text:
    No. 13,170
    Orleans
    REEVES v. HEYMANN
    (May 5, 1930. Opinion and Decree.)
    Montgomery & Montgomery, of New Orleans, attorneys for plaintiff, appellee.
    Jos. A. Casey, of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

Plaintiff sues defendant for the sum of $106.75 for damages to his automobile resulting from an inter-sectional collision at Claiborne avenue and Louisiana Parkway, this city, on October 24, 1928, at 12:15 a. m. The petition avers that the defendant was solely at fault in causing the accident on the following grounds:

That he was operating his car at an excessive rate of speed, or more than 25 miles per hour, that he failed to come to a full stop before a right of way street, and that defendant was negligent in not giving plaintiff the right of way which he was entitied to, as defendant’s car was approaching from the left, all in violation of Traffic Ordinances Nos. 6173 and 7490 of the commission council of the city of New Orleans.

Defendant answered, denying liability and averring that plaintiff was solely at fault because he was operating his automobile without any lights on it, and further pleading that plaintiff had the last clear chance of avoiding the accident. Defendant also filed a reconventional demand in the sum of $151.75, representing damages and depreciation to his car.

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

The record shows that Louisiana avenue is a paved highway, with a neutral ground in the center, and runs from the direction of the river to the lake. The uptown side of the street is used by traffic going toward the river, and the other side is used by traffic moving in the direction of the lake. At the point where Louisiana avenue intersects Claiborne avenue at right angles, the continuation of Louisiana avenue toward the lake from that point is called Louisiana Parkway, which is also a paved highway, but without any neutral ground in the. center. Claiborne avenue is a paved highway with a neutral ground in its center. The river side thereof is used by traffic going downtown, and the lake side of the thoroughfare by traffic going uptown. Plaintiff was driving his Marmon sedan on Claiborne avenue uptown, and defendant was driving his Buick car on Louisiana avenue in the direction of the lake and struck plaintiff’s ear a glancing blow on the left side near the rear door and then scraped it from that point along the side to the front bumper.

The plaintiff was on his way home and had three guests in his car at the time, all of whom testify that plaintiff was driving at a moderate rate of speed, not in excess of 25 miles an hour; that, as he approached the intersection, he blew his horn, but that defendant, apparently neither seeing plaintiff’s car nor hearing the signal, continued on his course, and that, in order to avoid the collision, plaintiff swerved his car to the right into Louisiana Parkway, where defendant’s car struck the plaintiff’s ear on its left side, as above described; that plaintiff’s car was stopped within about 20 feet, and that defendant’s car continued on • its course for . about 60 feet; and that defendant’s ear was traveling at about 40 or 45 miles an hour at the time it left the river side of the intersection of Claiborne and Louisiana avenues, a distance of approximately 200 feet.

The sole witness for the defendant is himself, and he denied that he was traveling at an excessive rate of speed. He further testified that the lights on the plaintiff’s car were not burning and that, if they had been, he would have seen the car and avoided the accident.

We are of the opinion that the evidence clearly shows that defendant’s car was being operated at an excessive rate of speed and that he failed to stop or slow down and accord plaintiff the right of way to which he was entitled under the traffic ordinance of the city of New Orleans, and that his negligence in this respect was the proximate cause of the accident. We are further satisfied that the lights on plaintiff’s car were burning and that, if defendant did not see them, it was because he failed to keep a proper lookout. We do not find that plaintiff was in any way guilty of negligence. When the accident appeared imminent he did everything in his power to avoid it.

It is admitted that the damage done to plaintiff’s car was the result of the accident and that the estimate for the repairs is reasonable.

The judgment of the lower court is correct, and it is therefore affirmed.


source: Caselaw Access Project

author: JANVIER, J.

license: Public Domain

text:
    No. 11,978
    Orleans
    DASTE v. GWIN
    (April 21, 1930. Opinion and Decree.)
    P. L. Fourchy, of New Orleans, attorney for plaintiff, appellant.
    Frank T. Doyle and Harry M. Mayo, Jr., of New Orleans, attorneys for defendant, appellee.
   JANVIER, J.

This is a suit for workmen’s compensation. Daste alleges that he was a bricklayer earning $66 per week while working for defendant Gwin in the construction of the June Hotel Annex; that on May 19, 1928, he received injuries as the result of being struck by a heavy plank which fell from one of the upper floors; that he was knocked unconscious, his left shoulder was bruised, and that the humerus, which we understand is the large bone in the upper part of the left arm, was broken; that he is entitled to compensation at the rate of $20 per week for 300 weeks and that he has been paid $240, but that defendant refuses to make further weekly payments.

The answer admits all of the material allegations, except that it denies that the injuries received by plaintiff are permanent, and the averment is made that the plaintiff has entirely recovered, that, after a prolonged disuse, there is always pain for a short time due entirely to nonuse of the injured member, and that such partial disability as plaintiff is now laboring under results solely from his refusal to go back to work.

The evidence consists almost entirely of testimony of physicians and surgeons, and, as we have several times said, in such situations we must be governed largely by the medical experts. Adam Joseph vs. Higgins Lumber Co., 12 La. App. 600, 126 vs. Phoenix Utility Co., 124 So. 623; George Francis vs. Swift & Co., 12 La. App. 609, 126 So. 699.

When we come to consider this testimony of the doctors, we find that even plaintiff’s physicians are apparently of the impression that his present condition is large-' ly the result of his refusal to use the injured member.

Dr. Murphy, a witness for plaintiff, states, in answer to the question as to whether the injuries were permanent or merely temporary, “I think that they are temporary. I don’t believe they are permanent,” and, when asked, “To what do you attribute the condition of his shoulder?” said, “More from disuse than anything else.” When questioned as to whether the break in the arm had knit properly, Dr. Murphy said, “The union is perfect. There is complete union.” In the beginning of his testimony he had said, “I think that in a case of this sort after there is full union to a site of fracture ordinarily those cases ought to be normal in all respects in about two or three months.” Again he was asked, “Had this man used his arm should that arm condition that he complains of be normal?” and his answer was, “I believe so.”

It is manifest that Dr. Murphy’s opinion is that, if Daste would use his arm first for light work, and then gradually for heavier work, within a very short time he would be in the same normal, sound condition in which he was prior to the accident.

The testimony of Dr. Dohasier, another physician who testified for plaintiff, is strikingly similar. In answer to the question as to how long an injury such as Daste sustained would ordinarily disable a man, he said, “Well, between two and three months as a rule.” He was asked if Daste tried to assist him in effecting a cure, and he said, “Well, he seemed to fear pain and there seemed to be some voluntary resistance to movement.” In other words, Dr. Donasier’s testimony in this regard coincides entirely with the testimony of defendant’s medical experts, which is to the effect that the real trouble with Daste was that he refused to co-oper'ate, and that he voluntarily and deliberately resisted their efforts to effect a complete cure.

Dr. Donasier was asked if he could see any reason why Daste could not use his arm, and he said, “We could not find sufficient pathology,” which, in language which the layman will understand, means that, except from the fact that Daste said his arm hurt him, there were no symptoms visible to the physicians "Which would indicate that there was anything the matter with the arm.

The other two doctors, Dr. Compagna, who testified as a witness for defendant, and Dr. Hatch, who was appointed by the court as an expert to examine Daste, are very positive in their statements that he had been completely cured, and that, if he had undertaken light work for a few months, such pains as he suffered as a result of disuse would have entirely disappeared.

The evidence convinces us that efforts were made to have Daste return to work, and that his former employer was willing to put him at light work such as would be consistent with his condition, and as would soon have strengthened the arm and shoulder, but that he either refused or neglected to report.

We are well convinced from all the testimony that plaintiff has entirely recovered from his injuries, and should have returned to work long ago, and that he has been fully compensated for the entire term of real disability.

The judgment appealed from is therefore affirmed. i


author: PER CURIAM.

text:
    No. 610
    First Circuit
    SECURITY BANK v. NATIONAL MUTUAL ASSURANCE ASSOCIATION (CORINNE WREN DAVIS, Intervener)
    (March 5, 1930. Opinion and Decree.)
    (May 6, 1930. Rehearing Refused.)

      Ellis, Ellis & Ellis, of Amite, attorneys for plaintiff, appellant.
    A. W. Spiller, of Hammond, attorney for intervener, appellee.
   PER CURIAM.

