text:
    No. 2094
    Second Circuit Appeal
    JAMES NUGENT v. MRS. ALICE B. JORDON ET AL.
    (January 12, 1925, Opinion and Decree)
    (March 2, 1925, Rehearing Refused)

      (Syllables by the Editor.)

    1. Louisiana Digest — Injunction—Par. 1, 8.
    Injunctions are only designed to prevent an actual or impending injury, and defendant’s mere passage over a lane during the time it is being left open for the use of the general public could not possibly injure plaintiff.
    (Code of Practice, Article 298. Editor’s note.)
    2. Louisiana Digest — Injunction—Par. 10, 22.
    Where a plaintiff’s pasture was not enclosed with a lawful fence as provided by ordinance of the police jury of Rapides parish, and hogs of many owners went in it at their pleasure, if any damage was done it was impossible ^to tell whose hogs did it.
    (ON APPLICATION FOR A REHEARING)
    3. Louisiana Digest — Injunction—Par. 10, 18, 22; Petitory and Possessory Actions — Par. 47.
    Where plaintiff shows no actual possession of the property by mere civil or legal possession, he cannot recover under Article 49 of the Code of Practice. Plaintiff cannot, in a possessory action, enjoin defendants from continuing to use as a passage a lane which they have been using as such passage for several years, which lane was left open for use generally by the public; and of plaintiff’s part of which he is not and has not been in actual possession during said time.
    (Code of Practice, Article 49, Par. 2. Editor’s note.)
    Appeal from Thirteenth Judicial District Court, Parish of Rapides. Leven L. Hooe, Judge.
    REYNOLDS, J.
    Action to prevent by writ of injunction defendant from passing over an open lane dividing two estates and to require defendants to prevent their hogs from entering on plaintiff’s pasture enclosed by only a three-barbed-wire fence — and for damages.
    Defendant denied liability as to damages; claimed that they had a right to let their hogs run at large and to use as a passage the lane that had been left open for the use of the owners of the adjoining estate for more than thirty years.
    There was judgment for the defendant and plaintiff has appealed.
    Judgment affirmed.
    John H. Mathews and Lamar Polk, of Alexandria, attorneys for plaintiff, appellant.
    F. H. Carter, of Alexandria, attorney for defendant, appellee.
   OPINION

In this case plaintiff left an open strip of ground six feet in width between his estate and the estate adjoining, on which a like strip was left; these strips together have been used for more than thirty years as a roadway by all land-owners in that neighborhood. The plaintiff now seeks by injunction to prevent the defendant from passing over said lane. He does not allege in his petition for injunction either of the ten enumerated grounds contained in Article 298 of the Code of Practice; neither does he allege or attempt to prove an actual or impending injury.

Injunctions are only designed to prevent an actual or impending injury, and defendant’s mere passage over this lane during the time it is being left open for the use of the general public could not possibly injure plaintiff.

Ronnandez vs. New Orleans, 29 La. Ann. 271; Conwell vs. Commission Council, 153 La. 801, 96 South. 657

The injunction, in so far as it seeks to prevent the defendants from passing through the open lane, must be denied.

The injunction, in so far as it seeks to compel defendants to prevent their hogs from entering plaintiff’s pasture, must also be denied. The police jury of Rapides parish have passed an ordinance, which was introduced in evidence, defining what constitutes a lawful fence, and under general custom all hogs and stock are allowed to go upon any lands not enclosed by such a fence. It is not contended that plaintiff’s pasture is enclosed by such a lawful fence.

Plaintiff’s claim for damages must also be denied.

Plaintiff’s pasture was not enclosed with a lawful fence as provided by ordinance of the police jury of Rapides parish and hogs of many owners went in it at their pleasure. If any damage was done it was impossible to tell whose hogs did it.

When asked what passing over his strip of ground was worth, plaintiff said it ought to be worth $50.00 if it is worth anything.

From testimony, page 22, we quote from plaintiff’s evidence:

"Q. How much do you say the use of this strip of ground was worth?
“A. I don’t know.
“Q. What do you estimate it is worth
"A. I don’t know.”

Under the evidence we are unable to fi any amount of damage.

For these reasons the judgment appealed from is affirmed at plaintiff’s cost.

ON APPLICATION FOR REHEARING

CARVER, J.

The able counsel for plaintiff very earnestly presses an application for rehearing herein.

Besides the claim for damages, which is virtually abandoned in this court, the relief asked for in the petition is an injunction prohibiting the defendant from entering on or traveling over a tract of 420 acres, more or less, described in the petition, of which the plaintiff declares himself owner and of which he says he is in actual, corporeal possession, and also enjoining them from putting, letting, permitting or allowing their hogs to be in the pastures or fields on said land.

He does not ask to be decreed owner of the land.

The allegations upon which plaintiff predicates his right to the injunctive relief prayed for are as follows:

That defendants have “continuously for the past year gone upon and traveled over portions of said land in vehicles, on horseback and afoot, and made ways and roads on- said land for themselves to travel upon and use; and have used and traveled on and over petitioner’s private roads on said land.”

Damages are claimed, both for the alleged trespasses in entering on and traveling along the alleged private ways and roads and also for the injury alleged to have been caused by the hogs.

The defendants in their answer deny trespassing on plaintiff’s land, but admit using a lane, one-half of which was given by plaintiff, which lane, they allege, they had been using for thirty years and which use, they say, is legitimate and not an act of trespass.

They further allege that the law does not require the keeping up of stock in that vicinity and that plaintiff’s fence is not a lawful one according to the standard prescribed by the police jury.

They do not pray to be decreed entitled to a servitude of way or passage but merely ask that plaintiff's demands be rejected.

Under these pleadings it is clear that the suit is. possessory in its nature and that .questions of title are not involved.

As to the lane:

Plaintiff’s counsel confidently argues tha he is clearly entitled to the injunction asked for, prohibiting defendants from using the lane under the express terms o paragraph 5 of Article 298, Code of Practice, which reads as follows:

“298. The injunction must be grante and directed against the defendant him self in the following cases: * * *
“5. When the defendant disturbs the plaintiff in the actual and real possession which such plaintiff has had for more than one year, either of a real estate or of a real right, of which he claims either the ownership, the possession or the enjoyment.”

Article 49, Code of Practice, reads as follows:

“In order that the possessor of a real estate, or one who claims a right to which such estate may be subjected, may be entitled to' bring a possessory action, it is required:
“1. That he should have had the real and actual possession of the property at the instant when the disturbance occurred; a mere civil or legal possession is not sufficient.
“2. That he should' have had that possession quietly and without interruption, by virtue of one of the titles prescribed in the 47th article, for more than a year previous to his being evicted; provided the possession of less than one year be sufficient, in case the possessor, should have been evicted by force or by fraud.
“3. That he should have suffered a real disturbance either in fact or in law
“4. That' he should have brought his suit, at the latest, within the year in which the disturbance took place.
“When the possession of the plaintiff is accompanied with all those circumstances, it matters not whether he possesses in good or in bad faith, or even as a usurper, he shall nevertheless be entitled to his possessory action.”

Although plaintiff alleges broadly that defendants used private roads and ways over the described land, there is no proof whatever that they have ever used or ever intended to use any such ways or roads except the lane between plaintiff’s property and that of his neighbor’s, five or six feet of which the plaintiff left out for use as a lane when' he fenced his land in 1917. Previous to that time the defendants had used a road across the land near this lane for many years, thirty-five at least, as shown by the testimony of plaintiff himself. This old road the plaintiff fenced up when he established the lane in conjunction with the adjoining owner.

It seems clear to us that plaintiff has not the necessary possession of that part of the lane belonging to him to enable him to maintain a possessory action.

According to Code of Practice, 49, it is necessary that he should have had real and actual possession; mere civil or legal possession not being sufficient; and also that he should have had this possession quietly and without interruption for more than one year previous to the disturbance.

He shows no actual possession in this case but merely civil or legal possession.

Furthermore, his possession has not been quiet and without interruption; for if the use of this lane by defendants is a disturbance, or interruption of his possession, it has been going on for five or six years.

The language of the court in Larcade vs. Iseringhausen, 153 La. 978, 96 South. 830, is appropriate on this branch of, the case.

The plaintiff therein sought to enjoin the defendant from executing a judgment decreeing him, defendant, entitled to a right of passage over certain lands claimed by plaintiff and ordering plaintiff to remove obstructions therefrom' on the ground, amongst others, that the plaintiff had had actual possession of the land embraced in the road for more than one year previously. The court says:

“While plaintiffs allege the actual possession ,of said roadway for one year previous to their being disturbed, they have failed to set forth in their petition that they had su'ch possession quietly and without interruption, as required by paragraph 2 of Article 49 of the Code of Practice. Because of the omission of an allegation so requisite to the maintenance of a possessory action, plaintiffs’ petition necessarily fails to disclose a ■ cause of action.”

'Counsel cites various authorities on the proposition that a servitude of way or passage cannot be acquired by prescription but can only be acquired by written title. We unreservedly concede the soundness of this proposition, but under the pleadings in this case that question is not involved. ■ The lower court did not decree that defendants had acquired such servitude nor do we so decree, nor do the defendants even ask it. We merely decide, on ■ this branch of the case, that plaintiff cannot, in a possessory action, enjoin defendants from continuing to use as a passage a lane which they have been using as such passage for several years, which lane was left open for use generally by the public; and of plaintiff’s part of which he is not and has not been in actual possession during said time.

As to the hogs:

Plaintiff alleges that defendants put their hogs in his pasture, but there is no proof to support this. They are allowed by defendants to r.un at large and they go there of their own accord as do the hogs of others in the neighborhood.

At common law it seems the owner o cattle must keep them from going on th lands of another, whether fenced or not. Some of the states have adopted this rul and others- have not.

3 C. J., page 127, paragraph 396.

In Louisiana the matter has been relegated, to the discretion of the police juries.

Revised Statutes, 2743, as amended by Act 202 of 1902.

In the North Louisiana parishes it is usual for cattle to run at large unless "no £ence Jaws,”, a,s .they are called,, are-adopted. In this case it is not claimed that such a law has been adopted in Rapides parish. On the contrary, the ordinance of the police jury introduced in evidence prescribes as a legal fence one that shall be hog-proof. The plaintiff’s fence, by his own admission, is not of that kind.

