text:
    No. 10,115
    Orleans
    O’NEIL v. MORGAN’S LOUISIANA & TEXAS RAILROAD & STEAMSHIP COMPANY, Appellant
    (May 10, 1926. Opinion and Decree.)
    (June 7, 1928. Rehearing Refused.)
    (Oct. 5, 1926. Writs of Certiorari and Review Denied by Supreme Court.)
    1. Louisiana Digest — Damages—Par. 30.
    In a personal injury case under Article C. C., 2315, evidence held to show that the injury was not the sole cause of, but merely superinduced, plaintiff’s ■ temporary mental derangement, the 'the cause of which was a disease lurking in plaintiff’s system at the time of the accident; plaintiff is entitled to damages for only so much of his affliction as is the result of the accident.
    2. Louisiana Digest — Laws—Par. 103; Interest — Par. 15, 17.
    Plaintiff cannot recover interest on a claim for damages arising prior to Act 206 of 1916, which has no retrospective operation.
    Appeal from Civil District Court, Division “A”. Hon. H. C. Cage, Judge.
    Action by P. J. O’Neil against Morgan’s Louisiana and Texas Railroad and Steamship Company.
    There was judgment for plaintiff and defendant appealed.
    Judgment amended.
    Edw. T. Kleinert, of New Orleans, attorney for plaintiff, appellee.
    Denegre, Leovy & Chaffe, of New Orleans, attorneys for defendant, appellant.
   OPINION.

CLAIBORNE, J.

This is a damage, suit under Article C. C. 2315, filed April 19, 1917.

The plaintiff alleged on April 28, 1916, he was employed by the defendant company in its shops at Algiers; that while so employed he was instructed by defendant’s foreman to get into a pit under a locomotive to take certain measurements; that while obeying the instructions, an explosion occurred burning plaintiff’s face and hands and injuring his eyesight; that the explosion was so violent as to cause plaintiff to lose his reason and to cause his right arm and hand to become paralyzed; that said explosion was caused by the negligence of defendant’s’ employee; that on May 7, 1916, defendant’s physician declared plaintiff insane and sent him to an insane asylum where he remained until September 27, 1916; that whilst in said asylum, plaintiff was operated on, and two incisions made in his leg and under each arm which caused him much suffering; that while he has regained the use of his mental faculties for the present, he is informed that he may at any time lose his reason; that plaintiff is an engineer by occupation; that while he -was receiving a small salary at the time of his injury, he usually earned from $75 to $125 per month; that plaintiff was unahle to resume work until February 22, 1917; that because of said injuries and suffering and the impairment of his sight he has sustained damages to the extent of $25,000, which he claims under C. C. 2315, with legal interest from judicial demand.

After the overruling of several exceptions the defendant -answered, admitting the employment of plaintiff as j helper at 18 cents per hour, admitted the explosion and burns, hut denied that there was any casual connection between the more serious condition that subsequently developed and the burns; defendant further pleaded contributory negligence on the part of plaintiff and negligence of fellow workmen.

In a learned opinion the District Judge on April 27, 1925, rendered judgment against the defendant for $4200 with legal interest from judicial demand. Defendant appealed.

The defendant, on the trial of the case, admitted its liability; the only question being one of amount. 1

The evidence is that the plaintiff was severely burned; that he remained at home a few days afterwards, when he developed signs of insanity; that he was taken to the City Hospital for Mental Diseases where he remained about four months; during two months thereof he was strapped to his bed owing to his violence; during that time' he developed a large abscess which it was necessary to drain; he complained of brush burns under his arms while in restraint; he was released-on September 27. During his confinement he was subjected to a blood test, and it was found that he had a syphilitic infection which caused his mental condition; syphilis may lie dormant in the system for years, and may be brought into violent activity on the slightest occurrence. Syphilis is a very active element in mental diseases.

On the other hand the plaintiff testified that he was 47 years old; that he had never had a sore upon his body; that he was married twice, has four children from 27 years old to 11, and that all are healthy.

The plaintiff earned 18 cents an hour at the time of the accident and after he recovered, something over $100 as an engineer in chief or as an assistant.

Admitting for the sake of argument that the doctor’s diagnosis was correct and that the plaintiff was infected with syphilis and that the dormant germ within him was the cause of his insanity, the defendant is liable for the burns and for so much of his affliction as resulted therefrom.

Such is the jurisprudence of this State according to the abundant authorities compiled by the industrious district judge.

But we think the damages allowed by the district judge excessive. He has fixed the mental and physical shock at $250, the burns at $250, the loss of employment for one year at $1200 and the insanity at $2500.

The plaintiff met with his accident in April, 1916. At that time he ■ was earning 18 cents per hour, or about $40 a month, or $500 a year. He was disabled, for one year. After that time and afterwards, or in 1917, he began to earn $100 and up to $300 a month. Those were war wages, however. There is no evidence that for the balance of 1916 and the early part of 1917 he could or would have earned more than $40 a month. The war was begun only in 1917.

We are bound by the testimony of Dr. Daspit that the plaintiff contained within himself the germs of syphilis and that they were moved into activity by the accident and caused a temporary insanity in plaintiff. This testimony cannot be overcome by the interested denial of the plaintiff. Under like circumstances the Supreme Court .in the case of Caldwell vs. Shreveport, 150 La. 465, 90 South. 763, on January 30, 1922, decided:

“In a personal injury case, evidence held to show that the tranmatic injury was not the sole cause of, but merely superinduced, plaintiff’s locomotive ataxia, the cause of which was a disease lurking in plaintiff’s system at the time of the accident; * * * plaintiff is entitled to damages for only so much of his affliction as the result of the accident.”

The principal of this case seems to have been followed in Cuneo vs. Ariata*, '154 La. 609, # 97 South. 878.

The plaintiff vehemently attacks the correctness of the Caldwell case as being in conflict with decisions in other jurisdiction, which, he insists, we should follow in disregard of the above decisions. Perhaps we would do honor to other jurisdictions by adopting their decisions, but certainly in so doing, we would disregard our duty and our respect to our own court, which we cannot do. Under this decision we will reduce this item of the district court’s judgment to $2000. •

The defendant argues that plaintiff’s cause of action arose prior to Act 206 of 1916, adopted in July, providing for interest from date of judicial demand, “on all judgments sounding in damages e® delicto”, and that, therefore, plaintiff is not entitled to interest of any kind or from any date.

In that argument he is supported by the jurisprudence of the State.

By an Act of 1852, p. 95, it was provided that all debts should bear interest at the rate of five per cent from the time they became due. In the case of Saunders vs. Carroll, 12 La. Ann. 793, the court said:

“It is sound rule of construction never to consider laws as applicable to cases which arose previous to their passage, unless the Legislature has in express terms declared such to be. their intention. The Act of the Legislatutfe declaring that debts shall bear interest at the rate of five per cent per annum from the day they become due, unless otherwise stipulated, "is not applicable to debts which were contracted and became due before the passage of the law.” See also p. 631 A. 99 (100) 355; Gordon vs. Zacharie, 15 La. Ann. 17; Weber vs. Coussy, 12 La. Ann. 534.

It was the jurisprudence of this State prior to the Act of 1916 that in actions for damages ex delicto no interest could be allowed, even from judicial demand. Saunders vs. Taylor, 7 Mart. (N. S.) 14; Trimble vs. Moore, 2 La. 577; Beal vs. McKeirnan, 8 La. 569; Preston vs. Slocum, 1 La. Ann. 382; Bonner vs. Copley, 15 La. Ann. 504; Push vs. Egan, 48 La. Ann. 66, 19 South. 108.

It is therefore ordered that the judgment of the District Court in favor of the plaintiff be reduced from four thousand two hundred dollars to three thousand dollars, and that the allowance for interest therein be rejected; defendant to pay costs in both courts.

ON PETITION FOR REHEARING.

The judgment is amended by allowing five per cent per annum interest from the date of judgment April 27, 1925, till paid, and, as amended .the rehearing is refused.


source: Caselaw Access Project

author: CLAIBORNE, J.

license: Public Domain

text:
    No. 9257
    Orleans
    CLARKE CO., LTD., Appellant, v. PETIVAN
    (March 15, 1926. Opinion and Decree.)
    (April 12, 1926. Rehearing Refused.)
    (May 31, 1926. Writ of Certiorari and ' Review granted by Supreme Court.)
    (October 21, 1926. Decree of Supreme Court.)

      (Syllabus by the Court.)

    1. Louisiana’ Digest — Builders and Buildings — Par. 5; Mechanic’s Privileges, Par. 16, 18.
    Act 229 of 1916 applies to all building contracts where the parties have not complied with the requirements of Act 262 of 1916.
    2. Louisiana Digest — Mechanic’s Privileges —Par. 21, 23.
    Under Act 229 of 1916 all claimants of privileges for work done or materials furnished must record in the mortgage office a statement of their claim within forty-five days of the delivery and acceptance of the building in order to be' entitled to a privilege upon the building or to a personal claim against the owner.
    3.Louisiana Digest — Builders and Buildings — Par. 30.
    The owner has the right to show that the date of acceptance of a building in her affidavit was an error.
    Appeal from Civil District Court. Hon. Wynne Rogers, Judge.
    Action by J. J. Clarke Co., Ltd., against A. J. Petivan, et al.
    There was judgment for defendants and plaintiff appealed.
    Judgment affirmed.
    Dart, Kernan & Dart and L. L. Dubourg, of New Orleans, attorneys for plaintiff, appellant.
    Chas. Louque, of New Orleans, attorney for defendants, appellees.
   CLAIBORNE, J.

This is a suit by a furnisher of materials against the contractor and the owner. .

The plaintiff alleged that it sold and delivered to the defendant contractor, Petivan, on different dates beginning on July 22 and ending on October 7, 1921, building materials amounting to $780.39, in part payment of which the said contractor had paid $250.00, leaving a balance due of $532.39; that the contract for said building amounted to $5400.00, and was duly recorded in the mortgage office; that the acceptance by the owner of the work done under said contract was recorded in the' mortgage' office on January 3, 1922; that plaintiff has a privilege for the amount due to him on the premises above mentioned, which he has preserved by recording a sworn statement of • the same in the ’mortgage office on January 14, 1922. He prays for judgment against the contractor and the owner in solido.