Security Bank prays for a rehearing, urging that the court erred in not acting specifically upon the exception of no cause and no right of action filed and made a part of the record. This exception was not acted on specifically; the word “filed” written on it had been signed by a deputy clerk, but without any date showing when it had been done. Then, again, the minutes did not state that the exception had been filed and ruled on in the lower court. Plaintiff’s brief states that it was overruled; but we are guided in such matters by the minutes. The minutes did not show any ruling; therefore there was none that could be reviewed. The exception was put aside, but the court ruled on all the grounds, urged as grounds for the exception, in acting on the bank’s answer to the motion and opposition which Miss Davis had filed, urging that her privilege as clerk and secretary was superior to that of the bank.

The grounds of the exception were stated in plaintiff’s original brief to be:

“The exception of no. cause of action is based upon two grounds: 1st: No privilege or lien can be recognized by the court when there is no prayer asking for its recognition.
“2nd: That a clerk or secretary’s privilege being a general one, it can not be exercised except in case of insolvency, cession of goods, or in succession proceedings.’’

The opinion considers and acts on these questions. These questions having been considered and acted on in the opinion, all that the situation required was complied-with. If there had been a ruling on the exception in the lower court, which plaintiff desired to have reviewed, it should have been shown by the minutes and brought up for review.

The plaintiff in its petition for rehearing urges, as error in the opinion and decree, that the motion of Miss Davis contains no prayer for the recognition of any privilege, and that without prayer therefor no privilege can be recognized.

It is also urged as error — we copy from its brief in support of its application for rehearing as follows:

“And that the court further erred in considering for the purpose of deciding the case at bar, the records in the suit of Corinne W. Davis v. 2624, National Mutual Assurance Association and Mrs. Annie C. Ciolino v. No. 2510, Security Bank et al., unless all, or any one of them were introduced in evidence in the case at bar; id est, Security Bank v. No. 2298, National Mutual Assurance Association, Miss Corinne W. Davis, Intervenor; nor has any of these cases except the case at bar, been appealed to your Honorable Court.”

As for the matter first mentioned, the motion and opposition of Miss Davis is in form of an order signed by the judge. It is based on the provisions of the Code Practice, art. 401 et seq. This order signed by the judge, filed as a motion and opposition in the suit of Security Bank vs. National Mutual Assurance Association, was in furtherance of the prayer contained in her suit pending in the same court against the same defendant, and in which her petition contained the proper averments, with proper prayer for the recognition of her' privilege.

The record shows that the suits of the Security Bank vs. National Mutual Assurance Association, Miss Corinne Wren Davis, Intervener, of Corinne Wren Davis vs. National Mutual Assurance Association, and of Mrs. Annie C. Ciolino vs. National Mutual Assurance Association, were consolidated for the purpose of trial. The note of testimony taken opens by stating the titles of each of the three consolidated cases, the number of each case, and contains the following announcement:

“Testimony taken on the trial of the above numbered and entitled cases, which were consolidated for the purpose of trial this day before his Honor,” etc.

After this an agreement of counsel:

“For the purpose of trial, it is agreed by all parties that the following named suits are combined: Namely, The Intervention of Miss Corinne Davis in the suit of Mrs. Ciolino v. Security Bank et al. Security Bank v. National Mutual Assurance Association and the suit of Miss Corinne Wren Davis v. National Mutual Assurance Association, No. 2624.”

Then a further agreement dictated by counsel for plaintiff:

“It is agreed that the exceptions will go over after the statement of facts is introduced. We agree to putting the statement of facts in now, but reserve our rights under the exceptions.”

The consolidation embraced all the pleadings in each of the cases, producing, in effect, a concursus. This order, in such a situation, needed no prayer to render it effective as an opposition. Asserting a privilege superior in rank to that of Security Bank, the prayer of Miss Davis in her suit against National Mutual Assurance Association became effective as a result of the consolidation against Security Bank. All the parties to the combination and consolidation were bound under the agreement to offer against each other all the evidence that they desired to offer on all the issues in the consolidated eases. We therefore see no force in plaintiff’s contention that a superior privilege cannot be recognized in favor of Miss Davis, opponent, on the ground that there is no prayer for such recognition in her motion. And because of the consolidation it was not necessary, as plaintiff contends, for the parties to offer in evidence against each other the records of the consolidated suits on trial.

Miss Davis is the only witness who appeared on the trial, and her testimony taken in support of her claim, must under the circumstances be looked on as taken contradictorily with National Mutual Assurance Association; contradictorily with the Security Bank; contradictorily with Mrs. Anna C. Ciolino, and effective for all purposes against each of the parties to the proceedings. The fact that the consolidated records were not offered in evidence on the trial in question, and that no appeal Was before the court in any of them, except that of Security Bank vs. National Mutual Assurance Association, in which Miss Davis was by motion an opponent, under Code Practice, art. 401, did not at the time seem to require mention. The contention has been reconsidered; but we still see no force in it.

The Security Bank also urges, as error in the< opinion, our holding that the privilege claimed by Miss Davis can be asserted, although there has been no cession of property nor assignment; and National Mutual Assurance Association has not been decreed insolvent. This question has been considered, and our opinion on the subject remains unchanged.

It is contended in the petition for rehearing that the court is in error in its statement of the facts. Plaintiff’s brief in support of its application for rehearing states that this error consists of the statement, in the opinion of the court, that:

“Miss Davis had obtained judgment against National Mutual Assurance Association for $207.00 with interest, etc.
“She then proceeded against the Security Bank by motion, as provided for by the Code Practice, art. 401 et seq., asserting the privilege that had been decreed to exist in her favor, to be superior in rank to that of the seizing creditor, and her right to be paid out of said proceeds by privilege with preference over that of the seizing creditor.”

The contention is that Miss Davis had not obtained judgment against National Mutual Assurance Association at the time of her intervention and opposition in the' case at bar. The statement in the opinion that she had obtained judgment against National Mutual Assurance Association at the time she appeared in the suit of Security Bank vs. National Mutual Assurance Association, and opposed the payment to the bank of the proceeds of the stock seized by the bank, on the ground that her privilege was superior to that of the said bank, was an error. We now notice that her motion contains the statement that her suit against National Mutual Assurance Association was then pending.

The record shows that her opposition in the suit Security Bank vs. National Mutual Assurance Association was filed on April 12, 1929; the record in the case, Corinne Wren Davis vs. National Mutual Assurance Association, shows that she recovered judgment against National Mutual Assurance Association on April 12, 1929. Both took place on the same day. The mistake is acknowledged. The statement is in a narration, which had no bearing on the result. The opinion will stand corrected in that respect; but, as the mistake did not influence the result, there is no reason for changing the decree.

A serious error urged by the plaintiff in its petition for rehearing, and which we acknowledge, is the statement in the opinion that the plaintiff had admitted all the averments in the motion and opposition of Miss Davis, except the fourth, which it did not answer; that the failure of the bank to answer the fourth averment of her opposition established both grounds on which the bank contested the superiority of her privilege. Plaintiff’s complaint on that subject is well founded.

The second averment in the motion and opposition of Miss Davis is denied in the answer of the plaintiff. The statement in the opinion, that each of the said averments had been admitted, except the fourth, is now recalled and set aside. And on further consideration we have also concluded that article 4, not answered, is in effect but a conclusion of the pleader. And, article 2 being denied, it was incumbent on Miss Davis to prove, not only the facts establishing her privilege against National Mutual Assurance Association, but also against the Security Bank. In making this proof, her cause is now regarded as unaided, by an admission of the kind stated. But, as stated in the opinion affirming the judgment appealed from, Miss Davis had established her privilege on the trial of the consolidated suits; and we now add the statement that the proof results from her uncontradicted testimony given on the subject, contradictorily with all parties before the court.

We have re-examined the evidence on this subject, and her evidence shows her employment by National Mutual Assurance Association, as clerk, secretary, and stenographer; that the amount of $207 is due her on account of her services. For her service the law creates the privilege which she claims. Civil Code, art. 3191, subd. 6, article 3252, subd. 5 (Act No. 242 of 1918).

The privilege existing in favor of Miss Davis on the ten shares of stock in Security Homestead Association certificate No, 219, belonging to ber debtor, was not lost as a result of the bank’s attachment, but continued in force and remained superior to that of the plaintiff, over the proceeds in the hands of the clerk of court. Erman & Cahn vs. Lehman, 47 La. Ann. 1651, 18 So. 650.

