text:
    No. -
    First Circuit
    KAUFMAN v. DEWITT
    (June 7, 1927. Opinion and Decree.)
    (June 28, 1927. Rehearing Refused.)

      (Syllabus by the Editor.)

      1j Louisiana Digest — Brokers—Par. 15, 23.
    A real estate broker is not entitled to his commission where the property was sold to the mother of the party with whom he was negotiating, the evidence clearly showing that there was no conspiracy in this sale to defeat the broker’s claim.

      Appeal from the Parish of Calcasieu. Hon. Jerry Cline, Judge.
    Action by Mrs. Wm. C. Kaufman against H. L. Dewitt.
    There was judgment for defendant and ' plaintiff appealed.
    Judgment affirmed.
    Robert R. Stone, of Lake Charles, attorney for plaintiff, appellant.
    E. F. Gayle, of Lake Charles, attorney for defendant, appellee.
   LECHE, J.

The present action is for the recovery of broker’s commission. The defendant, Dewitt, does not deny that a commission was earned by someone on the sale of his property, and the main auestion in the case is whether that commission was earned by plaintiff or by Leon Chavanne, whom defendant attempted to make party to the suit. Dewitt’s only interest is to obtain a discharge from the debt. He has already paid one hundred dollars to Chavanne and the balance of three hundred dollars, making in all four hundred dollars, the full amount in contestation, he has deposited or offered to deposit in court, subject to whatever judgment may be rendered herein. Of course, Dewitt is of the opinion that Chavanne is entitled to the commission, and that is demonstrated by the fact that he has already paid him one hundred dollars on account. Nevertheless Dewitt’s testimony is entitled to great weight as he is the principal figure in the whole transaction.

Dewitt owned desirable residential property in the city of Lake Charles and wished to sell it. At least two brokers i undertook to secure a purchaser for Dewitt’s property, Mrs. Kaufman, plaintiff, and Leon Chavanne. Neither one of them, however, had any exclusive contract with Dewitt. On May 12, 1926, Mrs. Kaufman secured a written offer from G. Lock Paret, at a price agreeable to Dewitt, except that Paret’s offer stipulated interest at seven per cent on the deferred payments and Dewitt wanted eight per cent, the offer to hold good until the night of May 13, the day following. Dewitt says that he accepted the offer with seven per cent with the understanding, however, that he was not to lose any discount on the notes. It seems that when G. L. Paret made this offer, he expected financial assistance from his family. He was disappointed in his anticipation, and it appears that both he and Mrs. Kaufman informed Dewitt that Paret was unable to comply with his offer. G. L. Paret then changed the terms and conditions of his first offer, made another proposition to purchase the property and his second offer was not acceptable to, nor was it accepted by Dewitt. These facts appear to be clearly borne out by the evidence, and would ordinarily be sufficient to . defeat Mrs. Kaufman’s claim for broker’s commission. But it seems that the property was, ten days later, on May 22, 1926, sold by Dewitt to Mrs. M. P. Paret, mother of G. L. Paret, and at the time the present suit was filed it was occupied by G. L. Paret as his home, and from" this circumstance, plaintiff, so believing, charges and alleges that, although the sale was. apparently to Mrs. M. P. Paret, the deal was made with G. L. Paret, whose parents; purchased the property for him, and that plaintiff’s efforts were the procuring cause of the sale.

We do not believe that the evidence .bears out these allegations of plaintiff. The property undoubtedly belongs to Mrs. M. P. Paret and this is conclusively shown by the act of sale offered in evidence. If she bought it for the benefit of her son, that is no concern of plaintiff and such fact could not be shown by parol, not even * by creditors of G. L. Paret. The only question which plaintiff can inquire into . as relevant to her demand is whether her efforts and actions were .the procuring cause of the sale by Dewitt to Mrs. M. P. Paret. She had no dealings directly with Mrs. Paret, but she believes that it was her efforts to sell to G. L. Paret, the son, that induced Mrs. Paret, the mother, to purchase. Of course, these relations between the son and the mother were presumably most intimate, close and confidential, and the fact that the son lives on the property and pays no rent lends color to plaintiff’s suspicions. The testimony, however, of Miss Zena Thompson, who acted on behalf of Leon Chavanne in the matter of selling the property, shows that negotiations were entered into by Mis§ Thompson with Mrs. M. P. Paret about the same time that Mrs. Kaufman was attempting to make a sale to Mr. G. Lock Paret. She further says that at first Mrs. M. P. Paret, .after failing to keep an appointment with her to visit'the property, informed her by phone that they, the Parets, were going to build their own home and that all deals were off. That a few 'days later another appointment was made to visit the house, and that being pleased with it, Mrs. M. P. Paret then decided to buy. ■ The deal was finally consummated •on May 22nd.

It thus appears that the actual purchaser, Mrs. M. P. Paret, .was induced to enter into the contract of sale by Miss Thompson, who acted on behalf of Leon Chavanne, and that defendant, for the reason that the purchaser was brought to- him by the Chavanne real estate agency, paid the latter agency one-fourth of the commission in cash.

We do not believe that plaintiff has shown her right to claim any commission from the defendant. To hold otherwise, we would have to be convinced that there was a conspiracy by the Paret family, by the defendant, and by the Chavanne agency to deprive her of the same, and the evidence negatives any such idea. Dewitt wanted to sell; it made no difference to him who negotiated the sale. Mrs. M. P. Paret bought and it can make no difference to her who gets the commission inasmuch as she does not have it to pay.

The District Court rejected plaintiff’s demand and we think it did so properly.

The judgment on appeal is affirmed.


source: Caselaw Access Project

author: LECHE, J.

license: Public Domain

text:
    No. -
    First Circuit
    FERGUSON v. LLANO DEL RIO CO.
    (June 7, 1927. Opinion and Decree.)
    (June. 28, 1927. Rehearing Refused.)

      (Syllabus 6y the Editor.) ■
    1. Louisiana Digest — Associations—Par. 3, 8 — Evidence—Par. 58, 59.
    Upon proof of a receipt that a person deposited a thousand ■ dollars ($1000.00) with the intention of taking membership in the colony provided his health permits, the burden of proof is upon the officers of the colony to show that he did not take out such membership.

      2. Louisiana Digest — Associations—Par. 3, 8 — Evidence—Par. 340, 342.
    Where the evidence and. surrounding circumstances clearly show that plaintiff did not take out a membership in the colony, although he deposited a thousand dollars ($1000.00) with that idea in view, he did not become a member in the colony.
    3. Louisiana Digest-r-lnterest — Par. 27, 30.
    Where a receipt for money deposited, bearing no interest, has the provision that thirty days’ notice of intention to withdraw must be given, interest will be allowed thirty days after citation was served in suit by his heirs to collect the money.
    4. Louisiana Digest — Absentees—Par. 17. Under Article 1213 of the Civil Code, attorney for absent heirs is not a bonded officer of the court and has no authority to the possession and custody of the property of the absent heirs, but it extends merely to the preservation of the assets of the succession belonging to the absent heirs.
    Appeal from the Parish of Vernon. Hon. Hal A. Burgess, Judge.
    Action by P. L. Ferguson, attorney for absent heirs, against Llano Del Rio Company.
    There was judgment for plaintiff and defendant appealed.
    . Judgment affirmed.
    P. L. Ferguson, of Leesville, attorney for-•plaintiff, appellee.'
    S.I. Foster, of Leesville, attorney for defendant, appellant.
   LECHE, J.

Plaintiff brings this suit in his capacity of attorney for absent heirs in the Succession of John Hoover. His right to act in that capacity is questioned by an exception on the part of defendant, but the record contains an order appointing him as such, which seems to be regular in form, and, in the absence of any evidence to the contrary, the exception was properly overruled.

John Hoover died during the month of May, 1923, in the Parish of Vernon, Louisiana, leaving some nine or ten heirs, all of whom are absentees from this state. His succession was opened, by whom, how and when, is not shown by the record of this case, though the proceedings in his succession were offered in evidence. Among the effects left by the deceased was the following document:

“To Whom It May Concern:
“This is to certify that Mr. John Hoover has deposited with the Llano Colony $1000.00 (one thousand dollars) to be used by the Colony for any Colony purposes until called for by himself. This money is not to bear any interest. It is deposited with the intention of Comrade Hoover taking a membership in the Colony, provided his health is such as to permit his being able to live in this climate. •
“In the event he withdraws this money instead of taking out a membership, he is willing to give us at least thirty (30) days’ notice.
(Signed) “LLANO CO. OF COLONY,
“Geo. P. Pickett.”

According to the pleadings, the defendant is a corporation organized under the laws of Nevada and operates a colony or community in the parish of Vernon, in this state. Its objects and purposes are not set forth or shown by the record in this case, and though it is admittedly a foreign corporation, it appeared by answer in this suit and does not deny having issued the receipt of one thousand dollars upon which plaintiff bases the present demand. So that there is no question here that defendant has subjected itself to the jurisdiction of a court of this state and it has admitted its authorship of the document in suit.

Upon the face of the receipt of deposit in suit, defendant is liable unless it can show that John Hoover did take out a membership in its colony. The burden of showing that he did take out such a membership and that the one thousand dollars was paid by Hoover and received by it as a consideration for such membership, rests entirely upon the defendant.

It was obviously the intention of John Hoover to become a member of defendant’s colony, for there is no apparent reason and none is suggested why he should have deposited this sum of money with defendant. But that intention was coupled with the condition that his health should be “such as to permit his being able to live in this climate” in the parish of Vernon, Louisiana. The testimony as to Hoover’s health, while in the parish of Vernon, is only of a general character, and even if it be conceded that it was good, that fact would not of itself relieve defendant of its liability, unless defendant could show that Hoover had persisted in and carried out his intention and that he had been actually admitted as a member in consideration of the one thousand dollars. The evidence on this phase of the case is also of a general character and is hazy. The admission of a member to an organized association should be easily susceptible of proof, especially when conditioned with a consideration of one thousand dollars or more. The records of the association, the acts and conduct o'f the applicant, his participation in the conduct of the affairs of the society, and numerous other circumstances should be available for this purpose. Defendant has failed to produce any such proof. The evidence at most only shows that other members of the colony thought he was a member and considered him as such. On the other hand, Hoover retained possession and custody of the receipt of deposit and his control of the receipt shows that his intention. to become a member was never carried out.