In Russell vs. Fernandez, 131 La. 78, 59 South. 20, the court says:

“Plaintiff’s grove was not fenced; but whether it is or not a material circumstance we are unable to say, as the record fails to show what the law, or even the custom, was with regard to fences in that locality; that is to say, which, the cattle or the fields, were required to be fenced in, though the inference, from the evidence as a whole, would be that it was the former.
“Under these circumstances there is too much uncertainty as to the amount of damage done, and as to what part of it was done by defendant’s cattle, and even as to the existence of legal fault on the part of defendant, for plaintiff to be allowed to recover anything.”

This is a clear intimation that if the law does not require the fencing of stock the owner thereof is free of fault in permitting them to run at large. This accords with our opinion.

Plaintiff also cites various other authorities, none of which we think applicable to the issues of this case.

In Delta Duck Club vs. Barrious, 135 La. 358, 65 South. 489, the plaintiff was held entitled to an injunction enjoining defendant from hunting and trapping on its land. The action seems to have been petitory.

In Baldwin vs. Delfares, 130 La. 711, 58 South. 519, defendant was enjoined from cutting timber on plaintiff’s land.

In Heine vs. Merrick, 41 La. Ann. 194, 5 South. 760, 6 South. 637, the injunction was to prevent interference with the right to tear down and re-erect a party Wall.

In Dudley vs. Tilton, 14 La. Ann. 283, the injunction was to prevent the defendant from raising the level of his sidewalk without authority from the city council which act of leveling would have injured the value of plaintiff’s adjoining property

In Wemple vs. Eastham, 144 La. 957, 81 South. 438, the injunction was to prevent interference hy violence with the right of a party to drill on land leased from the state.

As to enjoining defendants from passing over plaintiff’s land other than the lane above mentioned, counsel has not referred us to any authority and we know of none entitling him to such injunction; there being no proof to show that defendants have interfered with his possession or ever intend to interfere with such possession by such passing over same.

Rehearing refused.


source: Caselaw Access Project

author: CARVER, J.

license: Public Domain

text:
    No. 2057
    Second Circuit Appeal
    J. U. LACOUR v. RED RIVER, ATCHAFALAYA AND BAYOU BOEUF LEVEE DISTRICT
    (January 12, Certified to Supreme Court.)
    (June 11, 1925, Opinion and Decree.)
    Note: See Supreme Court decision, 158 Lai 737, 104 South. 636.
    Appeal from Thirteénth Judicial District Court of Louisiana, Rapides Parish, Hon. John A. Williams, Judge.
    Porterie & Bordelon, of Marksville, attorneys 'for' plaintiff, appellant.
    Cleveland Dear, of Alexandria, attorney for defendant; appellee.
   CARVER, J.

In this case, by reason of instructions received from the Supreme Court of Louisiana, to which court the Judges of this court certified the case for instructions, it is decreed that the judgment of the Lower court be affirmed.


author: ODOM, J. REYNOLDS, J. CARVER, J.

text:
    No. 2091
    Second Circuit Appeal
    PRESTON BRASHER v. RICHARD H. GRANT
    (January 12, 1925, Opinion and Decree)
    (May 11, 1925, Case Remanded for a New Trial)
    (Rehearing Granted Feb. 26, 1925.)

      (Syllabus by the Editor.)
    1. Louisiana Digest — Appeal—Par. 625.
    The finding of the trial judge on matters of fact being clearly correct is affirmed.
    2. Louisiana Digest — Appeal—Par. 715.
    A case will be remanded for more evidence where the purposes of justice are thereby subserved.
    Appeal from the Thirteenth Judicial District Court, Parish of Rapides. Hon. Leven L. Hooe, Judge.
    This is a suit to recover money for furnishing and installing plumbing fixtures.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Thornton, Gist & Ritchie, of Alexandria, attorneys for plaintiff, appellant.
    J. H. Overton, of Alexandria, attorneys tor defendant, appellee.
   ODOM, J.

Plaintiff sues defendant to recover the sum of $481.50 alleged to be due for the furnishing and installation of plumbing fixtures in a residence of defendant’s.

Defendant answers, admitting that he owed plaintiff the sum of $290.50, which amount was refused.

He denies that he is due plaintiff more than $259.50.

The case went to trial and the District Judge rendered a judgment in favor of plaintiff for the sum of $314.00, and recog'nized plaintiff’s privilege on the building and the lot on which the .same is situated.

There is involved in the case only a question of fact. We have examined all the documents filed in evidence and have read all the testimony of all of the witnesses. We consider that the testimony of Gremillion throws no light upon the case at all. He contradicts himself. If his were the only testimony in the record we could not be sure what judgment to render. Nor does the testimony of Mrs. M. M. Morgan assist us any. She overheard some of the conversation between plaintiff and defendant, but very likely did not hear it all, and she could not, under the circumstances, we think, know whether the figures given by Brasher to Grant included installation or not.

On the point at issue there were no other witnesses, except plaintiff and defendant. They contradict each other. No do the documents throw much light on the question. The litigants dispute each other As only a question of fact is involved, w are going to leave these parties where the District Judge left them. He had the advantage of knowing the witnesses, of seeing them and hearing them testify.

We cannot say that he has erred in his findings.

It is therefore ordered, adjudged and decreed that the judgment appealed from be affirmed, defendant to pay all cost.

ON APPLICATION FOR REHEARING

REYNOLDS, J.

Rehearing granted this day, February 26, 1925.

ON REHEARING

CARVER, J.

The court is of the opinion that the purposes of justice will be sub-served by remanding the case for a new trial to enable both parties to introduce further testimony in support of their respective pretensions, especially testimony as to the memorandum purporting to be prices- quoted by plaintiff to defendant.

It is decreed that the. judgment of the lower court be and the same is set aside and the case is remanded to the lower court for a new trial.


text:
    No. 2174
    Second Circuit Appeal
    ED McMANEMIN v. MALONE AND RAYNOR J. B. DAVIS, Third Opponent
    (Jan. 12, 1925, Opinion and Decree.)
    (Jan. 19, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    I. Louisiana Digest — Appeal—Par. 278.
    An appeal bond and transcript in a devolutive appeal filed within three days after the return day is timely especially where there is no inconvenience or injury alleged by appellee.
    Appeal from Parish of Rapides, Hon J. A. Williams, Judge.
    T. F. Hunter of Alexandria, attorney for plaintiff, appellant.
    Hawthorne & Stafford of Alexandria, attorneys for defendant, appellee.
   ON MOTION TO DISMISS

CARVER, J.

Appellee moves to dismiss the appeal on the ground that the Appeal Bond and Transcript were both filed too late. •

The appeal was made returnable March 5, 1924; the bond was filed in the lower court March 7, 1924; and the transcript was filed in this court March 8, 1924.

Being within the three days of grace allowed by law after the return day, this was in time.

Bouligny vs. White, 4 La. Ann. 31.

Lopez vs. Suhugne, 114 La. 1004, 38 South. 810.

The syllabus in the Boligny case reads:

“In a devolutive appeal, when no inconvenience o.r injury to the appellee is alleged from the delay, an appeal will not be dismissed on account of the delay in giving the appeal bond, if the bond was filed before the expiration of the three days allowed for filing the record of appeal after the return day had expired.”

The appeal in this case is devolutive and no inconvenience or injury is alleged by appellee.

The syllabus in the Lopez case reads thus:

“Appellants have three judicial days after the return day within which to file the transcript, whether the court is in session on that day or not.”

The motion to dismiss is denied.


author: ODOM, J.

text:
    No. 2038.
    Second Circuit Appeal.
    MRS. ALBERTA L. MOORE v. BUNKIE HOUSEHOLD OF RUTH No. 2154.
    (January 12, 1925, Opinion and Decree.)

      (Syllabus hy the Editor)

    1. Louisiana Digest, Associations — Par. 14, 16.
    One expelled from a fraternal order must exhaust her remedy within the order before bringing her case into court. Merely to take an appeal within the order is not to exhaust one’s remedy. The appeal should be prosecuted.
    (Civil Code, Art. 2315. Editor’s note.)
    Appeal from the Fourth Judicial District Court, Parish of Avoyelles, 1-Ion. S. Allen Bordelon,. Judge.
    This is a suit for reinstatement to membership in a fraternal order and for damages for expulsion.
    There was judgment for defendant, and plaintiff appealed.
    Judgment affirmed.
    Wade Normand, of Marksville, attorney for plaintiff and appellant.
    W. E. Couvillon, of Marksville, attorney for defendant and appellee.
   ODOM, J.

Plaintiff alleges that she was a member of the Bunkie Household of Ruth No. 2154, a. fraternal organization; that another member of that organization filed charges against her, without just provocation, and that on May 7, 1921, she was expelled from the order, and that “feeling aggrieved at the action of the Bunkie Household of Ruth No. 2154, she then appealed to the District Grand Household of Ruth No. 26 at Monroe, La., and the case was remanded on account of the insufficiency of the evidence. That subsequently, in due time, your petitioner appealed to the Household of Ruth at Philadelphia, Pa., the parent order, and no action has ever been taken”.

She further alleges that the action of the defendant organization was “malicious, vindictive and unwarranted, and was .intended to harass, vex, annoy and cause damage to petitioner’s reputation, character and social standing in the community in which she lived”.

She prays for damages in the sum of $600.00 and “that she he reinstated to membership” in said organization.

Defendant tendered an exception of no cause" and no right of action, which was sustained by the lower court, the suit was dismissed and plaintiff has appealed.

The exception of no cause and no right of action is based upon the proposition that plaintiff’s petition does not show that she has exhausted he'r remedy for relief within the organization to which she belonged and from which she was expelled.

It will be noted that plaintiff alleges that she appealed from the action of the lower lodge in expelling her to the Grand Lodge at Monroe and that the Grand Lodge remanded the case on account of the “insufficiency of the evidence”, and that subsequently, she does not say how long, but “in due time”, she appealed to the “Household of Ruth in America in Philadelphia, Pa.,' and that no action has ever been taken on said appeal”.

In the case of Baff vs. Trevelyan et al., 122 La. 174, 47 South. 455, et seq., the court said:

“The weight of authority, however sustained to propositions that an expelled member of a Fraternal Order, a Mutual Benefit Association, an incorporated labor union, an unincorporated club, etc., must exhaust his remedy (provided it appears to be reasonably sufficient) within such organization, including the exercise of the right of appeal before he can be heard in the courts.”