There was judgment hy default against the contractor, Petivan.

The defendant owner, Miss Ardill, denied all the allegations of the petition, and, further answering, denied “that the building was accepted as completed on January 3, 1922, but avers that same was completed and accepted on the 1st of October, 1921, and same was rented by respondent to J. C. Stockton on that date, and he took possession of same on that date; that more than sixty days and, in fact, three months and a half elapsed before any recordation of any lien by the plaintiff, who lost their claim against your respondent; that said lien was recorded January 14, 1922, as averred in allegation No. 5, which your respondent further avers that, under Act No. 229 of 1916, the forty-five days are to be computed from the time of the acceptance, and not from the recording of an acceptance in the mortgage office.”

There was judgment in favor of the defendant owner, Miss Ardill, rejecting plaintiff’s demand against her, and it has appealed.

Miss Ardill made an affidavit on January 3, 1922, and-recorded it on the same day in the mortgage office “that the contract has been completed and the work has this day been accepted”.

Her brother, however, William Ardill, notary, before whom she made the affidavit, swears that he knew on that date that the building had been accepted by his sister since October 1; h.e did that because he saw people suing Petivan, and he thought by recording this that the time would expire and that no one would sue her; but-it was accepted on the 1st of October and leased and occupied on the 1st of October; his sister paid Petivan the full amount of the contract and for extras fifteen days after she accepted the property.

Miss Ardill, the defendant, also swears that the house was rented' on October 1, 1921, to J. B. Stockton and Mr. Quinlan. She has the right to show her mistake in her affidavit. Dreyfus vs. American Bonding Co., 136 La. 498, 67 South. 342.

We must accept as a proven fact that the building was completed and accepted and occupied on October 1, 1921.

Two questions arise in this case. One as to the privilege by the plaintiff upon the building erected, and the other as to the personal liability of the owner, Miss Ardill.

Was it necessary that the acceptance of the building by the owner should have been in ^riting and recorded?

Act 262 of 1916, Sec. 1 S. 3, p. 537, requires every person ‘ having a claim against the contractor to “file a sworn statement thereof with the owner and record a sworn statement thereof, or his contract, if it has been reduced to writing, in the office of the recorder of mortgages for the parish in which the work has been done, within forty-five days after the registering of the notice with the recorder of mortgages of the parish where the work is done, by the owner of his acceptance of the work, until which time the delay to file privileges will not run”.

By Act 229 of 1916, Sec. 2, p. 494, the sworn statement of the person claiming a privilege “must be filed within forty-five days after the acceptance of the work by the owner of the land on which work was-done or his trustee or agent”.

The question for solution is, which act governs the present case?

The answer is given in the following case:

It must he stated as a foundation for this opinion, that although the plaintiff alleges that the contract for this building “amounted to $5400.00 and was duly recorded in the mortgage office”, there is no evidence that there was any bond, nor that it was recorded, nor what the conditions were under which the defendant, Miss Ardill, constructed the building. In other words, there is nothing to show that the parties complied with all the formalities required by Act 262 of 1916.

We must conclude, therefore, that the rights of the parties are governed by Act 229 of 1916.

In the case of Gleissner vs. Hughes, 153 La. 133, finally decided on rehearing in January, 1923, the court, in interpreting Act 229 of 1916, made a distinction between “the acceptance of the labor, material, machinery, etc., of each individual claimant, as distinguished from the completed job”. In other words, as to a general contractor, his claim may be filed within forty-five days from the date of the acceptance of the building or improvement undertaken to be constructed; as to a subcontractor forty-five days from the acceptance of such subcontract work by the owner or his agent. When, however, as in this case, the entire work is done by the owner, superintended by a foreman or agent, the delay begins to run as to labor performed and materials, machinery furnished, from the time the same are performed or received and accepted.

In the instant case the last load of materials delivered was on October 7, 1921. Plaintiff’s account was filed only on January 14, 1922, or ninety-nine days thereafter. Under the decision in the Gleissner case it was too late to entitle it to a 'privilege.

S. 3 of Act 134 of 1906, p. 223, provided that a claimant should record his statement within forty-five days after the completion of the contract. The Supreme Court said that a furnisher of materials, under contract with the undertaker, who had not recorded his claim within forty-five days after the date of the completion of the building, had no cause of action against the owner who had not required a bond from the contractor. La. Glass Works vs. Irwin, 126 La. 555, 52 South. 765; Roca vs. Frick, No. 8741; Thomas vs. Evans, No. 8911.

In the case of Musey vs. Prater, 147 La. 71, 84 South. 498, the Supreme Court said on rehearing:

“The contract in this instance was not recorded by the owner; and the bond was not taken in favor of the materialmen and laborers, and further, the bond was not recorded within thirty days after the signing of the contract. For the reason that none of these things were done by the owner, we are of the opinion that he cannot claim the benefits of the provisions of Act No. 262 which was adopted for the protection, as well as for the protection of contractors, etc., * * *. We are of the opinion that Act No. 229 refers to all building contracts, regardless of amount, whether verbal or in writing, where no bond or a defective bond is given by the contractor and the contract and bond are not recorded in the manner provided for in Act 262; and as none of these things were done by plaintiff, in this cause the materialmen, defendants have a right to assert their liens and privileges given them under Act 229.”

This decision was affirmed in Rose vs. Eunice Electric Theatre, 154 La. 81, 97 South. 322, decided in June, 1923. The syllabus is as follows:

“Act No. 229 of 1916, giving a privilege to contractors and others furnishing labor and materials for building or erection, applies regardless of amount of contract, when the owner has not required bonds from contractors, and has not recorded the contracts so as to put Act No. 262 of 1916 into operation.”

This case was followed by this court in Harry Bros. vs. Connell & Moore, et al., No. 9408; Knox vs. Maestri, No. 8485, confirming numerous previous opinions of this court.

S. 6 of Sec. 1 of Act 261 of 1916, p. 538, provides:

“Or if the owner fails to exact bond * * * he shall be in default and shall be liable to the same extent as the surety would have been * * *. The surety herein shall be limited to such defenses only as the principal on the bond (the contractor) can make.

“The purpose of this act is to require owners to secure bonds with solvent and sufficient security of the undertaker, contractor, master mechanic or engineer for the protection of all parties interested in the contract, 'and as their interest may appear, and said surety and in default of surety the owner is to stand in the place of a • defaulting undertaker, contractor, master mechanic or engineer.”

To the same effect, practically, are the Acts 221 of 1914, p. 418 (420), Act 167 'of 1912, p. 302 (304), Act 134 of 1906, p. 223 (224), and Act 180 of 1894, p. 223.

As early as February, 1914, in the case of La Duff vs. Demoruelle, 11 Orl. App. 174, this court decided, affirming previous decisions, that “recording a sworn statement in the mortgage office and filing the same with the owner are conditions precedent to the right of recovery against the owner or against the surety on the building contract”’ Affirmed in French Market Homestead Assn. vs. Daxheimer, 11 Orl. App. 277.

Though these decisions, as far as the surety is concerned, have been reversed by this court in the case of Brandin vs. U. S. Fidelity Co., No. 7125, and in Audubon Homestead Assn. vs. Steff Lbr. Co., 158 La. 1054, 105 South. 62; Shreveport Mut. Bldg. Assn. vs. Whittington, 141 La. 42, 74 South. 591, they have remained as authority as far as the owner is concerned.

In Harris Bros. vs. Cornell & Moore, No. 9408, this court said:

“This liability (of the owner) does not arise where the materialman fails to duly record his claim within the time given him under Act 229 of 1916 as interpreted by Gleissner vs. Hughes, 153 La. 134, 95 South. 529,” quoting numerous authorities of this court.

Our decision was based upon the case of La. Glass vs. Irwin, 126 La. 555, 52 South. 765, which, in our opinion, was never reversed.

In the case of Shreveport vs. Whittington, 141 La. 41, 74 South. 591, the question was:

“Was it necessary for the materialmen to file sworn statements of their accounts with the owner of the building as a condition precedent to recovery of the amounts of such accounts as against the surety in case of the default of the contractor? Answer: No. The surety sustained no loss by reason of the alleged failure to give notice to the owner.”

There was no question in that case of the necessity of filing a statement in the mortgage office within forty-five days, nor of fixing the liability of the owner. The necessity of filing that statement in the mortgage office in order that the owner might experience no loss speaks for itself. For it iá in that office alone that the law requires all statements to be filed, and there that the owner must look to see if any materialmen or others remain unpaid.

If at the end of the forty-five days after acceptance he finds no inscription he is justified hy law in believing that he may safely pay the contractor. If the material-man could abstain from recording his statement within forty-five days, he might abstain for an indefinite time, or for so long a time as it might please the contractor to suspend prescription of the claim. If, relying upon the absence of an inscription, the owner should pay the contractor, and should the right of the materialman continue to exist against the owner after the forty-five days, the owner would be exposed to serious loss by the negligence of the materialman. Hence the necessity for the materialman to record his statement to protect the owner against loss.

The evidence in this case is that the owner has paid the contractor, or there is a difference between the surety and the owner. As was said in the Whittington case on rehearing:

“The mistake which the learned counsel for the surety company makes is in not distinguishing between the owner, between whom and the materialman there is no contractual relation, on whose part there is no liability except that created by law, against or without his consent, and the surety company which has voluntarily entered into a contract to pay the material-men in ease the contractor does not, and has received a consideration for thus engaging itself.”

We therefore come to the conclusion that the judgment appealed from in favor of Miss Ardill is correct and it is therefore affirmed.


text:
    No. 9304
    Orleans
    LEWIS v. PROVENZANO, Appellant
    (Oct. 15, 1923. Opinion and Decree.)
    (July 7, 1926. Opinion and Decree on Motion to Dismiss Appeal.)

      (Syllabus by the Editor)
    1.Louisiana Digest — Landlord and Tenant — Par. 121.
    The defendant in a suit for possession of leased premises meets the requirements of Section 2157, Revised Statutes for a “special defense” when he denies that he rented from the plaintiff, or that he has any contractual or other obligations of any kind towards plaintiff, and avers that he has paid all rent due by him.
    2.Louisiana Digest — Appeal—Par. 301.
    An appeal will not he dismissed when, if not good for a suspensive, it is good for a devolutive appeal.
    3.Louisiana Digest — Landlord and Tenant — Par. 121.
    A sworn special defense in suits for possession of leased premises is required only for a suspensive appeal; a devolutive appeal may be taken without that formality.
    Appeal from Civil District Court, Hon. E. K. Skinner, Judge.

