text:
    No. 10,713
    Orleans
    HARANG v. N. O. PUBLIC SERVICE, INC.
    (June 18, 1928. Opinion and Decree.)
    (July 2, 1928. Rehearing Refused.)
    (October 3, 1928. Writ of Certiorari and Review denied by Supreme Court.)
    Quintero and Quintero, and H. W. Robinson, of New Orleans, attorneys for plaintiff, appellant.
    Benjamin W. Kernan, of New Orleans, attorney for defendant, appellee.
   OPINION

JONES, J.

Plaintiff, who had fallen while alighting from a street car of defendant just in the curve of the tracks at the corner of Baronne and Canal Streets, sued for sixty-seven hundred dollars as damages for a broken ankle. She bases her case on the following charges of negligence:

(1) That the defendant was negligent in that the landing place over and above the curve of the tracks was’ an unsafe landing place and was or should have been known to be such by defendant.

(2) That the type of grooved rail used at the point indicated was dangerous to life and limb.

(3) That the Tail was also dangerous because it was highly greased and was partly hidden by the steps of the car and passengers could not see said rail in alighting from the car.

(4) That defendant maintained a customary landing place at or near the point indicated and said stopping place was an unusual place to disembark passengers.

Defendant denies any negligence on the part of the company or its employees and says that Mrs. Giles was injufed as alleged in her petition it was due to her own carelessness, neglect and imprudent conduct in failing to exercise that degree of care required by the circumstances then and there existing, considering the character and style of shoes she wore and the probable effect thereof on a person of her weight.

The suit was filed in July, 1925, and in July, 1926, was tried without a jury. There was judgment for defendant rejecting plaintiff’s demands and she has appealed.

Plaintiff and the motorman are the only witnesses as to details of fall.

Plaintiff testifies she boarded the car, paid her fare, about 9.30 o’clock on the morning of March 18, 1925, and as she wanted to leave the car at Baronne and Canal Streets, went out with the other passengers to front platform, when the car stopped partly over the curve; when she stepped down, she was facing as though she was going to walk ahead of her, not to the back; she held her left hand on the bar used by passengers, put her right foot on the step and the left foot toward the ground; she did not see the rail as the steps partially covered it; the toe on the outside of the foot got into the rail and threw her so that she fell half on the neutral ground and half on the street; she identified the shoe worn that day and indicated the front as the part that went into the rail.

At time of accident she weighed about 153 or 155 ¡pounds; about 5 feet 7 inches tall and her age is 30; thinks rail was a little greasy but could not say that she saw it, “everything happened so, quick I couldn’t say that.”

Her recollection is that cars always stopped around the curve; on the neutral ground there was a place for passengers to alight, but it made a perfect point with the curve rail and the neutral ground at that intersection is almost even with the street as shown in the pictures.

When she left car, motorman was on front platform; she passed about two feet back of him and he gave no warning of any kind as to condition of track or stepping to avoid it.

Under cross-examination she said she had lived in New Orleans about twelve years; frequently came uptown on that line of cars and got off at corner of Baronne and Canal; never was hurt before; could not say that cars always stopped at the same place; thinks she got out from middle of step but did not remember exactly, nor could she say positively whether the bar she held divided the car step, but she held the bar and when she stepped to the ground her toe caught in the car track; she let go the bar because weight of her body pulled it as she was thrown; the track was so that her foot went into it.

The motorman testified substantially as follows:

He stopped at regular place about a foot from white line placed there by traffic police to mark foot-way for pedestrians; car was slightly in curve; several passengers who got off ahead of lady were not hurt; saw her when she got off; she landed safely on the ground and made one step away "from the car and fell.

He could not say what she stepped on, or into, or anything of that kind: the rail was just at the step of the car; she could have stepped into it; she was not positive whether she did or not. When his attention was called to Mr. Johnson’s testimony that Mrs. Giles’ body was lying a foot or a foot and a half from step of the car when he got there, witness said: “Yes, sir, just about that, just about one step. She wasn’t lying, she was in a sitting position.” He did not get down to examine locality; he did not see any hole or object into, or onto, which Mrs. Giles could have stepped, which would have caused her to dislocated her ankle or her leg.

The photograph of the specific car placed just as it stood is in the record. This shows that the car had one sliding door, with the handle bar for passengers on the front end of the door.

It would appear that a passenger, who was holding the bar with her left hand and facing to the front of the car, would ordinarily keep his left foot on the step, and place his right foot on the ground.

However, as the motorman is utterly unable to explain the fall and plaintiff does not offer an explanation, we have accepted after much consideration the version of plaintiff, though it is confusing and improbable.

At the front end of the step the curve was one foot and one-eighth inch distant therefrom and at the rear of the step it was three and seven-eighths inches therefrom.

Pour or five persbns got out of the car before plaintiff did; none of them fell down.

The place where the car stopped had been the usual stopping place for cars bound uptown for at least a year and a half, before the' accident, in accordance with the orders of Capt. Casey, head of the Traffic Police Department, and cars continued to stop at that curve after the accident until the traffic signals on that corner were changed some weeks later; the tracks at that place were standard construction and in excellent shape; what is known as a guard rail is a specially designated rail for curve work, in order to keep the car on the track in going around a sharp curve, and the inside of the curve is a little higher than the ball of the rail. The pavement on the inside comes up half flush with the ball, and on the outside it is flush with the ball of the rail. The pavement at that point was in good shape, it is right at the point where the pavement meets the neutral ground curve, and the two are about flush at that point. Groove in guard rail is 9/16 of an inch deep, that is below the ball of the rail, top of guard rail; space between" ball of rail and guard rail is 1 5/8 inches.

Was this a reasonably safe place under these facts?

In Clogher vs. N. O. Ry. & Light Co., 143 La. 85, 78 So. 247, where a passenger was injured in alighting from a car which had stopped twenty feet from the usual station and where the gravamen of plaintiff’s charge of negligence was, as it is here, that defendant had failed to furnish a reasonably safe landing place, the Supreme Court said:

“At the place where the car stopped, the step of the car was fifteen and one-half or sixteen inches above the roadway, accordingly as the stop was made fifteen or twenty feet from the regular stopping place; and hence all plaintiff would have had to do for safely alighting would have been to extend her foot seven inches out and step down fifteen and one-half or sixteen inches while holding on to a handlebar. We think such a place was reasonably safe, and that if the plaintiff had been mindful of her step she would not have fallen.”

In Freeman vs. New Orleans Public Service, Inc., 1 La. App. 600, at the time of the accident the car in which plaintiff was a passenger was stopped about 120 feet from the terminus. The bottom step of the car was some four or. five inches higher from the ground than the step would have been if the car had discharged its passengers at the usual stopping place at the end of the line, but the ground itself was level. Plaintiff testified to the effect that the cross-ties upon which the tracks were laid were elevated some four or five inches above the ground level. Two of defendant’s witnesses stated that the ground was level with the cross-ties, the spaces between the cross-ties being filled with cinders.

The Court said:

“Under the circumstances of this case, did the defendant carrier fail in its duty to provide a safe landing place for its passenger, the plaintiff, in the question we are called upon to decide.
“It was not the usual landing place and a longer step was necessary in order to alight from the car, but neither circumstance constitutes negligence on defendant’s part.” Citing Clogher vs. N. O. Ry. & Lt. Co., 143 La. 85, 78 So. 247.

In Gaisser vs. New Orleans Public Service, Inc., 6 La. App. 139, it appeared that plaintiff in boarding a Dryades car at the corner of St. Charles and Jefferson Avenues, fell and was injured. The conditions existing upon the date of the accident were the same which had prevailed for a long time previous, both as to the street, the neutral ground, and the cars. There was no record of any accident having happened to any passenger attempting to board the car.

The Court said:

“We do not think that the increased distance of 7% inches was sufficient to make the steps dangerous, if proper precautions had been taken. * * * Facts speak louder than opinions. For the many years during which the conditions complained of had existed, numberless passengers had entered the cars and not an accident was recorded. The same conditions exist in many other neutral grounds upon which cars are run.”

In Carroll vs. N. O. Ry. & Light Co., 132 La. 683, 61 So. 752, the Court said:

“The place at which plaintiff alighted was a reasonably safe place, as shown by the fact that many persons had made use of it without incurring harm.”

In Durieu vs. N. O. Public Service, Inc., 7 La. App. 276, the Court said:

“Carriers must provide reasonably safe landing places in discharging passengers. But the fact tha,t the surface of the pavement is uneven and there are cracks in the pavement does not in itself establish the carrier’s negligence.”

In Callier vs. N. O. Ry. & Lt. Co., No. 8126, Court of Appeal, the Court held:

“Negligence is the failure to use such care as is necessary to avoid a danger which should and could have been anticipated, by reason of which the plaintiff has suffered an injury.”
“A defendant can only be required to guard against anticipated danger.”
“Evidence that no accident had occurred for a long time after the existence of a certain condition of things, and that none suggested itself to the mind, would justify the failure to anticipate possible danger.’’

In Gilliam vs. T. & P. Ry. Co., 114 La. 272, 38 So. 166, the Supreme Court, in discussing what is implied in the term negligence, has said:

“Defendants have been repeatedly relieved from the charge of negligence where the act done or omitted to be done was one which the party had no reasonable ground to know or believe, or could not .reasonably be held to foresee in the light of the attending circumstances, or which he did not know would carry with it injury as its natural and probable consequence.”

We think the above decisions are controlling in this case.

Plaintiff relies upon the decision of the Supreme Court in Hopkins vs. N. O. Ry. & Lt. Co., 150 La. 61, 90 So. 512, 19 A. L. R. 1362, and the decisions of this Court in Rizzo vs. N. O. Ry. & Lt. Co., 7 La. App. 687.

These decisions are not applicable where the cause of the accident is proved.

For above reasons the judgment is affirmed.


source: Caselaw Access Project

author: JONES, J.

license: Public Domain

text:
    No. 11,181
    Orleans
    STATE EX REL. MATTERN v. CITY OF N. O. ET AL.
    (July 2, 1928. Opinion and Decree.)
    (August 13, 1928. Rehearing Refused.)
    W. Winans Wall, of New Orleans, attorney for plaintiff, appellee.
    I. F. Williams, of New Orleans, attorney for Recorder of Mortgages.
    George W. Berry, of New Orleans, attorney for propria persona.
   JONES, J.

In this case, plaintiff, the owner of the property described in the petition, obtained • a mandamus from the Civil District Court, ordering the Recorder of Mortgages to cancel from his records two paving liens over ten years ol(j.

