text:
    No. 2703
    Second Circuit
    POOLE v. PERRETZ
    (April 10, 1930. Opinion, and Decree.)
    W. W. McDonald, of Shreveport, attorney for plaintiff, appellant.
    Wise, Randolph, Rendall & Freyer, of Shreveport, attorneys for defendant, appellee.
   ODOM, J.

Plaintiff’s automobile collided with that of defendant at the intersection of Gladstone boulevard and Highland avenue in the city of Shreveport, and both cars were damaged. Plaintiff sued defendant for the damage done to his car and for slight personal injuries, and defendant reconvened for the damage done to hers. The district judge rejected both demands, and plaintiff appealed.

Plaintiff was driving his car north on Highland, and defendant was driving east on Gladstone boulevard. Plaintiff says he was going at a moderate rate of speed, not exceeding fifteen miles an hour, on his right-hand side of the street, and that he saw defendant coming down Gladstone when she was some thirty or forty feet from the intersection and thought he had time to cross; that he tried to accelerate his speed, hut the motor was cold and would not pick up; that defendant was driving on her left-hand side of Gladstone boulevard and ran into his car on the extreme north side of the intersection; that his car was knocked off the streét up on the curb at the northeast corner of the intersection; and that, when his car came to rest, it was headed towards the southwest.

Defendant, who was alone in her car, gives a different version altogether. She says she was driving on her right-hand side of the street and readied the intersection first, and that plaintiff drove into the intersection immediately in front of her when she was more than half way across, and that the collision took place, not where plaintiff says it did, hut on the south side of the intersection.

Defendant’s testimony that she entered the intersection first, and that the collision took place on the south side of the intersection, is corroborated by that of Mrs. Groner, who saw the collision. It is shown, therefore, by a preponderance of evidence, that defendant reached the intersection first, and, as neither is a right of way street by ordinance or traffic regulation, defendant had the right of way. Johnston vs. Worley, 3 La. App. 675; Spainhour vs. Dulaney, 4 La. App. 552; Travelers Indemnity Co. vs. Robinson-Slagle Lumber Co., 7 La. App. 441.

Defendant, having reached the intersection first and having the right of way, it was negligence on plaintiff’s part to drive in front of her. He says that he thought he had time to cross in front of her, but, unfortunately for him, he was mistaken.

Counsel foi plaintiff argues that defendant’s testimony and that of Mrs. Groner that the collision took place on the south side of the intersection is unreasonable, in view of the physical fact that the cars came to rest after the collision on the opposite side of the street. Defendant’s explanation of that is that she killed her engine about the time of the collision, and that plaintiff’s car, with the engine still running, dragged her car across. That is more reasonable, we think, than plaintiff’s theory. His counsel argues that defendant’s car struck plaintiff’s over on the north of the intersection and knocked it up on the curb. Counsel drew and exhibited to the court a plat showing the intersection, the place where he says the cars collided and the place where defendant and Mrs. Groner say they collided. The plat shows that there is a telephone pole at the northeast corner of the intersection due east of the spot where plaintiff says the collision took place, and the same diagram shows that plaintiff’s car came to rest on the curb east of the pole, with its front end towards the west. Defendant was going east and her car hit plaintiff’s broadside. It could not have knocked plaintiff’s car from where plaintiff says the collision took place to the place where it stopped, because the telephone pole was directly in line. Then, too, the impact could not have turned plaintiff’s car around. The front end of defendant’s car struck the side of plaintiff’s at the door, not near the rear end, so that it is not probable that plaintiff’s car would have been turned around if the collision had taken place as plaintiff said it did. On the other hand, it is altogether reasonable that the car could have been turned around as defendant said it was.

The testimony shows that the doorknob of plaintiff’s car punctured the radiator of defendant’s and that the two cars “hung up” or clung together, and that plaintiff’s car continued to run after defendant’s engine had stopped. The momentum of defendant’s car naturally shoved plaintiff’s farther east and nrobably east of the intersection. Plaintiff’s car was still moving under its power and pulling defendant’s, which caused plaintiff’s car to turn its front end towards the north. There is no evidence of any skid marks on the streets to indicate where the collision took place, so that as to how the cars happened to be left where they were after the collision is a matter largely of conjecture. But we think defendant’s theory is the more reasonable.

■Counsel for plaintiff says that Mrs. Groner’s testimony that she saw the accident should not be considered because she was impeached. Plaintiff’s wife, who arrived at the' scene after the accident, says that she heard Mrs. Groner say she was in the house and did not see it. Mrs. Groner says she made no such statement. Another woman, it seems, appeared on the scene; she did not see the collision, and we think it probable that plaintiff’s wife' was mistaken as to who made the statement. But if we refuse to consider Mrs. Groner’s testimony and leave defendant’s uncorroborated, plaintiff cannot recover, because his testimony is also uncorroborated and has no more weight than defendant’s. The burden was upon plaintiff to make out his case. He failed in that, as his testimony is completely offset by that of defendant.

Plaintiff we think was at fault. Defendant reconvened for the small damage done to her car. Her demands were also rejected. She did not appeal, nor did she ask that the judgment be amended.

The judgment is affirmed, with all costs.


source: Caselaw Access Project

author: WEBB, J.

license: Public Domain

text:
    No. 3699
    Second Circuit
    GLOVER v. WASHINGTON-YOUREE HOTEL CO., INC.
    (March 24, 1930. Opinion and Decree.)
    Harry V. Booth, of Shreveport, attorney for plaintiff, appellant.
    Spearing & Mabry, of New Orleans, and Pugh, Grimmet & Boatner and J. N. Marcantel, of Shreveport, attorneys for defendant, appellee.
   WEBB, J.

This is an action to recover compensation under the provisions of the Employers’ Liability Law (Act No. 20 of 1914 as amended).

Plaintiff alleged, in substance, that while engaged in the employment of defendant he had sustained an injury of his right foot which had partially disabled him to do work of any reasonable character, and he prayed for judgment accordingly, and he appeals from a judgment awarding him compensation for a period of thirty-six weeks.

The sole question presented here is relative to the right of the court to name the period for the payment of compensation, under the provisions of section 8, subsection 8, of the statute (Act No. 242 of 1928) which provides that:

“For injury producing temporary total or temporary partial disability the Court, may in its discretion, award compensation for a fixed number of weeks to be based upon the probable duration of such disability.”

On trial, the evidence established that plaintiff had sustained a slight cut on the heel of his right foot and that there had been some infection of the wound which had, however, yielded to treatment; but plaintiff stated that he did not have complete use of his foot at the time of the trial, and that he was unable to resume his employment; and his statement was supported by the opinions of physicians called by him, who stated that the wound had not completely healed, due to the fact that plaintiff continued to walk on his foot, that it would heal in three weeks from the date of the trial, and that plaintiff would be able to resume his employment in three weeks from that time; and although the physicians called by defendant (one of whom had treated plaintiff) stated that the wound had completely healed three months prior to the date of the trial, and that the disability resulting from the injury had ceased at that time, the court accepted the statement of plaintiff and the opinions of the physicians called by him, and awarded him compensation for a period which included the time from the date of the injury to the date of the trial and an additional period of six weeks.

It seems to be conceded that where the evidence establishes the probable duration of disability the court should fix the period for the payment of compensation (Upshaw vs. Triangle Drilling Co., 5 La. App. 224: Cloud vs. Ohio Oil Co., 6 La. App. 823); and, considering the nature of the injury and the opinions of the physicians called by the parties, we are of the opinion that the court properly exercised its discretion in fixing the period for the payment of compensation, and from our review of the record it appears that plaintiff has not any cause to complain of the judgment, and it is affirmed.


author: WESTERFIELD, J.

text:
    No. 11,605
    Orleans
    LECARPENTIER v. N. O. PUBLIC SERVICE, INC.
    (February 17, 1930. Opinion and Decree.)
    (March 10, 1930. Rehearing Refused.)
    (May 5, 1930. Writ of Certiorari and Review Refused by Supreme Court.)

      Ernest J. Robin, of New Orleans, attorney for plaintiff, appellant.
    Ivy G. Kittredge, of New Orleans, attorney for defendant, appellee.
   WESTERFIELD, J.

This suit was brought by an aged man, Charles H. LeCarpentier, against the New Orleans Public Service, Inc., for damages for physical injuries sustained by him by reason of his having fallen into a post hole 18 inches wide and 6 feet deep, which had been dug by the defendant at the corner of Agriculture and St. Bernard avenue. There was judgment below in favor of defendant, and plaintiff has appealed.

While the appeal was pending in this court, the plaintiff died, and his son and heir, Louis LeCarpentier, has been made party plaintiff by proper proceedings.

The accident happened on May 26, 1926, at about 11:30 o’clock in the morning. Mr. Charles LeCarpentier was walking along St. Bernard avenue with the assistance of a cane and approached the corner of Agriculture street where the paving had been recently laid. He testified that he observed some workmen engaged at the corner and asked one of them by the name of Marvin whether he might use the sidewalk on Agriculture street, and, receiving a reply in the negative, proceeded across the St. Bernard avenue curb, into the street, turning toward the sidewalk curb on Agriculture street at a point about 35 feet from the corner. In attempting to regain the sidewalk he stepped into a hole which had been dug by the defendant, fell, and injured himself. It is alleged that the hole was improperly protected, in that it was covered by a 10-inch round pipe and an empty 12-quart tin bucket which was insufficient and insecure footing for a pedestrian.

