author: REYNOLDS, J.

text:
    No. 3014
    Second Circuit
    FISHER v. TRIMBLE ET AL.
    (November 18, 1929. Opinion and Decree.)
    T. H. McGregor, of Rayville, attorney for plaintiff, appellant.
    Barksdale, Bullock, Warren, Clark & Van Hook, of Shreveport, attorneys for defendants, appellees.
   REYNOLDS, J.

This was a suit to enjoin the sale of property under an order of seizure and sale issued in suit No. 41,087 on the docket of the district court of Cad-do parish and entitled Mrs. Martha H. Trimble versus Mrs. E. J. Chavis.

Plaintiff alleged that he was the owner and holder of a promissory note for $1977.48 signed by Mrs. E. J. Chavis, dated October 26, 1925, drawn payable to his order one year after its date, bearing interest at the rate of 8 per cent per annum from its date until paid and stipulating payment of 10 per cent attorney’s fees, and paraphed “Ne Varietur’’ to identify it with an act of mortgage of even date therewith securing its payment recorded in book 132, page 820 of the mortgage records of said parish.

That the property mortgaged is described as thirty-five feet of lot 21 lying next to lot 22 and five feet of lot 22 lying next to lot 21 of block 2 of ten acre lot 19 of the city of Shreveport, Louisiana.

He further alleged that in suit No. 41,087 on the docket of said court entitled Mrs. Martha H. Trimble versus Mrs. E. J. Chavis, Mrs. Trimble had obtained an order for the seizure and sale of said property on a mortgage thereof purporting to have been signed by Mrs. Chavis before a notary public and two witnesses on May 21, 1923, and recorded in book 100 at page 389 of said mortgage records, and granted to secure the payment of a promissory note for the sum of $1250, dated May 21, 1923, purporting to be signed and endorsed by Mrs. Chavis, drawn payable to the maker’s order one year after its date, bearing interest at the rate of eight per cent per annum from its date until paid, and stipulating payment of 10 per cent attorney’s fees, and paraphed “Ne Varietur” to identify it with the mortgage.

He further álleged that the note and mortgage were forgeries and that the mortgage had been cancelled on the record of mortgages.

He prayed that Mrs. Trimble be perpetually enjoined from proceeding further with the execution of the order of seizure and, sale.

A temporary restraining order was granted and an order to show cause why it should not be made permanent.

Defendant denied that the note or mortgage was a forgery and alleged that the signatures to both were genuine. She also denied that the mortgage had been can-celled on the records. She admitted that it had been marked cancelled and alleged that the so marking it was erroneous and by endorsement- on the margin of the record by the Recorder of Mortgages the cancellation itself had been cancelled as erroneous.

The rule to show cause was tried and the temporary restraining order was dissolved and the rule recalled.

Thereupon plaintiff applied to the Supreme Court for a writ of certiorari to review the ruling of the district court and the writ was granted. On hearing of the case on certiorari the Supreme Court recalled the writ and affirmed the judgment of the district court (Fisher vs. Trimble, 161 La. 343, 108 So. 666), the Supreme Court saying, among other things:

“After hearing the evidence adduced, the trial judge concluded that plaintiff had not only failed to show that the note and mortgage held by the Trimbles were forgeries, but that the preponderance of the evidence showed that they were not. The burden rested on plaintiff to show that the note and mortgage attacked by him were in fact forged. We have carefully examined the evidence and our examination fails to disclose that the trial judge erred in ruling on the issue of forgery.”

After this decision by the Supreme Court the case went to trial in the district court on the merits before a jury and the jury returned a verdict in favor of the defendant. Judgment was entered on the verdict in favor of the defendant and the plaintiff appealed.

Before plaintiff’s suit was commenced, Mrs. E. J. Chavis also brought a suit against Mrs. Martha- H. Trimble to enjoin the execution of the same writ of seizure and sale. That suit was No. 41,969 on the docket of the district court of Caddo parish and entitled Mrs. E. J. Chavis versus Mrs. Martha H. Trimble et al. She obtained a temporary restraining order and an order on Mrs. Trimble to show cause why it should not be made permanent. On hearing the order to show cause was recalled and the temporary restraining order dissolved. Thereafter the case was tried on the merits and judgment rendered rejecting Mrs. Chavis’ demands. From that judgment Mrs. Chavis appealed to this court, the appeal being No. 2749 on the docket of this court. This court, in a judgment this day rendered (Chavis vs. Trimble, — La. App. —, 124 So. 703) affirmed the judgment of the district court.

The trial judge, the jury, and the Supreme Court all were of the opinion that plaintiff had failed to prove that the note and mortgage were forgeries. After carefully examining the record we are of the same mind.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be affirmed.


source: Caselaw Access Project

author: JANVIER, J.

license: Public Domain

text:
    No. 11,313
    Orleans
    MOORE v. HENDERSON
    (November 18, 1929. Opinion and Decree.)
    J. Kenton Bailey, of New Orleans, attorney. for plaintiff, appellee.
    Legier, McEnery and Waguespack, of New Orleans, attorneys for defendant, appellant.
   JANVIER, J.

Plaintiff sues for $577.50, which he claims defendant promised to rebate to him in the event he was willing to go through with a real estate transaction out of which defendant made a commission of $1,155. Payment was resisted on the ground that plaintiff could not receive any part of the real estate commission as he was not a licensed real estate broker and was prohibited from receiving a commission by Section 19 of Act 236 of 1920.

Defendant’s attorneys, however, in this court concede that the case of Gonzales vs. Watson et ux., 162 La. 1048, 111 So. 416, is decisive of the question and is authority for plaintiff’s claim. Lowewngaratt vs. Freeland, 11 La. App. 582, 123 So. 340, seems also to fully answer plaintiff’s contention.

The trial court rendered judgment as prayed for in favor of plaintiff and, under the authority referred to, it is now ordered that the judgment appealed from be and it is affirmed at the cost of appellant.


author: LECHE, J.

text:
    No. 478
    First Circuit
    NUNEZ v. DAY ET AL.
    (December 3, 1929. Opinion and Decree.)

      L. V. Cooley, Jr., of Slidell, attorney for plaintiff, appellee.
    S. W. Provensal, of Slidell, attorney for defendant, appellant.
   LECHE, J.

The plaintiff who is a building contractor, agreed to repair a certain house situated in Slidell, Parish of St. Tammany. The agreement was made by him with a man named Staples, who was a prospective tenant for the property. Staples received his authority to enter into the alleged agreement from H. T. Day, who it appears, was acting for himself or as agent of Miss Hattie M. Day, his sister. Plaintiff at the time he entered into the agreement, did not know whether the house belonged to Mr. Day, to Miss Day or to both of them jointly. The Days had leased the property to Staples who at the time, was managing some business for the Sal-men Lumber Company. Staples had agreed to the lease provided certain repairs were made, such repairs to be made under his supervision. The contract by plaintiff with Staples was undoubtedly made with the authority of the Days who were bound to know of its existence although they deny such authority in their answer.

It further appears beyond doubt that the work was done by plaintiff and that the defendants failed to pay him although they are enjoying the benefit of his work.

In the consideration of the case before this court, the only debatable question is the amount of compensation which plaintiff is entitled to recover from the defendants. Unfortunately, Staples who made the contract with plaintiff was not produced as a witness when the case was tried in the district court. But it appears that the total cost of the repairs made by Nunez amounted to $1717.38, that Staples had agreed to compensate Nunez at the rate of ten per cent of such cost, or $171.73, that plaintiff further paid out of his own pocket, some extra labor amounting to $4.20, and that to preserve his privilege he had to pay a recorder’s fee of $1, making his claim thus altogether amount to one hundred and seventy-six 93-100 dollars.

It is hardly believable that defendants who reside, we understand, in the same town, who saw this work being done on their own property, should ignore By whose authority it was being performed. Nunez testifies positively and clearly as to what were the terms of the contract, and it is not surprising that defendants should contest the amount of his claim, after denying that the work was done with their authority. The district judge believed that Nunez testified to the truth and so do we.

The judgment of the district court was in favor of plaintiff for the full amount claimed and it is hereby affirmed.


text:
    No. 510
    First Circuit
    CONSOLIDATED COMPANIES, INC., v. LAWS (McCRAY REFRIGERATOR SALES CO., Intervener)
    (December 3, 1929. Opinion and Decree.)
    Borron & Hebert, of Plaquemine, attorneys for plaintiff, appellee.
    Joseph Nicolosi, of Plaquemine, attorney for intervener, appellant.
   LECHE, J.

