text:
    No. 3075
    Second Circuit
    LOUISIANA TITLE & MORTGAGE COMPANY, INC., v. DAIGRE
    (February 3, 1928. Opinion and Decree.)

      (Syllabus by the Editor)
    1. Louisiana Digest — Offenses and Quasi Offenses — Par. 1, 6; Prescription— Par. 109, 110.
    Tbe unlawful taking of maps is a quasi offense governed by tbe prescription of one year.
    Appeal from the Ninth Judicial District Court of Louisiana, Parish of Rapides. Hon. Leven L. Hooe, Judge.
    Action by Louisiana Title & Mortgage Company, Inc., against H. J. Daigre.
    There was judgment for defendant and plaintiff appealed.
    Judgment granting demand of plaintiff affirmed but reversed as to reconventional demand of defendant on plea of prescription filed by plaintiff.
    Bruton T. Dawkins, W. C. Roberts, of Alexandria, attorneys for plaintiff, appellant.
    W. J. Broussard, of Alexandria, attorney for defendant, appellee.
   ODOM, J.

Plaintiff brought suit in the District Court against defendant to recover $66.55, due upon open account. Defendant answered, admitting the indebtedness, but reconvened for $195.00, and, as a cause of action against plaintiff, alleged that:

“On or about January or February, 1923, the said L. D. Calvit, acting in his capacity as an officer of said company, took from your respondent maps and plats to the amount of ninety-five ($95.00) dollars, and on or about the first of September, 1924, the said L. D. Calvit, again acting in his capacity as the duly authorized officer of the said company, took from your respondent about three hundred (300) plats, of which, two hundred and fifty (250) were returned about a year later, without any payment whatsoever, which petitioner avers the sum of one hundred ($100.00) dollars is due him for the use of said plats ánd for the loss of those that have never been returned, all of which will be shown on trial hereof.”

Paragraph 3:

“Your petitioner further avers that the sum of ninety-five ($95.00) dollars is due him from January or February, 1923, for maps and plats as shown by the attached statement, and the sum of one hundred ($100.00) dollars for plat book of R. W. Bringhurst, Sr., and plats which have never been returned, amounting to the sum of one hundred ($100.00) dollars, all of which is shown by statement attached hereto and made a part of this petition.”

In paragraph 5 of defendant’s petition making reconventional demand, it is alleged that the plaintiff—

“bought out the Hetherwick Title Company, Inc., and that the Louisiana Title & Mortgage Company, Inc., has in their possession the maps and plats stated on the attached statement, and although they have repeatedly promised to return same to your petitioner they have refused and have neglected and still have the said maps and plats in their possession, all of which will be shown on trial hereof.”

Defendant, plaintiff in reconvention, prays for judgment against plaintiff for $195.00, less the amount which he is due plaintiff.

Upon trial in the lower court, there was judgment for plaintiff as prayed for, and judgment for defendant, plaintiff in reconvention, over against plaintiff in suit for $195.00 as prayed for by him; plaintiff’s judgment to offset that of reeonvenor to the amount thereof, and plaintiff was ordered to pay all costs.

Plaintiff, defendant in reconvention, has appealed.

Appellant has filed in this court a plea of prescription of one year in bar of re-convenor’s right of recovery.

This plea is well founded and must be sustained.

Reconvenor’s claim is not based upon any agreement or conventional contract.

He alleges that in January or February, 1923, the plaintiff company took from respondent—

“maps and plats to the amount of ninety-five ($95.00) dollars” and that—
“about the first of September, 1924, the said L. D. Calvit, again acting in his capacity as the duly authorized officer of the said company, took from your respondent” some plats “without any payment whatsoever”.

The basis of ‘the cause of action set forth by reconvenor is the alleged unlawful taking of his maps by plaintiff, and he prays for judgment for the value of the maps.

He alleges that plaintiff committed a wrong, an offense, a tort, and his demand is, in substance and effect, for damages for the taking of the maps and plats, the measure pf the damage being the value thereof.

Under Article 3536 of the Civil Code, such actions prescribe in one year, and under Article 3537 prescription runs from the datje on which the maps and plats were taken.

According to the reconvenor’s allegations, this was in 1923 and 1924. His action was not brought until March 22, 1927, more than two years after the last plat was taken. The case of Burch vs. Willis, 21 La. Ann. 492, was one in which plaintiff sued defendant for the value of cotton taken and appropriated to his own use, and the court held, that the prescription of one year applied.

In Millspaugh vs. City of New Orleans, 20 Ann. 323, plaintiff sued the city for ballast taken and used by it in paving streets, and a plea of prescription of one year was sustained.

In the case of Wood vs. Harispe, 26 La. Ann. 514, plaintiff sued defendant for the value of a lot of cotton and the court said:

“If Harispe is responsible to plaintiff it is because his agent took possession of his property and shipped it to Cuba. * * * If this possession was a wrongful one, as it is alleged to be, the property came into his hands by reason of an offense which he, through his agent, had committed. His obligation toward the plaintiff would rest upon a claim for damages caused by tortious conduct, and is the result of an offense which is prescribed by one year.”

See DeLizardi vs. N. O. Canal & Banking Co., 25 La. Ann. 414.

In a mbre recent case, that of Reynolds vs. Reiss, 145 La. 155, the court held, to quote the syllabus by the court:

“One whose property is unlawfully taken without asserting any claim to its return may demand as damages the value of his property, together with interest thereon from the date of the alleged conversion.”

And held that such claim is barred by the prescription of one year.

Reconvenor in the instant case is not demanding a return of the property which lie alleges plaintiff appropriated, but claims tbe value thereof.

In the case of Martin vs. The Texas Company, 150 La. 556, 90 So. 922, the court drew a distinction between cases where the action is for the property itself and those where the action is for its value, and held that the latter are suits for damages arising ex delicto and are barred by one year.

In the case of Liles vs. Barnhart, 152 La. 419, 93 So. 499, the court held that an action for the value of oil taken from the land of another was barred by one year.

In the case of Thomas vs. Whittington, 127 La. 551, 53 So. 860, the court said:

“Plaintiff urges a liability without a convention to give it being.”

And sustained a plea of prescription of one year.

That is what reconvenor is doing in the instant case. “He urges a liability without a convention to give it being.” His action is based upon a quasi' offense, and is barred by one year.

The plea of prescription was not filed in the lower court. If it had been, we have no doubt it would have been sustained.

Plaintiff’s claim' against defendant for $66.55 is admitted in answer.

It is therefore ordered and decreed that the judgment appealed from be affirmed insofar as it grants plaintiff judgment against defendant; and further ordered and decreed that the plea of prescription of one year filed in this court by plaintiff against defendant’s reconventional demand be sustained and that said reconventional demand be dismissed; and that accordingly the judgment on the reconventional demand be avoided and reversed. Defendant to pay all costs.


source: Caselaw Access Project

author: ODOM, J.

license: Public Domain

text:
    No. 3168
    Second Circuit
    BAILEY v. GIFFORD SAND & GRAVEL COMPANY
    (February 3, 1928. Opinion and Decree.)

      (Syllabus Toy the Editor)
    1. Louisiana Digest — Master and Servant —Par. 159.
    Injured employee suing for compensation under Section 8, Subsection 1 (b), of the Employers’ Liability Act No. 20 of 1914, as amended by Act 216 of 1924, is entitled to sixty-five per cent of his wages during disability not beyond four hundred weeks where the evidence shows that he was totally disabled to do work of reasonable character as a result of an injury to his skull and brain, necessitating a removal of a portion of the skull and brain, causing nervousness and partial paralysis of the right side.
    2. Louisiana Digest — Master and Servant —Par. 159, 159 (a), 160 (j).
    Where the evidence of physicians, in a suit for compensation, under the Employers’ Liability Act No. 20 of 1914, Section 8, Subsection 1 (b), as amended by Act No. 216 of 1924, is such that whether the disability is temporary or permanent cannot be definitely determined at the time of the trial, judgment should be given for sixty-five per cent of the wages during disability not beyond four hundred weeks.
    (Editor’s note — The recent amendment of Act 20 of 1914 is Act 85 of 1926.)

