Bordes having proven possession for more than one year the case should be tried as a petitory action with the successions as plaintiffs and Bordes as a defendant. Considered in this form the issue was determined in favor of the title of successions of Billaud and Ducatel and against Bordes and Bordes has appealed.

The Succession of Ducatel and the Succession of Billaud each claim one lot under a private sale. Bordes claims under a tax sale. Without going into the history of the titles of the ,two successions at this time it is sufficient now to say that their title is good unless divested by the tax title under which Bordes claims. It is admitted that Bordes acquired under a valid tax sale but it is contended that he bought different property and not the lots in controversy here. By act before P. D. Olivier, notary public, dated June 28, 1922, Bordes purchased, at a tax sale, from the City of New Orleans, pursuant to the provisions of Act 119 of 1882 and Act 170 of 1898, for the city taxes for the year 1921, the following property assessed in the name of Joseph Cortinas:

“Four lots of ground and improvements thereon, situated in the Third District of the City of New Orleans, designated as lots 5/8 in square 1055 bounded by Bourbon, Grant, Miro and St. Anthony streets and measuring 120 feet front on Bourbon street by 120 feet in depth.”

This description identifies the property sold as being in square 1055 and facing Bourbon street, but does not otherwise locate the property. Upon the principle that that is certain which can be made certain, we turn to the title of Joseph Cortinas in whose name the property was assessed when sold to Bordes for the city taxes of 1921. Cortinas bought at a tax sale on August 15, 1911, by act before John P. Sullivan, notary public, under the identical description, the property at that time being in the name of Francois Lacroix.

Francois Lacroix and Etienne Cordeviole acquired “two lots of ground situated in the Suburb Marigny having each 30 feet in front on Bagatelle street between Genie and Liberaux streets, by 120 feet deep F. M., which two lots make the original lot 6 in square 81 on plan by Joseph Pille, city surveyor, on the 25th of June, 1830, by act before William Boswell, notary public, March 17, 1832.

Subsequently, on July 20, 1848, by act before Octave De Armas, Francois Lacroix acquired the interest of Etienne Cordeviole, his co-owner. Consequently, when the property was sold for taxes assessed in the name of Francois Lacroix to Cortinas, Lacroix owned the original lot 6 in square 81 (1055) on plan by Joseph Pille, city surveyor.

A certified copy of the Pille plan is in evidence and it shows lot 6 measures sixty feet front on “Rue Bagatelle” (Bourbon St.) and adjoins lot 7 which also measures sixty feet front on ■ Bourbon street and forms 'the corner of “Rue des Liberaux” (Miro St.) and “Rue Bagatelle”. (Bourbon St.) Lot 6 is therefore sixty feet from the corner of Bourbon and Miro streets. It will be observed that the title of Cortinas and that of Bordes calls for 120 feet on Bourbon street whereas their author in title Francois Lacroix at no time owned more than sixty feet. We think the explanation offered by counsel for the Successions of Ducatel and Billaud plausible. He says that it is due to an error in the office of the tax assessor who credited Lacroix with ' the whole of two lots when he acquired only an individual half thereof with his co-vendee Etienne Cordeviole, and with two more lots when he acquired the interest of Cordeviole in the remaining half of the same two lots. Be that as it may the important consideration is the location of the property which we have seen is sixty feet from the corner of Bourbon and Miro.

We must now examine the title of the adverse claimants of the two successions, parties in this action. Billaud acquired by purchase from Etienne .Giraud by act before James Foulhouze, notary public, September 12, 1850. In this act the Billaud lot is described as lot No. 1 in square 81 measuring 30 feet front on Bagatelle (Bourbon), street, etc., according to a plan of William Young Lewis, notary public^ annexed to an act of December 14th, before D. L. McCay or in the language in which it is written “The lot de terre situé on Nouveau Faubourg Marignay daúcl Viet No. quatre Yingt Un; let det lot designe par le no un & measurant 30 pieds de Jace a la' rue Bagatelle sur cent pieds de profoundeur; suivant un plan depose en Vetude de ’William, Young Lewis notaire public en cette ville & dont une copie est annexe a un acte du quatoree Decembre 1842, devant D. L. McCay”.

Giraud, Billaud’s vendor, acquired the property from Mrs. Joseph Billaud as the sole heir of Joseph Billaud and Joseph Billaud acquired from Seraphin Cucullu by act before D. L. McCay, 'notary public, dated December 14, 1842, “A certain lot of ground situated in the New Suburb Marigny in square No. 81 and under the number “one” measuring thirty feet front on Bagatelle street by one hundred and twenty feet in depth as per plan deposited in in the office of W. Y. Lewis, notary public, in this city,, a copy of which said plan is hereto annexed for reference.” By referring to the annexed copy of this plan we find lot No. 1 adjoins lot No. 2 and faces 30 feet on Bagatelle street (Bourbon) beginning 60 feet from the corner of Genius street (Galvez) and by comparing the copy of this plan which we will call the Lewis plan with the Pille plan we find that lot No. 1 on the Lewis plan is one-half of lot No. 4. on the Pille plan and is ninety feet distant from lot No. 6 of the Pille plan to which we have traced the title of Bordes.

Camille German Ducatel, by act before William Y. Lewis, notary public, dated May 12, 1831, acquired from Ralph Jacobs:

“Two lots of ground situated in the New Suburb Marigny in square 81, marked No. 2 and 3 and measuring each in French measure 30 feet front on Bagatelle street, by 120 feet' in 'depth between parallel lines. Said lots being bounded dne side by lot No. 1,on the other by lot No. 4 and in the rear by lot No. 16 and are contiguous to each other. The whole as per plan by the city surveyor on the twenty-fifth day of March last annexed to an act passed before the. said notary on the seventh instant.”

The plan referred to in this act has not been produced but our attention is called to the fact that this same vendor Ralph Jacobs also sold the Billaud lot to one Francis M. Crozat the author of Cucullu’s title to whom we traced the Billaud lot and that in that act lot No. 1 was sold “as per plan of city surveyor dated March 25th last”. In the act which Billaud acquired from Cucullu the same phraseology is used consequently we conclude that reference is made to the same plan, a copy of which is attached to the Cucullu-Billaud act which we have called the Lewis plan. Our conclusions are that Bordes has no title to the lots in dispute which are admittedly located on Bourbon street beginning at a point sixty feet distant .from the corner of Galvez whereas whatever title Bordes has relates to lots on Bourbon street nearer Miro than Galvez and ninety feet distant from the lots, the title of which is considered here.

An attorney’s fee of $125.00 was allowed in each succession as well as a small Ijill for .advertising, as damages upon the dissolution of the injunctons. The amount of these damages was fixed by agreement and we are not called upon to consider the allowance.