One of these claims was for paving on St. Ann Street and amounted to fifty-three and 46-100 dollars, the other was for a sidewalk and amounted to twenty-nine and 52-100 dollars. The City of New Orleans, the Recorder of Mortgages and the contractor who laid sidewalk were made parties.

The City of New Orleans and the Recorder of Mortgages filed exceptions, as follows:

1st. Court without jurisdiction ratione materiae.

2nd. Petition is too vague and indefinite to permit respondent to answer.

3rd. Petition disclosed no right or cause of action.

All exceptions were overruled by the trial Judge and answers were filed in which all the facts set up by relator were denied on information and belief, except the recordation of the liens, which was admitted,.

The contractor, though served personally, filed no pleading.

Evidence shows plaintiff to be the owner and it is admitted that the paving lien was recorded in mortgage office October 2, 1895, and the sidewalk lien on April 21, 1913.

The Civil District Court had jurisdiction.

The writ of mandamus is defined in Article 829, in the Code of Practice as follows :

“Art. 829. Mandamus. This is an order issued in the name of the State by a tribunal of competent jurisdiction, and addressed to an individual or corporation, or Court of inferior jurisdiction, directing it to perform some certain act belonging to the place, duty or quality with which it is clothed.”

Article 836 says:

“Art. 836. This order, in all the above mentioned cases, can only be issued by courts whose jurisdiction in civil matters exceeds one hundred dollars, exclusive oí interest.”

Under the Constitution of 1921, the Civil District Court for the Parish of Orleans has jurisdiction over all suits in which there is no money demand, as well as in cases in which more than one hundred dollars is in dispute.

It is the ministerial duty of the Recorder of Mortgages to cancel prescribed' liens from the records of his office and this duty can be enforced by mandamus. See also R. S., Sec. 3141; Lanaux vs. Recorder of Mortgages, 36 La. Ann. 975; State vs. Police Jury, 29 La. Ann. 146; B. M. Harrell & Co. vs. Parish, 26 La. Ann. 6; Deblieux vs. Recorder of Mortgages, 25 La. Ann. 61; Savage vs. Holmes, 15 La. Ann. 334; Diggs vs. Prieur, 11 Rob. 54; Benjamin vs. Prieur, 8 Rob. 193.

Paving liens are prescribed by ten years by Act 46 of 1918:

“Section 1. Be it enacted by the General Assembly of the State of Louisiana, that claims, liens and privileges for paving streets, alleys and sidewalks shall prescribe by ten years from the date of the certificates or other evidences of such claims, liens and ¡privileges; provided, that in all cases 'where the cost of the pacing shall have been advanced by any Parish, City or Town, to be refunded in annual installments in accordance with existing laws, the claims, liens, and privileges shall prescribe in the same manner as now provided by the Constitution and laws of this State for the prescription of taxes, tax liens, and privileges, provided that the provisions of this act shall not take effect until the first day of January, 1919.”

The judgment was rendered on July 29, 1927, and signed on August 4th, of the same year.

On August 9, 1927, five days after Judgment was signed, the Recorder of Mortgages filed a document in which he averred that Act 46 of 1918 was unconstitutional because it violated Sec. 15 of Art. IV of the Louisiana Constitution of 1921 and Sec. 10, Art. 1 of the United States Constitution.

On the same day, August 9, 1927, the Recorder also filed a motion for suspensive appeal, which was then granted by the trial Judge. On this motion for appeal, attorney for plaintiff accepted service. On August 15 th the City of New Orleans applied for and obtained a suspensive appeal.

In his brief in this Court, the Recorder says that the plea of unconstitutionality was filed “nunc proturce” by agreement, but there is no agreement in the record and plaintiff’s attorney in his brief (page 3) uses the following language:

“There was no attack on the constitutionality of this act by respondent in the lower court, so, of course, there can be no such objection urged to the act in this Court.”

Counsel for City of New Orleans in his brief urges that note of evidence shows objection was made to testimony on the ground that act was unconstitutional because it impaired the obligation' of a contract.

The decisions quoted below show that such a plea must be regularly filed before the lower Court, otherwise it cannot be considered.

In re J. J. Clarke Co., 161 La. 1095, 109 So. 913, the Supreme Court said:

“Defendant’s contention that statute is invalid, made for first time in Supreme Court and made only in brief will not be considered.”

In Board of Health vs. De Quincy, 163 La. 369, 111 So. 789, the Supreme Court said:

“Constitutional objections to statute though raised in lower Court, will not be considered on appeal * * * where defendants did not answer appeal.”

In the case of Thoman et al. vs. Williams, 164 La. 202, 113 So. 817, where cancellation of paving lien more than ten years old was sought, the Supreme Court refused to pass on the constitutionality of Act 46 of 1918, although the question had been properly raised in the lower court, because the amount involved was below two thousand dollars and validity of act had been maintained by trial Judge.

“The constitutionality of a law will not be considered Unless specially pleaded."

State vs. Ross, 144 La. 898, 81 So. 386; Barber vs L. R. & N. Co., 141 La. 1059, 76 So. 199, L. R. A. 1917F, 802; State vs. St. Romer, 26 La. Ann. 753.

In Chopin vs. City of New Orleans, et als., 8 La. App. 152, a special defense was urged for the first time and an exception of no cause of action based thereon was filed in this Court, but after citing and discussing many leading decisions, the new matters were not considered.

In Watkins vs. Bankston, 1 La. App. 641, this Court declined to pass upon an issue not raised in trial Court.

In People’s Homestead Assn. vs. Staub, 3 Orleans App. 101, this Court refused to consider the constitutionality of an act because it had not been passed on by the lower court.

Under Constitution of 1921, Art. 7, Pars. 2, 29, 77, Court of Appeal, Parish of Orleans, has appellate jurisdiction only, with exception of right to issue certain writs in aid of its appellate jurisdiction.

As this plea was not properly before the trial court, it can not be considered here.

For above reasons judgment is affirmed.


author: JANVIER, J., ad hoc.

text:
    No. 10,387
    Orleans
    FRITCH v. BRIAN AND POWERS ET AL.
    (October 15, 1928. Opinion and Decree.)
    H. W. Kaiser and F. A. Wulf, Jr., of New Orleans, attorneys for plaintiff, appellant.
    Hubert M. Ansley, of New Orleans, attorney for defendant, appellee.
   JANVIER, J., ad hoc.

Plaintiff sued defendant partnership and the members thereof for $270.00, interest and attorneys’ fees, being the balance on a note originally for $300.00. No citation was made on defendant, Brian, so no judgment can be rendered against him.

The note was made by Brian and Powers to the order of the New Orlears Loan & Investment Company and had • been purchased by plaintiff after maturity at a sale in receivership of the assets of the said investment company.

The note bore the following indorsement:

“Secured by commission due the maker by the New Orleans Motor Truck Manufacturing Company ”

Defendants contend that by reason of this indorsement, and by reason of an alleged agreement between the 'investment •company and the New Orleans Motor Truck Manufacturing Company, the note was to be paid “only” out of the said commissions and that as no such commissions were ever paid, the note never became due.

In the first place the evidence does not show that there was any agreement that the note was to be paid only out of commissions. On the contrary, it appears that Mr. Powers held a conference with officials of the loan company for the purpose of convincing that company that the loan to be made was a safe one and that the commissions earned or to be earned were amply sufficient to secure repayment of the note.

We do not feel that under the circumstances disclosed here, secret equities and private agreements should be allowed to defeat recovery on an unequivocal promise to pay money, particularly as the evidence regarding the alleged agreement that the nóte was to be paid only out of commissions should have been excluded, as it tended to contradict or at least to vary the terms of the written document itself.

The evidence discloses that the firm of Brian & Powers was a commercial partnership and hence each partner is liable for the entire debts of the concern.

It is therefore ordered, adjudged and decreed that the judgment appealed from be reversed and avoided, and that there be judgment in favor of plaintiff and against Brian & Powers and Harry J. Powers, in solido, in the sum of $270.00, with 8 per cent interest thereon from December 7, 1921, until paid, and with 10 per cent attorney’s fees on the whole amount and for all costs.


text:
    No. 11,013
    Orleans
    HENRY KNIGHT & SON, INC., v. SHALL
    (October 15, 1928. Opinion and Decree.)

      Hall, Monroe & Lemann, Walter J. Suthon, Jr., of New Orleans, attorneys for plaintiff, appellant.
    Conzelmann and Gaudet, of New Orleans, attorneys for defendant, appellee.
   JANVIER, J., ad hoc.

Plaintiff corporation sues defendant for $432.50, interest, and attorneys’ fees on a promissory note representing the balance of the purchase price of certain cattle.

The note was made payable to plaintiff corporation and was given to M. Glaser & Sons, Inc., who, as agents of plaintiff, had sold the cattle to defendant.

The note was not paid at maturity and shortly thereafter was sent by the payee to attorneys in New Orleans for collection.

On October 5, 1921, the attorneys for the payee by registered mail demanded of the maker payment of the principal, ihterest and attorneys’ fees. A registry return card bearing the defendant’s name was received by the attorneys. Shortly thereafter someone giving his name as H. M. Shall oalled the attorneys by telephone and asked that no action be taken on the note as he would be in on the following Saturday to take care of it.

Thereafter, on October 18, 1927, having received no payment, the attorneys again made a demand for payment by registered mail and again received a registry return card bearing the defendant’s name.

In the meantime, to-wit, on October 12, 1921, the maker of the note called at the office of Glaser & Sons, and gave to them cash sufficient to cover the face of the note and interest, but did not include a sufficient amount to pay the attorney’s fees.

Glaser & Son did not have the note in their possession and of course did not and could not surrender it. Nor, which is more important, did Glaser & Son turn over to plaintiff or plaintiff’s attorneys, the amount of the payment, and shortly thereafter Glaser & Son became defunct. The question presented'is whether the payment to Glaser & Son discharged the obligation to- the extent of the amount paid.

Plainly it did not. The rule in such cases is well stated by Joyce in his work quoting Defenses to Commercial Paper, Sec. 977:

“In order to constitute the payment of a negotiable instrument a discharge thereof, the payment must have been made to the legal holder in possession thereof, or to his duly constituted agent with authority to receive the payment. And if payment is made to one not in possession of the instrument, and without delivery up thereof, he does so at his peril, unless the person receiving payment has authority from the holder or owner as his agent to receive payment thereof.”

It will not do to say that as Glaser & Son were agents of plaintiff for the purpose of selling the cattle, that they were likewise agents for the purpose of receiving the price, because the cattle were not sold for cash, but on time, and it is provided in our Civil Code, in Article 2146:

“A special power to sell includes a power to receive the price, unless the contrary appear from the power, or unless the power be only to sell on a credit, in which case the attorney has no right to receive the price.”