      Appeal from the Ninth. Judicial District Court of Louisiana, Parish of Rapides. Hon. Leven L. Hooe, Judge.
    Action by Harvey C. Bailey against Gifford Sand & Gravel Company.
    There was judgment for defendant and plaintiff appealed.
    Judgment amended.
    Huey P. Long, George T. McSween, of Shreveport, attorneys for plaintiff, appellant.
    Thornton, Gist &■ Richey, of Alexandria; Spearing, Miller & Mabry, of New Orleans, attorneys for defendant, appellee.
   ODOM, J.

This suit is for compensation under Act No. 20 of 1914 and amendments, not including Act No. 85 of 1926.

Plaintiff, while at work for defendant, fell a distance of some six or eight feet, striking his head against a piece of iron which passed through the left ear and penetrated the skull in front óf and above the ear.

The brain itself was punctured and a small portion of the brain tissue escaped through the opening. Surgeons removed fragments of the skull and reunited the tissues. There was left in the skull a hole about the size of a fifty-cent piece. The outer skin has healed over the wound, hut the hole in the skull is still there.

He was injured on December 13, 1925, and was carried to a sanitarium where he remained fifty-three days. During a good portion of the time he was unconscious.

He brought this suit on May 24, 1926, alleging permanent total disability to do work of a reasonable character, and he asks full compensation for four hundred weeks.

TJhe defense is that he has fully recovered.

The lower court allowed full compensation for a period of twenty-seven weeks.

Plaintiff appealed.

OPINION

Admittedly plaintiff’s injury arose out of and in the course of his employment.

The only question presented, therefore, is whether the disability resulting from the injury is partial or total, and, in either event, whether’ it is temporary or permanent.

A reading of all the testimony has convinced us that at the time of the trial, on January 18th, 1926, about six months after the injury, plaintiff was unable to do manual labor of a reasonable character, such as he was accustomed and capacitated to do, and that in all probability his disability is permanent. At any rate, the court cannot, with any degree of certainty, fix the period over which his disability will continue.

But for the earnest argument of counsel for defendant and the elaborate brief filed by them, we would be disposed to pass the case without an extended discussion of the facts. However, we shall go into detail as to our reasons for the conclusion which we have reached.

Plaintiff is a carpenter by trade and was employed by defendant at a daily wage of $3.50, working regularly. He is thirty-one years old and up to the date of the injury was healthy and strong. He had good capacity, both mental and physical, for the work he followed. No defect, mental or physical, had developed.

On December 13th, 1925, he was working on a pipe-line and fell a distance of some six or eight feet, and struck; his head upon a piece of iron which penetrated his skull. Dr. F. M. Letts, a physician and surgeon, who attended him immediately, thus decribes the wound and his treatment:

“This wound was. a puncture wound through the skull, making an irregular, almost round hole, fi;om which three or four fragments of bone were removed; the size of this opening was approximately the size or a little less than the size of a half dollar. The covering of the brain had an ‘L’ shaped tear, from which a small amount of his brain substance had escaped; all these fragments were taken out and the edges of the brain covering brought together, on which was placed a small sterile pact saturated with mercurochrome, the torn area in the bone covering closed with the exception of the small area of skin which had previously ■been in size about an inch and a half upward. The patient was put to bed. He was admitted on December 13th and allowed to go to his home about February 4th.”

Dr. Letts’ attention was called to the fact that other physicians had testified that the wound was in the rolando area of the brain and that as a result the left motor cortex was damaged, and was asked if in his opinion there was injury to such portion of the brain, and he said the injury was not over the rolando area but was from one and a half to two inches from that area, and that the injury was not over the motor area of the brain.

The location of the injury to the brain is highly important, due to the fact that plaintiff contends that his right arm and right leg are partially paralyzed, which would follow as a result of an injury to the motor area of the brain on the left side. We shall revert to this point later in this opinion.

Now, as to plaintiff’s condition at the time of the trial. He testified that:

“I have been awfully weak and I can hardly stand up. My mind is a little off and I can’t remember much. * * * When I get warm I have headaches and my head hurts on the side pretty nearly all the time. * * * I can hardly sleep at all. Pretty good strength in the left hand but not on the right.”

And he said that applied to the whole right side, his leg, arm and shoulder; that his right shoulder is slightly drooped down; that he was not able to work, and that about all he had done was to carry in stovewood for his wife.

His wife testified that he remained unconscious for five weeks after the accident, and asked as to his present condition she said:

“Well, he is just nervous, and he cannot hold his temper, he just can’t hold his temper.”

She said he does not sleep well at night.

Mr. J. F. Smith testified that he was well acquainted with plaintiff, who had worked for him; that plaintiff was one of his leading men and—

“he was the best man that I had, he was good in his head work. * * * I could risk him out in dangerous places.”

And he was asked:

“Would you be willing to risk him now on overhead work?”

And he answered:

“No, sir, and no other job.”

Plaintiff admitted, on cross-examination, that since he was discharged from the hospital he had made no effort to work, giving as his reason that he was not able to work due to his nervousness and the weakened condition of his body. He admitted, on cross-examination, that he had made repeated trips from his home to Lecompte, a distance of about nine miles, and that he walked until he could catch a ride. Whether he ever walked the entire distance or not is not disclosed by the record but we infer that he probably had.

Now, as to his condition as viewed by the physicians.

Defendant called Dr. F. M. Letts of Lecompte and Dr. R. O. Simmons of Alexandria.

Dr. Letts treated him and saw him last about May 9th, a month before the trial. He said when he discharged him his muscles were soft and he was not in condition to do hard work and he did not want him to try to work' for several months after he was discharged in February; that he later advised him to do light work, and he was asked:

“Had he started to perform light work when you told him that he could do light work; could he do hard manual labor now?”

And he said:

“Most probably he would be in a position to do quite a bit of hard manual labor at this time, and more as time rolls by.”

His testimony was taken on June 18th, six months after the date of the injury. He said his reflexes were normal, that there was no shrinking of the parts, and that mentally he was sound. However, his examination dated back to February 4th when the patient was discharged from the hospital.

Further on in his testimony he was again asked if plaintiff should be able to work, and he said:

“By- this time I think he should be able to do a fair amount of labor.”

After saying that on May 15th plaintiff should be able to do light work, he was asked what he meant by light work, and he said:

“Well, anything where there was not very much manual labor connected with it.’’

Dr. Simmons, the other physician called by defendant, was asked if plaintiff should be able to work after five months, and said:

“I think so, if it is light work. * * * I think he is able to do light work. I don’t think he is able to do ordinary manual labor because his muscles are very soft, and from what I can learn he has not attempted to do any work.”

He said that in considering this case, one must take into consideration the man’s “mental condition, his fear of having a permanent injury, his fear of never being able to work again or to perform his duties as he had in the past; all these things possibly interfere with the man’s sleep; in other words, a man can think he has a condition and he may not have it.”

And he was asked:

“That would be nearly as bad as having the condition, would it not, doctor?”

Answer:

“Well, it would be pretty bad, I will admit.”

Plaintiff could, we think, well afford to rest his case upon the -testimony of these two physicians.

If we adopt defendant’s theory of plaintiff’s condition as related by Dr. Letts, his compensation could not be cut off at the end of twenty-seven weeks, because Dr. Letts says that if plaintiff had done what he suggested, that is, undertake light work,

“most probably he would be in position to do quite a bit of hard manual work at this time, and more as time rolls by-”

And says:

“By this time (the date of the trial) I think he should be able to do a fair amount of labor.”