Plaintiff obtained an attachment and thereafter a judgment in rem against defendant’s property for $275. The attached property was ordered to be sold to satisfy plaintiff’s judgment, and pending advertisement of the sale, intervener appeared in the proceeding, claiming part of the purchase price of a refrigerator which was included in the seizure. Intervener alleged that there was a balance due to it, for the purchase price of the refrigerator, prayed that its vendor’s lien and privilege upon said refrigerator be recognized, that said refrigerator be appraised and sold separately and apart from the other property of defendant under seizure, and that it be paid by preference and priority out of the proceeds of sale of said refrigerator, over all other creditors, especially over the plaintiff herein, the amount of its claim with interest, attorney’s fees and costs.

Plaintiff filed an exception of no cause of action to intervener’s demand. That exception was sustained and intervener has appealed.

The grounds upon which the exception is based are that it appears on the face of intervener’s petition that the sale was made and completed in Indiana, where the common law prevails and where the vendor’s lien and privilege does not exist, and that the alleged chattel mortgage is riot declared upon and is not prayed to be recognized, that the property described therein cannot be identified, that the propertj therein sought to be mortgaged was not owned by the mortgagor at the time the mortgage was given and that the act evidencing the mortgage is not an authentic act-

The prayer of intervener’s petition is substantially as above described in this opinion.

Annexed to intervener’s petition is a document partly printed and partly written. It is styled, “Sale and Chattel Mortgage.” It appears from this document that the defendant ordered from intervener, a refrigerator which was to be shipped from Kendallville, Indiana, to intervener at Plaquemine, Louisiana, F. O. B. factory, at once. Then follows an act of sale of one McCray refrigerator No. 75 for the price of $260, $25 of which is acknowledged to have been paid with the order, and $40 thereof is to be paid on arrival of the refrigerator, and the balance of $195 is to be paid in monthly installments. The whole document, including the order, sale and mortgage, was signed at one time.

It is evident from this annexed document, made part and portion of the petition, that at the time it was signed, the price had been agreed upon and consent had been given. But the third element necessary to constitute a sale, the thing, was still indeterminate. It is described as “one No. 75 McCray refrigerator (new style with gasket to be used with mechanical refrigerator).” Elsewhere in the order, it appears that the refrigerator is to be shipped F. O. B. factory in Kendallville, Indiana. . It is true that the kind and quality of the refrigerator is given as No. 75, but the particular refrigerator to be shipped is not designated by any identification . marks, so that any refrigerator No. 75 from the stock of intervener at Kendallville, would comply with the intent of the contracting parties. It then follows that the sale was not completed until interveners had segregated the refrigerator from their stock in Kendallville, Indiana, and delivered it to the common carrier for ransportation to Plaquemine, Louisiana. For this reason the contract must be viewed as an Indiana contract and not as one made in Louisiana.

“An agreement to sell is an executory contract; a sale is an executed contract. If the agreement to sell is not accompanied by delivery, the sale is not perfect until delivery, corporeally.” Thompson vs. Mylne, 6 La. Ann. 84; State vs. Shields, 110 La. 547, 34 South. 673; D. Witt Shoe Co. vs. Seegars, 122 La. 145, 47 South. 444.

The presumption is that the vendor’s privilege is not recognized by the law of Indiana. Mcllvaine & Spiegel vs. Legare, 34 La. Ann. 923.

The other defense is in regard to the validity and recognition of the chattel mortgage.

The prayer of intervener’s petition makes no mention of, or allusion to, the chattel mortgage, does not pray that said mortgage be recognized or declared executory, but proceeds entirely on the assumption that intervener’s claim is based entirely on a vendor’s lien and privilege. Plaintiff then concludes logically that any relief allowed under the chattel mortgage would be ultra petitionem or beyond the prayer of intervener’s petition.

Again the statute authorizing the giving of chattel mortgages requires that the act evidencing the mortgage be signed in the presence of two witnesses and a notary public, in order to be effective against third persons. Intervener admits that the act which it annexes to its petition, was passed before a notary public the Parish of East Baton Rouge, and as whose functions as such are confined to the act states that it was passed in the Parish of Iberville, beyond the territorial limits within which the notary could legally act as such, it is not authentic in . form as required by the statute. It is unnecessary for us to express any opinion upon this point as we believe that another objection to the validity of intervener’s mortgage is fatal to its validity, viz: The lack'of a description by which the property could be identified. It must be kept in mind that when the act was passed, title to the property had not yet passed from intervener to defendant, that any No. 75 refrigerator in the stock rooms of intervener would comply with the description given and that there was nothing to indicate the particular refrigerator which would be delivered to defendant. The statute requires that the description of the property should be full so that the same may be identified, and to that extent the act seems not to conform to the statute.

These defenses are somewhat technical, but keeping in view that privileges and mortgages must be strictly construed against the claimant, it cannot be said that the trial judge has erred in sustaining the exception of no cause of action.

The judgment appealed from is therefore affirmed.


author: WEBB, J.

text:
    No. 3508
    Second Circuit
    GILLESPIE ET AL. v. LEE
    (October 1, 1929. Opinion and Decree.)
    (November 18, 1929. Rehearing Refused.)
    (January 6, 1930. Writs of Certiorari and Review Refused by Supreme Court.)

      Foster, Hall & Smith, of Shreveport, attorneys for plaintiffs, appellees.
    Pugh, Grimmett & Boatner, and Melvin F. Johnson, of Shreveport, attorneys for defendant, appellant.
   WEBB, J.

This action was instituted by George E. Gillespie, individually and as the representative of Mary Gillespie, his minor daughter, against F. D. Lee to recover damages alleged to have been sustained, as the result of the negligence of the chauffeur of defendant in driving an automobile owned by defendant against an automobile in which Mary Gillespie was riding, which at the time was being driven by Mrs. Emma C. Gillespie, wife of plaintiff and mother of Mary Gillespie, it being alleged that Mary Gillespie had received injuries at the time of the collision, which had caused the development of pulmonary tuberculosis, and the damages claimed on behalf of George E. Gillespie is the amount alleged to have been expended by him in having his daughter treated for the disease, and on behalf of his daughter for tht, damages resulting to her from the disease.

There were a number of defenses presented. First, defendant excepted that the petition failed to state a cause of action and in connection therewith pleaded the prescription of one year, and the pleas being overruled, defendant under reservation of his rights answered, pleading in effect a general denial, and in the alternative, contributory negligence.

The accident occurred on March 16, 1925, and trial was had on May 31, 1927, and after conclusion of the evidence the cause was apparently first submitted solely on the questions raised under the general denial; that is, whether or not the evidence established that the chauffeur was at the time of the accident acting within the scope of his employment, and if so, whether the chauffeur was guilty of negligence, and whether or not the evidence established that Mary . Gillespie had been injured at the time of the accident, and if so, whether the injury had caused the development of tuberculosis, and on the issue raised under the plea of contributory negligence, as the court first held adversely to defendant on such questions, and tentatively fixed the amount of recovery leaving the latter open to further discussion.

Subsequent to the ruling of the court on those questions, George E. Gillespie died, and Mary Gillespie, who was at the time above eighteen years of age, married É. C. Bowe, and defendant moved for a new trial; while Mrs. Emma C. Gillespie and Mrs. Mary Gillespie Bowe moved that they be substituted as parties plaintiff, which motions were submitted, and the Court allowed the motion to substitute parties plaintiff and overruled the motion for a new trial, and on the cause being again submitted, judgment was rendered in favor of Mrs. Mary Gillespie Bowe, individually, in the sum of $8,000, and in favor of Mrs. Emma C. Gillespie, widow, and Mrs. Bowe, sole heir of George E. Gillespie, in the sum of $1250.35, the amount found by the court to have been expended by George E. Gillespie in having his daughter treated, under which judgment defendant appealed, and plaintiffs have answered the appeal, praying that the amount awarded be increased.

While counsel have urged all of the questions which were presented in the trial court, however, in view of the conceded •fact that pulmonary tuberculosis is a disease of which the exciting cause is tubercle bacilli, and of the evidence which conclusively establishes that there was not any disability or infirmity which can be traced to the accident, without regard to the disease, it clearly appears that the damages claimed and awarded are traceable to the disease, and as it must be conceded that plaintiffs cannot recover unless the evidence establishes that the accident was the proximate cause of the disease, we consider that question.

