text:
    No. 13,293
    Orleans
    YOUNG v. CITY OF NEW ORLEANS
    (June 16, 1930. Opinion and Decree.)
    (July 23, 1930. Rehearing Refused.)
    (October 8, 1930. Writ of Certiorari and Review Refused by Supreme Court.)
    Sanders, Baldwin, Yiosca & Haspel, of New Orleans, and Edward Dubuisson, of Opelousas, attorneys for plaintiff, appellant.
    McCloskey and Benedict, of New Orleans, attorneys for defendant, appellee.
   HIGGINS, J.

Plaintiff, as widow, brings this suit for damages for the death of her husband, who was severely injured in a collision between a switch engine of the defendant, the Public Belt Railroad Commission of New Orleans, and a grocery wagon which the deceased was driving at the time of the accident, on April 11, 1924, at 11:30 a. m., at the intersection of Bienville street and the tracks of defendant near the river in this city.

The petition charges several grounds of negligence against the defendant, as follows:

That the engine was operated at an excessive and dangerous rate of speed at a public crossing; that no crossing signal was given; that no flagman was stationed at the crossing to warn traffic of the approach of trains; that the engine was not under proper control in approaching a dangerous crossing so that the accident could have been prevented, particularly as the view of persons proceeding out Bienville street was blocked by freight cars parked on each side of the street.

Defendant denied liability and pleaded contributory negligence, averring that it was free from fault and that the accident was the result of the deceased’s negligence.

The matter was tried before the district judge, who rendered judgment in favor of defendant, dismissing plaintiff’s suit, and plaintiff has appealed.

The record shows that on April 11, 1924, about 11:30 a. m., deceased was driving a canopied grocery wagon, drawn by a mule, on Bienville street in the direction of the river. He was on his way to deliver merchandise to a boat docked at the wharves on the Mississippi river in the immediate vicinity of the accident. Bienville street is about 45 feet wide and crosses North Front street and the tracks of defendant, Public Belt Railroad, the Southern Pacific Railroad, and Louisville & Nashville Railroad, almost at right angles. The tracks run from Canal street towards Esplanade avenue along the Mississippi river front. The distance over all of these tracks is about 300 feet, and there are some thirteen tracks, including main line tracks and switch tracks, belonging to the above-named railroad companies.

There were three men working for the defendant in the shops of the Public Belt Railroad: Arthur Fenger, a painter, who acted as pilot to take engines to respective points in the railroad yard; Clarence P. Buist, the master mechanic, who acted as engineer; and Mr. Murphy, a machinist, who acted as a fireman on such occasions. On the day of the accident these three men brought an engine to a point in the railroad yards above Jackson avenue, and were returning with a light switch engine, which was backing on the main line track from the direction of Canal street towards Esplanade avenue. Fenger was on the footboard of the coal tender of -.the switch engine, acting as pilot, Buist was in the cab, acting as engineer, and Murphy was performing the duties of a fireman on the engine.

On the city side of the main line track, on which the engine was traveling, is a switch track belonging to the Public Belt Railroad, and on this switch track there were box ears parked on both sides of Bienville street, leaving an opening between them for traffic moving to and from the river on Bienville street. There were several box cars in each of these “cuts or strings” of cars, and they approached to within about 10 feet of Bienville street on either side.

At the place where the collision occurred there was considerable vehicular traffic, due to the fact that boats are unloaded at the Bienville street landing on the Mississippi river. The deceased had crossed ten tracks, including the track on which the box cars were parked, and as he ventured from behind the box 'cars to the main line track of the defendant, which was the eleventh track from the city side, the tender of the switch engine struck the wagon about at a point between the front and rear wheels, on the right side, causing it to tilt on a 45-degree angle, and the force of the impact caused the deceased, who was driving the wagon, to fall to the ground, beneath the wagon. The wagon was pushed about 3 feet by the engine, when it came to a stop on the lower side of the intersection. The wagon was slightly damaged and the mule uninjured, but the deceased received an injury to his back that appeared serious and he was placed in an ambulance of the Charity Hospital and removed to that institution. On the same day he was transferred to the FlintGoodridge Hospital, where he was treated for his injuries until May 18, 1924, when he died.

We find it unnecessary to discuss all the charges of negligence, because, conceding that the defendant was free from fault originally and that the deceased was guilty of negligence in venturing on the track, the most favorable view that can be taken of the record as far as the defendant is concerned, but without deciding either of these issues, we are of the opinion that this is a case for the application of the doctrine of the last clear chance.

Plaintiff produced two eyewitnesses, who were elderly colored men employed on the wharves at the river, and both testified that the bell and the whistle signals were not given at the time the engine approached the crossing and that the train was' not “puffing,” or making any noise. One said the engine approached the crossing at a fast rate of speed, the other said about twelve or fifteen miles per hour.

These two witnesses are contradicted by Fenger, the pilot of the engine, and Buist, the engineer, and Albert Wolf, a colored yard boy.in the employment of the defendant, who testified that the bell and whistle signals were given.

.Fenger and Buist both testify in substance that the switch engine was backing down the main line track toward Esplanade avenue and there were some box cars parked on the switch track adjacent to the main line track on the city side, which obstructed their view of traffic approaching on Bienville street from the city side, going in the direction of the river; that the engine approached the crossing at about five miles per hour; that the whistle signal was given 75 or 90 feet before reaching the crossing and that the fireman was ringing the bell all the time; that when the coal tender was within about 20 or 25 feet of Bienville street they noticed the head of a mule coming from behind the box cars and going toward the river on Bienville street, and that Arthur Fenger, the pilot, gave a “washout” signal (a signal given with the arms to stop immediately), when within about 20 feet of the mule; that the mule at that time was either walking fast or on a slow trot; that Fenger, in order to save himself from injury, climbed up on top of the coal tender, and the coupler on the coal tender struck the wagon on its right front side, causing it to tilt over; that the engine was then brought to a stop within 3 feet after it struck the wagon; and that the deceased fell from the wagon and was later taken to the hospital. Both of these witnesses further testified that-the engine was going at a rate of speed about as fast as a man would ordinarily walk or about five miles per hour, and that the brakes and mechanism of the engine were in good order; that after the mule was seen coming from behind the box ears, the “washout” signal was not immediately given, and that the whistle signal, was not given, but that the engineer, Buist, shut off the throttle and applied the air brakes; that the flagman or pilot could have run ahead and flagged the crossing, because the engine was moving so slowly, but that he did not do so; that they did not consider themselves an experienced train crew, but only acted, in such capacities when it was necessary to place an engine somewhere in the railroad yards.

Albert Wolf, a witness for the defendant, testified that Fenger began giving the stop signal 30 "or 40 feet from the crossing.

Geo. W. Hillman, a civil engineer in defendant’s employment, testified that the distance between the main line track on which the engine was moving . and the switch track on which the box cars were stationed was 8 feet; and that Bienville street was 45 feet wide.

We are convinced that the engineer had sufficient opportunity to stop the engine before striking the wagon and after discovering its presence. We feel that if the engineer had applied the brakes to the engine when he saw the mule’s head coming from the rear of the box cars, the engine at that time, moving at the rate of speed- of five miles an hour (about as fast as a man ordinarily walks), would have been stopped within 20 or 25 feet, as defendant’s witnesses estimate the distance. If he had given a blast of the whistle when he saw the mule coming from behind the cars, it might have been sufficient warning to deceased to stop the wagon and thus prevent the accident. If the flagman, Fenger, had run ahead and flagged the crossing (as he and the engineer admit he could have done), a necessary precaution under the circumstances, the accident would probably not have occurred. It was a clear day and the tracks were dry, and there is no reason why the train should not have been stopped after the presence of the mule was discovered by the pilot and the engineer, who both testified they saw the head of the mule about the same time, coming from-behind the cars.

The case of Betz v. Illinois Central R. R. Co., 161 La. 930, 109 So. 766, 767, is applicable here. There the plaintiff sued for damages as the result of a collision between his hearse and a switch engine of the defendant company at a street crossing in the city of New Orleans. There were four tracks about 3 feet apart and covered a space of about 35 feet. The view of the driver of the hearse was cut off by the Protection Levee until he was nearly on the tracks. The engine was backing and was coupled to a caboose. ' The accident happened in the daytime, and the court gave judgment for plaintiff on the theory of the doctrine of the last clear chance. The court said:

“The engineer testified that his train was running about 8 miles an hour; that at that speed the train could be stopped in 20 or 25 feet; that when he first saw the hearse come upon the crossing very slowly he was about 30 feet away, and that he did not apply his brakes until he was within 15 feet of the hearse.
“The trial judge found, and the evidence supports the finding, that the engineer could have seen the hearse approaching the crossing, and about to cross the track, at a distance of about 250 feet, and had ample time and opportunity of blowing his whistle and to have stopped his engine and avoided the collision.
“The engineer did not blow his whistle, there was- no lookout on the tender, and the brakes were not applied until the engine was within 15 feet of the hearse.
' “ ‘The last clear chance doctrine, as applied to railway crossing accidents, is that if, after the engineer has seen the danger of the person on or near the track, he can stop his engine and avert the accidént, and fails to do so, the person injured can recover in spite of his own negligence.’ Belle Alliance Co. v. Texas & Pac. R. Co., 125 La. 778, 51 So. 846, 19 Ann. Cas. 1143.”