According to this, plaintiff had not recovered, at the time of the trial, six months after the injury.

Dr. Simmons seems to think that plaintiff’s mental condition has something to do with his physical condition; and that is probably true, but we cannot overlook the fact that it was the injury which brought on the mental condition and was, therefore, to say the least, the indirect cause of the disability.

Referring now to the testimony of Dr. Cassity, Dr. Kerlin and Dr. Sanderson, all of Shreveport, called by plaintiff, we find them unanimous in the opinion that plaintiff is incapacitated to do work of a reasonable character. They examined him about May 13th, 1926.

Dr. Cassity said he found a hole in the bone above the left ear about the size of a fifty-cent piece, the muscles of the neck and right side weak, pulse above normal, right arm and right leg about twenty five per cent weaker than the left. In addition to these, he found a number of subjective symptoms such as headaches, dizziness, weakness and pains in the region of the injury. He stated that he had to rely upon the statement of plaintiff as to the headaches, dizziness, etc., yet he was reasonably sure that he was so afflicted, because such conditions usually follow an injury of this kind. He says plaintiff has post-traumatic neurosis. He says the injury—

“is rather along in the portion of the brain called the fissure of Rolando, and in that region most of the centers of motion, the arms and the muscles of the body and the legs, are situated, and injuries in that region cause disability from decreased motion due to paralysis of the various parts.”

He says:

“I find that one whole side of his body is markedly weaker than the other side. That shows that there has been either hemorrhage in that brain or traumatization of the brain tissues fairly wide spread.”

He says such conditions cause concussion of the brain.

“We know the prominent symptoms of concussion of the brain are headache and dizziness; therefore we reason that with actual proof of the fact he has partial paralysis of one side of the body, his story that he has headaches and dizziness is a- very reasonable symptom for him to have.”

He was asked:

“Have you any doubt as to whether this man is a faker?
“A. No, not in my conscience at all.
“Q. You don’t think he is a faker, do you?
“A. No, sir, I don’t.”

Dr. Sanderson described the wound and he found the man’s general condition fair as to color and general appearance—

“but he appears to be very nervous. * * * You can feel a pulsation over this softened area. * * * His hearing is very defective in the left ear. * * * There is apparent weakness in the right arm and leg. He complains of nervousness, headaches, dizziness and symptoms of a nervous nature. * * * Assuming the history of the injury is true and this opening in the skull was due to the injury or an operation following the injury, it is reasonable to suppose, and naturally follows that there was injury to the cortex of the brain in that region.”

Asked if the plainitff, when he examined him on May 15th, was able to resume normal labor such as he had been doing, he said he was not and expressed the opinion that his disability was permanent. He said he thought all such patients exaggerated their symptoms, but said:

“This man impressed me as not being consciously exaggerating.”

Dr. Kerlin diagnosed his condition as being:

“Post-traumatic neurosis, injury to the left motor cortex of the brain.”

He says he is partially paralyzed in the right side, and said:

“The man’s mentality is actually impaired.”

Asked if he could do manual labor when he examined him, he said:

“He was unable to do any work — absolutely incapacitated.”

Asked if, in his opinion, he would ever be able to labor, he said:

“I don’t believe he will. Of course, I would not be dogmatic and say that man would never be able, but I say the chances are that man will be impaired for years from doing any hard physical or mental labor.”

He said he would not be able to hold work “from both physical and mental standpoint”.

Our findings, therefore, are that the plaintiff, at the time of the trial, was totally disabled to do work of a reasonable character. Whether that disability is temporary or permanent, cannot be definitely determined at this time. The opinion of some of the physicians is that plaintiff is permanently incapacitated. Giving the employee the benefit of the doubt and of a liberal construction of the statute and the testimony, we think his compensation should be fixed under paragraph (b) of subsection 1 of section 8 of Act No. 20 of 1914 as finally amended by Act No. 216 of 1924, which is sixty-five per cent of wages during disability, not beyond four hundred weeks.

Por the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from be amended so as to read as follows:

It is ordered, adjudged and decreed that plaintiff, Harvey C. Bailey, have and recover against defendant, Gifford Sand & Gravel Company, compensation at the rate of fifteen and 92-100 dollars per week as for total disability,. during disability, for a period not exceeding four hundred weeks, dating from December 20th, 1925, subject to a credit of three hundred and thirty-four and 32:100 dollars, or twenty-one weeks’ compensation already paid; each payment to bear interest at five per cent from the date due until paid; defendant to pay all costs.

It is further ordered and decreed that the contract between plaintiff and his attorneys, attached to and made a part of the petition, be recognized and enforced.


author: WEBB, J.

text:
    No. 2358
    Second Circuit
    SHREVEPORT NATATORIUM & AMUSEMENT COMPANY, INC., v. WATERMAN
    (Feb. 3, 1928. Opinion and Decree.)

      (Syllabus by the Editor)
    1. Louisiana Digest — Landlord and Tenant — -.Par. 12, 13, 44.
    A stipulation in a lease contract providing that lease becomes void on’non-payment of rent when due can be waived by the parties, making a subsequent agreement on due date of rent installment.

      2. Louisiana Digest — Landlord and Tenant — Par. 91, 92; Pleading — Par. 125, 126.
    Where evidence, unobjected to, establishes that an agreement of lease was set aside by substituting a verbal agreement in its stead for several years beyond the expiration date of the written lease, the fact that the plaintiff did not allege the full term or period of the lease cannot affect his right to recover ' rentals due.
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo. Hon. J. H. Stephens, Judge.
    Action by Shreveport Natatorium & Amusement Company, Inc., against A. C. Waterman.
    There was judgment for ¡plaintiff and defendant appealed.
    Judgment affirmed.
    Wilkinson, Lewis & Wilkinson, Shreveport, attorneys for plaintiff, appellee.
    Dickson & Denny, Shreveport, attorneys for defendant, appellant.
   WEBB, J.

This action was instituted by plaintiff to recover judgment against defendant in the sum of fourteen hundred thirty-seven and 50/100 dollars, with interest from September 10th, 1924, alleged to be the balance due under a verbal contract under which plaintiff leased to defendant certain property for the year 1924 at the price of fifty-seven hundred fifty dollars, payable in four installment of fourteen hundred thirty-seven and 50/100 dollars each, on the 10th of June, • July, August and September, 1924.

Plaintiff, under appropriate allegations, prayed for and obtained the issuance of a writ of provisional seizure under which certain movable property was seized, and it prayed for judgment in the sum claimed, with interest, and for recognition of a lessor’s privilege on the property seized.

Defendant filed a motion to dissolve the writ of provisional seizure, which does not appear to have been passed upon, and then filed an answer in which he denied the allegations of ¡plaintiff’s petition and alleged that he had acquired by purchase at bankrupt sale a written lease covering the property, which lease was still in force and effect as appeared by copy of same, as well as the proces verbal of the sale, attached to the answer, and prayed that plaintiff’s demands be rejected, and, in the alternative, he alleged that there had been some negotiations for another lease on the property and that he was allowed to take possession of the property pending consummation of the negotiations to convert it to a written lease, and further in the alternative, defendant alleged that should it be held that there was a verbal lease as alleged by plaintiff for the year 1924, the understanding of the parties was that such lease was to be reduced to writing and to continue for a period of years including and beyond 1924, and that in view of the agreement'plaintiff had purchased" supplies, etc., and that he would have made a large profit on the lease, for which amount, together with the sum expended for supplies, he prayed for judgment against plaintiff, reserving his right to claim damages sustained by the seizure.

The defendant appeals from a judgment in favor of the plaintiff for the amount sued for, with interest, and recognition of a ¡privilege on the property seized.