At the time of the accident, Miss Gillespie, who was then above 18 years of age, was on her way to attend her classes at Centenary College, and the car in which she was riding was being driven south along Fairfield Avenue, in advance of the car belonging to defendant, which was being driven by defendant’s chauffeur, and as Mrs. Gillespie turned her car to the right towards the curb and brought it to a stop (in response to the request of her daughter, who desired to invite a young man, who was also a student at Centenary College, to accompany her to school) the car was struck by the automobile driven by the chauffeur, the front bumper of the car driven by the chauffeur coming in contact with the left end of the rear bumper of the Gillespie car. There was not any damage to the cars, and no one present thought at the time that Miss Gillespie had sustained any injury, and the evidence shows that after the accident she went on to school, and although Mrs. and Miss Gillespie state that she left school about ten o’clock, the attendance records of Centenary College which were also offered in evidence by plaintiff, show that she attended her classes on the day of the accident, which would have required her presence until noon. The only pain claimed to have been experienced by Miss Gillespie as the result of the accident is stated by her to have been that her throat and back were sore a few days after the accident, which does not, however, appear to have discommoded her, as she continued to attend her classes. On April 17, 1925, about one month after the accident, Miss Gillespie consulted an associate firm of physicians and was referred to one of the members of the firm who specialized in diseases of the throat, etc., who found that her tonsils were infected and advised that they be removed, and, on April 24th, after an examination was made, in which it was found that Miss Gillespie had a slight degree of fever, her tonsils were removed. But the fever continuing and the physician who removed her tonsils and who had continued to attend her, finding some' involvment of the lungs, called in an associate physician to whom his firm usually referred patients having diseases of the chest, who on an examination found some involvment of the' lungs, which he at the time attributed to the operation or the anaesthetic which had been administered at the time. The condition not yielding to treatment, a radiograph was taken of the lungs on May 25th, which revealed that Miss Gillespie had tuberculosis, for which he treated her until some time in July when she, accompanied by her mother, went to a sanitorium in Colorado, where she arrived about July 28th. She was examined at the sanitorium and the' same condition revealed by the radiograph .on May 25th was found to still exist, and the physician in charge of the sanitorium, in consultation with another eminent physician, after a history of the case had beeri given expressed the opinion that the accident was the cause of the disease, and the senior member of the firm of physicians ■ (one of whom had removed Miss Gillespie’s tonsils and another who had attended her after the removal of her tonsils) who was a visitor at the sanitorium after consultation with the other physicians expressed the same opinion, and all of them were called as witnesses on behalf of plaintiff.

It is conceded that pulmonary tuberculosis is an infectious disease and that the tubercle bacilli are brought in with the inhaled air, and the physicians called by the parties agree that tubercle bacilli are always present in the system, and also that everyone has tuberculosis in a latent or quiescent state, and while they also agree that the usual precipitating cause of the disease is lack of vitality or power of resistance to infection, which may result from many causes, it is conceded that the disease may be precipitated by an injury.

And, although it is not so expressly stated, we gather that the theory of plaintiffs’ case is that Miss Gillespie sustained an injury of the lungs at the time of the accident and that the bacilli present in the system were implanted in and found suitable soil for growth in the contusion or lesion resulting from the injury, thus causing the development of the disease, or that the injury broke up a latent tubercular lesion in the lungs, letting loose the tubercle bacilli, causing the disease to be reactivated.

In this connection we refer to the hypothetical questions propounded to the physicians called by plaintiffs, and the excerpts from the works of recognized medical authorities relative to the probability of tuberculosis being developed or reactivated by an injury, which were introduced and read into the record in connection with the evidence of the physicians.

In the questions propounded to the physicians, the facts relative to the removal of the tonsils and final diagnosis of the disease on May 25th, were stated, and it was assumed that Miss Gillespie had good health, splendid vitality and energy prior to the accident, and facts were also assumed tending to show that she had sustained a shock or blow on her chest at the time of the accident, and to show that the symptoms of the disease appeared soon after the accident, and they were requested to express an opinion as to the cause of the disease. In answer, one of them said, “Trauma resulting from the accident”; another, “The tubercle bacilli was the cause of the tuberculosis; the precipitating cause was most probably the motor accident”; and the third, “I would unquestionably attribute the condition to the injury received.”

In the excerpts, one of the authors, Dr. Pishberg, says: “Many cases have been observed in which latent tuberculosis lesions in the lungs have been stirred into activity soon after an injury,” and that “the intensity of the injury should not be taken as the measure of the probability of its relation to phthisis subsequently developed as has been pointed out by many authors, after violent injuries to bones and joints, especially those resulting from fractures, tuberculosis osteomyelitis is hardly ever observed. During the World War, very few gunshot wounds of bones and joints, especially of the chest, were followed by tuberculosis lesions in these tissues. On the other hand slight injuries to bones have frequently been seen to precede tuberculosis osteomyelitis. In the same manner the writer has seen in several cases a slight injury to the chest flaring up a latent or quiescent process in the lungs. In persons known to be healthy this is not uncommon.” The same author further states that, “The site of the lesion provoked by an injury is not necessarily at the point affected by the blow. Many authors have reported lesions by contrecoup. An acute or general miliary tuberculosis may also result from breaking up a latent lesion and letting loose tubercle bacilli in the blood stream. Hemoptysis is not absolutely essential to establish the relationship between the injury and the phthisis, because laceration of the lung may occur without causing hemorrhage. Nor must there remain any external marks on the chest wail because an injury may_ lacerate the lung or pleura without leaving any external traces.” And he refers to another author who says that, “The only explanation we can offer for tuberculosis following traumatism is that after a contusion of the lung, the pulmonary tissue is devitalized, so that the tubercle bacilli brought in by the inhaled air will find suitable soil for growth.”

Dr. Pottenger, another of the authors, says that, “For cases of active clinical tuberculosis to be definitely assigned to trauma as the agency in their active causation, the symptoms must appear promptly following the injury. The spreading must take place within the time that implantation and the development of tuberculosis would usually occur — that is, within a period of a few weeks, in this connection w*e must realize that it is possible for bacilli to be mobilized in small numbers and produce very small metastic foci. Clinical tuberculosis might result from such an infection, yet require a considerable time for the bacilli to be implanted and form new metastases; and in such cases, it might be difficult to give an accurate opinion. In such cases, however, where the symptoms show themselves within a few weeks after the injury, the relationship can hardly be doubted.”

Although there was not any explanation of the rather technical language used by the authors who appear to have been stating their observations for consideration by the profession, it was conceded that they refer to two classes of the disease, one of the bones, and the other of the lungs, and there was some explanation of the reason why an intense injury of such tissues would be less likely to cause the disease than injuries of other characters; yet we gather from the excerpts insofar as they may be relevant to the present case and the answers of the physicians to the hypothetical question propounded . to them, that the conclusion of the physicians was that Miss Gillespie’s lungs had been injured at the time of the accident, and although it is not so stated, that the tubercle bacilli had been implanted and found suitable soil for growth in the contusion or lesion resulting from the injury, and thus developed the- disease, or that the injury had broken up a latent tubercular lesion in the lungs letting loose the tubercular bacilli and thus precipitated the disease, and, as stated, we assume that the theory of plaintiffs’ case is that the accident was thus the direct and proximate cause of the disease.

From this point of view, we think that, although the exciting cause of the disease was the tubercle bacilli, the plaintiff’s right to recover for the damages resulting from the disease is distinguishable from the case presented in Caldwell vs. City of Shreveport, 150 La. 465, 90 So. 763, and is supported by the ruling in Larson vs. Boston Elevated Ry. Co., 212 Mass. 262, 98 N. E. 1048. However, under this theory of the case, considered in connection with the excerpts (from which we gather that, in order for an injury of the lungs to be definitely assigned as the direct cause of the disease, it is necessary that the symptoms of the disease appear soon after the injury), it is essential that the evidence should establish that there was an injury of the lungs at the time of the accident, and that the symptoms of the disease appeared soon thereafter.

Of these essentials, the basic one to be established is that, there was an injury of the lungs as the result of the accident; and while, as suggested by defendant, the physicians called by plaintiff in arriving at their conclusion that there was such an injury, appear to have given preponderant weight to the assumption that the symptoms of the disease appeared soon after the accident, or, as one of them in explanation of his answer to the hypothetical question, said, “I base my opinion on the fact that the symptoms of the disease followed this collision within the expected time,” we do not think their opinions can be disregarded, a_nd the statement of the physician who was called in to attend Miss Gillespie after the removal of her tonsils, and who expressed the opinion that the accident was not the cause of the disease, accepted as decisive of the case.

While the excerpts indictate that, when there is a known injury of the lungs and the symptoms of the disease appear soon thereafter, it should be inferred that the injury had caused the development or reactivation of the disease, it is not indicated that, where the disease appears soon after an accident it should be inferred that the lungs were injured at the time of the accident, and considering the evidence of the physicians called by plaintiff as a whole, we do not think they based their conclusion that the lungs were injured at the time of the accident solely on the assumption that the symptoms of the disease followed soon after the accident or collision, but that they considered the other factors suggested in the hypothetical question, which were as stated that, Miss Gillespie had sustained a shock or blow on her chest at the time of the accident and that she was in good health at that time, and one of the physicians also stated that one of the factors considered by him was his finding that the disease was of an acute or miliary type.