In the case of Nash v. La. Ry. & Navigation Co., 153 La. 410, 96 So. 14, which was a case where there was an accident at a railroad 'crossing between the plaintiff’s mule and wagon and the defendant’s train, the court held that the plaintiff was free from fault or contributory negligence because, when he emerged from behind the box cars, his mule's were already on the tracks and the train was upon him.

In the present case the distance between the main line track on which the engine was traveling and the switch track on which the box cars were parked was only 8 feet, so that the mule must have been practically upon the main line track before the driver’s view of the on-coming train became unobstructed.

Defendant relies principally upon three cases, which we do not believe are controlling because the doctrine of last clear chance was not involved in them. The first is that of B. & O. R. R. Co. v. Goodman, 275 U. S. 66, 48 S. Ct. 24, 72 L. Ed. 167, 56 A. L. R. 645. We further distinguish the case from the present one because there the train -was crossing a rural highway in a section where it was customary for the train to run at a very high rate of speed, and the nearest obstruction to the crossing was more than 200 feet away. The case would have no application where the accident occurred at a dangerous intersection in a thickly populated portion of a city where the traffic was very heavy. See Teague v. St. Louis S. W. Ry. Co. (C. O. A.) 36 F. (2d) 217.

The second case cited by the defendant is Gibbens v. N. O. Terminal Co. et al., 159 La. 349, 105 So. 367. That case is not applicable to the present one because the court found there that the view of the plaintiff of the on-coming train was unobstructed when he was within 50 feet of the tracks.

The third case relied on by defendant is that of Barnhill v. Railway Co., 109 La. 43, 33 So. 63. That case is not in point because the pedestrian who was injured had ample time and space in which to stop and look before atteiripting to cross, after coming from the rear of the box cars.

As to the quantum, the record shows that the deceased was 55 or 56 years of age, colored, and employed to drive a grocery wagon, and had earned wages of about $14 or $15 a week, and that he had worked regularly and was in good health. He left no children and the sole dependent is his surviving widow. He appears to have suffered considerable pain because of the injuries to his back and spinal column which paralyzed him and confined him to his bed for more than a month in a hospital, where he died on May 18, 1924. We believe the sum of $4,000' is an adequate award under the circumstances. The funeral bill and doctor’s bill amounting to $280.30 will also be allowed.

For the reasons assigned, the judgment appealed from is annulled, avoided, and reversed, and it is now ordered that there be judgment herein in favor of Mrs. Rosie Young, widow of Charles Sylvester, plaintiff, and against the defendant the city of New Orleans in the sum of $4,280.30, with legal interest thereon from judicial demand until paid, appellee to pay the costs of both courts.


source: Caselaw Access Project

author: HIGGINS, J.

license: Public Domain

text:
    No. 11,883
    Orleans
    JAMES v. CITY OF NEW ORLEANS
    (October 21, 1929. Opinion and Decree.)
    (November 18, 1929. Rehearing Refused.)
    Guy J. D’Antonio, of New Orleans, attorney for appellee.
    E. R. Mabry, of New Orleans, attorney for intervener.
    William McL. Fayssoux, of New Orleans, attorney for defendant, appellant.
   HIGGINS, J.

This matter comes before the court on a motion to dismiss the appeal. The grounds for seeking dismissal are as follows:

(1) The record does not show that the motion of appeal was granted in open court; (2) the motion does not ask for citation upon plaintiff and appellee, who was not cited.

The record shows that the judgment was rendered on February 21, 1929, signed on February 28, 1929, and that the motion to appeal was filed and the order signed on March 1, 1929. The civil district court was in session on March 1, 1929, and that the motion and order for suspensive appeal were presented to the court and signed on the same day. Under the law, the civil district court for the parish of Orleans, the court that granted the appeal, is in continuous session from October to July of' each year. Since the record shows that the motion was presented and the order signed on a day when the court was in session and during the same term of court when the judgment was rendered, the presumption follows that the motion was made and granted in open court.

This ' court passed upon the identical question raised in this case in the case of Marsh v. Avegno, 3 La. App. 294, and disposed of the case as follows:

“The record showing that the appeal was granted ‘on motion,’ the presumption follows that the motion was made in open court.”

Plaintiff and appellee relies upon the case of Ducre et al. v. Succession of Ducre, 167 La. 133, 118 So. 864, in support of his motion to dismiss the appeal. We do -not believe that this authority is in point, because in that case there was a certificate from the clerk of court, filed in the record, showing that the court which granted the appeal was not in session the day the appeal was granted. The record in the instant case shows the court was in session the day the appeal was granted.

The second point was also disposed of in the case of March v. Avegno, supra, the court holding: .

“The appeal having been granted by motion in open court no citation was necessary.”

■ It is therefore ordered, adjudged, and decreed that the motion to dismiss the appeal is denied.


author: WESTERFIELD, J.

text:
    No. 13,294
    Orleans
    DEVOE & RAYNOLDS CO., INC., v. LOUP
    (July 1, 1930. Opinion and Decree.)
    (August 23, 1930. Rehearing Refused.)
    •(October 8, 1930. Writ of Certiorari and - Review Refused by Supreme Court.)
    Stephen C. Hartel, of New Orleans, attorney for plaintiff, appellee.
    John J. Kenny and Quintero & Ritter, of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

This is a suit for $818.33, based on a continuing guaranty. There was judgment below as prayed for and defendant has appealed.

Mr. and Mrs Hebert Harris, the son-in-law and daughter respectively of the defendant Mrs. Bertha Loup, operated a business enterprise under the name of Loup’s Hardware Store at 1470 North Broad Street, this city. For some reason, either for expansion of its credit or for better terms, the purpose being immaterial, Mrs. Loup was induced to sign a continuing guaranty in favor of the plaintiff covering the “sale price or any indebtedness on account thereof, all goods, wares and merchandise sold and which may be sold by the seller to Loup’s Hardware Store, 1470 North Broad Street of New Orleans, Louisiana, as buyer according to the credit terms and such respective sale or sales or any extension or modification of such credit terms” The guaranty also provided for a waiver of “notice of the acceptance of this guaranty, demand for payment upon the buyer, notice of any nonpayment, or of any other default on the part of the buyer, and notice of any such sales, credit terms, or of any extension or modification thereof, is hereby waived by the undersigned.” It contained a further provision as follows:

“This guaranty is intended to make the liability of the guarantor co-extensive with that of the buyer for past and future sales.”

The defenses which were argued in this court are five in number and thus expressed in the brief:

1. “That she (Mrs. Bertha Loup) had no connection with or interest in Loup’s Hardware Store.

2. “That the principal debtor named in said contract of guaranty, to-wit, Loup’s Hardware Store, had no legal existence.

3. “That said agreement was uncertain in fact and in law.

4. “That the sales claimed to have been made by plaiptiff were not sales at all, but were goods delivered under an agency contract (Exhibit Defendant 1) and that plaintiff has breached the said contract, thereby releasing defendant from any obligations to it under her guaranty.

5.“That the laches of plaintiff preclude it from recovering.”

As to the first def&nse whether Mrs. Loup had any active interest in the hardiware business or not is immaterial since it is not denied that she executed the guaranty and the law is very plain to the effect that a stipulated advantage or debt due by a third person is a sufficient consideration to support a promise to pay. Code of Practice, art. 35; Watt v. Rice, 1 La. Ann. 280; Commercial National Bank v. Richardson, 163 La. 934, 113 So. 152.

The second defense to the effect that Loup’s Hardware Store had no legal existence is based upon the fact that it was not incorporated nor the subject of a formal contract of partnership, but whatever may have been its status, its obligations under the continuing guaranty were assumed by Mrs. Bertha Loup and she cannot be heard to question its existence.

The third and fourth defenses are hardly serious since it is admitted that the amount claimed by plaintiff is actually due by Loup’s Hardware Store and within the contemplation of the guaranty unless defendant is otherwise exonerated. Moreover, the account was acknowledged by Mrs. Loup who made several promises to pay.

As to the last contention we find no evidence of laches which would affect defendant’s obligation. Mrs. Harris offered a check for $50 which was refused, but since a check of Mrs. Harris had previously been dishonored because of insufficient funds, the plaintiff was justified in believing that this check would be similarly dishonored. Besides, in view of the size of the account we know of no compelling reason for the acceptance of such a small partial payment.

We sympathize with the defendant who is called upon to pay the obligations of her family incurred in a business venture with which she had no connection and which (probably exceeded any amount which she contemplated as the extent of her liability under the guaranty. She testified, for example, that she thought she was only obligating herself to the extent of $250. But our sympathy cannot affect our judgment in considering defendant’s plain obligation. She executed the contract of guaranty and upon the faith of her credit her daughter and son-in-law purchased from the plaintiff the merchandise, for the price of which this suit is brought. She cannot now be heard to complain of the effect of her act in signing the guaranty, for as was said in Snell et al. v. Union Sawmill Co. et al., 159 La. 608, 105 So. 728-730, “Signatures to obligations are not mere ornaments * * And parties who sign negotiable instruments, or other solemn obligations, must expect to be held liable according to the tenor thereof.