      Action by Mrs. Hattie F. Lewis against Vincent Provenzano. There was judgment for- plaintiff and defendant appealed.
    Judgment denying motion to dismiss appeal.
    John D. Nix, attorney for plaintiff, appellee.
    Woodville & Woodville, attorneys for defendant, appellant.
   CLAIBORNE, J.

This is a suit for possession of leased premises, under the landlord and tenant act, and acts amendatory thereof, for failure to pay rent.

The defendant denied each allegation of the petition and further averred:

“That he is renting the premises 1313 Coliseum street frpm Norman G. Figures, to whom he has paid his rent; that he owes nothing for rent; that he had no contractual obligation or obligation of any kind or character at all' with the plaintiff herein and had nothing to do with the plaintiff, having rented the premises from Norman G. Figures to whom he paid his rent; that Norman G. Figures was a tenant of the plaintiff and the plaintiff had sued Norman G. Figures for the whole unexpired term of the lease from January 1st to September 30th, 1923, and Norman G. Figures with the knowledge, consent, and approval of the plaintiff herein rented the premises to your respondent, and respondent has paid the rent to Norman G. Figures from whom he rented the premises.”

’ The defendant swore that all the facts contained in his answer were true.

From a judgment against the defendant he has appealed.

The plaintiff moves to dismiss the appeal on the ground that the defendant has I “failed to file' a special defense in accordance with Section 2157 of the Revised Statutes”.

This section reads as follows:

“No appeal from any such judgment shall suspend execution unless the defendant has filed a speciál defense, supported by his oath, that all the facts contained in his answer are true, and entitle him to retain the possession of the premises, etc.” .

The defendant denied all the allegations of the petition,. alleged that he rented the premises from Figures, to whom he has paid his rent, that he owed no rent, and that he has no contractual or other obligations of any kind towards the plaintiff. It would be difficult to conceive a more complete and sweeping special defense.

But another reason stares plaintiff in the face. That special defense is necessary only as a basis for. a suspensive appeal. Defendant may take a devolutive appeal without setting up a special defense, arid without swearing to his answer. State vs. Judge, 45 La. Ann. 1318, 14 South. 232; 7 Ct. App. 448.

The jurisprudence is constant that an appeal will not be dismissed in all cases where the appeal, if not good for a suspensive, is good for a devolutive appeal. 1 L. D., p. 36, Nos. 32, 33, 34, 36; Michenor vs. Reinach, 49 La. Ann. 360, 21 South. 552; M. L. & T. R. R. & S. S. Co. vs. Pecot, 50 La. Ann. 742, 23 South. 948; Stempel vs. Fulton, 51 La. Ann. 469, 25 South. 270; Brinkman vs. Succession of Posey, 143 La. 924, 79 South. 540; Cahn vs. Baccich & De Montluzin, 144 La. 1023, 81 South. 696.

There is no doubt that defendant is entitled to a devolutive appeal.

It is therefore ordered that the motion to dismiss this appeal be denied.


text:
    No. 10,261
    Orleans
    AINSWORTH, Appellant, v. MURPHY
    (July 5, 1926. Opinion and Decree.)
    (Aug. 2, 1926. Rehearing Refused.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Negligence—Par. 29.
    A boy ten years old is capable of contributory negligence.
    2. Louisiana Digest — Negligence—Par. 25, 29.
    The manager of a carrousel cannot be made liable for injury received when the cause of it is the violation by plaintiff of a printed notice warning patrons not to get upon the flying horses while in motion.
    Appeal from Civil District Court. Hon. Porter Parker, Judge.
    Action by Harold Ainsworth against B. A. Murphy.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    D. V. Dusson, L. R. Alba, of New Orleans, attorneys for plaintiff, appellant.
    Fred C. Marx, of New Orleans, attorney for defendant, appellee.
   CLAIBORNE, J.

Plaintiff- was hurt w'hile riding in a carrousel. Hence this suit.

The plaintiff alleged that his son Harold was born on June 29, 1914; that on October 19, 1924, his son boarded a carrousel owned and operated by the defendant in the Audubon Park; that due to a defect in the mechanical arrangement of the flying horse in which he attempted to ride he had the bones of his left heel broken; that the accident happened in the following manner: That in order to mount the flying horse on which he attempted to ride ' and down, in imitation of a living animal, he placed .his left foot upon the iron step or projection provided for that purpose, which is attached • to the top of the lower stationary upright stanchion through which the upper movable vertical rod upon which rests the horse work up and down; that there is also screwed to the upper movable rod another iron step just above the lower stationary one, which may be used as a step to ascend upon the horse when stationary, or as a foot rest or stirrup while riding the horse in motion; that while his foot was upon the lower step, the upper movable step came down and crushed his heel; that the child suffered intense pain; that his foot was placed in a cast for a month, and afterwards in a brace which he is still using; that he was not able to attend school for two months; that he will remain lame for all his life; that this accident was caused by the fault of B. A. Murphy in not fixing the mechanical arrangement of said horse in such wise that when the horse came down there would have been ample room between the said two steps for the foot of a child to rest when ascending the horse without being pressed, bruised, or crushed, and all the bones thereof broken, and that such arrangement could easily have been made. Plaintiff claimed $5000.

In a supplemental petition the plaintiff alleged that his minor son “boarded said carrousel while the same was not in motion, * * * that following thereafter when the said carrousel had ■ begun to move he concluded to ride the flying horse”, or the horse that moves up and down.

The defendant admitted that he operated the carrousel, but denied all the other allegations of the petition. He specially averred “that there is more than sufficient room between the upper and lower steps on the said stanchions so as to avoid the heel or front part of the foot from being hurt during the riding on said horses; that he has been operating said carrousel for many years and that the same has been at Audubon Park for many years, and that he has never had any accident occurring during that time to any of his patrons and has never heard of a similar accident”. He specially averred “that the said Harold Ainsworth boarded said carrousel while the same was stopped, and attempted to mount the horse while the carrousel was in motion, and that if he was injured while riding on said carrousel, which is specially denied, the said injuries were caused by his own carelessness and negligence and not by any defect in the said carrousel or negligence on the part of respondent, his servants, agents or employees”.

There was judgment in favor of defendant rejecting plaintiff’s claim at his cost.

The plaintiff has appealed.

In order to succeed plaintiff- mus\, show some- negligence on the part of the defendant.

The defendant testified that he had been operating carrousels for 35 years, 22 of those years in the Audubon Park; that he had never heard of an accident similar to this one.

The plaintiff’s father testified that he visited the Audubon Park on the morning after the accident and examined the horses on the carrousel; that he noticed that while -the distance between the two steps or stirrups was in general four inches, that in some three or four instances the collar of the upper step had worked down so as to reduce tfie distance to one and a half inches; that he visited the carrousel a second and a third time, and he noticed that those collars had been moved up, and that he had called the attention of Mr. Peters to that; they had all been adjusted except one; he says: “The rest of them them were all up a good safe distance.”

Mr. Henry Peters is connected with' the carrousel; he says he measured the distance between the two steps and it is all about four inches, none of them less; that there has been no change in the mechanical device of the carrousel since October 19,th, nor have any of the steps or stirrups been moved in any way, not one; and that the plaintiff’s father did not point out to him several stirrups that came down too low.

Peters is corroborated in his statement by the defendant himself.

No other ¿efect is charged in the machinery or in the management, and we must hold that plaintiff has failed to establish his allegation. Jones vs. Jahncke, 3 La. App. 270.

The defendant has charged the plaintiff with contributory negligence. We have seen that the child was ten years of age at the time of the accident. In the case of Lynch vs. Knoop, 118 La. 618, the court said:

“We have seen that she was eight years old and old enough to fall within the rule of contributory negligence. Westerfield vs. Lewis, 43 A. 63, 9 South. 52. The child was sui juris as relates to negligence and the condition under which she met with the accident.” Downey vs. Baton Rouge Elec. & Oas Co., 122 La. 481, 47 South. 837; Cusimano vs. City of New Orleans, 123 La. 565, 49 South. 195.

The evidence is that the plaintiff went upon the platform of the carrousel while it was stationary and from there mounted a flying horse or one. that goes up and down; a boy friend sat upon a horse next to him; after the earrousel was set in motion the plaintiff expressed the desire to exchange horse with his friend; he got down from his horse, but his friend refused to exchange; thereupon plaintiff attempted to remount his horse, all during the whirling of the carrousel; to that end he put his foot upon the lower stationary step, and while his foot rested there, the movable ascending and descending step above came down in the ordinary working of the machinery and hurt his foot. He' read a notice in the carrousel which said:'! “Do not get on the flying horse while it! is in motion”.

It is perfectly evident that it was the negligence of the plaintiff in failing to observe that notice that brought about his accident. While the carrousel was stationary the upper rod that supported the horse was itself stationary and so was the step upon the side of it. The rod and the step moved only when the. carrousel moved. Therefore there was no danger in the use of the lower step by any one while the carrousel was stationary. It was only when the carrousel was put in motion that the upper step moved up and down with the rod that moved the horses.

The plaintiff therefore brought his injury upon himself and.he cannot recover. See Ramano vs. Seidel, 114 La. 432, 38 South. 409; Lopez vs. Sahuque, 114 La. 1004, 38 South 810; Lynch vs. Knoop, 118 La. 611, 43. South. 252; Cusimano vs. City of New Orleans, 123 La. 565, 49 South. 195.


text:
    No. 9252
    Orleans
    DA PONTE v. UZZO, Appellant
    (Oct. 18, 1926. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. ■ Louisiana Digest — Automobiles—Par. 4 (b), 4 (o).
    Upon approaching the intersection of two much frequented streets within the limits of this city, it is thé duty of a chauffeur to check up his speed and to use more than ordinary care to avoid injury to persons or property..
    2. Louisiana Digest — Automobiles—Par. 4, 4 (d).
    The thoroughfares of the City of New Orleans were never intended for race courses.
    3. Louisiana Digest — Automobiles — Par. 4, 4 .(a), 7.
    Whatever may have been the negligence of the party injured the defendant is liable if he might have avoided the accii dent by the exercise of ordinary caution.
    Appeal from Civil District Court. Hon. Wm. H. Byrnes, Judge.
    Action by Harry G. Da Ponte against Louis Uzzo.

