author: WEBB, J. WEBB, J.

text:
    No. 3083
    Second Circuit
    DANCE v. COLEMAN, SHERIFF, ET AL.
    (May 22, 1928. Opinion and Decree.)
    (June 28, 1928. Rehearing Refused.)

      (Syllabus by the Editor)
    1.Louisiana Digest — Judicial Sales — Par. 18, 25, 27.
    A judicial sale of movable property, an undivided one-fourth interest of which belongs to a third person, is null in so far as the one-fourth interest is concerned, but where the property can not be identified, the remedy of third party is to proceed against purchaser and sheriff to claim proceeds of the sale or damages.
    2. Louisiana Digest — Agriculture—Par. 19, 22, 23; Judici-I Sales — Par. 23.
    The registry of the privilege against a crop by the furnisher of supplies does not protect the owner of the lien under the provisions of Article 684 of the Code of Practice or give him the right to have the judicial sale of the movable on which the privilege bears declared null by reason of the price of adjudication being less than the amount of the privilege.
    3. Louisiana Digest — Privilege—Par. 5, 7; Judicial Sales — Par. 23.
    Code of Practice Article 684 does not apply to judicial sale of movable against which there is a recorded privilege.
    Appeal from the Second Judicial District Court, Parish of Claiborne. Hon. John S. Richardson, Judge.
    Action by Walter Dance against John W. Coleman, sheriff, et al.
    There was judgment for defendants and plaintiff appealed.
    Judgment reversed.
    R. L. Williams; J. Rush Wimberly and George M. Wallace, of Arcadia, attorneys for plaintiff, appellant.
    W. D. Goff and B. P. Barnette, of Arcadia, attorneys for defendants, appellees.
   WEBB, J.

Plaintiff, Walter Dance, leased to John Hopkins, a certain farm situated in the parish of Claiborne for the year 1926, on shares, plaintiff to receive one-fourth of the cotton and cotton seed raised on the leased premises, and plaintiff also furnished Hopkins with some supplies, and under an action brought by Dance against Hopkins judgment was rendered on November 12, 1926, in favor of plaintiff for one thousand dollars, the amount claimed, with recognition of an asserted privilege and crop lien for the amount of the judgment.

Hamner & Co., Ltd., of Bienville parish, having a judgment against Hopkins amounting to something over one thousand dollars, issued a writ of fieri facias thereon, which was sent to the sheriff, John W. Coleman, of Claiborne parish, who executed same by seizing the crops on the premises leased by Hopkins from Dance, and after the crop had been gathered it was stored in a warehouse in the parish of Bienville and warehouse tickets issued therefor, and following, on November 27, 1926, the sheriff, after due advertisement, offered the property at public sale and Hamner & Co., Ltd., became the purchaser.

On November 30, 1926, Dance filed the present suit in the parish of Claiborne against Hopkins, the sheriff, and • Hamner & Co., Ltd., in which he sets forth the facts above stated, and alleges ownership of an one-fourth undivided interest in the property and a crop lien or privilege on the balance, or the three-fourths undivided interest of Hopkins, and alleging various irregularities in the sale made by the sheriff, he prayed that the sale be annulled and that he be decreed the owner of one-fourth of the property and his privilege be recognized and enforced on the three-fourths undivided interest of Hopkins, to which Hopkins answered admitting the allegations of the petition, and Hamner & Co., Ltd., answered, in substance, admitting that it had purchased the property at the sale made by the sheriff, and 'that the price of the adjudication had been paid over to the sheriff and had been credited on the writ and paid by the sheriff to defendant, Hamner & Co., Ltd., and alleged that the sale was valid and that plaintiff had been present or represented at the sale and was estopped either to claim ownership or privilege on the property or nullity of the sale, and a default was entered against the sheriff.

On trial judgment was rendered in favor of plaintiff and against Hamner & Co., Ltd., and the sheriff for the value of one-fourth of sixteen bales of cotton (the judgment, however, not fixing the value) and reserving his right to claim damages, and otherwise rejecting plaintiff’s demands, from which plaintiff appeals, and Hamner & Co., Ltd., and the sheriff have answered the appeal, praying that the judgment be amended and plaintiff’s demands rejected.

The case presents ,an unusual situation, in that while plaintiff knew of the seizure of the property he was not aware of the date of the sale and did not take any legal action until after the property had been sold and the proceeds had been applied on the writ, and in the present action, while he alleges ownership of an undivided interest in the property and a privilege on the interest belonging to Hopkins, and prays that such rights be recognized, the real object of plaintiff appears to be to have th,e sale annulled, and the property returned to the sheriff that it may be sold and a one-fourth of the proceeds delivered to him as the owner of one-fourth of the property, and the balance of the proceeds applied to the payment of his privilege, or such portion thereof as may be necessary, and although plaintiff did not especially pray for the property to be returned to the sheriff, it may be assumed that under a decree recognizing plaintiff as the owner of a portion of the property and as having a, privilege on the balance, and annulling the sale, the duty would be upon Hamner & Co., Ltd., to return the property to the sheriff, and in default of its complying with its duty, that plaintiff could then enforce the decree by an action in damages or other appropriate action.

The evidence concededly established plaintiff’s ownership in an one-fourth undivided interest in the property seized and adjudicated to Hamner & Co., Ltd., . under the writ of fi. fa. issued against Hopkins, and clearly the sale of plaintiff’s property made under the execution issued against another, did not divest plaintiff of his ownership or vest the ownership in the purchaser (Ballio vs. Poisset, 8 Mar. N. S. 336), and the only defence set up being that plaintiff was present or represented at the sale and permitted the property to be sold without protest and that estopped him to contest the validity of the sale of such interest, not being established, we think that the plaintiff, without regard to the regularity of the sale, was entitled to be decreed the owner of a one-fourth undivided interest in the property, unless it appeared that the property had lost its identity, which is suggested by defendant in its answer, in which it' is alleged that it had sold the property and that it had passed into the channels of commérce, as to which some evidence was offered.

The defendant, however, did not base its defence on such facts but stood on the defence that plaintiff’s ownership had been divested by tire sale, and while we might infer that it will be impossible for the defendant to deliver the property, and had plaintiff demanded the property or its value and there was any evidence in the record ' showing the value, yet plaintiff insisting on the relief prayed for, we do not think we can presume that defendant will be unable to comply with any duty or obligation which may be placed upon it by the decree on the issue presented, which was merely whether or not the plaintiff was the owner of one-fourth of the property and whether his ownership had been divested by the sale, or whether he was estopped from claiming the ownership of the property, and we conclude that the judgment should decree plaintiff to be the owner of one-fourth of the property, without considering any difficulty of enforcing the decree.

The situation, however, as to the privilege, is somewhat different, as an action to enforce a privilege on property is in the nature of a proceeding in rem, and where the property is not in the custody of the court, or not shown to be in the possession of the person against whom the privilege is sought to be enforced, we do not think a decree should be rendered recognizing the asserted privilege, and this we think is especially true where the person against whom the privilege is asserted is not the debtor, and the action is not of such character as would enable the court to render a personal judgment against the party against whom the privilege is asserted, which is the case in the present suit.

However, if the sale was null and void, and the title or ownership of Hopkins in the property was not divested by the adjudication to Hamner & Co., Ltd., the privilege still continued to exist on the property, which appears to be the contention of plaintiff, and the privilege is thus merely set up as an incident or as the basis of .plaintiff’s right to have the sale of the property of Hopkins, his debtor, decreed to have been null and void, and the defendant having put at issue the validity of the privilege and of the adjudication, we cannot presume that it will be unable to comply with any decree rendered on the issues presented, or with any duty or obligation to return the property to the sheriff which may be implied from the decree annulling the sale, and we proceed to consider whether or not the sale was null on the grounds alleged by plaintiff.

The evidence concededly established that plaintiff did have a privilege on the property to an amount of at least two hundred and five dollars, and we find that the evidence established that the privilege was at least one thousand dollars, and it is conceded that the privilege resulted from plaintiff having furnished Hopkins with supplies with which to make the crop, and that plaintiff had taken a crop lien which had been duly inscribed on the mortgage records, and that the privilege was superior to any claim of Hamner & Co., Ltd., the plaintiff in execution against Hopkins, and the plaintiff alleges the adjudication was invalid for the reason that the defendant in execution, Hopkins, was only the owner of an undivided interest in the property, and that Hopkins had not been given any notice of the date of the sale, nor notice to appoint an appraiser, and that the property was sold without being exposed to view at the time and place of sale, and, further, that the price at which the property was adjudicated was less than the recorded privilege of plaintiff.

The evidence established the facts alleged as the basis for the claim for the nullity of the sale, which we will consider in the order stated.

The claim that the sale of Hopkins’ property was null appears to be based on the assumption that the interest of Hopkins being only an undivided interest, that the sheriff did not have the right to seize the entire property and to proceed with the sale under such a seizure; however, the evidence conclusively established that plaintiff knew of the seizure and that he did not protest, and the sale of the entire interest in the property, we think divested Hopkins of any interest he had and not affecting the interest of plaintiff he has not any cause of complaint.

The failure of the sheriff to give Hopkins notice of the date of the sale, and to appoint an appraiser, and to expose the property to view at the time and place of sale, were not absolute nullities, and plaintiff appearing as a creditor of Hopkins and attacking the validity of the sale, we think it was incumbent on him to allege and show that the failure of the sheriff to comply with such regulations had injured him (Howard vs. Schmidt, 29 La. Ann. 129; and authorities cited),‘and he neither alleged nor proved that he was injured, or that the appraisement made was less than the value of the property or that the price at which it was adjudicated was less than its value, and the sale was null on the grounds alleged.

The position that the sale was invalid for the reason that the price of the adjudication was less than the amount of the superior recorded privilege of plaintiff bearing on the property, is apparently based upon the provision of the Code of Practice regulating judicial sales, where it is provided that where lands or other objects susceptible of being mortgaged are to be sold, the sheriff shall obtain from the registrar of mortgages a certificate showing whether or not there exist on the property mortgages or privileges and read the same at the sale, and announce that the sale is made subject to such encumbrances (Arts. 678, 679, C. P.), and that where there exist against the property privileges or mortgages which have a preference over the judgment creditor the property shall not be sold unless the price bid is sufficient to discharge such encumbrances (Art. 684, C. P.), and the well established jurisprudence under the latter article that the holder of such claims may have the sale annulled when the adjudication is made in violation of its provisions; but counsel do not attempt to illustrate the applicability of the law to the present case, where the thing sold was a movable and was not at the time of the passage of the act susceptible of being mortgaged.

