text:
    No. 10,907
    Orleans
    LABIT v. STANDARD MOTORS FINANCE CO., INC., Appellant
    (June 6, 1927. Opinion and Decree.)

      (Syllabus by the Court)
    1. Louisiana Digest — Appeal—Par. 625.
    The judgment of the trial court on questions of fact will not be reversed unless manifestly erroneous.
    2. Louisiana Digest — Damages—Par. 38.
    Damages for supposed profits will not be allowed.
    Appeal from First City Court. Hon. W. V. Seeber, Judge.
    Action by O’Neil Labit against Standard Motors Finance Company, Inc.
    There was judgment for plaintiff and defendant appealed.

      Judgment amended and affirmed.
    W. J. Curren, of New Orleans, attorney for plaintiff, appellee.
    Legier, McEnerny & Waguespack, of New Orleans, attorneys for defendant, appellant.
   CLAIBORNE, J.

The plaintiff sues the defendant for having run into and damaged his automobile.

The plaintiff alleged that on December 28, 1926, at about 10 o’clock at night, he was driving his automobile up the Jefferson Highway near Narco, Parish of St. Charles, left bank, keeping to the right-hand side of the road; that he saw defendant’s ear approaching him on said road at a high) rate of speed on the wrong side, of road; that plaintiff pulled his car to the right until his wheels were almost in the ditch and slackened his speed, leaving some twenty feet of roadway on his left side for defendant’s car to pass; that defendant negligently drove into plaintiff’s car head on, causing damage to plaintiff’s car of $164.11, as appears by the itemized account annexed; that defendant’s car was at that time driven by H. Dasto, employee of the defendant. Plaintiff further alleged that he is a salesman dependent for his livelihood upon his commissions; that his car was laid up for one week, during which time plaintiff was damaged in the' sum of $30 for loss of commissions he would have made with his car. He claims damages of $194.11.

The defendant denied all allegations of plaintiff’s petition. It averred that the plaintiff was driving upon the left side of the road, contrary to traffic rules, and in a careless manner, and ran into defendant’s car; that defendant’s employee was driving on his right hand of the road and the cause of the accident was that plaintiff was not upon his right side of the road; that plaintiff was driving in excess of 25 miles an hour, and defendant pleads contributory negligence.

Defendant further averred that its Ford automobile was damaged to the amount of $175.13, which is claims in reconvention.

There was judgment in favor of plaintiff for the full amount claimed, $194.11, and dismissing the reconventional demand.

The defendant has appealed.

The plaintiff testified that he was driving up the river on the right side of the road; that both his lights were burning; that he saw the defendant about one hundred feet ahead of him driving towards the city at a fast rate in the middle of the road with his lights very bright; plaintiff moved towards the ditch on his right and came to practically a stop; plaintiff’s car moved less than two feet after it was struck; defendant’s car turned over and around and pointed in the opposite direction and was on fire in the middle of the road twenty-five feet away; plaintiff and a watchman who heard the crash turned the car back upon its wheels; plaintiff asked defendant his name; he refused at first and afterwards gave the name of “Dasto”; plaintiff asked for an officer to have defendant arrested, but he had gone; plaintiff paid $164 to have his car repaired; plaintiff is a salesman working on commission; he had to go to work on the train or hire a car, and was detained three days before he could get a car; there was another man in defendant’s car, but he said he was asleep and saw nothing; plaintiff’s fourteen-year-old son was in the car -with him, sitting on the right in front; the road was thirty feet wide; he was on the right-hand side of the road all the time; plaintiff’s car scraped off his left front fender and running board; the front axle was bent and the wheel was broken to splinters; the plaintiff did not blow his horn.

William Pfister was- a night watchman on the wharf; he did not see the collision; his attention was attracted by the noise; he went to see it right away; one car was on fire one or two feet from the ditch on the river side; when it was raised it was near the center of the road; the other car was on the right-hand side facing up the river eight or ten inches from the ditch.

Robert Muntz is a deputy sheriff; he was called from his home for a wreck; when he got there the plaintiff’s car was facing up the road on the right-hand side about two feet from the ditch, and there was a Ford headed up in the center of the road; with the assistance of a few hoys he turned it over next to the ditch and pulled plaintiff’s car out of the right-hand side out of the way of other cars, so that both cars would be on the same side; plaintiff’s car had his left wheel broken and fenders mashed; defendant’s car badly damaged; it had its windshield smashed, and the top and front part of his right side was damaged; plaintiff’s car was headed up; the road is about 20 feet wide; the curve does not amount to anything; it does not prevent you from seeing a car 600 feet ahead.

Emile A. Picou is sheriff of St. John the Baptist; owns a garage at Garyville; is, besides, a mechanic and machine worker; saw the plaintiff’s car; the fender was smashed, the wheel was broke and the axle cracked, and windshield broken and other things; he estimates the damage at $190.00.

The itemized bill of repairs annexed to the petition corroborates the above testimony. Among other items it enumerates: Left front fender, front wheel, left running board, windshield glass, front axle, etc.

Herbert Dasto, the driver of defendant’s Ford, testified that he was coming from Baton Rouge just prior to the accident; he was driving on the river side, three or four feet from the ditch on the river side, all the way from Baton Rouge, at 23 or 25 miles an hour; the left side of his car was struck a little on the left front wheel; his lights were burning; nothing to prevent each one from seeing the other; plaintiff did not blow his horn; plaintiff’s car was more on the river side of the center of the road; after the accident several cars passed upon the lake side of plaintiff’s car; the whole left side of defendant’s car was demolished, the top, the windshield, the front fender and the front wheel axle; he saw plaintiff’s car before the accident about 200 feet; the plaintiff did not ask him for his name; plaintiff’s car was an Overland six, much heavier car; although he saw plaintiff’s car comng, he did not pull over because he could not go over much further; he was four feet from the ditch; his car spun around and headed towards Baton Rouge.

O. C. Roberts, who was in the car with Dasto, says they were running at 25 miles an hour, three or four feet from the ditch on the river side; after the accident other cars passed behind the plaintiff on the lake side; the damage to defendant’s car was on the right-hand side; he was not employed by anyone; he just went along because Dasto asked him; Dasto’s car was a wreck; after the car hit them they turned over towards the river and the car was headed (owards Baton Rouge when it stopped.

Frank Wood was following Dasto’s car in a Ford; they were traveling on the river side' of the road; the accident did not occur on the lake side of the road; approximately near the center; he was just about 100 yards behind Dasto’s car. All of Dasto’s car was on the river side of the center of the road; he did not see plaintiff’s car until they struck; after the accident plaintiff’s car was over the center of the road towards the river; his wife was in the car with him; he had been traveling at 25 or 30 miles an hour; the front left side of Dasto’s car was injured; he is employed by the Mortgage Securities Company; the defendant are subsidiaries to them; he heard plaintiff ask Dasto for his name.

L. C. Prudhomme estimated the value of repairs to defendant’s car.

Mrs. Frank Wood testified that she was in her husband’s car behind Dasto, ten or twelve miles, near the ditch on the river side; plaintiff’s car was on the lake side of the center of the road; she did not see the impact; after the accident they passed on the lake side of plaintiff’s car to go down.

In the presence of this conflict of testimony the rule becomes wisely applicable that the appellate court will not reverse a judgment unless it is manifestly erroneous.

The trial judge in this case heard and saw the witnesses and, after seeing them, decided the case in favor of the plaintiff. We cannot say that he erred, the more so that we are struck by three important factors.

The first is the contention of the defendant that he was traveling within a few feet of the ditch on his right and that he was run into on his left by the plaintiff who overturned his Ford and knocked it in the middle of the road. This testimony seems to us impossible inasmuch as defendant must have been knocked into the ditch on his right and not into the middle of the road if he had been run into on the left by the plaintiff, the more so that plaintiff’s was the heavier car.

The second is that Dasto denied that plaintiff had asked him his name or that he had given it to him, and only admitted that he had done so when recalled, after his own witness, Frank Wood, had testified that he had heard Labit ask Dasto his name.

Third, O. C. Roberts testified that the right-hand side of Dasto’s car was struck by Labit’s car while Dasto testified it was on the left side.

Fourth, Mrs. Frank Wood said that when she first saw plaintiff’s car before the accident with reference to the center of the road, it was on the lake side as far as she could see, thus contradicting all defendant’s witnesses.

Witnesses are. weighed, not counted. Kemp vs. Wamack, 2 La. 272.

But plaintiff’s demand for $30 for loss of commissions must be denied. None are proven.

Damages for supposed profits cannot be given. Gobet vs. Municipality No. 1, 11 La. Ann. 300; Bergen vs. City of New Orleans, 35 La. Ann. 523; Riggs & Co. vs. Bell, 42 La. Ann. 667, 7 South. 787; Cable vs. Leeds & Co., 6 La. Ann. 293; Dennery vs. Bisa, 6 La. Ann. 365; Reading, Peck & Co. vs. Donovan, 6 La. Ann. 491; Grant vs. McConogh, 7 La. Ann. 447; Des Allemands Lbr. Co. vs. Morgan City Timber Co., 117 La. 1, 41 South. 332; Whitney vs. Parish of Vernon, 126 La. 13, 52 South. 176; Mirandona vs. Burg, 51 La. Ann. 1190, 25 South. 982; Blymer Ice Machine Co. vs. McDonald, 48 La. Ann. 439, 19 South. 459; Morris vs. Union Bank, 35 La. Ann. 1202; Schleider vs. Dielman, 44 La. Ann. 472, 10 South. 934; Dwyer Bros. vs. Administrators of Tulane Ed. Fund, 47 La. Ann. 1235, 17 South. 796.

Nor is there any evidence that plaintiff hired another car or paid any railroad fare.

It is therefore ordered that the judgment herein be reduced from one hundred and ninety-four and 11-100 dollars to one hundred and sixty-four and 11-100 dollars, and, as thus amended, that it be affirmed, the costs of appeal -to be paid by plaintiff and appellee.


source: Caselaw Access Project

author: CLAIBORNE, J.

license: Public Domain

text:
    No. 10,793
    Orleans
    STEWART, Appellant, v. VERGES
    (April 11, 1927. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Sales—Par. 42, 52, 62.
    If one makes an offer to buy a certain article on specified conditions and the vendor' delivers the article, he is bound by the conditions proposed by the purchaser.
    Appeal from First City Court. Hon. W. Alexander Bahns, Judge.
    Action by Samuel B. Stewart against Louis W. Verges.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Louis E. Jung, of New Orleans, attorney for plaintiff, appellant.
    Dempsey & Monie, of New Orleans, attorneys for defendant, appellee.
   CLAIBORNE, J.