And in Corpus Juris, Yol. 5, page 1359, the law is stated thus:

“Before applying to a court of equity for reinstatement, a disfranchised member must, as a rule, exhaust all remedies available to him under the laws of the association. But this rule does not apply where the association, in suspending or expelling a member, acted entirely without jurisdiction, it has been held, or where the remedy provided by the laws of the society is not available to the member, or there is an extremely remote possibility of its proving effective, and the rule is, of course, inapplicable where no remedy is afforded by the laws of the association.”

In the absence of an allegation to the contrary, and in view of the fact that when plaintiff was expelled from the order, she subjected herself to the jurisdiction of the Lodge by taking an appeal to the higher, parent organization, we must assume that she considered her remedy within that organization was “reasonably sufficient”, and that the Lodge did not act entirely without jurisdiction in expelling her, and while there is no allegation as to what the laws of the order on the subject are, it is evident that plaintiff understood that there were laws on the 'subject and that these laws were available to her and that there was a probability that the remedy afforded by the laws of the order would prove effective in her case, because she alleged that she appealed.

We are therefore of the opinion that the general rule laid down by our court in the Baff- case cited supra and as stated in Corpus Juris, is applicable in the case at .bar.

Therefore, the only question for us to determine is whether the petition shows that plaintiff exhausted her remedy within the organization before resorting to the court.

We do not think it does.

Plaintiff alleges that the Grand Lodge “remanded” the case on account of the insufficiency of the evidence. Just what it means for the Grand Lodge of the Household of Ruth to “remand” a case on account of the insufficiency of the evidence, we are not informed, but it seems to us that it can mean nothing other than that tl^e Grand Lodge failed to sustain the action of the Local Lodge in expelling the plaintiff on the ground that the proof of the charge was not sufficient, and .that in a sense the action of the Grand Lodge was a reversal of the action of the Local Lodge. If this view be correct, then plaintiff is still a member, in good standing, of the. Local Lodge. There is no allegation that the. case was “remanded” with instruction's, but we are informed that the testimony was insufficient.

But whatever view may be taken - of the matter, according to the allegations of the XDetition, the case was sent back to - the Local Lodge, and there is no allegation.,that plaintiff ever requested her Lodge to take any further action in the premises. If she considered that the case was remanded for the taking of more evidence, she should have demanded that the Lodge take final action. She does not inform the court that she did that.

But she alleges that she appealed her case to the parent Lodge at Philadelphia and that no action has ever been taken. She does not inform the court how long it has been since she lodged the appeal at Philadelphia. There is nothing in' the pleadings to indicate that the lodge at Philadelphia has had sufficient time in which to pass upon the case. She does not allege that she has done all she can to have action taken. She merely, says that no action has been taken. Merely to take an appeal is not to exhaust one’s remedy by appeal. The appeal should be prosecuted. It does not appear that plaintiff did this.

We are of the opinion that according to the petition, plaintiff has not done all she should have done to have her case disposed of, and that she is therefore without .remedy in the' courts.

' The judgment of the lower court dismissing plaintiff’s suit, is affirmed at appellant’s cost on the ground that we consider that plaintiff’s petition sets out no cause of action, reserving to plaintiff the right to renew her suit upon proper allegation.


text:
    No. 2053
    Second Circuit Appeal
    H. H. HUCKABY v. A. D. LAMBERT & CO.
    (Jan. 19, 1925, Opinion and Decree.)

      (Syllabus by the Editor.')

    1. Louisiana Digest — Pleading—Par. 63.'
    A plea of prescription filed in the appellate . court is sustained where the evidence clearly shows the claim prescribed.
    Appeal from the Thirteenth Judicial District Court of Louisiana,. Parish of Rapides. Hon. J. A. Williams, Judge.
    REYNOLDS, J.
    Action on open account proved up and judgment by default. Defendant appealed and filed plea of prescription in this court.
    Judgment reversed and case. remanded.
    Geo. J. Ginsberg, of Alexandria, attorney. for plaintiff, appellee.
    Gus A. Voltz, of Alexandria, attorney for defendant, appellant.
   In this case the plaintiff 'sued on an open account and obtained judgment in the District Court on default.

Defendant appealed and in- this -court filed a plea of prescription of three years.

Citation in the case was served July 18, 1923.

The last item charged on the account is November 27, 1919.

The prescription of three years must be sustained.

No motion has been filed in this court, asking that this case be remanded to show an interruption of prescription as allowed by Article 902 C. P. under Rothe vs. Hebert, 21 La. Ann. 238, the plea of prescription must be sustained.

It is therefore ordered that the Judgment appealed from .be reversed and that there be judgment in favor of the defendant with cost in both courts.


text:
    No. 2118
    Second Circuit Appeal
    FLOYD J. WILCOX v. CENTRAL LOUISIANA MOTOR CAR CO., ET AL.
    (Jan. 19, 1925, Opinion and Decree.)
    (March 2, 1925, Amended Opinon and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Sales—Par. 112, 114, 120,. 127.
    In an action for breach of contract for failure to deliver an automobile where defendants did not offer to make delivery on demand of plaintiff, but stated that they would deliver the automobile purchased as soon as they were able to secure one, although they did not then have the factory agency of that automobile; plaintiff is entitled to the return of the money and value of automobile deposited as payment on the new automobile and cancellation of the contract.

      2. Louisiana Digest — Marriage—Par. 93.
    Under Articles 131 and 133 of the Civil Code, the husband in community is responsible for the debts of the wife contracted as a public merchant whether the business is conducted for the benefit of the community or not.
    3. Louisiana Digest — Damages—Par. 7, 8, 9.
    In a suit for damage for violation of a contract where there is no bad faith and there- is no proof of the exact money damage, a nominal amount may be allowed for the technical injury.
    Appeal from Thirteenth Judicial District Court of Louisiana, Rapides Parish, Hon. .Levin L. Hooe, Judge.
    REYNOLDS, J.
    Action by Floyd J. Wilcox to recover from defendants, Central Louisiana Motor Car Co., Mrs. Walter Lennie Smith and Mr. Walter Lennie Smith, judgment for $1,050.00 for the amounts of payments made on the purchase price of one Jewett automobile which defendants contracted to sell the plaintiff and has failed to deliver and for $500.00 damages caused to plaintiff by defendants’ breach of contract.
    Defendants deny liability for the return of the payments made and contend that they should be given time within which to make delivery of the automobile.
    Defendant, Mr. Walter Lennie Smith denies liability.
    There was judgment for $1,050.00 and $100.00 damages against both defendants.
    Defendants appealed. Affirmed.
    Peterman, Dear and Peterman, of Alexandria, attorneys for plaintiff, appellee.
    Lamar Polk, of Alexandria, attorney for defendant, appellant.
   STATEMENT OF FACTS.

The defendant, Mrs. Walter Lennie Smith, is an automobile dealer in Alexandria, Louisiana, doing business in the name of Central Louisiana Motor Car Company. There exists between her and her husband the community of acquets and gains.

On September 6, 1922, the plaintiff contracted with the defendant to buy a Jewett automobile to be delivered December 25, 1922, and signed one of defendants’ printed contracts under which plaintiff was to make stated payments and on which plaintiff made the following payments:

September 6, 1922, One Dodge Touring Car
Accepted by defendant at________________$ 450.00
Cash same date______________________________1 100.00
Jan. 3, 1923 — cash________________________________ 200.00
March 3, 1923 — cash________________________ 100.00
April 3, 1923 — cash____________________;___________ 100.00
May 3, 1923 — cash_________________________... 100.00
Making a total of________$1,050.00

On the 1st of December 1922, at the request of the plaintiff the date for delivery of said car. was changed to June 15th, 1923.

On May 22nd, 1923, plaintiff notified the defendant, by letter, that he would expect delivery of the Jewett car, on June 5, 1923, but on that date defendants failed to deliver same. Plaintiff then granted the defendants until August 1, 1923, in which to make delivery of the Jewett ear.

On August 1st, plainiff demanded the car but the defendant failed to deliver it.

On various dates plaintiff demanded from the defendant delivery of the Jewett car or the return of the payments made by him.

Defendants at no time offered to deliver the Jewett car to plaintiff.

On one occasion when plaintiff was demanding delivery of the Jewett car, defendant offered to deliver him a Chandler car, provided plaintiff would pay an additional charge of $275.00. This plaintiff refused to do.

Plaintiff alleging that defendant had defaulted on his contract and had failed to deliver him a Jewett car, and had refused to return the payments made on same. Filed this suit. Service was accepted September 19, 1923.

Defendants filed answer September 27, 1923.

In paragraph 25 defendant answers:

It has been imposible to date for defendant to deliver this particular type of car, but that they desire and will deliver such a car to plaintiff as soon as they are able to receive such a car.

The plaintiff sued for the return of the payments made by him, $1,050.00 and for $500.00 damages for defaulting' the contract.

There was judgment for the $1,050.00 and for $100.00 damages.

OPINION

The evidence in this case shows the defendant entered into a contract to deliver to the plaintiff a Jewett car and that they have received on said contract amounts aggregating $1,050.00.

That the said car was to be delivered by Dec. 25, 1922 and that the date for delivery was by consent of both parties finally postponed till August 1, 1923.

That since August 1st, 1923, plaintiff has made repeated demands on defendant for the delivery of the car, and to the date of filing of the suit defendant had never offered to deliver to the plaintiff the car called for in the written contract. The evidence shows the defendant has not owned or had in their place of business such a car since August 1, 1922. In the answer defendants express a willingness to deliver such a car as soon as they can secure one.

Under the law and the contract between plaintiff and defendant, the plaintiff was entitled in August, 1923, to the car purchased, or the payments he had made on same back.

The attorney for defendant insist with great earnestness that at this time the defendant should be allowed time within which to deliver to the plaintiff a Jewett car;' but the evidence shows that the car was to be delivered June 15th; that the defendant failed to deliver it on that date; that plaintiff on defendants’ promise to deliver it on a fixed future date, extended the date for delivery from time to time up to September 1st; that defendant failed to keep his various promises to deliver on the days fixed.

In his answer defendant did not tender or offer to deliver then and there a, Jewett car, but stated that they desired to and would deliver plaintiff a Jewett car as soon as they were able to secure one.