We cannot conceive of any reason why the provisions of the article cited (Art. 684, C. P.) should be held applicable to movable property unless it may be said that the laws regulating judicial sales are general laws and must be applied to all judicial sales, and that subsequent laws having declared movables subject to be mortgaged, that the provisions of- the cited articles must, be held applicable to sales of movables.

The statute, chattel mortgage law, while it does provide that .movables may be.mortgaged, is clearly a special law, in which the' manner of drafting the mortgage is made sacramental and is in itself complete, while Article 684, C. P. may be also considered as a special law relieving certain creditors of the necessity of being on the alert, and considering the great distinction between movable and immovable property, we do not think that the provisions of Article 684 C. P. can be held to be applicable to movables.

However, the question presented is not whether or not the provisions of Article 684 C. P. are applicable to sales of movables on which there are chattel mortgages, but the question is as to whether the law is applicable where there is a privilege bearing against movable property, which we think presents a very different question from that which we have assumed to be the basis of counsel’s position.

The law does not usually require that privileges which are credited by it on movables should be recorded, and where it does not provide for the recordation of such privileges, we do not think that the mere recording of the privilege would preserve it when the ownership of the movable passes from the debtor, and while it may be said that the privilege or crop lien is authorized to be recorded, we think its recordation is merely authorized as against special creditors of the debtor who may also furnish supplies and to whom the law would also grant a privilege, and not as against the general creditors of the debtor (Weil vs. Kent, 52 La. Ann. 2139, 28 So. 295), and the registry of the privilege does not protect the creditor under the provisions of Article 684 C. P. or give rise to a right to have the judicial sale of the movable on which the privilege bears declared null by reason of the price of adjudication being less than the amount of the privilege.

We conclude that under the action brought by plaintiff the sale of his debtor’s property cannot be annulled, nor can he be decreed, as against defendant, to have a privilege on the property, but that he should have judgment as against defendant Hamner & Co., Ltd., recognizing him as the owner of one-fourth of the property adjudicated to Hamner & Co., Ltd., and that his right to proceed against the sheriff and Hamner & Co., Ltd., to claim the proceeds of the sale or for damages should he reserved.

It is therefore ordered that the judgment appealed from be avoided and set aside, and it is now ordered, adjudged and decreed that plaintiff, Walter Dance, have and recover judgment against Hamner & Co., Ltd., decreeing plaintiff to be the owner of a one-fourth undivided interest in that certain property adjudicated to Hamner & Co., Ltd., by J. W. Coleman, sheriff of Claiborne parish, Louisiana, on December 3, 1926, said property being eight thousand fifty-seven pounds of lint cotton and three thousand pounds of cotton seed, said sale being made under a writ of fi. fa. issued in the cause of Hamner & Co., Ltd., vs. John Hopkins, No. 7280 on the docket of the Second Judicial District Court in and for the parish of Bienville, and that plaintiff’s demands he otherwise rejected; reserving unto him any right he may have to claim, as against the sheriff and Hamner & Co., Ltd., the proceeds of the sale of the property of John Hopkins or any claim for damages which he may have against said sheriff and Hamner & Co., Ltd.

It is further ordered that plaintiff pay all costs of both courts.

ON APPLICATION FOR REHEARING

WEBB, J.

In the application for rehearing, plaintiff complains of the finding that the property had been sold prior to his suit being filed when the evidence shows that there had been only an adjudication, but that the property had not been delivered to the purchaser and the proceeds applied on the writ, and plaintiff apparently urges that under the showing made judgment should have been rendered against the [plaintiff in execution, Hamner & Co., Ltd., and the sheriff for the proceeds, or for damages in proceeding to deliver the property and distribution of the proceeds after his suit was filed.

The finding that' the property had been sold is supported by plaintiff’s pleading, in which he alleged the property had been sold and his demand for the nullity of the sale, and by the record, showing that the property had been adjudicated at the time he filed his suit, and the adjudication was the completion of the sale (Lane vs. Cameron, 36 La. Ann. 773; Succn. of Massey, 46 La. Ann. 130, 15 So. 6; Landry vs. Laplos, 113 La. 699, 37 So. 606), and while it may be that plaintiff could have claimed the proceeds by having the sheriff retain same there was not any order obtained, and he did not pray for such relief, or that he may have brought his action as for an illegal conversion of the property on which he had a privilege, but he did not do either, and his action was to revendicate the property accumulated with an action of nullity.

Hamner & Co., Ltd., having a judgment against Hopkins had the right to have his interest in the crop seized and sold subject to the privilege of plaintiff (Case vs. Kloppenburg, 27 La. Ann. 482; Pickens vs. Webster, 31 La. Ann. 870), and while Dance, plaintiff, could have claimed the proceeds of the sale, or probably claimed damages for an illegal conversion of the proceeds, as appears to be suggested, such claims .were not set up in the present suit, and we do not think it is in the power of the court to grant such relief, in default of such relief being prayed for in the petition, and whatever rights plaintiff had against the defendants to claim the proceeds or damages being reserved to plaintiff under the decree heretofore rendered, the motion for rehearing is denied.


source: Caselaw Access Project

author: WESTERFIELD, J.

license: Public Domain

text:
    No. 10,329
    Orleans
    AMERICAN HOME BUILDING CO. v. SLATE
    (July 4, 1928. Opinion and Decree.)
    (July 7, 1928. Rehearing Refused.)
    Harry McEnerny, Jr., of New Orleans, attorney for plaintiff, appellee.
    Ernest J. Robin, of New Orleans, attorney for defendant, appellant.
   OPINION

WESTERFIELD, J.

This is a suit by a partnership composed of Salvadore Palmisano and Arnold K. Peppers for .$745.00 claimed to be due as a brokerage fee.

From an adverse judgment defendant appeals.

The defense as urged in the trial court was in effect a general denial. In this court, in argument and in brief, a number of defenses involving plaintiff’s capacity to sue, because of the alleged failure of plaintiff to comply with the legal requisites for the formation of a partnership are most insistently presented. Insofar as the questions raised for the first time in this court are concerned, we must decline to consider them because not presented below. Reisz vs. Kansas City Southern Railroad Co., 148 La. 932, 88 So. 120; Koepping vs. Monteleone, 143 La. 353, 78 So. 590; Gordon vs. Business Men’s Racing Assn., 140 La. 674, 73 So. 768; Slocomb vs. Williams, 23 La. Ann. 245.

The plaintiff partnership, according to one of the partners, Palmisano, who appears to have handled the transaction, is engaged in the business of soliciting building contracts, a rather unusual occupation. Slate, the defendant, is a building contractor. Palmisano, acting for an undisclosed principal, obtained a bid from Slate for the erection of a house, according to certain plans and specifications which were submitted. Slate quoted Palmisano a price of $5005.00. Palmisano induce'd his principal to sign a contract with Slate for the erection of the house and agreed to pay $5750.00 and contends the difference of $745.00 represents the commission due his firm.

In this contract both Palmisano and his •partner, Peppers, join with the owner of the property, a negro • by the name of William Earl White. Palmisano explains this singular action upon the ground that he desired to protect his commission, but it is of no moment what induced him and his partner to assume,- jointly with White, the obligations of the contract.

It is not disputed that defendant originally agreed to erect the house for $745.00 less than the amount mentioned in the contract, and, it is admitted, that there was no change in the plans and specifications. It is also admitted that Slate received the full contract price. His explanation, if such it may be called, of his retention of the $745.00 is difficult to understand and more difficult' to believe. It is based upon the alleged discovery that the lot upon which the house was to be erected was not entirely paid for and the additional sum he claims was added on that account. He had never seen White before he signed the contract and dealt exclusively with Palmisano, yet he claims to have been influenced by White’s failure to entirely pay for the lot.

We, like the trial judge, are of opinion that the case is with plaintiff and consequently the judgment' appealed from will be affirmed.


author: CLAIBORNE, J.

text:
    No. 10,879
    Orleans
    WARREN v. ROSENBERG
    (August 13, 1928. Opinion and Decree.).
    Beard and O’Keefe, of New Orleans, attorneys for plaintiff, appellant.
    Jos. A. Casey, of New Orleans, attorney for defendant, appellee.
   CLAIBORNE, J.

This is a suit for the cancellation of a lease.

Plaintiff, the lessee, averred that on March 12, 1926, she leased the property No. 2014 Canal Street from H. Rosenberg, for the period of six months beginning April 1, 1926, and ending September 30th, for the price of $175 per month evidenced by notes; that plaintiff had stipulated for painting and repairs to screens; that plaintiff was informed that the garage forming part of said premises was included in the lease, but after she took possession she was told that the garage was not a part of the leased premises; that the roof of said property leaked very badly and deprived her of the use thereof, and had caused one of her tenants to vacate the property; that the lessor, although informed of that defect, has done nothing'to remedy it; that the lease was secured by a mortgage note of $1560. Plaintiff prayed for the cancellation of the lease and the return of the mortgage note.

The defendant lessor, admitted- the lease but denied all the other allegations of the petition; he averred that the only work he agreed to do was three stationary washstands which he installed; that plaintiff was informed that only one-half of the garage was for her use; that the lease stated the purpose for which the house was leased; that as soon as he was informed that the roof leaked he had the same repaired to the satisfaction of plaintiff.

Assuming the character of plaintiff, defendant claimed rent for the four months of June, July, August and September amounting to $700 with interest and attorney’s fees.

This suit was filed August 21, 1926.

There was judgment on the main demand in favor of the defendant rejecting plaintiff’s demand, and on the reconventional demand in favor of the (plaintiff in reconvention, H. Rosenberg, and against the defendant in reconvention, Mrs. Mary C. Warren, for $700, interest and attorney’s fees. Subject to a credit of $45.

Mrs. Warren has appealed.