The statement of plaintiff concerning the information given him by Marvin, to the effect that the sidewalk on Agriculture street was impassable, is denied by Marvin, and the fact is established that the pavement, though newly laid, was in use by, and safe for, pedestrians. The hole into which Mr. LeCarpentier fell was not in the paved portion of the sidewalk, but between the paved portion and the curb, in a space devoted to a grass plot and not primarily intended for use by pedestrians. There was a much safer way open to plaintiff than the one he adopted, which was by using the pavement. His choice of the more difficult and dangerous passage bars his recovery.

There were no barriers in his path which would indicate that the sidewalk was unsafe for use, and there would seem to have been no occasion for him to inquire concerning the safety of that part of the pavement. He chose the more difficult way, and must be considered to have assumed the risk incident to his choice. It is suggested that his physical condition, which was feeble due to his advanced age, and an impairment of his vision, from which he suffered, had much to do with the accident. These infirmities would seem to have influenced plaintiff in using the sidewalk instead of the more difficult route he selected. In any event he failed to exercise ordinary care in adopting the proper course and cannot recover.

In Thompson on Negligence, vol. 5, par. 6296, we find the following:

“The general rule is that one is bound to travel in the worked part of the Highway if it is in proper condition, and that damages will not be awarded for an injury received outside of such traveled part, where the traveler has left it without sufficient cause, although within the limits of the highway. It is a good expression of this rule to say that the traveler, whether a driver, a rider, or a pedestrian, who departs from the street or sidewalk, where he could have avoided injury and wanders off somewhere else, assumes the risk of his experiment. So, contributory negligence will be imputed to a pedestrian, who voluntarily and unnecessarily steps from a sidewalk into a hole. So, if a traveler errs in judgment, taking a side track upon a highway when the main track is passable and safe, although the sidetrack is generally used, and is there injured, the town cannot be held liable.”

In Johnson vs. Canal & Claiborne R. R. Co., 27 La. Ann. 53, the plaintiff, who sought to recover from a street railway for the loss of one of his legs, was denied recovery, because he elected to take the more dangerous of two courses open to him — ■ “one, absolutely free from risk of any kind; the other, full of danger.”

In Settoon et al. vs. T. & P. R. R. Co., 48 La. Ann. 807, 19 So. 759, it was held that, “where there are two avenues of trável, and the more dangerous one is selected, the party injured cannot recover, if the injury inflicted was * * * incident to the route selected. The traveler assumes all risks in such cases.” See, also, Kreye vs. Longville Long Leaf Lumber Co., 126 La. 767, 52 So. 1018; Antee et ux. vs. D. C. Richardson Taylor Lumber Co., Ltd., 123 La. 119, 48 So. 765; Roff vs. Summit Lumber Co., 119 La. 578, 44 So. 302.

In Barnes vs. City of New Orleans, 4 La. App. 503, a case in which plaintiff sued for injuries she received as a result of a fall caused by a hole in the sidewalk this Court held that:

“If that side of Toulouse street was bad she could have taken the other side. When two roads, one with and the other without danger, are open to plaintiff and she chooses the former * * * she cannot recover damages.”

Whatever may have been the reason for Mr. LeCarpentier’s action in leaving the sidewalk, entering the street, and returning to the pavement, it is clear that another and safer route was open to him, which he should have taken.

For the reasons assigned, the judgment appealed from is affirmed.


author: JANVIER, J.

text:
    No. 11,922
    Orleans
    DRAGO v. DORSEY
    (March 10, 1930. Opinion and Decree.)
    (April 7, 1930. Rehearing Refused.)

      Guy J. D’Antonio, of New Orleans, attorney for plaintiff, appellee.
    P. L. Fourchy, of New Orleans, attorney for defendant, appellant.
   JANVIER, J.

Plaintiff, a widow, alleging that her three year old son was killed as the result of the explosion of a steam boiler belonging to defendant, sues for damages to compensate her for her loss.

Defendant is the owner of a dry cleaning and pressing establishment located on the corner of Dauphine and Ursuline streets.

The young child, in the custody of an aunt, sister of plaintiff, was walking along the sidewalk of Dauphine street, when a terrific explosion occurred on the premises of defendant. It is alleged by plaintiff, and, in our opinion, the preponderance of the evidence sustains the allegation that a heavy board fence surrounding the premises was demolished by the force of the explosion and fell upon the little boy while he was walking on the sidewalk.

Defendant maintains that, at the time of the explosion, the child had not yet reached a position alongside the fence, and that, after the force of the explosion had expended itself, the child was still in a place of safety some fifty feet or so away; that it was attracted to the scene of the accident by the noise, and that the aunt carelessly allowed it to run from its place of safety to a dangerous position alongside the' fence; that the fence was knocked down by the surging of the crowd which accumulated, and that, therefore, the real cause of the child’s death was not the explosion, but was the negligence of the aunt in not maintaining a proper watch and' guard; and that, as the aunt stood “in loco parentis” to the child, the negligence of the aunt should be imputed to the mother, plaintiff here, and should bar her recovery.

This defense, though ingenious, cannot prevail, because we are convinced by the evidence that the collapse of the fence followed immediately after the explosion, and that the aunt, stunned and confused as she was by the violence of the explosion and by the escaping smoke and steam, was powerless to prevent the resulting injury to the little boy, or to remove him to a place of safety.

We feel certain that the falling of the fence was the direct, immediate result of the explosion and was not caused by the surging of the crowd. That it fell outward to the sidewalk and not inward to the yard is not denied, and we do not understand how the surging of the crowd, which, if there was a crowd, would have exerted pressure from the outside, could have caused the fence to fall to the outside sidewalk. On the contrary, such a physical force would have pushed the fence into the yard — not the other way.

It is entirely possible that, at the moment of the explosion, the little boy was not immediately alongside the fence, but he was certainly within a few feet of it, and if he and his aunt were so near to it that the explosion rendered the aunt incapable of exercising proper judgment and so confused her that she could not prevent the child from running towards the danger, she cannot be charged with negligence in this particular. Odom vs. St. Louis S. W. R. Co., 45 La. Ann. 1201, 14 So. 734, 23 L. R. A. 152; Root vs. Kansas City Southern R. Co., 195 Mo. 348, 92 S. W. 621, 6 L. R. A. (N. S.) 212; Harrington vs. Los Angeles R. Co., 140 Cal. 514, 74 P. 15, 63 L. R. A. 238, 98 Am. St. Rep. 85; Clark vs. Wilmington & W. R. Co., 109 N. C. 430, 14 S. E. 43, 14 L. R. A. 749.

Conceding, arguendo, that the aunt was not with the child at the time, that she had gone into the drug store on the corner and had allowed the child to wander alone along the sidewalk, and that this was an act of negligence on her part, nevertheless, defendant’s position is not bettered, because the results which followed could not in any sense be said to have had any causal connection with the negligence of the aunt. If the child had walked into the street immediately in front of an approaching automobile, there would have been causal connection between the negligent act of allowing the child to wander at large and the resulting accident, but we cannot understand how it can be argued that there is even remote connection between allowing a child to wander unattended on a sidewalk and his death as the result of a boiler explosion in adjacent premises.

“Negligence consists in a failure to provide against the ordinary occurrences of life, and the fact that the provision made is insufficient as against an event such as may happen once in a lifetime, or perhaps twice in a century, does not, in my opinion, make out a case of negligence upon which an action in damages will lie.” N. O. & N. E. R. Co. vs. McEwen & Murray, 49 La. Ann. 1184, 22 So. 675, 680, 38 L. R. A. 134.

Of course, the immature age of the child precludes any suggestion that he, himself, may have been negligent in running towards instead of away from the danger.

“We do not think that the doctrine of contributory negligence applies to a child less than four years of age.
“A child of such an age is generally incapable of choosing between right and wrong, good and evil, prudence and rashness.” Hamilton & Wife vs. Morgan’s L. & T. R. & S. S. Co., 42 La. Ann. 824, 8 So. 586, 587.
“A child of the age of five years and seven months is prima facie incapable of contributory negligence.” Westerfield vs. Levis, 43 La. Ann. 63, 9 So. 52.

We are of the opinion, therefore, that the plea of contributory negligence cannot prevail, and that the cause of the death of the boy was the explosion.

It becomes necessary to investigate the cause of the explosion, because the defendant is not liable, unless there was fault on his part.

Defendant contends that plaintiff should have alleged and was called upon to prove the cause of the explosion. We disagree with defendant in this. The doctrine of “res ipsa loquitur” is plainly applicable here. In Lykiardopoulo vs. New Orleans & C. R. Light & Power Co., 127 La. 309, 53 So. 575, 576, Ann. Cas. 1912A, 976, which resulted from the explosion of a steam boiler, the allegation made by plaintiff was that the explosion “was caused by defendant’s negligence, want of skill and attention; that defendant failed to care for said boiler, and by their negligence and want of skill and attention the boiler was weakened and unable to carry the steam pressure to which the defendant negligently subjected it.” In overruling an exception of vagueness, the district judge said:

“I have some doubts, but, considering that the defendants were in charge of the boiler, and have knowledge as to its conditions, and how it was being operated, I think that no injustice can be done by overruling the exceptions.”