Under these conditions plaintiff is entitled to judgment for the amount of the payments made by him on the price of the car.

Defendant, Mr. Walter Lennie Smith, seeks to escape liability on the ground that he is in no way connected with his wife’s business as a dealer in automobiles.

Art. 131. C. C. provides in effect: That the husband in community is responsible for the debts of the wife contracted as a public merchant.

Under this Article of the Civil Code we think Mr. Smith is clearly liable for the debts of his wife contracted in the relation to her business.

Counsel for defendant contends that Article 133 C. C. means that the husband is only liable, when it is shown that the business, as a public merchant, is conducted for the benefit of the community. In this contention we can not concur. The language of Art. 131 C. C. is clear, unambiguous and we think. means exactly what it says.

As to the item of $100.00 allowed to the plaintiff for damages. Plaintiff says he was damaged in actual time lost $100.00. On Trs. page 19, plaintiff on cross examination testified:

Q. You have alleged damages in the sum of $500.00 and as I understand your testimony, you figured your time lost in the sum of one hundred dollars?
A.' Yes, sir.
Q. I will- ask you whether or not you can and desire to «estimate the other damages that you have suffered?
A. That would be hard to estimate. Really money couldn’t pay me for the worry and trouble that my wife and I went through. I imagine $500.00 would cover it. That is including the $100.00.

This evidence is not definite as to amount of damages suffered by plaintiff but under the authority of Green vs. Farmer’s Consolidated Dairy Co., Ltd., 113 La. 869, 37 South. 858, holding: When a contract is violated, though not in bad faith, and though the proof fails to establish the extent in money, of the damages thereby sustained,- nominal compensatory damages may be allowed for the technical injury. We think the $100.00 damages allowed by the lower court should be allowed.

For the reasons assigned the judgment appealed from is affirmed at defendant’s cost.


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    No. 2125
    Second Circuit Appeal
    ED McMANEMAN v. MALONE & RAYNOR INTERVENTION OF CLARENCE HOLLINGSWORTH
    (January 19, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana • Digest — Chattel Mortgages— Par. 7; Bills and Notes — Par. 233.
    The evidence, uncontradicted, that intervenor paid $65.0.00 for a chattel mortgage on three mules shows that the mortgage note was for a valid consideration and in good faith.
    Appeal . from the Thirteenth District Court, Parish of Rapides, Hon. J. A. Williams, Judge.
    This is a suit in which there was judgment for plaintiff. The intervenor claimed a chattel mortgage on three mules seized under that judgment. Judgment recognizing intervenor's chattel mortgage and privilege superior to plaintiff’s seizure.
    Plaintiff appealed.
    Judgment affirmed.
    T. F. Hunter, of Alexandria, attorney for plaintiff, appellee.
    Hawthorne & Stafford, of Alexandria, attorneys for defendant, appellant.
   ODOM, J.

On June 15, 1923, the plaintiff, Ed. McManeman, obtained judgment against Malone and Raynor and against Noah A. Malone and Leroy J. Raynor, individual members of the firm of Malone and Raynor for the.sum of $2,351.66. A writ of fi fa issued under his judgment on the same day.

While there are no returns in the record to show it, it is alleged by plaintiff in opposition and admitted by McManeman, plaintiff in the original suit that a number -of mules were seized under said writ, and were about to be sold to satisfy plaintiff’s debt.

On July 19, 1923, Clarence Hollingsworth intervened in said suit by way of Third Opposition, setting up that three of the mules seized were mortgaged to him under a chattel mortgage duly recorded. He asked that said three mules be appraised and sold separately, that his privilege thereon arising from said chattel mortgage be recognized, and that the proceeds of the sale thereof be paid to him by preference and priority over all other creditors.

McManeman, plaintiff in the original suit, answered the third opposition, setting up that third opponent’s mortgage is “null and void and of no effect and especially of no effect and against- his rights”. And he further alleged that said mortgage is a mere simulation and was given without consideration, for the sole purpose of preventing him from collecting a large sum of money which he said Hollingsworth knew Malone and Raynor owed him, and .further that the mules described in the chattel mortgage had actually been seized by the sheriff before the mortgage was recorded.

He prays that his privilege on the property seized be recognized and that the proceeds of the sale be paid to him.

OPINION.

The only question for us to decide is, was the mortgage by Malone to third opponent, Hollingsworth, given for a valid consideration and in good faith.

Only two Witnesses were sworn, Hollingsworth, the mortgagee and Malone, the mortgagor. Hollingsworth .says that he actually advanced to Malone $650.00 in cash; $100.00 in November, 1922, $100.00 in April and $450.00 on May 8, 1923 the day on which the chattel mortgage was executed. - Malone corroborates his testimony on that point. Hollingsworth said that he was a laborer and had saved his money; that on the day the mortgage was executed he had $450.00 in currency on his person and that he delivered it to Malone. Malone corroborates his testimony on that point.

Hollingsworth said he knew nothing about the suit of Ed. McManeman vs. Malone and Raynor.

Malone says the transaction was bona fide; that the parties for whom he was working had refused to advance more money to him and that he needed money with which to buy feed for his teams, etc.

There is not a syllable of testimony in the record to contradict anything said by these two witnesses. There is therefore nothing for the court to do but to accept it as true.

Counsel for McManeman urges upon the court the proposition that the story told by Hollingsworth about his having the money on his person and his having accumulated it as he says he did are unreasonable and should not be accepted as true by the court.

He urges that the witness could not have accumulated it in the length of time he said he did.

It may be true that he could not have accumulated the money in the time counsel says in brief that witness said he accumulated it. But in fact the witness did not say how long he had been saving his money. Reading of the testimony will show that counsel is in error.

Counsel also says that the District Judge believed, but would not hold that the mules covered by the chattel mortgage belonged to the firm of Malone and Raynor. That issue was not raised in the pleadings and we cannot consider it. If it had been raised we could not sustain it for there is not one syllable of testiinony in the record to support such a theory.-

Under the pleadings and testimony there was but one judgment the District Court could have rendered.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment of the lower court be affirmed with costs in both courts.


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    No. 2046
    Second Circuit Appeal
    SMITH - SPENGLER REAL ESTATE AGENCY v. CENTRAL LOUISIANA MOTOR CAR COMPANY
    (January 19, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Sales—Par. 42, 49, 111, 112.
    Where A contracts with an automobile dealer to purchase a new car, giving his old car in as part payment at aagreed price, the agreement being transferable, a transfer of this agreement to B with the stipulation in the transfer made from A to B that “I hereby subrogate to said transferee, all rights, actions and privileges that I may have in the premises, and particularly to sue and recover in their own name for their own account for the price” of the old car held that this transfer gave A or his transferee no right to recover of defendant the price of the old car. except upon defendant’s refusal or failure to comply with its agreement to sell to the holder of the contract a new ear at the price stipulated and to allow credit thereon for the old car.
    2. Louisiana Digest — Appeal—Par. 625.
    A question of fact that an automobile dealer did not default on his contract to deliver a new automobile being correctly decided by the trial court according to the evidence is affirmed.
    3. Louisiana Digest — Sales—Par. 150.
    In a contract of sale of an automobile in which an old automobile was taken in trade, it was not" necessary for the automobile dealer to make a real tender of the new automobile where the purchaser had informed the automobile dealer that he could not accept the car.
    Appeal .from the Parish of Rapides, Hon. Leven L. Hooe, Judge.
    This is a suit brought by the transferee of a contract of sale to recover $485.00 the amount which an automobile dealer allowed for an old automobile as part payment on a new one.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    S. B. Pressberg, of Alexandria, attorney for plaintiff, appellant.
    White, Holoman & White, of Alexandria, attorneys for defendant, appellee.
   ODOM, J.

On August 16, 1919, one J. O. Davis entered into a contract with the defendant company by which he agreed to purchase from it a new Maxwell automobile for the price and sum of $1,085.00, on the following terms, to wit:

He delivered to defendant a Dort car, which he then owned for which he was to get credit on the new car for the sum of $485.00. The balance was to be paid $100.00 cash when the new car was delivered and $50.00 per month until the entire price was paid. As representing the deferred payments he was to execute notes.

The new car which he agreed to purchase was to be delivered to him “out of the first shipment of automobiles to reach Alexandria”. The contract is in writing signed by J. O. Davis, and accepted by defendant company. The contract, by its specific terms is not transferable.

Davis, it seems was not able to carry out his agreement to purchase the new car because, according to his testimony, he had sickness in his family and he was not able to get the money.

His contract with defendant company contained the following stipulations:

“It is understood and agreed that title of ownership of car as described above does not pass to me until final cash payment is made, and if I fail to make settlement as agreed,, the above payment of cash or other credits or both shall remain the property of the Central Louisiana Motor Car Company or Mrs. Lennie W. Smith, proprietor as a forfeit.”

Whatever may be the meaning and legal effect of the last quoted sentence, it would seem that Davis understood that if he failed to purchase the new car upon the terms and conditions set out in the written contract, he forfeited the Dort car which he had deposited with defendant, and for which he was to get credit for $485.00 on the new car.

But in order that he might be able to use the credit which he had with defendant company, a new contract was entered into April 16, 1920.

This new contract was identical with the first one, with the following exceptions:

The price of the new car was to be $1,270.00 instead of *$1,085.00, the ten deferred monthly payments to be $68.50 instead of $50.00, and the new car was to be delivered by defendant “as available”. — and whereas the old contract was not transferable the new one was made transferable.

As stated his new contract was signed on April 16, 1920. For some reason Davis could not comply with his agreement, and on July 30, 1920, he assigned the contract to the plaintiff herein. The written assignment which is found on reverse side of contract reads, in so far as is necessary to quote it, as follows:

“For a valuable consideration, I hereby sell, assign, transfer and deliver unto Smith-Spengler Real Estate Agency the above and foregoing contract and I hereby subrogate to said transferee, all rights, actions and privileges that I may have in the premises, and particularly to sue and recover in their oten name and for their own account for the price of four hundred eighty-five (485.00) dollars due me by the Central Louisiana Motor Car Co.”

This suit is to recover the $485.00.