Our conclusion, therefore, is that the case is with the plaintiff and that it should recover. This was the view entertained by the trial court, and for the reasons herein assigned, its judgment is affirmed.


author: JANVIER, J.

text:
    No. 11,574
    Orleans
    BURGLASS v. VILLERE (LOYACANO, Intervener)
    (December 16, 1929. Opinion and Decree.)
    (January 13, 1930. Rehearing Refused.)
    (March 11, 1930. Writ of Certiorari and Review Granted by Supreme Court.) .
    (June 4, 1930. Opinion and Decree by Supreme Court.)

      Edward Rightor, Edwin J. Prinz, and Solomon S. Goldman, of New Orleans, attorneys for plaintiff, appellant.
    Pro well, McBride & Ray and Welton P. Mouton, of New Orleans, attorneys for defendant, appellee and intervener, Loyacano.
   JANVIER, J.

The facts of this case are not in dispute, but at first glance they appear so complicated that, in order to understand the legal qiuestion presented, a full statement of them is necessary. Anthony P. Loyacano, the landlord, on March 6, 1923, sued Mrs. Septime Villere, his tenant, and Ellis Headly, her surety, for $3,-360 and attorney’s fees, etc., alleging that she had failed to pay two rent notes totaling $320, and that therefore rent for the whole unexpired term of 21 months was due.

Judgment in solido was rendered against both defendants, and Loyacano seized the movable effects in the premises. The seized property was sold and the net proceeds applied on account of the writ of fieri facias. It is very important to note at this point that Loyacano did not seize, nor did the sheriff sell, the tenant’s right of occupancy for the unexpired term of the lease.

Abraham Burglass, a furniture dealer, had in the meantime, to-wit, on March 19, 1923, sued Mrs. Villere for $1,667, .the unpaid portion of the purchase price of certain furniture. He obtained a judgment, and under a writ of fieri facias seized the right of occupancy to which we have heretofore referred.

Thereupon Loyacano brought another suit against Mrs. Villere, his tenant, and against Burglass, the creditor of Mrs. Villere, who had seized the unexpired term of the lease, and in this suit Loyacano asked that defendants be ordered to show cause why the lease of Mrs. Villere should not be canceled.

Burglass excepted to Loyacano’s petition, alleging inconsistency, no cause of action and estoppel; the estoppel being based on Loyacano’s prior action in bringing suit against his tenant for the total amount of rent for the unexpired term of the lease. Loyacano then, by intervention in the suit of Burglass v. Mrs. Villere, asked that the execution of the judgment, in so far as the attempt to sell the unexpired term of the lease was concerned, be enjoined. He obtained an ex parte order for a preliminary injunction, and furnished bond in the sum of $250, on which Mr. Jones T. Prow-ell was surety.

In answer to this petition of intervention, Burglass claimed by reconvention, attorney’s fees at $150 and statutory damages of 20 per cent on the amount of his judgment, with 8 per cent interest from the date of the injunction, and of course asked for a dissolution of the injunction restraining the execution of his judgment. As a result of this injunction, no further proceedings Were taken in the attempt to sell the unexpired term of the lease.

In due course the suit of Loyacano against.Mrs. Villere and Burglass for the cancellation and annulment of the lease came on for trial, and judgment was rendered dismissing Loyacano’s suit. On appeal to this court, that judgment was affirmed, and the Supreme Court, on April 26, 1927, refused to grant a writ of certiorari. Loyacano v. Villere & Burglass, 6 La. App. 37. In the meantime, of course, the term of the lease had expired, and therefore there was no unexpired term which could be sold under execution, and the matter now comes before us on appeal from the injunction proceeding, because, when that case came up for trial in the court below, in conformity with the decree of this court, in the former suit, the preliminary injunction was recalled and the intervention dismissed; the effect being that, had there been any unexpired term, Burglass would have been entitled to proceed with the execution of his judgment by selling that unexpired term.

At the time of the filing of the intervention 'in the suit of Burglass v. Villere, in which intervention the injunction was prayed for, of course no actual damage had been sustained by Burglass, except that he was required to employ an attorney. Prom month to month, however, as the preliminary injunction remained in effect, Burglass was damaged, in that the property which he had under seizure, to-wit, the unexpired term of the lease, was becoming less valuable as it approached its end, with the final result that when the end of the lease arrived, the property under seizure, namely, the unexpired term, no longer had any value. Since, at the time of the filing of the injunction proceeding, no actual damage had been sustained, Bur-glass contends that he could not, in answer to that injunction proceeding and in reconvention pray for a judgment for actual damages, but was compelled to content himself at that time with claiming statutory damages of 20 per cent, interest at 8 per cent, a,nd his attorney’s fees, as provided by article 304 of the Code of Practice. On December 27, 1927, which was eight months and one day after the final termination of the suit for the cancellation of the unexpired term of the lease, but more than a year from the termination of the lease in question, Burglass prayed, by supplemental answer and reconventional demand in the injunction suit:

“ * * * That there be judgment herein as prayed for in respondent’s original answer and that there be further judgment in reconvention in favor of Abraham Bur-glass, respondent, and against Intervenor, Anthony P. Loyacano and the surety on his injunction bond, Jones T. Prowell, jointly and severally, in the sum of $1,667.00, etc.”

On March 29, 1928, the injunction proceeding was tried, and on that day Loyacano filed a plea of prescription. Judgment was thereupon rendered dissolving the writ of injunction, but sustaining the plea of prescription to Burglass’ claim in reconvention, and awarding him no damages for improper issuance of the injunction.

We do not see that anything prevented the filing by Burglass of his claim for damages as soon as those damages were sustained. True, the damages were sustained only from month to month, as the unexpired term of the lease became less and less valuable, but when, under its terms, the lease had entirely expired, the full damage had been sustained, and we think that it was then that the prescriptive period commenced to run. Harvey v. Pflug, 37 La. Ann. 906, is not in point, because, in the case at bar, there was no judicial inhibition against the filing by plaintiff of his full claim.

Burglass, long prior to the accrual of prescription, filed his reconventional demand, and in it prayed for his attorney’s fees and for statutory damages. Since, at the time the lease expired, the injunction suit had not been tried, there was nothing to prevent Burglass from asserting, by supplemental answer, the additional damage which he did later on assert, and, since he might have filed his claim long prior to the time at which he actually did file it, and long prior to the cancellation suit, we see no reason why his failure to do -so should not operate against him.

More than a year elapsed after the whole damage was sustained before he asserted his right, and since, so far as the principal on the injunction bond is concerned, such a claim is prescribed by one year, it being an action arising under Civ. Code, art. 2315, it is now prescribed except for those parts of the claim which were asserted within the year, to-wit, the attorney’s fees, the statutory penalty, to which we have referred, and the interest.

As to these items, it is evident that, by the action of Loyacano, Burglass has sustained substantial damage, and, to refuse on technical grounds to grant him such redress as is within our power, does not appear to us to be the equitable solution of the difficulty.

This seems to be a case in which the discretion which is allowed us in imposing a penalty should be exercised in an attempt j:o right, as far as possible, the wrong which has been done, regardless of the existence, vel non, of bona fides in him who caused the wrong.

We are of the opinion that the prescription, to which we have referred, is not applicable to the claim against the surety on the injunction bond, because that claim arises, not ex delicto, but ex contractu. Howell v. Cronin, 31 La. Ann. 247. Nevertheless, since the limit of the surety’s liability is fixed in the bond at $250, and since the judgment to which we believe Burglass is entitled exceeds that sum, we see no necessity for going further into a consideration of whether or not a surety might be liable where the claim against the principal is prescribed.

One hundred and fifty dollars is a very reasonable amount of compensate the at-, torney, in view of the difficult legal questions presented, the amount involved, and the arduous and long drawn out labors which were performed.

The money judgment involved was $1,-667, and we therefore feel that, in addition to atttorney’s fees, Burglass should recover 20 per cent of this sum, or $333.40.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be and it is annulled, avoided, and reversed, and that there now be judgment in favor of Abraham Burglass and against Anthony P. Loyacano and Jones T. Prowell, jointly, severally, and in solido, up to the sum of $250, and additionally against Anthony P. Loyacano in the further sum of $233.40, with 8 per cent interest on $333.40 from June 16, 1923, until paid.

HIGGINS, J., takes no part.


text:
    No. 13,260
    Orleans
    REYNAUD v. SONGY ET AL.
    (November 18, 1929. Opinion and Decree.)
    (December 16, 1929. Rehearing Refused.)
    (January 7, 1930. Writ of Certiorari and Review Refused by Supreme Court.)
    Robert J. Perkins and Melvin P. Barre, of New Orleans, attorneys for plaintiff, appellant.
    J. K. Gaudet, of Gretna, attorney for defendants, appellees.
   JANVIER, J.