This is a suit for the price of a washing machine for which the defendant agreed to pay $180 in the manner following: $15 upon delivery of the machine, and the' balance in ten installments of $16.50. The defendant paid cash $15 when the machine was delivered to him, -but has failed to pay any part of the balance, amounting to $165.75, for which plaintiff claims judgment.

The defendant answered “that he had contracted with plaintiff to purchase a washing machine provided that he could keep the same for trial for 15 days, at tthe expiration of which time he could either return the machine if he was not satisfied with it, or meet the monthly payments; that he was not and is not satisfied with the machine and that he notified the daintiff to come and get it as per agreenent, and that the plaintiff refused to get he machine as originally understood and ¡ontracted. * * * He admits paying $15 *s a deposit to be returned if the machine vas not satisfactory.”

There was judgment against the plaintiff dismissing his suit, and he has appealed.

The defendant testified that he agreed with plaintiff’s solicitor, William Burnet, to buy the machine on trial, and that if it did not prove satisfactory he could return it on losing his deposit. He is corroborated in that testimony by the witness, Walter O’Connor. Burner testified but did not deny that agreement.

The plaintiff objected to any parol testimony to vary the written contract signed by defendant and by virtue of which he purchased the machine.

The offer of defendant is dated May 31, 1926. On two of the lines are written in pencil the following words: “This machine is on trial to be paid for if satisfactory.”

We think these words authorize the admission ■ of the testimony adduced and justify the defendant’s right to rescind the sale if the machine was not satisfactory to him and did not do the work.

It is true that across this contract are written the words: “Void sold.” It does not appear who wrote the words, nor when, nor that the defendant was aware of them.

The contract was in the hands of plaintiff and was taken from his files to offer in evidence.

The offer contained the provision that it was subject to the approval of the plaintiff, but was not signed .by him.

Another contract dated June 5 appears to have been also signed by defendant and accepted by plaintiff. On this contract the words relative to the right of trial do not appear. But the machine had been delivered to the defendant before the defendant signed the modified contract of June 5.

The delivery of the machine under the original contract of May 31 was an acceptance of its terms by plaintiff. C. C. 1816 (1810). The defendant swears that he signed the contract of June 6 in error, thinking that it was a receipt. At any rate there is nothing to show that he was informed at that time that the original terms of his offer had been or would be modified as to his right of trial, or that he was signing a new and different contract.

We are of opinion that the judgment is correct and it is therefore affirmed.


text:
    No. 10,235
    Orleans
    STATE EX REL. RINGE, ET AL., Appellants v. MADISON LUMBER CO.
    (May 9, 1927. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Sales—Par. 18.
    When a contractor submits to lumber dealers a list of lumber wanted, specifying quality and grades, and a lumber dealer makes a bid differing in I some respect from the contractor’s list and his bid is accepted, the rights of the parties are governed by the bid.
    Appeal from Twenty-fourth Judicial District Court, Parish of Jefferson. Hon. L. Robert Rivarde, Judge.
    Action by State ex rel Alfred E. Ringe, et al., against Madison Lumber Company.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    H. L. Hammett, of New Orleans, attorney for plaintiff, appellant.
    J. D. Dressner, of New Orleans, attorney for defendant, appellee.
   CLAIBORNE, J.

This is a mandamus to order the erasure of an inscription of a pretended privilege in favor of a furnisher of materials.

The relator alleged that he was a building contractor; that he contracted to erect a dwelling for the' Phoenix Building Association for account of Widow Arthur J. Benedic; that in order to execute the contract he contracted with the defendant for the purchase of the lumber necessary for the construction of the building; that he paid for all the lumber contracted for and furnished; but nevertheless the defendant has recorded in the mortgage office a privilege against said building for the sum of $322.40. Relator prayed for erasure of said inscription.

The defendant admitted the building contract, admitted the recording of the privilege, and its refusal to cancel it; and alleged a written contract for the furnishing of the lumber and claimed in re-convention a balance due of $322.40 in accordance with the inscription of the privilege.

There was judgment rejecting relator’s demand and in favor of the defendant on its reconventional demand.

Relators have appealed.

Neither the petition nor the answer disclose the differences between the parties. But the testimony' seems to indicate that the relator complained that the defendant had furnished lumber inferior in quality to the grade contracted for.

The relator submitted to the defendant a lumber list for the necessary material to erect the building. At the top of the list are the words in raised letters: “All long leaf yellow pine Grade ‘C’.”

The defendant replied in writing on January 24, 1924:

“Mr. A. W. Ringe:
“For the sum of $986.00 we agree to furnish the articles named and described below:”

Then follows a long list of the' lumber to be furnished in pieces, ‘size, length, grade, number of feet, price and amount, making a total of $986.00. With regard to the “grade”, the list specifies sometimes No. 1 common, other times No. 2 common. Nowhere is there a mention of “all long leaf yellow pine of Grade ‘C’.”

It seems that Grade “C” is an absolute classification of lumber; the grades are now designated by numbers.

The bid of the defendant was accepted and it furnished the lumber-

On May 3, 1924, the relator, through his attorney, wrote to the defendant in part:

“Mr. Ringe objects to the grade of lumber furnished, as does Mr. Edward Sporl, the architect representing the Phoenix Homestead Assn. The grade of ceiling is not up to the specification; that it is not “0” grade lumber and it cannot be used in the building; and he further states that it is not long leaf pine. He has used 2000 feet of the 9000 feet of this lumber at a loss. The balance, 7000 feet, cannot be used, and there is 700 of the 7000 feet that my client requests you to exchange, in order to live up to your agreement with him in sending the proper grade of lumber, same being contrary to your agreement and specifications.”

To which the defendant answered:

“We wish to say that if Mr. Ringe will refer to our estimate, which shows the sizes and grades of lumber we agreed to furnish, he will see that we did not sell him any “C” grade lumber nor is any mention made as to long leaf. We are quite sure that the lumber we delivered is strictly up to grade, and - we would be glad to have any competent lumber inspector pass on it.”

It will thus be seen that the issue between the relator and the defendant is whether the _ latter should have furnished lumber of Grade “C” or of No. 2 common and of long leaf pine.

We are of the opinion that the defendant fulfilled his contract by furnishing No. 2 common lumber; and that if the No. 2 was not of long leaf pine it was immaterial, because -that was the bid made by the defendant and accepted by the relator and constituted their contract.

John A. Rohr testified that the ceiling furnished was No. 2 common, not long leaf pine, loblolly.

F. A. Pezold said the same.

Charles Noel, manager for defendant, says that “C” grade is no longer in existence; that they did not agree to sell “C” grade but No. 2 common, which they furnished; that there was no dispute except upon that item; that the grade which the relator had in mind would have cost $135 or $180 more.

James Dubos, credit man for defendant, testified that on August 15 he called for payment on the plaintiff, who answered that he owed only $214; he would not say how he figured that amount.

Joseph Owens corroborates the above ■ 'testimony.

The evidence is that although the defendant had offered to have any competent lumber man pass upon the material furnished by him under his bid that the relator did not accept the offer. That the relator used up all the lumber furnished by defendant except some ceiling.

That the relator wanted to use the ceiling for flooring and did use some of it by cutting the best pieces. There are in the transcript 13 dray receipts for the lumber signed by the relator. These receipts represent all the lumber defendant offered to furnish on his bid. The relator cut up all the lumber except seven or eight hundred feet of ceiling. At $35 a thousand that quantity would be worth about $28. He has it still on hand.

While the testimony establishes that much of the lumber furnished was of an inferior quality, it satisfies us that it was according to the bid made by the defendant, and therefore the plaintiff cannot refuse- to pay for it.


text:
    No. 9906
    Orleans
    DEBLANC v. T. & P. RY. CO., Appellant
    (May 23, 1927. Opinion and Decree.)

      (Syllabus by the Court)
    1. Louisiana Digest — Carriers of Passengers and Goods — Par. 25, 38.
    ' Where a passenger seeks damages from a carrier for injuries sustained while alighting from a train, and the evidence fails to establish any negligence on the part of the carrier, recovery will be denied.
    2. Louisiana Digest — Carriers of Passengers and Goods — Par. 25, 38, 55; Negligence — Par. 25.
    Where the injury to the plaintiff was not-caused by any defect ip. the stepping-stool, but was attributable to the negligent use of it by stepping upon the side of it instead of upon it, the carrier will not be held liable.
    (See Civil Code, Article 2315. Editor’s note.)
    Appeal from Twenty-eighth Judicial District Court for the Parish of St. Charles. Hon. Prentice E. Edrington, Judge.
    Action by Mrs. A. DeBlanc against Texas & Pacific Railway Company.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed.
    C. A. Buchler, of New Orleans, attorney for plaintiff, appellee.
    Spencer, Gidiere, Phelps & Dunbar; John E. Pleury, of New Orleans, attorney for defendant, appellant.
   CLAIBORNE, J.

This is a damage suit for physical injuries.

The plaintiff alleged that on November 13, 1917, while she was a passenger on one of the trains of the defendant railroad she was injured through the negligence of its employees; that “she boarded one of defendant’s trains in the city of New Orleans and upon reaching her destination at Luling, La., in this parish (St. Charles), at about 6:30, attempted to alight from the said train and the agent and employee of the defendant company failed to place the footstool in the proper location and seen (seeing?) that petitioner was about to fall kicked the said footstool, thereby tripping petitioner and causing her to fall prostrate upon the ground and injuring her as hereinafter stated. That it was quite dark at the time and the agents and employees of the defendant company failed to provide the proper light, so as to enable petitioner to see and said employees while in the performance of their duties failed to properly place the footstool so as to enable petitioner to properly alight from said train. That petitioner was very much humiliated and, due to the negligence of the employees of said defendant company, suffered a severe sprain of the left ankle joint with partial .separation of .the fibia fabular articulation and also that of the second row of tarsal bones, which injuries were very painful for at least four weeks, during which timé' petitioner was entirely incapacitated; and petitioner alleges that she is still suffering from the said injuries and it is possible that said injuries will be permanent in character.