The fact that the note was payable at the office of Glaser & Son will not justify the maker in having made payment to Glaser & Son, as the note was not in their possession and was not surrendered by them when payment was made. As was said in Aguilar vs. Bourgeois, 12 La. Ann. 122:

“The mere designation of the Recorder’s Office, as the place where the note is to be paid, does not authorize the payment of it to the Recorder himself.
“Without a special authority to the Recorder to collect it, the money left with him is to be considered a deposit and at the risk of the depositor. The fact that the creditor endeavored to collect from the Recorder the money which had thus been deposited for him does not imply that he considered the deposit, as a payment, nor bar his recovery from the debtor.”

To the same effect is the decision in Rowland vs. Levy, 14 La. Ann. 223, wherein the court said:

“Where a negotiable note was made payable at the office of a mercantile firm in New Orleans, and a remittance made by the maker to such firm on account of the note — Held: That the remittance was not a valid payment of the note, the firm at whose office the note was payable, not being the agents of the holder.”

The truth of the matter seems to be that Shall was well aware of the fact that his note provided for the payment of attorneys’ fees and that, as it Was in the hands of attorneys, the fees were due; and, apparently, as payment was made to Glaser & Son in the hope that he could thus avoid paying the attorneys’ fees.

Having made payment to the wrong person he did so at his peril.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and that there now be judgment in favor of Henry Knight & Son, Inc., and against H. M. Shall, in the sum of $432.50, with interest at eight per cent (8%) from August 16, 1921, until paid, and with attorneys’ fees at ten per cent (10%) on the whole amount, and with all costs of both courts.


text:
    No. 10,402
    Orleans
    STATE OF LOUISIANA v. PENDLETON
    (October 15, 1928. Opinion and Decree.)
    E. M. Heath, of New Orleans, attorney for plaintiff, appellee.
    Nicholas Callan, of New Orleans, attorney for defendant, appellant.
   JONES, J.

In this case defendant, engaged in the detective business, claims that it is amenable • under the provisions of Section 25 of Act 205 of 1924 to a half license instead of a whole license, as is contended by the State. The relevant portions of Section 25 of Act 205 of 1924 read as follows :

“That every individual, firm, association or corporation carrying on the profession pr business of keeping cabs, carriages, hacks, horses, or motor vehicles for hire, undertaker, funeral director, agency for steamboats or steamships, and owners or lessees of toll bridges or ferries, stevedores, and those engaged in the business or profession of bill posting, tacking or advertising, the license shall be based upon the gross annual receipts from such profession or business, and shall be fixed and graded as follows, to-wit: * * *
“That any other business not provided for in this Act, and not otherwise provided for by separate law, except manufacturing, shall be graded the same as above set forth, and shall pay a license as fixed in this Section.
“That every individual, firm, association or corporation carrying on the business or profession of physician, osteopath, dentist, oculist, attorney-at-law, editor, publisher, printer, engraver, lithographer, photographer, architect, civil engineer, mechanical engineer, electrical engineer, decorator, jeweler or any other professional occupation, shall be graded according to the classification named above, but the license for the various professions included in this paragraph shall be one-half of those established by the foregoing provisions of this section; provided that no license shall be issued hereunder for less than five dollars ($5.00) * * *."

The word “professional” must be read in connection with the paragraph in which it is used. Thus we find before the words “or any other professional occupation” such businesses enumerated as those of publisher, decorator, photographer, jeweler. Such occupations are not generally supposed to come-within the definition of the word, “professional” and the inclusion of these classes of businesses within the act tends to show that the word “professional” should be construed broadly.

Both the dictionary definitions and the definitions applied by the Court give to the words “profession” or “professional,” in their broader aspect, a meaning which makes these words equivalent to calling, vocation or employment. Words and Phrases (Yol. 3) Profession:

“The term ‘profession’ signifies an employment requiring a learned education, as those of law and physics, and is applied to a calling which requires learning and special preparation in the acquirement of such knowledge and skill, and, in its broader meaning, is defined to be the occupation, if not mechanical or agricultural, or the like, to which one devotes one’s self; the business which one professes to understand and to follow for a subsistence, calling, vocation, employment. Semple vs. Schwartz, 109 S. W. 633, 636, 130 Mo. App. 65 (citing Netterville vs. Barber, 52 Miss. 171; Betz vs. Maier, 12 Tex. Civ. App. 219, 33 S. W. 710).
“The word ‘profession,’ in its larger meaning, means occupation, if not mechanical or agricultural, or the like, to whatever one devotes one’s self; the business which one professes to understand and follow. In a restricted sense it only applies to learned professions. It is also defined as a calling, vocation, known employment. Geise vs. Pennsylvania Fire Ins. Co. (Tex.) 107 S. W. 555.
“The word ‘profession,’ as used in Sayles’ Civ. St., Art. 2337, means occupation, calling, employment, and includes the business of an insurance agent, so as to entitle him to the exemption therein provided for. Betz vs. Maier, 33 S. W. 710, 12 Tex. Civ. App. 219.
“The word ‘profession,’ in its' larger and broader meaning is defined by Webster to be the ‘occupation, if not mechanical or agricultural or the like, to whatever one devotes one’s self; the business which one professes to understand and to follow for subsistence; calling; vocation; employment.’ In a restricted sense it only applies to the learned professions. Betz vs. Maier, 33 S. W. 710, 12 Tex. Civ. App. 219; State vs. Hunt, 40 S. E. 216, 217, 129 N. C. 686, 85 Am. St. Rep. 758.
“ ‘Profession,’ as used in Act April 15, 1834, Sec. 4 (P. L. 512), making all offices and posts of profit, professions, trades and occupations, taxable, may be construed to include the business of conducting ironworks in the manufacture of iron so as to render the same profitable for the owners, for it requires a very considerable degree of skill, derived from experience in the business, as well as unremitted attention, which but few are capable of exerting. The term ‘profession’ may possibly be thought by some to be a more dignified term than ‘occupation.’ Lebanon County Com’rs. vs. Reynolds (Pa.) 7 Watts & S. 329, 330.”
“Formerly, theology, law, and medicine were specifically known as ‘the professions;’ but as the applications of science and learning are extended to other departments of affairs, other vocations also receive the name. The word implies professed attainments in special knowledge as distinguished from mere skill. A practical dealing with affairs as distinguished from mere study or investigation; and an application of such knowledge to uses for others as a vocation; as distinguished from its pursuit for its own purposes.” Century Diet, (quoted in U. S. vs. Laws, 163 U. S. 258, 266, 16 S. Ct. 998, 1001, 41 L. Ed. 151).

The testimony of Forrest Pendleton, a graduate in law of Georgetown University, who had been for ten years division superintendent of the United States Department of Justice in New Orleans before he became president of defendant corporation, shows that mental rather than physical skill is required in the successful management of a general commercial detective agency such as this. Knowledge of finger-print reading, of police regulations, ability to analyze and appreciate evidence, are some of the main requisites for proper investigation when irregularities are charged.

Although the words “business” and “profession” have been used throughout this act in almost the same sense, a careful reading of the entire law seems to show that the legislature did not intend to tax those that earn their living by mental services to the same extent as those who buy or sell commodities.

For above reasons the judgment is amended, and it is now ordered, adjudged and decreed that said' rule be made absolute, and, accordingly, there be judgment in favor of plaintiff in rule, State of Louisiana, and against defendant in rule, Forrest C. Pendleton, Inc,, in the full sum of one hundred twenty-five ($125.00) dollars as a license tax for the year 1925, together with two per cent per month interest on one hundred twenty-five ($125.00) dollars from March 1, 1925, and ten per cent attorneys’ fees on both principal and interest, with first lien and privilege upon all the property of defendant in rule, both movable and immovable, and for all costs.

It is further ordered that defendant in rule be enjoined from conducting its business until said amounts are paid.


author: CLAIBORNE, J.

text:
    No. 11,415
    Orleans
    ESTATE OF GUILLOT v. LALA
    (June 18, 1928. Opinion and Decree.)
    (July 2, 1928. Rehearing Refused.)
    (October 3, 1928. Writ of Certiorari and .Review denied by Supreme Court.)

      Neil Armstrong, of New Orleans, attorney for plaintiff, appellant.
    Chas. Danna, of New Orleans, attorney for defendant, appellee.
   CLAIBORNE, J.

The question involved in this ease is whether an automobile purchased in the name of the wife during marriage is her separate paraphernal property or the property of the community.

The facts are as follows:

On December 17, 1926, the plaintiff herein, “The Estate of K. J. Guillot,” obtained a judgment against the defendant Leon Lala for $213.83.

By virtue of this judgment, the plaintiff, on February 16, 1928, issued a fi. fa. and caused to be seized a Ford sedan automobile No. 14351769 as the property of the defendant Leon Lala; on March 5, 1928, Eleonore Cypress, wife of Leon Lala, filed a third opposition in which she alleged that the said automobile was her separate property in which the community existing between herself and the defendant in the above entitled and numbered cause had no interest whatsoever, that the said automobile was purchased by your petitioner with her separate and paraphernal funds, which were under her separate control and administration, and she prayed for an injunction against the sale of the automobile.

The Estate of K. J. Guillot, the defendant in injunction, admitted its judgment against Lala and the seizure of the automobile, but denied all the other allegations of the petition for an injunction.

There was judgment in favor of Mrs. Leon Lala decreeing her to be the owner of the automobile and enjoining' the sale thereof.

The Estate of Guillot appealed from said judgment.

The law is correctly stated by the plaintiff.

It presumes that all property purchased during marriage either in the name of the husband or of the wife is community property. In order to overcome this presumption the wife must prove that she owned separate property, under her administration, which she invested in making the purchase. Bachino vs. Coste, 35 La. Ann. 570; Knight vs. Kaufman, 105 La. 35, 29 So. 711; Fortier vs. Barry, 111 La. 776, 55 So. 900; Manning vs. Burke, 107 La. Ann. 456, 31 So. 862.

G. L. Mayer, a witness for the plaintiff, testified that he was a salesman for the Edwards Motor Company on February 4, 1927; that he received a phone message from Mrs. Lala that she desired to buy a used car. He was then in the office and the seized car had just been overhauled; so he got into the car and drove down to Mrs. Lala’s home; he obtained an order from her for the car; she was to make a cash payment of $200; so he drove her down to the Eureka Homestead office at Poydras and Camp; Mrs. Lala went into the homestead and when she came back she gave him the money; Mr. Lala was not a party to the transaction. The first payment was $200, leaving a balance of $300 plus time charge of $50.40, which was included in 12 monthly payments of $29.30 each in one note; the car was sold on a chattel mortgage; the note was signed in his presence.