Bordes has paid some taxes and the costs .of some improvements to the property. We will reserve his right to claim the amount of these taxes and improvements in another suit and the judgment appealed from will be and the same is so amended and as thus amended it is affirmed.


author: MAY, Judge ad hoc.

text:
    No. 10,431
    Orleans
    VIGUERIE v. DAVIS, Appellant
    (July 19, 1926. Opinion and Decree.)
    (Aug. 2, 1926. Rehearing Refused.)
    (Oct 5, 1926. Writs of Certiorari and Review Denied by Supreme Court.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Mandate—Par. 5, 6.
    The contract of mandate is completed only by acceptance of the mandatory, but this acceptance may be expressed in the act itself, or the contract may be tacitly accepted, and this tacit acceptance is inferred either from the mandatory acting under it, or from his keeping silence when the act containing his appointment is transmitted to him.
    2. Louisiana Digest — Marídate—Par. 5, 6.
    A written offer to employ one as agent to sell land, signed by the principal and tacitly accepted by the agent, constitutes a contract of agency, enforcible as to both.
    3. Louisiana Digest — Mandate—Par. • 8, 104; Brokers — Par. 23.
    Parol evidence is admissible to prove acceptance of a contract of agency to sell real estate.
    4. Louisiana Digest — Brokers—Par. 15.
    Where a contract of agency to sell real estate is exclusive, or is granted for a specified time allowed the agent in which to effect a sale, the principal cannot deprive the agent of his right to commissions by revoking the agency prior to the expiration of the time stipulated, and the right of the agent to a commission is not affected by the sale of the. property made either by the principal personally, or through another agent. ' ■ '

      5. Louisiana Digest — Brokers—Par. 22, 23..
    Where an agent sues his principal for commissions, under a contract for the sale of real estate, the petitioner is not required to allege that he is a duly licensed agent under state laws. If his services were such as to require that he be licensed, and he was not, such is a matter of defense, which the defendant, in order to avail himself of, must set up and establish.
    6. Louisiana Digest — Brokers—Par. 9, 12, 23.
    Where a real estate broker, upon being advised by certain persons that they wish to purchase a piece of property, and that such property is for sale, calls upon the owner and secures a contract for the sale, at a price fixed by the owner, such action is in, no way evidence of double dealing, or of an attempt to serve both parties, unless it be further shown that the broker represents the prospective purchasers, under a contract for compensation, or that such broker attempted to influence the owner in some way, . as by depreciating the property’s value.
    Appeal from the First City Court for the City of New Orleans, Parish of Orleans, State of Louisiana, Hon. W. Alexander Bahns, Judge.
    Aotion by R. L. Yiguerie against Mrs. Josephine Davis.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Chas. J. McCabe, of New Orleans, attorney for plaintiff, appellee.
    Eugene S. Hayford, of New Orleans, attorney for defendant, appellant. ,
   MAY, Judge ad hoc.

On March 5, 1924, plaintiff R. L. Viguerie, a real estate agent of this city, acting through his employee, Mrs. Louise Ragusa, entered into an agreement with défendant, ¡ covering the sale of certain of defendant’s real property located in this city.

Under the terms of , this agreement, plaintiff was given for a period of six months, the exclusive right to sell the property described, and it is further stipulated, that in consideration of the acceptance by plaintiff of said agency, and his endeavoring to sell the property, defendant agrees to pay him a commission of four percent, upon the price obtained.

Plaintiff’s petition alleges simply the contract sued upon, and makes the further allegation that on or about July 30, 1924, the property in question was sold for account of the defendant, by one P. Ferrier, for forty-five hundred and fifty dollars ($4550.00), and that' petitioner is entitled to his commission upon such sale.

Defendant filed an exception of no cause of action, and added to this exception, and appearing in pencil, are the following words: “No agency, no acceptance, and no performance is alleged.”

Following such exception, defendant answered, admitting that she signed a card, which she says was blank, and further admitting, that on or about July 31, 1924, she made arrangements to sell her property, through F. Ferrier, her agent. The remainder of her answer is a general denial.

On January 5, 1925, the lower court rendered judgment, maintaining defendant’s exception of no cause of action and dismissing the suit.

Thereafter a new trial was granted, and on December 28, 1925, there was judgment for petitioner for the sum claimed.

A new trial was asked and refused, whereupon defendant’ appealed to- this court.

At the hearing upon the merits, defendant being called by plaintiff under the act, was shown the contract card sued upon and admitted her signature thereto.

She says however, that plaintiff’s agent, Mrs. Ragusa, did not at first leave the card in question, but left a blank card, and at a later date called again, at which time defendant signed the agreement in question.

Defendant says further, that plaintiff’s agent only brought one person to look at the property, and that this was a lady who had already discussed the property’s purchase with defendant, and who did not want to pay defendant’s price; that no for-sale signs were ever placed upon the property, but here defendant admits that she asked plaintiff’s agent not to post signs. Defendant further says, that she looked for advertisements (in the newspapers) but never saw any.

Plaintiff’s agent, Mrs. Ragusa, says that about March 1, 1924, she called upon defendant and discussed the sale of defendant’s property; that defendant said she wanted to talk it over with her ■ children; that she, Mrs. Ragusa, thereupon left her card, and several days later called, and was told by defendant that the latter’s children approved, whereupon witness filled out the contract card and defendant signed it.

Witness further says, that she learned from some clients of hers, who lived across the street from defendant, and who wanted to buy defendant’s property, that defendant wanted to sell, and that witness called upon defendant to secure the contract; that the day after defendant signed the contract the people across the street made an offer of forty-five hundred and fifty dollars ($4550.00); that before signing such offer, these people, together with witness, and a contractor, examined the property to see if the residence could be moved to the rear, and the day after this examination, witness brought the offer to defendant, who declined it.

Mrs. Ragusa further says that she continued to work on the contract with other clients, and tried to secure increases in the offers already made; that she brought a Mr. Gourgott to see the ‘ property, and also submitted an offer of forty-seven hundred dollars ($4700.00), which came through J. Han Meyers’ office; that she continued to work on the property until defendant sold it; that she did not understand why another real estate agent should have his sign on the property, and asked defendant about this, and that defendant said she had a contract, whereupon witness advised defendant that plaintiff's contract had not expired.

Plaintiff R. L. Viguerie testifies that he personally brought a client to look at the property; that this client made an offer which was delivered by Mrs. Ragusa, to defendant, and refused; that he advertised the propérty four or five times, and that he continued to work on it until defendant sold it, (through another agent).

Defendant, Mrs. Josephine Davis, called as a witness in her own behalf, was again shown the contract, and this time denied her signature, saying that she signed a white card, and that there was nothing on such white card.