The evidence does not show that the symptoms developed by Miss Gillespie were the usual ones apparent when the disease is of an acute or miliary type, nor does it show that the acute or miliary type of the disease is peculiar to those cases when the disease is developed or reactivated by an injury. And although, as stated, we are satisfied that the physicians in arriving at the. conclusion that Miss Gillespie’s lungs were injured at the time of the accident gave consideration to the facts assumed showing that Miss Gillespie sustained a shock or blow on her chest at the time of the accident and that she was in good health at that time, they did not state what consideration was given to those factors.

As previously stated, the evidence shows that the disease is usually developed or reactivated by reason of loss of vitality or power of resistance to infection, which may result from many causes, and that it is usually impossible to determine the precipitating cause, or as we gather, the approach of the disease is insidious and that it is usually impossible to distinguish the precipitating cause of the disease from the predisposing cause, and even though it should be conceded that Miss Gillespie did sustain a shock or blow on her chest at the time of the accident, and that she was in good health at that time and that the symptoms of the disease appeared soon thereafter, it does not appear that it would necessarily follow that the accident was the cause of the disease or that her lungs were injured at the time of the accident, in default of proof that persons in good health may not be infected by the bacilli, or that the approach of the disease as to such persons is marked by indications of loss of vitality or power of resistance to infection.

Conceding, however, that when it is shown that a person in good health is in an accident and the disease appears soon thereafter, would be circumstances tending to show that there was some connection between the accident and the disease or that the lungs may have been injured at the time of the accident, such factors would not of themselves, in default of evidence that the subject had sustained a shock or blow of sufficient violence to have injured the lungs, be of great weight, and even if all of the factors were established, it would only raise a presumption that there was some connection between the accident and the disease or that the lungs were injured at the time of the accident, the force of which would depend upon whether the factors were satisfactorily established.

In the hypothetical question propounded to the physicians, the facts assumed showing that Miss Gillespie had sustained a shock or blow on her chest at the time of the accident were stated as follows: “Take the case of a young girl sixteen years of age who was in an automobile accident on March 16, 1925, and in that collision she was thrown forward, striking her chest on the front of the car and then jerked back against the seat,” and “that this girl was rendered unconscious” and “that she suffered a severe hemorrhage from the nose that night and from time to time for about two weeks,” and the facts as to her 'condition prior to the accident were that, “she had unusual good health, splendid energy, splendid vitality, scarcely ever tired,” while the facts tending to show when the symptoms of the disease appeared were that “about two weeks after the accident she began to lose her appetite, energy, ambition to work,” and “had temperature ranging around ninety-nine which continued for some time,” and assuming that the physicians considered all of the factors suggested, we re'fer to evidence in support of same.

The facts assumed showing that Miss Gillespie had sustained a shock or blow on her chest at the time of the accident were substantially supported by the testimony of Miss Gillespie and Mrs. Gillespie, while the chauffeur and a friend who was riding with him stated that Miss Gillespie was not thrown forward by the impact of the car.

It is shown that a hemorrhage from the nose does not indicate an injury of the lungs, and while the trial court accepted the statement of Miss Gillespie and her mother and concluded that Miss Gillespie had sustained a shock or blow on her chest of some violence, the court did not find that Miss Gillespie had been rendered unconscious.

While there are as many, if not more discrepancies in the testimony of Mrs. Gillespie and Miss Gillespie as are in the testimony of the chauffeur and his friend, Miss Gillespie testified that her throat and back were sore on the day of the accident, and defendant called a witness who had talked with Mrs. Gillespie who stated that Miss Gillespie’s neck was sore and also offered an affidavit made by Miss Gillespie several months after the accident in which she states that her neck and hack were sore a few days after the accident, we think the preponderance of the evidence shows that Miss Gillespie did sustain some shock or blow at the time of the accident, but we do not find that the evidence establishes that she was rendered, unconscious, or that the shock or blow was violent.

There were two friends of the Gillespies present at the time of the accident, who were called as witnesses in her behalf, and although it appears that they went immediately to the Gillespie car, neither mentioned that Miss Gillespie was unconscious (although Mrs. Gillespie stated that her daughter was unconscious for an appreciable time, in which she had taken her in her arms and rubbed her forehead) and it is shown that neither of the friends nor Miss Gillespie thought that she had been injured, nor did Miss Gillespie, in the affidavit referred to (which appears to have been made in connection with an action which Mrs. Gillespie contemplated at that time bringing in her own behalf) mention that she had been rendered unconscious.

As stated, there was no damage to the cars or bumpers which came in contact, and while the statement of Mrs. Gillespie and Miss Gillespie as to the manner in which the impact of the cars was communicated to Miss Gillespie would indicate that the shock or blow was violent, it also indicates that the reaction was unusual and that there were two shocks. As if Miss Gillespie was sitting on the seat in the usual manner the tendency would have been for the impact against the rear of the car to have first thrown her against the back of the seat, and while the opinion of Mrs. Gillespie was that her car was driven against the curb by the impact of defendant’s car would account for two shocks, the evidence shows that the Gillespie car was not driven against the curb. The evidence also conclusively shows that there were not any abrasions, bruises or other marks on Miss Gillespie’s body indicating that the blow was violent, and, as stated, Miss Gillespie, after the accident, continued on her way to school where she attended her classes, and although she made some complaint of soreness of her throat and back, the pain was not sufficient to discommode her to any extent, as her evidence shows that she attended her classes and kept up rather vigorous exercises after the accident.

And we do not think the evidence establishes that the shock or blow on the chest, which may have been sustained by Miss Gillespie, rendered her unconscious or that it was violent.

It is conceded that the lungs are well protected, and that it will usually require a shock or blow on the chest of considerable violence to injure the lungs, and while we gather from the evidence of the physicians called by plaintiff that it is not always necessary that the blow or shock should be of considerable violence, one of the physicians called by defendant stated that it would require a blow of sufficient violence to render the subject unconscious.

There was not any explanation of the conditions under which a shock or blow on the chest would not have to be of considerable violence to injure the lungs, nor of the reason why the shock or blow would have to be of such violence as to render the subject unconscious, and we cannot say which of the opinions was correct, but, considering the circumstances attending and following the accident, which do not indicate that the shock or blow sustained by Miss Gillespie was violent, and the testimony that it would usually require a shock or blow on the chest of considerable violence to injure the lungs, we do not think the evidence shows more than a possibility that the shock or blow sustained by Miss Gillespie could have injured her lungs.

Relative to the time when the disease appeared and the state of Miss Gillespie’s health prior to the accident, it was, as stated, assumed in the hypothetical question that Miss Gillespie was in good health and had splendid vitality and energy prior to the accident, and the facts tending to show when the symptoms of the disease appeared were that, “about two weeks after the accident she began to lose her appetite, energy and ambition to work,” and “had temperature ranging around ninety-nine for some time.” While it is shown that Miss Gillespie had led an active life since early childhood, and that she had good health, vitality and energy, and that she had not had any illness which was regarded as serious until following the removal of her tonsils, it is shown that she had an attack of influenza with some degree of fever, sore throat and cough, about January 7th, preceding the accident, and subsequently, on April 17th, her tonsils were again examined and found to be infected and at that time she had some degree of fever, which latter condition, the evidence affirmatively shows, had existed since about ten days or two weeks after the accident, when the evidence shows that Miss Gillespie began to lose her appetite and energy, about which time she discontinued her dancing exercises, although she continued to attend her classes at school until the date of the operation.

At the time of the operation, Miss Gillespie’s lungs were examined by a physician connected with the hospital where the operation was performed, and his report to the physician who performed the operation, and his evidence on the trial of the case shows that he did not find any involvment of the lungs, and the physician who was called in to attend Miss Gillespie after the removal of her tonsils stated that he was of the opinion that the disease was on the verge of being developed or reactivated at the time the operation was performed. It is conceded that the usual symptoms of the development or reactivation of the disease is loss of appetite, lassitude and a slight degree of fever, and while the physicians called by plaintiffs fix- the appearance of the disease at the time, or about ten days after the accident when the evidence shows that Miss Gillespie began to lose her appetite and energy and developed a slight degree of fever, nevertheless, as stated, the examination made by the physician some weeks after that time showed that there was not any involvment of the lungs, and the opinion of the attending physician was that the disease was on the verge of being developed or reactivated at that time, and the evidence further shows that the symptoms of the disease are the same as when one has infected tonsils, which the evidence' shows that she had prior and subsequent to the accident, which condition the physician, who removed her tonsils and who had examined her in January, stated was chronic.