Petitioñer seeks by injunction to retain his position as a member of the finance committee of the police jury of the parish of St. John the Baptist, and to prevent defendant Montz from succeeding him in the said position, and defendant Songy, president of the said police jury, from assisting Montz in said effort to succeed plaintiff.

Plaintiff had been appointed to the disputed office by Songy, the president of the police jury, who, in making the appointment, was acting under the authority of a resolution reading as follows:

“It was then moved by Mr. Babin, seconded by Mr. Montz and carried that the President, be and is hereby authorized to appoint a Finance Committee of three members, with the understanding that the signatures of two members of this committee shall be required before any bill shall be approved for payment.
“On this Finance Committee, the President, Mr. P. G. Songy, appointed the following: Messrs. Jacques Duhe -, Fernand Reynaud and Julius A. Babin.”

Shortly after making the appointment, Songy decided to remove Reynaud and to appoint Montz in his stead, and, in making said removal, claims that he was acting within the authority given him by the resolution; his contention being that the authority to appoint, unless for a fixed term, carries with it the authority or power to remove. In support of this contention our attention is directed to the following authorities. Peters v. Bell, 51 La. Ann. 1621, 26 So. 442; 46 C. J. 964; 46 C. J. 993; Ehret v. Jefferson Parish, 136 La. 391, 67 So. 176.

We do not believe that the authorities cited are in point. They would be pertinent if the question involved were the authority vel non of the police jury to remove. Manifestly, since the police jury has power to appoint, it has, under the above-cited authorities, power to remove. But the question is deeper than that and involves the right of one person, to whom a limited authority has been delegated, to exceed that authority. Does one body, which, by the Constitution and statutes, is given certain power, and which delegates to another body or person one of those powers, cbnvey to that other person or body continuing power to act in the matter until that power is revoked? Here there can be no question of the power of the police jury to appoint and to remove. It delegated to its president by said resolution the right to create by appointment a finance committee. Did the resolution carry with it the right to remove at will any one or more of the appointees? , If it did, it carried with it the right to dissolve the committee by removing all of the members if he should see fit.

As to the right to an injunction in a matter of this kind, provided the status remains unchanged and the applicant for the injunction remains in possession of the office, there can be no doubt. State ex rel. Bourg v. Turner, 152 La. 830, 94 So. 411; Guillotte v. Poincy, cited below.

It is quite true that title to an office cannot be tried in an injunction proceeding. Peters v. Bell, supra; Guillotte v. Poincy, 41 La. Ann. 333, 6 So. 507, 508, 5 L. R. A. 403. But as was said by Judge Fenner in Guillotte v. Poincy, just above cited:

“The object of the present action is not to oust an usurper or intruder, but to prevent such usurpation or intrusion, in advance of judicial determination of the disputed right.
“We carefully abstain from any expression of opinion upon the disputed title to this office.
“We simply hold that the plaintiff is the officer de facto, in actual incumbency and possession; and that, if he be an usurper and intruder, the plain course pointed by the law to the defendant is to bring his action of ouster, wherein his right may be recognized and enforced. He cannot take the law into his own hands, and, with the assistance of others, effect a practical ouster of plaintiff, in advance of judicial settlement of the rights of the parties.
“The record shows that plaintiff’s apprehension of disturbance is well founded. It appears on the face of the pleadings that defendant claimed the right to enter into office as a member of the board, and that the remaining members of the board, but for the injunction, would have recognized his right, and have admitted him as such member.
“Against such action, we think the plaintiff was- entitled to relief by injunction in order to preserve the status quo, until the right shall be judicially determined, which is the extent to which the injunction should go.”

The only case in which an injunction should not issue in a matter of this kind is where the injunction, if issued, would restrain the body or board vested with the right of determining and deciding the dispute as to the title to the office. For instance, here the police jury has, it is conceded, the right to fill the disputed position at will. Manifestly, then, an injunction should not issue to restrain that body. But that is not the case here. The injunction is asked, not against the police jury which can fill the position at will, and which therefore can determine who has title to the position," but against the president and against a third individual.

In our opinion the injunction should issue except for one fatal fact, and that is that it is manifest that plaintiff. is not in possession of the office. The record leaves us convinced that the appointment of Montz has become effective and that he has taken over the office. The failure to obtain a suspensive appeal by proper application to the court having jurisdiction to review the refusal of the judge, a quo, to grant such an appeal, permitted the changing of the status quo and the taking over by Montz of the office, if, in fact, he was not in possession of it already, as we are convinced from the evidence he was.

An injunction cannot lie to alter a political situation already in existence nor to maintain one in an office, if in fact, he is no longer in actual possession of the office. '

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


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    No. 11,449
    Orleans
    CAZEAUX v. NEW ORLEANS PUBLIC SERVICE, INC.
    (November 18, 1929. Opinion and Decree.)

      Alex W. Swords, of New Orleans, attorney for plaintiff, appellant.
    B. W. Kernan, of New Orleans, attorney for defendant, appellee.
   HIGGINS, J.

Plaintiff sues defendant for damages for the death of her husband. Defendant filed an answer denying liability and categorically answered each paragraph in the petition and pleaded contributory negligence and incorporated in the answer an exception of no cause of action.

On the day the case was set for trial on the merits, counsel for the defendant objected to any evidence being offered by the plaintiff on the ground that the petition did not set forth a cause of action.

The judgment of the district court sustained the exception of no cause of action and dismissed plaintiff’s suit. Plaintiff appealed.

We have reached the conclusion that the petition does set forth a cause of action under two theories of the law of torts. First, the doctrine of “last' clear chance,” and, second, the.doctrine of “sudden peril” or “emergency rule.”

In the paragraph 6 of the petition the plaintiff charges that, after the motorman of the street car apprehended that the driver of the truck did not intend to stop to permit the street car to pass, instead of stopping the street car so as to avoid a possible collision, as the motorman should have and could have done, he negligently and carelessly continued on his course. In short, the motorman, after being fully aware of the fact that the driver of the truck intended to continue his course and seeing that if the street car continued to pursue its course there would be a collision between them, negligently and carelessly continued on when he could have easily brought the street car to a stop.

Assuming arguendo that the driver of the truck and deceased were both guilty of negligence, the petition alleges that the motorman of the street car had the “last clear chance” of avoiding the accident by stopping the car, particularly since he knew the car in making the turn had to cross the path of the on-coming truck. Vaughn v. New Orleans Railway & Light Co., 13 Orl. App. 116; Cusachs v. New Orleans Railway Co., 9 Orl. App. 351; Shield v. Johnson & Son Co., 132 La. 773, 61 So. 787, 47 L. R. A. (N. S.) 1080; 20 R. C. L. par. 114; Louisiana Digest “Negligence” paragraph No. 28.

We are also of the opinion that the petition sets forth a cause of action under the theory of the law known as the “sudden peril” or “emergency rule” in torts, because it alleges: That it was through the negligence and carelessness of the motorman of the street car continuing on his course when he could have stopped after he realized that the driver of the truck did not intend to permit the street car to pass first; and also by the motorman unnecessarily yelling in a loud and excited voice, either at the petitioner’s husband or the driver of the truck, that created a situation which lead decedent to believe that he was in imminent danger. That the street car was making a sharp curve at a street intersection and could very easily have been brought to a stop as it was going slowly at the time. That there was real and apparent danger of a collision between, the truck and the street car, and that the shouting of the motorman caused deceased’s terror and apprehension of sudden peril. That deceased acted as an ordinary prudent person would have done when confronted with such a situation.

The petition also alleges: That deceased was a prospective passenger of defendant, and the defendant failed to provide a suitable place on St. Peter street for passengers to board the street car. That de- ■ ceased stepped into Broad street in the usual and customary manner of passengers át that street intersection, as the car approached in order to board it. That he took a position of safety with regard to the truck and the car and was placed in a position of sudden peril and imminent danger because the motorman, after apprehending the danger, failed to stop the car, but negligently continued on his course, yelling in an excited manner.

The motorman and truck driver both owed deceased the duty -of not wantonly injuring him.

Certainly it cannot be successfully argued in the light of the allegations of the petition that the fact that deceased walked across the street intersection in order to take the street car was the proximate cause of the accident.