Defendant was then asked to sign her name upon a piece of blank paper, and upon comparison with this signature to that upon the contract, she admitted her signature to the latter.

Defendant further admitted that Mrs. Ragusa told her that the document which she signed was a sale contract, but defendant says that she was not told that the duration of the contract was six months. She admits however, that she would have signed a contract for such period.'

The evidence is perhaps somewhat conflicting and contradictory as to certain matters of detail, but plaintiff has offered the contract sued upon, and defendant has admitted her signature thereto, and has further admitted that she subsequently sold the property through another agent for forty-five hundred dollars ($4500.00), and that such sale, if not actually consummated, was nevertheless contracted for before the expiration of the six months granted the plaintiff within which to make a sale.

Defendant says, however, that the agreement in question is an unilateral contract, without consideration, and not coupled with an interest; that it was, therefore, recoverable at will, at any time before the agent had actually secured a purchaser willing, able, and ready to buy; that the revocability of a contract is not effected by the insertion of the word “exclusive”; that a stipulation as to the time for which the contract is to run does not prevent its revocation, and that as a matter of fact, the agreement in the instant case was revoked,’and in support of her contention as to revocation, defendant testifies as to a conversation between her and plaintiffs agent (not convincing); refers to a letter written by her attorney to plaintiff, apparently filed, but not in the record, and points to her employment, of another agent, and to his posting of for-sale signs, upon.the property, to plaintiff’s knowledge.

It is, however, unnecessary for us to consider the weight or pertinence of this evidence, as in our opinion defendant, was without right to revoke this contract to the extent of affecting plaintiff’s interest as to his commissions.

“Where, under a contract of the agency, the agent is granted a certain time within which fo effect a sale, the principal cannot revoke the agency before the expiration of that time, (Corpus Juris, vol. 9, sec. 64, page 565), and the right to a commission, is not affected by the principal’s sale of the property to another. (Corpus Juris, vol. 9, sec. 87, page 597). And a broker who is given an exclusive right to sell property is entitled to a commission on any sale thereof, made by the principal personally, or through another broker.” (Corpus Juris, vol. 9, sec. 101, page 622.)

“Where the contract of a real estate broker, confers upon him the exclusive agency, to sell the property, the broker is entitled to his commission, if during the •term of the contract, a sale is effected by the owner personally, or through another broker.” (David Freeman vs. C. C. Diboll, 11 Orl. Ct. of App. Rpts., page 199; John A. Kostmayer vs. Miss Grace Landry, 12 Orl. Ct. of App. Rpts., page 385; Fowler vs. Phillips et al., 159 La. 668, 106 South. 26.

Under her exception of no cause of action, defendant urged in the trial court and reiterates .here, that plaintiff’s petition alleges neither agency, acceptance, or performance of contract.

That agency, however, is alleged, is clear, as plaintiff sues upon a written contract of agency, which is fully described in his petition.

As to acceptance by plaintiff, the testimony of the defendant, examined under the Act, and admitted without objection, shows tacit acceptance by plaintiff, C. C., Article 2989.

As to defendant’s exception, that performance by plaintiff, is not alleged, it suffices to ■ say that the petition sets forth the sale of defendant’s property by another broker, within the six months period granted plaintiff to sell.

Defendant’s next contention is that plaintiff is without right of action, because he has neither alleged in his pleadings, nor ever proved, that he is a licensed real estate broker under Act 236 of 1920, of the Legislature of Louisiana, and we are referred to Vander Sluys vs. Finfrock, 158 La. 175, 103 South. 730, as a decision, which by inference, supports defendant’s position.

An examination of that case shows that defendant therein filed an exception of no cause of action, especially upon the ground that plaintiff did not allege that he was a duly licensed real estate broker; that before trial of such exception, plaintiff by permission, filed an amended petition, in which he alleged:

“That your petitioner is a duly qualified realty dealer and licensed broker under the provision of Act 236 of 1920, that his delinquency for the year 1922 has been recognized, and that petitioner since has had issued to him the necessary acknowledgment as having paid • his tax for 1922 and 1923, and as having satisfied his delinquency under the provisions of the Act.”

The defendant renewed his exception as to this amended petition, which exception was maintained by the trial court and overruled by the Supreme Court.

It is perfectly apparent however, that the trial court did not maintain such exception, for want of what defendant contends, were necessary allegations, for the amended petition contained such, and it is further apparent, that the true issue in that case, and the issue upon which the Supreme Court’s decision is based, was whether or not an oil and gas lease, is “real estate”, within the intent and meaning of Act 236 of 1920, defining the business of a real estate broker.

As a matter of fact however, the just referred to statute, simply declares it to be unlawful for a person, etc., to engage in the business of a real estate broker, without first obtaining a license, and provides, that in the absence of such a license, no brokerage fee, or commission will be allowed.

There is nothing whatever in the law making it necessary for a person to declare in his pleadings that he is a licensed broker. If he is, he is entitled to his commissions. If he is not, then the law deprives him of it. The whole question is one of status, and not pleading.

In Stanford vs. Bischoff, 159 La. 892, 106 South. 371, this issue was squarely before the court, and here we quote from the opinion of Justice Overton:

“Defendant appeared and filed an exception of no cause of action. This exception is based upon the theory, that plaintiff cannot recover, because he does not allege that he was licensed as a broker, at the time he performed the service * * *. Defendant looks to Act 236 of 1920, to support his exception * * *. It is not necessary that plaintiff should have made that allegation. If the matter of his services were such as to require that he be licensed, and he was not, that he was not, is a matter of defense, which, defendant in order to avail himself of, must set up and establish.”

Defendant lastly contends that the conduct of plaintiff’s agent, Mrs. Ragusa, brings her within the provision of Class D of section 17, of Act 236 of 1920, under which the “acting for more than one party in a transaction, without the knowledge of all parties thereto” subjects her to investigation by the State Board of Real Estate, and to suspension, or revocation of her license, should she be deemed guilty, and furthermore, that a broker'who is employed to exercise his ability or discretion on behalf of his principal, cannot without his principal’s knowledge, agree to represent the other party to the transaction, as such agreement is contrary to public policy and enforcible.

Defendant points to her testimony, and to that of plaintiff’s agent, Mrs. Ragusa, as showing that ■ the latter really represented persons (the Stellas) living across the street from defendant, and who were desirous of purchasing defendant’s property.

It is true that, according to Mrs. Ragusa, the Stellas wanted to buy defendant’s property, and told Mrs. Ragusa, that such property was for sale and wanted Mrs. Ragusa to handle it.

There is, however, nothing in the record to indicate that Mrs. Ragusa was to represent the Stellas in the purchase, as their agent, or to charge them a commission, nor is there anything to show that Mrs. Ragusa, in her dealings with defendant, undertook to depreciate the value of defendant’s property, or that she did anything in connection with the Stellas, other than submit their offer to defendant.