H. Costello was credit manager for Edwards Motor Company; they sold a Ford sedan to Mrs. Lala for $500, $200 cash and the balance in one note and 12 payments; Mrs. Lala paid the notes; on one occasion she gaye him two Eureka Homestead checks, one for $18 'and the other for $11, to take up two notes; and the balance in cash; there is a balance due on this car of $58.40.

Mrs. Eleonore Cypress Lala, intervenor, testified that she purchased a Ford sedan from the Edwards Motor Company; she had a hank account and some money in the house; she got the money from a damage suit against Louis Yoska from an auto accident before she was married; she deposited the money in the Hiherr’a Bank on April 11, 1917; she was married in March, 1919; she drew it out on January 18th and bought the car on February 24, 1927; she put a little in the homestead and she kept the balance at home; she had charge of the money; her husband did not share in the disbursement of the money, nor did he make any payments on account of this auto; she has had the use of the car; she received $550 from the damage suit; she left it in the Hibernia Bank; she drew out $712 from the bank; she paid for the car with that money, part of which she had home and part from the homestead.

Mrs. Lala introduced in evidence the buyer’s order signed by “Mrs. Eleonore Lala,” the bill of sale to Mrs. Eleonore Lala, and a promissory note for ,$350.40 signed by her.

The plaintiff offered no evidence.

We think the wife has sufficiently established her separate title and that the judgment should be affirmed. Suc. of Lewis, 45 La. Ann. 833, 12 So. 952.


text:
    No. 11,353
    Orleans
    FILIBERTO v. EVANS ET AL.
    (August 13, 1928. Opinion and Decree.)
    Theo. Cotonio, of New Orleans, attorney for plaintiff, appellee.
    Clarence F. Favret, of New Orleans, attorney for defendant, Edw. M. Evans.

      M. B. Freeland, of New Orleans, attorney for defendant, Wise Miller.
    I. F. Williams, of New Orleans, attorney for Recorder of Mortgages, appellant.
   ON MOTION TO DISMISS APPEAL

CLAIBORNE, J.

From a judgment against him, the defendant, Augustus G. Williams, Recorder of Mortgages, obtained an order of appeal returnable to this Court “on the 24th day of February, 1928.”

On that day the appellant filed an application for and obtained from this Court an order extending the return day “to the 27th day of March, 1928.” On March, 28, 1928, the day after the extended return day, the appellant filed a second application for a further extension, and upon the samé day obtained an order extending the return day “to the 27th day of April, 1928.”

The transcript in this case was filed April 27, 1928.

On June 6, 1928, the plaintiff and appellee filed, in this Court, a motion to dismiss the appeal for the following reasons:

Mover, however, represents that the application of the appellant filed on March 28, 1928, came too late, being the day after the extended day as fixed by this Court, and the order of this Court granting to the appellant until April 27, 1928, to file the transcript was illegal and improvidently granted. That no transcript having been filed on March 27, 1928, nor any application made1 to this Court on said date, March 27, 1928, for a further extension of the return day, all subsequent ¡proceedings are null and void as coming too late.

That the transcript of appeal not having been filed in time the appeal should be dismissed.

The motion must prevail.

The precise point involved in this case was decided by this Court, following the Supreme Court, in the case of Richardson vs. Henderson, 5 La. App. 661.

This Court said:

“An extension of the return day does not carry with it days of grace.
“A second or subsequent application for an extension must be made on or before the day to which the extension is made.”

An order inadvertently rendered after the return day granting to an appellant an.additional delay for filing the-transcript of appeal after the return day will be rescinded by the Supreme Court on its own motion; such an order cannot save the appeal. 1 La. Dig. 511, 512.

“A motion to dismiss the appeal for failure to file the transcript in time may be made at any time.”


text:
    No. 10,338
    Orleans
    MADISON LBR. CO., DENDINGER, INC., OWNER, v. McGRATH ET AL.
    (August 13, 1928. Opinion and Decree.)
    (September 4, 1928. Rehearing Refused.)
    (October 3, 1928. Writ of Certiorari and Review denied by Supreme Court.)

      J. D. Dresner, of New Orleans, attorney for plaintiff, appellee.
    Jas. J. Landry, of New Orleans, attorney for M. J. Donnellan.
    H. G. McCall, of New Orleans, attorney for Mrs. Jno. McGrath.
    Geo. Montgomery, of New Orleans, attorney for Recorder of Mortgages.
    Spearing, Miller and Mabry, of New Orleans, attorneys for defendant, appellant.
   CLAIBORNE, J.

This is a suit against the owner, the contractor, and his surety for the price of lumber furnished for the construction of a building.

The plaintiff alleged that by contract executed before a notary on October 18, 1923, Mrs. McGrath, owner, employed M. J. Donnellan, contractor, to erect a building in the square bounded by Lopez, Perdido, Gravier and Salcedo Streets, for the price of $7000, which was to be financed by the Dryades Building and Loan Association, and the United States Fidelity and Guarantee Company obligated themselves as surety; that the said Donnellan furnished to plaintiff a list of the lumber it would require to execute said contract, amd plaintiff agreed to furnish said lumber for the price of one thousand two hundred and thirty-nine dollars, and did furnish and deliver said lumber, together with additional lumber to the amount of three hundred and fifty-three 52-100, making in all one thousand five hundred and ninety-two 52-100 dollars, which was used on said building, the whole of which remains due and unpaid; that plaintiff recorded an itemized account of said lumber in the mortgage office on December 8, 1923, and served a sworn account of the same on the same day on Mrs. Mc-Grath, the owner; that the acceptance of said building was recorded on November 9, 1923. The plaintiff prayed for judgment against M. J. Donnellan, Mrs. McGrath, the Dryades Building Assn, and the United States Fidelity Co., in solido, for $1592.52, with interest, and ten per cent attorney’s fees against the Fidelity Company under Act 225 of 1918.

Donnellan and the Guaranty Company filed exceptions of no cause of action, etc., which were, overruled.

Mrs. McGrath filed like exceptions. They were maintained and the suit against her was dismissed. There was no appeal taken from said judgment, therefore she is not before us.

Martin Donnellan, the contractor, admitted the allegations of the petition as to the contract to buy the lumber with plaintiff, and the purchase of the additional amounts, and also admitted the allegation that “the lumber contained in the said itemized account (annexed to petition was duly delivered by it, plaintiff) and used in the aforesaid premises erected by the said Donnellan for the said Mrs. McGrath, and that the price thereof, the sum of $1592.52, is past due and remains unpaid notwithstanding amicable demand on the aforesaid defendants,” but denied all the other allegations.

The United States Fidelity Company admitted that it became surety on the above building contract between (Mrs. McGrath and Donnellan), but denied all the other allegations.

Judgment was rendered as prayed for in favor of plaintiff against Donnellan, contractor, and the security company and dismissing the suit and the call in warranty against Mrs. McGrath and the building company.

The Surety Company alone appealed from “the judgment in favor of Madison Lumber Company.”

The Surety Company resists the claim on the ground that there is not sufficient proof that the materials sued for were furnished and used for the building for which it was surety. At the same time the same owner and the same contractor had two other buildings in course of construction in the same square.

The proof is as follows.

Charles Noel, manager of plaintiff company, testified that the claim was due; Donnellan had said it was all right and would be paid; he knows they delivered the lumber; he saw the tickets and had them checked, and went over the accounts; the signed tickets come back and he sees that it is properly done; they kept separate accounts on each job.

John J. Sheffield, salesman and collector of plaintiff, testified that he went to the building as it was going up, two or three times a week; that he actually saw the plaintiff’s material used in the premises.

In addition to the above testimony there are in the record 40 dray receipts for lumber and materials designated thereon, with the heading “Madison Lumber Company,” sold to Donnellan, Lopez and Perdido, and each one is signed by someone, the great majority by “H. M. Griffin.”

The admission of Donnellan that the materials were furnished to him and used upon the building, and the judgment against him, unappealed, are corroborative evidence.

It would be in most eases impossible to furnish stronger evidence.

Indeed it has been held that a judgment against the principal is prima facie evidence against the surety. 1 H. D. 754, 1 L. D. 348; Simpson vs. Lewis, 19 La. Ann. 458; Wiemann vs. Mainegra, 112 La. 309, 36 So. 358.

In Audubon Homestead vs. Stef Lumber Co., 158 La. 1055, 105 So. 62, the Supreme Court decided:

“In concursus proceedings, where contractor was present in Court, and did not take stand, testimony of single witness that materials of lien claimants were used and that contractor never disputed that fact, held to establish prima facie case, and shifted burden of proof to surety company and contractor.”

In Haynesville Lumber Co. vs. Casey, 116 So. Rep., p. 559, (No. 4) the Court said on page 560:

“It was not required of the plaintiff to show that every plank sold and delivered to the contractor for use in the school building was actually so used. If that were the rule in actions by materialmen against the contractor and surety, then the furnishing of a bond to secure materialmen would be an idle formality.”

Since Act 262 of 1916, p. 538 “the surety herein shall be limited to such defenses only as the principal in the bond can make.”

But Act 139 of 1922, Sec. 5, p. 293: “The surety shall be entitled to make only the same defenses that the contractor for whom he signed the bond is authorized to make.”

The same provision is repeated in Sec. 5 of Act 230 of 1924, p. 451.

The Supreme Court enforced this Act in Graphic Arts Bldg. vs. Union Indemnity Co., 163 La. 1, 111 So. 470, and was followed by the Court of Appeal of the First Circuit in Thibodeaux vs. Globe Indemnity Co., 6 La. App. 380.

The judgment appealed from is therefore affirmed.


text:
    No. 11,305
    Orleans
    HARGIS v. McWILLIAMS CO., INC.
    (August 13, 1928. Opinion and Decree.)
    (September 4, 1928. Rehearing Refused.)
    (October 3, 1928. Writ of Certiorari and Review denied by Supreme Court.)
    Hopkins and Talbot, of New Orleans, attorneys for plaintiff, appellee.
    Spearing and Mabry, of New Orleans, attorneys for defendant, appellant.
   CLAIBORNE, J.

This is a suit under the Employers’ Liability Act.