It is the contention of plaintiffs that defendant violated its agreement to sell and deliver a new car to Davis, and they allege “your petitioner has placed defendant in default by making demand on defendant for the said automobile and by offering to comply with the obligations assumed by the said Davis in said contract, and notwithstanding said demand and offer, the' defendant has failed and refused to comply with said contract”. Defendants contention is that it complied with its obligation by offering at various times to deliver a new car to Davis, and that finally in the early part of June, 1920, it made a tender of a new car to him, which he failed to accept. This alleged tender was made prior to the date on which Davis transferred his contract to plaintiffs.

Whether the contract entered into between Davis and the defendant evidenced a sale or was merely an agreement to purchase an automobile need not be discussed. It is clear, however, that it gave A, or his transferee no right to recover of defendant the price of the old car, except upon defendants refusal or failure to comply with its allegation to sell to the holder of the contract a new car at the price stipulated and to allow credit thereon for the old car. The question, therefore, for us to determine, is whether defendant has defaulted on its contract. If it has, it is bound to restore the old car accepted by it as a deposit or advance payment on a new • car.

Quite a bit of testimony was introduced showing what took place between Davis and defendant between August 1919, the day on which the original contract was signed and April 16, 1920, the day on which the last one was signed. But we think that has no bearing upon the case because the old contract was set aside by the new one. We may say, however, that the testimony makes it perfectly clear that Davis could not comply with his contract, and that defendant was not only willing to carry out the contract, but was able and offered to do so.

Davis says that after the second contract was made, he saw a representative of the defendant firm who urged him to make an effort to sell his contract and thereby save his equities thereunder. He says also that defendant offered him a car, approximately one month after the second contract was entered into, and that he could not purchase it because he had no money. He says that he tried a number of times to sell the contract, and that finally he did sell it to plaintiff in this case.

Some time after the plaintiff acquired the contract from Davis, they both went to defendant’s garage and according to his testimony were looking at the cars, when Mr. Lennie Smith asked them what they wanted and they told him they were figuring on getting a car; — and that said Lennie Smith told them that they had a second hand Maxwell car for sale; and that said Smith, defendant, then had an employee demonstrate the car by “driving us around in it”.

Smith, one of plaintiffs, says that he then endeavored to “make a deal with her on the second hand car and she wouldn’t do it”. And speaking of the contract, he was asked:

“Q. You didn’t pull it until you made a deal in regard to the other second hand car?
“A. No, I simply asked her how she would trade.
“Q. Not until she had made you a price on this second .hand car did you pull out this contract?
“A. No.
“Q. Then you wanted her to give you the second hand car on this contract?
“A. Yes, sir.
“Q. And she declined to do that?
“A. Yes, sir.”

Smith, one of the plaintiffs, testified, that when defendant refused to accept the contract or rather the $485.00 credit, on the purchase of a second hand car, he then offered to purchase a new car on the terms and under the conditions set out in the contract, and that defendant refused to make a sale, saying the contract was not worth the paper it was written on.

S. C. Spingle, one of the plaintiff, corroborated the testimony of his co-plaintiff to the extent that they offered to carry out the contract by purchasing a new car. The testimony on this point however, is contradicted by Mrs. Lennie Smith, her husband and their kinsman and employee, H. C. Sumlin. Each of these witnesses says that plaintiff wanted to purchase a second hand car and- wanted defendant to accept the credit on the old car under the contract in payment of a second hand car, and that they did not offer to purchase a new car.

Our conclusion is that plaintiffs did not at any time make a ,bona fide offer to carry out the contract by purchasing a new car. While Mr. Smith and Spengler, plaintiffs, both say that they were ready, willing and able to carry out the contract and that they offered to do so, we are not convinced that they did what they should have done. We are inclined to think that these witnesses were not quite as accurate as they should have been, probably on account of the fact that something like two and a half years elapsed between the date on which the transaction occurrd and date on which the transaction occurred and date • ■ For instance, Mr. Smith, one of the plaintiffs says that he and his partner, Mr. Spengler, went to defendant’s garage together and looked over the cars and found a second hand Maxwell, in which an employee of defendant drove them around. ■ He makes it plain that Spengler was with him at that time. (T. page 28) whereas Spengler testifies (T. p. 36.):

Q. Did you look at a second hand Maxwell?

A. I looked at a car, but I think it was several months before this came up that I was out in a car that she had for sale, but I think it was a Ford.

And in the same connection he says that he does not recall that any price was made or any terms reached on a second hand ear. He says that when he went with Smith, “Smith had the contract in his hand and offered to go into it and Mrs. Lennie Smith wouldn’t consider any negotiations at all”. And yet, Mr. Smith testified (T. page 28.)

“Q. Didn’t you discuss with Mrs. Lennie Smith the purchase of a second hand automobile?
“A. Yes, sir.
“Q. Didn’t you offer this contract in connection with the purchase of this second hand automobile?
"A. I did.
“Q. And wasn’t it then she told you that this contract was no good?
“A. Mr. Spengler and myself needed tne car and we went down to see Mrs, Lennie Smith and she wás busy and we looked over the garage and saw there were no new Maxwells on the floor, and Mr. Smith asked us what we wanted, etc., and on page 33 of the testimony, Smith says that it was only after they began talking terms on a second hand car that he mentioned the contract. He says and Spengler says, they were together,- and yet Spengler did not hear the second hand car discussed and says that he did not go out with his partner in the second hand Maxwell.”

The testimony of Smith and Spengler, the plaintiffs, is at variance on a very material point, to wit: Whether the contract was offered on a second hand car.

While they' agree that they offered to purchase a new car on the terms of the contract, yet we are inclined to think they may be mistaken on that point, as they, or one of them at least, was mistaken on another point; therefore, in view of the testimony of the witnesses for defendant that no offer was made to purchase the new car, our conclusion is that plaintiff made no bona fide effort to get defendants to comply with the .terms of the contract. We doubt if plaintiffs wanted a new car or ever expected to. take one. Our opinion on this point is strengthened by the very wording of the assignment of the contract to them by Davis. Davis sells to plaintiffs the “above and foregoing contract and I hereby subrogate the said transferee to all rights, actions and privileges that I may have in the premises, and particularly to sue and recover in their own name and for their own account the- price of four hundred eighty-five ($485.00) dollars due by the Central Louisiana Motor Car Co’".

The wording of this transfer indicates that these parties had in mind the recovery of the $485.00, rather than the purchasing of a new car.

A great deal of testimony was introduced to show that defendant made no- tender of a new car to Davis..

No formal, real tender was necessary under the circumstance of this case.

. To have made one would, have been to do a vain, idle thing. Davis had informed defendant on every occasion that he could. not' accept the car, and finally the contract was made transferrable in order to give him a chance to realize something from' it. Defendant finally informed him that if he did not accept the car, his rights under the contract would be declared forfeited on a certain date. We think defendant had the right to do that under the circumstances of this case. Defendant could not be expected to hold the matter open indefinitely.

The demands of plaintiff were rejected by the District Judge. We are not informed as' to whether he took the view that defendant made a tender of the car to Davis or to his assignee, the plaintiff and was henceforth discharged from further obligations under the contract, or whether he held that plaintiff had not fulfilled his duties under the contract.

We think his decision in rejecting plaintiff’s demand on either gro.und, ,was warranted.

. It is therefore ordered, -adjudged and decreed that the judgment appealed from Ipe affirmed with cost.


text:
    No. 2083
    Second Circuit Appeal
    ALEXANDRIA REFINING CO., INC., v. MISSOURI PACIFIC RAILROAD CO.
    (January 19, 1925, Opinion and Decree)
    (March 30, 1925, Rehearing Refused)

      (Syllabus hy the Editor.)

    1. Louisiana Digest — Railroads—Par. 78.
    Where the flagman of a railroad comapny without making sure that the crossing was clear, signaled to the engineer; who started up his engine and backed same over a motor truck which was stalled on the track, the railroad company had the last clear chance to avoid the accident and is liable for the damages- resulting.
    2. Louisiana Digest — Railroads—Par. 81.
    The damages assessed for the loss of a motor truck bit by a train include the cost of replacing the truck but do not include any- damage for the loss- of the use of the truck.
    ON APPLICATION FOR REHEARING.
    3. Louisiana Digest — Railroads—Par. 65.
    Where a motor- truck had been for sometime halted on. the railroad track-when backed into by defendant’s train whose crew was negligent in not discovering it and actively so in backing against it; the negligence of the train crew was the proximate' cause of the accident while the negligence of the truck driver was merely passive, and hence not the proximate cause.
    (Civil Code, Art. 2315. .Editor’s note.)
    Appeal from the Thirteenth Judicial- District Court of Louisiana, Parish of Rapides. Hon. Levin L. Hooe, Judge.
    REYNOLDS, J.
    Action to recover $1185.17 for damage to truck run down at public crossing on railroad track.
    Defendant denies liability and pleads contributory negligence in bar of plaintiff’s right to recover;
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    Overton & Hill, of Alexandria, attorneys for plaintiff, appellant.
    Hawthorne & Stafford, of Alexandria, attorneys for defendant, appellee.
   STATEMENT OF FACTS

In this case plaintiff’s driver of one of its tanks stopped on the railroad track at a public crossing and got down to adjust some oil drums that were about to fall; while on the north side with his vision cut off from the south, the engine and car of defendant came up on the south side of the truck to within six or seven feet and was stopped.

Steve Irwin, defendant engineer, testified (page 57):

“A. Yes, sir, we stopped six or seven feet from the crossing or possibly right on the crossing and we were not far enough to get over this switch from one to two and when Burrell came back there, he gave me a signal to go ahead just a few feet, and that is when I shoved the truck. We didn’t hit the truck, we shoved it.”

This statement of the engineer, that the car was stopped within a few feet .of the truck, and afterwards, on signal of the brakeman backed onto the truck, is corroborated by W. M. Johnson, a witness for defendant (page 67), when he said:

“A. Well, the engine started but the engine stopped and I. heard him reverse the engine and I knew naturally that they were going back on the opposite track, so I turned around in my seat to look back this way and I heard him throw the engine over to go ahead again, and I looked ahead, the engine was already in motion, and when he applied steam the engine moved ahead and when I looked ahead I saw the radiator. In fact, I couldn’t tell what it was and looked out again and hollered to the engineer to stop and he stopped instantly.”

Also by Will Burrows, defendant’s brakeman, who testified on page 75 as follows:

“A. They hadn’t gone over the switch when they first stopped and I had to signal them ahead far enough for me to throw the switch.”