      There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    H. M. Wilkinson, of New Orleans, attorney for plaintiff, appellee.
    Lemle, Moreno & Lemle, of New Orleans, attorneys for defendant, appellant.
   CLAIBORNE, J.

This is a damage suit resulting from a collision of automobiles.

The plaintiff alleged that on Sunday, October 30, 1921, at 5:15 p. m., he was driving his five-passenger automobile down Prytania Street and was alone in his car, that on approaching Napoleon Avenue he slowed down to less than five miles an hour in order to avoid children in the act of crossing Prytania Street, and blew his horn, and ascertained that no traffic was coming along on Napoleon Avenue within a distance which, under ordinary circumstances, would interfere with his crossing safely; that he started to cross Napoleon Avenue; that after he had crossed the Napoleon Avenue street car tracks and neutral ground, and while his front wheels were abreast of the downtown sidewalk of Napoleon Avenue, and while his car was across the lower third of the downtown side of Napoleon Avenue, a cut down racer model Ford automobile belonging to the defendant Louis Uzzo and driven by him, came down Napoleon Avenue from the direction of the river running towards the lake at a speed of 40 to 50 miles an hour, and struck its front against the center of the rightside of plaintiff’s car; that so great was the impact that plaintiff’s car was knocked across and beyond the riverside track of the Prytania car line and into an automobile which one Sorreson was driving up Prytania Street, just below Napoleon Avenue and there came to a stop, about 20 feet below the outer sidewalk line of Napoleon Avenue; that the Uzzo car went up into the air, turned a back somersault and fell with its front end pointing towards the river, pinning one of its two occupants underneath; that plaintiff’s car was damaged as follows:

Frame bent, two rear wheels broken, three fenders and two running boards demolished, windshield glass broken, body and- doors damaged, rear axle bent, splash pans, top, battery, horn, broken; that the damaged based upon the cost of repairs is $500 and the diminution in value of the car is $100; that plaintiff is an insurance salesman to whom a car is necessary; that he was deprived of his car for 20 days and during that time hired another car at a cost of $5 a day or $100; making a total of $700; that the said Uzzo had just returned to New Orleans across the Napoleon Avenue ferry from a trip down the west-side of the river from Baton Rouge, and had boasted that he had been trying to establish a speed record from Baton Rouge to New Orleans and had been running at the rate of 75 miles an hour; that both Uzzo and his companion were dressed in goggles and full racing regalia; that Napoleon Avenue was free from obstructions to the vision and Uzzo had a cjear view for several blocks and should have seen petitioner’s car crossing on the right of way in front of him in plenty of time to have brought his racer under control had he been driving within the legal rate and that he could have swung his car to the left and passed behind plaintiff’s car; that the accident was caused by the negligence of defendant and by the excessive speed at which he was driving. Plaintiff prayed for $700 damages.

The defendant admitted that plaintiff was driving his car down Prytania Street and approached Napoleon Avenue on the day and hour mentioned in' the petition, but denies all the other allegations of the petition; further answering he avers that the damage to plaintiff’s car was due wholly to his own fault in attempting to pass ahead of defendant’s car; that under the traffic ordinance of the city, defendant had the right of way, and that it was incumbent upon plaintiff upon seeing defendant’s car approaching to have brought his car under control so as to permit defendant’s car to have the right of way; that in violation of the traffic rules plaintiff sought to pass ahead of defendant; that had plaintiff exercised reasonable care and had observed the traffic ordinance that the accident would not have occurred.

The attorney for the defendant certified that all the allegations and facts contained in the answer were true.

There was judgment for $610 and defendant has appealed.

Neither the plaintiff nor the defendant has introduced and filed in evidence the traffic ordinance.

Therefore we cannot consider it, and the case must be decided by \the common law of the road.

It would serve no useful purpose to reproduce the testimony of the plaintiff and of his six witnesses spread over 85 pages, nor the testimony of the defendant and of his companion and another witness.' Suffice it to say that the trial judge believed the plaintiff and his six witnesses and that we concur with him, especially when defendant and his companion are contradicted by their witness Richard in several particulars.

The testimony of the plaintiff and of his six witnesses, all disinterested and unimpeached, establish with certainty the absolute truth of each and every allegation of fact of plaintiff’s petition. It remains to us only to apply the law to those facts.

We find the law to be as follows:

1st. “That upon approaching the intersection of two much frequented streets within the limits of this city, it is the duty of a chauffeur to check up his speed and to use more than ordinary care to avoid injury. At corners and crossings the vehicle should be slowed down and in such control as to be able to be immediately stopped if necessary.” 37 Cyc. 270-272.

“It is negligence per se to drive an automobile at an unlawful and dangerous rate of speed in a frequently used street on a populous part of a city.” Berry, 202.

2nd. “That racing in a highway is negligence per se. 37 Cyc. 276-275 (2) 284, 28 Cyc. 29-30.

“The thoroughfares of the City of New Orleans were never intended for a race course.” Avegno vs. Hart, 25 La. Ann. 235.

3rd. “That whatever may have been the negligence of the party injured the defendant is liable if by the exercise of ordinary caution he might have avoided the accident.” Burvant vs. Wolfe, 126 La. 788, 52 South. 1025; McClanahan vs. V. S. & P. Ry. Co., 111 La. 782, 35 South. 902; Blackburn vs. L. R. & N. Ry. Co., 144 La. 520, 80 South. 708; Ingram vs. L. & N. W. Ry. Co., 128 La. 933, 55 South. 580; Jones vs. Mackay Telegraph Cable Co., 137 La. 121, 68 South. 379.

“The violation of an ordinance by the plaintiff will not defeat a recovery if the defendant could have avoided the injury by the exercise of ordinary care. Berry 203 (16) 211.

It is therefore ordered that the judgment be affirmed.


author: WESTERFIELD, J.

text:
    No. 10,234
    Orleans
    THOMAS, Appellant, v. CITY OF NEW ORLEANS AND REILLY
    (Oct. 18, 1926. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Judgment—Par. 175, 197.
    A judgment rendered in a suit by A against B is properly pleaded on behalf of B as res judicata in a subsequent suit by A against B and C in solido, when the allegations set up the same cause of action and the same object. The mere addition of C as a co-defendant is immaterial.
    Appeal from Civil District Court, Div. “B”, Hon. Porter Parker, Judge.
    Action by Elizabeth Thomas against City of New Orleans and Mrs. Therrence Reilly.
    There was judgment for defendants and plaintiff appealed.
    Judgment affirmed.
    J. J. Wingrave, of New Orleans, attorney for plaintiff, appellant.
    Michael Irwin, B. I. Cahn, of New Orleans, attorneys for defendants, appellees.
   WESTERFIELD, J.

This is an appeal from a judgment maintaining a plea of res judicata.

Plaintiff originally sued Mrs. Therrence Reilly for damages for physical injuries alleged to have been sustained by her by reason of a fall caused by a hole in the sidewalk in front of Mrs. Reilly’s house.

To this suit Mrs. Reilly filed an exception of no cause of action which was maintained and the suit dismissed on the ground that front proprietors are not liable for injuries sustained by pedestrians, caused by defective sidewalks.

Thereupon counsel brings another suit (the case at bar) in which he alleges the same cause of action and joins both Mrs. Reilly and the City of New Orleans as defendants solidarily liable. To this second suit a plea of res judicata was filed on behalf of Mrs. Reilly and maintained. The only contention made by counsel for appellant is that the second suit differs from the first because in the second suit the City is also made defendant. There is of course, no force to this contention. R. C. C. 2286 provides:

“The authority of the thing adjudged takes place only with respect to what was the object of the judgment. The thing demanded must be the same; the demand must be founded on the same cause of action;'the demand must be between the same parties, and formed by them against each other in the same quality.”

The expression “between the same parties” used' in the quoted article does not mean- that the article has no application where a new suit containing the same allegations between the same parties with another defendant added is brought. Such interpretation would amount to an absurdity.

It is ordered that the -judgment appealed from be affirmed.


text:
    No. 9415
    Orleans
    VANCE, Appellant, v. POREE
    (Oct. 4, 1926. Opinion and Decree.)

      (Syllabus, by the Editor.)
    1. Louisiana Digest — Automobiles—Par. 4 (b).
    Where two automobiles approach an intersection at a right angle, and one of them nearly completes the crossing before the other arrives at the intersection, the one which almost travers.es the intersecting street is entitled to proceed notwithstanding the fact that the other car had the right of way.
    2. Louisiana Digest — Automobiles—Par. 4 (b), 4 (d).
    The right of way established by Municipal Ordinance in favor of vehicles using certain streets is not an exclusive privilege, and it must be exercised with due regard to the right of other vehicles to use the intersecting streets.
    Appeal from the Civil District Court, Division “F”, Hon. Percy Saint, Judge.
    Action by William B. Vance against Jules Poree.
    ' There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    Denegre, Leovy and Chaffe, and Edw. Gladney, Jr., of New Orleans, attorneys for plaintiff, appellant.
    John D. Nix, Jr., and W-. W. Wright, attorneys for defendant, appellee.
   OPINION.

WESTERFIELD, J.

This suit results from a collision between a Studebaker and a Ford automobile at the intersection of St. Charles Avenue and Robert Street. The owner of the Studebaker sues the owner of the Ford and the Ford owner reconvenes.

The trial judge dismissed plaintiff’s suit and .gave judgment for the defendant in reconvention for $100.00. Plaintiff has appealed.

Pretermitting, for the moment, the question of negligence on the part of the drivers of the colliding vehicles, we observe that the judgment appealed from must be reversed.

The owner of the Studebaker was not present at the accident. The car was not being driven on any errand of his, nor by his employee, or any other person for whose fault he was responsible. He had loaned the car to a young man by the name of Rainold who was driving it at the time of the accident, and there is no contention that Rainold was not a competent driver. Under such circumstances plaintiff, the owner of the Studebaker car, can not be held liable. Marullo vs. St. Pasteur, 144 La. 926, 81 South. 403; Rusha vs. Coyle, 149 La. 731, 90 South. 144.