We believe that the trial judge properly found as a fact that defendant is indebted unto the Succession of John Hoover in the sum of one thousand dollars.

There is also some question in argument as to whether Hoover gave the thirty days’ notice of intention to withdraw his money. Tough Pickett, general manager of the Colony, says that he did not receive such a notice, Carl Hoover, a son of John Hoover, says that such notice was duly given. Whether notice was given by Hoover is of little importance, as citation in this suit serves the same purpose, and the only effect such notice could serve would be to fix the time at which legal interest on the claim would begin to run. Assuming, then, that the thirty days’ notice was only given when citation was served, March 20, 1924, the delay expired on April 20, 1924.

This suit was properly instituted by the attorney for absent heirs under Art. C. C. 1213. It must be observed, however, that an attorney for absent heirs is not a bonded officer of the court, and, as such, he has no authority under the law to the possession and custody of the property of the absent heirs. His authority merely extends to the ¡preservation of the assets of a succession which belong to the absent heirs. The defendant, therefore, upon payment of this judgment, is entitled to an acquittance and discharge either from the heirs themselves, their agent, or from a bonded curator duly appointed by the court.

For these reasons it is ordered that the judgment appealed from be recast so as to read that the Succession of John Hoover or his absent heirs do have judgment against and recover from the defendant the sum of one thousand dollars with legal interest thereon from April 20, 1924, and that, as thus recast and amended, it be affirmed, defendant to pay costs of both courts.


author: REYNOLDS, J.

text:
    No. 2994
    Second Circuit
    LE SEUR v. RUMBAUGH ET AL
    (June 28, 1927. Opinion and Decree.)

      (Syllabus by the Court)

    1.Louisiana Digest — Master and Servant —Par. 159.
    In a suit under the 'Workmen’s Compensation Law (Act 20 of 1914 and amendments) for compensation for disability to do work of any reasonable character the court will not fix the time when payment of compensation shall cease except where the injury causing the disability is minor and the evidence clearly shows that it will terminate shortly.
    2. Louisiana Digest — Master and Servant —Par. 154.
    Except as to matters of procedure, Act No. 85 of 1926 is not retroactive; and in a suit under the Workmen’s Compensation Law commenced after the amendment of 1926 to recover' compensation for an injury received prior thereto, the prohibition in the amendment against attorney’s fees in excess of twenty per cent of the award or of $1000.00 in any event, has no application, even though the contract of employment between the plaintiff and his attorney was entered into after Act No. 85 of 1926 was passed.
    3. Louisiana Digest — Master and Servant —Par. 160e, 160k.
    Under Act No. 85 of 1926, the fees allowed witnesses as experts must be fixed in the judgment.
    4. Louisiana Digest — Master and Servant —Par. 160d,, 160 k.
    Under Act No. 216 of 1924, an alleged employee is entitled to recover not exceeding $250.00 for medical and surgical attention and hospital fees; and any amount in excess of such sum paid by the employer for such purposes cannot be deducted from employee’s compensation except under agreement between them approved by the court.
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo. Hon. Robert Roberts, Judge.
    Action by Gordon LeSeur against C. E. Rumbaugh, et als.

      There was judgment for plaintiff and defendants appealed.
    Judgment affirmed.
    Long & McSween, of Shreveport, attorneys for plaintiff, appellee.
    Cook & Cook, of Shreveport, attorneys for defendants, appellants.
   STATEMENT OP THE CASE

REYNOLDS, J.

Plaintiff sued C. ■ E. Rumbaugh and the Hartford Accident & Indemnity Company for $20.00 a week for four hundred weeks beginning June 2, 1926, with legal interest on each payment from its maturity until paid, and for $250.00 for medical services, as for permanent total disability to do work of any reasonable character.

He alleges that he was employed by defendant, .C. E. Rumbaugh, at a daily wage of $12.00 as rig builder and that in an accident growing out of and in the course of his employment on May 26, 1926, his chest was mashed and bruised, his collar bone broken, and the hones in his back between the shoulder blades broken and internal hemorrhages in and around the lungs and other vital organs caused, and he thereby permanently disabled to do work of any reasonable character.

He also alleges that he has expended or will have to expend $250.00 for medical services.

He further alleges that the Hartford Accident & Indemnity Company has insured defendant Rumbaugh against loss by reason of his injuries and agreed to pay plaintiff such sums as he may be entitled to under the Workmen’s Compensation Law.

The defense is that plaintiff had fully recovered from the effects of his injuries and was again able to do work of any reasonable character and that he had been paid compensation during the time of his disability.

It is further alleged that defendant, O. E. Rumbaugh, had ¡expended $604.75 for medical attention rendered to plaintiff, and he asked that the excess of $354.75 over the $250.00 that he was legally liable for be deducted from any additional compensation that might be awarded him by the court'.

On the issues the case was tried and there was judgment in favor of the plaintiff and against the defendants in solido for $20.00 a week during his disability, not exceeding three hundred weeks, the first payment being decreed June 2, 1926, with legal interest on each payment from its maturity until paid.

It was further decreed that the fees of plaintiff’s attorney under the contract between them be fixed at one-third of the compensation awarded plaintiff.

And it was further decreed that the fee of Dr. M. L. Adair,, a witness sworn as a medical expert, be fixed at $25.00.

Prom this judgment both defendants have appealed.

OPINION

Defendants set up four grounds of alleged error in the judgment appealed from, namely:

1. That the lower court erred in not restricting the award of compensation to one year from June 16, 1926; the record showing conclusively that by that time plaintiff will have fully recovered from his injuries and be able to engage in the same occupations as before the injury.
2. That the lower court erred in recognizing and enforcing the contract between plaintiff and his attorney awarding the latter as fees one-third of the compensation allowed plaintiff; the amount of fee contracted for being prohibited by law.
3. The lower court erred in fixing the fee of the witness, M. L. Adair, at $25.00, there having been no rule taken on defendants to fix the fee other than the fee allowed by law, and there being no basis in the record for the allowance of the fee fixed.
4. The lower court erred in not allowing defendants as a credit on the compensation awarded plaintiff the difference of $354.75 paid by defendant, C. E. Rumbaugh, for medical attention to plaintiff in excess of the $250.00 amount of medical attention he was legally obligated to furnish plaintiff.

Considering the alleged errors in the order assigned:

I.

Plaintiff testified (page 16):

“Q. Now, do you suffer any pain at this time?
“A. I have it all the time.
* # * *
“Q. Since the accident. Where do you suffer that pain?
“A. Well, this here collar bone and clavicle bone. It draws my shoulder and head a little bit.. It .is. short and it. gives me some trouble; that is, in the use of my arm, you know. And I have a pain right here.
* * * &
“Q. Going around to your back, extending all the way through?
“A. All the way through. It is a little to one side of where that clavicle is lapped there.
“Q. Did you suffer any pain before receiving this accident?
“A. No, sir. ■
“Q. How about your strength; are you as strong now as before this occurred?
“A. No, sir.
“Q. Have you done any work since this accident at all?
“A. Nothing; only just around the house, or something like that.”

Doctor M. L. Adair testified (pages 2-11):

“Q. Doctor, does your examination of the spinal column show part of the bone missing?
“A. It appears that the spinous processes are missing as they do not show as in the other vertebrae.
“Q. What are the spinal processes?
“A. That is the spike that proceeds backward in the vertebrae.
“Q. That is the bone itself?
“A. That is the backbone that you feel when you put your hand on the patient. You feel in the back and feel little spines.
“Q. How many of those are missing, from the x-ray standpoint?
“A. There are three that we do not see in the plate.
“Q. Is that condition permanent, doctor?
“A. Yes, sir.
“Q. Any chance to grow any more processes from the backbone in that place?
“A. There is not.
% jf: $ sj:
“Q. Now this — what do you call the collar bone?
“A. The clavicle.
“Q. How low down is that break?
■ “A. About the junction of the middle and inner third, a little further out than that.
“Q. That is not in position, is it?
“A.. No, sir; that overlaps.
“Q. How could you get that hack where it would not overlap; could that be done?
“A. Well that could be done by open reduction; surgical operation.
“Q. He is not totally disabled at the present time for any kind of work, is he?
“A. No; I do not think so.
“Q. In his present condition, you think that he could do ordinary labor?
"A. I should think that he could do any kind of light work; indoor work; office work or labor that does not require too much use of his back for a while.
“Q. How long do you think that he would have to refrain from doing heavy labor because of his back?
“A. Oh, I should think that in a year from the time of his operation he should be all right.
“Q. That would be about May or June of this year, then? He was operated on shortly after the injury, was he not?
“A. I do not know exactly.
“Q.. Was not that what he gave you as his history?
“A. He told me he was injured May 26th.
“Q. You think then that at the end of that time, insofar as his bone injuries are concerned, he should be able to do the same kind of work that he has-been doing heretofore?
“A. Well, it is hard to put an exact date on just when. I should think that in time he should be able to do any work that did not require too much bending or straining of that portion of his spine. Then, of course, there would probably be a little — some discomfort or disability from the overriding of the fragments of the clavicle there. That, however, as compared with the injury to the back is a minor point.”