She claimed the following damages:

Humiliation, pain and suffering — $2000.00 Loss of time and inability to attend
to her household duties ______________ 1000.00
Doctor and medicine __________________________ 200.00
Permanent injuries. ____________________________ 1000.00
Total ____________________________________________$4200.00

The defendant denied all the allegations of the petition and averred “that if said plaintiff was injured said injuries were caused through no fault of your respondents, their agents, officers or employees, but that the said injuries were caused through the gross carelessness, recklessness and negligence of the plaintiff which contributed to the accident”.

There was judgment for plaintiff for $1000 and the defendant has appealed.

There are therefore three charges of negligence alleged against the defendant:

1st. That it failed to put the footstool in the proper place.

2nd. That an employee kicked the footstool, thereby tripping plaintiff and causing her. to fall; and

3rd. That the employees of the defendant failed to provide proper lights to enable plaintiff to see and properly alight.

The plaintiff lives at Des Allemands; she describes how she fell:

“When I went to get off the auditor was there, and instead of having the stool right under the step, he had it at a little distance under the step, and as I went to step he noticed the mistake, and pushed the stool, and I slipped, and my right foot hit up against the rail of the track.”

And she fell, and her husband helped her up, and also Dr. Johnson, who was there, assisted her; there was no one else; the train auditor got off and took the stepping-box and dropped it on the ground and stood near facing the plaintiff and looking straight up into the coach. The plaintiff repeats:

“Instead of putting the stepping-box right under the step of the train he put it a little distance, and I went to get off and he must have noticed his mistake, saw my foot go further down, and he pushed the box and it hit me up against the shin and tripped me, and I fell and my right foot hit up against the rail underneath the train.”

The auditor put the step too far out from the stép; when she came down, she did not see the step there until she went to get off; her foot went down between the step •and the box; she did not see the box at all; she felt where it was, and she fell right there; her right foot went between, and when the auditor pushed the box it hit against her left- foot; she did not see the box, but she noticed it when the auditor pushed it and she felt it; it was too far from the step; it was fourteen inches from the step; it was too dark, she could not see it; when she went down, her right foot went down to the ground between the stepping-box and the rail of the track; her husband was right there; she fell back; the depot was further up towards Hahnville; the step of the coach from which she got off was a short distance before reaching the depot; her husband was there right alongside of the train; closer to the train than the auditor; the step of the coach from which she got off was about 30 feet away; Dr.' Johnson was standing right behind her, up in the vestibule between the two coaches; Dr. Johnson asked her if she was hurt and she told him no.

She does not know whether it was a vestibule coach or not.

A. DeBlanc, plaintiff’s husband, testified -that when his wife “went to get down the auditor pushed the stool, and she put her foot down; he pushed the stool towards the train and she fell over”.

There was no other witness to the accident, on the part of the plaintiff, except Dr. Johnson.

On behalf of the defendant H. S. Philips, conductor of the train, testified that it was his duty to look after the train; that no one complained to him of having been hurt.

H. A. Manning testified that he was auditor on the train; that his duties consist in collecting transportation, handling of stepping-boxes and unloading passengers; when the train stopped, he got down from the coach and placed the stepping stool in a position to unload passengers; two passengers got off before the plaintiff, on the same stepping stool; neither he nor anyone else removed it after he had placed it in position; Mrs. DeBlanc just barely touched the box with the front end of her foot, and fell, that is her feet spread on the ground and she stumbled but did not fall, when her foot practically missed the stepping-box; he “did not kick it at all with any foot”; the stepping-box was not tilted over, it remained in the same position in which he placed it; after he placed the stepping-box in the position that it was in he at no time touched it or moved it, or kicked it while Mrs. DeBlanc was getting , down, or while any other passengers were getting down.

Dr. Johnson, plaintiff’s witness, is acquainted with the plaintiff; he was in the same coach with her at the. time of the accident; he accompanied her to the vestibule when she was about to get out with a view of assisting her to alight. He was speaking to her while he went to the door.

He testified:

“Well, as I said before, I' walked to the end of the car with her, and it was my intention to get off the train myself and help her; but there was someone waiting there for her, and, as sfie got out, she fell, and after she fell, why I got off the train myself and I assisted this party (some relative of theirs I think), I assisted him in raising Mrs. DeBlanc up on her feet again.”
“Q. And you say you saw her fall?
“A. Yes. sir.
“Q. You don’t know how she fell, however?
“A. No, sir.
“Q. You don’t know whether she missed the step box, or not?
“A. No, sir.
“Q. You never saw that step box moved, did you?
“A. No, I did not.
“Q. You were right up on the platform, were you not?
“A. Yes, sir. ■
“Q. You could see to the ground, standing on the platform, could you not?
“A. Yes, I could see the ground well enough.
“Q. You didn’t see the auditor kick the box and trip her, and cause her to fall?
“A. No, sir, I don’t know what caused her to fall.
“Q. Did you see the auditor at any time, after that train stopped, put his hand on the step box or put his foot on it, or kick it, or anything like that?
“A. No, sir.
“Q. Were you in a position where you could see everything down on the ground?
“A. Yes, sir.”

This testimony on behalf of the defendant is alone sufficient to destroy the testimony of the plaintiff and of her husband concerning the manner of the accident, for witnesses are weighed, not counted.

The testimony of the plaintiff is not convincing. Her petition is not attested by her, but by her attorney. Her damages are grossly exaggerated. She claims for doctor and medicine and other necessary treatment $200. The case was tried six years after the accident, and yet she admits that she was never presented with a doctor’s bill nor did she pay any. Her doctor testified that she never paid him anything; that he has no recollection of having sent a bill and probably had no intention of charging either.

She claims $1000 for loss of time and inability to attend to her household duties. One of the items is $1000 for the pairs shoes she has ruined. Hiring help to take care of her “two babies”. The husband testified that they had only one child. She hired two helps at the time. She did not put down what they cost, she had not the least idea what she paid them; does not remember their names, nor how long she employed them. She and her husband say that at the time of the accident it was dark and foggy and there were no lights, and plaintiff could not see the stepping stool, yet they both saw the auditor push the stepping stool. But the other witnesses say it was only getting dark and that there were sufficient gas lights from the interior of the coaches and from the vestibhle lights.

Although plaintiff’s husband says that the auditor kicked the stepping stool, and thus tripped his wife and caused her to fall, he was asked:

“Q. Did you say anything to the train auditor about this accident at the time?
“A. Yes, sir; I remonstrated with him and asked him where was his light.
“Q. You asked him where his light was?
“A. Exactly, where was his light.”

He repeats that testimony twice.

Not a complaint about pushing the stool.

Our conclusion is that the plaintiff, in alighting from the steps of the coach, did not extend her foot far enough to reach the stepping stool, and in that manner her foot descended in the vacant space between the coach steps and the stepping stool, and slipped along the side of the stool and caused her to fall.

Plaintiff’s husband testified:

“Q. Could you see how far he (the auditor) pushed it (the stepping stool)?
“A. Well, he pushed it that far, my wife’s foot had straddled this, this way, and when he pushed it, he tripped her.
“Q. In other words, your wife stepped down on the space, in the seven-inch space between the edge of the lower step of the coach and the edge of the stepping-box that was down on the ground?
“A. Yes, sir.
“Q. That is it exactly?
“A. Yes, sir.
“Q. She stepped in between that seven-inch open space?
“A. Yes * * *.
“Q. As I understand, she stepped down between the seven-inch space, that is, between the edge of the stepping box towards the train step?
“A. Yes.
“Q. And the edge of the lower train step, towards the box, there was a seven-inch space?
“A. Yes.
“Q. She stepped in there?
“A. Yes.
“Q. And you say she tripped and fell?
“A. Exactly.”

In the case of Scott vs. Vicksburg R. R., 150 La. 537, 90 South. 840, the court said on page 546:

“As to the law of the case, we are of the opinion that, where a carrier of passengers furnishes a stepbox or footstool to facilitate them in boarding or alighting from its train, it is bound to see that such appliance is safe as to strength, is so constructed as not to be readily overturned, is kept in proper condition, and when set out for use of passengers is placed upon a level and stable surface, but that the carrier is not the insurer of the passenger against the consequences of his own negligence, and where, as here, the passenger is injured in attempting to use such an appliance without looking at it, and stumbles over or against it when he should have stepped on it, his injuries are attributable to the misuse of the appliance and not to any defects or inadequacy in the box or in its surroundings, and the carrier is not liable for the injuries.”

To the same effect is Nicholls vs. T. & P. Ry., 144 La. 197, 80 South. 252, in which the court held that the plaintiff “was not without fault, having placed her foot at the side of the stool the railroad furnished for convenience in alighting so that it slipped off and she fell”.

See also Bass vs. I. C. R. R., 4 La. App. 175. All the presumptions and probabilities are that the auditor in the habitual performance of his daily duties placed the stepping stool in its proper and customary place and the testimony does not overcome that presumption.

We have failed to discover any negligence on the part of the defendant or any act on its part which could have brought about the accident.

On the other hand, the evidence satisfies us that the plaintiff was careless in the use of the stepping box, that she did not put her foot upon the box, as she should and could have done had she used proper care, but that she put it upon the side of the box and thus stumbled and fell.

It is therefore ordered that the judgment herein be reversed and set aside; and t is now ordered that there be judgment in favor of defendant rejecting plaintiff’s demand at her cost in both courts.


text:
    No. -
    Orleans
    SUCCESSION OF KERRY v. FREED REALTY CO., Appellant
    (July 14, 1927. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Builders and Buildings — Par. 17. — Obligations—Par. 104.
    A contractor may recover the value of his work which has inured to the benefit of the owner, although the work is unfinished or defective; if a price has been agreed on the remedy of the owner is a reduction of the price.
    2. Louisiana Digest — Interest—Par. 18, 25, 26.
    All debts bear interest at five per cent per annum from the time they become due.
    Appeal from First City Court. Hon. Val J. Stentz, Judge.
    Action by Succession of Charles W. Kerry against Freed Realty Company, Inc.
    There was judgment for plaintiff and defendant appealed.
    Judgment amended and affirmed.
    H. Grady Price, of New Orleans, attorney for plaintiff, appellee.
    Edw. Dinkelspiel, of New Orleans, attorney for defendant, appellant.
   CLAIBORNE, J.