A careful reading of the testimony has convinced us that the judgment is correct. The plaintiff in all cases must establish his case by a preponderance of the evidence. '

The more so in a case of this kind where our Supreme Court has repeatedly held that the abrogation of leases is not favored ■except in extreme cases. Moore vs. Lambeth, 6 La. Ann. 74; Lagrave vs. Merle, 5 La. Ann. 279, 52 Am. Dec. 589; Mouton vs. Cameau’s Heirs, 5 La. Ann. 566; J. M. Denman & Co. vs. S. M. Lopez & Co., 12 La. Ann. 823; Coleman vs. Haight, 14 La. Ann. 564; Foucher vs. Choppin, 17 La. Ann. 321; Penn vs. Kearny, Glois & Co., 21 La. Ann. 21; Brigham vs. Newton, 49 La. Ann. 1547, 22 So. 777; Vincent vs. Frelich, 50 La. Ann. 378, 23 So. 373, 69 Am. St. Rep. 436; Scibetta vs. Marciante, No. 7974 Orl. App., March 21, 1921.


text:
    No. 9971
    Orleans
    GRASSER CONTRACTING CO. v. CITY OF NEW ORLEANS
    (December 12, 1927. Opinion and Decree.)

      McCloskey and Benedict, of New Orleans, attorneys for plaintiff, appellant.
    M. Provosty, W. C. Jones, of New Orleans, attorneys for defendant, appellee.
   WESTERFIELD, J.

This is an appeal from a judgment maintaining an exception of no cause of action.

The petition alleges that plaintiff, a paving contractor, entered into an agreement with the City of New Orleans in 1914 to install sub-surface drainage, preparatory to paving Lowerline Street. That the work was done and accepted by the City and certificates issued against abutting property holders, one of whom, Mr. F. Rivers Richardson, refused to pay his proportion of the cost, on the ground that the proceedings leading up to the paving were radically null in that 52 per cent of the interested property holders had not signed the petition for the paving; that suit was filed against Richardson which resulted in his position being sustained by final decree of the Supreme Court (Grasser Paving & Contracting Co. vs. Richardson, 144 La. 933, 81 So. 429); that in the trial of the Richardson case it developed that there were not sufficient signatures to the petition for paving, and petitioner addressed a letter to the city the next day advising it of that fact, plaintiff having had no prior knowledge thereof. Judgment is asked against the City for the share charged against Richardson upon the ground that it warranted the payment of thq work.

The court, in maintaining the exception, based its judgment upon the case of Moylan vs. City, 32 La. Ann. 673. The plaintiff insists that the Bruning case, Bruning vs. City, 122 La. 316, 47 So. 624, and not the Moylan case controls.

We quote the brief reasons given by our brother below in full:

“The defendant pleads that the petition does not state a cause of action. The paving in question was done under the authority of Section 42 of Act 159 of 1912, the charter of New Orleans, on the petition of property owners. Less than the legal proportion having joined in the petition, the Supreme Court held in the suit of the present plaintiff, the contractor, against F. Rivers Richardson, a property owner, for his proportion of the cost, that the contract was for that reason null.
“In the Bruning case, cited by the plaintiff, 122 La. 316, 47 So. 624, the city had the right to make the contract, but the contractor lost his claim against the property owner because of the failure of the city to give the property owner a notice which was necessary to fix his liability, and it was held that the contractor had his recourse against the city.
“Obviously this is a different case, for here the contract, being made without authority, was ab initio null, and the rule to be applied is that laid down in Moylan vs. City, 32 La. Ann. 673, and in many other cases, that one who deals with the municipal officers does so at his risk.
“The exception of no cause of action is maintained and the plaintiff’s suit dismissed.”

The appropriate provision of the City Charter, Act 20 of 1882, as amended by Act 142 of 1894, then read:

“The City Council of New Orleans may in its discretion provide for the paving of any street -or portion thereof at the expense of the whole city, and may thereupon force, impose and collect of the front proprietors of lots fronting on said streets a special assessment,” etc.

The decision in the Bruning case rested upon the proposition that since the city had the authority to contract for the paving it would be liable to the contractor whether the front proprietors could be held liable or not, saying:

“The right and authority of the city ‘to provide at its discretion for the paving of any street or portion thereof at the expense of the whole city’ is one thing. The right, power and authority of the City to exact contribution from the front property holders to a certain extent is another thing.”

The City Charter, Act 159 of 1912, under which the ¡paving, for a proportion of the costs which plaintiff sues, was undertaken, contains the following (Sec. 42):.

“Whenever the owner or owners of fifty-two (52) per cent or more of real property abutting on any unpaved or unbanquetted street in the City of New Orleans, or any portion thereof shall by petition, signed by petitioner, or petitioners, and addressed to the Commission Council of said City ask for the paving * * * the said Commission Council shall by ordinance order the. roadway or roadways paving,” etc.

It will be seen that in the Bruning case the City had full authority “in its discretion” to order the paving, whereas under the present city charter it is only when 52 ¡per cent of the abutting owners petition for it that it" can order the paving. It is apparent that the Bruning case is not apposite.

We agree with the judge, a quo, in his conclusion that this case is governed by the Moylan case and are of opinion that the exception of no cause of action was properly maintained.

The judgment appealed from is, for the reasons assigned, affirmed.

JONES, X, having been of counsel for defendant takes no part.


text:
    No. 11,453
    Orleans
    C. C. ELMER TANK BOILER CO., INC., v. ART CLEANER AND DYERS, ETC.
    (May 21, 1928. Opinion and Decree.)
    (June 4, 1928. Rehearing Refused.)
    Thomas Tomeny, of New Orleans, attorney for plaintiff, appellee.
    Geo. Sladovich, of New Orleans, attorney for defendant, appellant.
   CLAIBORNE, J.

The plaintiff sues the defendants for $102, the price of a boiler and stack sold to them. The defendants admit having ordered and received a boiler from the plaintiff, but they aver that there were missing parts to the boiler and that it leaked; that the defendants notified the plaintiff of these defects and that the boiler stood out of order in the yard for several months; that with plaintiff’s consent the defendants employed other workmen who repaired the boiler and put it in perfect condition at an expense of $35; that the plaintiff refused to deduct that amount from their bill; that they have offered to return the boiler to the plaintiff who has refused to accept it. The defendants pray that plaintiff’s demand be rejected and that it be ordered to receive its boiler.

The case was fixed for trial for March 27th and the defendants were notified.

On March 25th the defendants filed a motion in which they alleged that they would be “busy in other legal matters in other courts,” and that they would ask for a continuance. No action appears to have been taken on that motion.

On March 27th the case was taken up for trial. “Present, Thomas Tomeny, attorney for plaintiff; defendant absent and not represented.”

Charles Elmer was heard as a witness and established plaintiff’s case. Judgment was rendered in favor of plaintiff.

The defendants have appealed. They complain that the case was tried in- their absence and in the absence of their counsel.

A party who would obtain a continuance of a case should address the court at the moment of trial and make a proper showing. In the absence of either the opposite party is entitled to a trial of the case.

The appellant has not' pointed out any error in the judgment which is therefore affirmed.


author: JONES, J.

text:
    No. 11,098
    Orleans
    SCHAEFER v. BURAS TRANSPORTATION CO., INC.
    (June 4, 1928. Opinion and Decree.)
    (July 2, 1928. Rehearing Refused.)
    Milton E. Schaefer, of New Orleans, attorney for plaintiff, appellee.
    O. S. Livaudais, of New Orleans, attorney for defendant, appellant.
   JONES, J.

In this suit plaintiff seeks to recover from defendant two hundred and fifty ($250) Dollars, alleged attorney’s fees for professional services rendered the defendant company.

Plaintiff avers as follows:

tie was employed by defendant to attend a meeting of the stockholders at Buras, La., on the 30th day of March, 1926, and “there to do the necessary work and render such services as were necessary and proper,” where, petitioner, as attorney, succeeded in effecting peace between disputing stockholders and permitting the president, John Anticich to continue his office, he drew up dividend checks for each stockholder and sent them; advised the president as to future management and that president approved his services and promised payment therefor.

The defendant answered denying that Anticich was its president, that it had employed plaintiff.

After answer had been filed, plaintiff filed a supplemental and amended petition averring that plaintiff had inadvertently stated that said John Anticich was president of said defendant company, where, as a matter of fact, plaintiff should have stated that he was the vice-president of said company.

Plaintiff relied on the testimony of Anticich, vice-president, and his own testimony.

Anticich testified that neither he nor defendant had ever employed plaintiff to do the work for which this claim is made, that plaintiff was representing Ostoja Pavlovich, the secretary of the defendant company, and on page 2 of his testimony he says:

“Q. Did I do any work for you there?
“A. Not for me; you did work, but you worked for Mr. Ostoja Pavlovich; you were opposing my side; you were opposing me there, Mr. Schaefer. You were working for Mr. Pavlovich, you understand, and he is the one who called the meeting to bring me there to show the accounts, of the company, because he was going on and telling the stockholders that the company was going bankrupt, and he sent me to get my books and my accounts.”

The record shows:

That there were differences between Pavlovich, the secretary, and Anticich, vice-president and manager of the defendant, that Pavlovich, who called the meeting of the stockholders, and employed plaintiff to represent him at said meeting by acting as secretary in his place. In fact the main task performed by plaintiff seems to have been the keeping of the minutes of the stockholders’ meeting on March 30th, a secretarial duty which he performed at the request of that official. Furthermore, the task of making out dividend checks for stockholders is usually imposed on the secretary and not on the attorney, and it would seem to require clerical rather than legal service.

Plaintiff testifies, in part, as follows:

“Some time shortly before the 30th of March, I received a telephone message from Mr. Ostoja Pavlovich, who was secretary-treasurer of the Buras Transportation Company, that I would be asked to come down to a meeting of the stockholders of the Buras Transportation Company. I spoke to Mr. Pavlovich over the telephone, and ascertained when the meeting was to be held, and left the city on or about the 29th, or the day previous to the date fixed for the meeting, in order to be at Buras for the arrival of the launch, Dependent, on which was Captain Anticich, vice-president of the company, and Mr. Ostoja Pavlovich, secretary-treasurer. When the boat arrived, there were a number of the stockholders present, and, shortly after its arrival we went into a meeting, where it developed that there was serious difficulty between Mr. John Anticich, the vice-president, and Mr. Ostoja Pavlovich, the secretary-treasurer. There was no objection whatever by anyone to what happened there; as a matter of fact, I had taken complete charge in order to carry out the work I found awaiting me. I proceeded to write up, in my office, the minutes of the meeting and after I completed them forwarded them to Captain Anticich.”