Doctor H. A. Durham testified (pages 25-34);

“Q. Now, Doctor Durham, did you have occasion to treat Gordon LeSeur, the ¡plaintiff in this case, just after the accident which occurred to him on or about May 26th, 1926?
“A. Yes; I saw him on May 28th; referred to me by Dr. Hendrix.
% # sj; }}{
. “Q. Just what did you find to be his condition?
“A. I found him to have a fracture of the right clavicle — collar bone. An impaction fracture with slight displacement of the — beg pardon, may I refer to my notes ?
“Q. All right.
(Witness referred to his notes.)
“A.- (Witness continuing) — fourth dorsal vertebrae.
“Q. Now what . treatment did you administer to him during the time that you had him under your observation and care?
“A. At the time the man was suffering severe pain and he was kept absolutely quiet for about three weeks previous to any operation; the reason for complete rest being that if he were moved about he might be injured by some further slipping of his vertebrae, causing paralysis.
* * *
“Q. How long should it be before complete repair had taken place?
“A. Well, I think perhaps that would vary some with individuals. Probably
from a year to a year and a half, the condition should be in a permanent state.
“Q. And he would not be in any way incapacitated in your opinion after that?
“A. Not insofar as physical activity
was concerned. He would have a stif-
fening over a limited area of three vertebrae which are in the dorsal area of the spine where there is very little activity anyway.
“Q. If you assume that the nature of his work is physical — lifting and moving objects, say heavy objects — -would it in any way hamper him after there is complete repair?
“A. I do not believe it would.
“Q. Would it affect his earning capacity in such occupation?
“A. No, sir.
* * * *
“Q. That makes his backbone for as much as three and a half or four inches stiff?
“A. Stiff.
“Q. That will sthy stiff for the rest of his life?
“A. Yes.”
Doctor A. A. Herold testified (page 50):
“Q. Doctor Herold, did you in your report express any opinion? What was your report in regard to the plaintiff’s disability?
“A. According to my report I considered his real disability due to inability to perfectly use that right arm rather than to any chest condition. He has diminished reflex in his right arm showing that there has been a little pressure on some of the spinal nerves there.
“Q. Will that continue during his life time or pass away?
“A. Well, that would be more for the orthopedic man to pass upon, the bone expert, Dr. Durham. It may entirely clear up in time. Dr. Durham expressed an opinion about it. I don’t know.”

All of the evidence convinces us that at the time of the trial plaintiff was still disabled to do any work of a reasonable character and that the doctors could not fix any definite time when the disability would cease.

In Mays vs. Allison & Langston Supply Co., 5 La. App. 686, and Upshaw vs. Triangle Drilling Co., 5 La. App. 224, was fixed a definite period when the compensation awarded the plaintiffs in those cases should terminate; but in those cases the injury suffered was well defined and not internal and all of the doctors who testified were agreed that in a very short time the plaintiffs would be entirely recovered from their disabilities; but in the case at bar the injuries are internal and Dr. Herold who, under an order of court, examined the plaintiff, could not say definitely when plaintiff would not be to some extent disabled to do work of a reasonable character. Neither could Dr. Adair nor Dr. Durham.

Our conclusion from the evidence is that the District Court did not err in refusing to fix a shorter time than that named in the statute during which plaintiff should be paid compensation and that the judgment of the lower court on that point is correct.

II.

Act No. 85 of 1926 provides that:

“In no case shall the fees of an attorney who renders services for an employee coming under 'the provisions of this act exceed twenty per centum of the amount of the award, provided that the maximum fee shall in no case exceed $1000.00.”

. This provision clearly has ’ reference to causes of action arising subsequent to the passage of the act, and as plaintiff’s cause of action arose before then the agreement between him and his attorneys whereby they. are to receive for their services one-third of the compensation awarded him is not prohibited by the act.

III.

Subsection 4 of Section 18 of Act 85 of 1926 provides that:

“The fees of medical witnesses shall be reasonable and are not to be allowed unless fixed in the judgment.”

This provision relates to court procedure and applies to actions tried after its passage, although the cause of action arose prior thereto.

The judgment appealed from fixed the fee of Dr. M. L. Adair at $25.00, and we are not prepared to see that the amount is excessive.

IV.

Defendant was allowed credit for medical expenses paid hy him up to $250.00 and was refused credit for an.additional $354.75 paid hy him for the same purpose.

In Thompson vs. Louisiana Central Lumber Co., 2 La. App. 200, we. held:

■ “That excess payments for hospital and medical services could not be deducted by the employer from the compensation due the employee without the latter’s consent.”

Citing Delaney vs. Ferd. Brenner Lumber Co., 154 La. 156, 97 South. 349; Quave vs. Lott-Batson Lumber Co., 151 La. 1052, 92 South. 678.

Defendant insists that in any event his •demand for credit for excess payments for hospital and medical services to plaintiff should have been dismissed as in case of non-suit only. Defendant’s claim is one under a quasi contract and not involved in this suit and therefore the judgment appealed from is no bar to the prosecution of his claim in a proper action.

Finding no error in the judgment • appealed from, it is ordered, adjudged and ■decreed that it be a,ffirmed, with costs..


text:
    No. 2915
    Second Circuit
    LEVY SONS CO. v. HACKER & FIFE, ET AL
    (May 13, 1927. Opinion and Decree.)
    (June 28, 1927. Rehearing Refused.)

      (Syllabus by the Court)

    1. Louisiana Digest — Attachment—Par. 20, 24.
    To sustain an attachment on the ground of fraudulent intent on the part of the defendant such intent must be made to appear or facts and circumstances must be shown from which it may reasonably be inferred.
    Lumber Co. vs. Manufacturing Co., 29 La. Ann. 72.
    Abel & Co. vs. Duffy, 106 La. 260, 30 South. 833.
    Fidelity & Deposit Co.' vs. Johnston, 117 La. 880, 42 South. 357.
    Appeal from the Seventh Judicial District Court of Louisiana, Parish of Concordia. Hon. R. M. Taliaferro, Judge.
    Action by Julius Levy Sons Company against Hacker & Fife, et als.
    There was judgment for defendant and •plaintiff appealed.
    , Judgment affirmed.
    Dale, Dale & Dale, of Vidalia, attorneys for plaintiff, appellant.
    G. P. Bullís, of Vidalia, attorney for defendant, appellee. , .
   STATEMENT OF THE CASE

REYNOLDS, J.

This is a suit, Julius Levy Sons Company, a corporation, against Hacker & Fife, a commercial partnership, and the individual members thereof, Samuel Hacker and R. M. Fife, to recover judgment on an open account for $117.40.

By supplemental petition a writ of attachment was obtained against R. M. Fife on the ground that he had disposed of or was about to dispose of his property with intent, to defraud his creditors and that he was about to leave the state permanently.

The defendant, Fife, filed a motion to dissolve the attachment on the grounds that the affidavit on which it was obtained was false and untrue; and he asked for damages as for illegal seizure.

Plaintiff excepted to the motion to dissolve, insofar as it claimed damages for illegal seizure, on the ground that such claim was premature.

On trial of the motion the attachment was dissolved but no damages were allowed. The plaintiff has appealed.

OPINION

The grounds urged by plaintiff in support of the correctness of the issuance of the writ of attachment are that the defendant, R. M. Fife, was about to leave the state permanently and that he had disposed of his property with intent to defraud his creditors.

In support of the first contention plaintiff introduced the testimony of Leon Noriz and Mrs. L. G. Dale.

The former testified:

“Q. Did Mr. Fife tell you, shortly after the difficulty Mr. Fife had with Mr. Hacker and about the time of the filing of the suit for dissolution of the partnership, in front of A. Mayer & Company’s store in Ferriday, La., that he was going to leave?
“A. He did.”
And the latter testified:
“Q! About noon on December 9, 1926, at the home of Mr. Fife, in Ferriday, La., did he tell you he was going to leave Ferriday?
“A. He did.”

These declarations are in no sense equivalent to expression of an intention to leave the state.

The defendant, Fife, testified that he had no intention of leaving the state and had never said that he was going to leave it.

As to the second ground for attachment, that defendant Fife had disposed of his property with intent to defraud his creditors, in support of this charge plaintiff relies on a sale made by the defendant Fife to his partner Hacker of his interest in the partnership property and which sale was evidenced by a written agreement as follows:

“Vidalia, La., December 8, 1926.
“I hereby sell, transfer and deliver to Samuel Hacker all of my right, title and interest inj and to all of the partnership assets of the former partnership firm of Hacker & Fife, and especially the stock of merchandise of the store formerly occupied by this firm in the Cosmopolitan Hotel Building on Fourth Street in Ferriday, Louisiana. The price and consideration of this sale is three hundred dollars ($300.00) cash paid to me by Samuel Hacker and the agreement ■ of Samuel Hacker to assume and pay all of the debts of the former firm of Hacker & Fife, which is now dissolved.
“Witness:
“J. C. DAVIS.
“G. P. BULLIS.
“R. M. FIFE.
Accepted:
“SAMUEL HACKER.”

This instrument shows that the defendant, Fife, had no intent to defraud and that he made provision for payment of the debt due plaintiff.

Besides, as the other member of the partnership, Hacker, was bound in solido with defendant, Fife, for plaintiff’s debt, the transfer left the property as much subject to seizure and sale for plaintiff’s debt as it was before the sale.

But plaintiff insists that because the dedefendant, Fife, deposited the $300.00 that he received from Hacker for the sale in bank .in the name and to the credit of his wife, this shows intention to defraud.

We cannot concur in this view.

The bank in which the money was deposited was under the management and control of the attorneys for plaintiff in this suit, and it is not reasonable to suppose that the defendant Fife, would have put the money in a bank under the control of plaintiff’s attorneys if he had any design to defraud.

The defendant, Fife, asks us to allow him damages for wrongful attachment. This we are powerless to do. He has not appealed from the judgment of the District Court nor has he made any answer in this court to plaintiff’s appeal. Hence the judgment as to him cannot be changed.

For the reasons assigned it is ordered, adjudged and decreed that the judgment appealed from be affirmed.


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    No. -
    First Circuit
    ODEN, TAX COLLECTOR, v. ZACHERY
    (June 7, 1927. Opinion and Decree.)

      (.Syllabus by the Editor.)