A clerk has a privilege on all the property of his employer. A sale accompanied by delivery destroys this privilege; not so an attachment; the property attached belongs to the original owner until divested by the sale; and the privilege of a clerk will entitle him to be paid in preference to the attaching creditor. Tiernan vs. Murrah, 1 Rob. 443. We therefore see no reason for granting a rehearing.


author: WESTERFIELD, J.

text:
    No. 12,060
    Orleans
    PAUL v. TABONY
    (March 24, 1930. Opinion and Decree.)
    (April 21, 1930. Rehearing Refused.)
    (June 2, 1930. Writ of Certiorari and Review Refused by Supreme Court.)
    De Vilches Doussan, of New Orleans, attorney for plaintiff, appellee.
    Paul 'W. Maloney, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

Nearly ten years ago the plaintiff in this case filed a suit against the defendant for the recovery of $340. The defendant has, so far, succeeded in evading payment of this claim, which has several times been adjudged to be a just one. Appeals to this court have been had on at least four occasions for some form of relief; which has in each instance been denied. Whereupon in each instance the supervisory authority of the Supreme Court has been invoked with the same result. The present appeal is from a rule ordering the surety on the original appeal bond to pay the judgment, a fi. fa. having been returned nulla bona as against the defendant, Tabony. Plaintiff has answered the appeal, praying for damages for frivolous appeal.

Counsel for appellant, in a half-page typewritten brief, enumerates a number of objections and alleges numerous errors in the judgment complained of, but no authorities whatever are cited and no oral or written argument has been made in support thereof.

Without going into any details, we are convinced that the appeal is frivolous and that the damages asked for should be assessed.

It is therefore ordered that the judgment appealed from be affirmed, with 10 percent damages for frivolous appeal.

Affirmed, with damages for frivolous appeal. •


text:
    No. 11,621
    Orleans
    UNITED MOTOR CAR CO. v. MORTGAGE & SECURITIES CO., INC.
    (May 19, 1930. Opinion and Decree.)
    H. L. Hammett, of New Orleans, attorney for plaintiff, appellant.
    Manning W. Heard and Wm. W. Ogden, of New Orleans, attorneys for defendant, appellee.
   JANVIER, J.

Charles P. Muller was the acting head of the loan department of Mortgage & Securities Company, Inc. He had no authority to sign checks for the corporation, but, as head of his department, it was his duty to approve certain payments in which his department was interested and, upon receipt of his approval in the form of a written voucher, the necessary check was signed by other employees or officers.

The Mortgage & Securities Company, Inc., for some time prior to the events which gave rise to this suit, had, through its loan department, been managing what was known as the “Duggan Estate” and had, in connection with that estate, made payments to one E. H. Johnson, a plumbing contractor of Baton Rouge.

Though at the particular time in question no payment was due Johnson, and though all payments made him theretofore had been very modest in amount, Muller executed the necessary approval voucher for the issuance of a check payable to Johnson for $800.

This check, after being executed on behalf of Mortgage & Securities Company Inc., by J. M. Miller, its vice-president, and P. N. Ogden, manager of its bond department, was, in due course, placed on Muller’s desk ostensibly for delivery to Johnson, named as payee.

Muller thereupon indorsed Johnson’s name upon the check after writing the words “Pay to the order of C. E. Muller.’’

Being desirous of purchasing an 'automobile, Muller then proceeded to the place of business of plaintiff on June 5, 1926, and, after selecting a car suitable to him, gave to plaintiff the check* to which we have referred, as payment on account of the purchase price.

Plaintiff thereupon deposited the check with Canal Bank & Trust Company, which institution sent it to the Whitney Bank, on which bank it was drawn and by which it was • in due course paid.

During the early part of August, 1926, Mortgage & Securities Company, Inc., discovered that Muller was guilty of certain defalcations, and an investigation and audit of the affairs theretofore handled by him was commenced.

As a result of this investigation, it developed that the check in question should not have been executed; that neither the amount thereof nor, in fact, any other amount, was due to Johnson; and that the indorsement was a forgery executed by Muller. In the meantime the automobile had been seized and sold at the instance of another creditor of Muller, but plaintiff although present at the sale, because of its custom of being represented at all sales of automobiles formerly sold by it, made no attempt to protect itself by bidding in the automobile because it did not know that it was interested by reason of the fact that the $800 payment made to it depended upon a forged indorsement.

On November 13, 1926, the Whitney Bank was notified that the indorsement was a forgery. That bank called upon the Canal Bank & Trust Company for reimbursement, which was forthcoming, and Canal Bank & Trust Company thereupon charged the account of plaintiff with the amount thereof, after notifying it that it itself had been notified that the indorsement was forged.

This suit is the result.

It is charged that Mortgage & Securities Company, Inc., which, we note, has since been placed in the hands of a receiver, is liable to petitioner on two grounds:

First, that the check was payable to a fictitious person, known to be such to the agent who issued it, and was therefore in reality payable to bearer, and that thus, under the Negotiable Instruments Law (Act No. 64 of 1904), title thereto passed to a bona fide third holder, even without endorsement; and,

Second, that the negligence of defendant in not properly safeguarding the issuance of its checks, and later in not promptly notifying plaintiff of the discovery of the forgery, rendered it liable, regardless of whether title to the check passed by mere delivery.

Defendant, on the other hand, contends that the check was not payable to a fictitious payee, and that, even if it could be so considered, nevertheless it cannot be charged with knowledge of the fact that the payee was fictitious, and that, in the absence of such knowledge, the instrument cannot be considered as payable to bearer.

Defendant also maintains that it notified the Whitney Bank as soon as it discovered the forgery; that it discovered it as soon as it was reasonably possible for it to do so, and that therefore it was not guilty of laches in this regard; and that the fact that plaintiff failed to protect itself by buying the car at the sheriff’s sale instigated by another creditor of Muller, if such is a fact, is so remote a consequence of the delay, if there was in fact delay, that it cannot be chargeable as a matter of law to that delay. It was conceded that E. H. Johnson, named as payee, was an existing person, and that plaintiff, when it accepted the check, made no investigation to determine whether-the indorsement thereon was genuine, and it is thus argued that the real cause of plaintiff’s loss was its failure to investigate in an effort to determine whether or not the endorsement of Johnson was genuine.

We do not think that it can be said that the check was payable to a fictitious payee in the sense contemplated by the Negotiable Instruments Law, and we therefore feel that it should not be treated as an instrument payable to bearer, primarily because the payee named actually existed, and also because the persons who issued the check on behalf of defendant did not know that it was intended to be drawn for the benefit of any other person than Johnson, with whom and with whose connections with the institution they were familiar.

“It cannot be treated as payable to bearer unless the maker knows the payee to be fictitious, and actually intends to make the paper payable to a fictitious person.” Seaboard National Bank vs. Bank of America, 193 N. Y. 26, 34, 85 N. E. 829, 831, 22 L. R. A. (N. S.) 499.

In the footnotes on page 180 of Corpus Juris, vol. 8, we find the following:

“This rule (that paper payable to a fictitious person is payable to bearer) applies only to paper put into circulation by the maker with knowledge that the name of the payee does not represent a real person. The maker’s intention is the controlling consideration which determines the character of such paper. It cannot be treated as payable to bearer unless the maker knows the payee to be fictitious, and actually intends to make the paper payable to a .‘fictitious person.’ * * * There are authorities to the contrary in this country, but the clear weight of authority in both England and the United States is in favor of this rule.”

In a case surprisingly similar to that before us, Los Angeles Investment Co. vs. Home Savings Bank, 180 Cal. 601, 182 P. 293, 295, 5 A. L. R. 1193, in which the facts as set forth in appellee’s brief were that “one Emory, manager of the insurance department of plaintiff, requested the accounting department to issue checks in payment of premiums due to agents of plaintiff and upon receipt of the checks Emory endorsed them in the name of the ostensible payee and then endorsed his own name and secured the payment,” the court said:

“It is also true that the payee named in several of the checks had no existence in the mind of Emory, and that the payees named in all of the others with one exception * * * were persons to whom Emory did not intend the checks to come. As to Emory, the payees, with the single exception noted, were all fictitious. The question is: Were they fictitious as to the plaintiff company? The answer to this question obviously depends upon whether Emory’s intention that the checks be made payable to persons who were not to receive the paper * * * is attributable to the company. The bank’s counsel in their brief say: ‘But appellant did intend something when it issued the checks. What was it? It Intended that the money. be paid to the person to whom Emory intended it to be paid — and the money was so paid.’
“This is the very crux of the matter. But is it true? Plainly it is not. Emory did not execute the checks on behalf of the company. It is the intention of the officers who did that must be taken to be the intention of the company. The execution of tlie checks was one within the scope of their authority, not within that of Emory. As to these officers, it is plain that they did not intend to execute checks to fictitious parties or to pay money to the person to whom Emory intended it should he paid, to-wit, himself. They intended to pay money to what they believed to be existent persons, and, this being so, the checks cannot be considered as made to fictitious payees.”