The defenses set up in the answer are rather involved, and it appears that in the trial court defendant took the position that there was not any lease and hence plaintiff could not claim a privilege or recover judgment, and also contended that there was a written lease, and plaintiff having alleged upon a verbal lease. be could not recover, and, further, that the written lease became ipso facto null and void on the failure of defendant to pay any one of the installments of the price agreed upon for the lease, and that plaintiff could not sue upon the contract which had ceased to exist.

While from the answer it appears that defendant waived his main defense by claiming judgment in reconvention against [plaintiff under the second alternative defense, the demand for damages for the breach of a contract necessarily being an affirmation that the contract was made (Accessory Transit Co. vs. McCerren, 13 La. Ann. 214), however, there was not any objections made to the introduction of the evidence, which, in some manner, tended to support all of the defenses, and the cause may be said to have been tried without regard to the pleadings, and the only difference of the parties as to the facts established is that the plaintiff contends that the evidence shows that the written lease had been abrogated by a subsequent verbal lease, while defendant contends that the written lease had not been abrogated but had been modified by a subsequent verbal agreement of the parties as to the amount of the rentals and the periods of payment, and defendant contends that the judgment should be reversed on the following grounds: „

First: That, defendant holding under a written contract which had been. modified as to the amount and period of payments (which amount and period of payments, as modified, is the same as alleged by plaintiff,) plaintiff having alleged on a verbal contract cannot recover.

Second: That the written contract, under which the property was leased for a term of years, including the year 1924, at an annual rental of seven thousand dollars, ¡payable in four installments of seventeen hundred fifty dollars each, maturing on the first day of June, July, August and September, contained a provision that, the “failure to pay any installment when due will render this, lease null and void without the necessity of any demand or putting in default, and all improvements placed upon the said, property by the party of the second part (lessee) shall ipso facto become the property of the party of the first part” (lessor), and it is therefore contended that the- modification of the written lease having provided only for the reduction of the annual rental and period for the payment of the same, that the lease became null and void on failure of the lessee to pay the installment due on September 10th as modified by the verbal agreement of the parties, and that the lessor could not demand the payment of such installment but -could claim such.improvements as the lessee may have placed upon the property.

While we are of the opinion that a contract which, as to the consideration, must be established by parol evidence, cannot be said to be a written contract, but, if so, we do not know of any law which would prohibit judgment from being rendered in favor of one who claims a right to recover under a verbal contract, when the evidence establishes that the contract was in writing, and continuing to assume that the contract under which defendant held the property was a written contract modified by the verbal agreement of the parties, we do not think that the provisions of the contract relative to the contract becoming null and void on the failure to pay any one of the installments of the rent, was such a stipulation as could not be waived by the parties, and the record establishing that on September 15th, 1924, plaintiff demanded payment of the installment due and that defendant did not claim the benefit of the provision but agreed to pay (provided plaintiff would put in writing an agreement claimed to have been made as a substitute for the written contract, we think that the defendant must be held to have waived the benefit of the provision to claim that the contract ceased to exist on his failure to pay the installment qf rent falling due on September 10th whether or not the evidence established there was any subsequent agreement to substitute another contract, and the court was relieved of construing the stipulation insofar as it may have been intended to permit the lessee of the property by the year to escape liability surrendering the property to the lessor, and thus according to defendant’s contention that there was a modification of the written contract as to the amount of the annual rentals and periods of payment, we are of the opinion that the judgment appealed from would be correct.

However, while the evidence is somewhat vague and indefinite, we find that it establishes that the written agreement was set aside by substituting a verbal agreement in its stead, under which defendant was obligated to pay the rentals as alleged by ¡plaintiff, and while it indicates that the period of the lease was for several years beyond the year 1924,. we do not think, conceding the right of the defendant to have continued in possession of the property under such lease beyond the year 1924, the mere fact that plaintiff did not allege the full terms of the lease or the full period during which it was to continue, could affect its right to recover the the rentals due.

The judgment appealed from is therefore affirmed.


text:
    No. 3079
    Second Circuit
    OLIPHANT v. LOUISIANA LONG LEAF LUMBER CO.
    (Nov. 10, 1927. Opinion and Decree.)
    (Dec. 21, 1927. Rehearing Refused.)
    (Feb. 13, 1928. Certiorari Denied by Supreme Court.)

      (Syllabus by the Ectitor)

    1. Louisiana Digest — Master and Servant —Par. 160, 160 (j).
    Wife of deceased employee suing for compensation under Workmen’s Compensation Act No. 20 of 1914, Section 8, Sub-sections 2 (a) and 2 (e), shows dependency where decedent resided near farm where plaintiff resided, visited plaintiff from time to time and made contributions of money and wearing apiparel.
    2. Louisiana Digest — Master and Servant —Par. 160, 160 (j).
    Wife can recover for death of husband under Workmen’s Compensation Act No. 20 of 1914 as amended where evidence does not show deceased to have been married to another at the same time and good faith of wife is presumed by her having married and lived with him until his death, which presumption of good faith is supported by other evidence.
    3. Louisiana Digest — Appeal — Par. 625; Master and Servant — Far. 160 I.
    Where there is conflict of testimony the ruling of the trial court on matters of fact and credibility of witnesses will be affirmed if not manifestly erroneous.
    Appeal from the Eleventh Judicial District Court of Louisiana, Parish of Sabine. Hon. Hal. A. Burgess, Judge.
    Action by Earlee Oliphant against Louisiana Long Leaf Lumber Company.

      There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    J. O. Gunter; J. W. Jones, Jr., of Natchitoches, attorneys for plaintiff, appellee.
    Thornton, Gist & Richey, of Alexandria, attorneys for defendant, appellant.
   WEBB, J.

The plaintiff, Earlee Oliphant, seeks to recover judgment against the defendant, Louisiana Long Leaf Lumber Company, for compensation for the death of her husband, Amos Oliphant, who was killed while in the employ of the defendant company.

The defense is that plaintiff was not the legal wife of the decedent and that she is not entitled to compensation, having contracted the marriage with decedent with knowledge that he was .at the time married to Bertha Johnson; and, further, if she was the legal or putative wife of decedent, she was not dependent upon him for support within the meaning of paragraphs (a) and (e), sub-section 2 of section 8 of the statute.

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

OPINION.

This cause was before us some time since and on an application to the Supreme Court for a writ of review the decision rendered by this court was reversed and the ease remanded to the District Court for a new trial, at which time additional evidence tending to show the former marriage of decedent (which was refused to be admitted on the former trial) was offered together with evidence tending to show the good faith of plaintiff, and as there was not any further evidence relative to the question of dependency offered at the second trial, we are of the opinion that our former ruling as to the question of dependency (which was not reviewed by the Supreme Court) was correct, as we find that the evidence, while it shows that decedent was residing at the place where he was employed and plaintiff was residing on a farm a short distance away at the time of decedent’s death, yet it also appears that decedent visited plaintiff from time to time, remaining over night on the occasions of his visits, and that he made contributions of money and wearing apparel to her during such time, and we do not think under such circumstances it could be said that their conjugal relations were severed and that they had ceased living together within the meaning of the statute.

Relative to the question of whether or not there was any legal impediment to the marriage, we do mot find that the evidence establishes there was any, although it does show that decedent had been formerly married to one Bertha Johnson; but it is not shown that he had not obtained a divorce from his former wife; but it does appear from the evidence that Bertha Johnson, decedent’s former wife, had married after her separation from decedent and that decedent had told other parties that he had been divorced, and we do not think plaintiff could he presumed to have had knowledge of an impediment to her marriage which is not shown to have existed.