    1. Louisiana Digest — Peddlers and Hawkers — Par. 3.
    A peddler is one who carries about with him the articles of merchandise which he sells and delivers to consumers ac the time of sale.
    2. Louisiana Digest — Peddlers and Hawkers — Par. 2, 3, 4.
    One who receives orders and then purchases the goods and makes delivery in his automobile is not a peddler and, therefore, not liable for the license tax based upon Section 18 of Act 205 of 1924.
    3. Louisiana Digest — Peddlers and Hawkers — Par. 3.
    One who sells to retail merchants and restaurant owners is not selling to consumers and is, therefore, not a peddler.
    Appeal from the Parish of Allen. Hon. Jerry Cline, Judge.
    Action by R. E. Oden. Tax Collector, against A. E. Zachery.

      There was judgment for plaintiff and defendant appealed.
    Judgment reversed.
    Percy C. Smith, of Oberlin, attorney for plaintiff, appellee.
    Peterman, Dear & Peterman, of Alexandria, attorneys for defendant, appellant.
   LECHE, J.

Plaintiff, who is sheriff and tax collector of the parish of Allen, seeks in this proceeding to recover two hundred dollars with penalties and costs for a license alleged to be due to the state by defendant as peddler and hawker for the year 1925. The claim is based upon Section 18 of Act 205, p. 324, of 1924, which fixes the license at two hundred dollars, when the peddler or hawker travels in a motor vehicle.

The salient facts are that defendant was engaged in selling the products of B. F. Bradford, who conducts a meat market in the city of Alexandria, parish of Rapides. These products consisted mainly of sausage and chopped meat put up in divers shapes, some of it lightly smoked. Bradford says that part of the sausage was smoked in order to affect its taste and color, that it was all fresh meat, and we infer that the smoking was not done for the purpose of acting as a preservative. He and several other witnesses who are familiar with the process, say that the' sausage thus prepared would keep from twelve to twenty-four hours and not more than forty-eight hours, depending upon the weather and the temperature of the atmosphere. Defendant traveled in an automobile, making two trips per week in the parish of Allen. Bradford says that defendant would take orders on one trip and make deliveries on the next trip. He sold in the towns of Oberlin, Kinder and Emad, to regular customers, retail merchants, who bought for the purpose of resale. Among his customers was a Mrs. Turner, who kept a boarding house. On one occasion he bought a ham in Alexandria at the special reguest of Mrs. Turner and brought and sold it to her.

“A peddler is a person who travels about the country with merchandise for the purpose of selling it.”
“A peddler is a traveling trader, one who carries about small commodities on his back or in a cart or wagon and sells them.”
“A peddler is a person who travels from place to place and carries about with him on horseback, or in a vehicle, articles of merchandise for sale.” Tax Col. vs. Ray, 50 La. Ann. 576, 23 South. 904.
“A peddler is one who carries about with him the articles of merchandise which he sells. That is to say, the identical merchandise he sella he has with him and delivers at the time of sale.” State ex rel. Graffina vs. Finnegan, 52 La. Ann. 696, 27 South. 564.
"A peddler or hawker is an itinerant merchant or trader who goes from house to house or from place to place, exposing and selling the goods, wares or merchandise he carries.” State ex rel. Brittain vs. Hayes, 143 La. 40, 78 South. 143.

These are some of the definitions of the word peddler found in our jurisprudence. It is shown by the evidence in this case that defendant’s business does not come within the definitions, for lie sold on one trip, and did not then deliver the merchandise that he carried with him, but only made delivery on a subseguent trip. He first received orders, procured the goods in Alexandria where the orders were filled, and delivered the goods on his return trip. He did not go from house to house or from place to place exposing, hawking and selling the goods.

Again, even if it be contended that defendant is a peddler, the goods which he sold consisted of fresh meat.' It was thus considered by experts who are familiar with the products manufactured by Bradford. These products were not preserved or cured meats, and the statute contains a special ’ provision for peddlers of fresh meat, whose license is therein fixed at one-fifth of the amount of the graded license to be paid by other peddlers. But it is admitted on page 69 of the record that defendant has already paid a state license for the conduct of his business.

It further appears that defendant sold exclusively to retail merchants, and it is not denied that, among his customers, was a Mrs. Turner, who kept a restaurant in the town of Oberlin. It is conceded that selling to retail merchants is not peddling, but it is claimed that Mrs. Turner was not a retail merchant. The keeper of a restaurant does not actually consume the foodstuff which he buys but uses it to feed his boarders, and while he does not resell it in the condition in which he buys it, he does, after proper culinary treatment, sell it in his business, and for this occupation is liable for a license tax. While it may be a matter of opinion only, we do not believe that a sale to a restaurant keeper is a sale to a consumer.

For these reasons we do not believe there • is any merit to plaintiff’s claim, and we are therefore further of the opinion that the judgment under review should be avoided and set aside, and that plaintiff’s demand should be rejected with costs, and

It is so ordered.


author: ELLIOTT, J.

text:
    No. 16,352
    First Circuit
    CONSOLIDATED COMPANIES, INC. v. BOUDREAUX BROS.
    (May 3, 1927. Opinion and Decree.)
    (June 7, 1927. Rehearing Refused.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Imputation—Par. 3.
    Where a running account is kept between two parties and debts are due for months past, the payee has the right to credit recent payments on the back accounts and strike a balance before crediting the payments on the current month’s account.
    Appeal from the District Court, Parish of St. Mary. James D. Simon, Judge.
    „ Action by Consolidated Companies, Inc., against Boudreaux Brothers.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    C. A. Blanchard, of Franklin, attorney for plaintiff, appellee.

      W. T. Gilmore, of Morgan City, and Borah, Himel, Block, of Eranklin, attorneys for defendant, appellant.
   ELLIOTT, J.

Suit on account. Defendant claiming to have made payments, for which credit should he given.

Consolidated Companies, Inc., alleges that Boudreaux Brothers are indebted unto it for goods and merchandise sold and delivered to them during the year 1926 on open account, which, taken with the balance due of $174.33 on April 1, 1926, amounts to $313.42. The account sued on is annexed to and made part of the petition.

The answer of the defendants admits plaintiff’s averments, except that they allege that the account sued on does not show proper credits. That on April 4, 1926, they returned goods amounting to $2.50; paid $150.00 on April 5, 1926, and $130.00 on May 3, 1926, leaving but $30.92 still due. This sum they tendered in open court. Plaintiff accepted same, reserving the right to prosecute its suit for the recovery of the balance claimed. There was judgment in favor of the plaintiff as prayed for and defendant appealed. The district judge filed a written opinion in which he reviews and correctly states the facts. The trial disclosed that an open running account had existed between the plaintiff and defendant for several years; no- part of it was prescribed. Defendant returned goods and made two payments amounting to $282.80 as alleged in their answer. On April 1, 1926, the balance due the plaintiff was in fact $456.83; plaintiff applied defendant’s payments to the account and the same left a balance of $174.33. Plaintiff then commenced a new account dating it April 1, 1928, with a balance of $174.33. As the credits had all been applied to that part of the old account which was previous to April 1, 1926, they did not show on the account sued on. One of defendants called to the stand as a Witness admitted that they owed plaintiff the amount claimed. He identified and acknowledged for his firm writing plaintiff a letter of date May 13, 1926, in which the balance of $174.33 with which the account sued on commences is admitted to be due the plaintiff. This letter shows that defendants understood at the time that they had received credit on their account for the goods returned and the two checks mentioned, and that they still owed on the account $174.33. This letter and the testimony of Mr. Dewey Boudreaux in connection therewith leaves defendants without any defense. As for the way in which the account was made out and plaintiff’s pleading in connection with it, a situation exists exactly like that in Houeye vs. Henkel, 115 La. 1066, 40 South. 460. In that case Houeye had imputed payments recently made to the oldest part of an open account that had been running between him and Henkel for several years. He then struck a balance and after the account had run a short time he brought suit on it against Henkel. The account sued on did not show the payments made by Henkel because they had been applied to the oldest' part of the account. Henkel claimed credit for payments recently made exactly as Boudreaux Bros, are doing in this case. The writer of the present opinion was the district judge that decided the case of Houeye vs. Henkel; just as the present defendant contends that the case now before us should be decided. The Court of Appeal affirmed the judgment of the District Court. The Supreme Court reviewed the case and held that Houeye had the right to impute the recent payments to the oldest part of the current account, strike a balance and commence a new account.' And' that Henkel could not insist that his payments for the current month be applied as a credit on his account for that month.

The case before us, however, is different, made so by the letter of May 13, 1926, and the testimony of Dewey Boudreaux, which really leaves nothing in dispute. The legal position and authorities cited by defendants in their original and supplemental briefs can not be questioned; but they are. not appropriate to the situation’ created by defendants’ testimony and letter admitting the indebtedness sued on.

The judgment appealed from is correct. Judgment affirmed. Defendant and appellant to pay the cost in both courts.


author: MOUTON, J.

text:
    No. -
    First Circuit
    LIVINGSTON BANK v. LACOUR
    (May 3, 1927. Opinion and Decree.)

      (Byllalmi by the Editor.)

    1. Louisiana Digest — Appeal—Par. 759.
    Clerical errors made through inadvertence will be corrected to conform to the the pleadings.
    Appeal from the Parish of Pointe Coupee. Hon. W. C. Carruth, Judge.
    Action by Livingston Bank against Arthur B. Lacour, et als.
    There was judgment for defendants and plaintiff appealed.
    Judgment affirmed.
    Laycock, Borron & Laycock, of Baton Rouge, attorneys for plaintiff, appellant.
    M. T. Hewes, of New Roads, attorney for defendant, appellee.
   MOUTON, J.

In this case the demand against defendants is for $1900.00, with 8 per cent interest and attorney’s fees. In the case of Albany Bank against the same defendants the amount claimed is for $500.00, with like interest and attorney’s fees. Through inadvertence the judgment was rendered in this case for the principal amount of $500.00 instead of $1900.00, the amount demanded.