When the matter went to the Supreme Court, Mr. Justice Provosty, as the organ of that court in approving the ruling of the district court, used the following language:

“We think this ruling was correct. In effect, the allegation is that tne explosion is not to be attributed to any inherent defect in the boiler, but that it resulted from defendant’s want of care and skill in its operation. This was a statement of the ultimate facts. Ordinarily, where only the ultimate facts are alleged, and particulars are called for, the court should require the pleader to give the particulars intended to be relied upon; but cases readily suggest themselves which ought to be an exception to that rule, and the present case would seem to be one of them, for the reason assigned by the learned trial judge, namely, that the manner of the operation of this boiler was peculiarly within the knowledge of the defendants. In cases where the plaintiff cannot be expected to have any information as to the causes of the accident, whereas the defendant, on the contrary, must be assumed to be fully informed on the subject, and where the accident is of the kind which ordinarily do not occur when due care has been exercised, the rule of evidence is that the accident speaks for itself — res ipsa ’oquitur —that is to say, that a presumption of negligence arises from the fact itself of the accident. In such cases, the plaintiff not only need not allege the particular acts of omission or commission from which the accident has resulted, but need not even prove them. The accident itself makes out a prima facie case, and the burden is on defendant to show absence of negligence. Res ipsa loquitur. That rule is of peculiar applicability in cases of boiler explosions.”

The burden, then, by the application of the doctrine of “res ipsa loquitur,” was placed upon the defendant to prove that the explosion resulted from causes beyond its control, and that proper care and precautions in inspection and operation could not have prevented it. We have experienced no difficulty in reaching the conclusion that this burden has not been satisfactorily sustained by defendant.

The boiler was a very old one. It had been patched and repaired, and the experts who examined it testified that the thickness of the metal at the point of the break indicated that it should not have been subjected to a pressure of more than about twenty pounds to the square inch, whereas defendant admitted that a pressure of forty-five pounds was customary, and that the safety gauge was set to “pop off” at seventy-five pounds.

Mr. H. L. McLean, a boiler inspector, gave the following evidence in referring to an interview with defendant, while he (defendant) was being examined in the office of the fire marshal after the accident:

“At the time we had Dorsey and his engineer in the Fire Marshal’s office they were sworn in and questioned. I asked them a great many questions, and, in fact, so many, — they were pertinent questions, every one, — about the way in which they operated that boiler. The most important facts were that they switched the safety valves and the gauges, which was dangerous practice and not permitted by any standard known rule for safe operation of steam boilers. Dorsey admitted that he had no insurance nor any inspection, or that any inspection of the boiler had been made. Quite frankly, I would say, if I had been inspecting that boiler, I would have condemned it, because there were several patches, round patches, in the bottom ring which exploded, which showed its weakened condition at the time they were patched, and it was very evident that he must have known, or somebody, whoever put those patches there, knew that that ring was very insecure. It is the place in a boiler of that type that would fail. I also asked Dorsey if he knew that it was dangerous to operate a boiler like that, and he admitted freely that he did- know it was dangerous. He said he knew that a boiler was a dangerous thing if it was not properly taken care of, that it was dangerous. That’s almost the words that he used.”

Considerable evidence was produced by Dorsey in an attempt to show that the boiler was in good condition, and that latent undiscoverable defects were responsible for the explosion.

This evidence is of the weakest character and cannot be accepted, in view of the testimony of McLean and the corroborating evidence of other experts.

Since the cause of the explosion was the weakened condition of the boiler, and since Dorsey should have known of this condition, he must respond in damages for the loss he has caused to plaintiff.

We feel, however, that the amount awarded by the district court, $3,500, is some-' what in excess of awards which have been allowed by this and the Supreme Court in similar cases. There was only one parent here, and therefore the award is not to be shared in by two persons, as is usually the case. In view of this and of the immature age of the child, $2,500 is more nearly in line with former awards.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be amended by reducing the amount thereof to $2,500, with legal interest from judicial demand, and, as thus amended, affirmed. Costs of appeal to be paid by appellee.


author: BOATNER, Judge

text:
    No. 11,608
    Orleans
    VACCARO v. FAVROT
    (December 16, 1929. Opinion, and Decree.)
    (January 13, 1930. Rehearing Refused.)
    (February 11, 1930. Writ of Certiorari and Review Granted by Supreme Court.)
    (May 5, 1930. Opinion and Decree of Supreme Court.)
    Quintero & Ritter, of New Orleans, attorneys for plaintiff, appellee.
    Saunders, Baldwin, Viosca & Haspel and Eug. D. Saunders, of New Orleans, attorneys for defendant, appellant.
   BOATNER, Judge

ad hoc. The plaintiff sues for damages to his automobile resulting from a collision with the defendant’s autotruck. There was judgment below for the plaintiff for $1,588.50, with interest, and the defendant appeals. N

The defendant answered, without exception. At the trial, on the opening of the plaintiff’s case, the defendant objected to all evidence on the ground that the petition did not state a cause of action, and at the same time filed a formal exception to the same effect. The objection and exception were overruled by the judge a quo, for the reason, as he stated, that the matters urged in support of them were those of vagueness, which had been waived by answer. In this court the defendant argues that this case comes within the rule of State vs. Hackley, Hume & Joyce, 124 La. 854, 50 So. 772, and the other cases that pleadings must allege facts, and that it does not suffice to allege legal conclusions. Without considering whether, in the light of recent jurisprudence (Francis vs. Barbazon, 10 La. App. 55, 120 So. 427, and Kunnes vs. Kogos, 10 La. App. 602, 119 So. 451, reversed on certiorari by the Supreme Court 168 La. 682, 123 So. 122), a defendant who would urge that his adversary’s petition is defective ought not to be required to make the point preliminarily so as to give timely opportunity for amendment, we find that the petition does not charge negligence boldly, without specification of fact — as the defendant avers it does — but that, after alleging that plaintiff’s automobile was being driven in a public street, it alleges that the defendant’s employee carelessly and recklessly drove the .defendant’s autotruck into the automobile, causing damage. That, it seems to us, alleges facts leading to the conclusion of negligence. If the defendant considered the petition did not inform him with sufficient fullness and distinctness 'of the case against him, he should have demanded further pleading by an exception of vagueness. The ruling of the judge a quo on the objection and exception was correct.

On the merits, the plaintiff proved, and the defendant concedes, that the plaintiff’s car was being driven on the right side of the road, at a moderate speed, and without negligence; and the defendant’s witnesses admit that his autotruck, as the two vehicles were about to meet, turned to its left across the road and collided with the plaintiff’s car. These facts, without excuse. obviously would convict the defendant’s driver of negligence. If the defendant is to be relieved of liability, he should make good his excuse.

The excuse which is offered is that, as the vehicles were approaching each other, each on its own side of the road, a small car came out from behind the plaintiff’s and passed it in the same direction; that the driver of the defendant’s autotruck, thinking to avoid collision with the small car, which seemed imminent, put on his brakes strongly and suddenly; that it was raining at the time, and the pavement was wet; and that the application of the brakes caused the truck to skid over against the plaintiff’s car.

There is no doubt that, if the facts would be found as the defendant’s witnesses state them, the defendant’s driver would be free of fault, for his acts would, in that case, have been forced upon him by necessity. Landry vs. McNeil Hunter Motor Co., 11 La. App. 380, 122 So. 293. But the testimony on this point of the defendant’s two witnesses, the driver of the truck and his helper, was contradicted by four witnesses for the plaintiff, his son, who was driving, and three other passengers, all of whom swear that they were looking closely at the truck as it neared them, because it was swerving from side to side, causing them to fear a collision, and that they saw no other car pass between their ear and the truck. Considering that their faculties must have been directed intently to the space immediately in front of them, and to the left of their car, through which the supposititious small car must have traveled, it is difficult to believe that none of the four would have seen it if actually there was any such car.

The defendant argues in this court that the windows of plaintiff’s car, which were closed on account of the rain, were obscured by the rain, so that the passengers could see only through the small area of the windshield kept clean by the wiper. But our understanding of the record is that the rain was not so heavy as to obscure vision through the windows, and that the plaintiff’s witnesses could and did see out through them. The circumstances do not admit application of the rule of the superiority of affirmative over negative testimony. The judge a quo, after analysis of the evidence, found the facts on this point against the defendant, and we agree with him. It must be held, therefore, that the defendant is liable for the plaintiff’s damages.

The collision was so violent that it all but demolished the plaintiff’s ear. The front wheels were knocked out of line; both fenders, the splasher, and running board on the left side were torn off, and the doors on that side were caved in; the rear axle was knocked from under the car; the left rear wheel was torn off; the frame was bent out of line; all the springs were twisted, and some were broken; the rear axle housing was twisted, and the front splasher bent out of shape; the drive shaft was pulled out; the gasoline tank and muffler were damaged; the left step plates were demolished; the tail lamp bracket was twisted and broken; the rear bumper was torn off and twisted beyond. repair; the steering mechanism was put out of commission; one front wheel and both rear wheels were bent beyond repair; and one wheel was out of line; one locking ring was twisted beyond repair; the rear axle shafts were bent; and the rear shackle links were twisted out of shape.

The car was a Packard sedan bought new; it had been in use about three weeks, and, according to a reading of the speedometer taken just after the accident, it had run 1,714 miles. It was not a new car, and could not have been sold at the time of the accident for what the plaintiff had paid for it; but he is a commission mer^ chant, not a dealer in automobiles, and he had' bought it, not for resale, but for his own use and that, it seems, of his family. For all of his purposes the car was substantially as good as new.