The Ford car, which was occupied by two minor sons of defendant, and driven by one of them, at the time of the accident, entered the intersection of St. Charles Avenue and Robert Street from the lake side of Robert Street and collided with the Studebaker at a point near the neutral ground. The Studebaker, driven by Rainold, and occupied by three other young men, was proceeding uptown, or toward Carrollton Avenue, on the right hand roadway, devoted exclusively to traffic moving in that direction. The four oceupants of the Studebaker car testified that they were moving slowly and the Ford much faster; that the Ford did not stop before entering the intersection, as required by the traffic ordinance, which has been offered in evidence, and that no precaution was omitted by the driver of the Studebaker.

The occupants of the Ford, two young negro boys, both testify that the Ford did stop before entering the intersection' and that they looked in the direction of traffic before proceeding; that the Ford was going slowly and the Studebaker very fast and generally to the effect that the Studebaker was entirely at fault.

Clearly the weight .of evidence favors the Studebaker and, moreover, the Studebaker, since it was traveling on St. Charles Avenue, had the right of way under the city ordinance. However, there is one point, upon which practically all the witnesses agree, and, that is, in fixing the point of contact as near the neutral ground of St. Charles Avenue.

If, therefore, the Studebaker was where it should have been, near the curb on the lake side of St. Charles Avenue,, it would not have struck the Ford near the neutral ground and the Ford being near the neutral ground when struck must have entered the intersection some little time before the Studebaker and therefore may be said to have pre-empted the crossing and the Studebaker notwithstanding its right of way should not have proceeded under the circumstances, but should have given way to the Ford. For as we have frequently held, the right of way confers no exclusive right to the possessor to monopolize the streets and intersections. Oscar J. Lalla vs. L. M. Williams, et al., 9212 Orl. App.; Levy vs. Russell, 9291 Orl. App.; Accordo vs. Aiklen, 9610 Orl. App. See also Sec. 7, par. (g) Ord. 7490 C. C. S.

Our conclusion is that the accident was not due to the fault of the Ford car and that consequently the plaintiff can not recover.

It is therefore ordered that the judgment appealed from be reversed and it js now ordered that there be judgment dismissing plaintiff’s demand.

It. is further ordered that defendant’s re-conventional demand be dismissed, the costs of the lower court to be paid by plaintiff and appellant and of this appeal by defendant and appellee.


text:
    No. 10,567
    Orleans
    MURRAY v. DERA KNIGHTS OF FRIENDSHIP, ETC., Appellant
    (Oct. 18, 1926. Opinion and Decree.)
    1. Louisiana Digest — Associations—Par. 16, 21.
    The beneficiary of a member of a fraternal organization has no claim against the organization when its by-laws provide that a member in default for the payment of dues shall be suspended from all rights as a member and when the certificate of memberships provides that payment shall be made on (proof that the member was in good standing, when it is shown that the member is in default for the payment of his dues, although he may be readmitted on payment of dues within a stated time.
    2. Louisiana Digest — Associations—Par. 2, 21.
    But where the by-laws of the organization provide that a re-admitted memher shall not enjoy the benefits granted by the organization for a period of sixty days after he shall have paid up all arrearages, the death of the member within the sixty days bars recovery of the beneficiary.
    Appeal from the First City Court, Hon. Henry Renshaw, Judge.
    Action by Louise Murray (Widow George Murray) against Dera Knights of Friendship and Silver Moon Lodge No. 69.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed.
    E. Lazier, of New Orleans, attorney for plaintiff, appellee.
    Eraste Vidrine, of New Orleans, attorney for defendant, appellant.
   CLAIBORNE, J.

This is a suit for an insurance benefit.

The plaintiff alleged that her husband died on October 4, 1921, and that at the time of his death he was a member in good standing of the Silver Moon Lodge; that her said husband held a policy in said lodge; that she was the beneficiary under said policy and entitled to receive thereunder $225 at the death of her husband, on account of which she had received $25.

The defendants admitted the policy and the death and the payment of $25 in full settlement, but denied all the other allegations of the, petition.

There was judgment for plaintiff as prayed for, and defendants have appealed.

We gather from the briefs that the defense is that the deceased did not pay "for the quarters beginning July 1st and October 1, 1921, when he died, October 4, 1921; that by reason of his failure to make the payment due July 1, 1921, he was suspended pursuant to Section 42 of the organization’s constitution and bylaws; and that by reason of his failure to pay those July dues, sixty days after they became due, he, ipso facto, ceased to be a member pursuant to Section 43”.

Section 42 reads as follows:

“If any member shall fail to jpay when due his or her grand lodge tax or shall fail to pay his or her Supreme Lodge or Endowment Funds due in ten days after same are due and payable, or shall fail to pay when due any of his or her dues to the local lodge or any fine imposed or assessment levied upon him -or her; in either case such member shall thereupon be suspended from all rights as a member of this order, including sick benefits and rights as a policy holder. After such default and suspension, the suspended member may be reinstated by paying within 60 days from such default all amounts over-due and unpaid together with a fine of 25 cents for each amount or item so in default, and also all amounts that, may have become due to the local lodge during the intervening space, with a further fine of 25 cents or any of such latter payments as may also be in default. But such member shall not be reinstated to all rights to sick benefits or as certificate holder for a period of 60 days after he or she shall have paid up all arrearages and fines as above provided.”

Section. 43: “If a member in default for any dues, fines or assessments, shall not pay same in 60 days from the time same may be due, he or she shall thereby and thereupon cease to be a member of this order, and lose and forfeit all rights and privileges as a member and all claims and demands as a certificate holder or otherwise.”

The certificate itself provides:

“That the Supreme Lodge of the Dera Knights of Friendship of the U. S. A., will pay to the surviving wife of George Murray at his death a Burial Emergency of $225 contingent however, upon proof at his death that he has fully complied with the laws of this order and was in good standing at the time of his death, and having fully paid all Supreme Lodge dues and> benefit tax and the records of the said Supreme Lodge show the fact.”

According to Sections 32 and 35 the dues of members .are 25 cents per quarter, and of holders of endowment policies 75 cents payable quarterly on the first, day of January, April, July and October.

It is admitted that the deceased did not punctually pay the dues payable on July 1st and October 1, 1921.

But the plaintiff swears that “they wrote to my husband and asked if the endowment was paid and I sent $2, and Carter wrote and said he paid in the lodge and I sent him $1”.

The plaintiff filed ' in evidence a post office money order dated St. Martinville, September 23, 1921, for $2, and testified that she sent it to De Grey who was a member of the lodge.

There was no evidence as to whose order the order was made, nor that De Grey received it, nor that he paid it to the defendants. He was not examined as a witness.

Cosey, President of the Grand Lodge testified they did not receive it.

Carter was the President of the Silver Moon Lodge. The dollar was received after Murray’s death and returned back to the secretary of the local lodge.

W. M. Cosey, President of the Grand Lodge, testified that Murray was suspended on July 10, 1921, and that according to the constitution he could not have been reinstated before his death, and that he was not reinstated.

L. M. King, governor of records of the Dera Knights of Friendship, testified that Murray did not pay his dues for July, 1921; after Murray’s death in October they received from Miss Lockett $1 for Murray; when the Grand Lodge discovered that he was dead, they returned the money; Carter did not turn over any money to him for the Grand Lodge.

Ella Levy testified that she called with the plaintiff on President Cosey and that he said he could not pay her because he understood “that Brother Murray was not financial”.

Plaintiff relies upon a letter dated, New Orleans, October 4, 1921, written to Murray by L. M. King, in which King wrote, “don’t worry about your dues and endowment the lodge keeps up your dues and end”.

This letter cannot assist plaintiff, as it was received after Murray’s death, and could not have influenced his or her inaction.

Plaintiff also testified that she was not notified that her husband was not in good standing.

She testified, however, that they wrote to her husband. But be that as it may, the want of a notice was no defense, as there is nothing in the laws that requires notice and no evidence that it was customary to give notice.

We are constrained to enforce the Articles of the constitution and by-laws quoted above and the conditions of the policy. See Canal Villere Realty Co. vs. Gumble Realty & Securities Co., 1 La. App. 123.

But we have seen and it is not denied, that Murray failed to pay his dues on July 1st, or within ten days thereafter, and that his failure operated his suspension, as a member. It was not until September 23rd, that his wife testified that she remitted two dollars. If this payment entitied him to reinstatement, it produced no effect, in accordance with the last clause of Section 42 quoted above, “for a period of sixty days after the payment of the arrearages”.

In Lo Cicero vs. Society, 1 La. App. 263, we said:

“Where the by-laws of a mutual benefit society provide that a readmitted member shall not enjoy the benefits granted by the society until three months after his re-admission, death of such a member within such time bars recovery by .his widow of insurance benefits.”

It is therefore ordered that the judgment herein be reserved and set aside and it is now ordered that there be judgment rejecting plaintiff’s demand at her cost in both courts.


text:
    No. 10,569
    Orleans
    DIAMOND MUSIC CO. v. LAMAZON
    (Oct. 18, 1926. Opinion and Decree.)

      (Syllabus hy the Editor.)

    1. Louisiana Digest — Sales—Par. 151, 152, 218.
    The vendor of a radio set, sold upon the understanding that it would “get” out of town stations, will be denied recovery of the balance due on the selling price of the radio, when the evidence shows the radio to be incapable of more than local activity.
    Appeal from First City Court, Division “C”. Hon. Wm. V. Seeber, Judge.
    Action by the Diamond Music Co., Inc., against Arthur Lamazon.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Jno. E. Jackson and B. J. Allen, of New Orleans, attorneys for plaintiff, appellant.
    Jos. Rosenberg, of New Orleans, attorney for defendant, appellee.
   WESTERFIELD, J.

Plaintiff claims $173.00 as a balance due on the purchase price of a Thompson Neutrodyne radio set.