This is a suit by the administratrix to recover the value of wall-papering done by Charles W. Kerry, now dead.

The plaintiff alleged that in October, 1923, the deceased made a contract with the defendant to paper certain rooms in a house the property of the defendant, No. 2326 Magazine Street, for the price of $185.00; that it was subsequently agreed that a better quality of paper should be used at an increased price of $145 and that the deceased also made some plastering worth $15, making a total of $245, for which she claims judgment.

The defendant admitted that it had contracted with the deceased to do certain papering in the property, No. 2326 Magazine Street, for $185 mentioned in the petition; but it alleged that the work done by the deceased was so very poorly done that it declined to pay for it; “that the work, as done by said Kerry, was of no value to it and in no way improved its property”.

The court reduced the amount claimed by $25, which he considered as the cost of doing over some of the work, and rendered judgment in favor of the plaintiff for $180. Owing to the death of Kerry the claims of $45 and $15 could not be proved and, being denied by the defendant, were not allowed.

On behalf of plaintiff two paper-hangers testify that the work was done in a workmanlike manner, that some defects existing could have been cured for $24. An expert paper-hanger and two members of the defendant company swear that the work was badly done, that the paper, for lack of sizing on the walls, was falling off and that there were patches in several places.

The plaintiff was handicapped in establishing her claim by the death of Charles Kerry, the contractor, and of his brother who helped to do the papering.

On the other hand, defendants had been in the enjoyment of plaintiff’s labor and materials from October, 1923, up to the time of the trial of this suit, some time in 1927, a period of over three years, by occupying and leasing the property, and never made any repairs of any kind to the paper; and during that period the house remained unoccupied and closed for some nine months. We are of the opinion that under the circumstances the objections of the defendants come too late.

The trial judge allowed the defendant $25 for repairs and rejected $60 for extra work not proved. We are of the opinion that his judgment has done substantial justice. Cole vs. Central Contracting Co., 5 La. App. 516. No. 7466, Orl. App„ Nov. 2, 1926.

The judgment allowed interest from judicial demand. Appellee has prayed for an amendment of the judgment, asking legal interest from October 27th, 1923, the date of the completion of the work, as prayed for in his petition. He is entitled to the amendment. C. C. 1938 (1932); Weaver vs. Cox, 15 La. Ann. 463; Succ. of Stephen Yarborough, 6 La. Ann. 258; Tarver vs. Winn, 18 La. Ann. 558; Benson vs. Wilkinson, 142 La. 277, 76 South. 711; Roper vs. Elizabeth, 12 La. Ann. 409.

Judgment amended by granting plaintiff five per cent per annum interest on one hundred and sixty dollars from October 27th, 1923, till paid, and as thus amended that the judgment be affirmed.


author: MOUTON, J.

text:
    No. -
    First Circuit
    MAUMUS v. WILSON
    (May 3, 1927. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Taxation—Par. 326, 330, 333, 341, 377.
    A tax sale of property assessed in the name of A, but owned and paid by B, is an absolute nullity, because taxes had been previously paid and the prescription of three years does not apply.
    Appeal from the Parish of Iberia. Hon. James D. Simon, District Judge.
    Action by Achill'e J. Maumus against Jules Wilson, et al.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed.
    Burke & Smith, of New Iberia, attorneys for plaintiff, appellee.
    Weeks & Weeks, of New Iberia, attorneys for defendant, appellant.
   MOUTON, J.

Lot No. 10, of Block 3, of Smith’s addition, situated in the city of New Iberia, was sold as the property of Joe Wilson for the delinquent taxes of 1913. The property was adjudicated to plaintiff on June 13, 1914, at tax sale.

He brings this suit for the ownership of the property against defendants, who, he alleges, are in possession thereof.

Several nullities are leveled by defendants against the validity of the sale which, under a plea of the constitutional prescription of three years filed by plaintiff, the court below held had been cured by that prescription. Judgment was rendered for plaintiff, from which defendants appeal.

The property was originally acquired by Annette Thomas, wife of Jules Wilson, from Aglia Thomas and others, on December 6, 1900. On the day she acquired it, Annette Thomas sold it to Felix Leblanc, from whom she reacquired in December, 1902. She thereafter sold it in 1902 to Max Mattes, specially reserving in the deed the right to redeem the property within two years from the date of sale, of which, she did not avail herself. Max Mattes, January 11, 1913, sold it to Joseph Wilson for $400.00, of which $300.00 was paid' cash, the vendor retaining a mortgage to> secure the balance of the purchase price. Jos. Wilson, to whom Mattes sold, was a son of Annette Thomas and Jules Wilson. Jos. Wilson, after he had acquired, lived on this property with his mother until 1916, when he left New Iberia for Galveston, where he died the same year. Annette Thomas continued to live on the property until 1924, dying in that year. Her husband, Jules Wilson, is also deceased. Th.e defendants, who are the brothers and sisters of Joe Wilson, deceased, are the heirs, of Annette Thomas.

The parish and state taxes, as appears from the receipts, were paid by Annette Thomas and the defendants from 1916 to 1923, and taxes to the city of New Iberia from 1914 to 1923.

The tax rolls show that the property was assessed to Annette Thomas in 1912 and 1913. The district judge, in his written opinion, says that the supplemental roll 'carried the name of Annette Thomas-with the said property described to her. He says it is also shown that Annette Thomas paid the taxes assessed thereon, this, preceding th.e tax sale in the name of Joe Wilson. The record amply supports this finding of the lower court that the properpty had been assessed in 1913 to Annette .Thomas, and that she had paid the taxes for that year and prior to the tax sale in the name of Joe Wilson to plaintiff herein.

Cooley, on Taxation, second edition, says:

“A government has no inherent right to deprive the citizen of his property except in pursuance of regular and lawful proceedings, and for a lawful demand; a sale of lands will be void if they were not liable for the tax; and so it will be if made for a tax legally assessed but which in some lawful manner has been discharged.” P. 69.

On page 450 he says:

“If the owner, or any other person entitled to make payment of a tax, shall do so, the lien shall not only be thereby absolutely discharged, but authority to proceed further against the property will be at an end.”

And in speaking of those who are entitled to make payment, he says, would include anyone who may have been “assessed for the tax”, and any others whose interests would be affected by the sale. He even inclines to the opinion that any volunteer may pay the tax if he chooses. Here, it is clearly shown that Annette Thomas had been assessed for the year 1913; that the property was sold for the payment of the taxes of that year, and that she was vitally interested in paying the tax. It is therefore obvious that the sheriff was without authority to sell the property in 1914, for the taxes which had been paid, conceding for the sake of argument that the property belonged at the time to Joe Wilson, and had been properly assessed to him. The fact that such a sale is null is recognized in a clear cut and vigorous opinion in Mecom vs. Graves, 148 La. 369, 86 South. 917, in which the court said:

“It is well settled that a sale made for taxes, a part of which were previously paid, no matter by whom, is absolutely null and is not protected by the prescription of three years.” Citing several decisions on the subject.

Besides recognizing the doctrine that a tax sale is absolutely null when the tax has been previously paid, and no matter by whom, the court held that the purchaser was not protected by the prescription of three years. The defendants being in possession, .as appears by the allegations of plaintiff’s petition, and by the evidence of record, and as plaintiff has failed to show an apparently valid title in himself, the judgment must be reversed and the demand of the plaintiff dismissed.

It is therefore ordered, adjudged and decreed that the judgment appealed from be avoided and reversed; and it is further ordered and decreed that the demand of the plaintiff be dismissed at his cost in both courts.


text:
    No. 10,910
    Orleans
    COMIRE, Appellant, v. SCHIRO AMUSEMENT CO.
    (May 23, 1927. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Appeal—Par. 357.
    An appeal may be taken by motion at a term subsequent to the one at which the judgment was rendered; but in that case citation- is essential.
    '2. Louisiana Digest — Appeal — Par. 360, 364; Clerks of Courts — Par. 8, 9.
    While it may be the duty of the clerk to issue citations of appeal taken by petition without a prayer for citation because the law in such a case requires a citation, it is not his duty to issue citation in an appeal taken by motion, without a prayer for the same, because, as a rule, the law does not require citation in appeals taken by motion.
    3. Louisiana Digest — Appeal — Par. 357, 360, 375.
    When the law requires citation of appeal the appellant must pray for it, and designate the parties to be cited, or, for want of citation, the appeal will be dismissed.
    4. Louisiana Digest — Appeal — Par. 364, 375.
    The appeal will be dismissed when it is the fault of the appellant that the citation did not issue or was not served.
    5. Louisiana Digest — Costs and Fees — Par. 68.
    It is the duty of the appellant to advance the costs of citation of appeal to the clerk and to the sheriff.
    Appeal from Civil District Court. Hon. Mark M. Boatner, Judge.
    Action by Mrs. G. B. Comire against Schiro Amusement Company.
    There was judgment for defendant and plaintiff appealed.
    Appeal dismissed.
    Jas. G. Schillin and Macheca, of New Orleans, attorneys for plaintiff, appellant.
    Harry McEnerny, of New Orleans, attorney for defendant, appellee.
   CLAIBORNE, J.

On June 11, 1926, judgment was rendered herein in favor of the defendant and' against the plaintiff, rejecting her demands.

On February 9, 1927, plaintiff, by motion, obtained an order of appeal returnable to this court on March 7, 1927.

By an order rendered by this courtt on March 7, 1927, the return day was extended to April 7, 1927.

Plaintiff, appellant, filed his transcript in this court on March 10, 1927.

The defendant and appellee moved to dismiss the appeal .“for the reason that the appeal was taken at a new term of court, and was taken by an ex parte motion and not by petition and citation as the law requires”.

The point of practice thereof is: Can an appeal be taken by motion “at a term of court subsequent to the term at which the .judgment was rendered”?

Rule V, Sec. 1, of the Civil District Court for the Parish of Orleans, p. 6, provides as follows:

“The judicial year of the Civil District Court for the Parish of Orleans shall commence on the fifteenth day of October in each calendar year and end on the fourteenth day of October in the next calendar year. The term of the court shall begin on October fifteenth of each calendar year, on which day the court shall be opened for the transaction of all business within its jurisdiction, and shall end on the thirty-first day of July following.” Smith vs. O’Reilly Elevator Co., 134 La. 636, 64 South. 494.