The Packard agency offered to repair all the damages which its inspection disclosed, listed in its estimate, for $918.61; and, while Mr. Abbot and Mr. Beydler, who acted for the agency, testified that in their opinion, after the work which they proposed had been done, the car would be in serviceable condition, the agency refused to guarantee that result, and both of them said no car which had received injuries so extensive can be made as good as it was for use or as valuable for resale. The plaintiff tried to sell the wreck as it was, and the best offer he got was $300. The defendant obtained detailed offers to make repairs from Schayer for $753.35 and from Oster for $823.41 Mr. Schayer testified that his repairs would practically put the car back in the same condition. Mr. Oster testified only that he saw necessity for no other repairs than those he listed in his offer. If there is any conflict between the plaintiff’s witnesses and those of the defendant as to the effect of repairs to the car, we think the more reasonable view is that a car injured as plaintiff’s was cannot be made substantially as good as it was by repairs, however skillful and thorough.

In determining what the plaintiff should recover if we require the defendant to provide him with a new car,, it may be that the plaintiff would be in a somewhat better position, though this may well be doubted, since the difference between a new car and one four weeks old, so far as plaintiff is concerned, is difficult to estimate, and may be said to be negligible. In any event, defendant is responsible for the difficulty which confronts us. See Bianchi vs. Mussachi, 1 La. App. 291, and Vila vs. Westfeldt, 7 La. App. 552.

After making the offer to repair which we have mentioned, the Packard agency proposed to allow $1,025 for the wreck against the purchase of another car, and the plaintiff made a trade for a new car identically the same as that which had been wrecked. It cannot be said the allowance was too small. The price of the new car was $2,525, and, with the allowance deducted, its cost in cash to the plaintiff was $1,500, for which he is entitled to judgment.

In calculation of the judgment below the cost of the new car was taken at $2,-588.50 and the allowance at $1,000; but the bill of the Packard agency offered in evidence by the plaintiff (document 10 of the record) shows the correct figures to be as we have just stated them. The error is comparatively small, and would no doubt have been corrected below if the attention of the trial judge had been called to it by motion for rehearing or new trial. While it is necessary to amend the judgment, costs of appeal will be taxed against the defendant.

For the reasons given, the judgment' appealed from is amended by reducing the amount thereof to $1,500, with legal interest from judicial demand, the defendant to pay all costs of both courts; and, as thus amended, the judgment appealed from is affirmed.

HIGGINS, J., takes no part.


text:
    No. 13,114
    Orleans
    FASTERLING v. GEORGE
    (April 7, 1930. Opinion and Decree.)

      Cobb & Jones and Herman M. Baginsky, of New Orleans, attorneys for defendant, appellant.
    Dymond & Levy and Geo. C. Schoenberger, Jr., of New' Orleans, attorneys for plaintiff, appellee.
   JANVIER, J.

Plaintiff and her minor children, whom she herein represents as natural tutrix, are the owners of certain lands in the parish of Plaquemines. Defendant, Samuel George, during the spring of 1927, leased the said lands for the purpose of trapping muskrats thereon during the trapping season of 1927-1928. The trapping season, under the laws of Louisiana and in accordance with the regulations of the Department of Conservation, began on November 20, 1927, and terminated on February 5, 1928. George agreed to pay for the use of said lands for that season $2,000.

Plaintiffs allege that the said sum has not been paid, and this suit has for its object the recovery thereof.

Defendant admits that he entered into the lease contract, but avers that certain third persons attempted to enjoin his trapping on the said lands, claiming to have prior rights thereon as the result of an earlier lease obtained by them from the owners, and that, as the result of injunction proceedings, he was delayed in obtaining possession of the land and in commencing his trapping operations. He therefore claims that he is entitled to a diminution of his rent. He states that he ' has always been ready and willing to pay rent for such portion of the season as he was permitted to use the lands.

The record shows that, just prior to the opening of the season, a temporary restraining order was in fact issued on the petition of Plaquemines Parish Protective Association which association claimed to be the real lessees of the lands in question.

As George, defendant here and defendant in the injunction suit, also claimed to be lessee of certain other large acreages of trapping lands, and as in the injunction suit it was sought to enjoin his use of those other lands as well as of the acreages involved here, he determined to himself defend his rights to his use of all the property contemplated in the injunction proceeding and refrained from calling his lessors in warranty, as he might have done in accordance with Civil Code, art. 2704, which reads as follows:

“If the persons by whom those acts of disturbance have been committed, pretend to have a right to the thing leased, or if the lessee is cited to appear before a court of justice to answer to the complaint of the person thus claiming the whole or a part of the thing leased, or claiming some servitude on the same, he shall call the lessor, in warranty, and' shall be dismissed from the suit if he wishes it, by naming the person under whose rights he possesses.”

When the matter came up for hearing in the district court during the month of December, 1927, the injunction was perpetuated as to certain other lands, but the restraining order was dissolved in so far as it applied to the particular lands of plaintiffs, and, on December 20, 1927, defendant commenced his trapping operations on plaintiff’s lands.

It will be seen that he actually lost the use thereof for thirty days out of a total trapping season of 87 days. Claiming that this loss was chargeable to the owners, he asks that his rent be reduced by thirty-eighty-sevenths of $2,000; that is to say, to $1,310.85.

Plaintiffs find no fault with the mathematical calculations made by defendant as above set forth, but maintain that, as a result of his failure to avail himself of the remedy provided by the Code, he cannot claim the relief which he now seeks.

Defendant counters with the suggestion that the codal provision referred to does not make it his duty to call his lessor in warranty, but that it merely gives him the privilege of doing so, and that, in the event of his failure to do so, his rights are not lost, unless plaintiffs can show that, had they been called in warranty, some action could have been taken by them which could have defeated the injunction proceedings, or which would have brought them to an earlier conclusion. He bases this contention on Code of Practice, art. 388, which reads as follows:

“The defendant, though he has not called his warrantor to defend the suit brought against him, does not lose on that account his action in warranty, unless the warrantor proves that he had means for defeating the action which were not used, owing to the defendant having failed to call him in warranty, or having neglected to apprise him of the suit having been brought.”

Defendant also argues that .there was no necessity for him to call his lessors in warranty in the injunction proceeding, as they had knowledge of the pendency of that litigation by reason of the fact that plaintiff, Mrs. Fasterling, in her individual capacity, was called as a witness when the matter of the dissolution of the restraining order was tried in the district court. This last argument, which we will discuss first, does not impress us. Assuming for the moment that the article of the Civil Code makes it mandatory that a lessee disturbed in possession of the premises must call the lessor in warranty if it is intended to claim damages; it surely cannot be said that a formal call in warranty can be substituted by a summons to appear as a witness. The article does not provide that the lessee shall notify the lessor of the. eviction or disturbance, but specifically provides for the call in warranty, and it has been many times held that, unless the call in warranty is made, the right to claim damages is lost. In the syllabus of Fox vs. McKee, 31 La. Ann. 67, appears the following:

“Before a lessee can recover damages for any disturbance of his possession or enjoyment of the leased property by a third person, he must give personal, formal notice to the lessor of the disturbance, and call the latter in warranty.”

See, also, Carmouche vs. Jung, 157 La. 441, 102 So. 518, 519, in which the court said:

“Plaintiff as tenant gave no notice to defendant, as lessor, of any disturbance in her possession, and did not call the latter in warranty, and consequently lost all right to claim damages from him, even if such claim ever had a legal basis.”

We can see no reason to distingush between the right to claim damages and the right to claim a diminution in rent. In either case it is sought to make the owner of the property responsible for a loss the tenant has sustained or may sustain, and in either case it is only fair that the own,er should be given the right of defending the suit in which he, more than any one else, is interested.

In Fox vs. McKee, supra, the Supreme Court dealt with a situation very similar to that which we are now considering and, with reference to the necessity for a call in warranty, where the lessee was disturbed in his occupancy of the premises, the court said:

“* * * McKee was bound to apprise his lessors of that fact by personal notice, to call them in warranty, and — by his neglect so to do — he has lost his recourse against them for the damages which may have resulted from the pretended disturbance.”

The word “bound” certainly cannot be interpreted to mean “privileged,” as is contended by defendant.

Nor do we think that the decision of the Supreme Court in Rojas & Conner vs. Seeger, 122 La. 218, 47 So. 532, can afford any comfort to defendant, although it is true that the court referred to article 2704 of the Civil Code as granting a “privilege.” We well recognize that the right granted under that article is a privilege of which the tenant, who is interfered with in his enjoyment of the premises, is not forced to avail himself, but it is very evident that his failure to do so deprives him of his right to claim damages if the lessor can show that he could have defeated the injunction suit sooner than that consummation was obtained by defendant.

The cases of Rivas vs. Hunstock, 2 Rob. 187, and Sterling vs. Fusilier, 7 Mart. (O. S.) 442, are also relied on by defendant. Both of these cases involved sales and not leases and, furthermore, it is not held in either that the defendant need not call his vendor or lessor in warranty, but merely that, if he does not do so, he loses no rights, unless the vendor or lessor can show that he, if called in warranty, could have defeated the action.

Conceding, arguendo, article 388 of the Code of Practice has application here, and that, under it the failure of the lessee to call the lessor in warranty does not deprive the lessee of his right to damages, unless the lessor can show that he could have taken some action which would have defeated the injunction proceeding sooner than that result was accomplished' by the lessor, nevertheless it seems to us quite evident that, in the case now before us, the lessors, if called in warranty, could have defeated the injunction proceeding as to their land much sooner than did the defendant, George.

