text:
    No. 11,177
    Orleans
    KINGSLEY v. SCHNELL ET AL.
    (November 26, 1928. Opinion and Decree.)
    Daly & Hamlin, of New Orleans, attorneys for plaintiff and appellant.
    Chas. Fletchinger, of New Orleans, attorney for defendants and appellees.
    Robt. C. Davey, tutor ad hoc.
   WESTERFIELD, J.

This is a suit by a tenant against a landlord for damages due to personal injuries, alleged to have been sustained by the tenant because of a fall said to have been occasioned by defective steps, the amount claimed is $10,-226.00.

Plaintiff asserts that while sweeping a room leading out into the side yard, the steps of her residence were covered with the sweepings, which she undertook to remove with her broom, sweeping one step at a time; that as she reached the last or lower step, a piece of tread gave way, her feet went forward, she fell back and became instantly unconscious. She was picked up after her fall, by her husband and others, who described her position as lying face upward with her hand on the second step and her body projecting into the yard.

Defendant admits liability for any injury by caused defective steps, and does not deny the fact that plaintiff fell while in the act of sweeping the steps, as she claims, but insists that the steps did not break under her weight and had nothing to do with the accident, her fall being attributable to her physical condition.

The trial court in deciding the case against plaintiff gave the following reasons:

“The evidence in this case leaves no doubt that the plaintiff had a fall while descending steps in the premises which her husband rented from the defendants, and that plaintiff received some injuries. The horses of the steps in question, with the lower tread, were produced in Court. The testimony of all the witnesses is that all that broke, of the steps was a strip about three inches wide, from the edge of the lowest tread. The greater part of that tread and all of the rest of the steps remained intact, and after the accident, the carpenter, Mr. Duchmann, who made repairs for the defendants, jumped from one step to the other, to the ground, without shaking the structure.
“It appears from the evidence that the plaintiff, at the time of the accident, weighed 280 pounds; she had at that time a hammer toe, which caused her to limp, and she was affected with ulcers of both legs. Her movements are slow, clumsy and uncertain. Besides that, it is proved by the records of the Charity Hospital, which were produced, that she is affected with a petit mal, a form of epilepsy, in which one is liable at any moment to fall in a faint.
“The conclusion I reached from the facts is that Mrs. Kingsley stumbled and fell, or had an epileptic seizure as she was going down the steps, and that the strip which was broken from the lower tread was detached by her weight as she fell.”

We have carefully read the record and are unable to say that the judge, a quo, was clearly wrong in his conclusion. There was no eye witness to the accident and while one or more witnesses for plaintiff testified that the bottom step was broken when they saw it, shortly after the accident, and while the boards which formed the steps, when offered in evidence, appeared to be in bad condition, this evidence, though sufficient to create a doubt in our minds, is not enough to overcome evidence to the contrary, referred to by the trial court in its reasons, particularly in view of the finding of the trial court. The burden of proof rested upon plaintiff and- it has not been sustained.

For the reasons assigned the judgment appealed from is affirmed.


source: Caselaw Access Project

author: WESTERFIELD, J.

license: Public Domain

text:
    No. 11,431
    Orleans
    THE COLUMBIA WEIGHING MACHINE CO. v. BALTER
    (November 13, 1928. Opinion and Decree.)
    (November 26, 1928. Rehearing Refused.)
    (January 3, 1929. Decree Supreme Court, Writ Refused.)

      Jas. J. Cullinane, of New Orleans, attorney for plaintiff and appellant.
    A. M. Curtis, of New Orleans, attorney for defendant and appellee.
   WESTERFIELD, J.