Nor do we believe that it makes any difference that, in all probability, these officials would readily have signed the check had it really been payable to a person who did not exist, but who was certified by Muller to be entitled to it, because we recognize that modern business demands that trust and confidence be placed by corporations in their various officials, and we believe that the following doctrine, enunciated in Los Angeles Investment Co. vs. Home Savings Bank, supra, is entirely sound:

“Complaint is chiefly made that the company relied upon the honesty of its heads of departments and the regularity on their face of the. demands or requisitions which such heads approved, and made no investigation to determine whether such demands were fraudulent or not. But trust must be placed in some one (Kohn v. Sacramento Electric Co., 168 Cal. 1, 141 P. 626; The Yamato v. Bank of Southern California, 170 Cal. 351, 149 P. 826), and necessarily in heads of departments. If trusting them in regard to demands for checks for disbursements regular upon their face is negligence, so it would be negligence to trust them in a hundred other ways in which it is within their power to defraud their employer. Business could not be conducted on any such basis. It is impossible for any large concern' to investigate minutely in advance every demand for disbursement necessary for it to make in its daily business. The delay and expense of so doing would be too great.”

It is said by counsel for plaintiff that there are no Louisiana decisions involving the question presented here. So far as we have been able to discover, he is correct in this statement, but we cannot agree that the law of other jurisdictions is in so unsettled a state as he suggests.

The decisions on which he mainly relies, Litchfield Shuttle Co. vs. Cumberland Valley National Bank, 134 Tenn. 379, 183 S. W. 1006; Equitable Life Assurance Society vs. National Bank of Commerce (Mo. App.) 181 S. W. 1176, and Snyder vs. Corn Exchange National Bank, 221 Pa. 599, 70 A. 876, 128 Am. St. Rep. 780, were rendered in cases in which the person drawing the check had full authority to do so and did so knowing that it was not intended to go to the person named as payee, or in which the payee named was a purely fictitious person.

Here Muller did not draw the check, and the officials who did do so were justified in believing that it was really intended for Johnson, who was a real person and who had had dealings with their institution.

The loss resulting from the forgery of an indorsement properly falls on him whose claim to the instrument depends upon the indorsement, and it is his duty, before accepting from one person a check payable to another, to investigate and determine whether it bears the genuine indorsement of that other.

As was said in Jordan Marsh Co. vs. National Shawmut Bank, 201 Mass. 397, 87 N. E. 740, 742, 22 L. R. A. (N. S.) 250:

“If one is fraudulently induced to deliver to a person who is not entitled to it a check made payable to another person who is not entitled to payment of it, can his negligence in suffering the fraud to be practiced upon him be found to be a direct and proximate cause of a payment made by the banker on whom the check is drawn, upon a forged indorsement of the name of the payee, without any investigation by the banker as to the genuineness of the indorsement? We think not. The check is like any other check payable to a real person which happens to.be in the possession of another person. It is possible to forge an indorsement upon it, as it is to forge an indorsement upon any other check. * * * But the whole duty of seeing whether there is a forgery of such an indorsement upon any check rests primarily upon the banker. The drawer of the check has nothing to do with that.”

That plaintiff was not sooner notified that the indorsement on which it relied for the title to the instrument was a forgery is an unfortunate circumstance, but pne which, it appears to us, cannot be charged to defendant.

It is true that if a bank pays a check on a forged signature of the supposed drawer it is the duty of the drawer, within a reasonable time after- the return of the instrument, to notify the bank of the forgery. That even in the case of the forgery of the signature of the maker it may take some time to discover the forgery is recognized by the Legislature, and therefore, under Act No. 44 of 1912, the drawer is given one year to notify the bank of such forgery. But no such duty exists in the case of a forged indorsement. So far as we know, it is entirely possible that a forged indorsement may not come to light for an indefinite period, and, unless it can be shown, as we do not think it was shown here, that there was some duty to discover the forgery sooner than it was disco'vered, the person who has been defrauded may call upon the bank which has paid the check upon a forged indorsement for restitution whenever the discovery of the forgery is made.

The rule set forth in Sprague vs. West Hudson Trust Co. et al., 92 N. J. Eq. 639, 114 A. 344, 345, 17 A. L. R. 952, appears to us to be sound:

“We are quite unable to see any equity in favor of complainants. It is true that Swift & Co. owed it to their bank, after return of their paid checks, to exercise reasonable diligence and care to examine the vouchers and the account as stated by the bank, and inform it of any errors thus discoverable. (Authority cited.) But we have never heard that this duty extended to others than the hank. Persons into whose hands a check may come before payment take the risk of forged signatures and forged indorsements, preceding their own. * * * There was no privity between them (Complainants) and Swift & Co. All that the latter were interested in was that the bank should not pay out money on their account improperly; and, if it did so, the question whether it should respond to Swift & Co. is one in which complainants would seem to have no legal or equitable interest. We have seen that a bank which has paid on a forged indorsement may in some case defend against its depositor on the theory of negligence; but we have never heard of this rule being invoked in favor of any one but the depository bank. Its contract with the depositor is to pay its debt to him when and as demanded by checks upon it. * * * The claim of estoppel set up in the brief rests on the notion that Swift & Co. owed the public, including complainants, some duty of care in examining their own accounts and returned vouchers. We know of no such rule.”

But the record convinces us that all reasonable diligence was exercised in investigating the defalcations of Muller, and that, after the discovery of the • particular forgery involved here, the bank was notified with reasonable promptness, and that defendant cannot be held liable on this ground.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be and it is amended so as to read in favor of Guy Hopkins, receiver of Mortgage & Securities Company, Inc., and that, as thus amended, it be affirmed at the cost of appellant.


text:
    No. 12,198
    Orleans
    FORD v. RUSSELL
    (May 19, 1930. Opinion and Decree.)
    Alexis Brian, of New Orleans, attorney for plaintiff, - appellee.
    Lazarus, Weil & Lazarus, of New Orleans, attorneys for defendant, appellant.
   JANVIER, J.

Ford, plaintiff, seeks to recover from Russell, defendant, $640.60, of which $634.80 has been paid by him to Russell as installments on the purchase price of certain land formerly forming part of Poydras plantation in the parish of St. Bernard.

On August 3, 1921, a written contract was entered into under which Ford agreed to pay $2,912 for the land.

He paid $292 in cash and, for the balance, executed ten notes, each for $262, one payable each year for ten years.

Although the contract required only $262 to be paid each year, Ford had on July 11, 1922, paid to Russell a total sum of $634.80, and had also expended in costs in connection with the transaction $5.80, making a total of $640.60, which is the amount he now sues for.

The contract, which was in writing, stipulated that, when the payments aggregated one-half of the total purchase price, an act of sale would be passed transferring title.

This contract was duly registered in the conveyance records of the parish of St. Bernard, and is still uncancelled upon the records.

During July, 1922, a crevasse occurred at Poydras, and as a result thereof the Mississippi river made large encroachments upon the land which Ford had contracted to buy. ’

Later, after the waters had subsided and had left a large cut or bay in the land which formed the basis of the contract, the levee authorities found it necessary, in reconstructing the levee, to appropriate another substantial portion of the land in question, with the result that, after the completion of the levee, there remained but little, if any, of the land available for cultivation or other use.

For some time Russell, through his agent, negotiated with the Lake Borgne Basin Levee board in an effort to obtain from that body compensation for himself and for those to whom he had contracted to sell lands, for such property as had been taken, and finally, after litigation, he was successful in securing a sum which is said to represent the assessment value of the lands taken.