We do not, therefore, see any evidence of fraud, dr double dealing, on Mrs. Ragusa’s part, which should in any way affect plaintiff's contract, and furthermore, the instant suit is not for commissions on a sale by plaintiff to the Stellas, but is for a commission on a sale made by defendant, through another broker, during the six months period granted the plaintiff, in which to carry out his contract.

For the reasons above given, the judgment appealed from is affirmed.


text:
    No. 10,422
    Orleans
    BORNE-NORRIS HARDWARE & SUPPLY CO. v. BALLANTYNE, Appellant
    (July 19, 1926, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Witnesses—Par. 28.
    Where a wife, made co-defendant with her husband, testifies under the provisions of Act 126 of 1908, permitting the examination of an opponent, as under cross-examination, her testimony cannot be considered in the action against the husband.
    (See Article 2281 of the Civil Code. Editor’s note.)
    2. Louisiana Digest — Marriage—Par. 72, 159, 186.
    Where plaintiff brings suit against husband and wife, upon an assignment of a balance due, for repairs to a building, which repairs were made under the wife’s instructions, plaintiff cannot recover against the husband, unless it be shown that the property repaired, belongs to the husband individually, or to the community, and ownership cannot be presumed, unless possession is shown.
    Appeal from First City Court, Div. “B”, Val. J. Stentz, Judgei
    Action by Borne-Norris Hardware & Supply Co., against Mr. and Mrs. A. Ballantyne.
    There was judgment for plaintiff and defendants appealed.
    Judgment reversed and plaintiff non-suited.
    Sidney F. Gautier, of New Orleans, attorney for plaintiff, appellee.
    ■Claude L. Johnson, of New Orleans, attorney for defendants, appellants.
   OPINION.

MAY, Judge ad hoc.

The Borne-Norris Hardware & Supply Company asks judgment against Mr. and Mrs. A. Ballantyne, in solido, for two hundred and fourteen dollars ($214.00).

The petition alleges that plaintiff acquired, by assignment, from Edward A. Allnet & Son a claim against defendants in the sum of three hundred and fourteen dollars ($314.00); that on January 15, 1925, petitioners wrote, advising defendants of such assignment and demanded payment; that thereafter defendants made two payments, on account, aggregating one hundred dollars ($100.00), and promised to pay the balance, but have failed to do so.

A. Ballantyne answered with a general denial, and Mrs. Ballantyne filed an exception of no cause of action, followed by an answer, in which she denied all indebtedness to petitioner, but plead that if there was any indebtedness, (which is denied), that such is a debt of the community. Defendant further denied the alleged promise to pay, but pleads that if such promise was made, it would not be binding upon her, and that the demand should be made against the community.

On January 21, 1926, the trial court rendered judgment, maintaining the exception of Mrs. Ballantyne, and dismissed the suit against her, but gave judgment against A. Ballantyne in the sum prayed for.

At the hearing of the trial court, plaintiff put Mrs. Ballantyne upon the stand, under Act 126 of 1908, permitting the examination of an opponent, as under cross examination.

We pretermit, however, any consideration of the testimony of this witness, either as to its weight, or pertinence, for in our opinion, such testimony, so elicited, is not evidence against her co-defendant.

Plaintiff’s next witness, Edward A. All-uet, testifies that the assignment sued upon was executed by a member of his firm; that his firm’s claim was for labor and material furnished the premises 3109-11 Cleveland avenue; that he met Mr. Ballantyne at that address on two occasions, and that they talked about the repairs, but that Mr. Ballantyne never said anything about payments; that Mr. Ballantyne is the husband of Mrs. Ballantyne, and had . full knowledge of the repairs being made, and never complained about them; that prior to the doing of the work, claim for which is represented by the assignment, his firm had done other work, upon the same premises, for which it had been paid.

As no appeal has been taken from the judgment, dismissing plaintiff’s suit against Mrs. Ballantyne, the sole question for our determination is whether under the pleadings and evidence plaintiff is entitled to a judgment against A. Ballantyne, and the only evidence for consideration consists of the written assignment sued upon, together with the testimony of Allnet above reviewed.

There is no evidence in the record, as to the contract for repairs made by Allnet & Son, or as to who entered into such contract; there is nothing to show whether the property, 3109-11 Cleveland avenue, belongs to A. Ballantyne, or to Mrs. Ballantyne, nor for that matter, is there any evidence that it belongs to either of them.

If the property stood of record in the name of Mrs. Ballantyne, it would be presumed community property, but there is no evidence as to this. If it had been shown that Mr. Ballantyne was in possession, there might be a legal presumption of ownership, but under the conditions presented, it is our belief that plaintiff has failed to sustain the burden upon it, and for this reason the judgment appealed from is reversed, and it is now ordered that plaintiff’s demand be dismissed, at its cost, as in case of non-suit.

Judgment reversed and plaintiff non-suited.


text:
    No. 10,493
    Orleans
    SCHEXNEIDER, Appellant, v. GENERAL AMERICAN TANK CAR CORP.
    (July 5, 1926. Opinion and Decree.)
    (July 19, 1926. Rehearing Refused.)
    (Oct. 5, 1926. Writ of Certiorari and Review Denied by Supreme Court.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Master and Servant —Par. 158.
    A water boy, accidentally shot and killed by a fellow employee, a night watchman, due to the mutual indulgence in horse play in which the night watchman brandished his revolver in a mocking spirit of hostility, may be said to have been injured and killed in the course of and his injury to have arisen out of his employment.
    Appeal from Civil District Court, Division “D”. Hon. Porter Parker, Judge.
    Action by Mrs. Regina Schexneider, widow of Anthony Petrolia, against General American Tank Car Corporation, Ltd., of Louisiana.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    Solomon S. Goldman, of New Orleans, attorney for plaintiff, appellant.
    Frank T. Doyle, J. C. Unsworth, of New Orleans, attorneys for defendant, appellee.
   WESTERFIELD, J.

Plaintiff brings this suit on behalf of herself and her minor children for compensation for the death of her husband, Anthony Petrolia, who it is alleged was killed under circumstances involving defendant’s liability under the compensation act.

Defendant denied liability upon the ground that the injury which resulted in the death of Petrolia did not arise out of and was not received in the course of his employment. From a judgment for defendant, plaintiff has appealed.

Petrolia at the time of his death was employed by the defendant as a water boy and was killed by Oscar St. Amant, also employed by defendant in the capacity of night watchman.

The case was tried upon a statement signed by three eye witnesses and a statement of the night watchman, St. Amant.