Plaintiff, a New Jersey corporation, domiciled in. New York, sold to defendant, a resident of the City of New Orleans, a weighing machine for $180.00 to be paid for at the rate of $10.00 per month. The sale was evidenced by written contract, on a printed form of offer and acceptance, reading as follows:

“February 28, 1927.
“THE COLUMBIA WEIGHING MACHINE COMPANY, INC.,
“9 West Sixty-First St., New York, U.S.A.
“$10.00 Payable Monthly
“Price $180.00
“Freight Paid
“You may ship us one Columbia Weighing Machine, freight paid. It is sold to us with the understanding that we may return it to you at any time within thirty days from date of arrival of the machine, instead of paying the purchase price. Return shipment to be made to above address, by freight only; freight charges collect. Should we not ship it back to you within thirty days from date of its arrival, we will pay you the purchase price thereof, namely, one hundred and eighty dollars, as follows: $10.00 per month, until paid;, first payment to be made within forty days from date of arrival of the machine.
“Should we be two monthly payments in arrears at any time, the entire unpaid balance of the purchase price shall then become due, together with attorney fees amounting to twenty percent of the sum in default, if collection is made by law. It is understood you are to supply us with any mechanical parts required for the machine for a period of five years, without charge. Whenever we may want a part, wé are to inform you by registered mail.
“Firm Name:. J. T. Baltar’s Pharmacy.
“Signed by: Joe. T. Balter.
. “Six percent may be deducted if the entire purchase price is paid within forty days from date of arrival. No verbal agreement will be recognized. All orders are subject to acceptance by the Company, at its home office at New Yor^vcity.”

Defendant was not satisfied with his purchase and shipped the machine back to plaintiff May 11, 1927. Plaintiff, contends that the machine was returned too late, for the reason that the contract requires the purchaser to return the machine within thirty days after delivery, which he may do for any reason or without explanation, otherwise his obligation is absolute to accept the machine and pay the price.

It is admitted that the machine was delivered to defendant on or about April 1, 1927, and, that, consequently it was not returned until nine days after the expiration of the thirty days mentioned in the contract. Defendant explains the delay by saying, that the agent in this State for the plaintiff corporation, Mr. F. B. Mendel, requested defendant, in the event that the machine was not satisfactory, to write the plaintiff corporation for instructions as to its disposition, and, await its reply before shipping it back, in order that freight charges might be saved, in the event that plaintiff desired to place the machine with some other customer in New Orleans, and that he wrote plaintiff under date of April 21, 1927, as requested by Mendel, to which letter no reply was received, until July 8, 1927, when á demand for payment of the account was made.

It is also contended that the contract is a New York contract described in the jurisprudence of that State as one “on sale or return” and we are referred to several cases, in which the present plaintiff, was a party, interpreting similar contracts and upholding the contention of plaintiff on this point.

In reference to the action of plaintiff’s agent, counsel takes the position that it could in no wise affect the provisions of the contract requiring the defendant to return the machine within thirty days, or to pay the price, and he points to a sentence, under defendant’s signature, reading “No verbal agreement will be recognized.”

We find . it unnecessary to determine whether the contract sued on is a New York contract or a Louisiana contract. Giving to the agreement sued on, the full effect claimed for it, we are nevertheless of the opinion that plaintiff cannot recover, for the reason that the original contract was modified by the action of the plaintiff’s agent, impliedly assented to by plaintiff itself. There was ample time given plaintiff to repudiate the action of its agent, had it been so disposed. Its silence, until after the expiration of the thirty days, must forever close its mouth concerning that clause in the original contract, which it has waived. Its conduct has estopped it.

“It is a general rule that an unsealed written contract, as well as one not in writing, may be discharged or modified by a subsequent oral agreement, and that the parol evidence rule does not' exclude oral evidence thereof in a proper case. Illustrations of this rule and its application are numerous. It is also well settled that a provision in the written contract to the effect that it shall not be changed or modified except in writing does not prevent a subsequent oral agreement to change, modify or abrogate it.”

Elliott on. Contracts, Volume III, page 6.

See also on the question of estoppels, Ibid, Volume 5, page 222; Harvey vs. Moucou, 3 La. App. 231.

The manifest equity of defendant’s cause cannot be ignored, except upon legal considerations of the most compelling character, which, fortunately, do not obtain in this case.