Defendant admits buying the radio set and does not dispute the amount claimed to be due thereon, but, he says, the radio could not be made to function. Defendant avers, and plaintiff admits, that he bought the radio for the express purpose of “getting” or tuning in on out of town stations. Indeed, the price agreed upon, $230.00, would indicate that its activities should not be confined to local stations. Defendant conducts a retail grocery store and the radio was intended for the entertainment of his customers.

It is an elementary principle of law that the vendor warrants the thing sold to be fit for the purposes for which it was intended. American Paint Works vs. Metalrie Ridge Nursery Co., 1 La. App. 396.

The only question presented is one of fact. Namely, was the radio capable of tuning in on out-of-town stations. There is some evidence to the effect that the machine was tested before being delivered to defendant and that on one occasion someone in plaintiff’s employ “got” Pitts-burg and a radio program broadcasted ■ there is said to have been reproduced by the radio sold defendant though it is not claimed to have been more than a faint and indistinct reproduction. Defendant denies that the radio go.t Pittsburg, faintly or otherwise. It seems to us that it would have been an easy matter for plaintiff to have demonstrated to the court the effectiveness of the radio if it was effective with out-of-town stations. The trial judge resolved the question in defendant’s favor by non-suiting plaintiff. We are unable to say that he was manifestly wrong.

The judgment appealed from is affirmed.


text:
    No. 10,740
    Orleans
    STATE EX REL. RUSSEL v. CITY OF NEW ORLEANS
    (November 15, 1926. Opinion and Decree.)

      (Syllabus try the Court)
    ON MOTION TO DISMISS APPEAL
    I. Louisiana Digest — Appeal—Par. 160, 222, 223.
    Act 337 of 1926 directing the payment of jury commissioners out of the Judicial Expense Fund for the Parish of Orleans having been declared constitutional, held: that the judges of the Civil District Court en banc officially and individually had an interest to appeal from the judgment so declaring.
    Appeal from First City Court, Hon. Val. J. Stentz, Judge.
    Action by State ex rel. Thos. A. Russell et al. against City of New Orleans et al.
    There was judgment for plaintiffs and defendants appealed.
    On motion to dismiss appeal, motion denied.
    E. M. Heath, H. A. Moise, E. Brodtman, of New Orleans, attorneys for plaintiffs and appellees.
    Joseph Carroll, F. P. Burns, of New Orleans, attorneys for defendants and appellants.
   CLAIBORNE, J.

This is an appeal from a judgment commanding the commissioner of finance and the treasurer of the city to pay relators, who’are jury commissioners for the Criminal District Court, $212.70 out of the Judicial Expense Fund of the Parish of Orleans as part of plaintiffs’ salary as jury commissioners for the Parish of Orleans for part of the month of July, 1926.

By Act 337 of 1926, Sec. 2, p. 653, it was enacted:

“Each of said (jury) commissioners shall receive a salary of $2400 per annum, payable monthly, of which $1800 per annum is to be paid out of the Judiciary Fund of the Parish of Orleans, the balance by the City of New Orleans.”

The treasurer of the City of New Orleans refused to pay the jury commissioners out of the Judiciary or Judicial Fund. Whereupon the jury commissioners filed suit against him and the commissioner of finance.

Relators averred that “from 12 o'clock noon of July 28th to July 31st, 1926, both inclusive, they were entitled to receive a salary of $6.45 per day by virtue of Act 337 of 1926; that a portion of said salary is apportioned to the Judicial Expense Fund for the Parish of Orleans by virtue of Act 337 of 1926, and demand was made upon the Honorable E. K. Skinner, presiding judge of the Civil District Court for the Parish of Orleans, for a warrant to cover said paying of the salary due to your relators, -wMcIl was refused. Thereupon relators demanded said salary from the city treasurer of the City of New Orleans and the said city treasurer, refused to pay the relators the amount hereinabove set forth, because the commissioner of public finance refused to approve the payroll for said amount”.

Relators concluded by praying that the commissioner of public finance and the city treasurer be commanded to pay over to relators, Thomas A. Russell, Randolph Hereford and Claude Mauberret the sum of $70.90 each for salary as jury commissioners for the Parish of Orleans.

Judgment was rendered in favor of relators, “commanding T. Semmes Walmsley, commissioner of finance of the City of New Orleans, and William A. Daley, treasurer of the City of New Orleans, to pay to relators the sum of $212.70, or the sum of $70.90, to each out of the Judicial Expense Fund of the Parish of Orleans, being the excess salary due for the month of July, 1926, as jury commissioners for the Parish of Orleans”.

From this judgment Edward K. Skinner, Porter Parker, Hugh C. Cage, William H. Byrnes and Mark M. Boatner, individually, and as judges of the Civil District Court, “acting as and constituting the said court en banc”, alleged that they had an interest in the above suit and that said interest might be injuriously affected by the judgment above rendered, in the following manner:

1st. That Section 95 of Article YII of the Constitution of 1921 of this state constituted them judges of the Civil District Court and invested them with the sole and exclusive control of the Judicial Expense Fund of the Parish of Orleans created by said section.

2nd. That said fund, by the same Section 95, is dedicated exclusively to the payment of certain salaries and expenses therein detailed, including the additional salary of $2500 per annum to each of petitioners.

3rd. That said judgment orders the commissioner of finance of the City of New Orleans to pay to each of relators $70.90 out of the said Judicial Expense Fund for part of relators’ salaries as jury commissioners of this parish, thus upholding the validity of Act 337 of 1926.

4th.. That said Act 337 is in violation of Section 95 of the constitution of this state in that: 1st. It ignores and seeks to affect petitioners’ control of said Judicial Expense Fund, and, 2nd. To appropriate the money of said fund to a purpose other than that to which said fund is dedicated by said section, and for those two reasons said Act 337 is unconstitutional - and null.

Under those allegations they prayed for and obtained a suspensive appeal from said judgment to this court by virtue of Article 571-572 of the Code of Practice, which reads as follows:

“The right of appeal is given, not only to those who were parties to the cause in which a judgment has been rendered against them, but also to third persons not parties to such suit, when such third persons allege that they have been aggrieved by the judgment.”

Article 572: “Tutors, curators and other persons charged with the administration of another’s estate may appeal for the benefit of the persons whose property they administer, if they deem an appeal necessary.”

In this court the relators have moved to dismiss the appeal taken by the five judges of the District Court on the grounds that:

1st. Said judges individually or en banc have no appealable interest and have not been aggrieved by said judgment.

2nd. That if the judges of said court have any rights in this suit or in the fund, they should have asserted them by third apposition.

3rd. That there is no allegation that the judgment would affect them, or that the fund would be insufficient to pay their salaries.

4th. That the judges have no proprietary interest in the judicial fund.

It is not necessary to copy here the long Section 95 of the constitution. It is sufficient to quote the following parts material to the present issue.

“The clerk of the Civil District Court, the clerks of first and second city courts, the register of conveyances and the recorder of mortgages .shall keep accurate and detailed accounts, in books to be used for that purpose, of all fees collected in their offices respectively, which shall constitute the Judicial Expense Fund of the Parish of Orleans, and the salaries of said above named officers and their deputies, as well as the expenses of their respective offices, shall be paid therefrom upon warrants signed by the presiding judge of the Civil District Court.”

“The judges of the Civil District Court 'for the Parish of Orleans, court en banc, shall have control over the Judicial Expense Fund for the Parish of Orleans, accruing and accrued, and to this end ' shall fix and regulate, from time to time, the number of deputies and employees of the officers of the clerk of the Civil District Court, the city courts, register of conveyances, and recorder of mortgages of said parish and their expenses, and also shall have power to fix the tariff of costs and charges to be paid for official services, which shall not exceed in any respect the tariffs now fixed by law, in said offices, which are paid into and. constitute said fund. * * *

“The judges of said court shall each receive an additional annual salary of $1000, payable monthly 'upon his own warrant, which shall be payable out of this fund, etc.”

IVe think that the judges of the Civil District Court who officially have the control, accounting and distribution of the judicial fund have not only an interest but a duty to see that the fund is protected in its integrity and sufficient to meet its obligations, and that it be not diverted from the purposes to which it was dedicated or consecrated.

If they have not that right, who has it?

In the case of State ex rel. Mount, Treasurer of the City of New Orleans, 22 La. Ann. 119, a judgment had been rendered against Mount and the City of New Orleans. From this judgment the District Judge refused Mount an appeal because it did not appear to him that W. S. Mount, Treasurer, had an interest in said judgment. On an application for a mandamus to compel the judge to grant the appeal the Supreme Court said:

“It is also difficult to conceive a want of interest in W. S. Mount, treasurer of the City of New Orleans, who is proceeded against in his official capacity, to be compelled to pay large sums out of the funds confided to him as an individual. W. S. Mount, of course, had no interest; but he was not proceeded against individually. He was brought into court in his official capacity. In that capacity his interest in the funds was commensurate with the amount claimed. If he believed the judgments erroneous it was not only his right, but his duty as a faithful officer, to resort to the remedy of appeal. * * * If the principle contended for by the district judge be correct, no administrator or officer can appeal from a judgment affecting the funds confided to him, however large the amount involved and however large his fiduciary ' interest therein, because individually he may have no interest.”

In interpreting a constitution- we must give effect to its spirit as well as to its letter.

The sheriff has an action to protect prop- • erty seized by him and in his official possession. 1 H. D. 333 No. 26. Frank vs. Magee, 49 La. Ann. 1255, 22 South. 739; Robins vs. Brown 32 La. Ann. 430; Paul vs. Hoss. 28 La. Ann. 852; State vs. Judge, 15 La. Ann. 34; McGrew vs. Browder, 2 Mart. N. S. 17.

But- the duties and functions imposed upon the judges in their control of the judicial fund are niot only in the interest of the beneficiaries of the fund, but are a matter of public interest and policy, interest reipublicae. In their control of this fund the judges act as agents of the state. It is the interest of the state that the judicial fund should always and at all times be in a position to meet the purposes for which it was intended and should not be diverted to other purposes. It is a part of the judicial history of the Parish of Orleans that by Act 136 of 1880 a system of stamps was organized for the payment of judicial expenses. For Reasons, which it is not necessary to recall, the fund fell short and was insufficient to pay the numerous clerks, who depended upon the receipts emanating from the sale of stamps. The consequence was that these clerks sold their time at heavy discount to the detriment of the proper administration of justice and to the loss of the clerks. The state had an interest in seeing that its officers were paid. It went even so far as to exempt from seizure the salary of a clerk of a recorder’s court. Moll vs. Sbisa, 51 La. Ann. 291, 25 South. 141.