The “sudden peril” or “emergency rule” is stated in Ruling Case Law, volume 20, p. 134 et seq.:

“In the foregoing discussion, it has been noted that a person is bound to use his intelligence and sense to discover dangers and upon their discovery to exercise diligence to avoid an injury therefrom. But while he is bound to take active measures to preserve himself from impending harm, he is by no means held to the same judgment and activity under all circumstances. The opportunity to think and act must be' taken into consideration. And although he may not have taken the safest course or acted with the best judgment or greatest prudence he may yet recover for injuries sustained if he can show that he was required to act suddenly or in emergency, without opportunity for deliberation. It has been said that a choice of evils may often be all that is left to a man, and he is not to blame if he chooses one, nor if he chooses the greater, if he is in circumstances of difficulty and danger at the time, and compelled to decide hurriedly. Of course, the presence of sudden peril will not excuse all errors of judgment and all omissions to act; such diligence must be exercised as the circumstances permit, the standard of care being that of a person of ordinary prudence when confronted with the same situation. There is no rule of law which prescribes any particular act to be done or omitted by a person who finds himself in a place of danger. In the variety of circumstances which constantly arise it is impossible to announce such a rule. The only requirement of the law is that the conduct of the' person involved shall be consistent with what a man of ordinary prudence would do under like circumstances. And whether the plaintiff exercised such care is for the jury’s determination. To authorize recovery it must be shown that the emergency was brought about by the acts of the defendant; for, of course, no one is to be held liable for the acts of others. And very plainly if the plaintiff was responsible for the peril he is not entitled to urge it as a ground for recovery.
“To excuse acts done in the face of sudden peril, it must be made to appear, as a matter of fact, that the danger was imminent and adequate to prevent the exercise of sound judgment, though it need not have been actual. Such a peril may be presented by the rapid approach of a vehicle on the highway. And so it has been held that if a person, seeing a car which has been negligently derailed coming across the street at full speed toward where he is standing, and becoming frightened runs for safety and falls, receiving an injury, he is entitled to recover from the owner of the car therefor. Again, an impending collision will excuse one in jumping from a vehicle or train, or in remaining therein when the safer course would have been to jump.”

See, also, Burrows, Negligence, p. 40.

In the case of Olivia Marie Baguie v. Leon Meraux (No. 11891, of the docket of this court) 123 So. 338, 339, decided June 24, 1929, we said:

‘‘If she exhibited confusion and darted, first one way, and then the other, her actions in that regard, even though she ran directly across the path of the automobile, cannot be regarded as contributory negligence for the reason that, in the emergency created by the unexpected appearance of the automobile, she could not be expected to exercise the same degree of judgment as one not subject to the fear of sudden disaster. Blashfield’s . Cyclopedia of Automobile Law, vol. 1, p. 597. If the Meraux car had been driven as slowly as it is said to have been, the accident could have been easily avoided by stopping the automobile together, until the safety of the four pedestrians was assured.”

Furthermore the whole trend of modern procedure is to do away with technicalities and to permit amendments where no cause of action is based upon the insufficiency of the allegations of the petition. Francis v. Barhazon, 10 La. App. 55, 120 So. 427; Blake v. Jefferson-St. Charles Transfer Co., 8 La. App. 310.

The petition could have been more specific and clearly. drawn, but' vagueness of a petition is not cause for the dismissal of the suit.

For the reasons assigned the judgment appealed from is annulled, avoided, and reversed, and the case is now remanded to the lower court for further proceedings according to law.

Judgment reversed, and case remanded.


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    No. 11,469
    Orleans
    VETERS v. WALSH
    (November 18, 1929. Opinion and Decree.)
    (December 16, 1929. Rehearing Refused.)

      Anna Judge Veters, of New Orleans, attorney for plaintiff, appellant.
    H. M. Ansley, of New Orleans, attorney for defendant, appellee.
   HIGGINS, J.

This is a suit by a. real estate agent and broker to recover a commission alleged to have been earned under a written contract with defendant. Defendant denied liability. On the trial on the merits the district judge dismissed plaintiff’s suit, and plaintiff has appealed.

The petition alleges that on July 6, 1927, plaintiff and defendant entered into a written agreement whereby plaintiff undertook to sell a certain piece of real estate owned by defendant in the city of New Orleans; that by the provisions of the contract, plaintiff was given the exclusive right to sell the property for $9,000 cash, or for any other price, or terms hereafter agreed upon, within a period of 90 days; that in consideration of plaintiff’s services, she was to receive “a commission at the rate of 4%, as fixed by the New Orleans Real Estate Agents’ Association, on the gross amount of any agreement to sell or exchange bearing on the said property made during the existence of this contract * * that as a result of the efforts of plaintiff in listing the property with the Multiple Listing System of the New Orleans Real Estate Agents’ Association, placing “for sale” signs on the property, advertising it through the newspapers, and quoting prices to prospective purchasers, plaintiff submitted a written offer of $8,000 by a prospective purchaser to defendant on August 30, 1927, and on August 31, 1927, defendant accepted the offer; that the acceptance of the offer was as follows:

“I authorize the acceptance of the above offer and agree to pay you 4% commission on pui'chase price ($320.00).”

That the prospective purchaser was ready, willing, and able to purchase, the said property in accordance with the agreement; and that the defendant refused to carry out the said contract. The petition prays for judgment for $320, together with 25 per cent additional as attorney’s fees for collection, as also provided in the contract.

Defendant admits all allegations of the petition as therein set forth, but denies liability on the ground that the offer which was accepted by defendant contained a provision “subject to entire house being within the limit of the property lines and no community rights granted”; that this provision of the contract could not be met or complied with, because the house encroached upon the adjoining property, and therefore defendant was precluded from carrying out the contract; that the contract of August 31, 1927, superseded the contract of July 6, 1927,- and as the second contract could not be ’ carried out, plaintiff had no right to claim the commission from defendant.

The evidence shows that the defendant voluntarily released the deposit of $800 which was made by the prospective purchaser, and also shows that, before the prospective purchaser submitted the offer, he had plaintiff inquire of defendant if the house was within the property lines of the lot on which it was situated and that defendant replied that the house was within the property lines. There .is nothing in the record to indicate that it would have been impossible to correct the encroachments so that defendant could have satisfied this provision of the contract; but even if impossible, plaintiff’s rights could not be affected, because the fault lay with defendant in not being able to deliver a good title, and hot with the offer of the prospective purchaser. Matthews Bros. v. Bernius, No. 11887 of the docket of this court, decided July 1, 1929, 123 So. 389. The fact that it would have been expensive for defendant to eliminate the encroachments would not release her from the contract, if the prospective purchaser had seen fit to hold her to specific performance of it. The purchaser had the right to insist upon the specific performance, as the deposit was not to be considered earnest money under the provisions of the contract. Even if this provision, as to the house being within the property lines, had not been expressly stipulated, the law would have implied it, so that its presence in the contract makes no difference in deciding the issues presented, Schill v. Churchill et al., No. 10995 of the docket of this court, 11 La. App. 181, 123 So. 139.

The contention that the contract of August 31, 1927, superseded the contract of July 6, 1927, is not well founded. The contract of July 6, 1927, is a standard, exclusive agency contract' under the Multiple Listing System of the New Orleans Real Estate Agents’ Association and was between plaintiff and defendant. The contract of August 31 was the result of a written offer and written acceptance of the offer between the prospective purchaser and the defendant. This agreement, while it contains a provision whereby the defendant again bound herself to pay the commission of plaintiff, does not in any way revoke or supersede the contract of July 6, 1927, but merely ratifies and confirms the provision in the contract of July 6, 1927, to pay the said commission of 4 per cent on the purchase price. The contract of July 6th could only be superseded or annulled with plaintiff’s consent or for cause.

As plaintiff, in good faith, rendered considerable service in carrying out her agreement of July 6, 1927, and submitted the bona fide offer, which was accepted by defendant, we are of the opinion that the commission was then and there earned under the provisions of the contract, and that the defendant could not deprive plaintiff of her commission by entering into a subsequent agreement with the prospective purchaser to set aside the contract of purchase and return the deposit.

For the reasons assigned, it is ordered, adjudged, and decreed that the judgment of the district court be, and the same hereby is, annulled, reversed; and set aside; and it is now ordered, adjudged, and decreed that there be judgment herein in favor of plaintiff, Miss Phene Veters, feme sole, and against the defendant, Mrs. Marie J. Walsh, in the full sum of $320, together with legal interest from judicial demand until paid, and 25 per cent additional as attorney’s fees, and all costs of court.


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    No. 11,368
    Orleans
    IDEAL SAVINGS & HOMESTEAD ASSN. v. GOULD ET AL.
    (November 18, 1929. Opinion and Decree.)
    (December 16, 1929. Rehearing Refused.)
    (February 5, 1930. Writ of Certiorari and Review Refused by Supreme Court.)

      H. W. Robinson and Pierre D. Olivier, of New Orleans, attorneys for plaintiff, appellee.
    P. Rivers Richardson, of New Orleans, attorney for defendants, appellants.
   JANVIER, J.

Defendant Gould had for many years been secretary-treasurer of the Ideal Savings & Homestead Association. It was discovered that there were large discrepancies in his accounts, and that he was indebted to the association for a sum in excess of $55,000. In an effort to settle his differences with the association, Gould agreed to transfer to the association all of his property in the parish of Orleans. In the carrying out of this agreement a notarial act of transfer was passed, and under this act he transferred to the association certain properties specifically described and “all other real estate belonging to the said Edgar G. Gould and situated in the Parish of Orleans, State of Louisiana.”

The property, No. 472 Lowerline street, in New Orleans, Was not specifically described in the act of transfer, and, shortly after the passage of the act of transfer, defendant Gould made a purported transfer of the said property, which stood in his name, to Samuel V. Edmiston, the other defendant in the present case. Edmiston did not take physical possession of the property, but immediately leased it to Gould for $40 per month, and Gould remained in possession from that time until he was dispossessed by judgment of the Supreme Court in the matter entitled Ideal Savings & Homestead Association v. Gould et al., 163 La. 442, 112 So. 40.