The plaintiff, a citizen of Louisiana, alleged that on August 1, 1925, he was employed by the defendant, the McWilliams Co., a Louisiana corporation, to go to Long Beach in the State of Florida to work as engineer in a floating steam dredge operated and controlled by the defendant, through their superintendent, W. R. Pennington; that plaintiff at the time of his employment was living in the Parish of Terrebonne; that the defendant, through its president, R. H. Williams, Sr., agreed with said Pennington that its employees, especially plaintiff, would be covered by. the Workmen’s Compensation Insurance of this State; that on May 23, 1926, while ¡plaintiff was engaged in the course of his employment in making repairs to the boiler on the dredge, plaintiff was struck in the left eye by a metal chip which came off of the head of the hammer used by plaintiff in making his repairs; that the said object penetrated plaintiff’s left eye ball and lodged therein, making it impossible for plaintiff to see out of said eye; that plaintiff had lost the sight of his right eye about eight years prior thereto and is now totally blind, and is permanently and totally disabled to do any work of a reasonable character; that plaintiff was receiving at the time of the injury' $150 per month .wages, and board and lodging estimated at $45 per month; that defendants furnished plaintiff hospital services estimated at $75, but have failed to pay for medical services employed by plaintiff; that plaintiff is entitled to compensation for 400 weeks at $20 per week and $175 for medical services, or $8175 with interest from May 23, 1926.

The defendant filed an exception of want of jurisdiction in State .courts because the accident occurred in admiralty jurisdiction.

This objection is fully answered by the case of United Dredging Co. vs. Lindberg, (C. C. A. 1927), 18 Fed. (2d 453 (1927), and the exception was not pressed in this Court.

The next exception was “that the Louisiana Workmen’s Compensation Law had no exterritorial effect.”

In support of that exception the defendants quote the case of Nunemacher vs. Barnes, No. 162,180 of the Civil District Court, in which Judge Cage maintained the exception. They also quoted the cases of Perlis vs. Lederer, 189 App. Div. 425, 178 N. Y. S. 449; In re Gould, 215 Mass. 480, 102 N. E. 693; Union Bridge Co. vs. Industrial Commission, 287 Ill. 396, 122 N. E. 609; Johnson vs. Nelson, 128 Minn. 158, 150 N. W. 620; North Alaska vs. Pillsbury, 174 Cal. 1, 162 P. 93, L. R. A. 1917E, 642; Kruse vs. Pillsbury, 174 Cal. 222, 162 P. 891, L. R. A. 1917E, 645; Merrill vs. Boston & Lowell R. R., 63 N. H. 259; 3 N. C. C. A. 639 (Mich.); Altman vs. N. D. Workmen’s Compensation Bureau, 50 N. D. 215, 195 N. W. 287, 28 A. L. R. 1337; and Logan vs. Mo. Valley Bridge & Iron Co., 157 Ark. 528, 249 S. W. 21.

The principal argument in some of these cases, is that “there is no provision of the Act (compensation) which can be construed to authorize compensation for an injury occurring outside of the State.” The answer to that is that there is no provision in the law; restricting the liability to accidents within the State, nor any general law to that effect. It is true that Article 10 of our code provides that the effect of Acts passed in one country to have effect in another country is regulated by the laws of the country where such acts are to have effect.

But this Article does not pretend to affect the rights acquired by parties under a contract made in another country. If the Employers’ Liability Act of Louisiana protects an employee against an injury suffered in another State, then this Article 10 has no application.

The object of the Compensation Act is to protect a contract made in Louisiana.

It is immaterial under the Act where the work has to be done; the law looks to the workman, not to the place where the work is done. The workman is not deprived of the protection of the law because the work is done outside of Louisiana.

The Act provides, Sec. 1 of Act 20 of 1914, “That this Act shall apply only to the following:

“1st. * * *
“2nd. Every person performing services arising out of and incidental to his employment in the course of his employer’s trade, business or occupation, etc.
“Section 2: That if a workman employed as hereinabove set forth * * * 'receives personal injuries by accident arising out of and in the course of such employment his employer shall pay compensation in the amounts, etc.”

Nothing in this act restricts liability for work within the State. It suffices that the contract of employment be made in Louisiana to carry with it the liability of the employer fixed by that statute.

It matters not where the work is to be performed; the question is where was the contract made. If the law of the place where the contract was made fixes liability, the liability follows the employer wherever the work is done. Any other view would leave the workman without remedy or relief contrary to the object and spirit of the law and against the principle that the compensation law must be interpreted liberally, in a sense favorable to the workman.

The Employers’ Liability . Act of Louisiana forms part of every contract made in Louisiana for the employment of labor and carries with it the liability of the employer under said Act for every injury suffered by the employee in the course of his employment in executing the work within or without the State. Sec. 28, Ruling Case Law, 723 S. 19; Bradbury on Workmen’s Compensation (3d Ed.) p. 92; Rounsaville vs. Central R. Co. (1915) 87 N. J. Law, 371, 94 A. 392; Pettiti vs. Pardy Const. Co. (1925) 103 Conn. 101, 130 A. 70; Zurich, etc., Ins. Co. vs. Industrial Commission (1927) 193 Wis. 32, 213 N. W. 630; Shurtliff vs. Oregon, etc., R. Co. (1925) 66 Utah, 161, 241 P. 1058; Krekelberg vs. M. A. Floyd Co. (1926) 166 Minn. 149, 207 N. W. 193; Leader, etc., Co. vs. Chapman (1926) 85 Ind. App. 296, 152 N. E. 872; Ind. Com. vs. Aetna Life Ins. Co. (1918) 64 Colo. 480, 174 P. 589; Anderson vs. Miller Scrap Iron Co. (1919) 169 Wis. 106, 170 N. W. 275, 171 N. W. 935; Donohue vs. Robertson Co. (1923) 205 App. Div. 176, 199 N. Y. S. 470; Anderson vs. Jarrett Chambers Co. (1924) 210 App. Div. 543, 206 N. Y. S. 458; McGuire vs. Phelan-Shirley Co., (1924) 111 Neb. 609, 197 N. W. 615; Smith vs. Van Noy Interstate Co., 150 Tenn. 25, 262 S. W. 1048, 35 A. L. R. 1409; 3 A. L. R. 1351; L. R. A. 1916A, 444; Bullowa vs. Gladding, 40 R. I. 147, 100 A. 249, L. R. A. 1917D, 841, 18 A. L. R. 292; Altman vs. N. D. Workmen’s Compensation Bureau, 50 N. D. 215, 195 N. W. 287, 28 A. L. R. 1337; United Dredging Co. vs. Lindberg (C. C. A. 1927) 18 F. (2d) 453.

Such was the understanding of his liability by the defendant on page 19 of his testimony W. R. Pennington was asked:

“p. 15. Q. What was your connection with them (McWilliams Co., Inc.) ?
“A. I was superintendent on this work they were doing in Florida.
“p. 19. When you made your arrangements with Mr. McWilliams to go to Florida as- superintendent on this job did you discuss with him insurance for the men?
“A. We asked about compensation insurance. He said he carried that on all his work, visitors and all; he had a blanket policy to cover all his operations.”
This testimony is confirmed by McWilliams himself on page 8. He was asked:
“Q. Did you tell him (Pennington) the men would be protected by insurance, leaving off the word compensation?
“A. I told him we carried insurance, which we did, everywhere.
“Q. You meant the men would be protected?
“A. I meant we would be protected.

Protected against what, if not liability?

The defendants produced a policy in their favor in the Fidelity Guaranty Company, of Baltimore, covering work to be done in the State of Florida with the admission that it covered the liability of defendant to its employees as therein set forth, on jobs in the States of Mississippi, Florida and Arkansas and that the premium on this policy was based upon only the payrolls covering the wages paid by defendant to its employees on the jobs in those States, in which payrolls were included the wages of plaintiff.

The defendants admitted the contract of employment and that it was made at Houma in this State, and that the wages were $45 per week. They denied all the other allegations.

There was judgment for plaintiff at the rate of $20 per week for 400 weeks with interest and for $175 for medical services.

Defendant appealed.

The extent of the injury to plaintiff is fully proven.

The plaintiff testified that at the time of the injury he was repairing a boiler on a steam dredge, using a hammer. Something flew off from the head of the hammer and hit him in the left eye; he had to quit work right away; the next morning he went to see Doctor Byrd; he could hardly see at all; the doctor treated Him during four or five months; during that time he could not do much; he had lost the sight of his right eye several years before, it was taken out, and he has no right eye now except a glass eye; at the time of his injury he was drawing as wages $150 a month, and board and lodging worth $1.50 a day; he returned to New Orleans in October where he was treated by Dr. Whitmire; he has not been doing any work since he returned to New Orleans, because he could not see to do any work; he cannot go along the streets well; he could not read the gauge on an engine, the object which went into his eye was never removed; his wife supports him since he got hurt; he did not think he could see enough to do anything; after his injury he worked on half pay, but not the same work, until July, when he was discharged for lack of work; he returned to New Orleans but did not try to get any work, because he could not see enough to work.

W. R. Pennington testified that he employed the plaintiff; the plaintiff was hurt while making the repairs; the next morning his eye was much swollen, he took him out in an automobile to see Dr. Byrd; the doctor kept him in the hospital two or three weeks; later he returned when the doctor instructed them to put him on light work; they put him on as an oiler, that was all he could do, and that not well.

Dr. Whitmire testified that plaintiff was sent to him by Dr. Byrd in October, 1926; there was a scar on his eye where the foreign body had entered; he judged it would have been a very large piece of iron; he could not see it; for a while after he saw him his eye was as soft as a powder puff, which is a pretty dangerous sign, the vitreous fluid in the eye was filled with opacity like the dregs in an old bottle of medicine when it decomposes; the foreign body which passed into the eye-ball no doubt produced an infection of the vitreous which is liable to result in blindness; he could not resume his occupation of fireman, it would be unsafe for him to go where automobiles run; when one eye is lost it makes it hazardous for any kind of work; he could not make entries in books; he could handle boxes fairly well; his vision is 20/100; he has lost 40 per cent of that eye and his vision is about 60 per cent of that eye but he has no eye on the other side.

We are of the opinion with the trial Judge that plaintiff’s case comes under the following clause of Act 216 of 1924, p. 399:

“Section 8: That for an injury producing disability compensation shall be paid under this act to an injured employee in accordance with the following schedule of payments: (a) * * * (b) For an injury producing permanent total disability to do work of any reasonable character sixty-five. per centum of. wages during the period of disability, not however beyond four hundred weeks.”

But S. 3, p. 402, of the same section provides that “the maximum compensation to be paid under this act shall be twenty dollars per week." Rutter vs. N. O. Public Belt, No. 10,960 Orl. App., May 7, 1928.

In Bailey vs. Gifford, etc. Co., 7 La. App. 513, the Court said:

“Where the evidence of physicians in a suit for compensation under the Employers’ Liability Act No. 20 of 1914, section 8, subsection 1 (b), as amended by Act No. 216 of 1924, is such that whether the disability is temporary or permanent cannot be definitely determined at the time of the trial, judgment should be given for sixty-five per cent of the wages during disability not beyond 400 weeks.”