It is therefore evident that the motion for an appeal, February 9, -1927, was not made at the same term at which the judgment was rendered, June 11, 1926.

The articles of the Code .of Practice governing this motion to dismiss are the following, as amended by Act 64 of 1843, R. S., Sec. 29:

Art. 373: “Whoever intends to appeal, may do so either by petition, or by motion in open court at the same term at which the judgment was rendered, etc.”

Art. 574: “And when the appeal has been granted upon motion in open court the judge shall fix the amount of security and cause the same with the order granting the appeal to'be entered upon the minutes of -the court; and in such case, no citation of appeal or other notice to appellee shall be necessary.”

Interpreting these two articles, the Supreme Court has said in a number of cases that an appeal may be taken by motion at a subsequent term; but in that case citation was essential.

In the leading ease of Prudhomme vs. Edens, 6 Rob. 64, decided in 1845, the Supreme Court, in interpreting the Act of 1843, said:

“Where an appeal is applied for after the term of the court at which judgment was rendered, it should be’by petition, as required by Article 573 of the Code of Practice, and not by motion. But where an appeal has been allowed under such circumstances on motion, and citation has been duly served and the other requisites complied with, it will not be dismissed for such irregularity.”

This opinion has been followed in De St. Avid vs. Pichot, 3 La. Ann. 6; Cuddy vs. Belleville Iron Works Co., 4 La. Ann. 582; State vs. Judge of Sixth District Court, 21 La. Ann. 733; Mayville Canal Co. vs. Lake Arthur Rice Milling Co., 119 La. 449, 44 South. 260.

It is therefore settled jurisprudence that an appeal may be taken by motion at a term subsequent to the one on which judgment was rendered. But this interpretation prevails only on the condition that the appellant shall pray for citation upon the appellee and that the latter shall he cited.

In this case the appeal was taken hy motion. This motion does not contain any prayer or order for citation by the clerk, nor does it appear that appellant made any effort to see that appellees should be cited, by any request to the clerk or sheriff, or by advancing the necessary costs.

But it is said that it is the duty of the clerk to issue citations without any request on the part of the appellant. It has been sometimes so held when there is only one appellee. Connolly vs. Adams, 4 La. Ann. 354; Barton vs. Kavanaugh, 12 La. Ann. 332; Wood & Roane vs. Wood, 32 La. Ann. 801; Vredenburg vs. Behan, 32 La. Ann. 561; McCutchen vs. Hudson, 132 La. 183, 61 South. 157.

And as a general rule, Guion, Beck vs. Brown, 6 La. Ann. 112; Plauche vs. Marigny, 6 La. 112 (115); Lambeth vs. Vawter, 6 Rob. 130; 3 La. Ann. 769; Jones vs. Jackson, 22 La. Ann. 112.

Or when the appeal is taken by petition when citation is necessary. Schmitt vs. Drouet & Rabasse, 42 La. Ann. 716, 7 South. 746.

But when the appeal is taken by motion the clerk is not supposed to know that a citation is necessary because, as a rule, the law does not require citations in appeals by motion. De St. Avid vs. Pichot, 3 La. Ann. 7; McCutchen vs. Hudson, 132 La. 184, 61 South. 157.

But the great majority of decisions, and the later and better ones, have held that where the law requires citation of appeal, the appellant must pray for it and designate the parties to be cited, or for want of citation the appeal will be dismissed. De St. Avid vs. Pichot, 3 La. Ann. 6; Walker vs. Mertols, 16 La. 50; Gibson vs. Selby, 3 La. Ann. 318; McCarthy vs. Lewis, 5 La. Ann. 115; Bolling vs. Anderson, 10 La. Ann. 650; Schmidt vs. Benit, 17 La. Roth vs. Hebert, 21 La. Ann. 238; Potier vs. Thibodeau, 21 La. Ann. 618; Dupuy vs. Arceneaux, 21 La. Ann. 629; State vs. Mount, 21 La. Ann. 755; Scott & Co. vs. Seelye, 27 La. Ann. 95; In re Wallace, 31 La. Ann. 334; Fournet vs. Van Wickle, 33 La. Ann. 1108; Delay vs. N. O. Land Co., 127 La. 724, 53 South. 970; Cuddy vs. Belleville Iron Works Co., 4 La. Ann. 582; Smith vs. O’Reilly Elevator Co., 134 La. 635, 64 South. 494; Levert vs. Shirley Planting Co., 135 La. 209, 65 South. 111; King vs. First Methodist Church, 137 La. 879, 69 South. 593; Hanson Lbr. Co. vs. Breaux, 137 La. 272, 68 South. 607; McCutchen vs. Hudson, 132 La. 177, 181, 185, 61 South. 157; McGaw vs. O’Bierne, 124 La. 990, 50 South. 819; Succ. of Treadwell, 38 La. Ann. 260; Wheeler & Pierson vs. Peterkin, 38 La. Ann. 663; Troustine 6 Co. vs. Ware, 39 La. Ann. 939; Schmitt vs. Drouet & Rabasse, 42 La. Ann. 716, 7 South. 746; Succ. of Mascari, 105 La. 322, 29 South. 718; Salles vs. Jacquet, 106 La. 643, 31 South. 153; Succ. of Le Sage, 112 La. 858 (861), 36 South. 759.

The appeal will be dismissed when it is the fault of the appellant that the citation did not issue or was not served. Perillat vs. Tiffany, 2 Mart. (O. S.) 134; Moran vs. LeBlanc, 6 La. Ann. 114; Burroughs vs. Nettles, 7 La. 113; Bridge & Vose vs. Merle, 7 La. 449; Louise vs. Marot, 9 La. 473; Grappe vs. Robinson, 10 La. 398; Hutchiss vs. Dodd, 10 La. 539; Percy vs. Millaudon, 12 La. 271; Cuny vs. Robert, 12 La. 474; Robert vs. Ride & Mairot, 11 La. Ann. 409; Folger vs. Rouanet, 13 La. 296; Cummings vs. Erwin, 14 La. Ann. 315; Tupery vs. Deffarge, 19 La. Ann. 296; Clark & Brisbin vs. Bouvain & Ermon, 20 La. Ann. 70; Hartin vs. Taylor & Pinckard, 21 La. Ann. 303; Eclipse Towboat Co. vs. Pontchartrain R. R. Co., 24 La. Ann. 11; Stevenson vs. Edwards, 24 La. Ann. 266; Schmitt vs. Drouet & Rabasse, 42 La. Ann. 716, 7 South. 746; McCutchen vs. Hudson, 132 La. 178, 61 South. 157; Ratliff vs. Creditors, 14 La. 292; Delery vs. Savenat, 15 La. 214; Kellog vs. Clark, 15 La. 362; Drew vs. Atchison, 3 Rob. 140; Dolliole vs. Azema, 4 Rob. 424; Duggan vs. De Lizardi, 5 Rob. 224; Hermann vs. Rivers, 9 Rob. 2; Cuddy vs. Belleville Iron Works Co., 4 La. Ann. 582; Courtney vs. Hunt, 5 La. 174.

Act 53 of 1839, p. 162, Sec. 19, C. P., 898, the statute-of Jeofail, does not cure failure to pray for citation. Christensen vs. Stumpf, 16 La. Ann. 50; Succession of Treadwell, 38 La. Ann. 260.

It is the duty of appellant to advance the costs of citation of appeal to the clerk and to the sheriff., Lambeth vs. Vawter, 6 Rob. 131; Schmitt vs. Drouet and Rabasse, 42 La. Ann. 717, 7 South. 746; Davis vs. Ruddock Orleans Cypress Co., 132 La. 995, 62 South. 114; Marable vs. Barhan, 137 La. 254; 68 South. 440.

Specially since Section 2 of Act 136 of 1880 and acts amendatory thereof.

*The omission of appellant to ask for citation of appeal and to have it served on appellee when the order of appeal, has been granted on motion in open court at a term different from that on .which, the judgment was rendered, is fatal to the- appeal, which must be dismissed.” Wheeler & Pierson vs. Peterkin, 38 La. 663; McCutchen vs. Hudson, 132 La. 178, 61 South. 157; Smith vs. O’Reilly Elevator Co., 134 La. 635, 64 South. 494.

The appellee did not move for the dismissal of the appeal upon the ground that no citation of appeal had issued or had been served. He only suggested it upon the argument of the motion to dismiss heretofore considered.

Appellee contends that the suggestion comes too late, that it should have been made within three days of the filing of the transcript or of the return day.

It has been held that the court will notice, ex officio, the want of citation to necessary parties, and will dismiss the appeal; a motion to dismiss for want of citation may therefore be made at any time. Robert vs. Ride & Mairot, 11 La. Ann. 409; Simmons vs. His Creditors, 12 La. Ann. 755; Condon vs. Samory, 12 La. Ann. 801; Wells vs. Addison, 20 La. Ann. 296; Martin vs. Taylor & Pinckard, 21 La. Ann. 303; Marcy vs. Citizens Mut. Ins. Co., 21 La. Ann. 429; Potier vs. Thibodeau, 21 La. Ann. 618; Sittig vs. Littell, 21 La. Ann. 646; Baird vs. Russ, 33 La. Ann. 920; Cockerham vs. Bosley, 52 La. Ann. 65, 26 South. 814; McCutchen vs. Hudson, 132 La. 177 (181), 61 South. 157; In re Great Southern Lbr. Co., 132 La. 995, 62 South. 117; Hanson Lbr. Co. vs. Breaux, 137 La. 272, 68 South. 607.

It is immaterial at what time a motion to dismiss an appeal for want of necessary parties is filed, or where they are not in fact cited, there is no prayer' for citation, and they fail to appear, whether it is filed at all, for, without such parties, there can be no final judgment, and this court is therefore bound, in disposing of the case, to take notice of their absence, and if failure to cite them be attributable to the fault of the appellant, must, ex proprio motu, dismiss the appeal. McCutchen vs. Hudson, 132 La. 177, 61 South. 157.