The judgment will therefore be corrected in reference to the main amount claimed, and, as corrected, will be affirmed in all other respects.

It is therefore ordered, adjudged and decreed that the amount decreed below against defendants for the sum of $500.00 be and is hereby increased to the sum of nineteen hundred ($1900.00) dollars with same rate of interest and attorney’s fees as was decreed below; and as thus amended and corrected the judgment appealed from be affirmed in all other respects. •


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    No. -
    First Circuit
    TUCKER v. DOMINQUEZ
    (June 7, 1927. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Appeal—Par. 625— Evidence — Par. 351.
    Where the preponderance of evidence shows that a receipt was altered by-forging a different date, the finding of the trial court, being clearly correct, is affirmed.
    Appeal from the Parish of Tangipahoa. Hon. Columbus Reid, Judge.
    Action by Millard F. Tucker against Bertha C. Dominquez.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    J.- H. Inman, of Ponchatoula, attorney for plaintiff, appellee.
    Amos L. Ponder, of Amite, attorney for defendant, appellant.
   LECHE, J.

The defendant in the above suit opposes the issuance of executory process and prays that the plaintiff be enjoined from executing a writ of seizure and sale which he therein obtained. Defendant claims that the alleged debt for which her property is sought to be sold should be credited with a partial payment of one hundred and fifty dollars made on May 18, 1922, and that such partial payment, together with seventy-five dollars which she has deposited in court, will more than pay said debt and all costs of this proceeding.

The trial judge refused to grant the injunction prayed for by defendant, and ordered that her opposition be dismissed and the property be sold to satisfy plaintiff’s claim.

Defendant has appealed.

The only question involved in the • case is whether the receipt offered in evidence by defendant showing a payment of $150.00 on May 18, 1922, is real or forged.

T'wo sons of plaintiff, who is now dead, swear that the whole receipt was written and signed by their father, with the exception of the figures one and two together with the line of separation between the date of the month and the year, which appear thus in the receipt offered in evidence: “May 18/22”. The contention of plaintiff is that the receipt offered in evidence really represents a payment on account, made by defendant on May 8, 1920, and that the date figures were altered and forged so as to make the receipt appear as having been given on- May 18, 1922. The figure one, as it presently appears, has not the same slant as the figure eight which is admitted to be genuine, and it, as well as the line of separation, appears to have been made by a heavier hand, so that these two lines make an impression which is visible on the back of the receipt, whereas the impression of the other figures does not so appear. The second figure two, designating the year, which is also charged to have been forged, is not altogether similar to the first two and the place where it is written seems to have been rubbed with an eraser. Of course, if the second two is forged, the preexisting zero for which it -was substituted must have been erased.

The members of this court are not experts in handwriting and therefore cannot say to a certainty whether the receipt as it appears is really forged, but there are other circumstances that lend color to plaintiff’s contention.

M. F. Tucker was a business man and in transacting his business, which appears .to have been extensive, was very methodical. He at one time owned the land upon which the present seizure was levied, and sold same at some time in the past, before ■ 1927, to defendant. The act of sale and mortgage, however, was only passed on February 24, 1921. The receipts which he gave to defendant previous to February 24, 1921, contain on their face the words, “for land and house”, while the receipts ' given after that date say on account of note. The note is dated February 24, 1921, and is -the same upon which the present executory proceeding is based. The receipt under scrutiny, although it appears to have been given May 18, 1922, strange to say, reads on account of land. On May 18, 1922, Tucker had already sold the land and held the note in suit, and it is not reasonably accounted why he gave this receipt for the land, instead of making it “on account of note”.

M. • F. Tucker’s private account book contains entries showing the cash he received from defendant. It does not show receipt of any money from defendant on May 18, 1922, but it does show a payment of $150.00 on May 8, 1920. Defendant in order to account for this entry, filed in evidence, a receipt written in pencil on a sheet of coarse paper, such as is contained in pencil tablets made for the use of school children. It purports to be for one hundred, and fifty dollars on account of land and house, and is dated May 8, 1920. This receipt is an extra tracing of another receipt of date Junei 12, 1919, except as to its date and as to its amount. The date thereon, May 8, 1920, is in a handwriting different from the rest of the receipt and the amount is only marked $150.00 in figures. All the receipts admitted to be genuiné recite the amount in letters, but this one does' not.

The contention of plaintiff is that the receipt marked May 18, 1922, is the original receipt of May 8, 1920, with the date forged and altered, and that the pencil- receipt dated May 8, 1920, is entirely forged.

The testimony of defendant does not, on its face, convey any impression of truthfulness. M. F. Tucker has departed this life and the court has not the benefit of his testimony.

Our learned brother of the District Court believed that plaintiff’s contention was proved by a preponderance of evidence We not only see no error in this finding but believe it' is correct.


text:
    No. 4584
    First Circuit
    BALDWIN PIANO CO. v. THOMPSON
    (June 7, 1927. Opinion and Decree.) .

      (Syllabus by the Editor.)

    1. Louisiana Digest — Appeal—Par, 725— Parties — Par. 17.
    • Where all parties whose interests are to be affected are not made parties to the suit the court will ex officio take notice of tb(is fact and remand the case for the purpose of citing the necessary party.
    Appeal from the District Court, Washington Parish. Hon. Prentice B. Carter, Judge.
    Action by the Baldwin Piano Company, Inc., against S. R. Thompson, et als.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed and case remanded to lower court.
    Y. M. Roby, of Tylertown, and Brock & Carter, of Eranklinton, attorneys for plaintiff, appellant.
    Ott & Johnson, of Franklinton, attorneys for Ollie P. Gatlin, defandant, appellee.
   ELLIOTT, J.

Suit involving the ownership" of a piano. The plaintiff claims ownership resulting from a conditional sale to S. R. Thompson, made in Mississippi. Defendant Catin, in possession, claims by unconditional sale from S. R. Thompson in Louisiana. Thompson, although made a party defendant, was not cited and made no appearance in the case.

The Baldwin Piano Company, Inc., sold and delivered to S. R. Thompson a piano on the following conditions:

“It is agreed that the title to said instrument shall remain in the party of the first part and shall not pass to the undersigned until the above amount, with interest, or any judgment for the same, has been paid in full.”

The contract bears date April 9, 1925, and was entered into in the State of Mississippi where Thompson then resided. The price was $495.00, of which $100.00 was paid in cash at the time of the sale and the balance was to have been paid in monthly installments of $15.00 per month. The contract further provided that thje piano was to be kept at Foxworth, Mississippi and was not to be removed from there without the written consent of the' party of the first part.

It was also agreed that should there be any default in the payment of any of the installments, or violatioh of any of the terms of the contract, that the party of the first part might, at its option, enter on the premises where the piano was at the time, and take possession and remove it, without legal process; in which event all the payments made were, to be considered as having been paid for the use of the instrument during the time it had remained in the party of the second part’s possession.

The contract is annexed to and made part of plaintiff’s petition.

The plaintiff sues on the contract and alleges that Thompson never made any further payment on the piano. That he therefore had no title to and never was the owner of the same. That the ownership of the piano remained in the petitioner; that its title was never divested.

That said Thompson had removed the piano from Foxworth, Mississippi, without petitioner’s knowledge or consent, to Bogalusa, Louisiana, and had there made a pretended sale of it to Ollie P. Gatlin, who had possession and refused to deliver it to petitioner.

The plaintiff brought suit against Thompson and Gatlin to be recognized as the owner of the piano under its contract with Thompson, and to recover possession of same. Thompson, though made a party to the suit, was not cited and did not appear and nobody was appointed to represent him.

Ollié P. Gatlin was cited and appeared and answered, denying plaintiff’s alleged ownership. He admitted that he was in possession, and alleged that he was the owner thereof by purchase from Thompson at Bogalusa, Louisiana, on October 3, 1926.

When the case was called for trial on the answer filed by Gatlin, plaintiff tendered evidence, the purpose and effect of which was to show that it was the owner of the piano under the contract of April 9, 1925, entered into with S. R. Thompson in Mississippi, resulting from Thompson’s failure to pay the balance of the purchase' price. The reception of testimony was objected to by Gatlin on the ground that the suit was against Thompson and Gatlin jointly, and that Thompson had not been cited and no attorney had been appointed to represent him. The court ruled that the objection went to the effect rather than to the admissibility of the evidence, and received and heard the testimony, thereby in effect overruling the objection.

Gatlin objected to the ruling and reserved an exception thereto.

After hearing the evidence offered by plaintiff and Gatlin, the court rendered judgment in favor of the latter.

The plaintiff appealed.

The plaintiff urges us to reverse the judgment on the ground that it is contrary to the law and the evidence. The plaintiff started the trial and offered the evidence that was objected to. Gatlin urges in this court his objection to the evidence received, on the ground stated.

The objection should have been sustained. The evidence was not admissible at the time the case was taken up for trial and cannot be considered because S. R. Thompson was not before the court. The purpose of the evidence and its designed effect was to show against Thompson and against Gatlin, who claims under Thompson that plaintiff was the owner of the piano, and had .never parted with its title, for the reasons that Thompson had never paid the balance of the stipulated price. That plaintiff’s ownership therefore remained, as the result of their agreement under the law of Mississippi.

A situation like the present was before us in Strattman vs. Stephens, Court of Appeal Reports, 4 La. App. 647. In that case Strattman had attacked for fraud a contract which he had entered into with Stephens Sales Company, an incorporated or chartered party, domiciled in and organized under the laws of another state. It was found that the case could not be effectively and authoritatively determined except by either upholding or annulling and setting' aside the contract which Strattman had entered into with Stephens Sales Company. As the Stephens Sales Company was not a party to the suit, an authoritative decision could not be rendered. The judgment was therefore set aside and the case remanded in order that Stephens Sales Company could' be made a party.