However, conceding without deciding that the former marriage must be presumed to have existed, and that plaintiff having been informed of the former marriage it was her duty to make some inquiry as to whether or not the former marriage had been dissolved, the evidence shows that she called upon her brother and father to make an investigation which they did by discussing the matter with decedent who stated to them that he had been divorced, which they reported to plaintiff.

While it may seem that the investigation which was made was not what it should have been, yet considering that the plaintiff was an ignorant negro girl, fourteen years of age at the time of her marriage, and that she requested her father and brother to make an investigation, we do not think she could be said to have been in bad faith in acting upon their report. (Ray vs. Knox, 164 La. —, 113 South. 814.)

The plaintiff having contracted marriage with decedent and having lived with him until the time of his death, is presumed to have been in good faith; (Succession of Benton, 106 La. 503; 31 South. 123; Smith vs. Smith, 43 La. Ann. 1149, 10 South. 248); and although it appears that she knew decedent had been formerly married, we think the presumption is supported and her good faith established by the evidence which shows that when she learned of the former marriage she called upon her father and brother to ascertain whether the former marriage still existed and acted upon their report.

There is some conflict of the testimony relative to the good faith of the plaintiff which involves a question as to the credibility of the witnesses. However, the trial Judge accepted that of the plaintiff, and it cannot be said that he manifestly erred in accepting the evidence offered by plaintiff rather tha£n that offered by defendant. (Pisciotte vs. Indemnity Co., 164 La. —, 113 South. 840.)


text:
    No. 3020
    Second Circuit
    POWERS v. SIMMONS
    (Feb. 3, 1928. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Automobiles — Par. 4 (c).
    Where a child walking on the right hand side of the road suddenly turns and runs in front of an automobile, making an accident unavoidable, although the auto was being driven at a moderate rate of speed, the driver not being negligent, there can be no recovery of damages for the death of the child.
    Appealed from the Ninth Judicial District Court of Louisiana, Parish of Grant. Hon. R. C. Culpepper, Judge.
    Action by Alphonse Powers against B. S. Simmons.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Overton & Hunter; J. A. Williams, Alexandria, • attorneys for plaintiff, appellant.
    Peterman, Dear & Peterman, Alexandria, attorneys for defendant, appellee.
   ODOM, J.

Van Simmons, the minor son of defendant, while operating an automobile on the Jefferson Highway, ran over and killed the seven-year-old child of plaintiff.

Plaintiff brought suit for damages, alleging gross carelessness and negligence on the part of the driver of the car.

Defendant denied negligence, and alleged that the. accident was unavoidable.

Plaintiff’s demands were rejected by the Lower Court and he appealed.

OPINION.

Plaintiff alleged and attempted to prove that his seven-year-old son was walking along a foot path on the left hand side or edge of the Jefferson Highway and that the driver of the automobile while traveling in the same direction negligently, carelessly and recklessly swerved his car over the side of the road where the child was walking and there ran over and killed it.

If plaintiff’s theory of the case, as set forth in his allegations, be correct, his action for damages is well founded.

But plaintiff’s allegations are not supported by the record.

Only three persons witnessed the accident which resulted in the child’s death: Mrs. Lucy Lassyone, a relative of the deceased child; Van Simmons, the owner and operator of the car; and his companion in the car, Sam Russo.

Mrs. Lassyone testified that she witnessed the accident from her residence which was located not far from the road and within less than one hundred yards from the scene.

She said the child was going north, walking along a foot path over on the left hand side of the road; that Van Simmons, driving a Ford “racer” in a fast and reckless manner, drove up behind the child and just before reaching the place where the child was walking turned the car to the left, hit the child and then turned to the right; that the child was struck by the front end of the car, knocked down and run over; that the car was stopped out in the middle of the road, only a few feet from where the child was struck; and that the child was picked up from where it lay out in the road by Russo, the companion of Simmons in the car, and taken to Colfax, not far away.

Other witnesses for plaintiff testified that they had visited the scene and examined the road, and that they saw car tracks or skid marks in the road which indicated that the car left the center of the road, swerved to the left and then back to the right, bearing out plaintiff’s contention.

Plaintiff’s theory of the case is that the child was over on the left hand side of the road, off the gravel, in a safe place, out of the way of passing cars, and that he did not leave the foot path and was struck over on that side of the road as the car swerved to the left; and Mrs. Lassyone’s testimony is to that effect.

The weakness of this theory is apparent, in view of the undisputed testimony that the child, after being run over, was picked up out in the road and, as we gather, near the center of the road. If the child, when struck, had been over on the left edge of the road, and had been struck as the car swerved to the left, it would have been knocked off the road into the ditch and not out into the road.

Mrs. Lassyone says the car first turned to the left, hit the child and then turned to the right and stopped, and that the child was in the road when picked up.

Again, it is alleged and Mrs. Lassyone testified that the car was going at a very rapid rate of speed. But she says the child was run over by the left rear wheel of the car and that it was picked up “right at the hind wheel”; which would indicate that the car was not being driven at forty miles an hour, as alleged, or at any great rate of speed, otherwise it could not have been stopped in so short a distance.

As stated, the only others who witnessed the accident were Van Simmons, the driver of the car, and his companion, Sam Russo.

According to the plat filed in evidence by the plaintiff, the Jefferson Highway, going north from Colfax, is straight and runs almost parallel with the L. R. & N. railway track for some distance to a point where said highway makes a short, precipitate curve to the right, crossing the railroad track, and proceeds for a short distance almost due east. Close to the highway, after it crosses the railroad track and on the south side, there are a number of small residences occupied, as we gather, by tenants, one of whom was Mrs. Lassyone. The accident occurred near the Lassyone residence, about one hundred and ten steps, say three hundred feet, from the crossing.

Van Simmons testified that as he approached the crossing he slowed down to about seven miles an hour on account of the crossing and the curve; that the curve was a dangerous one and could not be negotiated except at low speed without danger; that after passing the railroad track he picked up speed and was running about fifteen miles an hour when the accident happened.

He said that after rounding the curve he saw ahead of him in the road four children, two white boys and two negroes; that the two white children, the deceased and his older brother, were between the center and the right hand side of the road; that as he approached them the younger of the two boys looked back over his shoulder to the right and apparently saw the approaching car, whereupon he began to “trot”, first turning to the right, indicating that he intended to get off the road on that side, and then suddenly turned to the left and attempted to run across to the other side of the road; that his car was then only a few feet from the child, too close to stop, and that in order to avoid running over it he first cut his car to the left, thinking he could run in front of it over on the left hand side, and ran as far over as he could and to avoid running into the ditch cut his car to the right and as he did so struck the child, knocked it down and the left rear wheel of the car ran over it.

He says that the child “suddenly wheeled and ran” to the left in front of his car and that he did all he could to avoid the collision.

Sam Russo testified that he did not see the children until the ear was riear to them and that they were on the right hand side of the road apparently “wheeling around in a circle” and that the small child suddenly and unexpectedly turned and ran to the left in front of the car and that the accident was unavoidable. Such was the conclusion of the District Judge and such is ours.

Plaintiff alleged and attempted to prove that young Simmons was intoxicated and running at a reckless rate of speed. He failed in his proof. There was some testimony that the Simmons boy had the reputation of being a fast and reckless driver. However, there is no satisfactory proof that he was driving in a reckless manner on this occasion. Nor does the record warrant a holding that he was otherwise negligent.

The judgment is affirmed, with costs.


author: CLAIBORNE, J.

text:
    No. 10,079
    Orleans
    SMITH v. PALFREY ET AL.
    (Feb. 13, 1928. Opinion and Decree.)