While it is apparent from the evidence that the symptoms of the disease are not always observable by all persons, the experts concede that there is a marked distinction between the latent and the active disease, and that when the disease is active , there will be some indication in the lungs of such activity and considering that the examination made by the physician several weeks after the time when the physicians called by plaintiffs fix the date the disease became active, did not show any involvment of the lungs, and that the symptoms which, it is assumed, evidenced the reactivation of tuberculosis are common to infected tonsils, which the evidence indicates Miss Gillespie had at the time, we do not think the preponderance of the evidence establishes that the symptoms of the disease appeared within ten days or two weeks after the accident, and that the evidence leaves the date of the appearance of the disease uncertain.

The same uncertainty as to whether Miss Gillespie was in good health prior to the accident is, we think, reflected by the evidence, as it is shown, as stated, that there was a chronic infection of the tonsils and the history given of the case at the time of the operation was that she had had frequent colds and sore throat since January, which condition, the evidence shows, often precedes the development or reactivation of pulmonary tuberculosis. And, although the evidence does not indicate that Miss Gillespie had any symptoms of the disease immediately prior to the accident, the experts do not state that she was in good health, although we gather from the evidence of the experts called by plaintiffs that they did not consider that the conditions prevailing prior to the accident established that there was any precipitating cause of the disease.

The question, however, is not whether the evidence establishes any other cause which could be assigned as the precipitating cause of the disease, but whether or not it establishes that the accident was the precipitating cause of the disease, and, as the evidence at least leaves in doubt whether Miss Gillespie sustained a shock or blow of sufficient force to have injured her lungs and whether she was in good health at the time of the accident and when the symptoms of the disease appeared, the factors on which any presumption that the accident was the precipitating cause of the disease, or that Miss Gillespie’s lungs were injured at the time of the accident, could be based, and the eminent physicians disagreeing, the evidence fails to establish that the accident was the proximate cause of the development or reactivation of the disease.

It is therefore ordered that the judgment appealed from be avoided and reversed and that plaintiff’s demands be rejected at their cost.


author: ELLIOTT, J.

text:
    No. 511
    First Circuit
    BAUCUM v. HALE
    (December 3, 1929. Opinion and Decree.)

      .B. R. Miller, of Baton Rouge, attorney for plaintiff, appellant.
    P. J. Whitehead, of Port Allen, attorney for defendant, appellee.
   ELLIOTT, J.

The plaintiff, R. W. Baucum, got off a train at Addis, accompanied by a gentleman and young lady, and entered a conveyance belonging to J. W. Hale, defendant, which was being used for the purpose of transporting passengers and their hand baggage from Addis to Port Allen. After the three parties had engaged passage and taken seats in defendant’s vehicle plaintiff’s automobile arrived on the scene, upon which they left defendant’s automobile and made the trip in the automobile belonging to the plaintiff. In making the change the parties arranged with defendant’s agent to take their handbags in his automobile.

Plaintiff contends that he placed his handbag in charge of defendant’s agent at Addis, and that his agent undertook to convey it to Port Allen where plaintiff was to receive it.

When defendant’s automobile arrived at Port Allen plaintiff’s handbag was not among the number brought by defendant, and it has never been found. Plaintiff alleges that defendant lost it, and claims of him its value and the value of its contents.

Defendant denies that plaintiff’s handbag was delivered to his agent at Addis, and denies responsibility. There is some discussion in the brief and some evidence introduced concerning the compensation which defendant was to receive for transporting the handbags of the parties, but we think the only question worthy of consideration is, whether or not plaintiff delivered his handbag to defendant’s agent at Addis to be conveyed to Port Allen.

The evidence on the subject is conflicting. The plaintiff and his two companions, of whose sincerity we are fully satisfied, say positively that plaintiff delivered his handbag to defendant’s agent at Addis, and that his agent received it and agreed to transport it to Port Allen. They all say that four bags belonging to their party were delivered to defendant’s agent at Addis.

Defendant’s agent, with equal firmness and, we believe, with equal sincerity, denies it. He says that the gentleman accompanying the plaintiff delivered to him a handbag, and that plaintiff delivered him two bags, making in all three in number; that the three received were securely tied to his automobile and brought to and delivered at Port Allen. His further testimony is, that seven handbags wore delivered to him at Addis to be conveyed to Port Allen, and that they were all safely transported to and delivered at Port Allen. If plaintiff’s handbag had been delivered to defendant’s agent at Addis, there would have been eight bags instead of seven.

The testimony of the plaintiff on the subject is, that he delivered his own handbag to defendant’s agent, and one of those belonging to the young lady. And his gentleman companion testifies that he gave his own and one of the young lady’s handbags to defendant’s driver, making four bags delivered to defendant’s agent by their party at Addis.

The evidence shows that the train on which the plaintiff and his companions arrived at Addis reached there in the dark. A considerable number of students left the train at the same time, many of them having handbags, and there was some bustle and confusion in the darkness, in the effort for all to get transportation to Port Allen. There was some delay before the parties got started, and some of them no doubt, while waiting, put their handbags on seats or on the ground. In such a situation it was easy, in the darkness, for mistakes to be made in regard to handbags, if the bags once got out of their hands.

Defendant is strongly corroborated by witnesses who say, that they assisted in receiving and placing the seven handbags intrusted to defendant’s agent on his vehicle, and that there were only seven bags received; that all were securely tied on the automobile with a rope, and that all reached Port Allen and were delivered in safety.

The trial court was not satisfied that the evidence, established responsibility on the part of the defendant, and rejected plaintiff’s demand against him.

After considering the evidence on the subject we are unable to say that the lower court has erred in its judgment.

Judgment affirmed. Plaintiff and appellant to pay the cost in both courts.


author: ODOM, J.

text:
    No. 3139
    Second Circuit
    TURNER v. SWANN
    (November 18, 1929. Opinion and Decree.)
    John G. Gibbs, of Shreveport, attorney for plaintiff, appellant.
    B. F. Roberts, of Shreveport, attorney for defendant, appellee.
   ODOM, J.

Plaintiff brings this suit against defendant to recover the sum of $875 for commissions which he alleges are due him on a sale of real estate. His demands were rejected by the lower court and he prosecutes this appeal.

The facts, as disclosed by the record, are that the plaintiff is a real estate broker, licensed to transact business as such under the laws of the State of Louisiana, and that in July or August, 1925, the defendant, Swann, listed with him under verbal agreement certain property for sale, with the understanding that in case plaintiff negotiated a sale for the said property, he would be entitled to the usual commissions for making such sale. But defendant did not give to plaintiff the exclusive right to make, a sale of the property. At the time this property was listed with plaintiff for sale, the City of Shreveport contemplated the purchase of a site for a tourist camp and a committee had been appointed by the Junior Chamber of Commerce of the city to urge upon it the necessity of purchasing such a site - and to advise with the city officials as to the location of the camp. Plaintiff, immediately after the listing of the property with him, informed defendant that he expected to offer this property to the city. He made, or had made, a plat of the property showing the area and location thereof and took up with the city officials, as well as the members of the committee, the proposition of their purchasing this particular property for the camp. At that time, the defendant had not listed with plaintiff all the property which he owned in that locality, but specifically reserved certain lots thereof. The price which plaintiff was authorized to accept for the property listed was $15,000. The committee above referred to was not favorably impressed with the property and so informed plaintiff and the city officials, and the proposition which plaintiff made to the city was refused or turned down, as is evidenced by the testimony of plaintiff himself as well as that of the city officials. We find in the record a letter written by the mayor to plaintiff, dated August 25, 1925, reading as follows:

“I am in receipt of yours of the 13th ijnst., which came during my absence attending the K. T. Encampment at Seattle. I wish to advise that the Oity will not be interested in the purchase of the property referred to in your letter, being 3-14 acres for which a price of $15,000 has been asked.”

The record further discloses that in June or July, 1926, nearly one year after the city had declined to accept the proposition made to it by the plaintiff, the defendant, Swann, began negotiations with the city officials looking to a sale to the city of the property which had been previously offered by the plaintiff, together with other property which he owned adjoining the same. The negotiations between defendant and the city resulted in a sale of the property to the city at the price of $25,000. The negotiations which resulted in the sale of the property to the city were conducted by defendant independently of the services of plaintiff.

The plaintiff contends that inasmuch as he first offered this property, or at least a part of it, to the city of Shreveport, and that inasmuch as the city finally purchased the property, defendant is due him commissions on the sale, even though the iinal negotiations.and sale were conducted s.nd made by defendant personally.