Luke Evasovich, the president of defendant corporation, testified that he did not employ Mr. Schaefer and that he did not authorize anyone to employ him for the corporation; that Pavlovich had told him about a week before the meeting, “I am going to get Schaefer to act as secretary for the meeting * * * and I said all right.” This statement is confirmed by the fact that plaintiff did act as secretary for Pavlovich.

John Breen, who has his office in same building at Buras with defendant, testified that Anticich had asked him to come to the meeting for him and make an original and carbon of proceedings, that the night before the meeing, plaintiff had said that, he would protect the interests of Captain Anticich there. Consequently witness did not attend meeting as he had promised.

Vogt, á stockholder, testified that plaintiff acted as secretary at the meeting for Pavlovich, the regular secretary, who had called the meeting. Pavlovich, the secretary, did not testify.

The weight of the evidence is clearly against [plaintiff’s contention that he was employed by the Corporation. He, himself, admits he was originally employed by the secretary, who was contesting for control of the corporation. The fact that plaintiff performed the customary duties 'of that official, although he was present at the time, confirms plaintiff’s admission.

All the other witnesses say he was representing the secretary.

The following decisions show the law; on the subject is plain:

“The simple fact that” the services of the attorney “have enured' to the benefit of other, when there is no contract relation, either directly or through some agent or representative, affords no legal foundation for a charge against such other person.” Forman vs. Sewerage & Water Board, 119 La. 49, 43 So. 908, 12 Ann. Cas. 773; Walles vs. Succ. of Brown, 27 La. Ann. 411; Succession of Kernan, 105 La. 592, 30 So. 239; In re McPherson, 129 La. 182, 55 So. 756.
"Before a corporation can be held liable for services of an attorney not employed by it, it must appear that the services were primarily rendered to it, and that the benefits received were not the incidental results of services rendered 'to others.” Titche vs. People’s Savings Trust & Co., 7 Orl. App. 148.
“A claim for professional services against persons who are sui juris, or against the property of such persons, must like a claim for any other service, rest upon contract, either express or implied, made directly with the person so sought to be charged, or with some agent or representative of such person.” In re McPherson, 129 La. 182, 55 So. 756.

For above reasons the judgment is reversed.

It is now ordered, adjudged and decreed that plaintiff’s suit be dismissed at his cost.


text:
    No. 10,342
    Orleans
    O’NEAL v. BOARD OF COMMISSIONERS OF THE PORT OF N. O.
    (July 2, 1928. Opinion and Decree.)

      F. B. Smith, of New Orleans, attorney for plaintiff, appellant.
    A. B. Hammond, of New Orleans, attorney for defendant, appellee.
   JONES, J.

This is a suit brought by David D. O’Neal, under the Workmen’s Compensation Law, for compensation for 264 weeks for injuries sustained on the 6th day of December, 1922, while he was employed by the Board of Commissioners for the Port of New Orleans, at its Public Cotton Warehouse. Compensation was paid him by the defendant and appellee for 36 weeks from December 6, 1922, up to and including August 19, 1923, at which date the plaintiff was ordered to return to work and compensation ceased.

This suit was filed by the plaintiff against the Board on April 16, 1925, at a date more than one year after final payment of compensation by the Board, and in fact nearly two years thereafter.

The defendant filed a plea of prescription of one year on April 27, 1925.

On October 16, 1925, plaintiff filed a supplemental petition, wherein he alleged that he had received compensation up to and including August 19, 1923, that since then compensation had been refused, but he had written Judge Boatner, of the Civil District Court, on July 23, 1924, August 19, 1924, and September 23, 1924, relative to compensation and in keeping with Section 18 of the Workmen’s Compensation Law.

On trial of this cause before Judge Cage the plea of prescription was sustained and the cause dismissed.

In this Court appellant has made no appearance and filed no brief.

Section 31 of Act 20 of 1914 reads as follows:

“Be it further enacted, etc., That in case of personal injury (including death resulting therefrom) all claims for payments shall be forever barred unless within one year after the injury or death the parties shall have agreed upon the payments to be made under this act, or unless within one year after the injury, proceedings have been begun as provided in Sections 17 and 18 of this act. Where, however, such payments have been made in any case, said limitations shall not take effect until the expiration of one year from the time making the last payment.”

Plaintiff wrote to Judge Boatner on July 23, 1924, relative to his claim for compensation and he argued the effect of this letter was to interrupt prescription.

Section 18 of Act 20 of 1914, as amended by Acts 234 and 247 of 1920, provides that in case of a failure of an employee and employer to reach an agreement, then either party or the dependents of the employee may present a verified complaint to the Judge of the court which would have jurisdiction in the civil case, setting forth the names and the facts. In other words, file a petition as is done in the ordinary civil cases in this State.

There is no indication or suggestion that an ordinary letter, which is not even verified, would answer the same purpose, nor is there any suggestion that such an ordinary letter would interrupt prescription.

For above reasons the judgment is affirmed.


text:
    No. 11,175
    Orleans
    RALPH v. CORR
    (July 2, 1928. Opinion and Decree.)
    Carroll & Carroll, and H. G. McCall, of New Orleans, attorneys for plaintiff, appellant.
    Wm. J. Hennessey, W. J. Hopper and Stamps Farrar, of New Orleans, attorneys for defendant, appellee.
   JONES, J.

This is a petitory action in which plaintiff prays to be declared the owner of the following described property, to-wit:

“A certain piece or strip of ground, situated in the Sixth District' of New Orleans, in Square 776, bounded by Milan, General Pershing, South Tonti and South Rocheblave Streets, measuring seven feet, one inch and seven lines front on Milan Street by a depth between equal and parallel lines of one hundred twenty feet; together with the total surplus of the front measurement of the aforesaid square on Milan Street.”

It will be noted that exact location of the strip is not given, but it is said to front on Milan Street somewhere in Square 776. It is alleged that defendant is in possession of this strip without title and that plaintiff is also the owner of lot 14 in same square, measuring thirty feet front on Milan by one .hundred twenty feet in depth, beginning at a distance of fifty-seven feet, seven inches and two lines from corner of Milan and Tonti Streets, all in accordance with plan of S. J. Van Norman, civil engineer, dated June 16, 1911.’

After denying in his answer the material allegations of plaintiff, defendant alleged that he' had purchased four lots in said square, bearing Nos. 10, 11, 15 and 16; lots 15 and 16 having a front on Milan Street of thirty feet by a depth of one hundred twenty feet, all in accordance with same plan of Van Norman of date January 16, 1911; that he had been in continuous open possession of these two lots, 15 and 16, having them under fence and that at no time had he taken possession of any part of lot 14.

The Judge, below decided in favor, of the defendant and plaintiff has appealed.

The facts in this case, which are clearly demonstrated by the record, conclusively show that this is an attempt by the plaintiff to acquire from the former owner of the whole square a surplus of frontage in this square, the existence of which is doubtful.

The facts are these:

The plaintiff, Otto J. J. Ralph, purchased on May 1, 1918, from the People’s Homestead Association the following described property:

“A certain lot or portion. of ground, situated in the Sixth District of New^ Orleans, in Square .776, hounded hy Milan, Berlin, Tonti and Roeheblave Streets, which lot of ground herein conveyed is designated hy the No. 14 on a plan of survey made by S. J. Van Norman, Civil Engineer, dated January 16, 1911, and annexed to an act passed before Robert Legier, Notary Public in this City, on April 29, 1912; the said lot measures thirty feet front on said Milan Street by one hundred and twenty feet in depth, between equal and parallel lines, and it is situated at a distance of fifty-seven feet, seven inches and two lines from the corner of Milan and Tonti Streets.”

The defendant, John L. Corr, purchased from Gilbert J. Vincent, by act before William J. Hennessey, notary public, dated May 6, 1920, the following described property:

“Pour certain lots of ground, with all the improvements thereon, situated in the Sixth District in Square No. 776, hounded hy Roeheblave, Tonti, General Pershing and Milan Streets, designated by the Numbers 10, 11, 15 and 16 on a plan made by S. J. Van Norman, Civil Engineer, dated January 16, 1911, annexed to an act passed before Robert Legier, Notary Public, dated April 29, 1912, and according to which, said lots measure as follows, to-wit: Lots Numbers 10 and 11 adjoin and measure each thirty feet front on Tonti Street, by one hundred and thirty-three feet, nine inches and five lines in depth between parallel lines. Lot No. 10 commences at a distance of one hundred and twenty feet from General Pershing Street. Lot No. 11 commences at a distance of one hundred and twenty feet from Milan Street. Lots 15 and 16 adjoin and measure each thirty feet front on Milan Street hy one hundred and twenty feet in depth between parallel lines. Lot No. 15 commences at a distance of eighty-seven feet, seven inches and two lines from Tonti Street. Lot No. 16 commences at a distance of one hundred and twenty feet from Rocheblave Street.”

The parties to this suit went into actual possession of the lands hereinabove described.

Their common author in title was one Joseph Kuebel who had acquired the entire square bounded by Milan, General Pershing, South Tonti and South Rocheblave Streets by purchase from the heirs of Sterry, on March 26, 1903, by act before John J. Ward, notary public.

Plaintiff and defendant acquired according to the plan of S. J. Van Norman, surveyor, which showed total frontage on Milan Street of two hundred sixty-seven feet, seven inches and two lines. According to this plan of Van Norman, plaintiff’s lot No. 14 commenced at a distance of fifty-seven feet, seven inches and two lines from the corner of Milan and Tonti Streets and measured thirty feet on Milan Street, and defendant’s lot No. 15 commenced at a distance of eighty-seven feet, seven inches and two lines from the corner» of Milan and Tonti Streets, and also measured thirty feet on Milan Street.

On June 23, 1926, by deed under private signature acknowledged before P. H. Stern, notary public, the plaintiff acquired from Kuebel, the former owner of the whole square, a strip measuring seven feet, one inch and seven lines front on Milan Street, which he now alleges in his petition should he located between lots Nos. 14 and 15.