This appeal is therefore dismissed.


text:
    No. 9647
    Orleans
    POWELL, Appellant, v. CAVANAGH
    (February 28, 1927. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Corporations — Par. 141, 143.
    After property of a corporation has been seized and sold under a mortgage granted by the corporation and bought in by the seizing creditor, the president of the Corporation, in the absence of fraud, may validly acquire the property from the seizing creditor by purchase or otherwise.
    Appeal from Civil District Court, Division “D”. Hon. Porter Parker, Judge.
    Action by F. A. Powell against John W. Cavanagh.
    There was judgment for defendant and plaintiff appealed.
    J udgment. affirmed.
    Alexis Brian, of New Orleans, attorney for plaintiff, appellant.
    A. D. Danziger, of New Orleans, attorney for defendant, appellee.
   CLAIBORNE, J.

This is a suit to establish the ownership of property.

Plaintiff alleged that he was a judgment creditor of the New Orleans Homesite Co. in the sum of $1975.09; that there is no property standing in its name; that the defendant herein, Cavanagh, is the president of said company; that in August, 1917, the said company, through the said Cavanagh, mortgaged for $1000 Lots 1 to 4 and Lots 25 to 26 of Square No. 855; that the Hibernia Bank, the holder of said mortgage, seized said lots and became the adjudicatee thereof at sheriff’s sale; that thereupon Cavanagh obtained an agreement with said bank by which the bank would sell certain lots through Cavanagh and would transfer to him the remainder of said lots after it had been reimbursed the amount of its claim; that in accordance with said' agreement the bank subscribed the following document:

“Before me, the undersigned authority, Albert E. Moulin, a notary public, in and for this parish and state, duly commissioned and qualified, and in the presence of the witnesses hereinafter named and undersigned, personally came and appeared: The Hibernia Bank and Trust Co., a legal corporation of this city and state, herein appearing through and represented by its vice-president, Mr. Fred W. Ellsworth, acting under a resolution of the board of directors of said company, a duly certif’o copy whereof is hereto annexed, which said appearer declared that the said Hibernia Bank and Trust Co. became the adjudieatee of the hereinafter described property by virtue of a sheriff’s deed in the matter o£ the Hibernia Bank and Trust Co. vs. N. O. Homesite Co., No. 137,279 of the docket of the Civil District Court, whicn property is described as follows: (Then follows the description of Lots 1, 2, 3, 4, 25 and. 26 of Square 855), and the said appearer declared that the said property was acquired by said bank to secure certain indebtedness to - it by' Mr. John W. Cavanagh, of age and resident of this city, that by a sale of a portion of said property, viz., said Lots 1, 2, 3 and 4 of Square 855, the said Hibernia Bank has no further interest in and to the remainder of said property; Now, therefore, the said Hibernia Bank and Trust Co. through its said appearer does hereby declare that the title to the property known as (then follows a description of Lots 25 and 26 of Square 855 and Lots 18 and 19 of Square 579) stands in its name, but in truth and fact, the said property belongs to the said John W. Cavanagh, and the said Hibernia Bank and Trust Co. executes this acknowledgment to serve as circumstances may justify. In faith whereof, said appearers sign these presents on this 25th day of October, 1922, in the presence o£ Arthur Steiner and Sadie Keegan, competent witnesses, who have also signed their names hereto, after due reading of the whole.
“Original signed:
“F. W. ELLSWORTH, Vice-Pres.; “JOHN W. CAVANAGH,
“ALBERT E. MOULIN,
“ARTHUR STEINER,
“SADIE KEEGAN,
“ALBERT E. MOULIN,
“Not. Pub.”

Plaintiff further alleged that since said date Cavanagh had sold to third persons all of said lots except Lots Nos. 25 and 26 of Square 855; that it appears by said act that the consideration of said transfer was a debt due by Cavanagh to the bank secured by mortgage upon property of the Homesite Co., and that when Cavanagh received title to said lots from the bank, he received the same for the benefit of the Homesite Co.; that taking title in his own name was for the purpose of defrauding the plaintiff as judgment creditor; and that such action constituted a fraudulent simulation, and that said lots would be declared the property of the company and subject to sale by plaintiff.

Plaintiff also claimed Lots 10 to 16 in Square 678 on Claiborne street and Lots 24 and 25, part of Lot 23, in Square 456 on Egania street, and a portion of ground situated in Square 462 on Deslonde street, of which Cavanagh illegally divested the Homesite Co. by proceedings in the name of Mr. Dreyfous.

John W. Cavanagh and the N. O. Home-site Co. were made defendants.

They admitted the mortgage and its foreclosure and the adjudication of the property to the bank; they denied that the property was adjudicated to the bank for account of Cavanagh but alleged that the bank transferred the lots to Cavanagh in payment of his services in selling the remainder of the lots many months after the foreclosure so that the bank suffered no loss in connection with said loan.

There was judgment in favor of defendants and the plaintiff has appealed.

A number of credible witnesses testify to the absolute correctness of all transactions detailed in plaintiff’s petition and the absence of any collusion or fraud on the part of the Hibernia Bank and Trust Co., of Felix J. Dreyfous, and defendant, John W. Cavanagh. These witnesses are corroborated by the records in the different suits against Cavanagh and the New Orleans Homesite Co. The facts established by them are that the bank and Felix J. Dreyfous were holders of mortgage notes drawn by the Homesite Company; that these notes had been pledged to the bank by Cavanagh to secure the payment of his own notes, and that Dreyfous had loaned the money to the Homesite Co.; that the bank and Dreyfous foreclosed on those notes and bought, in the property mortgaged; that after the adjudication to them they employed Cavanagh to sell the property; that after Cavanagh had sold a sufficient number of lots to pay the bank’s claim, a compensation or commission to him, they transferred to him the remaining lots by the counter letter copied above; that Dreyfous sold the lots to Cavanagh for $5500, of which $1000 was paid in cash and the balance, in a note of $4500, constituting a price sufficient to pay Dreyfous’ claim. The bank and Dreyfous both deny that they had any agreement of any character with Cavanagh prior to the sale, or that they sold the properties to Cavanagh for the benefit of the Homesite Company.

There is no evidence or suspicion as to the regularity of the entire proceedings.

It is expressly disclaimed that Cavanagh was not the owner of the notes of the Homesite Company pledged by him to the bank, or that the bank or Dreyfous’ possession of the mortgage notes was irregular.

The cases relied on by plaintiff, Cochran vs. Ocean Dry Dock Co., 30 La. Ann. 1366; Hibernia Bank & Trust Co. vs. Cancienne, 140 La. 974, 74 South. 267; Alcodea vs. Smith, 150 La. 482, 90 South. 769, have no application to this case.


author: REYNOLDS, J.

text:
    No. 2297
    Second Circuit
    ABELES & CO. v. ROBINSON-SLAGLE LUMBER CO.
    (April 8, 1927. Opinion and Decree.)
    (May 13, 1927. Rehearing Refused.)

      (Syllabus by the Cowt)

    1. Louisiana Digest — Obligations—Par. 160, 162.
    If the promissor has made default in performance, with respect to the time thereof, and the promisee subsequently permits or urges him to continue performance, or accepts performance thereafter, or accepts payments made in performance, or otherwise treats such contract as still in force, such breach is waived.
    Page on Contracts, Sec. 1502, page 2312.
    2. Louisiana Digest — Obligations—Par. 160, 162.
    Where the buyer has waived seller’s breach of contract in delaying to make shipment, by accepting performance after default in respect to the time thereof, buyer could not thereafter recover for such breach of contract, where the seller had not further breached the contract after such waiver.
    Tremont Lumber Co. vs. Robinson Lumber Co., 160 La. 254, 105 South. 101.
    Appeal 'from the First Judicial District Court of Louisiana, Parish of Caddo. Hon. E. P. Mills, Judge.
    Action by Charles T. Abeles & Company against Robinson-Slagle Lumber Company, Inc.

      There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Dimick & Hamilton, of Shreveport, attorneys for plaintiff, appellee.
    F. C. Thatcher, of Shreveport, attorney for defendant, appellant.
   STATEMENT OF THE CASE

REYNOLDS, J.

'Plaintiff sued defendant to recover $316.00 with legal interest thereon from November 1, 1923, until paid, as the price of certain doors sold and delivered by it to defendant.

Defendant admitted the purchase and-delivery, but alleged that the price was f.o.b. Shreveport; that the transportation charges on the shipment were $14.92; that it had paid this amount to the'carrier and was entitled to credit therefor on the account sued on.

And, assuming the character of plaintiff in reconvention, it claimed damages in the sum of $.125.00 with legal interest thereon from October 1, 1923, until paid, for alleged breach of contract in time of delivery on the part of plaintiff.

It avers that plaintiff contracted to ship the doors on September 15, 1923, and did not ship them until October 6, 1923; that it sold and contracted to deliver the doors not later than October 1, 1923, and that, owing to plaintiff’s failure to ship promptly, it was unable to make delivery to its own customer within the time promised,' and thereby its customer incurred damages in the sum of $125.00, which defendant had paid.

Plaintiff entered a remittitur for the $14.92, thus reducing the amount of its claim to $301.08.

On trial in the District Court judgment was rendered in favor of the plaintiff for $301.08 with legal interest thereon from October 1, 1923, until paid, and defendant appealed.

OPINION

The credit of $14.92, freight charges, claimed by defendant having been allowed, the only matter remaining for decision is defendant’s claim for $125.00 damages sustained by it through plaintiff’s failure to deliver the doors within the time contracted.

Plaintiff contends that defendant waived its breach of contract and consequently any claim for damages. resulting therefrom by demanding and accepting delivery of the doors from it after expiration of the time for their delivery.

According to the contract the doors were to have been shipped on September 15, 1923.

On September 19, 1923, four days after time for shipment had passed, defendant wrote plaintiff:

“Some time ago we placed with you an order for some veneered doors which on more than one occasion you advised positively you would ship on September 15.
* * * *
“Not only • is there a financial loss to our customer but he also feels that we have not done our duty as he placed the order with us in good faith to be delivered to him on time long before the first of October, and we feel we are going to.lose one of the best customers the writer has ever had and one who has been a constant customer of his for the past twenty-five years, and we are going to ask as a special favor of your Mr. Abeles to see that these doors are rushed through without any further delay.”
(Italics ours.)