The absence of a party necessary to the authoritative determination of a ease will be noticed by the court ex officio:

“It is well settled as general rule of the law that all parties whose interests are to be effected must be parties to the suit.”

Moores vs. Butler, 13 La. Ann. 41; Willis vs. Wasey, 42 La. Ann. 876, 8 South. 591, 879. In this case plaintiff tenders the question of ownership remaining in the plaintiff resulting from its contract with Thompson. If Thompson was not the owner, and that fact cannot be authoritatively determined in favor of the plaintiff, except contradictorily with Thompson, it very seriously affects the legal rights of Gatlin. The plaintiff, having delivered this instrument to Thompson under a conditional sales agreement entered into in Mississippi, cannot take it out of the hands of a party in Louisiana, to whom Thompson sold it, by simply saying to such party that Thompson did not pay the balance of the purchase price. The plaintiff must establish that fact contradictorily with Thompson. Gatlin urges some other defenses, but we do not consider them at present; all of his defenses are reserved without prejudice.

For these reasons the judgment appealed from is annulled, avoided and set aside, and the case is remanded to the lower court in order that plaintiff may take steps within a time to be fixed by the lower court to have citation issued to S. R. Thompson. If service cannot be made on him, the plaintiff then, after proper showing to the court, to have a proper person appointed to represent and defend Thompson herein; all in the manner and form prescribed by law. The case to be then tried anew, contradictorily with S. R. Thompson.

The cost of this appeal and that in the lower court, commencing with the trial, to be paid by the appellant. The other and future cost to abide the result of this suit.


text:
    No. -
    First Circuit
    QUINE v. STOCKWELL
    (June 7, 1927. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Automobiles—Par. 4, 8.
    Where the testimony of the plaintiff and the surrounding circumstances ■ show that the defendant was speeding far in excess of the limit imposed by law, which speed caused him to lose control of the truck and collide with plaintiff’s auto, the defendant was negligent and liable for the damages resulting. (See Article 2315, Civil Code. Editor’s note.)
    Appeal from East Baton Rouge. Hon. Carruth Jones, District Judge.
    Action by John E. Quine against Silas L. Stoekwell.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Chas. A. Battle, of Baton Rouge, attorney for plaintiff, appellee.
    Taylor, Porter, Loret & Brooks, of Baton Rouge, attorneys for defendant, appellant.
   MOUTON, J.

Laurel Street runs east and west across the city of Baton Rouge. Waller Street runs north and south toward Boulevard Street, another street of the city. Plaintiff was driving his automobile on Waller Street and was going northward. Willie, Odom was driving a Dodge truck for defendant, going westward towards the river. A collision occurred between the auto and the truck, at the intersection of Waller and Laurel Streets.

Plaintiff says he was going at about 10 or 12 miles an hour when he got to the south line of Laurel Street. His wife, who was in the car with him, testified practically to the same effect. It appears from the evidence that plaintiff had just started on his way at a short distance from Laurel Street, from which fact it is but fair to infer that he had not as yet attained a fast rate of speed when he reached Laurel Street. There is nothing in the record which indicates that plaintiff was in the habit of driving his auto at a more rapid rate of speed than from 10 to 14 miles an hour, and we have, therefore, no hesitancy in concluding that he was traveling at 10 or 12 miles an hour when he got to Laurel Street. He says, when he neared the southeast corner of Waller Street where it intersects with Laurel Street, he saw the Dodge truck coming on Laurel Street from the east, and going, towards the river. Much is said in the evidence about the Hernandez grocery store which stands at the southeast corner of Waller Street, as being an obstruction to the vision of anyone looking from that corner .along Laurel Street on the east side of Waller Street. The proof shows that there is a space of not less than ten feet from the corner of that store to the south line of Laurel Street. It is therefore certain that when plaintiff reached that corner on Waller Street, he could, in that opening, see the Dodge truck Odom was driving westward on Laurel Street. The fact is that Odom says he saw plaintiff when he came up with his auto to that corner, and another witness who was coming behind the truck in an auto, also says he saw plaintiff’s auto at that corner. If they saw. plaintiff at that corner, for a stronger reason could plaintiff see the Dodge truck through the opening or space at the corner. He says when he got to Laurel Street he saw the truck which was then about half a block or further on Laurel Street; that he concluded if it was coming along at a reasonable rate of speed he could negotiate Laurel Street before the truck would reach that street. His testimony shows that plaintiff, after getting in Laurel Street, accelerated, his speed so that he might get across in time to avoid a collision with the truck which was advancing on him. We do not think plaintiff can he charged with' want of ordinary care or negligence because he attempted to cross that street, basing himself on the assumption that he could negotiate 'it before the truck got there, if it were being driven at a usual rate of speed. We see no negligence on the part of plaintiff in that respect, although he knew, as testified to by him, that, under the ordinance of the city of Baton Rouge, the truck had the right of way over that street, as he had the right to expect that the truck would be kept within the speed limit of 15 or 18 miles an hour, as fixed in the ordinance. Plaintiff says that he thought he could go across Laurel Street in time, and that as a matter of fact he had made the crossing or was on the point of making it when the truck struck the rear right-hand wheel of his auto. He says that the blow of the truck on his auto killed his engine. His wife testifies to about the same, excepting as to the killing of the engine, to which she did not testify.

Clarence Hernandez, who was working for his mother at the Hernandez store at the corner of Waller Street, testified in the case. He says he was working at the end of his mother’s lot, which runs about 100 feet, and heard the crash of the cars when the collision occurred; that he came out of the store and went to the scene of the wreck. He says that plaintiff’s car was, after the wreck, in Waller Street, clear of Laurel Street about two feet; that it was at an angle of 45 degrees pointing about northeast. Plaintiff- said his ear had been knocked between 6 and 10 feet from Laurel Street. There is evidently a discrepancy between the evidence of these two witnesses as to the distance plaintiff’s car was from Laurel Street after the accident. It is shown, however, by the testimony of Hernandez, that it stood about two feet from that street and was facing northeastward. The fact that the car stood there harmonizes with the evidence of the plaintiff when he says that his auto was struck as he was crossing the street or had crossed, his engine being killed about that time, when his auto was hit. On the other hand, Odom, the driver of the truck, says when he- came into Laurel Street and saw that he was abodt at the moment of colliding with plaintiff, that, in order to avoid the collision, he swerved his car to the left as much as he could to pass in plaintiff’s rear, but that he failed and struck plaintiff’s auto on the side, at or near the rear. He says he collided with the auto at - about the center of Laurel Street. If he struck the car in an attempt to pass in its rear, it is evident that he must have given it a glancing blow. Laurel Street, the evidence shows, is about 50 or 60 feet wide. Prom its center there would be a distance of some 25 or 30 feet to the north line of that street. It is possible, but it does not seem probable, that a glance blow, and much less a straight blow, would have sent plaintiff’s car forward or sideways at a distance of about 25 or 30 feet in Laurel Street. It is more natural, and it comports better with the facts of the case, to accept the version of the plaintiff that Odom lost control of the truck, due in all likelihood to the undue speed at which plaintiff says he was traveling, swerved the truck along the north line of Laurel Street, and struck plaintiff’s auto, killing its engine, and knocking it about three feet into Laurel Street, where it was seen standing by Hernandez immediately after the accident.

Odom, as a witness, says he was coming down Laurel Street between 15 and 18 miles an hour; that he did not slow down very much for the corner because he had the right of way. He testifies that plaintiff was going at such a rate of speed “there was nothing else to do but hit him”. The preponderance of the evidence is clearly to the effect that plaintiff was not traveling at such a rate of speed. Odom admits he did not slow down very much when he came up to Laurel Street because he had the right of way. There can be no doubt that the crash between the autos must have been terrific, as Hernandez, who was then busy in the back yard of the store over one hundred feet away, came out and went immediately to the scene of the collision.

Grant Payne, another witness, says he was behind the store, heard the noise, which he says was pretty loud, and in about a minute’s time came out of the store, and went to the scene. As the evidence shows that the blow was from the truck, it is but fair to infer that it was then traveling at a considerable velocity or speed to have produced a noise resulting from the crash, that had the effect of immediately drawing two busy men from the rear of their store to the scene of the wreck. Circumstances of this character surrounding the occurrence lend support to the testimony of the plaintiff that Odom was traveling at the time at a speed far in excess of the limit imposed by the ordinance of the city of Baton Rouge, and which, we believe, in all probability, caused him to lose control of the truck, causing it to swerve to the northern line of Laurel Street, thus colliding with plaintiff’s auto, knocking it about two feet from that street into Waller Street, inflicting the damages for which defendant was correctly held liable.


author: ODOM, J.

text:
    No. 2909
    Second Circuit
    McCOY v. MARSH AND UNITED STATES FIDELITY & GUARANTY CO.
    (May 13, 1927. Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Carriers of Passengers and Goods — Par. 25, 31; Parties — Par. 12; insurance — Par. 138, 165, 170.
    One who carries passengers for hire in an automobile is liable in damages for injuries sustained by his passengers through his negligence, and where he carries liability insurance his surety is bound in solido with him to the extent of the amount of the bond, and no more, regardless of the number of pas.sengers who may be injured in any one accident and regardless of the amount of the judgments they may obtain.

      2. Louisiana Digest — Insurance—Par. 138, 170, 182.
    Where the operator of an automobile carries passengers for hire and is bonded under Act 196 of 1918, the obligation of the surety “running in favor of any person who may be injured in person or property by the negligence of the operator of the service car”. Each passenger injured in the same accident through the negligence of the driver has an action to recover from the owner, and his surety on the bond in solido, and the fact that one passenger obtains judgment against the surety for the full amount of the bond will not bar the right of action of the others against the surety.
    3. Louisiana Digest — Pleading—;Par. 62; Insurance — Par. 166, 172, 182.
    An exception of no cause or right of action filed by a surety is properly overruled when grounded upon an allegation that a fellow passenger in the automobile has already obtained judgment for the full amount of the bond, the surety company not having paid first judgment and having no interest in the distribution of the proceeds of the bond.
    Appeal from the Sixth Judicial District Court of Louisiana, Parish of East Carroll. Hon. F. X. Ransdell, Judge.
    Action by Mrs. Ethel Kemp McCoy against H. Y. Marsh and United States Fidelity & Guaranty Company.
    There was judgment for plaintiff and defendants appealed.
    Judgment amended and affirmed.
    John B. Stone, of Lake Providence, attorney for plaintiff, appellee.
    Robert P. Kennedy, of Lake Providence; Spearing, Miller & Mabry, of New Orleans, attorneys for defendants, appellants.
   ODOM, J.