In the first place, it appears that George did not take advantage of the plain remedy which is afforded him by Act 29 of 1924, and which remedy could and in all probability would have been invoked by the lessors, and under which, on two days’ notice, a motion to dissolve the restraining order could have been tried. Since the restraining order was dissolved, so far as these lands are concerned, immediately upon the matter being tried in the district court, we may assume that the same result could have been obtained much sooner if the statute to which we have referred had been at once invoked. In the second place, the record shows that when the matter was tried in the district court, as we have stated, there were involved in the same suit very large other acreages in addition to that owned by plaintiffs, and it is certain that the complicated issues presented by the other leases made a speedy trial and judgment as to plaintiff’s lands impossible. Nor can we lose sight of the fact that, so far as the other lands were concerned, the right of defendant to trap thereon was denied.

While, in view of the conclusion to which we have come, we attach no great importance to the negotiations had between the parties subsequently to the termination of the trapping season, nevertheless we deem it significant that, in a letter written on April 2, 1928, by defendant, George, to the attorney for plaintiffs, no mention whatever is made of the delay; nor does defendant in that letter ask' for or claim the right to a diminution in rent. This letter reads as follows:

“I am at present in a bad situation financially, due to Rose’s actions. I will be all right again in ten days. Please tell Mrs. Fasterling to wait for a few days longer.
“I have a conference with my backers this afternoon and will be able to go ahead with my plans in a very short time — Mrs. Fasterling will get her money.”

The district court rendered judgment in favor of plaintiff for $2,000 as prayed for. Since we believe that this judgment is correct,

It is ordered, adjudged, and decreed that the judgment appealed from be, and it is, affirmed.


text:
    No. 11,462
    Orleans
    O’CONNOR REALTY CO., LTD., v. GREEN ET AL.
    (April 7, 1930. Opinion and Decree.)

      Dart & Dart and Leo L. Dubourg, of New Orleans, and C. A. Buchler, of Gretna, attorneys for plaintiff, appellee.
    John E. Fleury, of New Orleans, attorney for defendants, appellants.
   JANVIER, J.

This is a petitory action by which plaintiff, O’Connor Realty Company, Limited, seeks to recover certain immovable property which is in the possession of defendants.

The defense is the prescription of thirty years. The district court overruled the plea of prescription, and defendants have appealed.

There is no dispute as to the chain of title under which plaintiff claims ownership of the property, and the discussion is therefore restricted to the question of prescription.

The undisputed facts are that, originally, the land involved here formed part of a larger tract owned by one Thomas B. • Lee. In 1874 Lee sold to John Johnson a portion of land immediately adjacent to the property which is involved in this suit, and in 1881 he sold to James M. Harding the property which ,we have mentioned as adjoining that sold to Johnson, and which Harding property is the realty with which we are now concerned.

The land which Harding acquired he sold to J. H. O’Connor, and later the estate and heirs of O’Connor sold to O’Connor Realty Company, Limited. Johnson died in 1882, and his widow, Maria Johnson, was sent into possession of his estate, including the small tract which he had bought from Lee and which adjoined the O’Connor land.

Maria Johnson died in 1909, and in 1917, by ex parte judgment rendered in her succession proceedings, her heirs, Mary Green and Cecelia Green Ross, two of the present defendants, were sent into possession of her estate.

The judgment of possession purported to send them into possession, not only of the land to which deceased, Maria Johnson, had had title, but also of the O’Connor property, and also of two squares numbered 15 and 20 and belonging to Oakdale Realty Company. Defendants, except Faletta, are heirs of Maria Johnson. Faletta claims to have acquired the property, in which he contends he is interested, by deed from Cecelia Green Ross and Mary Green, two of the defendants, but, as his claim comes directly from those who claimed solely by virtue of prescription, his rights must necessarily stand or fall on the soundness of that plea.

Plaintiff maintains that such possession as defendants and their predecessors may have had was not under the title of owners, and that, although under our law the ownership of immovables may be acquired by prescription of thirty years without the need of title, or of possession in good faith (Civ. Code, art. 3499), nevertheless “the possession on which this prescription is founded must be continuous and uninterrupted during all the time; it must be public and unequivocal, and under the title of owner.” Civ. Code, art. 3500.

Regardless, then, of the time during which this adverse possession of defendants and their predecessors may have continued, we find it necessary to examine the record to ascertain what was the character of the acts indicative of possession performed by defendants.

Whether their predecessors first began using the land in 1874, which is the time at which they bought the adjoining property, or in 1877, which is the time at which, according to one witness, they began to make use of it for certain limited purposes, is of no importance, because, in 1901, or before thirty years from either of said dates had elapsed, Maria Johnson permitted the doing of certain things which, in our opinion, show not only that she did not herself claim ownership of the land in question, but that she recognized the ownership to be in others than herself.

In 1901 the railroad company- whose right of way abutted on both the property of Maria Johnson and that involved here, desiring to widen its right of way, purchased from Maria a narrow strip along the front of her land, and from O’Connor another narrow strip along the edge of his property. The railroad then moved back the fence to the new line. Maria Johnson knew that she had been paid only for the small piece of property taken from the front of the land to which she had title, and that she had not been paid for the strip of property taken from the land involved here, and yet she allowed the fence to be moved back, not only on her own land, but on the land in question, without any claim whatever that she was the owner of it, or that she was entitled to payment therefor.

This appears to us to be an acknowledgment which is sufficient to interrupt prescription, if, in fact, prescription had ever commenced to run, and, assuming that prescription commenced to run anew, from that time to the filing of this suit was only twenty-two years, which was insufficient time for the accrual of the prescription of thirty years.

We have in the preceding paragraph used the expression “if, in fact, prescription had ever commenced to run.” We intend to convey the impression that it is more than doubtful if any of the acts of ownership performed in the indistinct past by any of defendant’s predecessors were sufficient to form the basis of prescription, even if no interruption had occurred.

We are quite convinced from the record that at no time was the property in question completely under fence. Various surveys were submitted, and these show conclusively that such fences as did include the property in question also included property belonging to third persons and not now claimed by defendants, and not heretofore claimed by their predecessors, except by inclusion in the judgment of possession in the succession of Maria Johnson. It thus appears that, within the fences claimed to have existed at one time, there was also included considerable other property of third persons, and, between the property of the third persons and the property which defendants now claim, there was no dividing fence or barrier of any kind.

It might as well be said that any resident of the ancient city of Troy could have taken advantage of the famous walls thereof to assist him in maintaining his right to acquire by prescription the vacant property of any other fellow townsman merely because that vacant property was included within the walls.

Then, too, the record shows that the only actual use ever made of the property by the old Johnson couple consisted in the fact that, at certain irregular intervals of time, they planted a small garden on parts thereof, and at other times allowed a cow or two to graze thereon.

There is no claim that defendants or any of their predecessors ever paid taxes on the land, or ever attempted to have it placed on the assessment rolls in their name, nor have they ever erected any improvements thereon.

We may well say, as was said by the -Supreme Court in City of New Orleans vs. Shakspeare et al., 39 La. Ann. 1033, 3 So. 346, 349:

“These conclusions find additional support in the fact that the defendants have never had the property in dispute assessed in their name, have never paid taxes on the same, and have never placed an improvement, not as much as a shed, thereon.”

In truth, the facts in that case (City vs. Shakspeare) were, on all important points, so similar to those which are proven by the record here that we feel justified in resting our decision entirely on the reasoning and decree which we find there; and, in fact, we confess that much of the language in this opinion of ours is taken almost word for word from that one. Furthermore, the record shows that Mr. Miles Pratt, the president of plaintiff company, had been over the property at least 25 or 30 times in the last ten or twelve years, and that at no time did he find any fence on the rear line of the property, or any evidence that any fence had ever existed.

We are advised by a joint motion filed in this court that, since the trial below, one of the defendants, Cecelia Green Ross, has died, leaving as her sole heirs, Ellen Spriggs, Ella Berry, and Arthur Green, two of whom, Ellen Spriggs and Ella Berry, were already defendants, and, on that motion, we rendered an appropriate order to make parties. An amendment of the judgment is made necessary by this order.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be, and it is, amended, so as to read in favor of plaintiff and against Mary Green, Ellen Spriggs, and Ella Berry, Paul Faletta, and Arthur Green, and it is further ordered that the judgment, in all other respects, be, and it is, affirmed, at the cost of appellants.


author: HIGGINS, J.

text:
    No. 13,071
    Orleans
    HORTMAN-SALMEN CO., INC., v. BECHTEL
    (April 7, 1930. Opinion and Decree.)

      Bdrington & Carmouche, of New Orleans, attorneys for plaintiff, appellant.
    Pomes & McCabe, of New Orleans, attorneys for defendant, appellee.
   HIGGINS, J.

This is a suit for the sum of $104.05 alleged to be the balance due on an open account. Defendant entered a general denial and specially pleaded payment.

There was judgment dismissing the suit, '■ and plaintiff has appealed.

The record shows that the plaintiff furnished material for the construction of a building on defendant’s ground. Defendant was desirous of obtaining a statement in full from the plaintiff of the account, in order that he might put a price on the property to sell it. It appears that the defendant told Mr. Ryan, one of the managers of the plaintiff company, that he wanted a statement in full of the account, as he was preparing to sell the property and wanted to determine what price he would have to get for it. Accordingly, Mr. Ryan obtained a statement in full for the sum of $3,444.84 from Mr. Kaiser, plaintiff company’s bookkeeper, and gave it to the defendant during February, 1927. On April 20, 1927, the company’s general credit manager, Mr. Lively, appeared at the office of the notary public, before whom the sale was to be passed, and accepted the above sum in settlement of the account and issued a receipt therefor and authorized the cancellation of the plaintiff company’s materialmen’s lien recorded in the mortgage office. On May 4, 1927, Mr. Lively, the company’s representative, and the same party who represented plaintiff at the passing of the act of sale, wrote defendant a letter making claim for the sum of $245.55. Defendant refused to pay the claim, and the plaintiff company, on June 23, 1928, sued defendant for the sum of $104.05, alleged to be the balance due on the account.