For the reasons assigned the judgment appealed from is affirmed.


text:
    No. 11,610
    Orleans
    CONNOLLEY v. RICHMOND
    (December 10, 1928. Opinion and Decree.)

      Dresner and Dresner, of New Orleans, attorney for plaintiff, appellee.
    Chas. V. Macaluso, of New Orleans, attorney for defendant and appellant.
   WESTERFIELD, J.

Plaintiff, a real estate agent, sues for a commission. There was judgment for plaintiff as prayed for and defendant has appealed.

The claim of plaintiff was based upon the following instrument, which, it is claimed, confers upon him the exclusive authority to sell the property mentioned therein:

“I hereby appoint W. E. Connolley my Agent, and authorize him to sell my property, known as No. 3032-34 Dumaine Street, cor. Salcedo, St. Ann, and Gayaso, Square ________ for the price and sum of $ Nine Thousand ________________ Dollars, or any less amount which may hereafter be agreed upon. I also agree to refer all applicants for the purchase of said property to my Agent. When this property is sold, I agree to pay my Agent a commission of 4%. It is understood and agreed that my Agent’s labor ceases when the deposit is put up, and the commission is earned, and will be paid by me whether the title to said property is accepted or rejected by the purchaser. My agent is authorized to accept a deposit of 10% of the purchase price.
“This contract is made for _______________________ from date and can only be revoked by 30 days’ written notice from either party to this agreement.
“If. my property is sold or exchanged within 60 days from the expiration of this contract, to or with any party who may have been solicited by W. E. Connolley during the existence of this agreement, to purchase or exchange the above property, then W. E. Connolley shall be entitled to the same commission as above for his service.”

Plaintiff did not secure a purchaser, but the property was nevertheless sold by defendant on November 27, 1927, to the Italian Homestead Association, for the price of $7,500.00, through another real estate agent, and without the knowledge of plaintiff. It is admitted that no written notice was ever given plaintiff of the revocation of his authority to sell, the sole defense being that he “failed and neglected to perform any of the duties devolving upon him under the law and under the contract as a real estate agent and broker, and earned no commission from this defendant.” This defense is predicated upon the contention that the authority given plaintiff by Mrs. Richmond was not exclusive, and it is argued that she was privileged to sell through any other agent of her selection.

Mrs. Richmond appointed plaintiff as her agent to sell her property for $9000.00, and she agreed to refer all applicants for the purchase of said property to him. This authority was conferred upon the plaintiff, Connolley, until such time as she might see fit to revoke it by thirty days’ written notice. She further agreed that, if the property was sold or exchanged within sixty days of the termination of the contract to any party whom Connolley solicited during the existence of the agreement, to pay him the agreed commission.

Under the circumstances, if Mrs. Richmond was dissatisfied with the efforts which Connolley was making in her behalf to obtain a purchaser for the property, she was at liberty to sever her relations with him by giving thirty days written notice as provided by the agreement between them. This she did not do, nor did she refer applicants for purchase of the property to him. On the contrary, during the existence of the agreement, and without the knowledge of plaintiff, she engaged another real estate agent, who succeeded in selling the property for her, but for a sum $1500.00 less than Connolley was authorized to sell it for.

We are of opinion that, as long as the defendant continued Connolley’s employment as her agent by failing or declining to give the thirty days’ written notice agreed upon, she could not sell the property without paying his agreed commission; and that the agreement between them conferred exclusive authority upon Connolley as long as it was in force. Viguerie vs. Davis, 5 La. App. 77; Clesi vs. D’Angelo, 5 La. App. 432. See also, Veters vs. Sweeney, 5 La. App. 548.

For the reasons assigned the judgment appealed from is affirmed.


text:
    No. 11,534
    Orleans
    COURCIER v. JOHNSON BROTHERS
    (November 13, 1928. Opinion and Decree.)
    Dart & Dart, of New Orleans, attorneys for plaintiff and appellee.
    Eraste Vidrine, of New Orleans, attorney for defendant and appellant.
   WESTERFIELD, J.