The defendant, Henry V. Marsh, was engaged in operating a public service car in East Carroll parish. Plaintiff was a passenger for hire on his automobile and while a passenger received personal injuries for which she brings this suit against Marsh and his surety, the United Fidelity & Guaranty Company.

All the issues involved in this suit except, of course, the extent of the injuries sustained by plaintiff and the amount which she is entitled to recover were decided by this court in the case of Mrs. Mamie S. O’Sullivan versus Henry V. Marsh, et al., No. 2718 on the docket of this court, not yet officially reported.

The plaintiff and Mrs. O’Sullivan were passengers in the same car.

It is needless, therefore, to restate the facts here, except as to the injuries received by plaintiff. Nor is it necessary to discuss the liability of the surety company on either of its bonds, for they are the same here as in that case.

The District Judge held that plaintiff was entitled to damages in the sum of $1500.00 and granted judgment in her favor for that amount against Henry V. Marsh and his surety in solido on the $8000.00 bond, but failed to reserve her rights to proceed against the surety company on the other bond, as was done in the O’Sullivan case.

The defendant, Marsh, has not appealed.

This appeal is prosecuted by the surety company.

Counsel for plaintiff moved in this court to have the judgment amended by increasing the amount thereof and to have plaintiff’s rights to proceed under the other bond reserved as was done in the O’Sullivan case.

OPINION

'As to the quantum of damages, the lower court, we think, made no error.

Doctor Hamley, who was called and saw plaintiff within an hour after she was injured, testified that when he saw her she was unconscious and was in that condition at intervals for three days; that she was in bed, tossing about; that her head, left side, right shoulder, and both knees were bruised, and that she had minor injuries about the face and head; that she had concussion of the brain and required opiates, ice caps and sedatives to keep her quiet; that he attended her at her room in Lake Providence from May 15th to May 23rd, when she went home to her mother at Tallulah and came back to him on May 30th on a crutch, at which time she was still suffering intensely, and that she had suffered till the date of the trial of this suit in the District Court on November 16. He thinks she will have partial disability on account of the accident, which disability, he thinks, may be' permanent.

We note from the testimony that plaintiff was injured on May 25th, that she married thereafter, and within a year after her marriage she gave normal birth to a normal child. She testified that she had suffered intense pain and still suffered.

We conclude, as did the District Judge, who saw her, that she is not permanently injured, and we think the award of $1500.00 does substantial justice.

Counsel for the surety company, appellant, in brief, say:

“Since in the case of Mrs. Mamie S. O’Sullivan vs. Henry V. Marsh, et al., No. 2718 on the docket of this court, Your Honors have passed on the question of liability, the only questions before the court in the present case are:
“(1) Whether, after a judgment has been rendered against the surety company for the full amount of its bond, another judgment may be rendered against it under the same bond; and
“(2) Whether Mrs. McCoy, plaintiff, suffered injuries to an extent to justify a judgment for one thousand five hundred ($1500.00) dollars.”

We have disposed of the second point raised.

Counsel strenuously argue that inasmuch as the court has already rendered judgment against the surety company for $3000.00 in favor of Mrs. O’Slllivan, who was injured in the same car and at the same time that plaintiff was injured, it cannot render an additional judgment against it in favor of plaintiff, as the two judgments combined exceed the amount of the bond; and they argue that the surety company cannot be made to respond for any amount exceeding its liability stipulated in the bond, and they cite authorities in support of their contention.

The point which counsel raise has no place in this . suit.

Thé bond in question was written under the provisions of Act 196 of 1918:

“With the obligation running in favor of any person who may be injured in person or property by the negligence of the operator of the service car.”

Plaintiff was injured by the negligent operation of the service car. She therefore has a right of action against Marsh, the owner and operator of the car, and his surety in solido. Her cause of action against both is 'precisely the same as that of Mrs. O’Sullivan agáinst the same parties.

Is plaintiff to be deprived of her cause of action against the surety merely and solely because Mrs. O’Sullivan’s suit was tried and judgment for her rendered first?

Certainly not.

Counsel say that the surety company is bound for $3000.00 and no more. If that be true, their client has nothing to fear, and has no interest in raising the question as to who will ultimately get the money.

The surety on the bond has not paid and satisfied Mrs. O’Sullivan’s judgment. It still has the $3000.00. It has no interest in a question which may be later raised between Mrs. O’Sullivan and the plaintiff as to the distribution of the proceeds of the bond. Under proper procedure the surety on the bond can amply protect its rights.

Plaintiff brought suit against Marsh, the principal, and the t surety on both bonds. In the case of Mrs. O’Sullivan versus the same defendants, where the same points with reference to these bonds were raised, as in this case, we said:

“Both bonds were produced in court on the trial, and on inspection it was found that the obligation of the surety on the $5000.00 bond did not run in favor of those who might be injured in person or property on account of the operation of the car, but only in favor of Marsh, the owner of the car, to indemnify him against loss and expenses which he might suffer on account of the operation thereof. It does provide, however, that the injured party has a right of action against the surety in ease execution is issued against the principal and is returned unsatisfied.”

We think the plaintiff’s rights should be reserved to her as were the plaintiffs’ in that case.

The judgment appealed from should, therefore, be so amended as to reserve plaintiff’s right of action against the surety on the $5000.00 bond in case execution is issued against the principal and returned unsatisfied.

For the reasons assigned, it is therefore ordered, adjudged and decreed that the judgment appealed from be amended by reserving plaintiff’s right of action against the surety on the $5000.00 bond which runs to and in favor of Marsh, the principal, to indemnify him against loss and expenses which he may suffer on account of the operation of the car, in case execution should issue on the judgment rendered herein and be returned unsatisfied, and that as thus amended the judgment appealed from be affirmed. All costs to be )aid by the defendants.


text:
    No. 2918
    Second Circuit
    PEPPER v. WALSWORTH
    (May 13, 1927. Opinion and Decree.)
    (June 28, 1927. Rehearing Refused.)

      (Syllabus by the Court)

    1. Louisiana Digest — Automobiles—Par. 4, 4(d); Negligence — Par. 1, 3.
    It. is negligence for one to drive or park 'an automobile on a public highway, at night without lights thereon, front and rear.
    2. Louisiana Digest — Automobiles—Par. 4.
    Public highways are open, both day and night, for the use of automobiles and other vehicles and for pedestrians and livestock, and the driver of an automobile has no right to assume that the road before him is open and to proceed ahead without regard to the safety of those who may be thereon.
    3. Louisiana Digest — Automobiles—Par, 4.
    When the driver of an automobile on a public highway at night finds himself blinded by the bright lights of an approaching car, or if at any time his view of the road is obstructed by dust, smoke or fog, it is his duty to bring his vehicle under such control that he will be able to stop it at once in case of emergency, and in some cases to stop his car until the ' obstruction to his view is cleared. ■
    4. Louisiana Digest — Automobiles—Par. 4; Negligence — Par. 1.
    The failure of one operating an automobile on a highway at night to bring his car under perfect control when he finds himself so blinded by the bright lights of an approaching car that he can not see the road ahead of him is gross negligence and reckless driving.
    5.Louisiana Digest — Automobiles—Par. 7; Negligence — Par. 26.
    Contributory negligence, in order to bar recovery in an action for damages, must have in it the element of being the proximate, not the remote, cause from which the accident or injury resulted.
    Appeal from the Third Judicial District lourt of Louisiana, Parish of Jackson. Hon. S. D. Pearce, Judge.
    Action by Lawson Pepper against S. W. Walsworth, et al.
    There was judgment for defendants and plaintiff appealed.
    Judgment reversed.
    R. W. Oglesby, of Winnfield, attorney for plaintiff, appellant.
    E. L. Walker, of Ruston, attorney for defendants, appellees.
   ODOM, J.

This is an action to recover damages resulting from a collision between plaintiff’s automobile and that of defendant.

There was judgment dismissing plaintiff’s suit as of non-suit and he has appealed.

OPINIÓN

Plaintiff was driving his Ford car on a public highway at night. Finding that his car was not operating properly he ran it over to the right-hand side of the road as far as he could and stopped to fix it. After working on it for more than half .an hour he succeeded in adjusting it so that it would run. Whereupon he and a companion named Smith got into the car and started on their way. About the time that plaintiff, who was driving the car, got it started to moving forward and while it was in low gear, defendant’s large Studebaker automobile, which was being used as a service car to carry passengers, ran into it from behind and destroyed it.

Plaintiff’s car, when struck, was on the extreme right-hand side of the road. Defendant’s ear was coming in the same direction and ran into plaintiff. Plaintiff alleged negligence on the part of defendant’s driver. Defendant denies liability but, in the alternative, alleges and pleads that if the court should find and hold that his driver was negligent then and in that event he pleads contributory negligence on the part of plaintiff in bar of his right to recover, the negligence charged against plaintiff being that his car was not equipped with a light on the rear end.

The testimony warrants the holding that plaintiff’s car was not equipped with a light on the rear end. Defendant’s driver and another witness say there was none and plaintiff and his companion are not sure that there was. Plaintiff says his car was an old model Ford and was not equipped with a tail light, but, however, before starting out he attached to it a coal oil light, but he could not say it was burning at the time of the collision. As he and his companion worked on and around the car for more than thirty minutes while it was standing in the road, it is reasonable to suppose that if the light had been burning during that time they would have noticed it, but they did not.