On September 28, 1923, plaintiff wrote defendant:

“* * * We have finally decided to manufacture these doors in our own mill — in fact, we have already begun working on them. We realize that same have been unduly delayed, and, therefore, your order is given preferred attention over any orders on our books and will be completed the latter part of next week. * * *”

To this letter defendant replied on October 1, 1923:

“* * * Would be pleased to have you advise us by return mail whether or not we may place any dependence in your promise to ship on October 6th. In order that there there may not be any delay, kindly ship this car via Mo. Pac., care T. & P., which is the most direct. route.”

On October 2, 1923, plaintiff wired defendant :

“Will ship veneered doors Saturday without fail. In order that there can be no mistake please mail us copy of detail today to check our working sketch. Important.”

And on October 4, 1923, plaintiff wrote defendant:

“We are in receipt of your letter dated October 1, in reference to your order for veneered doors, and wish to state that you can rely on our promise for shipment, by Saturday, October 6th. This order has been given preference • over all others in our mill, as we realize that we are in somewhat of a predicament due to the fact that we could not secure them from our factory connection. We are going to give you immediate shipment on Saturday and will follow through to destination, as we appreciate that you are in urgent need of same.”

The doors were delivered to the carrier for transportation to defendant on October 6, 1923, and were delivered to the defendant by the carrier on October 13, 1923.

Defendant having, after September 15, 1923, urged delivery, as shown by the letters and telegrams quoted from, and having accepted delivery from the carrier on October 13, 1923, it thereby waived plaintiff’s breach of contract to deliver pn September 13, 1923, and cannot recover damages for the breach.

“Where buyer had waived! seller’s breach of contract in delaying to make shipment, buyer could not thereafter recover for such breach of contract, where seller had not further breached the contract after such waiver.”

Tremont Lumber Co. vs. Robinson Lumber Co., 160 La. 254, 105 South. 101.

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


text:
    No. 2860
    Second Circuit
    GOLDSBY v. LOWREY
    (April 8, 1927. Opinion and Decree.)
    (May 13, 1927. Rehearing Refused.)

      (Syllabus by the Court)

    1. Louisiana Digest — Automobiles—Par. 8.
    Physical facts speak for themselves and are entitled to great weight in determining the circumstances connected with a collision between two automobiles on a public highway; but the conclusions of witnesses based on the examination of markings made by automobile tires on the graveled road are not sufficient to overcome the positive testimony of unimpeached witnesses who were present in the collision and testify to facts seen by them as they happened.
    2. Louisiana Digest — Appeal—Par. 625.
    Findings of fact by a trial court will not be disturbed on appeal unless manifestly erroneous.
    3. Louisiana Digest — Parent and Child— Par. 12.
    Fathers and mothers are answerable for-the offenses and quasi offenses committed by their minor children.
    Civil Code, Art, 237.
    4. Louisiana Digest — Minors — Par. 177, 178, 180.
    An exception to the right of plaintiff to maintain an action in her own right and • as natural tutrix of her. minor child, on the ground that she is under the age of 18 years and married without the consent of her parents, is properly overruled where, before trial of the exception, plaintiff was duly emancipated as provided by law and proof of such emancipation is made. Mullen vs. Gause, 161 La. 461, 109 South. 31.
    Appeal from the Eleventh Judicial District Court of Louisiana, Parish of DeSoto. Hon. Hal. A. Burgess, Judge.
    Action by Mrs. Opal Goldsby, et al„ against John W. Lowrey.
    There was judgment for plaintiffs and defendant appealed.
    Judgment affirmed.
    Pegues & Pegues, of Mansfield; Barks-dale, Bullock, Warren, Clark & Van Hook, of Shreveport, attorneys for plaintiffs, ’ appellees.
    Lee & Bell; Lee & Williams, of Mansfield; Craig, Bolin & Magee, of Shreveport, attorneys for' defendant, appellant.
   STATEMENT OF THE CASE

REYNOLDS, J.

This is a suit by Mrs. Opal Goldsby, widow of Lawton Goldsby, deceased, in her own behalf and as natural tutrix of her minor child, Ralph Goldsby, issue of her marriage with Lawton Goldsby, deceased, to recover damages in the sum of $10,000.00 for herself and $10,000.00 for said minor, from the defendant, John W. Lowrey, growing out of a collision between an automobile driven by defendant’s minor son, Jack Lowrey, and an automobile driven by the deceased, Lawton Goldsby, on a public highway in DeSoto parish, and in which collision the deceased, Lawton Goldsby, received injuries 'that caused his death.

The collision is alleged to have been the result of gross negligence on the part of defendant’s minor son.

The damages are itemized as follows: Por the pain and suffering endured hy the deceased from his injuries, $4448.00; loss hy Mrs. Goldsby of the love and support of her husband, $7283.33; loss by the minor, Ralph Goldsby, of the love and care of his father, $7561.83; value ' of automobile destroyed by the collision, $433.34; and medical and funeral expenses for the deceased, $278.50.

Plaintiff alleges that the proximate cause of the collision was the fast and reckless driving by defendant’s minor- son, Jack Lowrey, in a Hudson automobile on his, the driver’s left-hand side of a public road known as the Bayou Pierre Road, at a point about seven miles from Mansfield on May 13, 1925.

Defendant filed an exception to the capacity of the plaintiff , to stand in judgment, on the ground that at the time the suit was filed she was an unemancipated minor under the age of 18 years, and had been married to the deceased without the knowledge or consent and against the wishes of her parents.

On trial of this exception the plaintiff introduced in evidence a notarial act signed hy the parents of the plaintiff, dated December 8, 1925, and recorded December 9, 1925, emancipating plaintiff from all the disabilities of minority.

Defendant objected to the admission of the act in question on the ground that it did not confer upon plaintiff the right to sue or be sued and that if it did so then it could not relate back to the bringing of the suit so as to remove her then want of capacity to stand in judgment.

The exception to plaintiff’s .capacity to sue was overruled and defendant excepted.

Thereupon defendant filed an answer de.nying that at the time of the collision his son was driving his automobile recklessly or carelessly and denying that any act of his son was the proximate cause of the collision and alleged that the collision was caused by the driving by the deceased, Lawton Goldsby, of his own automobile unskillfully and on his own left-hand side of the road.

On these issues the case was tried and there was judgment in favor of Mrs. Opal Goldsby individually for $4217.77 and in her favor as natural tutrix of Ralph Goldsby for $4217.77, and the defendant appealed. Plaintiff has answered the appeal and asked that the judgment be increased to $15,000.00.

OPINION

EXCEPTION OE WANT OP CAPACITY TO SUE

The exception to plaintiff’s capacity to stand in judgment was properly overruled, for the reason that it appears from the evidence adduced on the trial of the exception that after the. exception was filed plaintiff had been duly emancipated from all the disabilities of minority by notarial act executed by her father and mother.

The emancipation removed the defect at which the exception was levelled.

“Minor, who attained majority during pendency of appeal and continued prosecution of suit in his own right, held to have cured lack of authority, if any, under Civil Code, Article 221, as amended by Act 252 of 1920, of mother who brought suit in his behalf.”

Mullen vs. Gause, 161 La. 461, 109 South. 31.

ON THE MERITS

The first question to he decided in the proper determination of the case is the point at which the automobiles came in contact with each other.

As to this, Mrs. Goldsby, Mr. and Mrs. Stone, and Aubrey Goldsby, who, with the deceased, Lawton Goldsby, constituted the occupants of the Ford automobile that collided with the Hudson automobile driven by defendant’s son, testified positively that the car in which they were riding was on the extreme right-hand side of the road, going towards Mansfield, and within from twelve to fourteen inches of the embankment on the right-hand side of the road in the direction in which they were traveling.

Their testimony as to this fact was accepted as true by the trial judge who, in his reasons for judgment, said, as to this:

“In considering the testimony of the plaintiff: Lloyd Stone, on page 59 of the evidence, testified that just as they were on top of a hill beyond where the collision occurred, that he saw the Hudson coming down the road at an excessive rate of speed; and that he called Lawton Goldsby’s attention and warned him to he careful. That Lawton Goldsby at once cut off his motor and coasted down the hill and steered his car over to his extreme right side of the road and was running between ten and fifteen miles per hour near or about twelve inches of the ditch. That just before they had reached the top of the hill coming this way, Jack Lowrey struck them with the Hudson, which seemed to be going between fifty .and sixty miles per hour. Aubrey Goldsby, who was riding on the front seat, stated that he did not see the Hudson until it was right upon them, but it was running very fast. Mrs. Lloyd Stone testified that she heard the conversation between her husband and the deceased, and that Lawton Goldsby had complied with the request and had turned to his right side of the road and was approaching the top of the hill at a slow speed. She is certain that the Hudson, which was seen by her just before the contact, was running very fast, and that they were struck by the Lowrey car. See evidence, pages 89 and 90. Mrs. Opal Goldsby, on page 121 of the evidence, supports the testimony of the other witnesses in regard to the conversation that was had between Stone and her husband. She stated that they were running very slow and on the right side of the road and that her husband had complete control of his car at the time it was struck by the Hudson, which was running very rapidly.”'

The testimony of the four named witnesses that, the Ford car was driven by plaintiff’s husband, was on the right-hand side of the road in the direction ^in which they were traveling at the time of the collision is corroborated by the fact that the contact between the two automobiles was not a head-on collision as to either automobile.

If, as contended by defendant, the automobiles were approaching each other, both on the same side of the road, the collision would have been a “head-on” one;

As to this, the trial judge said in his written opinion:

“If Goldsby had been on his wrong side and the two cars approached as defendant contends, should they have met where they did, the impact would have been by the front end of both cars, as they would have almost formed the letter Y. The evidence of plaintiff and defendant with the pictures taken together show that Goldsby could not have been on the wrong side in malting that curve. See the pictures where the beaten path of travel is shown. The center of the road at this point is where people drive, and it is. not cut, as most curves are, because it can’t be done.”

The testimony of Mrs. Goldsby, Mr. and Mrs. Stone and Aubrey Goldsby is further corroborated by the fact that pieces of glass, pieces of fishing-pole, a crutch of the deceased, and the two automobiles landed on the right-hand side of the road going to Mansfield, and by the further fact that a tire from the Ford automobile was thrown twenty-five feet to the right on the same side of the road, and that Aubrey Goldsby was thrown out of the automobile and outside of the trees on the right-hand side of the road.