To support this contention plaintiff relies entirely upon a survey of B. J. Oliveira, civil engineer, of July 14, 1926, which shows a frontage of the square on Milan Street of two hundred seventy-four feet nine inches and one line. In the record there are two copies of this survey; one locates the strip in suit here between Lots 14 and 15, the other locates the same strip between Lots 13 and 14. When asked about this important difference, this engineer testified that there was a surplus of seven feet, seven inches and two lines in the frontage on Milan Street and “you can put it where you wish.”

To offset this evidence, defendant has introduced in evidence the ancient plan of the Sixth District in Carrollton of Wm. H. Williams, surveyor, made in 1871 and the plan of Van Norman by which both plaintiff and defendant bought. Each of these plans shows this square as having a frontage on Milan Street of two hundred sixty-seven feet, seven inches and two lines.

When defendant bought Lots 15 and 16 he had a survey of these lots made by C. Uncas Lewis, a well-known engineer. He built his house and fences on these lots as shown on this survey and he testifies he has possessed only the area as therein shown.

The mere fact that one surveyor has found a surplus of seven feet in a square does not justify taking that seven feet from defendant.

We agree with the trial Judge that plaintiff has failed to prove his case.

The judgment is, therefore, affirmed.


text:
    No. 11,467
    Orleans
    VIERON v. KNAPP
    (June 18, 1928. Opinion and Decree.)
    (July 2, 1928. Rehearing Refused.)
    A. Leopold, of New Orleans, attorney for plaintiff, appellee.
    , Farrar and Mahoney, of New Orleans, attorneys for defendant, appellant.
   JONES, J.

Plaintiff sued for one hundred fifty dollars rent ánd obtained a writ of provisional seizure.

Defendant, who had personally filed a general denial, failed to appear at the trial where ample proof of claim was made.

In this Court he has again failed to appear or file brief and plaintiff is clearly entitled to statutory damages for frivolous appeal.

It is ordered, adjudged and decreed that there be judgment in favor of plaintiff, Louis Vieron, and against defendant, Dr. J. Rollo Knapp, for one hundred fifty dollars, with legal interest from judicial demand and all costs and with ten per cent additional upon the amount of the judgment and interest as damages for frivolous appeal.

It is further ordered that the writ of provisional seizure issued herein he maintained, with recognition of lessor’s lien on the property provisionally seized and that said property he sold and plaintiff’s claim he paid hy preference over all other persons.


text:
    No. 10,356
    Orleans
    MOHR v. ANDERSON
    (August 13, 1928. Opinion and Decree.)
    Bond, Curtis and Hall, 'of New Orleans, attorneys for plaintiff, appellee.
    P. H. Stern, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

Plaintiff, an architect, sues upon the following contract.

“FORM OF AGREEMENT.
“BETWEEN ARCHITECT AND OWNER.
“Agreement entered into this 10th day of November, in the year 1923 between Mr. Fred M. Anderson, hereafter termed the client, and O. P. Mohr, hereafter termed the Architect.
“The aforesaid clients requiring certain consultations with regard to preparing plans, specifications and supervision for duplex to be erected on the premises Ibgrville near Harrison Street, said consultations to include suggestions, estimates, and such necessary professional services to convey intelligent advice to said client, for which he agrees to pay the Architect the sum of $130.00.
“Should the client require such plans, specifications, etc., necessary to enter into a contract with a contractor, same will be prepared by this Architect along the lines determined by above consultations for the additional sum of $260.00.
“Should the client require further services of this Architect in drawing up and letting of contract, in supervising the construction of the work embodying such alterations, deductions from or addition to the original project, this Architect shall receive a fee total of 10% of the gross cost of the said work. This total fee shall include the two payments made for consultations, plans, etc., which payments shall be deducted from this total fee in final settlement of same.
“The above agreement is ratified by the signatures of the parties thereto as follows:
(SGD) FRED M.' ANDERSON
Client
(SGD) O. P. MOHR
A Tf*}! 1 font
(SGD) ORA M. ANDERSON
Witness
“N. B. — A minimum retainer of $25.00 will be paid the Architect by the Client in advance of any consultations, etc., said retainer to apply on account of fee for such consultations.”

Defendant filed an exception of no cause of action, based upon a variance between the allegations of the petition and the proof, in that the contract referred to plans for a building to be erected “on Iberville Street near Harrison Street” whereas the plans when introduced in evidence referred to a building to be erected on “Hope near Broad Street.”

The plans, as prepared, were for the erection of a duplex residence and the contract called for the same thing. The location of the building had nothing to do with the plaintiff’s services as an architect. The variance is immaterial. See Baker vs. Bowie Lumber Co., 151 La. 598, 92 So. 129.

On the merits defendant avers that he contemplated a building costing not more than $7500.00 and that this amount had to be obtained from 'a homestead and that when the plans, as drawn by plaintiff, were submitted to contractors for bids the lowest bid received was approximately $10,000.00. He attempts to prove these conditions as forming part of Ms contract with plaintiff. The evidence was clearly inadmissible because constituting an alleged verbal contemporaneous agreement in conflict with the written contract. See discussion in Harvey vs. Mouncon, 3 La. App. 231. However, it does not appear to have been objected to by plaintiff’s counsel. In any event the evidence fails to establish defendant’s contention since it amounts to an affirmation on one side, and a denial on the other.

Plaintiff sues for $355.00, being $130 for preliminary advice plus $260.00 for the plans or $390.00 less cash payments of $35.00 or $355.00.

The trial Judge gave judgment for this amount and we believe properly so.

The judgment appealed from is therefore affirmed.


author: WEBB, J.

text:
    No. 3225
    Second Circuit
    WAGSTER v. NABORS OIL CORP., INC.
    (May 22, 1928. Opinion and Decree.)
    (June 28, 1928. Rehearing Refused.)
    (October 2, 1928. Writs of Certiorari and Review denied by Supreme Court.)
    G. P. Bullis, of Vidalia, attorney for plaintiff, appellant.
    Dale, Dale & Dale, of Vidalia, attorneys for defendant, appellee.
   WEBB, J.

The plaintiff, A. D. Wagster, instituted this action against the defendant, Nabors Oil Corporation, Inc., on July 28, 1927, to obtain a partition of a lot in the town of Ferriday, alleged to have been owned by the parties in indivisión.

The plaintiff alleges he had acquired an undivided one-half interest in the lot from Walter Neely under deed of date April 30, 1926, and that his vendor had acquired from A. R. Griffin and J. O. Griffin under deed of date January 31, 1924, in which the transfer was made to J. W. Neely & Son, Walter Neely being the person designated as the son of J. W. Neely.

Defendant denied that plaintiff had any interest in the property or that his vendor, Walter Neely, had acquired any interest therein under the transfer from A. R. Griffin and J. O. Griffin, alleging that the purchase had been made and the price paid by J. W. Neely, and that Walter Neely was at the time a minor, and, further, that J. W. Neely had sold the property to W. C. Nabors and Carrie Nabors under deed of date August 21, 1924, while Walter Neely was a minor, and that the vendees, W. C. Nabors and Carrie Nabors, had transferred the property to defendant by deed of date March 30, 1927, and prayed that plaintiff’s demands be rejected and that it be decreed the owner of the property.

On trial, judgment was rendered in favor of defendant as prayed for, and plaintiff appeals.

The plaintiff urges1 that the judgment should be reversed in that the Court erred in refusing to maintain his plea of estoppel and in holding that defendant was the owner of the property.

We do not find in the record any plea of estoppel, and the minutes do not indicate that the plea was filed.

However, as we understand, the position of counsel, as to the basis of the estoppel, is, that defendant’s authors in title having accepted a deed signed by J. W. Neely & Son, per J. W. Neely, admitted the ownership of the son; which may be considered with the principal ground on which plaintiff contends that the judgment is erroneous, which we gather to be, that the purchase was, as to an undivided half interest, made by the minor with his own funds and that an inchoate title vested in the minor, subject to his ratification,, which could not be divested by the sale of the property by the parent, and the minor having ratified the purchase after being emancipated, by selling the property to plaintiff, the latter acquired a valid title to the property; or, conversely, that the sale of the property by the parent during the minority of Walter Neely did not vest any title in the vendees of the parent.

The question is involved, and possibly in stating our conception of the position of plaintiff we should say that the statement of plaintiff’s position is an inference from the brief of plaintiff, in which he cites the law, which provides that the contracts of the minor may be rendered valid by ratification (Art. 1785, C. C.) and that one who contracts with a minor cannot plead the nullity of the contract when it has been ratified (Art. 1791, C. C.) and from the statement in the brief, where it is said that Walter Neely, in the purchase of the property from A. R. Griffin and J. O. Griffin, represented himself, purchasing with his own funds, and the argument that the situation is not analogous to that where the parent acting ostensibly as tutor purchases immovable property in the name and with the funds of the minor without being authorized as required by law, or where the parent purchases property in the name of his child and with the parent’s funds.

In Lyons vs. Lawrence, 118 La. 461, 43 So. 51, where the Court considered a situation analogous to that presented here, that is, where a parent had purchased in the name of his child and had sold the property prior to the child’s becoming of age and the minor, on becoming of age, had instituted an action against the transferee of the vendee who had purchased the property from the parent, to revendicate the property, it was said:

“Plaintiff has never been the owner of the property, and the purpose of the verbal testimony was to show that fact. Plaintiff’s father had no authority to buy in her name. The property was owned by some one. Who was it? Not the daughter; for the tutor is without authority to buy immovables for his minor child. Succession of Mitchel, 33 La. Ann. 354; Civil Code, art. 353.”

Also Smith’s Heirs vs. Johnston, 110 La. 564, 34 So. 677; Phelps vs. Mulhaupt, 146 La. 1079, 84 So. 362.

“It is true that the cited article refers to wards and their tutors. Conceding for the moment that the father acted for his daughter personally, and not as tutor, the father could not buy property in her name ‘payable one half cash and the balance on time.’ He could not create a debt binding upon her. No one can bind any one but himself. It could not in that way become her property. A father may buy for his child for cash. But even when he buys for cash', if he chooses to sell it before the minor becomes of age, he can do so, and the good intention of the father toward his child is at an end in that particular transaction.”

The plaintiff, as stated, contends that the situation presented here is different from that presented in the case cited, in that the purchase was made ih the names of the father and the minor child for cash, and that the minor represented himself, paying his portion of the price with his own funds.