      (Syllabus by the Court)
    1. Louisiana Digest — Automobiles — Par. 4 d.
    Where the violation of the Traffic Ordinance is the cause of a collision, the party violating the ordinance must pay for the damage when the other party is free from negligence.
    Appeal from Civil District Court, Hon. M. M. Boatner, Judge.
    Action by Lawrence Smith against Harold Palfrey et al.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Daly and Hamlin, of New Orleans, attorneys for plaintiff, appellee.
    Lemle, Moreno & Lemle, New Orleans, attorneys for defendant, appellant.
   CLAIBORNE, J.

This is a suit for damages resulting from a collision of automobiles.

The plaintiff alleged that in June, 1923, at about 11 o’clock a. m., he was driving his automobile upon the upper roadway of Carrollton avenue in the direction of St. Charles avenue; that when he' approached the intersection of Belfast street he drove towards the curb of the neutral ground in an attempt to pass an automobile operated by the defendants, and blew his horn as a signal that he was to pass defendants’ automobile; that as plaintiff was in the act of passing defendants’ automobile and had reached the middle thereof, and both automobiles were near the intersection of Belfast street, defendants’ automobile, without any warning, swerved to the left, in an attempt to cross the neutral ground of Carrollton avenue at said Belfast street in front of plaintiff’s automobile with the result that the left side of defendants’ automobile struck the right front of plaintiff’s automobile and threw it upon the neutral ground, causing a, damage of $307.50 for which he claims judgment against both defendants.

The defendants denied every allegation of plaintiff’s petition. Further answering they averred that they were proceeding at a slow rate of speed on the uptown side of Carrollton avenue in the direction of the river; that when they neared Belfast street they put out their hand to signal their intention of crossing the neutral ground of Carrollton avenue; that the automobile owned by the plaintiff was in the rear of defendants’ car and was running at a high rate of speed; that notwithstanding defendants’ signal plaintiff struck defendants’ car violently as said defendants were attempting to turn into Belfast street; that the collision was the result of plaintiff’s negligence in failing to see defendants put out their hand, or in failing to stop his car in time to avoid th,e collision.

There was judgment for plaintiff against both defendants, the owner Meyer and the chauffeur Palfrey, and both have appealed.

The reasons for judgment of the learned trial judge are as follows:

“Both the automobiles involved in the accident which gave rise to this suit were proceeding along the ■ uptown roadway of Carrollton avenue in the direction of the river. The speed of the plaintiff’s automobile was about 20 miles an hour, that of the defendants somewhat less. Near Belfast street, the driver of the plaintiff’s automobile, which was in the rear, desiring to pass the defendants, blew his horn, and repeated the signal. The defendants’ machine was then running about the middle of the roadway. On reaching the intersection of Belfast, or when a few feet from it, the defendants’ machine turned to the left to cross the intersection. At that moment the plaintiff’s machine was close behind, too close to avoid a collision, it struck the defendants’ machine on the left side about where the rear fender joins the running board, and being put out of the control by the shock it ran into a pole in the neutral ground on the further side of the crossing.
“This suit is for the resulting damage to the plaintiff’s car. When this case was first heard in October, 1924, Palfrey, the driver of the defendants’ car, testified that he did not hear the horn of the other car; that as he began to turn to cross to the lower side of the avenue he put out his hand to give warning of his intention to do so, and almost immediately his car was struck; and that when he began to turn he was about ten feet from the neutral ground, which would put him near the middle of the roadway. The general Traffic Ordinance No. 6173 C. C. S., Art. 1, Sec. 4, S. (c), at page 5 of the .pamphlet filed in evidence, provides as follows:
“ ‘ (c) A vehicle, when on a street divided by a neutral ground, desiring to turn to the left across the neutral ground, shall turn the corner as near the left hand curb as possible. A vehicle intending to turn across the neutral ground should move to the left hand side of the street when about fifty feet from the corner and hug the curb until the intersection is reached, then turn as in the illustration.’
“On his own statement, Palfrey did not signal his intention to turn in time to warn the plaintiff’s driver of it, and he did not obey the ordinance. It is clear that if he had handled his car as the ordinance requires the accident would not have happened. At the final hearing on March I8th, 1925, Palfrey undertook to' state the facts differently and to make a case of compliance with the ordinance; but his testimony was confused and unsatisfactory, and I must find the facts to be as he first stated them and substantially as they were stated by the plaintiff’s witnesses Richard Smith and Toups. Palfrey was using the car in the course of his employment by Meyers, its owner, the other defendant. Both are therefore liable. The plaintiff’s damages are proved. Judgment for plaintiff as prayed. Defendant’s, Meyers, reconventional demand rejected.”

The trial judge decided the case on the facts and on the Traffic Ordinance. His application was correct. Besides the city ordinance, the plaintiff had a right to presume that defendant would proceed in a straight line along Carrollton avenue and not turn to the left to cross the neutral ground.

In keeping with the Judge’s opinion, we have repeatedly decided that where the violation of the Traffic Ordinance is the cause of a collision, the party violating the ordinance must pay for the damage when the other party is free from negligence. Tessier Digest, p. 82, Ct. App. Nos. 8397, 8820, 8905, 9205; Schick vs. Jenevin, 145 La. 334, 82 South. 360; Manceaux vs. Hunter Canal Co., 148 La. 97, 86 South. 665.

Judgment affirmed.


text:
    No. 11,150
    Orleans
    GULF COAL AND COKE CO., INC. v. DENNIS SHEEN TRANSFER, INC.
    (Feb. 27, 1928. Opinion and Decree.)

      (Syllabus by the Oourt)

    I. Louisiana Digest — Negligence—Par. 25.
    When plaintiff’s negligence has caused the damage of which he complains he cannot recover.
    Appeal from First City Court. Hon. Yal J. Stentz, Judge.
    Action by Gulf Coal and Coke Co., Inc., against Dennis Sheen Transfer, Inc.
    There was judgment for plaintiff and defendant appealed.

      Judgment reversed.
    Legier, McEnerny & Waguespack, of New Orleans, attorneys for plaintiff, appellee.
    Doyle, Unsworth and H. M. Mayo, Jr., of New Orleans, attorneys for defendant, appellant.
   CLAIBORNE, J.

Plaintiff claims of defendant $162.50 for killing a mule.

It alleged that on November 18th, 1926, at 11 a. m., one John Butler, its agent' and employee, was driving one of its wagons drawn by one mule proceeding up the right side of Howard street; that after it had passed Melpomene street a large wagon loaded with rails, owned by defendant and driven by one John Jacob, its employee, down Howard street, swerved negligently over to his left on the side reserved for traffic moving up the street and that the wheel of defendant’s wagon or a projecting rail passed over the left front foot of plaintiff’s mule and severed the hoof from the leg, necessitating the killing of the mule; that the value of said mule was $162.50, which plaintiff claims from defendant.

• The defendant admitted that either a wheel or a rail upon defendant’s wagon passed over and severed the hoof of plaintiff’s mule which brought about the necessity of killing it, but denied all the other allegations; it specially denied any negligence on the part of its driver, but averred it was the negligence of the plaintiff’s driver in pulling his mule to the left which caused the accident.

There was judgment as prayed for against the defendant and it has appealed.

An examination of the testimony will show that the plaintiff has failed to make out his case.

There was only one witness on behalf of the [plaintiff to testify how the accident happened and his testimony is unreliable.