The suit to which we have just referred as having been decided by the Supreme Court was brought for the purpose of setting aside, as simulated, the sale by Gould to Edmiston. In that suit no claim was made for the value of the use of the property during the time it remained in the possession of Gould- or Edmiston, or both.

The present suit, however, is brought for the purpose of collecting from the two named defendants, jointly and solidarily, the said rental value, which it is alleged amounts to $1,960, being at the rate of $40 per month.

Payment is resisted on the ground that the judgment of the Supreme Court in the suit between the same parties constitutes “res adjudicata’’ for the reason that, although no claim for rents and revenues was included in the pleadings in that suit, the evidence admitted without objection showed that the monthly value of the use of the property was $40. It is now argued, in support of the plea mentioned, that the pleadings were enlarged by the evidence unobjected to, and that, as the decree of the Supreme Court did not award the plaintiff in that suit anything for rents and revenues, the effect of that judgment was to reject such an item. In support of this argument our attention is called to various decisions of the Supreme Court of this state. Parish Board of School Directors v. Alexander, 125 La. 808, 51 So. 906; Wells v. Blackman, 121 La. 394, 46 So. 437; Draper v. Richards, 20 La. Ann. 306; Houston River Canal Company v. Reid, 127 La.. 630, 53 So. 887, 888. In the last of the cases mentioned the court said:

“The admission of evidence of * * * documents” outside the issue, “without objection, has the effect of enlarging the pleadings, so as to include issues so raised.”

We readily recognize the rule that evidence, unobjected to, enlarges the pleadings, but we do not believe that such a rule goes to the extent of requiring us to hold that evidence unobjected to may be used to create an additional claim, which was entirely omitted from the pleadings. For instance, it is well recognized that the failure to plead contributory negligence may be cured by the introduction without objection of evidence showing facts which establish that there was contributory negligence, but we cannot go so far as to hold that, if evidence is introduced in support of a claim on one item which tends to show that the claimant is entitled to recover on other items, a judgment can be awarded the plaintiff on these other items. His right of recovery is plainly limited to the demand contained in his petition. Since, therefore, in the first suit mentioned, in which the title to the property was involved, there was no claim for rents and revenues, it is manifest that no judgment could have been rendered in favor of the homestead association on these rents and revenues. Since no judgment could have been rendered on that claim in its favor, it is very evident that the judgment which was rendered cannot constitute “res adjudicata” as to that claim. As the Supreme Court said in Laroussini v. Werlein, 50 La. Ann. 637, 23 So. 467:

“Where the judgment does not decide certain issues, and this is made manifest by the decree itself, the decision will not support the plea of res judicata.”

In a case very much in point, Lalanne v. Newhauser, 1 Orleans App. 201, this court said:

“Where a suit claiming the ownership of certain movables illegally seized is decided in favor of the claimant, and she subsequently sues on an indemnity bond for their value, a plea of res judicata on the ground that the first judgment rejected all demands for damages will not prevail.”

Defendants further contend that, if the claim for rents and revenues was not included in the original suit, it should have been, and that the demand that the simulated sale be set aside could not be separated from the claim for rents and revenues, for the reason that the Code of Practice, art. 156, provides:

“If one demand less than is due him, and do not amend his petition, in order to augment his demand, he shall lose the over-plus.”

Many cases are cited in support of this contention, but we do not think any of them are applicable, because a claim for the return of property is a separate and distinct claim from that for the value of the use of property during unlawful detention. Two separate items are involved, and, while it is true that they may be joined in one action, it is equally true that the bringing of an action on one of the items will not preclude the later filing of a separate action on the other. Laroussini v. Werlein, supra; Aucoin v. New Orleans, 111 La. 745, 35 So. 888; Wilson v. Curtis, 13 La. Ann. 601.

Defendant Edmiston contends that he cannot be held liable for more than $160, because he did not actually take possession of the property, and (during the occupancy of Gould, received from him rents for only four months or $160. The record shows that this is true, and it is unfortunate if Edmiston has been made a victim in this matter, but the fact remains that, during the time for which rent is claimed, the property stood in the name of Edmiston, and the further fact remains that the pretended sale to Edmiston was set aside by the Supreme Court as being simulated, and the inevitable legal conclusion results that those concerned in the simulated transaction are responsible solidarily for the loss caused the real owner of the property. The real owner, as the Supreme Court has said, is the present plaintiff. The value of the rent of the'-occupancy of the property, as all parties agree, was $40 per month, and the real owner was kept out of possession of its property for a period, which, at $40 per month, would make the total loss amount to $1,960, as claimed.

The judgment of the district court is therefore affirmed at the cost of appellants.


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    No. 11,857
    Orleans
    MATHEWS v. D’ASARO
    (February 17, 1930. Opinion and Decree.)
    (April 7, 1930. Rehearing Refused.)
    (June 4, 1930. Writ of Certiorari and Review Refused by Supreme Court.)

      Deutsch & Kerrigan, of New Orleans, attorneys for plaintiff, appellee.
    Paul W. Maloney, of New Orleans, attorney for defendant, appellant.
   HIGGINS, J.

Plaintiff sues the defendant for the sum of $677, with 6 per cent interest thereon from November 6, 1927, until paid, as the balance ' due on an alleged written contract, dated October 6, 1927, whereby plaintiff agreed to sell and defendant agreed to buy certain real estate situated in St. Tammany parish of this state. The defendant filed exceptions of misjoinder of parties defendant and no cause of action, which were overruled. He then answered the petition denying liability on the ground that he was unable to read and write, and depended upon the representation of plaintiff’s agent, who failed to give him sufficient data as to the location, value and dimensions of the property, and therefore there was not a meeting of the minds so as to produce a valid contract.

There was judgment in favor of plaintiff for the amount prayed for, and the defendant has appealed.

The exception of misjoinder of parties defendant is based upon the fact that the contract contained the provision that the title to the property would be placed in the name of Steve D’Asaro and Mrs. Steve D’Asaro, after completion of the respective installment payments provided by the contract. In disposing of this exception it is sufficient to say that the contract is only signed by Steve D’Asaro. The only interest that his wife would have in the property would be to have the title placed in their joint names after the property was paid for, but, as she did not sign the contract, she was not a necessary party to this suit. Furthermore, it appears that this was a community debt, and, as the husband is the head and master of the community, he alone would be responsible. C. C. art. 2402; Lacour v. Knop, 10 Orleans App. 3; Goldman v. Sugar Bros. Co., 8 La. App. 562; Succession of James, 147 La. 944, 86 So. 403; Moore v. Pitre, 149 La. 910, 90 So. 252, and Whittington v. Heirs of Pegues, 165 La. 151, 115 So. 441.

The exception of no cause of action is leveled at the fact that the plaintiff did not place the defendant in default before entering suit. It appears under the terms and provisions of the contract that putting in default was waived by the defendant. The record also shows that on April 24, 1928, defendant was notified through plaintiff’s attorney that, as he had failed to pay the installment due on the contract, the entire balance of the purchase price had matured under a provision in the contract to that effect, and that, unless defendant paid the balance due and took title to the property, suit would be entered. Defendant refused to comply with this demand.

It is also argued in support of the exception of no cause of action that, as the real estate broker, which was a commercial partnership composed of plaintiff and his two brothers, was not authorized in writing to sign the contract on behalf of plaintiff with the defendant, the contract was without any legal effect, because any agreement affecting real estate must be in writing. The record shows that the contract was signed by Mathews Bros., agents for vendors, per Ben B. Mathews. The evidence also shows that Ben B. Mathews was the record owner of the property covered by the contract. We are of the opinion that, as Ben B. Mathews signed the contract, written power of attorney from him to the partnership was unnecessary, as he was the owner of the property. He would likewise be estopped from denying want of authority by the partnership as a real estate broker to effect the sale of the property in his behalf. Furthermore, the plaintiff, having filed suit on the contract, thereby ratified any act of the real estate brokerage firm. 2 C. J. 513; Surgat v. Potter, 12 Mart. (O. S.) 365; Szymanski v. S. Plassan, 20 La. Ann. 90, 96 Am. Dec. 382; Zino v. Verdelle, 9 La. 51; Succession of Gilmore, 154 La. 105, 97 So. 330.

This brings us to the merits of the case, and the evidence abundantly supports the finding of the district judge that the plaintiff afforded the defendant every reasonable opportunity to actually view the property, and pointed out its location on a blueprint which was introduced in evidence. Defendant ha,d previously bought other property from plaintiff in the same subdivision. We find that the plaintiff made no misrepresentation as to the property’s value, location, or dimensions.

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


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    No. 11,149
    Orleans
    MRS. CECELIA PLICK, Wife of Frank A. Adams, and FRANK A. ADAMS v. ANTHONY TUSA, Doing Business under the Trade Name of Tusa Brothers, and JAMES MARTIN
    (November 18, 1929. Opinion and Decree.)
    (December 16, 1929. Rehearing Refused.)