This money was divided by Russell among the land purchasers on an acreage basis, and on that basis there was due to Ford $197.10. Ford, however, refused to accept that sum as representing the full amount due him, treated the transaction as having been terminated by the occurrences to which we have referred, and now seeks to recover from Russell the full amount paid to him up to the time of the crevasse and also the expenditures to which we have referred.

Since Russell, prior to the commencement of this proceeding, had permanently left the state of Louisiana to take up a residence elsewhere, plaintiff deemed it necessary to create jurisdiction in the Louisiana courts by attaching here moneys and credits held for Russell by third persons.

Russell had, prior to leaving this city appointed by notarial act Meyer Eiseman as his agent, with general powers, and had registered that act of procuration in the office of the clerk of court for the parish of St. Bernard.

Defendant’s first contention, raised by exception, was that, since he had left a general power of attorney here under which proceedings in personam could have been commenced against him, his property could not be brought into court by attachment.

Whether the fact that he personally resided without the state and could have found it a simple matter to withdraw all his funds and movables from this jurisdiction and thus deprive plaintiff of the probability of recovering under such judgment as he might obtain, would entitle plaintiff to proceed by attachment, is fortunately a matter upon which we need burn no midnight oil, as we believe that, by voluntarily appearing through his attorney, in fact and through his attorney at law, he has waived his objection to the form of the commencement of the proceedings, however sound that objection niay originally have been. Article 93, Code of Practice.

Having eliminated that preliminary question, it now behooves us to consider the various other defenses which Russell’s astute counsel has interposed:

First, that the petition does not set forth a cause of action for two reasons: (a) That plaintiff failed to offer to cancel the contract to purchase the property and failed to erase it from the conveyance records; and (b) that, since the property was not destroyed by defendant’s fault, but by vis major, and since the contract created in plaintiff an absolute right to take over the property as soon as he had paid one-half the price, pending payment of the price, it was being held at his risk, and that therefore, he and not defendant should suffer as the result of the destruction by an act of God.

Second, that, if the petition does disclose a cause of action, such cause of action is barred by the prescription of five years.

Third, that plaintiff is estopped to demand restitution of the full amount paid by him because he, by his actions, authorized Russell and his agent, Eiseman, to negotiate with the levee board for compensation, and thus tacitly agreed to accept as full remuneration such settlement as might be obtained from that board, either amicably or as the result of litigation.

The contention that the petition is fatally defective because in it plaintiff failed to tender back to defendant such rights as may have been transferred by the contract and failed to set forth a willingness to have erased from the records the inscription of that contract does not impress us.

Of course, if we could interpret plaintiff’s failure to make the allegations referred to as evidencing a desire to receive back his payments and at the same time to retain such rights as he might have had in and to so much of the land as remained, we would readily hold that such desire could receive no encouragement at our hands. He could not eat his cake and still have it. But the petition clearly shows that plaintiff’s purpose was to abandon all right or claim to any of the land, and, so far as this contention is concerned, defendant’s rights to such land as remains, if any does remain, and to the cancellation of the inscription of the contract on the public records, can be protected by an appropriate decree.

The cases cited by defendant, Vancleave, Jr., vs. Nelson et al., 49 La. Ann. 621, 21 So. 734; Roberts vs. Rodes, 3 Mart. (N. S.) 100; George vs. Knox, 23 La. Ann. 354; Clover vs. Gottlieb, 50 La. Ann. 568, 23 So. 459; Hitt vs. Herndon, 166 La. 497, 117 So. 568; and Andrews vs. Hensler, 6 Wall. 254, 18 L. Ed. 737, in our judgment, do no more than establish the principle that one cannot retain the benefits of a contract and avoid the correlative obligations. True, in the Vancleave case, the court said:

“The allegations and prayer of the petition virtually make this a suit to set aside and annul the contract of sale, though the petition does not express this in so many words. And, while asking the restpration of the price represented by cash and notes, the vendee proposes on his part no restitution of or accounting for the property bought.’’

But we do not believe that it was intended to hold that there must be an affirmative allegation of willingness to return the property, if the petition, read as a whole, indicates such willingness; as does the one we are now considering.

In reaching this conclusion, we cannot lose sight of the fact that it is very doubtful if any of the land in question actually remains, and it is therefore probable that nothing remained on which plaintiff could claim any right under the contract, even if he desired to do so.

The contention that, at the time of the crevasse, the property, though in the legal possession of defendant, was in reality held at plaintiff’s risk, because the contract gave him (plaintiff) the right to obtain a deed thereto on the sole condition of paying one-half of the purchase price, seems to us to be based on a misconstruction of the provisions of articles 1919 and 2552 of the Civil Code. Article 1919 reads as follows:

“If the contract be complete, and be one that purports a transfer of the ownership of the property, its destruction before delivery or default does not exonerate the party who was to have received it, from the performance or delivery of that which on his part was intended as the price or equivalent for such property.”

It is argued that, since the contract here purported a transfer of ownership, as soon as the contract was executed, the risk of destruction by vis major was shifted to Ford. We think that, in view of the other articles of the Code with reference to the situation which existed here, the construction urged upon us by defendant cannot be placed upon this article, and that it is only where the title has passed and the purchaser has neglected to take possession that the risk pending taking possession shifts to him.

This intention is plainly indicated in article 1918 and also in article 2467 et seq. Particularly does article 2471 throw light upon the situation. That article -reads in part as follows:

“A sale, made with a suspensive condition, does not transfer the property to the buyer, until the fulfillment of the condition.
“If the thing be destroyed before this happens, the loss is sustained by the seller.”

Here, even if we could treat the contract as anything more than a mere agreement to sell, still the suspensive condition, the payment of the price and the retention of possession, would have prevented the shifting of the risk to plaintiff.

Article 2552 also applies to a sale complete except for delivery, as is plainly shown in Pittsburgh & Southern Coal Co. vs. Charles B. Slack & Co., 42 La. Ann. 108, 7 So. 230, in which our Supreme Court said:

“This presents a simple issue of fact, involving no question of law whatever. There is no question as to the completeness of the contract between the parties. The issue is as to the terms of the contract. If, as defendant contends, the contract was for a sale, to take effect as such only on August 20th, covering alike the boat and barges, plaintiff would admit that the loss of the boat fell on him, just as he does admit that he must bear the loss of the barges. If, on the other hand, the contract was that the sale of the boat was to take effect on the 18th, the Civil Code would inform the defendants, unmistakably, that, the ‘agreement for the object, and the price thereof, being completed,’ the thing sold was at their risk, ‘although the object had not been delivered, or the price paid,’ the seller not being in default for non-delivery.”

Nor do we attach any importance to defendant’s suggestion that possession could have been obtained by Ford immediately upon execution of the contract had he desired it. It is admitted that he did not take possession and his rights are determined by the legal situation as it existed and not by what might have been the situation had he been granted the right to take over the property and had he done so. Even had he gone into possession prior to paying the price, he would have been on the land only by sufferance and not as owner, and we doubt whether, in the absence of an express agreement, he would be responsible in case of destruction by a fortuitous event. We think that evidence on the question of whether other prospective purchasers went into possession was inadmissible.

We now approach the question presented by the plea of prescription of five years under Civil Code, art. 3542, which reads in part as follows:

“The following actions are prescribed by five years:
“That for the nullity or rescission of contracts, testaments or other acts.”

The crevasse occurred in July, 1922, and this suit was filed on September 13, 1928, or more than six years after the crevasse.

Plaintiff maintains that this is not an action for nullity or rescission, but a simple suit for the return of a deposit, and that thus it should be barred, not by the prescription established by Civil Code, 9,rt. 3542, but rather by that of ten years under Civil Code, art. 3544. Inasmuch as there is no controversy over the fact that after the crevasse it was no longer possible for the owner of the land to transfer it to the prospective purchaser, there is no necessity for a judicial determination of whether the contract should be receded from, but all that is presented for our consideration is whether, when a contract becomes impossible of performance, money paid on account thereof should be returned. There is considerable room for dispute in matters of this kind over the question of whether or not the prescription applicable is that provided for under article 3542, or is that set forth in article 2221. At first reading, these two articles seem to cover identical situations, and in one prescription of five years is fixed, whereas in the other ten years is required. The Supreme Court of this state, in Brownson vs. Weeks, 47 La. Ann. page 1042, 17 So. 489, 492, discussed these two articles, and, after stating certain situations to which the five-year prescription set forth in article 3542 applied, said: .