We are convinced that at the time the sale was passed it was the intention of the representative of plaintiff to accept the sum of $3,444.84 in full settlement of the account. But, says counsel for the plaintiff, the statement merely represented material that was furnished up to the time that it was issued, but did not include material that was furnished thereafter. The answer to this argument is that at the time Mr. Lively was notified to appear at the notary’s office he was apprised of the fact that the account was to be fully liquidated and a mere reference to the company’s books would have shown the alleged additional amount which, the plaintiff now claims.

Counsel for the defendant timely objected to plaintiff’s evidence of error because it had not been pleaded or set forth in the petition. The district court overruled the objection. We seriously question the correctness of this ruling, in view of the authorities to the effect that when an account has been closed and settled no suit can he maintained for an alleged balance without alleging fraud or error. Succession of Marr, 23 La. Ann. 718; Sloan vs. Stevenson, 24 La. Ann. 278; Haile vs. McGhee, 29 La. Ann. 350; Heines & Peterson vs. Prutsman, 162 La. 587, 110 So. 765.

But, conceding that the ruling was correct and that the evidence was properly admitted, we are of the opinion that the evidence sustains the defendant’s plea of payment and that the plaintiff’s evidence in rebuttal is not sufficient to overcome the evidence in support of the plea of payment. The record shows that plaintiff’s bookkeeper furnished the defendant with statements which were in excess of the correct amount and it was only upon defendant calling the matter to the plaintiff’s representative’s attention that the correct amount was stated, i. e., $3,444.84. After the settlement of April 20, 1927, plaintiff wrote defendant a letter on May 4, 1927, claiming the sum of $245.55, but when the suit was filed for the alleged balance it was for only $104.05. Mr. Ryan, the former manager of the mill work sales department of the plaintiff company, testified that Mr. Kaiser, the bookkeeper of the plaintiff company, had given him' the statement of $3,444.84, representing the full amount due on the account. As the evidence shows that the bookkeeper had issued other erroneous statements and being the only witness who testified in behalf of the plaintiff that the balance of $104.05 was due, we are of the opinion that the rebuttal evidence was not sufficient to overcome the proof of payment.

He who alleges error must prove it. Labolais vs. Bernard, 6 Mart. (N. S.) 206; Palfrey vs. Stinson, 11 La. 77; Union Bank vs. Hyde, 7 Rob. 418, 41 Am. Dec. 290.

For the reasons assigned the judgment appealed from is affirmed.


author: BYRNES, Judge

text:
    No. 12,058
    Orleans
    DAUENHAUER v. SIREN ET AL.
    (April 7, 1930. Opinion and Decree.)

      Max M. Schaumberger, of New Orleans, and Waverly A. Henning, of Gretna, attoneys for plaintiff, appellant.
    Wm. H. Talbot, of New Orleans, attorney for defendants, appellees.
   BYRNES, Judge

ad hoc. In this case plaintiff, Mr. Thomas B. Dauenhauer, is claiming on behalf of his thirteen year old minor daughter, Veronica, damages in the sum of $30,000 for injuries which she sustained in a deplorable accident on Mardi Gras day, Tuesday, February 21, 1928. He also seeks to recover for himself $200, the amount expended by him in providing his daughter with the necessary medical attention, nursing, etc., during the long and serious illness resulting from her injuries.

The defendants are John N. Siren, owner of the automobile, and his son, Alton Siren, who is alleged by plaintiff to have been the operator of the car at the time of the accident. The father is made a defendant on the allegation that his son was his agent.

The defense is: First, that the automobile had been stolen about 1:30 p. m. on that day, and that the driver of the car at the time of the accident was the unidentified thief. Secondly, that Alton Siren was of the full age of majority, and that no relationship of principal and agent existed between him and his father at that time.

There was judgment in the lower court in favor of the defendants, dismissing plaintiff’s suit.

The immediate facts surrounding the accident are not disputed, and may be summarized as follows:

Plaintiff’s daughter was standing, together with a number of other young girls of her age, on the sidewalk at the uptown lake corner of Magazine and St. Joseph streets, about 1:.S0 o’clock in the aftennoon of Mardi Gras day, February 21, 1928, waiting for an up-bound Magazine street car. The Dodge sedan owned by John N. Siren and driven at a high rate of speed, after bouncing against two other' automobiles parked on the lake side of Magazine street, near the intersection of St. Joseph street, careened wildly and dashed upon the sidewalk. The children scattered in their efforts to avoid injury, all succeeding in doing so except plaintiff’s daughter and one other child. The bumper of the automobile struck his little girl wiih terrific force, jamming her against the building fronting on Magazine street. Her left leg was so badly crushed and broken that the surgeons at the Charity Hospital were forced to perform an emergency operation, amputating it about six inches above the knee. The other little girl who was injured suffered a fracture of the leg.

The driver of the automobile jumped to the ground and fled up Magazine street. According to plaintiff, he was Alton Siren. According to the defendants, he was the unknown youth who .stole the car and has never been apprehended.

In support of his contention that Alton Siren was the driver of the car, plaintiff produces but one witness, a man named Pitre, thirty-two years of age, who, at the time of the accident, was employed as a taxicab driver. Pitre testified in substance as follows:

He was walking on the river side of Magazine street, in an uptown direction; that his attention was attracted by the bumping of cars, the grinding of brakes, and the screams of the children. That he saw the automobile as it plunged madly onto the sidewalk, striking two of the young girls; that he rushed across the street to render whatever assistance it lay in his power to give. That as he was extricating the injured girl, Veronica Dauenhauer, and attempting to make her more comfortable by placing her in a sitting position with her back resting against the wall of the building, he caught a glimpse of the driver of the machine just before he jumped from it and fled. He subsequently attempted to identify Alton Siren as this man.

Pitre’s testimony is neither satisfactory nor convincing. At the time of the accident he had not known Alton Siren, in fact had never seen him before. He admits that his thoughts and actions were concentrated on rendering help to the unfortunate child, and that he was surprised and angered when he discovered that the driver of the ear was running away from the scene of the accident.

About a month later Pitre, accompanied by both fathers of the injured girls and a police officer, visited the residence of Mr. John N. Siren for the purpose of identifying Alton Siren as the man whose recklessness had caused the accident. He failed to do so. Subsequently, at the trial of the case, he gave as his reason for not identifying Alton, on that occasion, that he was afraid to cause any excitement in Mr. Siren’s home.

On the other hand, Alton Siren, in a straightforward manner, detailed his movements and actions on that day, from 10 o’clock in the morning until 7 in the evening. His narrative is supported by witnesses, and corroborated by proven facts.

He shows that he and his bride of a few months, together with other members of his family, were driven by his father, in his father’s automobile, from his father’s residence on South Pierce street to Camp and Natchez streets for the purpose of seeing the Rex parade. That they arrived on Natchez street about 11 o’clock; that his father located a favorable space on Natchez street, about forty or fifty feet from Camp, and there parked his car; that all of the members of the family left the automobile at that spot and walked over to St. Charles street where they saw the parade. That they then returned to Camp street and there waited for the parades (Rex and Druids) to pass down that street. That about 1:30 p. m., the parades having passed, his father and mother, and sister, and the little grandchildren desired to return home, While he and his wife decided to see the maskers on Canal street, attend a picture show, and have dinner downtown; that he and his wife left the family group on Camp street, near Natchez. That they walked down Camp street in the direction of Canal, and at the corner of Camp and Gravier streets he met another sister and a Mr. Rinehart; that he introduced Mr. Rinehart to his wife and spent about ten minutes in conversation with them. Leaving his sister and Mr. Rinehart, he and his wife walked to Canal street and attended a picture show at the Tudor theater, remaining there approximately two hours, after which they had dinner at Brittlings Cafeteria, in the Masonic Temple Building; they then walked back to Canal street, took in the sights for a short while and saw another show at the Globe theater. When they left this latter place of amusement it was nearly 7 o’clock p. m.; that they walked to St. Charles street and selected a place in front of the Hanover Shoe Store on that street, and there waited to see the Comus parade. While waiting there some members of his family passing in the crowd saw him and informed him that his father’s automobile had been stolen, and that it had been wrecked in an accident in which two little girls were severely injured.

The testimony of his wife and the other members of the family coincide with his in every important detail.

The father testified that after Alton and his wife left him and the family on Camp street, he, intending to return home, walked over to the place on Natchez street where the automobile had been parked that morning, but, despite a diligent search, couid not find it. That he notified a police officer near-by that his Dodge sedan had been stolen. The police records show that the officer reported the theft of this car to the precinct station at 2:10 p. m. that afternoon.

An impressive fact supporting Alton Siren’s statement that he was not the driver of the car is the following all-station police message which was sent out shortly after the accident.

“Arrest on sight the following described unknown white man: age, about nineteen years, weighing about 130 pounds, dark complexion, dark hair and eyes, long hair, nice looking, has a boyish voice, wore suit between color of brown and gray, no hat.
“This man is wanted for the robbery of a Dodge sedan, property of Mr. J. N. Siren, white, of 415 South Pierce Street, from Natchez near Camp Street, and after the robbery of this automobile ran into two little girls on St. Joseph and Magazine Streets, injuring them seriously, then abandoning the car on scene and escaping.
“This man can be identified by Mr. and Mrs. W. A. Chachere, Jr. (w) of 1560 Camp Street, phone Uptown 9090. When arrested notify this precinct.
“(Signed)
“Captain David B. Jackson, Commanding.”