After the ' engine and car was stopped, and while the truck was standing still, with the driver on the opposite side from the engine, not knowing of its presence. The brakeman signaled the engineer to back the ear over a public crossing on Which the truck was standing still and the engineer backed the cars over the truck causing the damage sued for.

OPINION

Under the evidence it is clear that the defendant railroad company backed its engine and car over a public crossing on which there was a truck standing still, without first seeing that the crossing was clear. The brakeman, Will Burrows, skid, Trs., page 72: “I could see that the crossing was clear,” but he was mistaken as to this for the crossing was not clear. If it had been the accident could not have happened.

The undisputed evidence in this case shows that the conditions existing at the public crossing, where the accident occurred, just prior to the accident, were as follows:

The plaintiff’s truck was standing still on the railroad track over the public crossing, with the parties in charge of the truck on the opposite side of the truck from the engine' and car, working to make secure the oil drums on the truck, unaware of the approach of defendant’s engine and car.

The flagman of the defendant company, without making sure that the crossing was clear, signaled the engineer; he started up his engine and backed same over plaintiff’s truck.

Under the circumstances the defendant railroad company had the last clear chance to avoid the accident. Humanity and the safety of the general public demands, and the law requires, that railroad companies must make. sure that a public crossing is clear before they back their trains across same.

The judgment of the lower court is reversed.

ON QUESTION OF DAMAGES

Plaintiff presented a bill to defendant for $855.17 for parts furnished and for work done in repairing its truck. Itemized bill showing the aggregate amount of $855.17 was introduced in evidence under filings for plaintiff from 1 to 11 inclusive and established a damage to that amount.

Plaintiff further asked for $330.00 damage for the loss of the use of said truck during the time it was being repaired, but there is no evidence to show any actual damage sustained by the plaintiff from the loss of the use of the truck, nor is there any evidence showing that the truck could not have been repaired in one day or that thirty-three days were required to repair said truck. The item claimed for loss of the use of the truck must be dismissed as of non-suit.

For the above reasons the judgment appealed from is avoided and reversed, and it is now ordered, adjudged and decreed that the plaintiff, the Alexandria Refining-Co., Inc., do have and recover of the defendant, the Missouri Pacific Railroad Company, judgment for the sum of eight hundred and fifty-five and' 17-100 dollars with five per cent per annum interest thereon from this date and for all costs in both courts.

ON APPLICATION FOR REHEARING

CARVER, J.

In support of their application for a rehearing, defendant’s able counsel file two briefs, one on the facts and one on the law.

There are two very deliróte theories as to the facts. 1 That of the defendants is 'that after the ' train, consisting of a locomotive and :a tender, pushing a cattle car, had come to a halt within six or eight feet of the crossing, and while the' locomotive w'as still puffing and the bell ringing and while the brakeman, who had just previously looked at the crossing and found it clear, was going back to the switch to throw it, the driver of the truck stopped it on the track and got down to adjust the drums, and that the engineer, on signal from the brakeman, slowly proceeded towards the crossing, striking the truck.

Their argument is that after so recently seeing that the crossing was clear it was not negligence on the part of the train crew ' to' p'usli' the cattle car across the crossing without a fresh inspection.

The.theory of the plaintiff is that when the driver of 'the truck stopped it on the track the cattle car was two or three hundred 'yards from the crossing, standing still. The driver so testified, and stated, further,"' that ."when the cattle car was pushed against the truck he heard no bell, whistle or escaping steam.

Allowing for an under-estimate of the time it tbolt to adjust the drums and an bver-festimaté of the distance between the crossing and the cattle car at the time the truck was halted, we think the truth is that' when the' halt "was made the train was a considerable distance away; that while the driver of'the truck,and his assistant were adjusting, the' drums the train was run towards the crossing, stopping close to it; ihat the brakeman, who says he was on the cattle car which struck the truck, not on top qf it but on the east side of it, got down and 'witliout going any closer to the crossing ' Walked back towards the switcli where lib gave the signal to proceed towai‘db thó crossing, which the engineer then did, striking the truck.

The brakeman says, page 72:

“I rode up within about eight or ten feet north of the switch and could see that the crossing was clear and had to get off and walk back to throw the switch so that he could back in No. 2.”
“Q. How far were you from the crossing when you got off this car?
“A. Little over a car length or more.
“Q. What part of the car were you riding?
“A. Head end of the car.
‘‘Q. Were you on top of the car? '
“A. No; hanging on the side of it.
“Q. After you got down, did you see, did you look up towards the crossing?
“A. Yes, sir.”

None of the crew pretended to keep any lookout except the brakeman who, as shown by his own testimony, assumed that the crossing was clear because from his position on the ground near, the far end of the cattle car he saw nothing on it; but in our opinion the truck was then on the track, the hind wheels about the center of it, and if the brakeman looked toward the crossing and failed to see the truck it must be because the cattle car was between him and it.

Johnson, the fireman on the locomotive (page 67), sitting on the left or southwest side of it, saw the radiator of the truck after the signal to proceed had been given and the locomotive had started and called to the engineer to stop.-

In the brief on the facts counsel quote Barron, the driver of the truck, as follows:

“I stopped the truck. Mr. Glasscock said, ‘We’re on the crossing’; I stopped the truck and I climbed the top of the truck and looked down and saw the box car in front of the engine.”

Counsel seem to think this means that immediately after stopping he climbed the truck and saw the cattle-car right at him. His subsequent answers, though, show that he did not mean this but meant that when lie climbed the truck, after adjusting the drums, the cattle-car was right at him.

He was asked, page 5:

“Q. When you stopped the truck, did you look up and down the track?
“A. Yes, sir.
“Q. What, did you see?
“A. Saw the empty car there and Brown and brakeman at the depot.
“Q. Where did you see the empty car?
“A. Between where I was an'd the planer mill. .
“Q. About how far from you?
“A. Two or three hundred yards 'down there.
“Q. When you looked up and down the track you saw a stock car?
“A. Yes, sir.
“Q. Was it rolling towards you?
“A. No, sir; standing still.”

AS TO THE LAW

In their brief on the law defendant’s counsel say: , '

“Our point is that where both the plaintiff and the defendant are guilty of negligence, which negligence continues up to the' time of the accident, the' law of Louisiana is that the doctrine of last chance does not apply to such a situation and plaintiff’s contributory negligence will bar a recovery.”

They cite in support of this proposition the following Louisiana cases:

Young vs. La. Western, Ry. Co., 153 La. 133, 95 South. 511.

Callery vs. M. L. & T. R. R. Co., 139 La. 770, 72 South. 222.

Leopold vs. Texas & Pacific Ry. Co., 144 La. 1000, 81 South. 602.

Bertucci vs. N. O. R. & L. Co., 155 La. 451, 99 South. 400.

Lofton vs. L. R. & N. Co., 135 La. 33, 64 South. 972.

Wolf vs. N. O. R. & L. Co., 133 La. 891. 63 South. 392.

Sutton vs. Lee Lumber Co., 121 La. 557, 46 South. 649.

Castile vs. O’Keefe, 138 La. 479, 70 South. 481.

Harrison vs. La. Western Ry. Co., 132 La. 761, 61 South. 782.

Nelson vs. R. R. Co., 140 La. 676, 73 South. 769.

Tucker vs. I. C. R. R. Co., 141 La. 1096, 76 South 212.

In some of these cases it is true the doctrine is stated as broadly as counsel states it, but in some ol them is expressed and in the others we think is implied a qualification which counsel overlooks. This is that the plaintiffs negligence must not only have continued down to the moment of the accident and contributed thereto, but that it must have been in part at least the proximate cause thereof. In all the above cases the negligence of the plaintiff did contribute as such proximate cause. The first three were collisions at crossings between trains and automobiles and the next two collisions at crossings between a train or street car and wagons actively contributed to the accident by going upon the track just as the train was about to reach the crossing — too late to afford the train men any chance to avoid, the accident.

In the next two cases (Wolf and Suton) the injured parties stepped upon the track just in front of the car or train.

In the Castile and Harrison cases -they stepped too near it.

In none of these cases did the court find that the train crew had a clear chance to avert the accident after- they discovered or after they should have discovered the danger. Of course, the doctrine of last chance did not apply.

In the following cases the parties injured or killed were guilty of negligence continuing down to the moment of the accident, notwithstanding which the defendants were held liable.

McGuire vs. V. S. & P. Ry. Co., 46 La. Ann. 1543, South.

McClanahan vs. V. S. & P. Ry. Co., 111 La. 782, 35 South. 902.

Blackburn vs. L. R. N. N. Co., 144 La. 520, 80 South. 708.

Lamkin vs. McCormick, 105 La. 418, 29 South. 952.

In the McGuire, McClanahan and Blackburn cases the parties killed were drunk and lying on or near the track, which the court characterized as great negligence; but their negligence at the moment of the accident was passive while that of the defendants was active.

In all three cases the court held that it made no difference whether the negligence of the defendant consisted in failing to take proper steps to avert it after seeing the danger, the defendant being liable in either case.

We think this case governed by the doctrine of those decisions and not by that applied in the cases cited by defendant; believing as we do that the truck was and for some time had been halted on the track when backed into by defendant’s train whose crew was negligent in not discovering it and actively so in backing against it, when such negligence, therefore, being the proximate cause of the accident, while the negligence of the truck driver, though continuing down to the moment of the accident, was at that time merely passive and hence not the proximate cause but only a condition of the accident.

Being of opinion that our own jurisprudence would control were that of the other states different, we have not examined the numerous decisions from other states cited by defendant’s counsel; but the propositions in support of which the decisions are cited seem to us consistent with the views herein expressed.

No special complaint is made of the amount of damages awarded.

Rehearing refused.


author: LECHE, J.

text:
    No. -
    First Circuit Appeal
    ODON GUIDRY v. ANGE ROGER, ET AL.
    (January 21, 1925, Opinion and Decree.)

      (Syllabus' by the Editor.)

    Í. Louisiana Digest — Pledges—Par. 10; Sequestration — Par. 10.
    Where two creditors have made advances on a cotton crop the one complying with Article 3158 of the Civil Code reducing his pledge to writing is entitled to a writ of sequestration seizing the cotton in the hands of the other creditor who has no written pledge and applying the proceeds of the sale to the pledged debt first.
    Appeal from the Parish of Lafayette, Hon. W. W. Bailey, Judge.
    This is a suit for collection of money and goods advanced for making of a crop against the farmer and another creditor who has possession of the cotton grown. There was a sequestration of the cotton.