His name is Frank Di Giovanni, employed to do hauling for the Green Hart Concrete Co; on the morning of the accident he was driving a truck; he was behind the plaintiff’s wagon which was loaded with coal going in the same direction; and there was an automobile in front of him between his wagon and the plaintiff’s; there was also an automobile parked on the other side of the street; when the defendant’s truck passed the automobile the back of the trailer cut the mule’s leg; the wagon was close to the right hand gutter curb; about one foot from it; he could not say what happened after the mule was struck, because there was another automobile in front of him, and he did not see when the hoof came off; after the accident he pulled on the side; the plaintiff’s wagon was just walking along, while defendant’s truck was going 15 or 20 miles an hour; defendant’s wagon was an “automobile truck”; he did not' notice the front part; he noticed the back wheels, they swung in closely to the mule; he does not know whether defendant’s truck was traveling 15 or 20 miles because “he had to watch the car ahead”; he is positive the back wheels swung into the line of traffic; he was not watching the back wheels; there was another automobile in front of him and he was hugging the curb; his wagon passed the front portion of defendant’s wagon; he did not see anything but the rail; he did not see when the mule was struck; he does not kno.w whether it was the rail or the wheel that struck the mule; the rails swung out further than the curb; there were two men on defendant’s wagon; he saw them talking to the driver; he does not know how many mules were pulling defendant’s wagon.

The testimony of this witness is unreliable; first, because he swears the mules were running at the rate of 15 or 20 miles an hour, which is a physical impossibility, especially when we consider that the defendant’s wagon was loaded with four rails weighing each two tons, making eight thousand pounds; second, because without leaving the stand, he swears that defendant’s wagon was an automobile truck, in direct contradiction of the fact that the wagon was drawn by five mules, and that he previously swore they were running at the rate of 15 or 20 miles an hour; and third, because he swore the rails in defendant’s wagon swung out further than the curb, when they would have carried away, not only plaintiff’s mule and wagon but also the automobile in the rear.

The testimony of this witness leads us to a strong suspicion that he was not a witness to the accident or if he was, that he was too willing.

The defendant on the other hand produces twp witnesses, one John Jacob, the driver of defendant’s wagon, on the occasion of the accident, and William Shakespeare, also an employee of the defendant, who was on defendant’s wagon on the occasion of the accident.

The driver says that he was driving a five-mule team; he was driving down Howard street; there was a truck parked on the river side and another on the lake side; he had been driving for 30 years; he had four rails on his truck weighing a ton apiece; he was walking; a mule cannot go fifteen miles at any time; the plaintiff’s wagon came up from Melpomene street on the lake side and he drove up by the wagon that was parked and his driver hallowed, and the mule put his leg between his hind wheel and the wagon; (plaintiff’s wagon was not standing on the lake side curb of Howard street; he came there as he passed; a young negro boy was driving plaintiff’s wagon; when he proceeded between the parked cars the road was perfectly clear; he made no turn after he saw plaintiff’s wagon; he was in the middle of the street; he thinks the wheel hit the mule; the rails were in the center of the road behind the wagon; he did not turn the back wheels; the plaintiff’s wagon ran through there and jammed himself; if the driver had not jerked the mule back making the mule spread his hoof, the wheel would not have cut the mule’s foot.

William Shakespeare is employéd by defendant for the last three years; he was on the five-mule team wagon that day; there was an automobile parked on both sides; when they got near the automobile the coal wagon was passing the car and the driver held his mule and the mule struck his foot out and the left hind wheel went right over it; when the defendant’s wagon was passing between the two automobiles the coal wagon was not in sight and the way was clear to drive through; they were driving on a straight line, just walking; he saw the left hind wheel of defendant’s wagon go over the mule’s hoof; the plaintiff’s driver was trying to pull his mule away from the hind wheel; witness was on the wagon that hit the mule; the hind wheel struck the mule; he was looking back because when they pass an automobile they have to notice the hind wheel; they did not swing out, because they did not have to go around a curve.

This testimony therefore establishes beyond a doubt that defendant’s wagon was in the center of Howard street, parallel with the curb; and that it was the rear left wheel of defendant’s wagon, and not the overhanging rails, that struck the mule’s foot'.

The five mules and the front wheels had already ¡passed. It was daylight, and defendant’s wagon as it came down the street was in full view of plaintiff’s driver on his wagon. Had he been attending to his duties in a careful manner, it would have been an easy matter for him to have pulled his mule to the right iu a line parallel with the curb instead of attempting to back him, and thus plaintiff’s driver would have avoided the accident.

There is no evidence that defendants’ wagon swerved to the left in the rear and thus came in contact with the plaintiff’s wagon. The accident appears to have happened for the sole reason that plaintiff’s driver negligently failed to take the necessary precautions to keep out of harm’s way.

For these reasons the judgment is reversed and plaintiff’s demand is rejected at his cost in both courts.


text:
    No. 3153
    Second Circuit
    FLOWER v. FLOWER ET AL.
    (Feb. 3, 1928. Opinion and Decree.)

      {Syllabus by the Editor)

    1. Louisiana Digest — Taxation—Par. 326; Error and Mistake — Par. 2.
    Ex parte declaration of title based upon the false assumption that the ancestor of the parties was the owner of the property purchased at tax sale will be considered erroneous where the evidence shows that the property was not that of the common ancestor and no consideration was paid by the co-heirs to the purchaser at tax sale for acquisition of their interest in the. tax title.
    Appeal from the Ninth Judicial District Court of Louisiana, Parish of Rapides. Hon. R. C. Culpepper, Judge.
    Action by Charles M. Flower against William P. Flower et al.
    There was judgment for plaintiff and defendants appealed.
    Judgment affirmed.
    Stubbs & Thompson, of Monroe, attorneys for plaintiff, appellee.
    Lamar Polk, of Alexandria, attorney for defendants, appellants.
   WEBB, J.

The plaintiff, Charles M. Flower, on April 26th, 1902, purchased at tax sale under an assessment made against the “Heirs of Spring”, the E% of NWÍ4, NE% of SW%, and W% of SE% of Section 1, Township 4, North Range 1 West, situated in the parish of Rapides, and the Sheriff and Tax Collector’s deed was recorded on April 30th, 1902.

On November 10th, 1908, the tax purchaser, Charles M. Flower, under authentic act, declared that whereas he had purchased the property described above at tax sale assessed under the name of the Sprigg Heirs, and that whereas said property had been patented by Horatio Sprigg on October 12th, 1831, and that whereas he was the owner in common of the said property at the time of the tax sale with Mrs. Clara Raymond, C. D. Sprigg, Mrs. Frances Sprigg, and F. S. Flower, W. P. Flower, and D. S. Flower, and whereas the purchase under the law was for the benefit of himself and his co-owners, he declared that he recognized the parties named as his co-owners in the property in the proportions of one-third to Mrs. Clara Raymond, a one-third to Horatio S. Sprigg and Mrs. Frances Sprigg, and one-third to the heirs of Mrs. Clara Flower, who were Frank S., Charles M. (plaintiff), D. S., and William P. Flower, and that he remitted and quitclaimed to the respective parties the respective interests in the property, which instrument was recorded on November 14th, 1908.

On May 23rd, 1927, plaintiff filed this suit against the heirs of F. S. Flower and William P. Flower, in which he .alleged that through error in drafting the instrument of November 10th, 1908, above referred to, the NE14 of SWI4 was included in the property quitclaimed, and that said NE}4 of SW14 had not been patented to the ancestor of the parties or acquired by him, and that plaintiff had not acquired same for the benefit of his co-heirs, but had acquired for his own interest, and did not intend to renounce, relinquish or convey any interest in said NE^ of SW% to his co-heirs, and that the parties named in the instrument did not intend to acquire any interest in said forty acres, and he prays for judgment amending, reforming and correcting the instrument of date November 10th, 1908, so as to exclude the said forty acres, and for judgment decreeing him to. be the owner of same, and for all orders, etc., and general relief.

The heirs of F. S. Flower, in substance, pleaded the general denial, and William P. Flower, the sole heir of William P. Flower (named in the instrument of date November 10th, 1908) excepted that the petition failed to state a cause of action, and pleaded the prescription of one, three, five and ten years, and then answered, pleading a general denial.