“In our opinion, the prescription of ten years applies to a different class of cases. It reaches those where contracts, perfect and complete on the face of the act evidencing them, are attacked as absolutely null and void, in order to have them so decreed, through proof of extrinsic facts establishing the absence of one of the elements essential to the very existence of the contract; for instance, a contract of sale or exchange where one of the things exchanged or the thing sold was found to have had no existence at the date of the contract.”

We see no difference between the case where the thing sold or exchanged was found to have no existence at the time of the contract and the case where the thing sold or exchanged, though in existence at the time’ of the contract, had passed out of existence prior to the date fixed for delivery thereof. Whether the prescription applicable here is that provided for by article 2221, or that provided in all other personal actions under article 3544, is immaterial, because in both cases that fixed' is ten years, and we are quite certain that one of these two articles is applicable and not article 3542.

The only remaining question is that presented by the plea of estoppel, which is based on the theory that, as Ford knew that Russell was negotiating for a settlement of the claim which all of the purchasers had against the levee board, he is bound by the result of those negotiations and the resulting litigation, and is estopped to claim anything more than his proportionate share of the total sum finally paid to Russell. ' On this question we think it unnecessary to say more than that a careful review of the record convinces us that at no time was the conduct of Ford such as to give to Russell, or his agent reason for believing that he (Ford) was willing to accept only such return as might be obtained from the levee hoard, or that he intended to waive his claim for the return of his entire payment. We are therefore of the opinion that the amount paid by Russell, together with the necessary costs incidental thereto, should be returned to him, subject, of course, to a credit for the amount which he has already received, to-wit, the sum of $197.10.

The judgment appealed from is amended by increasing the amount thereof from $640.20 to $640.60, subject to a credit of $197.10 deposited on June 28, 1929, and subject to the execution .by appellee of such document as will cancel any remaining rights under the contract and as will cause the erasure from the conveyance records of the parish of St. Bernard of the inscription of the said contract.

As thus amended, the judgment appealed from is affirmed; appellant to pay all costs.


author: HIGGINS, J.

text:
    No. 13,199
    Orleans
    CRAIS ET AL. v. CASTAING ET AL.
    (May 19, 1930. Opinion and Decree.)
    Hiddleston Kenner, of New Orleans, attorney for plaintiff, appellant.
    Legier, MeEnerny & Waguespack, of New Orleans, attorneys for Homeseekers’ Building & Loan Association.

      Jno. Wagner, of New Orleans, attorney for Anthony Rumore and heirs of J. Oddo, appellees.
    Sidney F. Gautier, of New Orleans, attorney for Armand J. Castaing, appellee.
   HIGGINS, J.

Plaintiffs William C. Crais and the Union Homestead Association sue defendants, Armand J. Castaing and the Homeseekers’ Building & Loan Association for the reformation and correction of an act of sale of real estate passed before Robert Legier, notary public, on July 8, 1921.

The original petition, which was filed October 5, 1921, avers that on - November 21, 1919, plaintiff purchased from the Union Homestead Association lots Nos. 7, 8, and 9 of square 1537, fronting on St. Bernard avenue of this city; that petitioner erected his residence on the whole of lot No. 7 and reserved a strip about 4 feet in width of lot No. 8, for a driveway; that, during the latter part of May, 1921, petitioner agreed with the defendant Castaing to sell him the whole of lot No. 9 and also lot No. 8, except the 4-foot driveway, for the price and sum of $2,400 cash; that the said 4-foot driveway extended the full depth of lots 7 and 8, and on this line was erected a boundary fence constructed of poultry wire; that on July 8, 1921, petitioner went to the office of Robert Legier, notary public in the city of New Orleans, for the purpose of completing the transaction, and believing the description contained in the act of sale prepared by the notary conformed to the agreement which the petitioner had with Castaing, signed the act of sale to the Homeseekers’ Building & Loan Association, which purchased the property for the account of Castaing, and which act of sale was properly recorded in the conveyance office of this city; that in the said act of sale, through error, the whole of lots 8 and 9 were conveyed instead of reserving to petitioner the 4-foot strip of driveway taken from lot No. 8 and adjacent to lot No. 7; that petitioner had only agreed to sell and Castaing had only agreed to purchase all of lot No. 9 and a portion of lot No. 8, which piece or portion would have measured 70 feet front on St. Bernard avenue, but that through the aforesaid error the whole of lot No. 8 was included, making the piece of property conveyed by petitioner to the Homeseekers’ Building & Loan Association measure 74 feet front on St. Bernard avenue; that the said act of sale was not read by the notary public at the time of the passing thereof, and that, due to the fact that the property was incumbered with a vendor’s lien and mortgage in favor of the Union Homestead Association, it was necessary to have the secretary of the homestead appear at the passing of the act of sale and release the property from the homestead’s vendor’s lien and mortgage; that the secretary signed the release believing that he was only releasing that portion of the three original lots which remained after reserving the 4-foot driveway and lot No. 7 to the plaintiff; that thereafter, on July 15, 1921, the petitioner being unaware of the fact that he had made the above error, conveyed lot No. 7 and the 4-foot driveway to the Union Homestead Association, in order to secure a loan for the purpose of making further improvements on his property; that, about one month after the act of sale was passed before Robert Legier on July 8, 1921, petitioner discovered that defendant Castaing was removing the fence which separated the driveway from the remaining portion of lot No. 8 and that petitioner protested against the same and was informed by Castaing that he would replace the fence after he had completed the improvements on the property which he had purchased from petitioner; that a few days after, Castaing informed plaintiff Crais that he would not replace the fence on its original line because his title called for 74 feet and he intended to retain all the property which the title conveyed to him; that on September 2, 1921, petitioner made written demand upon Castaing to join in an act of correction to correct the error in the description contained in the act of sale passed before Robert Legier, and to make it conform to the agreement and intention of the parties, but that Castaing through his attorney, on September 7, 1921, in writing, refused to do so; that on September 27, 1921, the petitioner made a like demand upon the defendant Homeseekers’ Building & Loan Association, which also refused to comply with the demand.

Petitioner prays that the act of sale passed before Robert Legier on July 8, 1921, be reformed and corrected so as to reserve a 4-foot driveway to petitioner in accordance with the original agreement between the petitioner and Castaing.

On October 13, 1921, Castaing filed an exception of vagueness which was overruled on July 11, 1922.

On January 26, 1922, defendant Castaing filed an exception of no right or cause of action and also answered denying the allegations of plaintiffs’ petition and averring that the description contained in the act of sale passed before Robert Legier, notary public, on July 8, 1921, was correct, and that the act was read by the notary, and the plaintiff had made no objection to the description at that time.

On October 10, 1921, the Homeseekers’ Building & Loan Association filed an exception of vagueness.

On January 18, 1922, the Homeseekers’ Building & Loan Association answered and denied the allegations of the original petition, averring that the act of sale was in accordance with the understanding of the parties and that the act was read to the parties before the signing, by the notary, particularly the description and the essential parts of the act were explained to them and specially averred that the notary was not in a hurry and practiced no fraud upon the plaintiff; it further denied that the notary was employed or1 acted in the interest of the defendant Castaing but was acting in behalf of the defendant homestead.

On May 11, 1923, plaintiffs filed a supplemental and amended petition alleging that, at the time that Castaing agreed to purchase the property, he went on the property and made a careful inspection of it, and that it was clearly intended that he would purchase lot No. 9 and a part of lot No. 8, up to the poultry wire fence which separated the driveway from the other portion of lot No. 8; that a sketch or plan of the property showing the precise measurements was delivered to Castaing at that time; that, notwithstanding the fact that defendant knew that the 4-foot driveway was reserved to petitioner Crais, he fraudulently instructed the notary to describe the whole of lot No. 8 without excepting the driveway, and that, on the day fixed for the passing of the act of sale before Mr. Legier, plaintiff went to the notary’s office, who informed him that he was in a hurry to fill another important engagement elsewhere and assured plaintiff that the act of sale was in the usual,- customary form, in accordance with the terms and conditions of the agreement to purchase and that the property was correctly described, and, 'being hurried and harrassed by the notary public to complete the sale as quickly as possible and not suspecting any fraud, he signed the act of sale; that in signing the act of sale he was led into the error by the misleading statement of Legier that the description of the property was correct and that the notary represented that the act of sale was in accordance with the agreement between Crais and Castaing; and that the notary was employed and acted as an agent of the defendant Castaing.