    There was judgment for plaintiff but dissolving the sequestration. Plaintiff appealed.
    Judgment affirmed, as to plaintiff but reversed as to sequestration maintaining it.
    Mouton & Debaillon of Lafayette, attorneys for plaintiff and appellant.
    Kennedy & Roos of Lafayette, attorneys for defendant and appellee.
   LECHE, J.

The defendant Ange Roger cultivated and grew a crop of cotton during the year 1923, on land belonging to Albert Hernandez, and this suit involves a contest between Hernandez and plaintiff as to which one is entitled to the proceeds of the crop. Both the plaintiff and Hernandez made advances to Roger to cultivate the land and Hernandez additionally claims one-third of said proceeds for rent, in accordance with the agreement under which the land had been leased by him to Roger.

Plaintiff coupled with his demand for judgment for the amount of his claim against Roger, a sequestration under which the sheriff seized four bales of cotton. The cotton at the time of its seizure, was in the possession of Hernandez who held it as owner of one-third and as pledgee of the other two-thirds to secure his claim for advances to Roger.

The agreements between plaintiff and Roger and between Hernandez and Roger were not made in writing and were not recorded. ,

The evidence clearly shows the amount advanced by plaintiff to wit: $370.94. Hernandez testifies that he advanced directly to Roger $299.40 and that he advanced him, through Dugas, a storekeeper, $248.35 making in all $547.75, but he acknowledges that previous to the seizure he had received from Roger two bales of cotton which he sold for $270.60. After deducting one-third for rent there remained a credit in Hernandez’ hands, of $180.40 which reduced Hernandez’ claim to $367.35. The status of these two creditors of Roger is then, that each has a claim secured by' privilege for advances to cultivate and grow the crop of cotton which admittedly is insufficient to pay them both in full.

The so-called pledge in favor of Hernandez is not evidenced in writing as . required by C. C. Art. 3158, amended by Act 157, p. 239, of 1900, and is therefore null as to plaintiff.

The defendant Hernandez, made no appearance in this court, and our consideration of the case convinces us that the judgment appealed from is erroneous.

The District Court rendered judgment in favor of plaintiff as against Ange Roger for the full amount of his claim, but dissolved the sequestration, ordered the cotton restored to Hernandez and taxed the costs of sequestration against plaintiff.

We believe the circumstances justified the issuance of the writ, that the cotton, less one-third belonging to Hernandez, should be ordered sold and the proceeds distributed pro rata to satisfy the claims of plaintiff and of Hernandez and that all' costs should be paid by defendant Ange Roger, wherefore

.It is ordered that the judgment appealed from be set aside and reversed insofar as it dissolves the sequestration, orders the cotton restored to Hernandez and taxes the costs of sequestration against plaintiff, that the writ of sequestration be maintained, that the cotton under seizure, less one-third thereof belonging to Hernandez as lessor, be ordered to .be sold to satisfy pro rata and pro tanto the claim of plaintiff, viz.: Three hundred and seventy 94/100 dollars and the claim of Albert Hernandez, viz: Three hundred and sixty-seven 95/100 dollars, by privilege and preference, that all costs be paid- by defendant, Ange Roger, and otherwise that said judg'ment be affirmed.


text:
    No. 1962
    Second Circuit Appeal
    DUNLEVY PACKING COMPANY v. J. JUDERMAN
    (January 19, 1925, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Pleading—Par. 54, 59.
    Article 333 of the Code of Practice takes precedence over Article 336 because Article 333 incorporates an act of the Legislature passed after the adoption of the original code. Therefore, a denial of plaintiff’s capacity to sue in answer is insufficient. It should have been pleaded in limine before answer filed.
    2. Louisiana Digest — Judgment—Par. 13.
    Defendant can be protected against danger of a double payment by the wording of the judgment.
    3. Louisiana Digest — Appeal—Par. 625.
    The finding of the trial judge on a matter of fact, namely, a question of payment, being clearly correct, is sustained.
    Appealed from Thirteenth District Court, State of Louisiana, Parish of Rapides, Hon. L. L. Hooe, Judge.
    This is a suit on an open account.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed, but plaintiff to pay costs of the appeal.
    White, Holoman & White, of Alexandria, attorneys for plaintiff, appellee.
    Peterman, Dear & Peterman, of Alexandria, attorneys for defendant, appellant.
   CARVER, J.

Defendant appeals from an adverse judgment in this suit, which is one on an open account filed in April, 1922.

The plaintiff alleged in the first paragraph of its petition that it was a corporation. In his answer defendant denied this paragraph for lack of information and then denied each other material allegation of the petition. By supplemental answer he plead payment.

There is no proof as to whether plaintiff is a corporation or not.

Pohlmeyer, a witness for plaintiff, whose testimony was taken in Pennsylvania under commission, states that Dunlevy Packing Company was succeeded in January, 1922, by Dunley-Franklin Company, without say-saying how.

In this court defendants’ counsel urges that the suit should be dismissed as of non-suit because there is no proof that plaintiff is a corporation and because the proof does show that at the time suit was filed Dunlevy Packing Company had passed out of existence. In the alternative he insists on the plea of payment.

(1)

We do not think the corporate capacity of plaintiff could be challenged in the answer — Under Code of Practice, Art. 333 this could be done only by exception filed in limine.

On this question Article 333 and 336 are in conflict but in Chaffe vs. Ludeling, 34 La. Ann. 966, the court points out that Article 336 stands as it did originally, whereas the present Article 333 incorporates an act of the Legislature passed in 1839 after the adoption of the original Code, and being a later expression of the Legislature will take precedence over Article 336.

We have examined the cases cited by defendant’s counsel, viz:

Great Southern Lumber Co., 132 La. 1000, 62 South. 117.

Sanders vs. Schilling, 123 La. 1009, 49 South. 689; and

Hincks vs. Converse, 37 La. Ann. 484;

But find nothing in them conflicting with this view.

In the Great Southern Lumber Company case it was not pretended that “Knoxville Plumbing Company” was a corporation, but on the contrary, Moss judicially admitted that it was only a trade name under which he conducted his individual business and the court decided that he could not stand in judgment in that name.

The Sanders case was a suit by an alleged partnership, and while the decision is not exactly clear on the question, we understand the exception to its capacity was filed in limine.

In the Hincks case, as well as in the two previous cases involving the same controversy, Workingmen’s Bank vs. Geo. T. Converse, 33 La. Ann. 963, and The Workingmen’s Accommodation Bank vs. Geo. T. Converse, 29 La. Ann. 369, it is clear that the exception to. capacity was filed in limine.

In the Hincks case the District Judge had referred this exception and also another one to the merits.

The Supreme Court declared this irregular, saying that the exception had no connection with the merits and should have been decided in limine.

(2)

We do not think the suit should have been dismissed because of the bare statement of Pohlmeyer that on January 1st, 1922, the Dunlevy Packing Company was succeeded by Dunlevy-Franklin Company. That statement does not necessarily mean that Dunlevy-Franklin Company became the owner of the claim sued on or that Dunlevy Packing Company passed entirely out of existence. It may well be that it retained its corporate existence for purposes of liquidation and also retained ownership of this claim.

But if not defendant can be protected against the danger of a double payment by proper conditions in the judgment, and this course, we think, warranted by the decisions cited in Hennen Digest, Vol. I, Yerbo Judgment V (c).

(3)

We have examined the evidence in the record on the question of payment and are satisfied that it does not sustain the plea.

It is decreed that the judgment of the lower court be affirmed but that execution be stayed until plaintiff obtains .from Dunlevy-Franklin Company and tenders to defendant a receipt or other proper acquittance for the claim sued on. '

It, is further decreed that defendant pay the cost of the lower court and the plaintiff those of appeal.


text:
    No. 2009
    Second Circuit Appeal
    ARMOUR PACKING COMPANY v. WALKER PRICE OIL CO., INC.
    (January 19, 1925, Opinion and Decree)
    (March 2, 1925, Rehearing Refused)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Negligence—Par. 41.
    Plaintiff, having proven that the fire which destroyed his automobile was caused by defendant’s agent negligently overflowing his gasoline tank, shifted the burden of proof of contributory negligence to defendant.
    2. Louisiana Digest — Negligence—Par. 42.
    Where contributory negligence is a special defense and the evidence is conflicting, the court will not consider the contributory negligence proven.
    (Civil Code, Art. 2315. Editor’s note.)
    Appeal from the Thirteenth District Court, Parish of Rapides. Hon. L. L. Hooe, Judge.
    This is a suit to recover the value of a Ford car destroyed by fire.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    Gus A. Voltz, of Alexandria, attorney for plaintiff, appellant.
    William Carter, of Alexandria, attorney for defendant, appellee.
   OPINION

CARVER, J.

Plaintiff sues defendant for damages to a Ford car, alleged to have been' practically destroyed by fire caused by the negligence of defendant’s employee in overflowing the gasoline tank of the car while filling it with gasoline at defendant’s filling station.

He charges that the gasoline ran over the side of the tank and was ignited by the exhaust pipe.

Defendant denies that the gasoline caught fire from the exhaust pipe; claims that it did so from a spark produced by a short circuit created by contact between ■ the metal body of the car and a live electric wire on the car from which the insulation had become rubbed off; and plead the condition of the wire (of which it says plaintiff’s agent knew) as contributory negligence.

Grigsby, defendant’s employee, admits overflowing the tank and defendant’s counsel does not pretend that this was not negligence. The case turns, then, on the plea of contributory negligence, and this depends on what set the gasoline afire— the exhaust pipe or a spark from the electric wire. On this question of facts no witness pretends to have any knowledge and the testimony consists chiefly on opinions.

The undisputed facts, including opinions, are:

That while filling the tank with gasoline Grigsby overflowed it.

That he stepped on the running board to take out the hose used in supplying the gasoline and as he did so something underneath set fire to the gasoline and the car was practically destroyed by the fire.

That the opening in the tank to receive the gasoline is on the right side of the car.

That the exhaust pipe is also on the right side and beneath the tank opening.

That the wire claimed to have been uninsulated was on the left side of the car.