The statement of the three witnesses is as follows:

“On June 17, 1925, about twenty minutes to seven, Benoit Vicknair and Adam Lasseigne, who. also live at Reserve, in my company, went to the General American Tank Car Company to get a job. We had all worked there before and had been laid off when they cut the force.

“About 7:00 o’clock we were on the bridge with another fellow, Joe Rodriques, in front of the office. He saw the watchman punch the clock and at the same time saw Tony Petrolia come in toward or about one hundred and fifty or two hundred feet away. He was walking at a very moderate speed with a bucket in his hand. Tony is water boy and he and the watchman use to walk together to where he got his water when the watchman was going home. When the watchman was coming toward the bridge Tony hollered to him to wait and that if he didn’t he would break his bucket over his head. The watchman told him that he had something to stop him with, but it was not until he got to the bridge that the watchman pulled out his gun from his little bag. Pie pointed it at Tony and the gun went off. I (we) do not believe the watchman (St. Amant) went to shoot him because they were always playing with each other and all the remarks were made with smiles and kidding each other. I (we) cannot state the exact time this happened hut I (we) do know that all the men had gone to work and they never go to work before 7:00 o’clock sharp. It must have been about five minutes after St. Amant (the watchman) punched the clock that he happened to shoot this man Tony. When Tony was shot he fell backwards and after-wards was put in a little Ford truck and taken to a doctor.”

St. Amant’s statement differs, only slightly:

“My name is Oscar St. Amant. I am 62 years old and reside at Good Hope, Louisiana. I. receive my mail at Sellers, La. I have been working for the General American Tank Car Company since the 18th of last March, as night watchman. I receive one hundred and eight dollars a mo»th. I work from 5 p. m. to 7 a. m. I carried a_ gun.

“On June 17th at 7:00 o’clock a. m., or very near this hour, I was about to leave the plant of the above company after punching the clock. Every 'morning since Tony Petrolia was water carrier, I use to wait for him. He went over to the railroad to get a bucket of water. This was on my way home and I liked to have him walk down with me for company. This was every day when he went for his first bucket of water.

“I waited on the bridge for him to come up when he had his water bucket. He must have punched the clock before coming up with his bucket. When he got near me, I hollered to him, ‘come on Gee Gee’. He, then, in a playing way stooped down to pick up a piece of gravel at the same time saying, ‘don’t call me that’. I then told him Took what I got’, and showed him my pistol, holding it up. Just then he told me T eat that’, and how it happened or what, I do not know, but the gun accidentally went off. The bullet hit him in the neck and knocked him down backwards. There were four men sitting on the railing on this bridge at that time and saw it all.”

It is obvious that. Petrolia was accidentally shot by St. Amant, who, in a mocking spirit of- hostility, pointed his loaded revolver at him. What was intended as humor proved to he most tragic. Another example of the fatal consequence of the careless handling of lethal weapons.

It is argued “that the foregoing statements show conclusively that the shooting of Tony Petrolia was the direct result of the horseplay and skylarking that took place between himself and the watchman and with which Petrolia’s employment had no connection whatever. The statements show that Petrolia and the watchman were very friendly and that it was the' custom of the watchman, after his night’s work was over, to wait for Petrolia and to walk down the railroad track to his home with Petrolia. It cannot be said that Petrolia’s employment subjected him to the hazard of being shot by the watchman when there was no reason for the two of them ever being on the assured’s plant at the same time, because Petrolia’s employment begin at 7:00 o’clock in the morning, while the watchman’s employment terminated at exactly the same hour and it was only because of their mutual friendship and liking for each other and to' satisfy their own whim that they were ever thrown into contact with each other at the defendant’s plant. As a matter of fact, at the time of the shooting, the watchman had already punched the clock and checked off from work.”

There was no necessity for Petrolia to have anything to do with the night watchman. Indeed, there is seldom any necessity for one employee to associate with another and there is never any necessity for friendship or enmity between employees. No necessity, yet, as long as human nature is unchanged such things are to be expected. For man is a gregarious animal, He is ever- seeking companionship. His every joy is sweetened and every, sorrow softened by association with others. Death, alone, of all his experiences, admits of.no mitigation because he must take that journey alone.

It was but natural for Petrolia to seek companionship, where he found it most congenial, among his-fellow workmen. He chose the night watchman and a friendship developed between them.

• At the time of his injury he was indulging a privilege of that friendship in a manner not unusual in his station of life. A threat of breaking a bucket over a friend’s head in the event of his failure to wait for you is not customary in certain circles, as an invitation or request for the friend’s company, but it was understood by St. Amant, who in a perfectly -friendly way drew his revolver and threatened to “stop” Petrolia. Perolia’s rejoinder “I eat that” would have closed the incident and the two frjends would have had their customary walk together but for the unexpected discharge of the fatal shot. The incident was one of friendly badinage tomfoolery or horseplay.

Counsel for defendant has cited a number of cases from other jurisdictions. We select several of these cases with counsel’s appreciation thereof as they appear in his brief.

In the case of Geceiviec vs. Travelers Ins. Co., ■ 3 Mass. Workmen’s Comp. Cas., p. 183, two employees were fooling and pushing each other and one of them, in trying to steady himself, put liis hand under the knife blade of a chopping machine which was operating, with the result that three of his fingers were cut off. It was held by the Arbitration Committee, and affirmed by the Accident Commission, that the injury wag the result of fooling or skylarking and did not arise out of the employment.

In the case of U. S. F. & G. vs. Cassell, (1922), 243 S. W. 504, the defendant operated a theatre and, for the purpose of lending color to a play, kept two pistols which were discharged from time to time when required in the play. A supervisor of the employees snapped one of these pistols on different persons without injury. He then snapped it at claimant and the pistol exploded, injuring the claimant, who had taken no part in the fooling or horseplay. The Court of Appeal reversed the judgment below and held that the accident did not arise out of the employment, despite the fact that the injured party. himself had taken no part whatever in the skylarking or horseplay.

In the case of Frost vs. Franklin Mfg. Co., 198 N. Y. S. (1923), 521, the claimant was a toolkeeper. While he was writing out an order for some materials, another workman came up and asked for wire. Claimant handed some wire to the workman and, at the same time, pulled the peak of the workman’s cap down over his eyes. When the workman attempted to remove the cap from his eyes, a file which he held in his hand came out of its handle and struck the claimant in the right eye, destroying same. The court held that the accident only followed as a continuance of the primary act of the claimant and that it was not an accidental injury arising out of the employment.

We are referred to no decision of our Supreme Court directly in point and we know of none. However, it has been held that a locomotive engineer shot by a person unknown while firing his engine at night in a lonely spot in the woods was injured in the course of his employment. Dyer vs. Rapides Lumber Co., 154 La. 1091, 98 South. 677; that a truck employee struck in anger on the head- by a fellow employee could recover under the compensation act. Ferguson vs. McFarlane Gravel Co., 156 La. 871, 101 South. 248.