      Normann, Breckwoldt & Schwartz, of New Orleans, attorneys for plaintiffs, appellants.
    Gordon Boswell, of New Orleans, attorney for defendants, appellees.
   HIGGINS, J.

Plaintiffs, as mother and father, enter suit against defendants for damages for the death of their minor son upon whom they were partially dependent for support. Defendant denied liability on the ground that the deceased’s death was due to his own fault, and pleaded contributory negligence. |

There was judgment in favor of the defendants, dismissing plaintiffs’ suit, and plaintiffs appealed.

This case presents only issues of fact.

The record shows that, on December 23, 1926, at 4:30 p. m., plaintiffs’ son, colored, aged 20 years, was driving a taxicab in the direction of the river, on Peniston street, which is a one-way street in the direction of the river. At the same time, James Martin, colored, aged 20, was driving defendant’s one-ton Pord truck downtown on Carondelet street. Carondelet street was a two-way street, where automobile traffic was heavy. Both of these streets are approximately the same width. The taxicab and the Pord truck reached the intersection of Peniston and Caronde: let streets at or about the same time. The drivers of both machines entered the intersection at a fast rate of speed. Due to the fact that another truck was proceeding on Peniston street, in the direction of the river, at the time; when the taxicab reached the intersection of Carondelet street it was necessary for the taxicab to pass to the left of this truck. Thus, this truck on Peniston street was between the taxicab and the Pord truck which was proceeding down Carondelet street, and would tend to intercept the views of both drivers and thus prevent them from seeing each other’s machine. When the taxicab reached a point approximately eight or ten feet from the river side of Carondelet street, on the left or downtown side of Peniston street, the Pord truck struck the taxicab on the right side, about the middle. The taxicab then continued out Peniston street in the direction of the river, and came to rest facing in the direction of the way it had come, after having turned over on the downtown or left side of Peniston street, partly on the street and partly on the sidewalk, and across the gutter, approximately 30 feet from where the accident occurred. As a result of the collision the right rear door and fender of the cab were torn off, the right rear wheel turned under the cab, and the rear body bolts were sheared from the chassis. The driver of the taxicab was thrown from his car and suffered a broken neck and other internal injuries which resulted in his death almost immediately. The entire front end of the Ford truck was smashed in, and it turned and faced in the direction from which it had come, and turned over on its left side in the intersection of Peniston and Carondelet streets, near the downtown river side corner of the two streets. •

It is the contention of the plaintiffs that the accident was caused solely by the fault of the driver of the Ford truck, as the taxicab had reached the intersection first and therefore had the right of way.

It is the contention of the defendant that the deceased was solely at fault, as the truck had reached the intersection first and therefore had the right of way, and in the alternative that the deceased was guilty of contributory negligence.

There were certain photographs introduced in evidence, which show that there are palm trees on the uptown, lake side of Peniston street, which intercepted the views of the drivers of both machines and prevented them from seeing the approach of each other’s machine until they nearly reached the intersection, but regardless of the fact that their views were intercepted by the palm trees, and also by the other truck between them, both drivers entered into the intersection at an excessive rate of speed.

We are convinced that both machines were running at an excessive rate of speed at the time of the accident, because of the extent of the damage to both machines. The photographs introduced in evidence show the entire front of the Ford truck demolished, including tne two front wheels, radiator, front springs, both front fenders, both headlights and the hood, as well as the dash board and windshield. The testimony in the record as to the extent of the damage to the taxicab shows that the right rear door and fender were completely knocked off the machine and found on Peniston street near the scene of the accident. The rear body bolts were sheared off completely, severing the body from the chassis of the machine, the right rear wheel was bent under the cab, and that it ran some thirty feet after the collision and turned over on the downtown side of Peniston street, partly on the sidewalk and partly in the street astride the gutter. The evidence also shows that the impact was sufficient to almost stop the Ford in its tracks and caused it to be turned over on its left side and faced in the direction of Napoleon avenue, the opposite direction from which it had come.

Under the ordinance of the city of New Orleans and the decisions of this court, vehicles approaching intersecting streets from the left shall give right of way to vehicles approaching from the right, and this rule applies especially to vehicles arriving at an intersection at approximately or the same time. Dameron-Pierson Co. v. Stafford, 1 La. App. 506; Firemen’s Ins. Co. v. Brook Tarpaulin Co., 3 La. App. 502.

The evidence shows that there was a “slow” sign painted in the middle of Carondelet street at the intersection where the truck was approaching and that there was a “stop” sign painted on the pavement in the middle of Peniston street at the place where the cab was approaching, ■which signs were placed there under the traffic regulations of the city of New Orleans. Neither driver obeyed these traffic warnings, and it was negligence on the part of both drivers to disobey and disregard them.

The district judge, in his reasons for judgment, cited the testimony of one of plaintiff’s witnesses, Joseph Graziaho, who was seated on his truck, which the taxicab passed at the intersection of Peniston and Carondelet streets, immediately before the accident. This witness testified that the defendant’s truck was going at such a rapid rate of spee_d that, in order to avoid a collision he steered his truck sharply to the right, running upon the lake uptown sidewalk at said street intersection. Graziano saw and appreciated the danger and averted it by stopping his machine. The deceased likewise should have seen the truck and used due precaution in slackening his speed, or stopping, in order- to avoid the accident. In not doing so, he was guilty of negligence which contributed to his death. Belden v. Roberts, 3 La. App. 338; Stern v. Yellow Cab Co., 2 La. App. 273; Buras v. The Southern Coffee Mills, 123 So. 372.

Counsel for plaintiff has strenuously argued that the physical facts, that the taxicab was nearer the river side of Peniston street at the time of the collision, and that the front of the Ford struck the right side of the taxicab about the middle, conclusively show that the taxicab had ' entered the intersection first, and under the law had gained the right of way and was entitled to proceed. He cites a long list of authorities in support of the proposition that the vehicle which enters the intersection first gains the right of way and is entitled to proceed. This is undoubtedly the law. But the evidence does not convince us that the taxicab entered the intersection first and gained the right of way; we are satisfied that both vehicles entered the intersection at or about the same time. It is to be noted that the truck traveled from the uptown' side of Peniston street to almost the lower side of Peniston street, where it struck the taxicab. It is also to be noted that the taxicab was on the extreme left-hand side of Peniston street, due to the fact that it had just passed a truck, which was traveling on Peniston street in the same direction. Carondelet and Peniston streets are approximately the same width. Therefore, both machines had traversed approximately the same distance of the intersection at the time of the collision. It appears to us that both machines were going at approximately the same rate of speed, at the. time of the accident; hence there can be but one conclusion, that the machines entered the intersection at or approximately the same time. We are satisfied that both drivers were at fault in causing this unfortunate accident.

The plaintiff carried the burden of proving the case by a preponderance of the evidence, and as the case involves only issues of fact, which were resolved by the judge a quo in favor of the defendant, we cannot say that he is in error in dismiss ing plaintiff’s suit.

For the reasons assigned the judgment is affirmed.


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    No. 11,911
    Orleans
    LANDRY ET AL. v. PHOENIX UTILITY COMPANY
    (November 18, 1929. Opinion and Decree.)
    (December 16, 1929. Rehearing Refused.)
    (February 5, 1930. Writ of Certiorari and Review Refused by Supreme Court.)
    M. C. Scharff, of New Orleans, attorney for plaintiffs, appellants.
    Thatcher, Browne, Porteous & Myers, of Shreveport, attorneys for defendant, appellee.
   WESTERFIELD, J.

Plaintiff, as the surviving widow, brings this suit on her own account and on behalf of her minor children against the defendant for compensation for the death of her husband, Woolfred L. Landry, who was injured in the course of his employment on the 12th day of May, 1927, and died on the 18th day of July, 1927, or twv months and six days thereafter.

It is admitted that the deceased was injured in the course of his employment, the injury consisting of a severe blow on the chest by a piece of timber, causing a double fracture of the eighth rib and a simple fracture of the ninth rib. It is denied, however, that the accident and injury had anything to do with Landry’s death, which was admittedly due to hemorrhages resulting from ruptured ulcers of the duodenum. It is plaintiff’s contention that the ulcers were either caused by the blow on Landry’s chest or were so aggravated, as a result of the blow, that it precipitated his death. On the other hand, defendant contends that there was no causal relation between the accident and death.

The burden of proof rests upon plaintiff to establish the fact that the wounds received by decedent were either the sole or contributing cause of his death. Wilson v. Harris Oil Co., 3 La. App. 195; Ash-craft v. La. Central Lumber Co., 4 La. App. 113; Behan v. Honor, 143 La. 349, 78 So. 589, L. R. A. 1918F, 862.

An autopsy was performed by Dr. Couret, a pathologist connected with the staff of Hotel Dieu and Charity Hospital, who, as a result of his anatomical diagnosis, expressed the opinion that the fracture of Landry’s ribs had nothing to do with his ■ death, which resulted from hemorrhages from duodenal ulcers. His findings were multiple ulcers of the duodenum, hemor- ■ rhages and acute and chronic diffuse nephritis.