During May, 1923, the defendants also denied the allegations of the supplemental petition and filed exceptions of no cause or right of action as to it.

The exceptions of no cause or right of action filed by both defendants were tried and sustained on December 21, 1923, and the plaintiffs’ suit dismissed.

The case was appealed to this court by the plaintiff. A motion to dismiss the appeal for want of jurisdiction was denied by this court on February 14, 1927. Crais vs. Castaing et al., 6 La. App. 144.

On March 28, 1927, this court reversed the judgment of the district court, holding that the petition did allege a right or cause of action, and remanded the case to the civil district court for further proceeding. See Crais vs. Castaing et al., 6 La. App. 144.

In the meantime, on June 9, 1922, the Homeseekers’ Building & Loan Association, had sold the property to Mrs. Armand Castaing. On March 18, 1927, Mrs. Castaing sold a large portion of lot No. 8 and a small portion of lot No. 9 to Messrs. John Oddo and Anthony Rumore, reserving the rear part of lot No. 8 and very nearly all of lot No. .9.

On March 16, 1928, plaintiffs made Messrs. John Oddo and Anthony Rumore parties defendant. Both of these parties appeared and filed exceptions of vagueness and of no right or cause of action and misjoinder of parties defendant. These exceptions were referred to the merits by the court. Messrs. John Oddo and Anthony Rumore then answered reserving the benefit of the exceptions, averring that they had employed an attorney to examine the title and had obtained clear mortgage and conveyance certificates, and that they did not have any knowledge or intimation of any trouble between plaintiffs and the other defendants as to the title of the property; that they bought upon the faith of the public records and were therefore innocent third parties; and that there had not been any notice of lis pendens filed by plaintiff concerning this suit in the mortgage office as required by law, in order to place third persons on notice.

It then appears that Mr. John Oddo died, and his heirs were made parties defendants by petition of plaintiffs on January 4, 1929. These heirs answered, reiterating the allegations contained in the answer filed by their deceased father.

On April 23, 1929, the defendant Castaing, reserving the benefit of the exceptions he had filed, answered the supplemental petition of plaintiffs, denying that he was in any way guilty of fraud and specially denied that there was any error, and further averring that the plaintiff signed the act of sale with full knowledge of all the facts, and specially denied that there was any such agreement or understanding between himself and plaintiff Crais as set forth in the supplemental petition filed by plaintiffs.

The case was tried on its merits on April 23, 1923, and resulted in a judgment, which was rendered on May 6, 1929, in favor of the defendants, dismissing the plaintiffs’ suit. From this judgment plaintiffs have appealed.

There appears to be considerable merit in the contention of the Homeseekers’ Building & Loan Association that only a moot question is now presented, due' to the fact, first, that the plaintiffs have failed to ask for the reformation and correction of the act of sale by the Homeseekers’ Building & Loan Association to Mrs. Armand Castaing on January 9, 1922, the petition merely praying for the correction and reformation of the act of sale by plaintiff Crais to the Homeseekers’ Building & Loan Association, passed before Robert Legier, on July 8, 1921, and therefore this court would be powerless to give plaintiffs the relief sought, as the prayer is not broad enough to warrant the court in doing so; and, second, because the plaintiffs have failed to file notice of lis pendens in the mortgage office as required by Act No. 22 of 1904, and thereby permitted the defendant Castaing to sell practically all of the property to innocent third persons, who purchased upon the faith of the public records without notice, and who thereby secured valid title to the property in dispute.

The contention of the attorney of Ru-more and the heirs of Oddo is that they are innocent third persons who purchased upon the faith of the public records without actual knowledge and. without constructive notice as plaintiffs failed to record notice of lis pendens in the mortgage office as required by Act -No. 22 of 1904, and that therefore, they cannot be bound by any secret equities resulting from mistakes or fraud between the original parties and that they have a good title to the property. This position appears to be sound in the light of the numerous authorities cited by counsel for these parties in support of this argument.

Without passing upon these issues, and giving the plaintiffs the benefit of the most favorable construction that could be placed upon these defenses by assuming that they are not well founded, the conclusion that we have reached upon the merits of the case makes it unnecessary for us to pass upon these points.

The sole issue on the merits is whether or not Crais and Castaing agreed that the 4-foot driveway taken from lot No. 8 would be reserved to Crais. Plaintiffs contend that the 4-foot driveway was reserved, and defendants contend that it was not reserved.

The plaintiffs’ evidence on this issue consists of the testimony of Crais and his wife, who state that Castaing made an inspection of the property and agreed that he would pay $2,400 for the remaining portion of lot No. 8 and the whole of lot No. 9, as Mr. Crais called his attention to the fact that he wanted the driveway reserved.

Mr. Crais produced a photograph showing the driveway and the wire fence which he says existed at the time when the negotiations for the sale of the property to Castaing were entered into during May, 1921. He also produced á receipt in his own handwriting, dated May 19, 1921, whereby he acknowledged receipt of the sum of $240, 10 per cent of the purchase price of the two' lots of ground known as lots Nos. 8 and 9, square No. 1538, bounded by St. Bernard avenue, . Dupre, White, and Castiglione streets, measuring 35 feet front each on St. Bernard avenue by 128-145 feet in depth. Crais admits that in writing out the receipt he made an error because the defendant, Castaing, gave him $250, and when he returned a few days later he corrected the mistake. The receipt also shows further error, as the figures were corrected but not tile amount expressed in words. There appears also another error in designating the square number as 1538 instead of No. 1537. It is to b.e noted that the receipt calls for the conveyance of lots Nos. 8 and 9, without any reservation of any portion of lot No. 8. While it is true the lots are described as measuring 35 feet front each on St. Bernard avenue, as a matter of fact this is also an error, as lot No. 9 measures 36 feet 11 inches, and 4% lines front on St. Bernard avenue. In view of all these errors in the receipt its value as evidence is seriously impaired.

Both Mr. and Mrs. Crais further testified that the notary was in a great hurry co catch a train at 11 o’clock on July 8, 1921, when the sale was passed and that the notary did not read the act of sale and that he signed it upon the assurance of Mr. Castaing and Mr. Legier that the description of the property was correctly set forth in the act of sale.

Mr. Hebert, who was the secretary of the Union Homestead Association, of the plaintiffs in this case, and who represented the homestead in granting a release of the homestead’s vendor’s lien and mortgage on the property at the time of the passing of the act of sale, while indicating that his memory of the details of the transaction was not clear, due to the great length of time intervening between the date of the act and giving of his testimony, testified that he did not remember the notary reading the act, but that he compared the description of the property in the act of sale with the description of the property in the act of release and satisfied himself that it was correct and then signed the release. This fact indicates very forcefully to our minds that Crais at that time failed to make his intention of retaining the 4-foot strip known to the notary and Mr. Hebert.

The defendants’ evidence consists of the testimony of Mr. Castaing, who states that he did not have any agreement with Mr. Crais to reserve the 4-foot strip or driveway, and, while he viewed and inspected the property before purchasing it, he does not believe the fence or1 driveway existed at that time, but was not sure. He was very positive that nothing was said about reserving a driveway to the plaintiff Crais. He further testified that Mr. Crais furnished him with a title to the property which he in turn gave to the homestead which in turn gave it to the notary in order to draw up the act of sale. The only reason the Homeseekers’ Building & Loan Association was interested in the matter was because Mr. Castaing needed money to finance certain buildings and Improvements which he intended to erect on this property. He testified further that, when he was erecting the improvements on the property, about thirty days after the act of sale was passed, he tore down the wire fence and placed another feather-edge board fence on the same line for which Mr. Crais agreed to pay one-half the expense but later refused to do so; that he then filed suit against Crais for one-half of the expense of the fence and obtained judgment in the city court, which Crais paid.

Crais’ explanation of this is that he did not agree to pay for one'Jialf of the cost of erecting a fence, and that when the matter was brought to court he employed an attorney who permitted the case to go by on default.