But the defendants argue that the amount of the judgment should not exceed 65 per cent of wages during 100 weeks, for the reason that plaintiff suffered the loss of only one eye, and under section 8, 1 (A.) p. 399 he was entitled only “for the loss of an eye sixty-five per centum of wages during one hundred weeks,” and that for a permanent partial loss of. the use of the member compensation could not be granted for a greater period than that provided for the loss of the member.

James vs. Spence & Goldstein, 161 La. 1108, 109 So. 917.

It is evident that the plaintiff’s claim is not based upon section 8, 1 (d) “for the loss of an eye,” for that would produce, only a partial disability in case the plaintiff had both eyes, and that is the partial disability that that section has in contemplation.

But the plaintiff claims under Section 8, 1 (b), quoted above, for an injury producing permanent total disability to do work of any reasonable character.

Such was the interpretation of the Court in Brooks vs. Peerless Oil Co., 146 La. 383, 83 So. 663, and Guderain vs. Sterling Sugar Co., 151 La. 59, 91 So. 546.


text:
    No. 10,359
    Orleans
    EDMISTON v. TULANE INVESTMENT CO. ET AL.
    (August 13, 1928. Opinion and Decree.)
    (September 4, 1928. Rehearing Refused.)
    F. Rivers Richardson, of New Orleans, attorney for .plaintiff, appellee.

      Joseph A. Morales, of New Orleans, attorney for defendants, appellants.
   CLAIBORNE, J.

This is a suit to annul a tax sale.

The plaintiff alleged that he was the owner of the following described property:

“A lot of ground in the Third District of this city in the square No. 1100 bounded by Andry, Egania, Galvez and Miro Streets designated by the No. 23 and measuring 31 feet front on Andry Street by 12'2 feet deep.”

Being the same property purchased by plaintiff at a sale for a tax due the State for the year 1920, assessed in the name of F. P. Norris, by an act before John P. Sullivan, notary, dated April 20, 1922, Reg. C. O. Bk. 353, p. 13, on April 24, 1922.

That the said Rev. T. P. Norris purchased said lot from the Andry Realty Co. by an act under private signature dated November 10, 1919, Reg. C. O. Bk. 312, p. 159.

That the defendant, the Tulane Investment Company, also claims to have purchased said property at a sale made by the City of New Orleans for the tax of 1921, assessed in the name of Rev. T. P. Norris, by an act before P. D. Olivier, notary, dated July 15, 1922, Reg. C. O. Bk. 350, p. 430, on July 18, 1922.

That the Tulane Investment Company transferred said property to the Galvez Realty Company on January 12, 1923, by act Reg. C. O. Bk. 358, p. 448.

That the act of sale made to the Tulane Investment Company is an absolute nullity “for want of notice to plaintiff, of the proposed tax sale,” as plaintiff was the duly registered owner of the property at the time of the city tax sale, and that the sale of said property without notice to plaintiff was an absolute nullity; that plaintiff offered to pay the Tulane Investment Company and the Galvez Realty Company the amount paid by it at the city tax sale with interest and all other taxes paid by it on said property which they refused to accept.

Plaintiff therefore prayed to be recognized as the owner of the above mentioned property, and that the city tax sale to the Tulane Investment Company by act before P. D. Olivier, notary, dated June 15, 1922, and the transfer by the Tulane Investment Company to the Galvez Realty Company, dated January 12, 1923, be declared null and the registry thereof in the conveyance office be cancelled and erased.

Therefore we have before us the plaintiff who has pus-chased a lot of ground at a sale made for State taxes of 1920 in the name of Rev. F. t. Norris by act dated April 20, 1922, and the defendants the Galvez Realty Company, which acquired from the Tulane Investment Company on January 12, 1922, and the Tulane Investment Company which purchased on June 15, 1922, two months later than the plaintiff, at a sale made by the City of New Orleans for taxes of 1921, and the charge made by the plaintiff that the city tax sale to the Tulane Investment Company is an absolute nullity for want of notice of sale to the plaintiff who was the registered owner since April 12, 1922, prior to and at the time of the city tax sale.

The defendant pleaded the prescription of three years.

This suit was filed June 16, 1925, and service of citation accepted same day. The actual tax sale was made to the Tulane Investment Company on June 15, 1922, but was registered only on July 12, 1922.

Therefore this . suit was filed and service accepted less than three years prior to the “recordation of the tax deed.” The prescription of three years does not run from the date of the tax sale but “from the date of the recordation of the tax deed.”

See Sec. 11, Art. 10, p. 86, of the Constitution of 1921. Byrne vs. Commercial Security Co., 7 La. App. 667.

The plea of prescription cannot therefore prevail.

Further answering the defendants plead that plaintiff is estopped from attacking the sale made by the City on July 18, 1922, for the city taxes of 1921 for the reason that the plaintiff stood by and permitted the City to sell the property.

There is nothing to show that the plaintiff had knowledge of the intention of the City to sell the property or that he was present at the sale. The authorities quoted by the defendants in support of their proposition are not in point.

The defendants further plead that the failure of the plaintiff to pay all taxes due on the property at the date of their acquisition left him without any title. They rely upon ten cases. But all of them are applications of the Acts 96 of 1882 and 82 of 1884 commonly known as the “Iron Clad” Acts, which created special legislation. West vs. Negrotto, 52 La. Ann. 381, 27 So. 75; Lyons vs. Fitzpatrick, 52 La. Ann. 700, 27 So. 110; Martinez vs. State Tax Collectors, 42 La. Ann. 677, 7 So. 796; Acts 85 of 1888, and the acts amendatory thereof, including Act 170 of 1898 under which the State tax sale to the plaintiff was made, did not require him to pay all taxes due as a condition precedent to the validity of his tax title.

The copy of what should have been the notice of sale to “Rev. Timothy P. Norris” bears upon its face the return “Sérvice.” This return is corroborated by testimony that Norris no longer lived in New Orleans but had removed to Bastrop.

Sec. 11 of Article X of the Constitution provides that the tax collector shall give notice “to the delinquent in the manner provided by law.”

A tax sale without notice to the owner is null. 7 La. Dig. p. 121, S. 281; Kivlen vs. Horvarth, 163 La. 901, 113 So. 140.

The defendant recovered judgment for the City and State taxes paid by them, and for the cost of the act of sale and copy thereof, aggregating $29.37 with ten per cent per annum interest from the payment thereof. They claimed, besides, the cost of alleged fences put up by them around the lot, and $2.50 for State and City tax research certificates and $25 for a survey to locate the lot.

The last three items were not legally due.

The amount spent by defendants to erect the fence around the lot was not allowed, for reasons which do not appear in the record.

It has been decided that a party who has purchased a lot of ground at a tax sale and is afterwards evicted on account of irregularity in the proceedings, is entitled to recover the value of the improvements made by him. Gornon vs. Handlin, 19 La. Ann. 25; C. C. 508 (500); C. C. 3453 (3416); Williams, Pinckard & Co. vs. Aroni, 35 La. Ann. 1119; Hickman vs. Dawson, 35 La. Ann. 1086; Eldridge vs. Tibbitts, 5 La. Ann. 380; Barrow vs. Wilson, 39 La. Ann. 410, 2 So. 809; Wederstrandt vs. Tereyhan, 34 La. Ann. 705; Walsh vs. Harang, 48 La. Ann. 992, 20 So. 202; Genella vs. Vincent, 50 La. Ann. 967, 24 So. 690.

V. P. Breaux, the - president of the Galvez Realty Company, testified that his company paid one Hallick $82.62 for fence boards and $25.60 for fence posts, and. $61.20 for labor for digging holes and putting up the fence around the lot, making a total of $169.42. Silas Dozier says he worked to put up the fence around the Norris lot, Mr. Halleck paid him.

S. Horvath is in the real estate and building business and buys and sells lumber and is qualified to give prices on lumber; three or four months ago he examined the fence around the Norris lot; he found 1454 feet of fence boards .1x12 worth $45 per thousand, and fence posts 4x6, 640 feet worth $40.

The lot is 30x120, or 300 feet around. At 60 cents a running foot the fence would cost $180 or about the price charged by defendants. The amount seems reasonable.

The plaintiff testified that he did not build a fence around the lot.

James Stewart, a witness for plaintiff, testified that he built a fence around two lots on Andry Street by mistake; the lumber cost him $104.50; attorney for the defendant showed bim he was in the wrong square.

The plaintiff contends that “the evidence establishes that the property was fenced in at the time of its purchase by the appellants (defendants at tax sale, and that they tore down this fence and used the same lumber to erect another fence.”

We have failed to see any evidence to that effect. The only testimony that tends to cast any shadow on the question is that of Stewart, who testified that he had fenced in two lots in another square which were not his, and that when he was made aware of his error the agents of the Galvez Realty Company would not permit him to remove his lumber, and that he was told that the Galvez Company had hauled it away, though he does not know it.

There is nothing in the record to show that the Norris lot before us was fenced in when defendants bought it. The only doubt that Stewarts’ testimony creates is that the defendants appropriated his fence to build their own. But even then the fact would remain that defendants had put up this fence which plaintiff cannot keep without paying for it. Stewart might have a claim against the defendants for the value of the lumber, but that would not entitle the plaintiff to take it without paying for it; one fact is clear and that is that ¡plaintiff did not put up the fence and he cannot enrich himself at the expense of another. 2 H. D. 1195; Genella vs. Vincent, 50 La. Ann. 967, 24 So. 690.

We are therefore of the opinion that the plaintiff must pay the defendants for the fence erected by them.

Section 11 of Article X, p. 86, of the Constitution, provides: “that no judgment annulling a tax sale shall have effect until the-price and all taxes and costs paid with ten per cent per annum interest on the amount of the price and taxes paid from date of respective payments be previously paid to the purchaser.”

The same ¡provision applies to the value of the improvements to which the defendants may be entitled; Article C. C. 3453 (3416), reads as follows:

“The rights which are peculiar to the possessor in good faith are:
“1st. * * * 2nd. The right which such a possessor has in case of eviction from the thing reclaimed to retain it until he is reimbursed the expenses he may have incurred on it.”

Delouche vs. Rosenthal, 143 La. 587, 78 So. 970; 2 H. D. 1198 (c); Stanbrough vs. Wilson, 13 La. Ann. 494; Coleman vs. Heirs of Ballard, 13 La. Ann. 512.