On trial, judgment was rendered in favor of the plaintiff as prayed for, from which judgment William P. Flower alone appeals, and in this court the only complaint made by defendant is that the trial court erred in holding that the evidence offered had established with sufficient certainty the facts alleged by plaintiff.

While defendant made some objections to the evidence introduced by plaintiff, the objections relateid to the relevancy rather than to the admissibility, and the evidence offered tends to show the entire relations of the parties to the property in dispute, and the cause was apparently presented with the understanding that such relief, if any, would be. granted as the evidence would warrant.

The instrument of date November 10th, 1908, was signed by G. M. Flower only, it does not express any monetary consideration, and it appears to have been made to give effect to the equitable dqctrine, that where a co-owner acquires the common property at tax sale the purchase enures' to the benefit of his co-owners who avail themselves of the right to redeem the property (R. C. L., Cotenancy, vol. 7, page 863, No. 7, et seq.; Duson vs. Rood, 123 La. 835, 49 South. 590; also Williams vs. Harrell, 132 La. 1, 60 South. 699, and authorities cited), and to avoid the complications which might otherwise result from the recordation of the tax deed.

The error of which plaintiff complains is that the NE% of SW%> which was included in the description of the property, did not' in fact belong to the ancestors of the parties and that there was not any co-ownership in that property, and that the declaration by the plaintiff or recognition of co-ownership with his co-heirs being erroneous in fact, the inclusion of that' property in the relinquishment was without consideration and in error.

In support of the alleged error, the plaintiff showed that the NE% of SW% had been patented to another than the common ancestor, and testimony was offered showing that the records of Rapides parish did not disclose any title in the common ancestor, Sprigg, and it was further shown that the parties in whom the plaintiff recognized co-ownership had not refunded to plaintiff the amount which he had paid at the tax sale for the NE% of SW%, and it was also shown that plaintiff, Charles M. Flower, had individually paid all the taxes assessed against that portion of the property o since the tax sale, and that he had collected and retained all of the revenues from that portion of the property (which consisted of sales of timber thereon), all to the knowledge of his co-heirs, and plaintiff states that defendant’s father had agreed to acknowledge the error complained of, and it was further shown that all of the co-heirs, with the exception of defendants, had acquiesced in plaintiff’s contention, and in a formal written instrument had acknowledged that the instrument of date November 10th, 1908, was not intended to cover the NEM of swy4.

Without regard to the acknowledgment of the co-heirs of the error in the instrument, the fact of the plaintiff having paid the taxes assessed against the property, and having collected and retained the revenues, to knowledge of his co-heirs, as well as the promise of defendant’s father to acknowledge the error complained of by plaintiff, bears close resemblance to the facts stated in the opinion in Vignie vs. Brady, 35 La. Ann. 560, in which certain lands described in an act of sale were held to have been included through error; however, the question which seems to have been considered in that case related to the admissibility of the evidence, rather than to its sufficiency, and as it appears that the court did not undertake to recite all the facts proven, we do not think that case can be regarded as supporting the plaintiff’s contention as to the sufficiency of the evidence.

However, the instrument considered by the court in the cited case was an act of sale, translative of property, while in the present instance the instrument does not purport to evidence a transaction by which the title was translated, but it appears on its face to be an ex parte declaration of title based upon the assumption that the ancestor of the parties was the owner of the property.

The evidence shows that the only title of record to the property was in another than Sprigg, the ancestor of the parties, and as there was not any evidence offered tending to show that Sprigg claimed title or that he had possession of the property, we think it was sufficiently established that the declaration made by plaintiff in the instrument of date November 10th, 1908, was erroneous, and the evidence further establishing there was not any consideration paid for the release or quitclaim insofar as it covered the property in contest, either by refunding the amount paid by plaintiff for the property at tax sale, or otherwise, and that plaintiff had subsequently paid all taxes assessed against the property and collected all revenues therefrom, to the knowledge of his co-heirs, who acquiesced therein, we think the judgment decreeing plaintiff to be the owner of property and ordering the instrument of date November 10th, 1908, to be corrected so as to exclude the property claimed by plaintiff, was correct.

The defendant filed in this court a motion to remand the cause for a new trial, based upon a survey made of the property, subsequent to the date of the trial, which it is claimed shows that a portion of the NE% of SW% contiguous to the property admittedly belonging to the common ancestor, had been in cultivation, from which the inference is drawn that it was at one time possessed by the ancestor of the parties, and which, it is claimed, would, if considered in connection with the evidence, offered on the • original trial, that the conveyance records of Rapides parish had been destroyed by fire, would be sufficient to overcome the evidence offered by plaintiff to show that the common ancestor was not the owner of the property.

Conceding that the survey would show that a portion of the property had been in cultivation, concededly it does not follow that possession of the property was held by the common ancestor, and considering that defendant, if he had exercised due diligence, could have availed himself of the facts, which might appear from the survey, on the original trial, and that such facts would be merely a circumstance tending to show possession in the common ancestor, we do not think the. motion to remand should be sustained.

It is therefore ordered that the judgment appealed from be affirmed, at appellant’s cost.


author: WESTERFIELD, J.

text:
    No. 10,215
    Orleans
    TESTARD v. BOARD OF COMMISSIONERS OF THE PORT OF NEW ORLEANS.
    (February 27, 1928. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Automobiles—Par. 4.
    The rule to the effect that drivers of automobiles are required to regulate the speed of their cars and maintain such control as will permit their stopping within the range of objects and obstructions plainly visible, has no application to emergencies creating unexpected hazards which could not reasonably be anticipated.
    . Appeal from Civil District Court, Division “C”. Hon. Porter Parker, Judge.
    Action by Henry A. Testard against Board of Commissioners of the Port of New Orleans.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Woodville & Woodville, of New Orleans, attorneys for plaintiff, appellant.
    Lemle, Moreno & Lemle, of New Orleans, attorneys for defendant, appellee.
   WESTERFIELD, J.

This suit results from a collision of automobiles. Plaintiff was driving down St. Charles Avenue at about 9 a. m. Following plaintiff was a Ford and behind the Ford defendant’s car.

Plaintiff observed a friend of his waiting at a street intersection for a street car, wanted him to ride, and in order to pick him up stopped his car near the neutral ground and a little ways beyond the intersection. The Ford ear avoided striking plaintiff’s car by turning sharply to the right, but defendant’s chauffeur claims, and we think the record supports him, that he was unable to turn to the right because of the presence of a Buick automobile, abreast of him. Plaintiff’s car was struck in the rear and damaged.

It is admitted that plaintiff was guilty of a violation of the city ordinance, as in fact he clearly was as appears by reference to the following provision:

“On streets divided by a neutral ground, no vehicle shall stop next to either curbing of the neutral ground.”

It is insisted, however, that plaintiff’s negligence was not the cause of the accident which is averred to be due to defendant’s fault, in that its car was not operated at a speed sufficiently slow, and under such control that it could be stopped within the distance in which he can plainly see an object in front of him. The rule invoked is undoubtedly sound but it has no application here because the car of plaintiff could not be seen until the Ford had been forced out of the line by the sudden stopping of plaintiff’s car, and when seen created a hazard which defendant’s driver had no reason to anticipate, nor guard against. In fact there was every reason to expect the contrary for it must be presumed that automobile drivers will observe the traffic ordinance. His only chance to avoid the accident was by turning sharply to the right as the driver of the Ford did, but this he could not do because of the presence of the Buick car abreast of hjm. See Jacobs vs. Jacobs, 141 La. 272, 74 So. 992.

It is argued that there was no other place for plaintiff to stop his car because he could not drive over to the curb nearest the sidewalk, for to do so would necessitate crossing the path of two lines of cars traveling in the same direction. The answer to this argument is that in that situation he should not have stopped at all and should have foregone the pleasure of giving his friend a ride.

The judgment appealed from is affirmed.