As a result of this demoralization of the judicial clerks the Constitution of 1898, Article 156, abolished the stamps system and inaugurated the judicial fund. This system proved a success by which all clerks have been paid their salary promptly to the satisfaction of litigants and clerks. The Constitution of 1921 retained the system by Article 95 by which the state has placed the judicial fund under the control of the judges to guard it and protect it from invasion.

It is immaterial whether that control be exclusive or concurrent. It is sufficient that it be a right of control to give the appellants ah appealable interest.

That control is not unconstitutional for being in violation of Section 3 of Article VII which provides that no function shall ever be attached to any judge of a court of record. The framers of the constitution were at liberty to consider the control of the judicial fund as a judicial function.

But Section 3 was an inhibition directed to the Legislature only. The control of the fund was vested in the judges by the constitution itself, therefore Section 95 cannot be unconstitutional.

But if these judges have no interest officially en banc in this case by virtue of Section 95 and their control of the fund, then it is clear that independently -’of that section they have an interest as individual judges to see that no unconstitutional invasion of the fund is made to their prejudice, for the reason that they are paid in part out of that fund. Indeed, not only the judges but each and every clerk or deputy clerk mentioned in Section 95 has a standing in court to protect his interests.

That there is no allegation or proof that if payment is made to the .jury commissioners there will not remain enough to pay the judges is no answer.

The interest to protect the fund still remains. That question! could only be ex amined bn the merits. It is the absence of right to invade the fund that creates the interest. If the Act 337 remains uncontested, future attempts may be made, allured by the rich fund, to appropriate it to foreign purposes and perhaps to create a deficiency in the fund and thus make the builders of the fund work for others who do not contribute it. “Sic vos non robis, aedificatis aves; sic oves, sic apes, sic boves”, and litigants would be made to pay expenses foreign to litigation.

In the case of the City of Alexandria vs. Police Jury, 139 La. 636, 71 South. 928, quoted by appellees, the appellants had no direct pecuniary interest in the suit.

But in the case of the City Item vs. City, 51 La. Ann. 713, 25 South. 313, and others quoted there, the court decided that the taxpayer of a city had a standing to attack the legality of a corporate act. See also State vs. City of New Orleans, 50 La. Ann. 880, 24 South. 666, and State ex rel. Saunders vs. Kohnke, 109 La. 838, 33 South. 793.

Nor are the judges debarred from appealing because they could have filed an intervention. To so hold would be to deny to them the right of appeal conferred by C. P. 571, as such an objection might be made in every case. We think the two remedies are concurrent, one in default of the other. »

It is therefore ordered that the motion to dismiss be denied.


text:
    No. 10,648
    Orleans
    AVILES v. KELIHER, INC.
    (November 15, 1926. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Brokers—Par. 17.
    A solicitor for a real estate agent is entitled to her agreed share of a commission paid the agent by a customer procured by her efforts. Whether the commission so paid could have been recovered at law in a suit on the contract between the customer and the agent is immaterial.
    Appeal from First City Court of New Orleans, Sec. “B”. Hon. Val. J. Stentz, Judge.
    Action by Mr. and Mrs. Isameel Aviles against Keliher, Inc.
    There was judgment for plaintiffs and defendant appealed.
    Judgment affirmed.
    H. L. Hammett, of New Orleans, attorney for plaintiffs, appellees.
    McGiehan & Stauch, of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

This is a suit for a commission in the sumj|of $146.66.

Plaintiff alleges that she was employed by defendant to procure the listing of property with defendant for sale on a basis of one-third of the commission ultimately paid defendant for selling the same in the course of its real estate business; that she obtained the listing of a certain property belonging to one Tony Gondolfi; that on February 5, 1926, Gondolfi accepted an offer of $11,000.00 from and ultimately sold the property to one J. Gordon Lee; that defendant received a commission on the sale of 4 per cent or $440.00 and therefore owes plaintiff one-third of $146.66.

Defendant admitted employing plaintiff and receiving the commission on the Gondolfi sale but denies owing plaintiff a commission on the ground that the listing contract admitted to have been procured by plaintiff, had expired, and plaintiff was no longer in its employ on February 5, 1926, when, the agreement of sale was made.

There was judgment for plaintiff as prayed for and defendant has appealed.

On December 9th, plaintiff procured Gondolfi’s signature to a printed card supplied her by defendant, whereby Gondolfi agreed that defendant should have the exclusive right to sell his property for 'a period of fifteen days. Across the face of the card is written in the handwriting of plaintiff “Expires Peb. 1st” and, embodied in the printed form, there appears the following:

“In the event of their finding a purchaser for said premises for $11 000.00 or at a different price and terms acceptable to me in consideration of said services to be rendered by said Keliher, Inc., I hereby promise to promptly pay it a commission of four (4%) per cent of the selling price during the existence of this contract or on the gross amount of any such agreement made within forty-five days after the expiration or termination of this contract with any one to whom said property has been quoted during the term of the contract.”

The property had been offered to Lee, the purchaser, and negotiations had with him some two weeks before he signed the agreement to buy the property, but it is contended that the words written across the card by Mrs. Aviles, the plaintiff, were not authorized by Gondolfi, the owner of the property, and that consequently the contract of listing had expired fifteen days after December 9, 1925, or December 24, 1925. Mrs. Aviles insists that Gondolfi made a verbal agreement with her extending the term of his original contract and that she wrote the words across the card as a memorandum thereof. ’

We believe it very probable that Gondolfi did agree to extend the contract verbally (which could be validly done, Whatley vs. McMillan, 152 La. 979, 94 South. 950); otherwise, it -is unlikely that he would have p'aid defendant the commission and we are not impressed with defendant’s explanation of his collection of the commission as due to good luck or to Gondolfi’s good nature. Moreover, defendant’s manager, whom, it is admitted, simply wears a corporate cloak, the business being entirely his, testified that the day after the sale plaintiff demanded her money and “wanted a settlement that minute” but that “there are one hundred and one things that can trip a sale, and, as a matter of fact, we tried to make an adjustment with you and you refused to listen”.

It is evident that defendant’s principal reason for refusing to pay plaintiff was his conviction that her demand was premature. In any event defendant received a commission on the sale from the vendor procured by plaintiff under the agreement she induced him to make with her employer, defendant herein. If the contract had expired no objection to the payment of the commision on that ground was made by the vendor. Defendant has benefited by plaintiff’s labor and we see no1 reason she should not be compensated.


text:
    No. 8289
    Orleans
    BAUMAN, Appellant, v. NEWMAN, Ltd.
    (Nov. 2, 1926. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Master and Servant —Par. 159.
    When some infirmity is lurking in plaintiff’s system at the time of the accident, he can recover only such damages as are the immediate result of the accident.
    2. Louisiana Digest — Master and Servant Par. 154.
    When the injury to plaintiff is not covered by Section 8, Subsections (a), (b), (c), and (d), of the Employers’ LiabTity Act, the court will be guided by Subsection (e), for a reasonable compensation.
    Appeal from the Civil District Court. Hon. H. C. Cage, Judge.
    Action by Wm. Bauman, against H. and C. Newman, Ltd.
    There was judgment for defendant and plaintiff appealed.
    Judgment amended and affirmed.
    Alice A. Allen, of New Orleans, attorney for plaintiff, appellant.
    Edw. Rightor, of New Orleans, attorney for defendant, appellee.
   CLAIBORNE, J.

This is a suit under the Employers’ Liability Act.

The plaintiff alleged that while in the employ of the defendant company and in the course of his employment he was sewing the heads of cotton bales at the Virginia Cotton Press ' on May 29, 1919, when he slipped off of one of the bales and his right foot was caught in the machinery of the cotton press, crushing said foot to such an extent that it is permanently injured and that he is unable to do any work of any reasonable character; that at the time of the injury he was earning $25.13 per week, and that he is entitled under the compensation laws of this State to 55 per cent of said amount during 400 weeks or to $5528 payable $13.82 welcely; that the Employers’ Liability Assurance Corporation, the assurers of defendant, have paid him 26 weeks at $11 per week or $288. Plaintiff prayed therefore for judgment for $5242.

For answer defendant denied every allegation of each paragraph of the petition. There was judgment in favor of the plaintiff for $23.66 and for $5.41 per week for 24 weeks, making 50 weeks’ compensation.

Plaintiff’s earnings during one year preceding the accident were $1125.86.

That would make his average weekly earnings $21.65, 55 per cent of which-would be $11.91. The defendant having paid $11 per week for 26 weeks remained owing a'balance of 91 cents for 26 weeks or $23.66.

The case wa’s submitted without argument. The appellant has filed no briefs.

This case must be decided by section 8, subsection 1 of Act 38 of 1918, p. 53, as the accident occurred in 1919.

Paragraph (a) provides for injury producing temporary total disability, to do work of any reasonable character, etc.

Subsection (b) for injury producing permanent total disability to do work of any reasonable character, etc.

Subsection (c) for injury producing partial disablity to do work of any reasonable character, etc.

Subsection (d) for loss of a thumb, etc.

For the loss of a foot, 55 per cent of wages during 125 weeks.

Subsection (e) “In cases .not falling within any of the provisions already made, where the employee is seriously permanently disfigured about the face or head, or where the usefulness of a member or any physical function is seriously permanently impaired, the court may allow such compensation as is reasonable in proportion to the compensation hereinabove specifically provided in the cases of specific disabilities above named, not to exceed fifty-five per cent of wages during one hundred weeks.”

As the law allows compensation for the loss of a foot during 125 weeks only, plaintiff cannot claim for a longer period for a mere injury to the foot, and he is not entitled to as much compensation as if he had lost his foot.

The evidence established beyond a doubt that plaintiff’s foot was crushed in machinery, the skin abraded requiring skin grafting, much damaged tissue removed, the ligaments torn, leaving long and deep scars; causing inability to stand upon the foot or walk, for ■ more than six months, accompanied with much pain, bringing about total disability to do work of any kind. Prior to the accident plaintiff suffered from flat feet, or “jay-bird heels”, which were aggravated by the injury as regards the right foot. According to Dr. O’Hara, Coroner, by reason of the accident plaintiff’s capacity to work was impaired 25 per cent by the accident.