On the issue as to whether or not the act of sale was read by the notary at the time of the passing of the act of sale, the defendants offered as a witness Mr. Robert Legier, the notary who passed the act, who testified that, while he had no distinct recollection of this particular sale, it was his custom in passing all acts of sales to read all of the essential parts of the act, including the description, to the parties before permitting them to sign; that he had been a notary in the parish of Orleans since 1897, and he was the official notary of the city of New Orleans in 1921. He denied that he had hurried the parties because he was anxious to catch a train, and pointed out that he had a home at Mandeville and that it was his custom to go there on Fridays at 4:30 in the afternoon and remain over the week end; that the schedule of the train had always been at 4:30 and that he had never taken any train at 11 o’clock in the morning.

Plaintiff Crais and his wife both testified that July 8, 1921, was a Saturday, and that Mr. Legier was anxious to take a train at 11 o’clock. Reference to a calendar showed that'July 8, 1921, was a Friday.

Mr. Legier’s testimony was corroborated as far as the reading of the act is concerned by Miss Odile Musson, who had worked in his office some sixteen years. She testified that, while she could not remember specifically whether or not this act had been read, she knew that it was customary for Mr. Legier to read all of his acts to the parties before permitting them to sign. The other witness to the act of sale, a young lady who worked in Mr. Legier’s office, had left his employment some four years before the trial, and the defendants were unable to locate her in order to produce her as a witness.

Mr. Castaing, one of the defendants, testified that he was positive that the act of sale was read by Mr. Legier before anybody signed it, and further corroborated Mr. Legier that he was not in a hurry to leave because he was also accustomed to leaving on the 4:30 p. m. train to go to Mandeville, and that there was no train leaving the city for Mandeville at 11 o’clock in the morning.

It must be borne in mind that the passing of the act of sale of the property took place on July 8, 1921. The trial of the case on the merits was held April 23, 1929, or very nearly eight -years after the sale was passed. The memory of the plaintiff and his wife, on all matters except the fact that only 70 feet was to be conveyed and not 74 feet and that the act of sale was not read, is faulty. They were certain that Mr. Castaing signed the act of July 8, 1921, but the original act shows this was not so.

When Mr. Crais was on the stand, he was shown his signature to the affidavit which was annexed to the original petition, and, when asked if it was not his signature, he testified as follows:

“Q. I show you the signature to this affidavit, William C. Crais. You signed it?
“A. Yes, but I never seen this before.
“Q. You now state you never saw this before?
“A. Yes, I don’t know what it is for. I don’t know anything about it.”

The sole question before the court is one of fact. The testimony is conflicting. The burden of proving the case by a preponderance of the evidence was on the plaintiffs, and we have reached the conclusion that they have not successfully borne it.

For the reasons assigned, the judgment is affirmed.


text:
    No. 13,216
    Orleans
    BROOKS v. LEWIS-CHAMBERS CONSTRUCTION COMPANY, INC.
    (May 19, 1930. Opinion and Decree.)
    Scott E. Beer and Walter M. Barnett, of New Orleans, attorneys for plaintiff, appellee.

      Frank T. Doyle and Harry M. Mayo, Jr., of New Orleans, attorneys for defendant, appellant.
   JANVIER, J.

Jeana Brooks, a colored laborer, seeks to recover compensation from his employer, claiming that his present condition — he being now deaf in one ear and almost deaf in the other, and being also unable to maintain his equilibrium when standing or walking — results from an injury received by him while engaged in the performance of services arising out of and in the course of his employment.

The evidence shows that prior to the accident Brooks gave no indication whatever of any defect in either ear and showed no signs of being in any way unable to balance himself upon his feet, and the medical men, those who were placed upon the stand as witnesses for defendant, as well as those produced by plaintiff, leave no room for doubt as to his present condition. Nor is there any serious controversy over the fact that, in all probability, his present condition of almost complete disability will continue indefinitely, if not permanently.

The main defense is based on the contention that the accidental injury received by plaintiff, a severe blow to the abdomen, had no causal connection with the deafness and loss of equilibrium, of which plaintiff now complains.

Even without the assistance of the medical experts, we would feel reasonably certain that, ordinarily, a blow to the stomach, or to the abdominal region, could not of itself cause permanent deafness; but the claim of plaintiff is not that the blow of itself directly caused the unfortunate result, but that it set in motion, or “lighted up,” a disease (syphilis) which was already lurking in the system, and that the deafness resulted from the setting into activity of the syphilitic condition, which setting into activity was caused by the blow, and that thus, as a matter of law, the deafness is the result of the blow.

As we have often said, such questions as whether or not trauma may, by setting into action lurking diseases, cause serious results, which, except for the disease, would not have occurred, are rather within the province of doctors than of judges, and in determining them we must be guided by the advice of those experts. Landry et al. vs. Phoenix Utility Co., ____ La. App......., 124 So. 623; Joseph vs. Higgins Lumber Co., 12 La. App. 600, 126 So. 255.

Here the expert testimony leaves no doubt that, though it is rather rare for trauma, acting through a syphilitic condition, to cause deafness, nevertheless it is entirely possible for it to do so, and since it may do so, and since we find assigned in the record no other cause for the sudden change in plaintiff’s condition, we must assume that it did so in this instance, since the plaintiff, prior to the accident, had none of the disability of which he now justifiably complains. Dr. Wagner, in a very interesting and enlightening explanation of the connection between the blow and the resulting deafness said:

“Luetic neuritis is nothing more than inflammation of the nerve of hearing, brought about by the poisons of syphilis; and in this man’s case the injury is what activated the syphilis. Something had to activate it. It was there dormant. We know that syphilitic germs can live in different organs of the body for years and years in a symbiotic stage. Symbiosis is a noun that means that one organism lives within another without doing any damage. They live in harmony with one another until something breaks up .this harmony, and then the parasite overcomes its host, which happened in this case, no doubt about it.”

That under the compensation laws of this state there is liability under such circumstances is no longer a subject for discussion. In Behan vs. John B. Honor Co., Ltd., et al., 143 La. 348, 78 So. 589, L. R. A. 1918F, 862, in a syllabus written by the court, appears the following:

“The fact that an employee, injured in performing services arising out of and incidental to his employment in the course of his employer’s occupation, was already afflicted with a dormant disease that might some day have produced physical disability is no reason why the employee should not be allowed compensation, under the employers’ liability statute, for the injury which, added to the disease, superinduced physical disability.”

See, also, Becton vs. Deas Paving Co., Inc., 3 La. App. 683; Henderson vs. Louisiana Power Co., 9 La. App. 475, 121 So. 217; Taylor vs. Southern Engineering Const. Co., 13 La. App. 292, 125 So. 877; Fox vs. United Chemical & Organic Products Co., 147 La. 865, 86 So. 311.

Defendant complains that the claim that the syphilitic condition was set into activity by the blow was not raised in the pleadings and that evidence in support thereof should not have been permitted to be introduced.

We doubt whether, even in a tort case, it is necessary for the plaintiff to do more than allege the facts which gave rise to the cause of the accident and the facts which show the final result; but if, in such case, it is incumbent upon plaintiff to allege specifically intervening details, surely such duty does not rest upon plaintiff in a compensation suit, in which the rules of pleading and of evidence are allowed to be relaxed, whenever the trial judge, in his discretion, thinks it necessary. Here it is very evident that no harm resulted to defendant because of the introduction of evidence showing the action of the blow on the dormant disease and the resulting causal connection between the blow and the deafness, because the experts produced by defendant were manifestly thoroughly conversant with the contention made, and could not have been better prepared to rebut the evidence of plaintiff’s doctors if every detail had been set forth in the petition.

We think that the discretion of the trial judge in allowing the relaxation of the rules of pleading and of evidence in compensation cases should not be interfered with where it appears that that discretion has not been abused and that no harm or prejudice has resulted. Smith vs. Marine Oil Co., 10 La. App. 675, 121 So. 782; McGuirt vs. Gillespie, 141 La. 586, 75 So. 419.

It is alleged, and we think properly, that plaintiff’s claim falls within paragraph 16 of subdivision d of section 8 of Act No. 242 of 1928, which is an amendment to Act No. 20 of 1914.

Thus plaintiff, by reason of serious impairment of a physical function, namely, his hearing, is entitled to 65 per cent of his average weekly wages for not more than 100 weeks.

The trial judge awarded him compensation for the full term of 100 weeks, and, in view of plaintiff’s present condition, in this he was correct. That $11.70 is the proper weekly allowance is not disputed.

Proof as to the medical expense is lacking, and the trial judge was correct in dismissing this part of the claim as in case of nonsuit.

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