This court held (Conway vs. Marine Oil Company, Ltd., No. 10,388 Orl. App.), that an employee of a gasoline and oil filling station shot by the accidental discharge of a revolver in the hands of a fellow employee was not injured in the course of his employment, but we said in that case:

“In the case at bar Conway was shot in the course of his employment by a careless fellow servant. There is no casual relation between the source of his injury and the character of his employment. Conway’s duties did not expose him to the danger of accidental shooting, nor is there any allegation that the revolver from which the shot was fired belonged to Conway’s employer and was kept on the premises for protection and possible use in defense of defendant’s property * * *. It was no more to be expected that Conway would be shot while at work in the manner alleged and by a careless fellow servant, than that he should be similarly injured at home by a member of his family.”

In the case now before us Petrolia was shot by the night watchman of defendant. The revolver, from which the shot was accidentally discharged was a part of the watchman’s equipment and essential to his employment as a means of protecting his employer’s property. This case is very different from the Conway case and differs also from the cases cited from other jurisdictions where the injury resulted entirely from the pranks of employees without reference to any instrumentality of the employer’s business. As was observed in Stark vs. State Industrial Accident Com,mission, 204 Pac. 151:

“In several of the cases it is indicated that where the injuries are. caused on account of the general surroundings of the place in which the injured employee is laboring and particularly where- the instrument of appliance which is a part of the plant and used in the prosecution of the work is what caused the injury, or is a concurring cause, the accident may be. said to arise' out of and in the course of the employment.”

In the cited case .Stark and a fellow workman named Cooper were playing with an air hose and struggling for-possession, of it, in order to turn it on each other. Stark, getting possession of the hose, turned and ran. In doing so he stumbled over a block and in some way got the hose in such position that the air was blown into his rectum, causing peritonitis and death.

The court in that case said:

“The injuries in question were caused by an industrial accident. It was a peril of the service, under the usual condition there prevailing the employees were more or less subject to such peril. It was an unexpected accident, but nevertheless may reasonably be said to have arisen out of and in the course of the employment. It was an incident of such employment by reason of. the appliance used in the work, and the custom which prevailed of the employees, without the infraction of any enforced rule of the establishment, diverting the use of the air hose to sport. The play which had been going on between Stark and Cooper was entirely mutual. The question as to who started the sport can become material only for the purpose of fixing the fault, and as we have already pointed out, fault of the injured employee under' certain conditions, such .as prevailed in this ease, does not constitute a reason for not allowing compensation. This is not an action against th.e employer” (meaning compensation in that state is payable out of a state fund).

“It may be said' that two things concurred to cause the injury: first, stumbling over the skid block; second, coming in contact with the air from the air compressor. Both the skid block and the air hose were a part of the surrounding under which he had labored for more than a year. It is not necessary to ■ say that the employer was at fault, or that Cooper was at fault, or that Stark was free from fault. It might be remarked parenthetically that it is not to be supposed that a crew of men could be obtained unless some of them during working hours' would play practical jokes on their fellow workmen, especially if such men were red blooded Americans.”

Our conclusions are that the injury which resulted in the death of Petrolia were received in the course of and arose out of his employment and that consequently his dependents should: recover.

For the reasons assigned the judgment appealed from is reversed and it is now ordered that there be judgment in favor of plaintiff herein, Mrs. Regina Schexneider, widow ,of Anthony Petrolia, for the common benefit of herself and her children Anthony, Jr., Junius Sam, Regina and Madeline Petrolia and against-' the defendant, the General American Tank Car Corporation, Ltd., of Louisiana, for compensation under the terms of the Workmen’s Compensation law for three hundred weeks beginning June 17, 1925, at the rate of ten and 53-100 ($10.53) per week with

legal interest upon each installment from its due date and all costs.


text:
    No. 9308
    Orleans
    HIGGINS MANUFACTURING CO., Appellant, v. SAM STONE & SONS, ET AL.
    (June 7, 1926. Opinion and Decree.)
    (July 5, 1926. Rehearing Refused.)
    (Oct. 5, 1926. Writs of Certiorari and Review Denied by Supreme Court.

      (Syllabus try the Court.)

    1. Louisiana Digest — Builders and Buildings — Par. 9; Obligations — Par. 104.
    Where plaintiff agrees to screen “five cottages at West End” and he supplies | screen doors of such thickness as are appropriate to the “rabbets” or grooves fixed for the accommodation of the screen doors by the builder of the cottages, he will be held to have complied with his contract. Plaintiff is under no obligation to criticise the “rabbets” as too small and insist upon their being made larger in order that a larger screen door may be installed as a better door for the purpose.
    Appeal from Civil District Court, Division “A”. Hon. H. C. Cage, Judge.
    Action by Higgins Manufacturing Co. against Sam Stone and Sons et als.
    There was judgment for defendants and plaintiff appealed.
    Judgment reversed.
    Milling, Godchaux, Saal & Milling; E. D. Saunders, of New Orleans, attorneys for plaintiff, appellant.
    E. M. Robber, J. J. Reilley, H. G. Buckley, P. M. Milner, Hey Mooney, John C. Foster, of New Orleans, attorneys for defendant, appellee.
   WESTERFIELD, J.

Plaintiff, a Kentucky corporation, brings this suit against Henry G. Bulkley, a resident of Cleveland, Ohio, whom we shall hereafter call the “owner”; Sam Stone and Son a partnership doing business in the City of New Orleans, and composed of Sam Stone, Jr. and John Stone, hereinafter referred to as “contractor” and the Globe Indemnity Company of New York, hereinafter called “surety” in solido for the sum of $426.69.

The petition alleges that sometime prior to December, 1917, the owner entered into a contract with the contractor to erect a number of buildings on the West End road near Metairie Cemetery; that the surety executed a bond in conformity with the provisions of Act 262 of 1916, to protect the owner, contractors and workmen engaged in the construction of the houses contracted to be built; that petitioner entered into an agreement with the contractor to screen the buildings for the sum of $426.69; that the screens were furnished and installed in accordance with the agreement, but payment was refused; that the contract and bond were not recorded as required by law and that consequently the owner is responsible to petitioner.

An attachment is asked for against the owner upon the ground of non-residence.

The owner answered, admitting the contract and bond, but claimed that both were properly recorded and denied liability. The contractor and surety in a joint answer admitted that the screens were bought for account of the owner but say they were rejected by the owner as not complying with the agreement covering the purchase of screens.

There was judgment rejecting plaintiff’s demand, and plaintiff has appealed.