Conceding that the title was taken in the names of both the father and the child, in view of the admission that J. W. Neely, through whom defendant claims title, and Walter Neely, through whom plaintiff claims title, were father and son and were the persons referred to as the vendees in the transfer from A. R. Griffin and J. O. Griffin, and that the deed shows it was for a cash consideration, there was not any evidence showing which of the vendees had negotiated the sale, or with whose funds the price had been paid, and the deed was not signed by either of the vendees, and if it be accepted as true that Walter Neely had represented himself or been present at the sale and paid the portion of the price with his own funds, it would have to be based upon a presumption.

However, if the fact that the minor may have been present with his father and took part in the negotiations, and paid over to the vendors the portion of the price, would differentiate the case from that where the father conducted the negotiations, and paid the price with his own funds, we think the burden of proof was on the plaintiff to establish the facts which' distinguish the case from those where the parent, acting ostensibly as tutor, has purchased immovable property in the name of the minor with the latter’s funds without legal authority, or where the purchase was made in the name of a minor by the parent with the latter’s funds.

The presumption which plaintiff invokes to establish the facts differentiating the case is not reasonable, considering that the minor is incapacitated to contract, and that one would not knowingly deal with him; but conceding that the facts should be assumed as contended for by the plaintiff, we do not see that the qpnclusion would be different, as under a like presumption it must be presumed that the father was also present at the time of the sale, and the. situation could not be more than that the father acquiesced in or consented to his minor son making the purchase, where the legal situation would be thp same as if the purchase had been made by the father for his son, and under those circumstances the legal situation would be the same as where the parent, acting ostensibly as tutor, did the same thing without legal authority; in which cases the jurisprudence is well settled that the title does not vest in the minor. (Succession of Mitchel, 33 La. Ann. 355; Smith’s Heirs vs. Johnson, 110 La. 564, 34 So. 677; Phelps vs. Mulhaupt, 146 La. 1079, 84 So. 362.)

While it is ordinarily true that one who deals with a minor cannot ignore the contract by reason of the minor’s incapacity, the parent is, we think, in a different situation, and although he may be the tutor of the minor and ostensibly acting as such when he purchases immovable property for his ward with funds of the latter without being authorized, one must look to the parental power to determine the relations of the minor and of the parent to the property, which is simply that the parent is the o^ner of the property, which he may sell, if he desires, without the necessity of taking any judicial proceedings.

Thus, conceding the facts to have been as urged by plaintiff, we are of the opinion that the parent took the course as indicated, and that the purchaser from him acquired a good title.

Relative to the contention that, defendant’s immediate authors in title, had accepted a title from the father showing that the child was- interested in the property and was estopped to deny or had admitted the ownership of the child, the question as to the estoppel was considered in Lyons vs. Lawrence, supra, where it was said;

“Third persons are not estopped by the recitals in a deed to which they are not parties.”

And we do not think by offering the instrument in evidence it could be said that defendant admitted title in the child.

We find that the judgment appealed from is correct and it is affirmed.


text:
    No. 10,988
    Orleans
    MAX BARNETT FURNITURE CO., INC. v. HOCK
    (July 2, 1928. Opinion and Decree.)
    Frank McLaughlin, 'of New Orleans, attorney for plaintiff, appellant.
    John E. Fleury, of.New Orleans, attorney for defendant, appellee.
   WESTERFIELD, J.

Plaintiff sold, and defendant bought, some household furniture amounting to $1150.00, for which defendant executed a number of notes maturing from time to time. He paid all of his notes except two, aggregating $100.00. He is sued on these two notes. Defendant pleaded failure of consideration. Plaintiff, beyond offering the notes in evidence, introduced no testimony. The case is here on an agreed statement of fact, to the following effect:

Some four months after defendant bought the furniture the veneer cracked, loosened and warped. This condition was brought to the attention of plaintiff’s manager, a Mr. Wells, who assured defendant that the furniture would be properly repaired and upon that assurance defendant continued to pay his notes. After paying ten of the twelve notes, and, no repairs having been made to the furniture, defendant’s wife and sister-in-law went to plaintiff’s store and renewed their complaint whereupon Mr. Wells told them they need not pay the remaining two notes (the ones sued on) until the repairs were made. The repairs were never made though the furniture was sold under a guarantee that it was first-class in every respect. Plaintiff frankly admits his obligation to repair the furniture or the right of defendant to deduct the cost of having it done, but says there is no-proof of the cost of repairs in the record.

The defendant testified that it' would cost $200.00 to fix the furniture, but plaintiff says he is not shown to be an expert and that his evidence alone is not enough. We reply that whether defendant be an expert or otherwise, there is no proof to the contrary and no attempt to rebut it on plaintiff’s part. The trial Judge discounted the evidence so as to offset the plaintiff’s demand, by reducing it fifty per cent. We see no reason to disturb his judgment De Minimus non curat lex.

The judgment appealed from is affirmed.


author: MOUTON, J. LECHE, J., ELLIOTT, J.,

text:
    No. 187
    First Circuit
    SMITH ET AL. v. CITY OF BATON ROUGE ET AL.
    (December 6, 1927. Opinion and Decree.)
    (January 5, 1928. Rehearing Refused.)
    (May 7, 1928. Reversed by Supreme Court on Writ of Certiorari and Review.)
    See also, 166 La. 472, 117 So. 559.
    Charles A. Holcombe and C. C. Bird, of Baton Rouge, attorneys for plaintiffs, appellees, Smith.
    Taylor, Porter, Loret & Brooks, of Baton Rouge, attorneys for defendant, appellant, Baton Rouge Water Water Works Co.
    H. Payne Breazeale, of Baton Rouge, attorney for defendant, appellee, City of Baton Rouge.
    ELLIOTT, J., dissents for written reasons.
    LECHE, J., concurs for written reasons.
   MOUTON, J.

The Baton Rouge Water Works Company as assignee, is under contract to supply the City of Baton Rouge, the other defendant, with water; and, for that purpose, is authorized under the contract to take up mains and pipes in the streets of the city. A child of plaintiffs, Mr. and Mrs. Smith, two years and six months old at the time, was drowned in a cut or excavation which had been made by the Baton Rouge Water Works Company in Julia Street of said city for the purpose of repairing a leaking valve in the main of the company’s • water pipe.

This excavation was approximately four feet, five inches in width, eight feet in length and had an average depth of about three feet. The clay and gravel taken out of the excavation was piled around it at the height of approximately two feet and which w“as evidently intended as a barricade or protection. The excavation was dug out on the 18th of May, 1926, and was closed on June 3, 1926, by boards thrown over it. The child was drowned on May 31, 1926, between the hours of five-thirty and six in the afternoon.

The City and water works company are sued by the parents of the child in damages for the gross amount of $42,000. Judgment was rendered against the water works company for $5,000, and the suit was dismissed as to the City against which the claim is not pressed in this Court. The Baton Rouge Water Works Company-appeals.

The grounds of defense of the Baton Rouge Water Works are that it has not been guilty of negligence in connection with the excavation; » if negligent, the plaintiffs, the child’s parents, were guilty of negligence which contributed to the child’s death. It also pleads, if negligent, it was not so towards the child, and, therefore, it was not the cause of his death.

It may be appropriate to state at the outset that this child of two years and six months when it lost its life, was then incapable of contributory negligence. State vs. Waggner, 42 La. Ann. 63, 8 So. 209; Palermo vs. Orleans Ice Mfg. Co., 130 La. Ann. 833, 58 So. 589, 140 L. R. A. (N. S.) 671.

The house of the plaintiffs is north of Julia Street; the excavation was a few feet from the curbing on the south side of that street, and was about forty or forty-five feet from the home of the plaintiffs.

The proof is that in the afternoon of this deplorable accident, Mrs. Smith, after bathing and dressing this little child, took him to the front porch of her-home where she left for a few minutes while she went to the kitchen to put some grits on the stove. The child was given a nickel and was left on the porch to wait for the ice cream vendor to buy an ice cream cone from the ice cream itinerant vendor, as he had done before. The father, Mr. Smith, had left for the meat market a short distance away to make a purchase before Mrs. Smith had placed the child on the front gallery. Leaving the child on the porch was certainly not negligence on the part of Mrs. Smith, as a parent is not negligent in permitting his child four years of age to be on the sidewalk adjoining his residence. St. Charles Municipal Drainage Dist. vs. Cousin, 130 La. Ann. 333, 57 So. 992; Westerfield vs. Lewis Bros., 43 La. Ann. 63, 9 So. 52.

Defendant company contends that Mrs. Smith was absent from the child about ten or twenty minutes, the plaintiffs contend that she was not away from him over five or six minutes.