This is a suit for $120.00. Plaintiff claims his automobile was damaged to this extent as a result of a collision between his automobile and a truck owned and operated by defendant. There was judgment for plaintiff as prayed for and defendant has appealed.

It is contended that plaintiff has not sustained the burden of proof and has failed to establish that' the accident was caused by the negligence of the driver of defendant’s truck. Two witnesses testified — plaintiff, who was driving his own car, and the driver of defendant’s truck. Each witness tells a different story as to the manner in which the accident happened, and their testimony cannot be reconciled.

It is evident to our minds that the judge, a quo, thought the explanation of the accident, as given by plaintiff, more plausible than that offered by defendant, and that', consequently, he accepted that evidence and rejected the testimony of the driver of the truck.

A careful reading of the record convinces us that the trial court was correct in its judgment. The quantum of damage is sufficiently established.

.The judgment appealed from is, therefore, affirmed.


text:
    No. 11,697
    Orleans
    INDUSTRIAL DISCOUNT CO., INC., v. SCHERER ET AL.
    (December 10, 1928. Opinion and Decree.)
    Guy D’Antonio, of New Orleans, attorney for plaintiff, appellant.
    H. B. Curtis, of New Orleans, attorney for defendant, appellee.
   WESTERFIELD, J.

The question presented by this appeal is whether under existing laws, the salary of a fireman, employed by the Fire Department in the City of New Orleans, is exempt from seizure.

The argument in favor of the exemption is that a fireman is a public officer, whose compensation is not subject to seizure. This Court held in Citizens Discount & Investment Company vs. Canatelle et al., 6 La. App. 147, that a fireman was a public officer and as the law then stood (1927) his salary, was exempt from seizure.

Counsel does not question the correctness of the decision referred to, at the time it was rendered, but relies upon the provisions of Act 115 of 1928, as changing the situation. Section 1 of that Act reads as follows:

“Be it enacted by the Legislature of Louisiana, That one-half of the wages or salaries of all laborers, wage earners, artisans, mechanics, engineers, firemen, carpenters, bricklayers, secretaries, bookkeepers, clerks, or employees of any kind or nature whatever, whether skilled or unskilled, whose rate of compensation does not exceed Two Hundred Fifty ($250.00) Dollars per month, is hereby declared to be exempt from seizure or garnishment. That the other one-half of said wages, salaries, or compensation of such, and the whole of such wages, salaries or compensation in excess of Two Hundred Fifty ($250.00) Dollars, is hereby declared to be not exempt, but subject to seizure and garnishment and provided further that in every case not less than Seventy Five Dollars per month shall be entirely exempt from seizure and garnishment. Provided, that the wages of common farm laborers and domestic servants shall be exempt entirely from seizure and garnishment. That in every case in which the wage or salary of a laborer, wage earner, artisan, mechanic, engineer, fireman, carpenter, bricklayer, secretary, bookkeeper, clerk or employee of any nature or kind whatever, whether skilled or unskilled, whose rate of compensation does not exceed Two Hundred Fifty ($250.00) Dollars per month, shall he garnisheed, either under attachment or fieri facias or as otherwise ¡provided by law, a judgment shall be rendered by the court of competent jurisdiction in which the said garnishment proceedings may be pending, fixing one-half of such wage or salary as exempt, and providing for the payment to the seizing creditor of whatever sum for which judgment may be obtained out of the one-half of such wage or salary which is not exempt.”