On the trial of the case it was admitted that the contract between Bulkley and Stone and Sons was for more than $500.00; that it was reduced to writing and a bond as described in the petition given by the Globe Indemnity Company and that neither the bond nor contract were recorded in the Mortgage Office as required by Act 262 of 1916.

Plaintiff’s contract was in the form of a proposal and acceptance as follows:

“Dec. 8th, 1917.

“Messrs. Sam Stone, Sr. and Co.,

“New Orleans, La.

“Gentlemen:

“I beg to submit the following estimate for screening the five cottages at West End.

“I will furnish and install' complete' the following screens: 90 sliding screens for double hung windows" with cypress frames, mortised and tenoned, with 16 mesh galvanized netting, black enameled, attached to frames with flush mouldings and finished to correspond with surrounding woodwork. These screens will be on guides extending the full length of opening, so that screen may be used either at top or bottom of sash. Each screen to be equipped with 'brass shoe springs and 3 bronze loop lifts.

“I will also furnish 45 screens for double, casement windows, each pair of screens to be hung on loose pin hinges and furnished with brass spring fasteners. Same construction and netting as for the double hung window screens.

“I will also furnish double screens for the 18 doors, same construction as casement screens and with brass latches. Finished to correspond with surrounding woodwork.

“Also one single door, of same construction as the double doors.

“Also includes all openings in the five cottages, installed complete in a workmanlike manner, for the sum of four hundred and twenty-six and 69-100 dollars.

“Terms of payment 50 per cent upon installation and balance in thirty days thereafter.

“If desired, the casement windows can be fitted with double sliding screens instead of hinged screens, at the same price.

“Very truly yours,

“The Higgin Manufacturing Co., “By Edwin Hazard, “Sales Agt.

“Accepted Dec. 19th, 1917.

“Sam’l Stone and Son,

“By Jno. O. Stone.”

The first contention made by defendant was that the screens were not “galvanized netting, black enameled” as provided in the contract. The evidence is to the contrary, as was held by the trial court in his reasons for judgment, though the learned judge found against plaintiff upon another point.

The next conteñtion, the one which prevailed with the court, a qua, was that plaintiff should have supplied screen doors of a thickness of 1% inches instead of % of an inch as was done. It will be observed that no dimensions are given in the contract, but, it is argued, that in that situation, the custom of the ' trade controls, and there is considerable testimony in the record to the effect that, in the local market, when .screen doors are ordered without any mention of thickness that it is customary to supply a door of the thickness of 1 ys inches. There is also testimony to the effect % of an inch is too thin for screen doors because with that thickness there is a tendency to warp. However, jt is also proven that screen doors of % of an inch are sometimes used and one dealer testified that he carries doors of that size in stock and sells quantities of them. This fact, was recognized by the judge a quo, who was of opinion that the evidence established that a door of the thickness of % of an inch represented the worst door that could be tendered on a contract for screen doors, without specification of thickness, and that a door of 1% inches represented the best, and upon the authority of Art. 2156' R. C. C., he held that plaintiff had not complied with his agreement. The article referred to reads as follows:

“If the debt be of a thing which is determined only by its species, the debtor, in order to discharge, is not bound to deliver it of the best kind, but he cannot tender it of the worst.” Strahorn-Hutton-Evans Commission Co. vs. Red River Oil Co., 104 La. 675, 29 South. 265; American Brewing Co. vs. Artigues, 147 La. 155, 84 South. 571; Victor Morano vs. Alfred Shaw et al., 23 La. Ann. 379; 12 Ct. App. 351.

We would be in complete accord with this finding, were it not for the fact the contract we are considering does not, in our opinion, call for the delivery of “a thing ' determined only by its- species”. Such would be the case, if plaintiff had undertaken to sell a number of screen doors and in that event evidence of custom and understanding of the trade as to what was meant by a “screen door” when no dimensions were given would be pertinent as giving light upon ambiguous stipulations in the agreement.

R. C. C. 1954: “Usage. Whatever is ambiguous is determined according to the usage of the country where the contract is made.”

But this contract is clear, and must be considered in relation to R. C. C. 1963:

“Clear Intent Not Modified By Equity, Usage or Law. When the intent of the parties is evident and lawful, neither equity nor usage can be resorted to, in order to enlarge or restrain that intent, nor can any law operate to that effect, unless it be some prohibition or other provision, which the parties had no rights to modify or renounce.”

The plaintiff agreed to screen “the five cottages at West End”, and not to supply a number of screen doors and windows of a certain length and width with the third dimension unspecified.

The record shows that when called upon to install the screens in the five cottages the grooves on the doors for the accommodation of the screens were from one inch to one inch and one-sixteenth in width. This arrangement, we are advised is called the “rabbet”. The rabbets, therefore, were in no instance wider than 1-1/16 inches. There is no dispute in the testimony that the “rabbet” must be wider than the screen door consequently the screens could not be 1% inches thick, for they would then extend beyond the “rabbet”, and all witnesses are agreed that this would not do. Consequently in screening “the five cottages at West End” plaintiff must provide a screen door suitable to the “rabbet” 'of the door as lie found it. One witness says he should have complained to the contractor that the “rabbet” was too small and have it made larger. This suggestion hardly merits discussion. We can not charge the the screen contractor with responsibility for size of the rabbet. His business under his contract was to make screens to fit the rabbet as established by the contractor.

Moreover, the buildings were of cheap construction and plaintiff asked to make his bid as cheap as possible. It therefore appears that the contractor established his rabbet to accommodate the cheap screens. Besides, the owner, who is claimed to have rejected the screens, did not testify by commission or otherwise. The screens, some four years after they were installed when the case was tried below, were still in the cottages and we surmise are still there, as there is no pretention that they were removed.

We are of the opinion that the plaintiff should recover.

The owner by a supplemental answer asks that he be given judgment against the surety for such sum as he may be condemned to pay plaintiff by reason of his failure to record his contract and bond. In this connection it was at first argued that the bond had not been offered in evidence and that no judgment could be based thereon. But we find that it is admitted that a bond was given as set forth in the-petition.

For the reasons assigned the judgment appealed from is reversed and it is now ordered that there be judgment in -favor of plaintiff and against the defendants Sam Stone and Son, Sam Stone and John C. Stone and Henry G. Bulkley in the full sum of $426.69 with interest thereon from, March 1, 1918, and all costs, in solido; that the writ of attachment sued out against Henry G. Bulkley be maintained and plaintiff’s lien and privilege on the property seized be recognized and that the property attached be sold and petitioner’s claim be paid with preference and priority over all others out of the proceeds.