In support of his claim, counsel cites ihe case of Atkins vs. Anisman, No. 2783, 123 So. 470, August 3, 1929, where this court held that where a broker procured a purchaser subsequently buying the property for an agreed price directly irom principal, the broker is entitled to liis commission, regardless of the fact that the owner had paid a commission to another broker in the transaction. He also cites Grace Ry. Co. vs. Noel, 156 La.. 63, 100 So. 51; Grace Realty Company vs. Peytavin Planting Company, 156 La. 93, 100 So. 62; and J. R. Grand Agency Company vs. Staring, 156 La. 1094, 101 So. 753.

In the first of the above cited cases, it was held that where a broker procured a purchaser who bought direct from the pi incipal, who, to consummate the sale, reduced the cash payment, the broker was entitled to his commission; and in the second of the cited cases it was held that where the broker opened the negotiations with the purchaser, and the principal, without termination of the agency or negotiations so commenced, concluded the sale foi a less sum than the price fixed, the broker was entitled to a ratable proportion of the fixed commission; and in the third of the said cited cases, it was held that the duty to pay commissions arises from equitable considerations and from the operation of the law and is based “upon the equitable maxim that no one is permitted to enrich himself at the expense of his neighbor.” The court there found that the services and expenditures of plaintiff had inured to the benefit of the defendant and that defendant must pay the commission.

The holdings in these cases were based upon the proposition that the broker had found a purchaser for the property and that his services had inured to the benefit, of his principal.

Under the above cited authorities and many others which might be cited, if the plaintiff in the present case had found a purchaser for the property in question and had been instrumental in making the sale for his principal, he would be unquestionably entitled to the commission for which he sues, but the facts, as disclosed by the record, are that the plaintiff had nothing whatever to do with the sale finally consummated. Defendant ■ did not give to the plaintiff the exclusive right to sell his property and, therefore, had a right to make the sale independently Defendant, however, had no right to take advantage of the services of plaintiff and sell the property independently to a prospective purchaser found by plaintiff and thereby defeat plaintiff’s right to a commission. The record does not disclose that defendant did this. The facts are that plaintiff did offer this property to the city of Shreveport and made an effort to induce the city to accept it, but his offer was rejected and his negotiations came to naught. If plaintiff ever made any further efforts to sell the property to the city, the record fails to disclose that fact. About ten months after plaintiff’s negotiations had failed, the defendant took the matter up with the city and finally closed the sale— not of the property originally offered, but of that property, together with other lots adjacent thereto.

Cases like this fall, not under the decisions above referred to, but are governed by the rule announced in Lewis vs. Manson, 132 La. 817, 61 So. 835; Hauch vs. Bonnabel, 134 La. 847, 64 So. 795; and Ford vs. Shaffer et al., 143 La. 635, 79 So. 172.

In the case of Lewis vs. Manson, supra, it was held that if a broker attempts unsuccessfully to effect a sale of land and his prospective purchaser abandons the idea of buying, but is afterwards induced to do so by the principal, the broker is not entitled to a commission. That is precisely what happened in the case at bar. The plaintiff attempted to negotiate a sale with the city. The city turned his proposition down and negotiations between the two ceased. Long after that, the defendant took the matter up with the city and, through his own efforts, made the sale.

In other words, plaintiff’s efforts to make the sale to the city resulted in failure. In the case of Ford vs. Shaffer et al., supra, the court, through its organ, used the following language which we think is applicable to the present case:

“The theory of plaintiff’s suit seems to be that he had a vested interest in any sale that might be made to the man whom he introduced as a prospective purchaser. The doctrine which this Court has recognized to the contrary is that a broker who has failed in an attempt to effect a sale is not entitled to a broker’s commission on a sale made afterwards by the principal to the person to whom the broker tried and failed to sell the property.”

The judgment appealed from is correct, and is, therefore, affirmed, with costs.


text:
    No. 11,819
    Orleans
    BORG v. JAHNCKE SERVICE, INC.
    (May 27, 1929. Opinion and Decree.)
    (November 18, 1929. Rehearing Granted.)
    H. "W. Robinson and H. M. Robinson, of New Orleans, attorneys for plaintiff, appellee.
    Henry & Cooper and A. M. Suthon, of New Orleans, attorneys for defendant, appellant.
   JANVIER, J.

Plaintiff sues for damages sustained by his Chevrolet automobile when it was run into from the rear by a truck of defendant, while parked alongside the curb ‘ in front of plaintiff’s residence in Fontainebleau Drive. Defendant’s truck was attempting to pass plaintiff’s car, and, when it had reached a point about five feet in the rear of it, but near enough to the middle of the street to clear it, a touring car belonging to Dr. Leidenheimer and driven by his 15 year old son, attempting to pass between the truck and the neutral ground, struck the left front hub of the truck and caused it to swerve to the right and into the parked Chevrolet.

According to plaintiff, the Chevrolet sustained damages amounting to $149.01. Defendant, however, claims that the damages could be entirely repaired for $100.

Of course plaintiff was in no way at fault. His car was parked where he had a right to leave it and it was within a few inches of the curb, so that it cannot be argued that it was in a dangerous position, and, since Dr. Leidenheimer was not made a party defendant, the sole question involved is whether or not defendant’s driver was negligent.

Defendant contends that the fault was entirely in the driver of the Leidenheimer car.

Plaintiff asserts that the truck driver had not seen the Chevrolet in time and had suddenly pulled to the left to avoid it, not noticing that the Leidenheimer car was passing on that side, and that, on striking the Leidenheimer car, the truck suddenly swerved away from it and ran into the Chevrolet. The street, at the point at which the collision occurred, is 20 feet 2 inches from curb to curb. The truck was 6 feet 1 inch wide from hub to hub. The Chevrolet was 5 feet 6 inches wide, and the Leidenheimer car, a StearnsKnight, was 5 feet 9 inches wide. It thus appears that the total width of the three cars was 2 feet 10 inches less than the total width of the street.

It seems to us that there was not sufficient margin to allow for the safe passage of the two moving cars, while abreast of the standing car.

The evidence leaves us convinced that the cause of the sudden swerve of the truck to the right was the blow which it received on its left front hub from the Leidenheimer car, the speed of which was considerably in excess of that of the truck. We cannot find in the evidence anything which indicates that the driver of defendant’s truck was not looking, or that he carelessly swerved into the Leidenheimer car, or back into the Chevrolet car.

It is argued that the blow which the Leidenheimer car striick the hub of the truck was not of sufficient force to cause the truck driver to lose control of his steering wheel. This argument, however, seems to be overcome by the testimony of Dr. Daniel Elliott, professor of physics at Tulane University, who examined both vehicles after the accident, and who testifies that, in his opinion, the blow which caused the dent in the fender of the Leidenheimer car was of sufficient force, when exerted on the hub of the truck, to cause the truck to swerve to the right.

It is manifest that plaintiff was most anxious to fasten liability on defendant and to have it appear that the Leidenheimer car was in no way at fault. Had plaintiff sued both parties, he might have recovered, but for reasons best known to himself, he failed to join Leidenheimer as a co-defendant. Be that as it may, he cannot prevail in this suit, as it appears to us that he has sued the wrong party. Furthermore, his testimony is exaggerated in some particulars. For instance, he says his Chevrolet was knocked 50 or 60 feet, whereas the testimony of the other witnesses shows conclusively that it was knocked only about five or ten feet.

Another matter which we cannot overlook is that Dr. Leidenheimer’s son was only 15 years old, which is below the limit fixed in the traffic ordinance (No. 7490, Commission Council Series) for automobile drivers. Of course, this may have had no causal connection with the accident, but we feel that it justifies us in scrutinizing very closely the testimony as to the negligence of the boy.

Since there was not room for the two vehicles to pass safely at high speed, it appears to us that the fault which caused the accident must have been in the driver of that vehicle which came up from to-rear, and which attempted to squeeze iU way through, after the first vehicle was practically abreast of the standing Chevrolet. Had this second car not attempted to force its way through, it is manifest that the truck would have passed the Chevrolet car without hitting it. It therefore follows that the reason for its swerving into the Chevrolet car was the blow which it received from the other automobile.

It is argued by plaintiff that if the hub of defendant’s truck extended beyond the line of the fender, this in itself constituted negligence. We do not think so, as the slight extension was not sufficient to create a danger, except to one approaching too close to its side.

We believe that the trial court was in error in holding the defendant liable.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be and it is annulled, avoided, and reversed, and that there now be judgment in favor of defendant, dismissing plaintiff’s suit at his cost.


author: HIGGINS, J.

text:
    No. 11,819
    Orleans
    BORG v. JAHNCKE SERVICE, INC.
    (November 18, 1929. Opinion and Decree.)
   HIGGINS, J.