In the case of Fox vs. Texas Oakland Consolidated Street Railway Company, 118 Cal. 55, 50 Pacific Reporter, p. 25, 62 Am. St. Rep. 216, a child four and one-half years of age was killed on Franklin Street by a car of defendant railway company. The father was away from home at the time, one of the daughters who lived with her parents was attending school, and the other was engaged in washing clothes with her mother on the back porch of the house. The child was obedient, as was the case here, and had been admonished not to go on Franklin, the forbidden street, and, had so been advised about 16 or 20 minutes before the accident. The Court held that the conduct of the mother did not constitute negligence per se. Here, the child had been placed on the gallery where it usually waited for the ice cream man to buy the cream cones. The father was away as in the case above cited, and so were two daughters, and a brother. It was shown that the child never left home alone,; and, that although the parents knew of the existence of the excavation they had never given it a thought or considered it as a danger spot to children. Even if Mrs. Smith remained twenty minutes before returning to the porch where she had left her child, who, the evidence shows, was drowned during her absence, she was not guilty of negligence, nor was her husband because of his being away on an errand at the meat market. See also Sundmaker vs. Y. & M. V. R. R. Co., 106 La. 111, 30 So. 285, where the principle therein recognized is in line with the ruling of the Court in the California case above cited. Counsel for plaintiffs say that the excavation where the water was at an average depth of three feet was dangerous and treacherous to children, who, in pursuit of their childish instincts would be naturally attracted to it. They assimilate this case to the one reported in Westerfield vs. Lewis Bros., 43 La. Ann. 63, 9 So. 52. In that case, it appears, that the defendants were leveling Coliseum Stret in New Orleans with heavy iron rollers to which two mules were attached; that one was left unattached, and the mules not hitched so as to ¡prevent them from moving off with the roller. Richard, a boy of the plaintiffs, aged five years seven months, escaped from his home, got on the rollers,- started the mules, was thrown and killed. It is apparent that the leaving of such heavy iron rollers attached to unhitched mules was a dangerous machine that would attract the instinctive curiosity of children with the probability of fatal results, which would suggest themselves to any person of ordinary prudence. This is not exactly the situation here. The fact is that the plaintiffs saw when the excavation was being dug out, saw it after it was made, and never thought for an instant that any danger lurked there for their child or for anyone else; also, that in the vicinity no one entertained any apprehension of danger from this pool of water. No complaint, the record shows, was ever made by plaintiffs, their neighbors or anyone else, about this excavation, to the water works company or the City of Baton Rouge, during the period it was there from May 18th to May 31st, when the child ' was drowned. It is obvious from the foregoing facts that plaintiffs and the people in their vicinity had not the least apprehension that a misfortune of the kind complained of would be likely. to occur. It is but fair to say that defendant company must be considered as having likewise been equally unapprehensive. As a matter of fact the proof is that defendant had been making excavations of that character in the streets of the city for many years, and which had always been barricaded or protected in the way the one in question was. It also appears that during that long period of time, prior to the accident in question, not a single complaint was made to the company or to the city (which followed the same method of barricading) by any citizen of the city in reference to these excavations. It is also shown that not a single accident occurred to any child of the city or to anyone else from such excavations up to the time of the one under discussion. It was shown that when the dirt from the excavation is removed to some other place, and where the size of the hole makes it necessary, a plank is usually run, or a horse and rail. It is explained by Stewart, a contractor of long experience, that when a pool is barricaded in that fashion, there is nothing to keep a child or anyone else from getting into an excavation. The proof shows that this excavation when made was absolutely necessary to stop the leak in the main, to maintain the water service to the city, and sufficient pressure of water in the event of fire. It therefore appears clearly from the record that -the excavation was essential, and had been made and barricaded as had been customary with defendant company and the city for a long period of time, that is, during seventeen years; and, in addition thereto, it was proved that a like method was followed in similar work by other public utility corporations.

In the case of Loftus vs. Union Ferry Co., 84 N. Y. 455, 38 Am. Rep. 533, the parents sued defendant for the death of their child, aged six, on account of the insuffieiency of a guard on the side of a ferry boat through which the child fell into the water and was drowned. The boat had been in use for a (period of about six years prior to the accident, and was similar in construction to the other ferries of defendant. It was possible in that case for defendant to have constructed the guard on that boat, that such an accident could not have happened and which could have been done without much expense and trouble. This is precisely the argument advanced here by plaintiff as to the absolute security against accident which could have been provided for in the construction of the excavation, and at a trivial expense. If, says the Court in that case, “the defendant ought to have foreseen that such an accident might happen, or if such an accident could reasonably have been anticipated, the omission to provide against it would be actionable negligence. But the facts rebut any inference of negligence on this ground. The company had the experience of years, certifying to the sufficiency of the guards.” Likewise, it can be said here, that the company had the experience of years, certifying to the sufficiency of the barricade. The Court in the case cited, then proceeds to say: “that it was possible for a child or even a man to get through the opening was apparent enough. But that this was likely to occur was negatived by the fact that multitudes of persons had passed over the bridge without the occurrence of such a casualty.” Here, we cannot refer to multitudes or millions because the character of the case could not present such a situation, but the proof shows that from one, two or three excavations were dug weekly in various parts of said city, and for some seventeen years prior thereto, though as many a week during that period of time does not appear. If such pools were attractive to children, or were dangerous or treacherous as is contended for by counsel for plaintiffs, it is indeed passing strange that not a single casualty of the character at issue ever occurred; and, still more singular is it, that not a single complaint was ever lodged with either the water works company or the City in reference to ' the danger of such excavations. Finally, the Court says the following, and which embodies the crux of the ruling, to-wit:

“We think the exemption of the defendant in this case rests upon the fact which, we think, clearly appears as an inference from the other facts, that the company had no reason to apprehend an accident like this, and that the arrangements made were such as experience had up to that time shown to be safe and suitable, and sufficient to meet the requirements of its duty. This doctrine applies with peculiar force to the facts of this case which show that the arrangements made by defendant company had proved sufficient to meet the requirements of its duty.”

The principle above outlined was in a nebulous way recognized by our Court in Lopez vs. Sahuque, 114 La. 1004, 38 So. 810, where it said that the existence of a fact “without injury for a long time, with factors constantly present calculated to produce injury if really dangerous from those factors, would go far to do away with the anticipation of resulting injury.” It is but fair to say here that the existence of these excavations in the City of Baton Rouge during a period of over fifteen years without any injury having resulted to anyone, and without even a single complaint or protest as to their dangerous or treacherous character being urged should go far “in doing away with the anticipation of resulting injury” on the part of defendant company. N. O. & N. E. R. Co. vs. McEwen & Murray, Ltd., 49 La. 1184, 22 So. 675, 38 L. R. A. 134, we find a more formal and positive expression of the principle under discussion in the syllabus, which is as follows:

“A mere failure to guard against a certain result is not actionable negligence unless, under all the circumstances, it might have been reasonably foreseen by a man of ordinary intelligence.”

This doctrine resting on facts, constantly present, calculated to produce injury, but without causing any, should go far as was said in Lopez vs. Sahuque, 114 La. 1004, 38 So. 810, above cited, to “do away with the anticipation of resulting injury.” It must also be observed in connection with the above principle, as was said in that decision that:

“Responsibility for injuries to children is broader when the result is from acts of commission than when they are the result of acts of omission, leading up to unexpected, unanticipated consequences. In the light reflected from the facts of this case which we have hereinabove stated in substance; if defendant company is really chargeable with the acts of omission of which plaintiffs’ counsel complain, they certainly led up to and resulted in unexpected, unanticipated consequences.”

Counsel for plaintiffs refer to the case of Palermo vs. Orleans Ice Mfg. Co., 130 La. 833, 58 So. 589, 40 L. R. A. (N. S.) 671, in which it appeared that a child of four years had fallen in a ditch containing hot water which was flowing from the plant of the defendant in that case. It was clearly shown in the case that the defendant was entirely aware of the danger that might befall children from the hot water which was running in that ditch, a's it had placed a watchman to warn them of the danger and who deserted his post. Unquestionably, the casualty which resulted to the child had been anticipated and foreseen.- There is no evidence of that character in this case. If defendant company herein, had placed a guard around the excavation in question to warn children of any danger, it is obvious that defendant would be chargeable with having foreseen and anticipated what happened, and the principle we are invoking could not possibly have any application. Admitting as true what plaintiffs’ counsel are contending for, that the proof shows children were attracted by the water in the excavation, still, it is undeniable from the facts of the case, that from the long period during which these excavations had been made without the occurrence of a single mishap, or complaint of any character, that in justice to defendant, it must be said, as was aptly said in the case of Loftus vs. Union Ferry, 84 N. Y. 465, 25 Cal. Am. Rep. 533, 38 Am. Rep. 533, as follows:

“We think that the exemption of defendant in this case rests upon the fact which we think clearly appears as an inference from the other facts, that the company had no reason to apprehend an accident like this, and that the arrangements made were such as experience had up to that time shown to be safe and suitable, and sufficient to meet the requirements of its duty.”

The proof shows that boards were placed over the excavation immediately after the accident. Counsel for plaintiffs refer to this fact as proof that defendant had been negligent in only raising a barricade of dirt around the pool. W. P. Connell, president of the company, testified that prior to the accident it was never the intention of the company to protect the hole against children going into it. It was thought, he said, to protect it against traffic accidents. When this tragedy occurred, he testified he wanted to make it impossible for accidents of that kind to be repeated. In Biegel vs. City of N. O., 143 La. 1077, 79 So. 867, the Court said:

“Municipal corporations cannot foresee or guard against all dangers incident to the rashness of children, and are not the insurers of the lives or safety of children.”

The defendant company was not required to so guard the pool in question as to make all accidents impossible. If boards were placed over such excavations, it is doubtful, as appears from the evidence, if a danger could not have been created as to traffic by autos and other vehicles over the streets of Baton Rouge, thus showing the difficulty of making arrangements which would protect all the individuals of the city.

In conclusion it may be proper to remark the case must be determined on the conditions which existed at the time of the accident in the light of the facts, circumstances and experience which had influenced the conduct of the defendant when the excavation was made. It is under such a test that the issue of negligence or no negligence must be solved. The criterion is not as to the possibilities of danger which were disclosed by the accident but which could not have been reasonably foreseen, expected or anticipated wherein lies the crux of the issue here presented. For the foregoing reasons we are constrained to reserve the judgment, which is therefore avoided and reversed, and the demand of the plaintiffs is hereby rejected at their cost.

LECHE, J.,

concurring. The opinion prepared by my colleague, Judge Mouton, apears to me to be sound, logical and to contain a lucid exposition of the law applicable to this case, In Biegel vs. City of N. O., 143 La. 1080, 79 So. 867, cited in the opinion, Justice O’Niell said:

“The duty of municipal corporations to keep the streets in a condition of safety to the public has been extended very far in some jurisdictions; in fact to the limit, where we think more consideration must be given to that regard which each individual should have for his own safety. It is true, an infant under four years of age is not to be blamed for negligence; but as a corollary, municipal governments cannot foresee and guard against all the dangers incident to the rashness of children. Municipalities are not insurers of the lives or safety of children. The municipal authorities have the right to presume that, for every child under the age of discretion, there is some one of mature judgment on whom rests the special duty and responsibility for the safety of the child.”

Although the defendant in this case is not a municipality, it is a public service corporation, and its functions are municipal in their nature, are performed under municipal authority and its rights and responsibilities are no less and no greater than if the work which it has assumed to perform was done by the City of Baton Rouge itself. The law as announced in the Biegel case, fits the present one like a glove, made according to measure.

I therefore fully concur.