There is considerable expert medical testimony in the record and it is, as is not unusual in such cases, conflicting. Dr. Menendez, who is supported in a measure by Dr. Compagna, and Dr. Fredericks, after first stating that the cause of gastric or duodenal ulcers is unknown, and to that extent all experts in the case seem to be in agreement, declared that it was his opinion that the ulcers which caused Landry’s death were due to the blow received by him in the chest. He maintained that gastric or duodenal ulcers might be caused by external trauma. Going into detail he stated that it is possible for blood clots or emboli to form in the blood as a result of the trauma, and that these emboli, being taken up by the blood stream, can find lodgment in any part of the body, for example, entering the brain they can cause paralysis and death, and finding lodgment in the duodenum or stomach can produce ulcer formations. In the doctor’s own language, “You can have a simple fracture and still get thrombosis and embolic infraction, and this ' case results in ulcers.”

Dr. Denegre Martin, Dr. Benjamin Led-better, Dr. C. Grenes Cole and Dr. Couret, the pathologist, all testify that the death of Landry was in nowise due to the accident, either as the sole or contributing cause. They were most emphatic in saying that Dr. Menendez was mistaken and that it was impossible for ‘ gastric or duodenal ulcers to be caused by external trauma. All of defendant’s experts testify that an individual might suffer from ulcers of the stomach or duodenum (both maladies seem to be associated in the discussion and to be regarded as similar in origin and development) without being aware of the fact until the disease had made such progress as to be beyond medical control.

The plaintiff in this case was a carpenter and all the evidence is to the effect that he was in good health at the time of his injury, enjoyed a good appetite and suffered no physical discomforts whatever. After the accident he complained of pains in his side, which became more severe notwithstanding the treatment of several doctors, who attributed his suffering to the injury to his chest. It was not until a few days prior to his death that an x-ray revealed the presence of the duodenal ulcers, which caused the hemorrhages which caused his death.

To the untutored mind of this court it would appear that a severe injury, resulting in the fracture of two ribs, one of them in two places, such as was suffered by the deceased, Landry, would have some causal relation, or would at least, have contributed to his demise, which occurred about two months after the injury, particularly since the testimony is to the effect that he had previously enjoyed good health and was not known to complain of any physical illness prior to the accident. This conclusion to’ the lay mind would seem most reasonable, but we are not privileged to indulge our impressions in a matter so technical, in view of the expert testimony in the record, which clearly preponderates to the effect that duodenal ulcers, the admitted cause of Landry’s death, could not he produced as a result of external trauma. The expert medical testimony also preponderates to the effect that the trauma was not a contributing cause, some of the physicians advancing the view that the nephritis, which the autopsy disclosed as present, was most likely an important factor in the result because as, Dr. Martin puts it,. “If there is anything in God’s world that will lower a man’s resistance, that will do it.”

The trial court, who heard the doctors testify, denied recovery upon the same ground upon which we base our conclusion, the preponderance of the expert medical testimony in favor of defendant and if we and our brother below have erred, the responsibility must rest with the medical .profession and not the judiciary.

For the reasons assigned the judgment appealed from is affirmed.


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    No. 11,666
    Orleans
    MADISON LUMBER CO. v. McGUIRE
    (November 18, 1929. Opinion and Decree.)
    (December 16, 1929. Rehearing Refused.)
    Deutsch & Kerrigan, of New Orleans, attorneys for plaintiff, appellee.
    Paul W. Maloney, of New Orleans, attorney for defendants, appellants.
   HIGGINS, J.

Plaintiff, a materialman, filed suit against the defendant, as owner, to recover the sum of $1,408.81 for material "furnished for the erection of a building on the property of the owner, and for the recognition and maintenance of its materialman’s lien and privilege on the property. The defendant denied liability. There was judgment in favor of plaintiff and defendant has appealed.

The petition alleges that plaintiff sold and delivered to Charles S. Young, as contractor, certain building material at various times between August 1, 1927, and November 22, 1927, amounting to $1,406.31; that the said Young used the material in the construction of a building on defendant’s property; that the said Young was adjudged a voluntary bankrupt and did not pay the said bill or any part thereof; that a sworn itemized statement of plaintiff’s claim was duly recorded in the mortgage office on January 5, 1928; and that a sworn itemized statement was sent by registered mail to the defendant on January 29, 1928; and that the contract between Charles S. Young, as contractor, and the defendant, as owner, for the erection of the building, had never been recorded in the mortgage office of'this parish. Defendant filed a general denial to plaintiff’s petition.

The record clearly shows that the plaintiff proved by a preponderance of the evidence that the material was delivered and used in the erection of the building. The record also shows that the last delivery was on November 22, 1929, and the notice to the owner was sent by registered mail on January 29, 1929. This is more than sixty days from the date of last delivery as provided in section 12 of Act 298 of 1926. Notice, if required by this section, should have been given to the owner within sixty days. But, we have reached the conclusion that notice to the owner of the claim of the lienor by service of á sworn itemized statement, is not necessary under the provisions of section 12 of Act 298 of 1926, for the reasons assigned in the ease of John F. Lawrence v. W. L. Wright et al., No. 13173, 124 So. 697, this day decided by us.

As this is a case where the contract was not recorded it peculiarly falls within the provisions of section 12 of Act 298 of 1926. Since plaintiff has fully complied with the provisions of this section, it is entitled to a valid lien.

For the reasons assigned, it is hereby ordered, adjudged, and decreed that the judgment appealed from be and it is affirmed.


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    No. 11,851
    Orleans
    WALD v. BOARD OF COMMISSIONERS OF THE PORT OF NEW ORLEANS
    (November 18, 1929. Opinion and Decree.)
    (December 16, 1929. Rehearing Refused.)

      Paul W. Maloney, H. J. Wyman, of New Orleans, for plaintiff, appellant.
    Milner & Porteous, of New Orleans, attorneys for -defendant, appellee.
   HIGGINS, J.

This is a suit for damages for personal injuries against the Board of Commissioners of the Port of New Orleans and the Union Automobile Insurance Co. of Los Angeles, Cal., in solido. Defendants denied liability on the ground that the chauffeur of defendants was not at fault, and set up certain special defenses and a plea of contributory negligence. There was judgment in favor of defendants and plaintiff has appealed.

The conclusion we have reached on the facts makes it unnecessary to state the special defenses.

The record shows that on December 16, 1926, at 11:30 a. m., plaintiff was a passenger on a truck owned by her husband and at the time driven by her daughter, Lucille Wald. The truck was proceeding on Oak street in the city of New Orleans in the direction of Carrollton avenue, at a speed of approximately 20 or 25 miles per hour, and was in the center of the street, where the street railway tracks are located. Oak street is a two-way street, running from the Protection Levee to Carrollton avenue. The Ford touring car of the Board of Commissioners of the port of New Orleans, was in charge of its chauffeur, Fred Mahl, and was proceeding on Oak street in the direction of Protection Levee at a rate of speed of approximately 8 or 10 miles per hour, with the left wheels of the car over the right rail of the street railway tracks which occupied the middle of Oak street. There was a truck parked on an angle of about 45 degrees in front of the branch post-office which is situated on the river side of Oak street, between Dublin and Dante streets. This truck was parked on the river side of Oak street, and on the woods side of this street there was parked a Nash automobile, also on about the same angle, and directly opposite the truck. On account of the street being of ordinary width, the parked truck and Nash automobile left a small aisle between them which was not sufficient to permit two cars to pass simultaneously. Through this aisle between the two parked machines, the street railway tracks passed.

The testimony convinces us that the Ford touring car reached the aisle between the two parked machines, and was practically through it, before the truck, upon which plaintiff was riding and which was in charge of her daughter, approached this narrow space, and therefore the Ford touring car had the right of way. The driver of the touring car, having the right of way, had a right to assume that plaintiff's daughter would slacken the speed of her truck, or stop, in order to permit him to safely pass. Instead of Miss Wald slowing down or stopping, she continued on-her course about in the middle of the street, on the street ear tracks, with the result that the left front part of the Ford truck struck the left front part of the Ford touring car, causing plaintiff to be thrown through the windshield and injured as alleged.

Miss Wald, in her testimony, testifies that she only saw the Ford touring car a fraction of a second before the collision took place. As the accident happened in broad daylight, if Miss Wald had kept a proper lookout, she would undoubtedly have seen the Ford touring car in time to slow down or to stop the Ford truck and avoided the accident. Oak street is a very busy thoroughfare, and there was heavy .traffic and a number of automobiles parked on it at tbe time. We are quite convinced that the accident was caused entirely by the fault of Miss Lucille Wald, plaintiff’s daughter, in not keeping a proper lookout, and in failing to keep her ear under proper control.

The burden of proving the case by a preponderance of evidence was on the' plaintiff and she has failed to show where the driver of defendant’s truck was at fault.

The judge of the district court, after hearing the witnesses, arrived at the conclusion that the defendant’s driver was not at fault, and we see no reason for disturbing his judgment.

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