This is a suit to recover damages as a result of defendant’s Mack truck running into the left rear side of plaintiff’s Chevrolet car. The petition alleges that the defendant, through its agent, was guilty of negligence, first, in driving into the plaintiff’s parked automobile in open -view; second, in driving the truck -at such a high and dangerous rate of speed that the driver was unable to stop it before it struck plaintiff’s car, and, third, in operating the truck when the brakes were in such bad condition and lack of repair that the driver could not stop the truck properly.

Defendant denies liability and that it was guilty of carelessness as alleged in the petition. It specially pleads that, as the truck neared the point where the Chevrolet was parked and was about to pass it, a Stearns-Knight touring car owned by Dr. Henry Leidenlieimer, and operated by his minor son, attempted to pass the truck on its left side; that when partly clear of the truck, it suddenly and negligently swerved to the right, causing the right rear fender of the touring car to strike the left front hub cap of the truck, wrenching the steering wheel from the driver of the truck, who thereby temporarily lost control of the truck, which crashed into the left rear side of the parked Chevrolet; that the collisions were caused by the fault of the driver of the Stearns-Knight car and that defendant’s driver was not guilty of negligence. Defendant further denied that the repairs to the Chevrolet car were necessary and reasonable.

There was judgment in favor of plaintiff for $149.01 and defendant appeals.

The case is now before us on rehearing, this court (122 So. 900) having reversed the judgment of the trial court in the original opinion on the ground that the negligence of the driver of the Stearns-Knight car was the proximate cause of the accident.

Plaintiff elected to sue the owners of the truck, but not the owner of the StearnsKnight car, and the sole question before the court is whether or not the driver of defendant’s truck was guilty of negligence which contributed to and caused damage to plaintiff’s car.

The record shows that on October 13, 1928, at 2 p. m., defendant’s two and one-half ton Mack truck, loaded with two yards of lake shore sand, was proceeding on the right-hand side of Fontainebleau Drive in the direction of Carrollton Avenue. Fontainebleau Drive has a neutral ground in the center with a one-way street on each side. The width of the street in question was twenty feet two inches; the width of the Chevrolet car from fender edge to fender edge (over all) was 5 feet 6 inches; of the Jahneke truck, from hub to hub (over all), 6 feet 1 inch; of the Stearns-Knight car from fender edge to fender edge (over all), 5 feet 9 inches. The Chevrolet car was parked about 50 or 60 feet from the corner of Lowerline Street on Fontainebleau Drive, facing in the direction of Carrollton Avenue, and about 3 inches from the right hand curb. It is not contended that plaintiff was in any way at fault.

The Mack truck was in charge of a colored man who had been in the employ of defendant company about 6 years, and he testifies that he was running at a rate of about 15 miles per hour before and at the time of the accident, and that he was traveling near the center of the street on Fontainebleau Drive in the direction of Carrollton Avenue. The Stearns-Knight car, driven by Dr. Henry Leidenheimer’s minor son, was proceeding in the same direction, on the same side of the street. While attempting to pass the Mack truck on its left side, — which had come within a distance of about 5 feet of the parked Chevrolet car,- — the right rear fender of the Stearns-Knight car came in contact with the left front hub of the truck. The evidence shows that this hub protruded 3 inches beyond the fender of the truck and contained a small meter, which registered the trip mileage of the truck. Just one and a half inches of this hub cap struck the fender, causing it to tear out the two bolts that held it to the end of the wooden running board. It appears that this end of the board was in a decayed condition, and as the blow pulled the bolts in the direction of the grain of the wood, through the end of the running board, about 1 inch, we are satisfied that it was not an extraordinary blow that caused the dislodgment of the holts. The truck driver testified that the blow on the huh cap caused him to lose control of the steering wheel of the truck temporarily, with the result that it crashed into the right rear side of the parked Chevrolet.

The truck driver further testifies that he did not hear the driver of the StearnsKnight car sound his horn, as a signal that he was about to pass him. However, the preponderance of the evidence is to the effect that such signal was given several times and that the driver of the truck pulled- to the right sufficiently to permit the Stearns-Knight car to pass on his left. While it is true the truck driver testifies that he pursued a straight course, and that it was only the negligence of the driver of the Stearns-Knight car pulling to the right prematurely that caused the contact between the truck and the touring car, and that this was done so suddenly that he did not have an opportunity of avoiding the accident, the preponderance of the evidence and the physical facts convince us that it was caused by the negligence of both drivers.

In spite of the narrowness of the road and the fact that, when the cars would pass each other, they would he in very close proximity, both drivers carelessly and negligently attempted to pass the parked Chevrolet car simultaneously. They both saw or should have seen the Chevrolet car. The Leidenheimer car was being driven at a rate of speed of 25 miles an hour, while attempting to go around the truck. The truck was going at about 15 miles per hour and was heavily loaded, the weight of truck and load totaling 9,000 pounds. The driver of the truck testifies that he proceeded straight on his course, without slackening his speed. The evidence shows that he knew of the approach of the Stearns-Knight car, which had properly signaled him on its approach, yet he made no effort to slacken his speed, but attempted to pursue a course which would permit the Stearns-Knight car to pass the truck at the same time the truck was about to pass the parked Chevrolet car. The protruding hub cap was on the side where the Stearns-Knight car was passing and the truck driver knew of this unusual protruding part. The evidence convinces us that the Stearns-Knight car was as close to the neutral ground curb on its left side as it could possibly go. We find that the Stearns-Knight car did not suddenly pull in front of the truck after the front part of it had passed the truck, because the road was clear in front of the Stearns-Knight car and there would have been no reason to suddenly swerve to the right. However, the driver of defendant’s truck admits that the Chevrolet car was just 5 feet to the right in front of him. The path of the truck was partially obstructed by the parked car on the right, and by just pulling slightly to its left, would have caused the truck hub to strike the fender of the Stearns-Knight ear.

We, therefore, have reached the conclusion that defendant’s driver was guilty of carelessness and negligence in attempting to drive a heavy 9,000 pound loaded truck at 15 miles per hour in such close proximity to the cars in question, especially since he knew of the unusual protruding hub on the truck. The driver of the truck should have proceeded on the left side of the road when approaching the Chevrolet car and not yielded the right of way to the StearnsKnight car. Once he yielded the right of way, if there was not room enough for two cars to pass the parked Chevrolet simultaneously, he should have slackened his speed, or stopped the truck.

As to the quantum of damages, the evidence shows that this heavy loaded truck struck the Chevrolet car with great force, causing considerable damage, and that it was repaired by the Chevrolet agency. We find that the repairs were necessary and that the charges therefor were reasonable.

It is therefore ordered, adjudged, and. decreed that the original decree of this court, reversing the judgment of the trial court be and the same is hereby recalled and set aside, and it is now ordered, adjudged, and decreed that the judgment of the trial court be and the same is hereby affirmed, at the cost of appellant.


text:
    No. 11,765
    Orleans
    GIBBS v. ILLINOIS CENTRAL R. R. CO.
    (May 27, 1929. Opinion and Decree.)
    (June 24, 1929. Rehearing Refused.)
    (December 17, 1929. Opinion and Decree of Supreme Court on Writ of Certiorari and Review.)
    Paul A. Sompayrac and A. T. Higgins, of New Orleans, attorneys for plaintiff, appellant.
    Lemle, Moreno & Lemle, of New Orleans, and R. V. Fletcher, of Chicago, 111., and Chas. N. Burch, of Memphis, Tenn., and Hunter C. Leake, of New Orleans, attorneys for defendant, appellee.
   JANVIER, J.

Petitioner alleges that Steve Gibbs was walking along the right of way of defendant company at a point near Shrewsbury, in Jefferson Parish, Louisiana, when he was struck from the rear by a train of defendant, the crew of which had given no warning of its approach.

She also alleges that she and Gibbs had, prior to moving to Louisiana, lived together in Mississippi as husband and wife. She claims that Gibbs was, as a result of this living together, her common law husband and that, since that relationship is recognized under the laws of Mississippi, she can recover in Louisiana for his death.

To this petition defendant filed an exception of no cause of action, based on two contentions, either of which, if upheld, would effect a dismissal of this suit.

Defendant’s first contention is that a common law wife cannot, under Article 2315 of our Code, maintain an action for the death of her alleged common law husband.

The second contention is that, under the jurisprudence of this state, one who, in the full possession of his faculties, walks along a railroad track and allows himself to be run over by a train, is guilty of negligence, which, since it continues down to the very moment of the accident, prevents the application of the doctrine of the last clear chance and prevents recovery.

Since the second contention involves the question of the existence vel non of a cause of action in anyone, we deem it proper to first consider this contention, because, if no cause of action exists at all and not even a legitimate wife or legitimate children, if there were such, could recover, no good purpose can be served by considering and discussing the question of whether a common law wife can recover where a cause of action exists.