It is therefore ordered that the judgment appealed from be amended by increasing the amount the plaintiff Samuel V. Edmiston shall pay to the defendants, the Galvez Realty Co., Inc., from twenty-nine and 37-100 dollars to one hundred ninety-eight and 79-100 dollars with five per cent per annum interest on one hundred sixty-nine and 42-100 dollars from October 29, 1925, until paid, and that this judgment shall not be executed as to the plaintiff Samuel V. Edmiston until he shall have paid to the Galvez Realty Company the aforesaid sum of one hundred ninety-eight and 79-100 dollars with interest and costs hereinabove mentioned.

Judgment amended and affirmed.


text:
    No. 10,406
    Orleans
    HILL COTTON LUMBER CO.. INC., v. MEYER
    (October 15, 1928. Opinion and Decree.)
    Eugene Thorpe, of New Orleans, attorney for plaintiff, appellee. ,
    J. Ellen Chamberlain, of New Orleans, attorney for defendant, appellant.
   JANVIER, J., ad hoc.

Defendant offered in evidence certain invoices and other documents which are essential to a proper decision of this matter.

An examination of the transcript fails to disclose these documents. So far as we can ascertain, although they were offered in evidence, they were not actually filed, and certainly they are not contained in the record presented to us.

Their absence seems to us to be chargeable to the neglect of defendant and appellant. Under the circumstances we find it necessary to dismiss this appeal. Trustees Loan and Guaranty Co., Inc., vs. Joseph B. Richardson, No. 11,364, Court of Appeals for the Parish of Orleans, and authorities therein cited.

It is therefore ordered, adjudged and decreed that this appeal be dismissed, all costs to be paid by appellant.


text:
    No. 10,501
    Orleans
    HARGUS v. N. O. PUBLIC SERVICE, INC.
    (June 18, 1928. Opinion and Decree.)
    (July 7, 1928. Rehearing Refused.)
    (October 3, 1928. Writ of Certiorari and Review denied by Supreme Court.)
    Howell Carter, H. W. Robinson, of New Orleans, attorneys for (plaintiff, appellee.
    Benjamin W. Kernan, of New Orleans, attorney for defendant, appellant.
   CLAIBORNE, J.

Plaintiff claims $20,000 damages for the death of his daughter eleven years, eight months and twenty days of age.

He alleged that on May 11, 1924, about noon, his daughter, in company with her twin sister, left the church at the downtown river corner of Canal and Derbigny Streets, and crossed the lower driveway of Canal Street and part of the neutral ground in the direction of uptown, that this area is a safety zone and so marked as a warning to drivers of street cars to maintain extreme care to observe in ample time persons leaving the church to avoid injuring them; that there was a number of other persons leaving the church at the same time and proceeding along the neutral ground of Canal Street, giving an additional warning to those in charge of the electric cars for increased care; that at the same time an electric car of the defendant company of the Esplanade Street line was proceeding along the upper side of the Canal Street neutral ground in the direction of the river at a high and dangerous rate of speed; that the said car ran into petitioner’s said child, Iris D. Hargus, just as she stepped upon the first rail of the track; that she was caught in front and underneath the fender instead of being picked up by the fender, and was dragged for a distance of over two car lengths, approximately 75 feet, before the motorman could bring the car to a stop; that the wheels of the car went over the child’s body and its right arm, leg, and side were Crushed; that petitioner’s child was taken to the Charity Hospital where she suffered intense agony because of her awful injuries, and where she died six hours later.

The plaintiff charges the defendant with negligence in the following particulars:

1st. That it was running its cars at an excessive rate of speed.

2nd. That no warning bell or signal was sounded by the motorman.

3rd. That the motorman in charge of the car was an elderly man 65 years of age who was short sighted with failing eyes and wore glasses; and who could not distinguish persons in the vicinity or gauge distances.

4th. That the' car was equipped with brakes which were old and worn and in bad condition and not sufficient to keep the car in control.

5th. That the fenders with which the car was equipped were not in compliance with law and were not effective, and could have saved the child’s life if properly operated.

■ Plaintiff claims damages for the loss of love and society of his child and for the pain and suffering he had endured because of her early death; and for the loss of support in his old age which he could have expected frum his child.

The defendant admitted that “at the time of the accident referred to íd the petition there was a number of persons on Canal Street; it averred “that the injured child was taken to the Charity Hospital and that she died the same afternoon, being unconscious from the time of the injury until her; death” it admitted that the street cars are required to he equipped with fenders and averred that the car concerned in the accident was equipped with fenders approved by the (proper authorities.

Further answering respondent averred that it was informed that on May 11, 1924, a child suddenly ran into the front end of an Esplanade Belt car which was then being prudently operated on the neutral ground of Canal and Derbigny Streets on a trip towards the river, and was knocked down and so severely injured that she died the same day; that the plaintiff is “without right to recover damages for her injuries and death for the reason that said child was herself the cause of her injuries and death in that she failed to exercise that care required by the circumstances then and there existing and in running into the ear as hereinabove set forth.”

The case was tried by a jury who rendered a verdict, 11 to 1, for $12,000, affirmed by a judgment of the Court. From this judgment the defendant has appealed.

The Judge’s learned charge to the Jury conveyed to them the law as we understand it to be. He charged them substantially as follows:

“The plaintiff here will recover if you find that the death of the little child was caused by the fault of the defendant, the railway company, or by any of its employees, or by any defect in the machinery or equipment employed by the defendant. It must appear that the negligence caused the damage. If you find also that the little girl, the plaintiff’s daughter, was also negligent, and that her negligence contributed to the injury, in that case you cannot find for the plaintiff, because where an accident is caused by the negligence of both parties, the law gives relief to none of them. Though you find that the girl put herself in front of the car or so near to it as to be hit by it, if you find that after she got in that position the motorman saw, or could have seen her, and would have had time, by the use of appliances, to avoid the accident, then the plaintiffff should recover notwithstanding the negligence of his daughter.
“You are required to determine the facts hy a preponderance of the evidence. A child eleven years of age, bright and intelligent is capable of contributory negligence. People have a right to assume that a child of that age will take care of itself.”

We have enumerated the charges of negligence preferred hy the plaintiff against the defendant. We will examine them in their order.

I. That the car was running at an excessive rate of speed.

G. L. Leefe, a druggist, at the time of the accident, was just coming out of the Canal Street Presbyterian Church, on the downtown river side of Canal and Derbigny Streets; there was an unusually large crowd at the church; he saw some of the congregation move towards the neutral ground; he did not see the car before the accident; his auto was parked on the uptown rivér side; by the time he went towards South Claiborne and returned to the church, one-half or more of the people were out of the church; he picked up his family at the church and had just started when some one hallooed: “Somebody under the car"; he picked up the child from under the wheels; he was so excited he imagined the car stopped at least two car lengths from the regular ,car stop; the car must have been 50 or 60 feet or not quite that much; the child was lying upon its back, the right arm and the right leg had been cut off; the child was wedged in under the forward left wheel of the rear truck; evidently the damage must have been done by the front truck; it seemed to him that the two front left wheels passed over her; some of the people who left the church were on the neutral ground waiting for cars and others were standing in front of the church; the child’s head was under the car and was resting towards the west end; the car had to be reversed in order to pull the body from under the wheels; he did not see the accident.

John H. Aitken is a steam airbrake repair man; at the time of the accident he was coming out of the church; there was an unusually large attendance as it was “Mother’s Day”; the church was full and it holds about 450 people; as they came out of the church they moved in all directions, to the south side of Canal Street, to the west out Canal Street, some went upon the neutral ground and waited for cars; some went off in autos and others on foot; he did not see the accident but he saw the girl’s body under the rear truck wheel with her arm cut and trying to get out from under the downtown wheel; the car stopped at about 90 feet from the crossing; he ran to the front of the car and told the motorman to back down.

M. E. Lavigne is a real estate salesman. He was seven months a motorman for the N. O. Public Service; he had an accident and they wanted him to admit things that were not true, and he resigned before he was discharged; the child had just been removed to the hospital when he got to the scene of the accident, the car was about a length beyond the regular stopping place.

Mrs. Anna Coffee testified that she was between the two tracks on the neutral ground; there must have been 40 or 50 people scattered on the neutral ground, one-half children; she saw the car half a square from the corner coming towards the river; it came at a pretty high speed, and did not seem to slow down as it approached the corner of Devbigny; she did not see how the accident happened, but she saw the child under the wheel, the car was still moving very slowly coming to a stop; the front end of the car was then 60 or 65 feet from the crossing; the child was “under the front wheel on the left hand side of the car”; she “saw the front wheel go o'ver the hody”; her feet were under the car and her head was outside; when the car was stopped the child “was lying up against the last wheel in front, not in the back, in the front, two wheels had already went over her”; the body was lying against the rear wheel of the front truck.

H. W. Kousseaux is conductor of steam railways; he was walking out Canal Street on the uptown side near about 50 feet from Derbigny; the people that he saw were between the street car downtown and the church; he saw a car coming up Canal’ Street a half of a block away; it was running fast, like they generally run; he did not notice that it slowed up as it neared Derbigny; after the car stopped, the front end may have been 40 or 50 or 60 feet from Derbigny Street; he got close enough to see that somebody was under the car; the car was running at its usual speed.

Ina Hargus is the twin sister of the deceased; she is 13 years of age, and was 11 on the day of the accident; when’ the church was over not many people crossed to the neutral ground; she and her sister crossed the street and passed the first track and stopped on the neutral ground; she looked for the street car and saw it coming fast; it did not slow up as it came to Derbigny Street; “when we stopped, she (her sister) was closer to the track than I, and the car was coming fast, and maybe the wind must have thrown her under the fender and caught her, and that was the last I saw of her, and I heard her scream under the car in the front part of it”; she saw the motorman looking at the church on the left side of the track; they were in front of the first track on the neutral ground, at the time they stopped the car was 23 feet from the lake side of Derbigny Street; they stopped' to let the car go by; she was about 18 inches from the track, her sister was beside her on her left side, closer to the track; the car passed the witness first and did not strike her.

“Q. Don’t you know that Iris jerked away from you and ran ahead of the car; is not that so?
“A. Yes.
“Q. Now, didn’t you try to stop her and hollered to her to stop?
“A. I hollered.
“Q. And she didn’t stop?
“A. No, sir.
“Q. Now, is it not true that Iris ran into the front end of the car as she tried to run across ahead of the car?
“A. The front end.
“Q. Yes.
“A Yes, sir.
“Q. That is true?
“A. That is true.”

Iris, the deceased child, “lacked three months to be 12, at the time of the accident.”