Alton Siren, the record shows, is a young man of large proportions, weighing one hundred and ninety-six pounds, a blonde, with light hair and blue eyes. It is obvious that the description of the driver as stated in the foregoing all-station police message could under no circumstances be made to fit the young defendant in this case.

Mr. and Mrs. Chachere were not called as witnesses, and there is nothing in the record to explain why the court has been deprived of the benefit of their testimony.

The plaintiff’s theory of the case is difficult to follow — that Alton Siren had, without notifying his father, taken his automobile and left him, his mother, and the other members of the family, including his own wife, without a means of transportation on Carnival Day, and then, immediately after the accident, conceived the idea of pretending the car had been stolen, located his father in the dense crowds of Carnival Day and arranged for the reception and issuance of the police reports. To have accomplished these things within the short space of forty minutes we believe to be not only improbable, but impossible.

The accident was a most regrettable one —a young and beautiful girl, a trained and accomplished dancer, just past the threshold of her teens, has been permanently crippled. But the evidence we believe proves with certainty that Alton Siren was not the driver of the car that caused her injuries.

The judgment of the lower court is, therefore, affirmed.


author: DREW, J.

text:
    No. 2717
    Second Circuit
    FARRAR & STRANGE v. SPENCER BROS.
    (April 10, 1930. Opinion and Decree.)
    Stewart & Stewart, of Minden, attorneys for plaintiff, appellee.
    R. F. Langston, of Minden, attorney for defendant, appellant.
   DREW, J.

The record in this case contains only the petition, answer, an itemized statement of the account sued on, the citation and return thereon, and the judgment of the lower court in favor of the plaintiff for the amount sued for and reserving to the defendant the right to proceed against J. E. Farrar in a separate action and rejecting the reconventional demand of defendant in this suit.

There is no evidence in the record, and there was no argument of the case by appellant’s counsel and neither has he filed a brief in the case.

The lower court is presumed to have had sufficient evidence before it on which to base its judgment, and there are no errors in that part of the record before us.

Therefore, it is ordered, adjudged and decreed that the judgment of the lower court be affirmed, with costs.


text:
    No. 2756
    Second Circuit
    SHARON BAPTIST CHURCH v. FOWLER
    (April 10, 1930. Opinion and Decree.)

      Goff & Barnette, of Arcadia, attorneys for plaintiff, appellee.
    T. H. McEachern, of Homer, attorney for defendant, appellant.
   WEBB, J.

In this action plaintiff, Sharon Baptist Church, alleged that, on July 11, 1872, it acquired from Mrs. M. A. Tate, certain land in the parish of Claiborne, specifically described as “about two acres of land upon which Sharon Church is situated, beginning sixteen feet east of the northeast corner of W. B. Murphey’s tract of land on the Homer and Trenton road, via Lisbon, at a pine knot corner, and run in an eastern direction, ninety yards, to a pine knot corner, thence in a southern direction one hundred and twenty yards, thence west seventy yards to within sixteen feet of W. B. Murphey’s line to a pine knot corner, thence north one hundred and twenty yards to the starting point,” and that Mrs. Tate had acquired the property by mesne conveyances from the United States.

Plaintiff further alleged that the property lies on the south side of said Homer and Trenton road and in the southwest corner of the N.E.1/4 of N.E.1/4 and northwest corner of the S.E.1/4 of N.E.1/4 of section 34, township 21 north, range 4 west, of Claiborne parish, La.; that plaintiff had caused the said land to be surveyed and lines located by a licensed surveyor, as shown by plat attached to the petition which shows the location of the lines and corners of the property; that plaintiff had been in actual physical possession of the property as shown by the plat, since July 11, 1872, until about two years prior to the suit, when defendant, Mrs. Pearlie Fowler, took possession of that portion of the ¡property shown on the plat as situated in the northwest corner of the S.E.1/4 of N.E.1/4, and had cut and removed from said land timber of the value of $50, and plaintiff prayed for judgment against defendant recognizing plaintiff as the owner and entitled to the possession of the lahd described, and especially that part of the land shown by the deed and plat as being in the northwest corner of the S.E.1/4 of N.E.1/4, etc., and for further judgment against defendant for $50, the alleged value of the timber cut from the property by defendant.

In answer, defendant denied plaintiff’s allegations, with the exception that she admitted possession of that part of the land shown on the plat as lying in the northwest corner of the S.E.% of N.E.%, etc., and she alleged that she had acquired all of the said S.E.% of N.E.% of section 34, township 21 north, range 4 west, of Claiborne parish, La., from W. J. Wilson and E. B. Tatum under titles translative of property, and that she and her authors in title had been in possession of said land for more than thirty years. Defendant further pleaded that, if the lines of the parcel of land as described in the deed from Mrs. Tate to plaintiff should be retraced in accordance with the calls for the starting point, courses, and distances, the entire parcel would be located in the N.E.^ of N.E.% of section 34, township 21 north, range 4 west; and she further pleaded the prescriptions of ten, twenty, and thirty years, and prayed that plaintiff’s demands be rejected at its cost.

On trial judgment was rendered in favor of plaintiff against defendant recognizing plaintiff as the owner of about one-half acre of land situated in the northwest corner of the S.E.% of N.E.1/^ of section 34, township 21 north, range 4 west, of Claiborne parish, La., as shown by the map annexed to plaintiff’s petition, and filed in evidence, which was made a part of the judgment by reference and ordered to be recorded with the judgment. Defendant appeals.

An inspection of the map shows that the parcel of land claimed by plaintiff as relocated by the surveyor lies in the southwest corner of the N.E.% of N.E.% and northwest corner of the S.E.% of N.E.% of said section 34, but the map is not accompanied by a proces verbal, or field notes, of the survey, and there is not any data on the map from which the surveyor who made the survey was able to state the area of the part of the tract lying in the northwest corner of the S.E.1^ of N.E.%, and the evidence does not show that the surveyor, when making the survey, marked the lines or corners of the property. The value of the survey and map depends altogether upon whether or not the starting point of the survey can be found by one having occasion to use the map, or defendant when called upon to surrender possession of the property of which plaintiff was decreed to be the owner.

As stated, the surveyor did not mark the corners or lines of his survey, and, while the map indicates that the starting point of the survey was in the center of the Homer-Trenton highway at a distance of sixteen feet from the intersection of the south line of the highway and the dividing line between the N.E.% of N.E.% and N.W.1^ of N.E.1/^ of said section 34, the evidence of the surveyor does not show that he established or located either of the intersecting lines, or that he placed any monuments at the intersection of the lines to which anyone having occasion to refer to his survey or map could locate the starting point of the survey.

The description of the property as stated in the deed from Mrs. Tate to plaintiff indicates that in locating the land the starting point was “at a point sixteen feet east of the northeast corner of W. B. Murphey’s tract of 'land on the Homer and Trenton road, via Lisbon” but it does not appear from the map or the testimony of the surveyor that he started at that point, his testimony as to the starting point reading, in part, as follows:

“Q. In making this survey, at what point did you begin?
“A. The survey began at the northwest corner.
“Q. Did you find a corner there?
“A. The corner was supposed to be in the center of the old Lisbon and Trenton road.
* * *
"Q. But did you find any principal point of commencement as designated in the deed from Mrs. Tate?
“A. I did not.
* * *
“Q. You just surveyed them out according to what people told you?
“A. Yes.”

We are of the opinion that there was not sufficient evidence for the decree recognizing plaintiff as the owner of any land in the S.EA/i of N.E.% of said section 34, in the possession of defendant, and, further, that the evidence did not establish that the surveyor correctly relocated the lines of the property.

The survey was ex parte and, insofar as the record shows, was made without the knowledge of plaintiff or the owners of adjoining land whose rights may be affected by the survey establishing the boundaries; and the evidence failing to establish that the survey was correct and it being impossible to definitely locate the property in possession of defendant by reference to the map, plaintiff’s demands should have been rejected as of non-suit.

It is therefore ordered that the judgment appealed from be avoided and that plaintiff’s demands be rejected as of non-suit, and that plaintiff pay all costs of suit.


text:
    No. 2744
    Second Circuit
    BERRY v. LOFTON
    (April 10, 1930. Opinion and Decree.)
    J. W. Jones, Jr., of Natchitoches, attorney for plaintiff, appellant.
    Rusca & Cunningham, of Natchitoches, attorneys for defendant, appellee.
   DREW, J.

This case was tried in the lower court and a judgment rendered, in whose favor we are unable to say. An appeal was taken to this court. The record was not complete when sent to this court, as the evidence was not included in the record. This matter undoubtedly having "come to the knowledge of the attorneys for the appellee, they withdrew the record and returned it to the Clerk of Court of Natchitoches parish, Louisiana, for the evidence to be transcribed and placed in the record. The record has never been returned to' this court, and there has been filed in this court a certificate of the Deputy Clerk and Court Reporter of Natchitoches parish, which reads as follows:

“This is to certify that I ana the Deputy Clerk of the District Court, in and for the parish and state above written, that I am the custodian of the records of the court, and the official Court Reporter of the 10th Judicial District Court. That Judge W. T. Cunningham gave me the record in the case of W. A. Berry vs. W. N. Lofton for the purpose of having the transcribed testimony inserted therein, that I distinctly remember transcribing the testimony, as shown by my note books, and my recollection is that I returned the said record to Judge W. T. Cunningham. I have made a diligent search through all records and files in my office, and I am unable to locate the record above referred to, and do not know where the same now is.
“Witness my hand and the impress of my official seal this March 22nd, 1930.
“A. H. O’QUINN,
“Deputy Clerk, 10th D. C. La.
“Court Reporter, 10th D. C. La.”