Defendant sought to overcome the force of this testimony by that of thirteen witnesses to the effect that defendant’s car was on the right-hand side of the road in the direction in which it was moving just prior to the collision.

This, in our opinion, is a fact, but it does not disprove the testimony of plaintiff’s witnesses as to the point where the collision happened; for all of the witnesses, those of defendant as well as those of plaintiff, who testified on this point agree that defendant’s car skidded to its left when it reached the twelve per cent curve in the road at the top of the grade near the point of collision.

Usually when an automobile begins to skid it turns half-way around unless it is prevented from doing so by striking some obstacle, and the occupants of the car skidding cannot tell the distance it has skidded, nor can that distance be ascertained from the markings of the automobile tires on a much traveled graveled road.

Jack Lowrey testified, pages 405, 406, 407.

“Q. Do you not know that that would necessarily throw the rear of your car considerably to the left, when you applied the brakes, going around a right-hand curve.
“A. It would, to a certain extent, yes, sir.
^ ‡
“Q. Did you turn it sharp to the right and run into the bank?
“A. I don’t think it hit the bank; it might have scraped the bank; when I got the front end past his car I turned the wheels to get the back end by; cut the wheels toward the center of the road.,
$ * * $
“Q. Now, where do you know that the car began to skid?
“A. Well, I don’t know exactly. I would say just about the mail boxes or probably a little on the other side.
“Q. Did it skid any before you got to the mail boxes?
“A. No, sir.
“Q. Did you have the brakes applied before you got to the mail boxes?
“A. I don’t think; no, sir.
“Q. When you applied your brakes was it after reaching the mail boxes, after you were going around the curve and down the hill to your right?
“A. That is correct.
“Q. Then you had no skidding of your car before you passed the mail boxes, is that correct?
“A. I think so.
“Q. How far did it skid, when you put the brakes on, before you got to the extreme bank of the ditch?
“A. I never did measure it; I could not say exactly.
“Q. Did it skid eight feet, ten?
“A. I said I didn’t know exactly how far it skidded.
“Q. You testified that you cut your car to the right, sharply to the right, in order to avoid the Ford car?
“A. As far to the right as I could; I was already on their right.
“Q. That is what .1 say. Was that the time that you applied your brakes?
“A. No, sir; I applied the brakes a little before I cut the car.
“Q. You applied your brakes a little before; you applied your brakes and then you cut your car to the right, is that correct?
“A. 1 think so.”

It is always dangerous, when an old car is being driven at a rapid rate of speed, to apply the brakes suddenly; the tires and brake-shoes do not wear exactly the same; and when one wheel is caught by one of the bráke-shoes more firmly than the other the unexpected is always liable to happen.

In our opinion it is reckless and exceedingly dangerous for an automobile to be driven around a twelve per cent curvé at the top of a grade at such a rate of speed as to cause the car, in case of colli sion with another, to turn around and land upside down eighty-four feet from the point of collision.

It is the duty of the driver of an automobile, in driving around a twelve per cent curve in a road at the top of a grade to have his car under control and thoroughly in hand.

Greene vs. Moore, 4 La. App. 494.

Reeves vs. Pyle, 3 La. App. 718.

Ellis vs. Colleta, 1 La. App. 369.

Such of defendant’s witnesses as were riding in the Hudson car at the time of the collision testify that they saw the car in which plaintiff and her husband were riding on the wrong side of the road just beyond the point of collision; but in this they could very easily be mistaken. The car in which they were riding was being operated at a high rate of speed and the car in which plaintiff was riding was beyond the point of the twelve per cent curve from them; and under these conditions it would have been almost impossible for the occupants of the Hudson car to tell just . what portion of the road plaintiff’s car was on.

Defendant’s learned counsel in an able supplemental brief have submitted a plat showing the locus in quo and have located thereon the respective positions of the two automobiles, as shown by copy of the plat attached thereto; and they insist with great earnestness that such a collision as is indicated by the plat would have thrown the automobiles into the positions in which they were found after the collision.

But this argument is flatly contradicted by the testimony of Jack Lowrey, the driver of defendant’s car at the time of the accident, who testified, page 406:

“Q. Did you turn it sharp to the right and run into the bank?
“A. I don’t think it hit the bank; when I got the front end past his car I turned the wheels to get the back end by. Cut the wheels toward the center of the road.”

It necessarily follows that if defendant’s son had gotten the front end of his car past plaintiff’s husband’s car and had turned the wheels to get the back end by, cut the wheels toward the center of the road, the automobiles could not have met as indicated on the diagram.

Jack Lowrey testified, pages 394, 395, 403, 404, 407:

“Q. Mr. Lowrey, how far was the Ford car from you when you first saw it?'
“A. Well, I could not say; I never measured.
‡ ‡ ‡
“Q. Well, was it one hundred feet from you when you first saw it?
“A. Yes, sir.
“Q. How much more than that?
■ “A. Well, I don’t know how much more; it was some, though.
* * * *
“Q. The way the Ford car was traveling when you first saw it, was it headed directly towards you or to your right or to your left?
“A. It was to my right you are talking about.
“Q. No, I am asking you.
“A. You mean — I am talking about mine, not his — my direction, I would say it was to my right a little.
“Q. A little to your right?
“A. Yes, sir.
“Q. About how much to your right?
“A. Well, I could not say exactly.
:5« sfc sjs
“Q. How fast were you going on this occasion?
“A. I said between thirty and thirty-five miles per hour.
“Q. Where was your car when you applied the brakes, M!r. Lowrey?
“A. It was about the mail boxes.
“Q. Do you not know that that would necessarily throw the rear of your car considerably to the left when you applied the brakes, going around a right-hand curve?
“A. It would to a certain extent, yes, sir.
‡ ‡ ‡ ^
“Q. Did you have the brakes applied before you got to the mail boxes?
“A. I don’t think, no, sir.
' “Q. When you applied your brakes, was it after reaching the mail boxes, after you were going around the curve and down the hill to your right?
“A. That is correct.
“Q. Then you had no skidding of your car before you (passed the mail boxes, is that correct?
, "A. I think so.
' “Q. How far did it skid when you put the brakes on before you got to the extreme bank of the ditch?
“A. I never did measure it; I could not say exactly.
“Q. Did it skid eight feet, ten feet?
“A. I said I didn’t know exactly how far it skidded.
“Q. You applied your brakes a little before; you applied your brakes and then you . cut your car to the right; is that -correct?
“A. I think so.”

. This evidence shows that defendant’s son saw plaintiff’s husband’s car meeting him on the wrong side of the road more. I than one hundred feet away and made j no effort to stop his car until he was i within ten or twenty feet of the other I car. This was gross negligence. But we I have preferred not to decide the case on ' this point. In our opinion the' law and the facts of this case are covered by the ■ findings of the trial court that the point of collision was over on the right-hand : side of the road in the direction in which - plaintiff’s husband was. driving; and after reading all the evidence and the able briefs of counsel- on both sides, we fully • agree with the lower court in it's findings of fact that plaintiff’s husband was without fault at the time of the accident and , that the fast driving by defendant’s son I of his automobile around a twelve per' , cent curve in the road at the top of a. grade and sudden application of the brakes to his car was the (proximate cause of .the collision.

On the question of damages, our learned brother of the District Court, in summing up his reasons for fixing the amounts awarded plaintiff and her son, said:

“It is true that the deceased, Lawton Goldsby, was a young man and had been earning a good salary prior to haying his leg broken; but there was no evidence to show that he would ever be able to earn that amount again in the future. It also developed that he had other ailments which might prove fatal. The time that he might be expected to live and the amount of his future earning capacity in the future would be a mere speculation at best. It was admitted by counsel for the plaintiff that under the circumstances they did not expect judgment for the full amount sued for, as the defendant was not present, nor did he contribute to the negligence of his son which caused the death of plaintiff’s husband. In view of the plain letter of the law which makes parents responsible for the torts of their minor children, and under the facts in this case, for the injury done to the plaintiff and her minor child by the ipain, suffering and injury of the deceased, and the loss of his love and support, it seems that they are entitled to recover judgment against the defendant and should have judgment in the sum of four thousand dollars for the plaintiff individually and the further sum of four thousand dollars in her capacity as tutrix for the use and benefit of the minor, Ralph Goldsby, and the further sum of two hundred and seventeen and 77-100 dollars in her own right and the sum of two hundred and seventeen and 77-100 dollars in her capacity as tutrix for the minor’s use and benefit for the price of the Ford car destroyed in the wreck, with five per cent interest on said amount of eight thousand four hundred and thirty-three and 34-100 dollars from judicial demand until paid.”

Under all the evidence on the question of amount of damages we see no reason for disturbing the amount of the award made by the court a qua.

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


text:
    No. -
    First Circuit
    DAVIS v. NIXON DAUGEREAU, Intervenor
    (June 28, 1927. Opinion and Decree.)

      (Syllabus by the Editor.)
    1. Louisiana Digest — Appeal — Par. 518, 523.
    When the clerk of the trial court has been ordered to complete the record and file it and the record as returned by the clerk does not disclose evidence sufficient for a judgment, the record, on motion, being incomplete, suit will be dismissed.
    Appeal from Vernon Parish. Hon. H. A. Burgess, District Judge.

      ■ There was judgment for intervenor, Alfred Daugereau, and plaintiff appealed.
    Action by J. Henry Davis against Turner T. Nixon. Alfred Daugereau, Intervenor.
    Appeal dismissed.
    P. L. Ferguson, of Leesville, attorney for plaintiff, appellant.
    S. I. Foster, of Leesville, and Modisette & Adams, of Jennings, attorneys for intervenor, Alfred Daugereau, appellee.
   MOUTON, J.

Appellee moved to dismiss this appeal because it was filed too late; and, in the alternative, because the testimony was not in the record. We held the record had been filed in time, but returned it to the clerk at Leesville for completion by filing the evidence.

The record was sent by the clerk at Leesville to Lake Charles for our term held there in March of this year. Appellee again filed a motion to dismiss, contending that the clerk had not complied with our order by filing the evidence in the record. We then ordered the clerk at Leesville that he complete the record and file it within fifteen days from the date of that order. The record has been returned by said clerk, but the evidence is not in the record, and the order of this court has not been complied with. The record being incomplete, the motion to dismiss must prevail.

It is therefore ordered and decreed that the appeal be and is hereby dismissed at appellant’s cost.