It is further ordered that Henry G. Bulkley have judgment against the Globe Indemnity Company for the sum of $426.69 with interest and costs in such amount as he may be required to pay under this judgment.


text:
    No. 9319
    Orleans
    GULF FINANCE AND SECURITIES CO. v. ATLAS ASSURANCE CO., Appellant
    (July 19, 1926 Opinion and Decree.)
    (August 16, 1926. Rehearing Refused.)
    1. Louisiana Digest — Insurance—Par. 175, 181.
    In order to recover on a policy of insurance against theft of an automobile the plaintiff must establish with reasonable certainty that the automobile was stolen.
    Appeal from Civil District Court. Hon. E. K. Skinner, Judge.
    Action by Gulf Finance and Securities Co. against Atlas Assurance Co.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed.

      Spencer, Gidiere, Phelps & Dunbar, Sumter D. Marks, Jr., of New Orleans, attorneys for plaintiff, appellee.
    St. Clair Adams, of New Orleans, attorney for defendant, appellant.
   CLAIBORNE, J.

By an act before L. P. Beard, notary, dated October 26, 1921, the N. O. Motor Company sold to Frank Di Giorgio a Ford chassis car, motor No. 5,366,660.

The price of sale was $665.65, of which the purchaser paid cash $221.89 and for the balance, $443.76, he furnished twelve notes of $36.98 each, payable to the order of the Automobile Finance and Securities Company on the 26th of November, 1921, and on the 26th day of each of the next ensuing eleven months, 'the last note payable on October 26, 1922; that petitioner acquired nine of said notes, the first payable on February 26, 1922, and the last in October, 1922, all secured by mortgage on said automobile; all of which are due a'nd unpaid.

That on October 27, 1921, the Atlas Assurance Company, defendant herein, insured the said automobile in favor of said Frank Di Giorgio, loss if any payable to the Automobile Finance and Securities Co., now the Gulf Finance and Securities Co., to the extent of $480.00 against "theft, robbery or pilferage”, “excepting the wrongful conversion, embezzlement, or secretion” by said Di Giorgio.

That on February 20, 1922, the said automobile was stolen from Di Giorgio by persons unknown; that at the instigation of the defendant, plaintiff filed suit against Di Giorgio to seize said auto and to secure payment of said notes at a cost so far of $11.00; but plaintiff was unable to find said auto.

That the 'defendant denies liability on the ground that said auto was not stolen.

Plaintiff concludes by praying judgment against the defendant for $332.82 with interest costs, etc., and for $11.00.

The defendant admitted the insurance, admitted that Di Giorgio had reported the theft of the car, admitted that it had denied liability, but denied all the other allegations of the petition, especially the allegation that the auto had been stolen.

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

We have séen that the insurance of the defendant is against theft, “excepting the wrongful conversion, embezzlement, or secretion by” Di Giorgio; whatever would debar Di Giorgio from recovery against the insurance company would likewise debar the party to whom the loss is payable. Matthews vs. General Mutual Ins. Co., 9 La. Ann. 590.

The burden was upon the plaintiff, therefore, to prove that the auto had been stolen, since that was the condition of the defendant’s policy and liability.

The plaintiff attempted to make that proof by the testimony of two witnesses.

Frank Di Giorgio, the maker of the notes and the party insured, does “not understand very good English”, and expresses himself in very bad English. He testified that the car was stolen from him on or about February 21, 1922; he and his wife and his mother-in-law on that night between 8 and 9 o’clock got into his car and visited Cantana and Muso, friends of theirs, at their home, 833 St. Claude street; they all came from Sicily and had known each other there; when Giorgio bought the car it was a truck and he turned it into a touring car in January, 1922; it bore the number 5,366,660; when they went into Muso’s house they left the car outside; when they came out it was gone. He went around the block with Cantana and Muso to make search for the auto.

Antonio Muso says that he is a shoemaker, at No. 932 N. Rampart; when he got back at his home, 833 St. Claude, he saw the car in front of the door and when he walked in he saw Giorgio and his wife and baby; they remained there about a half hour; he had not seen him for almost a year; and when they went out the car was missing; the car that was stolen was a touring car and had never been a truck. This witness says nothing of Giorgio’s mother-in-law, nor of Cantana.

Frank Cantana says that when Giorgio came to his house he was at the front door; Giorgio was in an auto; he left it outside. He was asked:

“Q. Was it there when he came outside afterwards?

“A. Yes, sir; it was there.”

No other questions were put to him nor was he cross-examined.

All these three witnesses testified through interpreters.

The plaintiff produced no other evidence of the theft of the car. Neither Giorgio’s wife nor his mother-in-law who, Giorgio says, were in the car with him, was produced as witnesses.

We must take in consideration the fact that Giorgio is an interested witness. If the plaintiff convinces the court that the car was stolen and thus wins its suit, the defendant will be made to pay Giogio’s notes; and if the car was not stolen, Giorgio will be richer by one car.

On the other hand, the defendant proves that on March 7, less than two weeks after the plaintiff alleges the car was • stolen, an insurance adjuster called at the place of business of Giorgio on a mission of investigation, and there examined a car in his possession which was a touring car that had been changed from a truck; the number on the car was 4,366,651; but there was no doubt that the first number, “4”, and the last two numbers, “51”, had been substituted for three original numbers which had been erased and altered; the other numbers were intact. The erasure and substitution are not contested.

Nor can they be because the car stolen and the one in possession of Giorgio are both of the. same year models, which is impossible, considering the numbers of the two cars.

Asked when he acquired this second auto, Giorgio produced an act of sale dated March 7, 1922, eleven days after the alleged theft, from one “Mike Capone” to him of one Ford touring auto, No. 4,366,651 for $300.00 cash, being the same car Capone acquired from the N. O. Motor Car Co., August 25, 1921.

Being asked where Capone lived Giorgio answers: “I do not know.”

“Q. Have you ever seen the man again from whom you purchased the car?

“A. No, sir, I never saw him.”

Nor does it -appear - that the plaintiff made any effort to Summon Capone or any one of the two witnesses to the act of sale, or any officer of the N. 0. Motor Car Co. to establish the reality of either one of the two alleged sales.

Another circumstance that weakens Giorgio’s claim is the fact that he sold this so-called Capone car some time before the trial of this case; but he does not know the name of the purchaser, nor his address, nor the date of the sale. All this after he had been told that' certain number on the car had been effaced and others substituted in their place.

Objection was made to the admission in evidence by the defendant of the testimony of C. W. Smith, taken under commission, on various grounds. We do not consider it necessary to pass upon the objections, as we are of the opinion that plaintiff has not made out a case.

We are of the opinion that the plaintiff has failed to establish with sufficient certainty that the automobile was stolen.

It is therefore ordered that the judgment herein be reversed and set aside, and it is now ordered that there be judgment in favor of defendant rejecting plaintiffls demand at its cost.