We do not find that plaintiff’s case is covered by any of the paragraphs (a), (b), (c), (d), of subsection 1 of section 8. But we do find that it comes under paragraph (el, which the trial judge wisely applied. Dr. O’Hara testified that plaintiff’s infirmity was. the result of the combination of the congenital pre-existing flat foot and of the injury, and under subsection (e), the trial judge granted plaintiff compensation for one hundred weeks. But inasmuch as only one-half of plaintiff’s infirmity was attributable to the accident, the trial judge correctly allowed him damages for fifty weeks.

In the case of O’Neil vs. Morgan Rrd., No. 10,115 of this court, writ refused, this court decided:

“In a physical injury case evidence held to show that the injury was not the. sole cause of, but merely superinduced, the plaintiff’s temporary mental derangement, the cause of which was a disease lurking in plaintiff’s system at the time of the accident, plaintiff is entitled to damages for only so much of his affliction as is the result of the accident.”

That part of the judgment for $23.66 is correct. But the part which gives plaintiff only $5.41 per week for 24 weeks seems to us an error. Under the subsection (e), plaintiff was entitled to 55 per cent of wages.

It was admitted that plaintiff’s wages were an average of $21.65, and that 55 per cent of that sum is $11.91 allowed by the first part of the judgment.

Plaintiff is therefore entitled in addition to the $23.66 to $11.91 for 24 weeks instead of $5.41.

It is therefore ordered that the judgment herein be amended by increasing the amount thereof from $5.41 per week to eleven 91-100 dollars per week for twenty-four weeks, and as thus amended that the judgment be affirmed at . the cost of defendant in both courts.


text:
    No. 9468
    Orleans
    SUCCESSION OF SUNER
    (November 2, 1926. Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Appeal—Par. 594, 598, 694.
    Judgments are presumed to be correct. Consequently when no appearance is made in this court, and no brief filed, nor argument made, on behalf of appellant, and the judgment, superficially considered, appears correct, it will be affirmed.
    Appeal from Civil District Court, Division “B”. Hon. Mark M. Boatner, Judge.
    Action by Mrs. Antonio Ginterrez and Mrs. Mary Lenas opposing letters of administration applied for by Peter Lopez.
    There was judgment for Lopez and opponents appealed.
    Judgment affirmed.
    J. K. D’Aricourt, of New Orleans, attorney for administrator, appellee.
    Carbajal & Gaudin, M. R. DeReyna, of New Orleans, attorneys for opponents, appellants.
   WESTERFIELD, J.

Peter Lopez applied for letters of administration of the Succession of Mrs. Marceline Suner. He was opposed by Mrs. Antonio Ginterrez, wife of Oscar Borjon, and Mrs. Mary Lenas, wife of Tony Angelety. Lopez claimed to be a half brother of decedent and opponents’ second cousins, who deny that Lopez is a half brother or any other relation of deceased.

The judge a qua recognized Lopez as entitled to the administration. The opponents appealed. . In this court no appearance was made and no brief filed in behalf of opponents and appellants.

The learned judge, a quo, gave the following reasons for judgment:

“Peter Lopez, who applies for the administration of the succession of the deceased, is the legitimate son of Victoriano Lopez, who was the natural father of the deceased.

“It is proved that Victoriano admitted the paternity of the deceased, received her in his household and otherwise treated her as his daughter. It is proved that in an instrument intended for a will, but defective in form, the deceased styled Peter her brother, and that the relations between them were those of brother and sister.

“On the authority of Succession of Gravier, 125 La. 733, 51 South. 704; Bourrique vs. Charles, 107 La. 218, 31 South. 757; and Langer and Richoux, 6 La. 570, I must find that the acknowledgment of the deceased by her father, ymtoriano Lopez, is duly and sufficiently proved; from which it results that Peter Lopez is her natural brother.

“It is true that Victoriano Lopez had been the husband of a woman other than the mother of the deceased, and it may be inferred from the Board' of Health certificates which are in the record that the mother had been the wife of a man named Sparsa; but the dates of these marriages are not shown, and, since the court must resort to presumption, it will presume, as against adultery, that when the deceased was conceived her parents were not married. Therefore, there was no impediment to the acknowledgment.

“The father and mother of the deceased having died before her, her estate passes to Peter Lopez, her natural brother (Civil Code 923) and as heir he is preferred for the administration over the opponents who are cousins in a remote degree.”

Being without advice as to the alleged error in the judgment appealed from, and since, to our superficial examination, no error has been disclosed, we indulge the presumption that the judgment is correct and adopt the reasons of our brother of the District Court as our own.

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


text:
    No. 9436
    Orleans
    SISSUNG v. NORTH RIVER INSURANCE CO. OF N. Y.
    (October 4, 1926, Opinion and Deere.)

      (Syllabus by the Court)
    1. Louisiana Digest — Insurance—Par. 77; Marriage — Par. 135.
    An automobile bought by a wife, not separate in property, belongs to the community. The husband may recover on a policy of fire insurance covering the said automobile taken out in his name. The warranty of ownership of the automobile contained in the policy is fully met by the legal effect of Iris wife’s purchase.
    2. Louisiana Digest — Marriage—Par. 135, 144, 163.
    Acts 94 of 1916 and 219 of 1920 permit a wife to act independently of her husband, in relation to her separate property, but under express provisions of the acts themselves, do not affect the law relating to the community of acquets an,d gains.
    Appeal from the Civil District Court, Division “A”, Hon. Hugh C. Cage, Judge.
    Action by Peter Sissung against the North River Insurance Company of New York.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed and case remanded
    Jos. Rosenberg, of New Orleans, attorney for plaintiff, appellant. ' •
    J. Hollingsworth, of New Orleans, attorney for defendant, appellee.
   WESTERFIELD, J.

Plaintiff, alleging the destruction by fire of a certain Dart automobile, brings this suit against the defendant insurance company for $500.00, the face value of a fire insurance policy, issued to plaintiff, by defendant, covering the said Dart automobile.

Defendant admitted the issuance of the policy to plaintiff and the payment of the premium-, but denied the destruction of the automobile by fire, and by way of special defense averred that, one of the facts warranted by plaintiff, as a consideration for the issuance of the policy, to-wit: that the automobile belonged to plaintiff, was untrue, in that the automobile belonged to Mrs. Sissung, plaintiff’s wife.

On the trial of the case it was shown that the automobile in question was pur-, chased in the name of Mrs. Peter Sissung, by act before George Janvier, Notary Public, for the sum of $686.00, of which $350.00 was paid in cash and $336.00 by twelve promissory notes of $28.00 each, maturing at thirty-day intervals, covering a period of one year.

Peter Sissung testified that he gave his wife the money to make the cash payment on the automobile and to pay such notes as had matured; that his wife had no money when he married her, and had inherited none. Counsel for defendant interrupted the proceedings when matters had progressed thus far by filing a plea of estoppel in which it was alleged that Mrs. Sissung on March 15, 1921, bought a lot on Amelia street with her separate funds; that Sissung lived in the property with his wife;'that on September 16, 1922, Mrs. Sissung, with Sissung’s knowledge, bought the automobile covered by the policy of insurance sued on, that in both transactions Mrs. Sissung was acting under the authority of Act 94 of 1916, which provides that “a married woman is competent to contract and bind herself personally” and with reference to separate and paraphernal property; that “by the said acts of the said plaintiff, by his acquiescence and by his recognition of the fact that the said automobile was the separate and paraphernal property of his said wife, the said plaintiff became and did estop himself, ever thereafter, to deny the verity of the claim and the fact that the Dart automobile * * * was and is the separate and paraphernal property of his wife.”

The plea of estoppel was maintained, further proceedings stopped, and plaintiff’s suit dismissed. Plaintiff has appealed.

The learned judge a quo was of the opinion that the case of Kronenberger vs. Hopkins, 111 La. 405, 35 South. 618, was conclusive of the issue presented by the plea of estoppel. We are compelled to differ with him. In the Kronenberger case it was held that “where the affidavit of the wife to the effect that her husband is in debt to her for paraphernal funds received and used by him is made and recorded with his knowledge and consent and is allowed to remain unchallenged on the public records until after the wife dies, and her heirs upon the petition of the husband are put in possession of her estate, during which time it is recited in authentic acts to which the husband is a party, as a valid subsisting mortgage, the husband is estopped to deny the verity of the claim represented by such affidavit and cannot be heard to say as against the heirs of the wife that it is fictitious and was intended merely to protect his property from the possible pursuit of his creditors”.

We can see very little in the Kronenberger case that is helpful here.

To begin with, the law declares that purchases in the name of either spouse belong to the community because “in that case the period of time when the purchase is made is alone attended to and not the person who made the purchase”. R. C. C. 2402; Succession of Andrus, 131 La. 940, 60 South. 623. When, therefore, the wife bought the automobile, she was acting for the community. If the husband knew of the transaction, what is 'there in such knowledge which estops him from thereafter asserting what the law declares to be the true significance of the wife’s act. He was not a party to the act of sale, which incidentally contains no- declaration that Mrs. Sissung was purchasing with her own paraphernal funds, but, if he had been, there is no inconsistency in his present position. Act 94 of 1916 and Act 219 of 1920 simply dispense with the necessity of the husband’s co-operation in relation to the wife’s activities concerning her paraphernal interests. Nothing in either act affects the composition of the community of acquets and gains nor the laws relating thereto and both acts contain express disclaimers of such intention.

If, then, the law stamps the wife’s purchase with the character of community, how can there be any failure of warranty in respect to the insurer’s declaration that he owned the insured car. It can not be pretended that he warranted the car to be his separate property. The fact that plaintiff’s wife bought a house and in the act of purchase declared that she bought it with her paraphernal funds, and the fact that plaintiff lived with her in that house, has not the least bearing upon this case. She may own separate property, without being separate in property. There is nothing inconsistent in her owning separate and community property.

The case must be remanded for further hearing.

It is therefore ordered that the judgment appealed from he reversed and it is now ordered that this case be remanded for further hearing according to law and not inconsistent with the views herein expressed.