ELLIOTT, J.,

dissenting. The facts in this case are not disputed. The defendant water works company excavated a hole in Julia Street near St. Joseph Street in the City of Baton Rouge, about eight feet long, four and one-half feet wide and about three feet deep, and left it open and uncovered. The dirt dug out of the hole was piled around it, forming a barricade from sixteen inches to two feet in height and wooden benches called horses placed on each side up and down the street, from which red lanterns were hung at night. The hole was full of water. It was filled presumably very soon after it was dug by the water escaping and running from the main in which a leak had developed, and remained full the entire time it was . there. A stream of water ran from the hole into the nearby gutter, through an opening for that purpose left in the barrier. This drain prevented the water in the hole from rising to the top of the barricade, and kept it down even with the surface of the street. This hole was left in this condition for twelve or thirteen days.

Plaintiffs’ son, two and one half years old, got into it and was drowned.

The children in the neighborhood had discovered it some days previous to the accident, as some of them were seen playing there, but plaintiffs’ child was not permitted to play on the streets, not go on them unattended, and it was never seen at the hole until it was found in it, shortly after it had been drowned.

It is conceded in the opinion that a child two and one-half years old cannot be guilty of negligence, and that plaintiffs, its parents, were not guilty of contributing to its death by leaving him alone for ten or twenty-five minutes on the porch of their home, with a nickel in his hand with which to pay for an ice cream cone, which a vendor was in the habit of selling to children as he passed along the street. This holding that such an act was not negligence on the part of the parents is supported by Westerfield vs. Lewis Bros., 43 La. Ann. 63, 9 So. 52; Palermo vs. Orleans Ice Mfg. Co., 130 La. Ann. 833, 58 So. 589, 40 L. R. A. (N. S.) 671; Sundmaker vs. Y. & M. V. R. Co., 106 La. 111, 30 So. 285.

But the Court takes the position that the judgment appealed from is erroneous because the parents saw defendant’s employees digging the hole and were not apprehensive of danger from what they saw being done; but mainly, because the defendant water works company had, for t.he past seventeen years or so, been excavating holes in the streets and leaving them open and uncovered with a dirt barricade and a horse on each side from which red lanterns were hung at night, as the only protection, and during which time it was said that no accident had ever happened before. The Court concludes that the same thing had been done so long without accident, that therefore the drowning of plaintiffs’ son was not an occurrence which should be attributed to defendant’s negligence in leaving the hole uncovered, and in not foreseeing an accident of the kind to children and providing against it. That defendant was therefore not liable in damages on account of the occurrence in question.

I contend with respect, that the conclusion of the Court on that subject, is erroneous as a matter of law.

The barricade of dirt and the two horses amounted to nothing as a protection for children. It was easy for them to climb over the dirt barricade. The cases of N. O. & N. E. R. Co. vs. McEwen & Murray, Ltd., 49 La. Ann. 1184, 22 So. 675, 38 L. R. A. 134; Lopez vs. Sahuque, 114 La. 1004, 38 So. 810, and Loftus vs. Union Ferry Co., 84 N. Y. 455, 25 Cal. 533, 38 Am. Rep. 533, cited in support of the conclusion, were not based on similar situations. A hole of the kind involved in the present case, is, in my opinion a nuisance, and as to children two and one-half years old, dangerous per se. And the danger increased each day of the twelve or thirteen it was left open, in proportion as its presence became known to the children in the neighborhood. This hole could have easily been covered over and made safe. It was done the next day after plaintiffs’ son was drowned. It should not have been left unguarded and uncovered a single day.

I disagree with the Court that the defendant did not foresee the danger. The possibility of children too young to appreciate the danger of drowning, and too weak to extricate themselves in case they fell into it, was necessarily foreseen. No prudent or thinking ■ man could help being aware of it. Biegel vs. City of N. O., 143 La. 1078, 79 So. 867, cited by defendant, rests on a different principle. In that case a child fell into an open gutter which ran under a culvert. A heavy rain had fallen and filled the gutter with a strong current of water, which carried the child under the culvert, where it was drowned before it could be rescued. The theory of the plaintiff in that case, was that the city should have foreseen and provided against an occurrence of the kind by placing a grate at the end of the culvert. The Court held in effect that the occurrence was one which the city. could not be expected to have foreseen. In Lopez vs. Sahuque, 114 La. 1006, 38 So. 810, a mother saw her child playing in a cart with other children. She did not call her child to come away, because she did not see any danger there. A city ordinance existed against carts being left in the streets. The Court held that the cart was not dangerous per se. That it only became dangerous, because the other children had tilted up the body in their play, which, falling, struck plaintiff’s child on the head. That the circumstance of the danger was remote from the accident, and was not foreseen by the owner of the cart.

In this case the defendant water works company is charged with knowing that this hole which it excavated in the street and left open and uncovered was full of water, deep enough to ■ drown children, was in fact attractive to children and dangerous per se. The stream flowing out of it into the gutter was an additional attraction.

Dangerous holes excavated in streets and sidewalks, when left open and uncovered have always been classed as nuisances, dangerous per se.

Westerfield vs. Lewis Bros., 43 La. Ann. 63-64, 9 So. 52, is a case in which a machine, capable of doing great harm to children if set in motion, was left on a street near a residence unguarded. A boy five years old slipped out of the house and got on it, and got it in motion, and was thereby killed. The legal questions involved in the case were closely considered. Two of the Justices dissented from the majority finding on the facts, but not from the legal principles announced. One of the illustrations used in stating the principle applicable to dangerous things attractive to children, left unguarded, quoted from Wharton on Negligence, was as follows, p. 71 of 43 La. Ann. (9 So. 56):

“Supposing however, a well is left open or machinery exposed and • a child is thereby damaged. Again we say, notwithstanding the high authority to the contrary, that the negligence of the child’s parents has nothing to do with the issue. That issue is, was it negligence to leave the well or machinery exposed? And this issue must be determined by the. test whether such exposure is consistent with the mode of action of a prudent and skillful business man.”

In Cline vs. City R. Co., 43 La. Ann. 327, 9 So. 122, 26 Am. St. Rep. 187, the cause of action was a death resulting from a hole in a street, left uncovered and unguarded. The Court, referring to the liability of the defendant, said page, 334, 43 La. Ann. (9. So. 125):

“But even if the driver had seen the hole and had not avoided it, nothing shows that he knew of its dangerous character.”

In this case, plaintiffs did not examine the hole. They did not know it was full of water. It was to them an unknown danger to which their child was exposed.

Buechner vs. City, 112 La. 599, 36 So. 603, 66 L. R. A. 334, 104 Am. St. Rep. 455, was a damage suit on account of the drowning of a boy between eight and nine years old. The boy fell into a canal through a hole in a bridge. The Court referring to the cause of action, said:

“The defendant is charged with negligence in not keeping the bridge in a safe condition and especially in permitting a dangerous hole in one of the passageways to remain open so long.” And approvingly quoted from Beach on Negligence, as follows: “Even adults have the right to presume that a public passage-way is safe, and are not negligent for not looking for unlawful obstructions.”

In Rock vs. American Construction Co., 120 La. 831, 45 So. 741, 14 L. R. A. (N. S.) 653, the Court said:

“As a municipal corporation would itself be liable to a citizen for injury sustained by reason of its reducing a sidewalk to a dangerous condition, it is evident that the privilege granted by such a corporation to a public untility company, of making excavations for a sidewalk, cannot authorize such company to leave the excavations. so made unguarded, and to dispense with all precautions, whereby those who are rightfully 'using the sidewalk may be warned of their existence. Nor can the company in such case escape liability on the plea that an excavation made under the authority conferred on it and for its account and benefit, has been made by an independent contractor.”

Gueble vs. Town of Lafayette, 121 La. 909, 46 So. 917, is to the same effect. In Allen vs. Town of Minden, 127 La. 403, 53 So. 666, the syllabus reads in part:

“It is negligence for a town making repairs to leave a pit in a public street with no railing around it, nor any lights or danger signs to warn people using the street. The town in making repairs to its streets, must use due care not to endanger the life, limb or property of anyone. * * *
“A municipality making excavations in a public street is held to the same degree of care to prevent injury to any individual and the public has a right to believe that a municipality will not expose them to danger and that it will do everything to make their passage along public streets reasonably safe.”

In Palermo vs. New Orleans Ice Mfg. Co., 130 La. 833, 58 So. 589, cited in the opinion herein, the syllabus reads in part:

“Where a child four years old fell into a street gutter containing hot water, which had flowed from defendant’s plant, and was painfully burned, the defendant will be held liable in damages where the evidence shows that the water and steam attracted the curiosity of the children in the vicinity, and that the defendant’s watchman at the gutter had left his post before the accident happened to the child.”

The opinion in the present case, commenting on the case just cited, says that the defendant was aware of the danger, and had placed a watchman there to guard it, but that he had deserted his post. That in the present case, there is no evidence of that character. That the long period of time during which these excavations had been made and barricaded without the occurrence of a single mishap, indicates that the arrangements made by defendant in this instance, was sufficient, etc. The Court mistakingly overlooks the fact that the evidence in this case does not show that the excavations made by defendant in the past were left full of water deep enough to drown children, and from which a stream was flowing. The witnesses did not say whether they were full of water or not but if such had been the case and children lived in the neighborhood, instances would have occurred almost sure, just like that which happened to plaintiffs’ child. In Burk vs. Werlein, 143 La. 788, 79 So. 405, the first clause of the syllabus reads:

“An excavation in a public sidewalk is intrinsically dangerous and is a nuisance, and one who causes it to be made, owes an absolute duty to protect the public from injury that may result therefrom, and cannot escape liability for such injury by showing that the excavation was' made by a person, who, though engaged by him to do so, acted as an independent contractor.”

So, the fact that the defendant water works company has been excavating holes in the streets of the City of Baton Rouge for the period of time claimed, and barricading them in the way stated, and leaving them uncovered for as long as the one in the present case was left open, without a single accident occurring, is not ground, in my opinion, for acquitting the defendant of negligence in this case, because the evidence does not show that the holes in the past were left full of water deep enough to drown children, and that a stream of water was running out of the hole into the gutter, some four or five feet away. And as the defendant excavated and left this hole in the condition' stated, it is legally charged with knowing what is known to everybody, that it would attract children, and that as to those too young to appreciate the danger of drowning and too weak to extricate themselves should they fall into it, it was a nuisance and dangerous per se. And to my mind defendant’s act was one of inexcusable negligence, and having caused plaintiffs damages in the way alleged, it is responsible to them accordingly.

The judgment appealed from, is, in my opinion, correct and should be affirmed.