“Q. Now, you told Mr. Kernan, the lawyer for the railway company that your sister broke away and ran in front of the car, did you understand him when he asked you about that?
“A. Yes, sir.
“Q. Then tell me just what your sister did.
“A. She was standing next to me, and the car was coming, and she ran in front of the car.
“Q. How far away was it when in front of it?
“A. It was not very far.
“Q. Was it as far as between you and me?
“A. About that far. (12 feet by actual measurement.)
“Q. Now, before Iris crossed the track what happened, what part of the car struck her?
“A. The front part.
“Q. And do you know what it was that struck her, the bumper, the fender, or what?
“A. The fender.
“Q. What part of the fender, the back (part of the fender where it was hooked to the body of the car?
“A. Yes.
“Q. You understand me?
“A. Yes, sir.
“Q. It was not the front end of the fender but the back part where it is hooked to the car?
“A. Yes, sir.
“Q. She didn’t get on the track at all, did she?
“A. No.”

Louis P. Hargus, the plaintiff testified as follows:

‘‘Q. What was the condition of Iris, as to health and intelligence?
“A. Intelligent, robust, and stout, just like her little sister, that left here a minute ago (from the witness stand).
“Q. They were both very bright?”

This closed the testimony on behalf of plaintiff.

The defendant introduced John Weilbrenner, the motorman on the car on the occasion of the accident. He had been a motorman “going on fourteen years.” They usually feed up nine points, and when they approach Derbigny Street they cut off the power and slack down to about half speed, ringing the gong; when he reached Derbigny Street there was no one in the way, he was not going to stop at Derbigny Street because he was late and was picking up passengers at every second corner; he describes the accident- as follows: '

“I was crossing over Derbigny Street, I suppose we w;ere going ten or twelve miles an hour; the front of our car was just past the place where ¡people stand to board the cars, when the little girl came running from the Canal track, on the church side of our track, and it looked as if she wanted to pass in front of the car, I then quickly applied the air, reversed the car and dropped the fender, when she struck about the middle of the fender and fell right alongside the fender.”

When he stopped the rear end of his car must have been about eight or ten feet from the cross walk; when he passed Roman Street he fed up his car to nine points, but as he approached Derbigny Street he reduced it to half speed; nine points mean a speed of 20 or 25 miles; when he reached Derbigny Street he shut off the power and “let the car coast”; the child came running from the church side of his car, she ran diagonally, not directly, across and he applied his brakes and she tried to get ahead of the car; the front part of the car was just where the people stand to take the car when the little girl started to dash as if she wanted to. run ahead of the car, there was some people standing at the crossing to take the car; the distance between the uptown and downtown tracks is about nine feet; the front of his car stopped at about 55 feet from the crossing, the car is about 55 feet or 46 feet long; the child struck about the center of the side of the fender on the left hand side of the car; the space between her knee and her ankle is what struck the fender; a gentleman came up and asked him to back the car just about 12 inches so they could get her out.

Mrs. A. M. Anseman is a stenographer for the Standard Motor Finance Company for the last three and a half years; she saw the accident, she had left the church and had crossed the street, and was waiting for the inbound trail right at the corner where the accident occurred to take the Esplanade car going towards the river; the accident happened on the city side of her and the church side of the track and river side of Derbigny; the child evidently thought the car was going to stop, and she cut diagonally across while the car was moving and gave no evidence of stopping; when the child started to run the car was practically right on her; the accident happened “in a flash of the eye,” it was very quick; when she first saw the child she was on the cement pavement that crosses the neutral ground righx between the two tracks and she started running diagonally towards the uptown track; she did not get over more than four of her steps; the car was coming at such a rapid rate of speed it would not take long to get where she was standing; she heard no bell; the car was running extremely fast; when the car stopped the end was about 20 feet from the pavement that crosses Canal Street on the river side of Derbigny Street.

James Daniels is a performer in the Fields Minstrels; his home is on Canal Street. on the lower side two and a half blocks beyond Derbigny Street; 'he left his home and was walking towards the church; he heard a scream and looked up; then he saw a little child go forth and dive in front of a car and he turned his head away; they call “dive” in their business when a person in front of a car tries to get away and pulls back; she was trying to get away but it was too late; he saw the child go into the car with her hands spread out that way (illustrating) and then he turned his head away; his recollection is that it was the edge of the car, the downtown front corner of the car, that struck the child.

D. C. O’Dowd denied that he had asked Lavigne to testify to something that was not true.

E. Peyret, also an employee of the defendant, also denied that he had asked Lavigne to testify to something that was not true; he discharged Lavigne “for running into the rear end of another car.”

James Martin is in the employ of the defendant in the electric meter department; he was not at the time of the accident: he reached the accident in the car following the one in the accident; When this last car stopped the rear end was two feet from the crossing.

Leon Gerard, motorman for defendant, testified that he was coming from the river on a Canal Belt car; he saw the car that had been in the accident, he got there nine minutes after 12; the rear end was about 15 feet from the Derbigny Street crossing.

Louis Maureau was a conductor on defendant Canal Street car going towards lake; he arrived on the corner of Derbigny and Canal Streets a few minutes after the accident; he noticed that the car in the accident was ten feet from the intersection of Derbigny Street.

Louis Letellier, conductor on defendant’s car in the accident; they were three minutes late; they were making skip stops; before reaching Derbigny Street he felt the motorman throw off his power and ring his gong; and all at once the car gave a jolt and stopped with the rear end within six and eight feet from the foot crossing of Derbigny Street; he got down and saw the child’s body, her head facing the river lying by the first wheel of the rear truck on the left hand side of the car.

Vincent Alvarez, inspector of equipments for defendant; every time a car makes 1000 miles it is taken in for inspection and repairs; the day after the accident he inspected the car; the brakes were good, nothing wrong with them, he tried the car out himself from the Canal barn to the half way h^use and back, and it worked all right.

As stated by the learned Judge in his charge to the jury, the plaintiff cannot recover if the injury to the child was brought about by her own negligence. The authorities upon this point are so abundant that it is only necessary to refer to digests. 5 La. Dig. 523, S. 25; 11 Orl. App. 330; Dufossat vs. Berens, 18 La. Ann. 339; Daul vs. N. O. Ry & L. Co., 147 La. 1012, 86 So. 477; Leopold vs. T. & P. Ry. Co., 144 La. 1000, 81 So. 602; Borell vs. Cumberland Telegraph & Tel. Co., 133 La. 630, 63 So. 247; Harrison vs. La. Western R. Co., 132 La. 761, 61 So. 782; Conrad vs. McClintic-Marshall Const. Co., 131 La. 562, 59 So. 983.

The evidence establishes beyond a doubt that as the car crossed Derbigny Street and was proceeding along Canal Street, the plaintiff’s daughter, by a sudden impulse, ran in front of the car notwithstanding the efforts of her sister to restrain her.

The jurisprudence of this State relieves a street railroad from liability when a child not capable of negligence suddenly runs across its path and is killed, not on the ground that the child is guilty of con tributory negligence, but because the rail road is free from negligence. Such were the facts and the doctrine in the case of Culbertson vs. R. R., 48 La. Ann. 1376, 20 So. 902. In that case the Court said:

“The fact that a child may not be capable of contributory negligence does not always render a defendant liable upon the mere proof of the injury. The test is negligence vel non. If the defendant or the defendants’ agent or employee was not negligent, it is not liable.”

The more so is that the law when the injured person is capable of fault or of contributory negligence. The injured child in this case was eleven years and nine months of age, “intelligent, robust, stout, and very bright,” such a child is capable of fault or negligence.

“While no one should be held to a degree of care and caution beyond his years, a boy eleven years and four months of age cannot be relieved from the exercise of all care and prudence.” McLaughlin vs. N. O. & Carrollton Co., 48 La. Ann. 23, 18 So. 703.
“A bright and intelligent child eight years old is.sui juris so far as negligence is concerned.” Lynch vs. Knoop, 118 La. 611, 43 So. 252.
“If a girl ten years of age ran to, or hastily stepped on, a bridge while in motion, such heedless act is the proximate cause of her injury, and the fact that there was no guard or chain to warn pedestrians would not relieve, the girl from the necessity of acting as is expected of a person of her age.” Downey vs. Baton Rouge Elec. & Gas Co., 122 La. 481, 47 So. 837.
“Contributory negligence may be laid at the door of a young preson ten years and nine months of age.” Cusimano vs. City of N. O., 123 La. 565, 49 So. 195.

But the evidence does not show that the defendant was running at an excessive .rate of speed. The preponderance of the testimony is that the car was running at its usual speed, and that it slowed up as it came to Derbigny Street. This testimony is confirmed by the fact that the car was stopped within a short distance after the accident. The only witness who says that the car was running fast was Mrs. Anseman, but she is not corroborated.

But even if the car was running fast, its speed does not diminish the negligence of the deceased child. The car was coming in open view to her sister and to all the other witnesses.

To attempt to cross in front of it was the height of imprudence on her part.

2nd. The testimony as to the ringing of bells is conflicting. The motorman swears.he rang his beh and the conductor says he heard it. Other witnesses say they did not hear any bells. Their testimony is negative. But what if no bells were rung? The ringing was to attract attention, and the car had been seen by all the persons at or near the corner.

3rd. The motorman was 61, but was not old, for he had no infirmities. Mrs. Anna says he used glasses, but she is contradicted by the motorman himself and the other witnesses. He told the time in the court room by the clock 32 feet away from him, and read the print on the calendar on the wall without the use of glasses. He had been a motorman fourteen years.

4th. There were fenders on the car, in working condition and the same that were used at that time and years before. The motorman says he dropped the fender, but that the girl fell on the side of it. Act 119 of 1912, p. 142, does not specify the kind or quality of fender to be used. . No other fender is suggested, nor assurance given that another fender would have saved the girl’s life. The case of Cannon vs. City, 144 La. 288, 80 So. 540, is very much in point. The syllabus reads:

“When a child less than six vears of age catches on behind a truck drawn by mules which are trotting at the rate of six or eight miles an hour within 4 or iVz feet from the truck of an electric railway, and then abandons his hold upon the truck at the moment when a car is passing upon the track in the opposite direction, at the rate of ten miles an hour, and suddenly runs upon the track in front and within four or six feet of the car, and it is shown that the motorman did all that was possible, after seeing the child, to avert the impending accident but without success, there can be no recovery of damages by the parents of the child, even though the car was unprovided with a fender as required by law, since the time within which a fender could have been effectively dropped was insufficient.”

In the present case there was a fender and it was dropped. The motorman, Weilbrenner testified: “It looked as if she wanted to pass in front of the car, and I then quickly applied the air, reversed the car, and dropped the fender.”

5th. The brakes of the car were in good order as well as all other parts of the car. We can perceive no negligence on the part of the defendant.

It is therefore ordered that the judgment herein be reversed and avoided; and it is' now ordered that there be judgment in' favor of the defendant, the New Orleans Public Service, Inc., rejecting plaintiff’s demand at his cost.