The attorneys for both plaintiff and defendant deny having any knowledge of the whereabouts of the record.

It is clear that the entire record has been lost, through whose fault we are unable to determine. We therefore feel justified in setting aside the judgment of the lower court and remanding the case to be tried in accordance with law.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be set aside and the case remanded to the lower court to be tried according to law.

Costs to abide the final decision in the case.


text:
    No. 2778
    Second Circuit
    MUSLOW v. WESTMORELAND
    (April 10, 1930. Opinion and Decree.)
    B. H. Lichtenstein, of Shreveport, attorney for plaintiff, appellant.
    Wilkinson, Lewis & Wilkinson, of Shreveport, attorneys for defendant, appellee.
   DREW, J.

In a prior suit between plaintiff and defendant, plaintiff sued on an account totaling $313.24. Defendant admitted'an indebtedness of $181, for which amount judgment was rendered ' in favor of plaintiff, and the remainder of his account was non-suited. Plaintiff now sues to recover the amount of $132.24, being the amount of his claim that was non-suited in the former litigation.

Defendant was engaged in the teaming business and was doing hauling for the Bradseick Lumber Company under a verbal contract whereby the Lumber Company was to furnish all feed used by defendant in feeding his mules.

Defendant’s son, a man over the age of 21 years, was in charge of the teams and was being paid by the month. Defendant did not purchase any of the feedstuff and neither did he ever authorize the plaintiff to charge the feedstuff to him. When he was presented with a bill for feedstuff to the amount of $181, he testifies that he agreed to pay that amount and instructed the plaintiff not to charge anything else to his account. The plaintiff denies that he ever received any such orders- from defendant, and relies on the testimony that the mules of defendant ate the feed and therefore contends that defendant is liable for the price of same.

Defendant’s son testifies that the feed was furnished to him by the lumber company and that he thought it was charged to the lumber company, and that he did not authorize or instruct plaintiff to charge the price of the feed to his father, the defendant.

The case involved only questions of fact, which have been decided by the lower court adversely to the plaintiff. In such cases we are reluctant to disturb the finding of the lower court, unless the same is clearly erroneous. After reading the record in this case we think the lower court was justified in its findings.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be affirmed with costs.


text:
    No. 2788
    Second Circuit
    FOWLER COMMISSION CO., INC., v. E. J. DEAS & CO., ET AL.
    (April 10, 1930. Opinion and Decree.)

      Dimick & Hamilton, of Shreveport, attorneys for plaintiff, appellant.
    Wilkinson, Lewis, Wilkinson & Burford, of Shreveport, attorneys for defendants, appellees.
   DREW, J.

E. J. Deas & Co., Inc., paving contractor, secured from the city of Shreveport seven contracts to pave certain streets in said city. Seven different streets were to be paved, and seven different contracts were entered into. All the contracts were signed at the same time, and the same insurance company was bondsman under all contracts.

In performance of said contracts, it was necessary to use a number of mules for grading, etc. The mules were all kept at the same barn and fed at the same time, and all mules were used on the different jobs.

E. J. Deas & Co., Inc., purchased from the plaintiff herein at one time feed to the amount of $725.75, with which to feed said mules used in said paving work. The Deas Company defaulted on the contracts, and a receiver was appointed. The plaintiff was not paid its bill for the feedstuff.

Plaintiff, in its attempt to come under Act No. 203 of 1924, filed for record a sworn statement of the amount owing to it by the Deas Company, and set out that the feedstuff was used to feed the mules used in constructing the paving on the seven different jobs. A like sworn statement was served upon the proper officers of the city of Shreveport. There is no controversy over the time of filing said sworn statement, but there is a controversy over the form of said sworn statement, in that it included other jobs outside of the city limits, which is unnecessary for us to discuss.

After demanding of the city of Shreveport the payment of said bill and waiting for a period of thirty days, the plaintiff entered this suit against the receivers of the E. J. Deas Company, Inc., and the city of Shreveport, praying for judgment in so-lido against them. There was no answer filed by the E. J. Deas Company, Inc., and judgment was properly rendered against it. It has not appealed from that judgment; therefore same is final as to it.

The city of Shreveport filed an exception of no cause of action, which was overruled by the lower court, and on trial of the merits, there was judgment rejecting the demand of plaintiff as to the city of Shreveport. Plaintiff has appealed, and the city of Shreveport has not answered the appeal; therefore, the exception of no cause of action is not before this court.

The city of Shreveport answered, pleading a general denial to the demands of plaintiff.

Act No. 203 of 1924 was at the time of the filing of this suit the only act giving a lien and privilege in favor of furnishers of feedstuff, and, if plaintiff can recover at all, it must be under the application of this act. Section 1 of said act reads as follows:

“Be it enacted by the Legislature of Louisiana, that any person, firm, corporation, or association of persons or partnership, to whom any money shall be due on account of having supplied and furnished feed for use and consumption by mules or other livestock used and employed by any contractor or subcontractor in the construction, erection, alteration or repair of any public roads or public works of any character, under a contract in excess of five hundred dollars at the expense of the State or any Parish, City, Town, Village, Public Board or Public Body, may file with the authority having the work done and record in the Office of the Recorder of Mortgages in which the work is being done any time after the maturity of his claim, a sworn statement of the amount due him, and any payments made thereafter by said authority without deducting the amount of the claim so served on it shall be at its own risk.”

The act only applies to contracts in excess of $500 done at the expense of the city, and not to contracts not done at the expense of the city.

The contract between the city of Shreveport and E. X Deas & Co., Inc., shows that the expense of paving the seven streets was to be done at the expense of the abutting property owners, including the intersection. The city was to pay nothing. The contract for paving the streets in question was under Act No. 187 of 1920.

In the case of Baker vs. City of Shreveport, 165 La. 391, 115 So. 631, 632, the Supreme Court of this state, in passing on a like contract, said:

“The work of paving the streets in question was done under * * * Act 187 of 1920. No liability whatever was incurred by the municipality for the payment of the work; the contractor agreeing that its compensation therefor should come out of special assessments to be levied against the owners of the property abutting the streets.”

Lien and privilege laws are strictly construed, being • in derogation of common right, in that they render a third person and his property liable for obligations which he has not contracted. Alfred Hiller Co. vs. Hotel Grunewald Co., 147 La. 129, 84 So. 520; Ketteringham vs. Homestead Society, 140 La. 176, 72 So. 916.

It is clear that plaintiff cannot recover of the city of Shreveport under application of Act No. 203 of 1924, and therefore his case must fall.

Our finding on this question bars plaintiff from recovery; it is therefore unnecessary to discuss other points raised by the defendants.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be affirmed, with costs.


text:
    No. 2761
    Second Circuit
    MODAWELL v. IVEY ET AL. (AMERICAN NATL. BANK, Garnishee) (BUSH, Intervener and Third Opponent and Appellee)
    (April 10, 1930. Opinion and Decree.)

      C. B. Prothro, of Shreveport, attorney for plaintiff, appellee.
    E. W. & P. N. Browne, of Shreveport, attorneys for garnishee.
    Drew & Wallace, of Minden, and Galloway & Johnson, of .Shreveport, attorneys for intervener and third opponent, appellant.
   WEBB, J.

Plaintiff, J. H. Modawell, a judgment creditor of A. R. Bush for the sum of $194.13, with interest and attorney’s fees, issued execution on the judgment, and obtained thereunder a writ of garnishment against the American National Bank, under which there was seized on June 4, 1924, funds deposited to the credit of Mrs. A. R. Bush. Mrs. Bush filed an intervention and opposition, claiming that the funds seized were her separate paraphernal property and not subject to the payment of her husband’s debts, and she prayed that the seizure of the property be released. She appeals from a judgment rejecting her demands.

There existed between intervener and her husband, the judgment debtor, a community of acquets and gains, and it is conceded that the presumption was that the property seized belonged to the community and was liable for the debts of A. R. Bush, and that it was incumbent upon intervener to affirmatively establish that the funds seized were her separate paraphernal property.

Plaintiff, the judgment creditor, rested his case on the presumption, and the evidence on behalf of intervener was her statement that she had received some funds from the succession of her parents ten years prior to the seizure, which had been deposited in the bank, and that she had also received gifts of money at various times from her relatives, which had also been deposited in the bank, and her testimony was corroborated by the statement of her husband, and both husband and wife stated that the funds seized belonged to the wife.

The statement of the account of Mrs. Bush with the bank shows a balance of $184.99 on May 9, 1924, and that, on the date of the seizure, the amount of the account was $279.29, but there was not any attempt made to show that the deposits made after May 9, 1924, were of funds obtained by Mrs. Bush from either of the sources stated, nor was it shown that the amount on deposit of date May 9, 1924, was any part of the funds which she had obtained by inheritance or gift; and we are of the opinion that the evidence failed to establish that the funds seized were the separate property of intervener.

“The legal presumption in favor of the community dispenses those claiming community rights or asserting community obligations from other proof, and it is incumbent on those denying the community and asserting the property or funds to be the separate estate of the wife to prove affirmatively and satisfactorily that the same is hers.” Manning vs. Burke, 107 La. 456, 31 So. 862.

The judgment is affirmed.

DREW, J., recused.