That this wire had at some time before the fire become uninsulated.

That if an uninsulated live wire is brought into contact with metal it will create a short circuit and produce a spark.

That such spark will ignite the vapor from gasoline.

That the exhaust pipe slopes downward from the engine back.

That . gasoline vaporizes at 120 to 125 degrees.

Though to some extent disputed by Grigsby, a school boy, we think the testimony of R. E. Hearn (with 8% or 9 years’ experience as automobile mechanic, confined to Ford cars) establishes the fact that, from running the exhaust pipe of a Ford car will get red hot up to a point about 16 or 18 inches from the front of the tank.

On the question whether gasoline will ignite from a red hot iron the experts differ.

E. M.. Telle, with ten years’ experience as manufacturer of petroleum products, says (Trs. page 4):

“Q. In your opinion, if an exhaust pipe of an automobile that has been heated to a high point should come in contact with gasoline, would you say that that gasoline would explode or would not explode?
“A. Yes, sir, one will ignite from two causes, either a spark or if it comes in contact with an object heated up to burning temperature. Gasoline vaporizes at 120 to 125 degrees of temperature and that vapor will ignite from the spark, but the solid liquid content itself will not ignite 'unless brought in contact with the flame or a body heated up to burning point.
“Q. What degree of temperature is the burning point?
“A. Heat that would burn wood, cloth or something like that.
“Q. Do I understand you to mean that burning point is where the article heated, if placed in contact with a piece of wood, it would burn it?
“A‘. Yes, sir, would catch on fire.”

Cross-examined:

“Q. That means practically red hot?
“A. Yes, sir, practically * red hot to make it ignite.
“Q. You said something about a spark. As gasoline vaporizes, if there were two insulated wires (means uninsulated, no doubt) that should come in contact with each other and produce a spark, would that set it off?
“A. Yes, sir.”

Hearne says (Trs. page 23): “A spark is necessary to ignite gasoline or the vapor from it.” Further:

“Q. Would you say that if that exhaust pipe was almost red hot and should come in contact with that vapor that it would explode?
“A. Not unless a jar or something was dropped on the exhaust pipe, causing a spark.
“Q. Now, if this gasoline that has been shown here had poured on this exhaust pipe and no explosion or no ignition had taken place and you had a live wire in the car, exposed wire, and you stepped on the running board of the car and it immediately caught fire, what would you say caused the fire?
“A. I couldn’t say — there would be two reasons for it igniting, there could be two causes.
“Q. What would they be?
“A. The wire coming in contact with this ground and, second, the gasoline falling on the exhaust pipe.”

Grigsby says to the best of his knowledge gasoline will not ignite on exhaust pipe.

Joe Leiber (garage mechanic with eighteen years’ experience) says (Trs. page 26):

“Q. Will gasoline explode or ignite on an exhaust pipe?
“A. To my certain knowledge it will not.
“Q. Your testimony is that gasoline will not ignite on hot iron?
“A. No, sir.”

This witness offered to prove this to the District Judge, who, however, did not accept the offer.

G. B. Kelly, automobile mechanic with three years’ experience, says (Trs. page 34):

“Q. Will hot iron set gasoline afire?
“A. No, not in my experience.
“Q. Will an exposed electric wire light a cable — set gasoline on fire?
“A. When it is vaporized, yes, sir.”

On cross-examination:

“Q. Gasoline that falls from the tank on a car will vaporize?
“A. Yes, sir.”

It is not clear whether Leiber or Kelly kept in mind the distinction between liquid gasoline and the vapor therefrom and meant that neither, or only the former, would not ignite from hot iron.

On the question whether the wire was insulated the testimony is as follows:

Grigsby says (p. 12) that Kelly said he had a short; told him this after the fire, but don’t remember how long after.

Price says (p. 31) that right after the fire Kelly told him he had had an exposed wire, but don’t know whether he had one then or not. He goes on.

“Q. Did you see any exposed wire in the car?
“A. Yes, sir, I saw the cable exposed.
“Q. That is the strongest wire in the car?
“A. Yes, sir.
“Q. And the insulation had become worn?
“A. The tape had become worn and exposed.”

Kelly says (page 13):

“Q. It has been stated here by Grigsby that you had a short on that car?
“A. I had it at one time — the cable cell . had been rubbed oil — but' it had been re-taped.”

He says further (page 15):

That his lights were in good order; that if there were a short it would dim them down but that they were working all right and that the ignition was in good order. He admits on cross-examination that he don’t know whether he had a short or not and don’t know whether the batteries were discharging or not.

Defendant’s counsel argues that as the fire did not start till Grigsby stepped on the running board, this shows it must have been produced by the spark of a short circuit. But it took some time for the gasoline to run down and become vaporized — perhaps no longer than was required for Grigsby to step to the running board.

Of course, the gasoline itself could not run up the exhaust pipe and reach the point where it becomes red hot, but the exhaust pipe where the gasoline could reach it could be hot enough to vaporize it and the vapor could reach the red hot point, if any. If so, we believe the vapor would be ignited and would in turn ignite the gasoline.

On the whole the evidence convinces us that the fire could have been started by either one of the causes respectively advanced. But it leaves us uncertain as to which did start it.

Now where a crucial question of fact is left uncertain the decision must be against the party carrying the burden of proof. Defendant’s counsel cites: Dickman vs. R. R. Co., 40 La. Ann. 787, 5 South. 76; Clemants vs. La. Electric Light Co., 44 La. Ann. 692, 11 South. 51, in support of the proposition that:

“When the action- of both parties must have concurred to produce the injury, it develops upon the plaintiff to show that he was not himself guilty of negligence.”

But in Boutte vs. N. O. Terminal Co., 139 La. 945, 72 South. 513, the court says:

“The defendant’s plea of contributory negligence, however, is a special defense; the burden of proof of which is shifted to the defendant when the plaintiff proves prima facie that the injury resulted from defendant’s negligence.”

It cites several decisions in support of this proposition, amongst which is Buechner vs. City of N. O., 112 La. 599, 36 South. 603.

In that case the court discusses at considerable length the question of the burden of proof as to contributory negligence. It admits that some of the Louisiana decisions or dicta were to the contrary, 'but states that the uniform jurisprudence of the United States Supreme Court is that the burden is on the party making the plea and that bench says the same rule prevails in England arid in twenty states of the Union.

So it adopts that view as the correct one and expressly overrules all Louisiana decisions or dicta to the contrary.

The burden being on defendant and it having failed to establish its plea, there -must be judgment against it.

Kelly says the car had been used thirteen months; had been driven five or six .hundred miles a week and was in good running order.

Foster says, basing his opinion on the number of cars he had sold for plaintiff, that it was worth approximately three hundred and seventy-five dollars.

C. W. Price says from outward appear anee the car seemed in had condition; that he wouldn't have given one hundred and seventy-five dollars for it and not that much without examination. He does not say he saw it before the fire.

An average between $175.00 and $375.00 is as close an approximation as we can make.

It is accordingly decreed: That the judgment of the lower court be reversed and that plaintiff have judgment against defendant for two hundred and seventy-five dollars, with 5% per annum interest from the time this judgment becomes final, and co.sts of both courts.


text:
    No. 2146
    Second Circuit Appeal
    STATE OF LOUISIANA v. LOUISIANA RY. & NAV. CO.
    (January 19, 1925, Opinion and Decree)
    (March 30, 1925 Rehearing Refused)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Pleading—Par. 62.
    An exception no cause of action is properly sustained where a petition in a suit under Act No. 31 of 1920, which levys a tax on all persons, firms or corporations, or associations of persons engaged in the business of severing ■ natural resources from the soil or water, does not contain an allegation that the defendant is a person, firm, or corporation engaged in the business of severing natural resources from the soil or water.
    Appeal from the Thirteenth Judicial District Cojirt of Louisiana, Parish of Grant. Hon. J. A. Williams, Judge.
    REYNOLDS, J.
    Action to require defendant to show cause why it should not pay a severance license tax for the year 1920, and penalties and attorneys’ fees.
    Defendant filed an exception of no cause of action, and later, after reserving all his rights under his exception of no cause of action, filed an answer.
    On final trial on the merits, the exception of no cause of action was sustained.
    Plaintiff appealed.
    Judgment affirmed.
    Jones & Schowalter, attorneys for plaintiff, appellant.
    Peterman, Dear & Peterman, of Alexandria, attorneys for defendant, appellee.
   Plaintiff filed this suit to require the defendant to show cause why it should not pay a severance license tax and penalties and attorney’s fees on gravel and strippings removed from gravel pit in Grant parish, La., in 1920, and for judgment condemning the defendant to pay the plaintiff a license tax on all gravel and strippings removed.

Defendant filed an exception of no cause of action.

This exception was tried by Judge Levin L. Hooe and overruled.

Defendant, after reserving all his rights under its exception, filed an answer.

This case was then tried .by Judge J. A. Williams, and after trial on the merits Judge Williams sustained the exception of no cause of action.

OPINION.

In this suit to compel defendant to pay a severance license tax, the law fixing • the tax must be our guide.

The tax in question is ' authorized by Article 229 of the Constitution of 1913— the constitution in effect at the time this suit was filed — which provides the General Assembly may levy a license tax on those engaged in the business of severing natural resources from the soil or water.

Under this article of the Constitution, Act No. 31 of 1920 was enacted and is the act under which this suit was brought.

This act, according to its title, as well as the body of the act, is to levy a license tax upon all persons, firms or corporations, or associations of persons engaged in the business of severing natural resources from the soil or water.

There is no allegation in plaintiff’s petition that the defendant is a person, firm or corporation engaged in the business of severing natural resources from the soil or water.

The exception of “no cause of action” Was properly sustained.

Plaintiff insists that the pleadings were extended by evidence introduced without objection, but if this be true, on' which point we express no opinion at this time, still there was no evidence showing that the defendant was a person, firm or corporation engaged in the business of severing natural resources from the soil or water.

It is not contended that the defendant sold gravel except to the Police Jury for road improvements. This in our opinion does not" show that the defendant was a person, firm or corporation engaged in the business of severing natural resources from the soil or water.

State vs. Boston Club, 25 La. Ann. 585.

State vs. Chess Club, 116 La. 46, 40 South. 526.

For these reasons the judgment of the lower court sustaining the exception of “no cause of action” is affirmed at' plaintiff’s cost.