Under many Louisiana decisions the negligence of the deceased in walking upon the track continued to the very moment of the accident, and thus prevented the application of the doctrine of the last clear chance. Chargois vs. M. L. & T. R. R. & S. S. Co., 148 La. 637, 87 So. 499; Castile vs. O’Keefe, 138 La. 479, 70 So. 481; Harrison vs. La. Western R. Co., 132 La. 761, 61 So. 782; White vs. I. C. R. Co., 114 La. 825, 38 So. 574.

In the case of Castile vs. O’Keefe, the accident happened on the same tracks and in about the same place in which occurred the accident which we are now considering. In that case the court said:

“The freight train was making a great deal of noise, which probably prevented Moore from hearing the approach -of the passenger train which was coming up behind him. But nothing prevented him from looking back over the mile or more of straight track over which said train was advancing. If Moore had looked, he would have seen the train, and stepped off the track. He was in the prime of life, and in full possession of all his perceptive faculties. He voluntarily placed himself in a position of danger when he could have walked in safety along the side of the track.”

Plaintiff argues that, in all the cases cited, the deceased was walking on the track, whereas here he was walking along the right of way. We are unable to see any distinction. Of course, if a person walking along the right of way a sufficient distance away from the track to be in absolute safety is struck by some article extending or protruding from the train, the situation would unquestionably be different. But if the person is walking either on, or so close to the track as to be struck by the train itself, we cannot see why the cases cited do not apply.

Being of the view that no cause of action exists in anyone, we see no need to consider whether a common law wife would have had a right of action if one did exist.

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


author: WE'STERFIELD, J.

text:
    No. 11,896
    Orleans
    OTIS ELEVATOR CO. v. SOUTHERN HAT CO.
    (November 18, 1929. Opinion and Decree.)
    E. E. Willis and Merrick & Schwarz, of New Orleans, attorneys for plaintiff, appellee.
    Milling, Godchaux, Saal & Milling, of New Orleans, attorneys for defendant, appellant.
   WE'STERFIELD, J.

The Otis Elevator Company, plaintiff herein, made certain repairs to an elevator owned or operated by the defendant, Southern Hat Company. The defendant refused or failed to pay plaintiff’s bill for the repairs and plaintiff placed its claim in the hands of its attorney for collection. The sum charged by plaintiff for its work was $165.69, but for some reason, its attorney in demanding payment asked only for $65, which was promptly paid by the defendant", who obtained a receipt in full from plaintiff’s counsel.

Defendant now relies upon that receipt as a full discharge of its obligation. This defense cannot prevail. In the case of Bass v. Balph, 5 La. Ann. 235, the Court said:

“The consideration of a receipt may be explained by testimony.”

In the case of Fletcher vs. Fletcher, 5 La. Ann. 406, the Court said:

“The instrument stands before us as a private writing, and we have always held that a receipt for money paid was not conclusive between the parties, but open to explanation by evidence.”

In the case of Borden vs. Hope, 21 La. Ann. 581, the Court said:

“A receipt given for money paid is not conclusive between the parties, and may be contradicted or explained by evidence sjs # ijs »

See also Succession of Croizet, 12 La. Ann. 401; and 22 C. J. page 1135, par. 1520.

Nor can the action of plaintiff’s counsel in accepting the $65 be construed as a compromise. C. C. 3071; Francois vs. Maison Blanche Realty Co., 134 La. 219, 63 So. 880, Ann. Cas. 1916-B, 451; Linnan vs. Linnan, 131 La. 535, 59 So. 981.

It is in evidence and undisputed that the actual cost of the labor and material required for the repair of the defendant’s elevator was $115. We are, therefore, of the opinion that the charge of $165.69 does not allow plaintiff an unusual profit and is reasonable.

The trial court awarded plaintiff judgment for the sum of $100.69, the balance due, and we see no reason to disturb its finding.

For the reasons assigned the judgment appealed from is affirmed.


text:
    No. 3604
    Second Circuit
    ANDERSON ET AL. v. BROCK BROS. & COLLINS
    (November 18, 1929. Opinion and Decree.)

      Kennon & Kitchen, of Minden, attorneys for plaintiffs, appellees.
    Dimick & Hamilton, of Shreveport, attorneys for defendants, appellants.
   WEBB, J.

The plaintiffs, John Anderson and Nora Morris, joined in this action against defendant to recover damages alleged to have been sustained by them individually as the result of a collision between an automobile, owned and being driven by Anderson, in which Nora Morris was riding as a guest of Anderson, with a motor truck, owned and being operated by defendant.

The collision occurred after dark on the public highway at a point adjacent to a wayside gasoline station. The truck, with a trailer attached, was loaded with iron pipe which extended beyond the trailer, had been driven from the highway into the gasoline station, where it was stopped with the trailer partially on the highway, extending at an angle in the direction from which plaintiffs approached, and the end of the pipe came in contact with the front or frame enclosing the windshield and supporting the top of plaintiff’s car, knocking the frame loose and breaking the windshield, and extending into the car, striking both Anderson and Nora Morris.

The damages claimed by Anderson were for injury to the car, itemized at $250, and for personal injuries, loss of time and physician’s fees incurred, fixed at $350, and by Nora Morris for personal injuries, loss of time and physician’s fees, fixed at $350.

Plaintiffs alleged that the defendant was guilty of negligence in that it had obstructed the highway and had failed to place a light on the end of the load, in violation of the statute (Act No. 296 of 1928) regulating traffic on the highways, and further, that as the car driven by Anderson approached and was passing to the rear of the. truck, the truck had been suddenly and negligently backed into the Anderson car, which plaintiffs alleged was being operated with care.

The defense was in effect a general denial, and on trial judgment being rendered in favor of Anderson in the sum of $200, and in favor of Nora Morris in the sum of $100, defendant appealed, and plaintiffs have answered the appeal praying that the judgment be amended and the amount increased.

With the exception of the allegation that the truck had been backed into collision with the Anderson car, the other charges of negligence were based upon the provisions of Sec. 26(a) and Sec. 39(a) of Act No. 296 of 1928, which provide that no vehicle shall be parked or left standing on the highway in such manner as that there shall not be left a space of at least fifteen feet for the passage of other vehicles, and that where the load on any vehicle shall extend more than four feet beyond the rear, that a light shall be displayed at the end of the load, and while there is considerable evidence introduced relative to the charges, we do not find that it was shown that the load of pipe extended more than four feet beyond the rear of the bed of the trailer, or that there was not an unobstructed space of fifteen feet on the highway to the rear of the truck. Besides, the evidence shows that the gasoline station was lighted with electric lights, which enabled anyone approaching the station to see any obstruction on the highway at that point, and Anderson stated that he had approached the place on the highway where the collision occurred at a very moderate rate of speed and that, as he was in the act of driving between the truck, which was to his left, and a truck and some lumber, which obstructed the highway to his right, the truck to the left had been suddenly backed into collision with his car, and the only question to be considered is whether or not the defendant negligently backed the truck into the Anderson car, and if so, whether its action was the proximate cause of the collision.

Appellant urges that Anderson was not paying any attention and that he drove his car into the trailer, and that the truck was not backed into collision with the Anderson car, principally devoting their argument to the question of fact as to whether or not the truck was moved backward, as stated by Anderson.

There were four .persons (including plaintiffs) in the Anderson car who testified that the truck was moved backward, and their version was supported by three disinterested witnesses, and, while there were as many witnesses called by defendants, whose version was to the contrary, they were interested, parties or employees of defendant, and we are informed that the trial court accepted the version of the witnesses called by plaintiffs and found that the truck had been moved backward into collision with the Anderson car, and we cannot say that the finding was erroneous. In fact, it is very apparent that the witnesses called by defendant did not have any knowledge of the movements of the Anderson car prior to the collision, and that, with the exception of .the driver of the truck, none of them were in as favorable situation to have had knowledge of whether the truck was moved backward as the witnesses called by plaintiffs.

The evidence shows that Anderson was driving at a moderate rate of speed and there was not anything to indicate that it was hazardous for him to drive to the rear and pass the truck, and we are "of the opinion that the movement of the truck backward was the proximate cause of the collision.

Appellants urge that the judgment should be increased. But, while the amount allowed is small, the evidence did not show that either of the plaintiffs sustained any permanent injury or disfigurement, and it is also very indefinite as to the pain suffered, which is principally indicated by the fact that they were attended by a physician, and a like uncertainty appears as to the time and inconvenience sustained by the parties as the result of the accident; and, while the Anderson car was considerably damaged, the evidence shows that the loss was not so great, and we cannot say that the awards were inadequate.

The judgment appealed from is affirmed.