There is a state statute which requires automobiles, while traveling the public highways at night, to be equipped with lights, front and rear. Due regard for the rights and safety of all those who use the highways requires that automobiles he equipped with lights.

Plaintiff was therefore guilty of negligence.

He cannot, therefore, recover unless the defendant’s driver was also guilty of negligence, and not even then if his own negligence was the main contributing cause of the collision, as will be discussed later.

Defendant’s driver was also guilty of negligence.

He ran his car into plaintiff’s car over on the extreme right-hand side of the road. The cars were both going in the same direction and the proper place for each was on the right-hand side of the road.

But it is not disputed that when an automobile approaches another going in the same direction, it is gross negligence for the driver of the approaching car to run into the forward car even though, it has been held, the forward car be in the middle of the road and' refuse to yield the right of way.

Defendant’s car was equipped with proper lights, and no reason is suggested why the driver could not have seen plaintiff’s car on the road, even though it had no lights. But the driver of defendant’s car pleads as an excuse for his conduct in running into plaintiff’s car that as he approached plaintiff’s car he met another car coming from the opposite direction and that the oncoming car was equipped with bright headlights which so blinded him' that he could not see. Here is what he says:

“I was driving along and meeting a car and he had me blinded, .see, and his car was sitting on the right, and just as this car passed, it passed me about twenty feet before I got to this car (plaintiff’s) the car that I met and I didn’t have time to miss his car, and I cut my wheel to the left just as far as I could, and hit him about eighteen inches on the left.”

He was asked why he did not see plaintiff’s car sooner than he did, and he said:

“Didn’t have any lights, and the other car had me blinded.”

All through this witness’ testimony he stresses the point that the lights of the approaching car had him blinded and that he could not see, and that point is strongly urged by counsel for defendant.

The witness stated that on meeting the car he turned his car to the right. This threw him immediately behind plaintiff’s car. He struck it just after meeting the other car. Just before meeting the approaching car he was running thirty miles an hour but checked his speed slightly so that when the collision occurred he was running at not more than twenty-five miles an hour and did not see plaintiff’s car until he was within fifteen or twenty feet of it.

In the absence of any testimony to the contrary, we assume that defendant’s car was properly equipped with headlights. Therefore, if it had not been for the blinding lights on the approaching car the driver could have seen plaintiff’s car in time to avoid striking it, even though no lights appeared on the rear end, for it was on the open road ahead of him as he approached.

The road, so far as the testimony discloses, is straight, and there was nothing to keep the driver from seeing the car ahead of him, even though it had no taillight, except the blinding lights of the approaching car.

The question then arises, whether it was negligence for the driver to meet this approaching car, when he was blinded by its lights, at a speed of twenty-five miles an hour?

We think it was.

It was not only negligence, it was reckless driving. The driver of an automobile has no right to assume that the road before him is open, and to proceed ahead without regard to the safety of those who may be therein. To proceed ahead when one is utterly blinded, as the driver of this car says he was, at a speed of twenty-five miles an hour, is the grossest kind of negligence.

When a driver finds that he is unable to see the road ahead of him, for any reason whatever, whether blinded by bright lights, smoke, dust, fog or for any other reason, it is his duty to at least bring his car under such control that it can be stopped in a moment in case of emergency, and in extreme cases it is his duty to stop.

The highways are open to the use of pedestrians, people riding on horseback, and the livestock. Their presence on the highways is ’ always to be expected, and due regard for their safety must be observed.

The driver of this car did not take the necessary precautions when he found himself blinded by the lights of the other car. True, he says he checked his speed to some extent, but according to his own testimony he met the oncoming car while running at twenty-five miles an hour and was running at that speed when he hit plaintiff’s car. He saw, of course, the car which he met when some distance away. It was then his duty to check his speed and bring his car under complete control. If he had done that and had reduced his speed. to twelve or fifteen miles an hour, which he could have done, the collision would not have occurred, for he says he saw plaintiff’s car when about fifteen or twenty feet from it, when he cut his car to the left but not far enough to miss it. Prom his testimony it appears that had he gone eighteen inches further to the left the collision would have been avoided.

His theory is that he could not see plaintiff’s car until relieved of the glare of the lights of the other car. If he had not been running so fast the other car would ha,ve passed him in time for him to have seen plaintiff’s car at a sufficient distance to avoid striking it.

The rule that a person driving an automobile at night, who finds himself blinded by the lights of an approaching car must slacken his speed and have his car under such control that he could stop it immediately if necessary to avoid striking those rightfully in the road ahead of him, is sanctioned by the courts of last resort in every state of the Union where the question has been raised.

See cases reported and note following them in:

10 A. L. R. 291.
32 A. L. R. 881.
41 A. L. R. 1027.

In the case at bar it is perfectly apparent that it was not the absence of a tail-light on plaintiff’s car which brought about the collision but, on the contrary, it was caused by the fact that the driver of defendant’s car was so blinded by the glare of the bright lights of the car approaching from the other direction that he could not see ahead of him.

The driver of defendant’s car, in failing to observe the proper precautions, was guilty of negligence-, and it was his negligence which brought about the accident.

Defendant pleads contributory negligence in bar of plaintiff’s action.

Conceding that plaintiff was negligent in not equipping his car with proper lights, yet to defeat his recovery for dammages caused by .defendant’s driver negligently running into his car from the rear it would have to appear from the evidence that his negligence in that respect contributed to the accident and was the proximate cause thereof.

The mere fact alone that plaintiff was guilty of some negligence does not necessarily bar his recovery.

“Contributory negligence is a want of ordinary care upon the part of the person injured by the actionable negligence of another combining and concurring with that negligence and contributing to the injury as a proximate cause thereof without which the injury would not have occurred. Contributory negligence must have in it the element of being a proximate cause — not a remote cause but a proximate cause from which the accident or the injury in whole or in part directly or indirectly resulted and but for which either by itself or by the presence of the negligence of the defendant the injury would not have occurred.”

See: Words and Phrases under the heading, “Contributory Negligence”, first edition, volume 2, page 1542, and the long list of authorities there cited.

In 28 Cyc., page 38, under the heading, “Motor Vehicles”, the rule is stated as follows:

“The act or omission alleged to be negligence must always be the proximate cause of the injury in -order to be actionable; and so, too, must the alleged contributory negligence he in order to bar recovery such that the injury would not have been sustained except for such negligence.”

Our learned brother of the District Bench held that the failure of the plaintiff to have his car equipped with a tail-light was negligence and that his negligence in that respect bars recovery.

We concur in the holding that plaintiff was negligent, but do not concur in the view that such negligence, under the circumstances of this case, defeats his' recovery.

It is well settled that the failure to comply with the provisions of a statute regulating the,use of motor vehicles on the highways is negligence, but it is equally well settled that where such negligence alone is plead in bar of recovery it must be shown that there was a causal relation or connection between the negligence arising from the violation of the law and the accident and injury.

Lindsey vs. Cecchi, 80 Atl. 523, 35 L. R. A. (N. S.) 699.

Turner vs. Bennett, 161 Iowa 379.

Anderson vs. Serrett, 95 Kan. 483.

Lorenstein vs. Maile, 132 S. E. 844.

In Southall vs. Smith, 151 La. 967, 92 South. 402, it was held that it was the duty of the operator of a motor vehicle to keep his machine always under control' so as to avoid collision with pedestrians and others using the highways. The court said:

“He has no right to assume that the road is clear, but under all circumstances and at all times he must be vigilant and must anticipate and expect the presence of others.”

The driver of defendant’s car was grossly negligent. His conduct probably resulted from the fact that he was under the influence of intoxicating liquor. One witness said he was staggering. Another said he was under the influence of liquor but not drunk because, in. his opinion, a man is not drunk until he is “down and out”.

S. W. Walsworth, one of the defendants, denied liability on the ground that he had no interest or connection with the business of operating the bus line, except to keep the books and to advance his son money when he needed it. He and his son both swear that there was no partnership between them, no agreement to share profits or losses of the business, and there is no evidence that S. W. Walsworth held himself out as a partner in the business. Both the son and the. father swore that the father merely advanced the necessary funds to operate the bus so that the son would not have to go to the bank for advances. The only evidence that the father ever owned any interest in the business is a statement signed by him dated March 17 '.926, after this cause of action arose, abd published in a local newspaper, to the effect that he had sold his interest in the business to his son, A. E. Walsworth, who had assumed all outstanding obligations of the business. That statement was written by Mr. Shows, clerk of the court, who says that he wrote it according to his understanding of what the parties wanted. At the same time he prepared for tne parties a promissory note representing the amount the father had advanced to the son in the operation of the business, which it appears was not signed by the son. A few days later the father and son signed a joint statement purporting to correct the first statement, in which latter statement it was recited that the father had never owned any interest in the business hut was only bookkeeper, which position he had resigned on March 17, 1926.

The first published statement of S. W. Walsworth taken alone indicates very strongly that he owned an interest in the business at the time this cause of action arose, but in view of the fact that this statement is all the evidence there is in the record to prove the partnership, and in view of the sworn testimony of both father and son to the contrary, we cannot say that che existence óf a partnership has been established with that legal certainty which would warrant us in holding S. W. Walsworth liable.

As to the quantum of damages, we think the testimony establishes that plaintiff was damaged to the extent of two hundred dollars, the amount demanded.

Eor the reasons assigned, it is ordered, adjudged and decieed that the judgment of the lower court rejecting plaintiff’s demand as in case of non-suit be avoided and reversed, and it is now ordered and decreed that there be judgment in favor of the plaintiff, Lawson Pepper, and against the defendant, A. E. Walsworth, for the sum of two hundred dollars and all costs in the lower court; and further ordered that plaintiff’s demand as against S. W. Walsworth be rejected; and this suit, as to him, be dismissed. Plaintiff to pay costs of appeal.