It is contended that this provision of this act has the effect of repealing by implication the exemption from garnishment process in favor of public officers, as provided by R. C. C. Art. 1992, and C. P. Art. 647. In State ex rel. Texada vs. Capdeville, 140 La. 229, 72 So. 946, in speaking of conflicting provisions of general and special laws, the Court said: •

“The question is always one of intention, and the purpose to abrogate the particular enactment by a later general one is sufficiently manifested when the two acts are so irreconcilably inconsistent or repugnant that both cannot stand together. Such intention may also be made to appear by the words of 'the general act, by the subject-matter with which the gener'al act is concerned, by other legislation on the same matter, by the surrounding circumstances, by the purpose to be accomplished, or by anything else to which reference may properly be had for the purpose of discovering the legislative intent.”

and, at another point in the opinion:

“This court has consistently held that such general repealing clauses as are quoted above do not repeal special laws on the subject dealt with in the general law, unless the provisions of the two statutes are irreconcilable. In fact, the doctrine has been stated to be that such a repealing clause as is contained in the general law in question does not repeal a special law on the subject dealt with in the general law unless the repeal by implication is necessary to give the later statute on the subject any meaning or effect.”

In the case of Fisher vs. Dubroca, 163 La. 292, 111 So. 710, the Court considered the question of whether the money due to a tax assessor for salary and expense was subject to seizure, in satisfaction of his personal debts, by garnishment process against the Parish Treasurer, in view of the provisions of Act 184 of 1918, which it was claimed had repealed by implication the former laws, establishing the exemption of the salaries of public officers from seizure by garnishment process. The Court in an elaborate opinion held that the Act of 1918 had not abolished the exemption in the cited case.

The Act of 1918 construed in that case, amended and re-enacted, Section 1 of Act 79 of 1876, and Article 644 of the Code of Practice, and, repealed “all laws contrary to and conflicting with this Act and all laws on the same subject matter.” The article of the Code and the Act of the Legislature referred to contained a list of exemptions from seizure, and included the salary of public officers. The amending statute reinstated- most of the exemptions mentioned in those acts but failed to include the salary due to a public officer. It was argued, and it seemed to this Court as persuasive that, (the case having been taken to the Supreme Court on a writ from this Court) the failure to list the salary of a public officer among the exemptions in the amendatory act had the effect of subjecting those salaries to seizure by garnishment -process.

The Supreme Court, however, held that the Act had only the effect of eliminating from Article 644 of the Code of Practice and the Act of 1876, the provisions of law expressly referred to in its text, the exemption contained in those statutes, • but since other provisions of law, Article 1992 of the Civil Code and Article 647 of the Code of Practice also exempted the salary of public officers from seizure, tbat no implied revocation of those other provisions was intended, or could he recognized, and this notwithstanding the fact that the act contained a repealing clause to the effect that “all laws or parts of laws conflicting with or contrary to the provisions of this act he and they are hereby repealed,” and, in its title expressed the additional purpose to repeal “all laws on the same subject matter.”

In the course of its opinion the Court said that an assignment of the unearned salary of a public officer was against public policy and therefore void, quoting the following from McGowan vs. The City of New Orleans, 118 La. 429, 43 So. 40, 8 L. R. A. (N. S.) 1120, 10 Am. Cas. 633:

“The principle upon which a salary is paid to an officer is not that of a contract, or that of the laborer being worthy of his hire; for the citizen owes his services free to the state in the proportion in which the state stands in need of them. But it is that the man must live, and that, if service is expected of him, he must be supplied with the means of livelihood. The law which prescribes the mode and manner in which the officer shall be thus supplied is one beyond the control of the officer, which is not within his power to nullify by private contract with one of his fellows. To illustrate the situation by a homely and somewhat exaggerated comparison: As well might one workhorse bargain away his daily allowance of oats, and then starve in the service of his owner, as an officer bargain away the means furnished for his support. The reason for allowing the salary is precisely the same which prompts the owner of the horse to furnish him daily with an allowance of oats. In both cases the sole end in view is the efficiency of the service. To deal with the matter as if the officer had a contractual right which he may bargain away is simple to misconceive the situation. The public in its own interest makes a certain regulation, and the officer is powerless to change it.”

Act 115 of 1928, the act we are considering in the case at bar, in its title proclaims the purpose of “providing exemption from seizure and garnishment of a portion of the wages or salaries of all laborers, wage earners or employees of any kind, whether skilled or unskilled; and providing the procedure by which the portion not exempt, may be seized and garnisheed.”

There is no where in the act any reference to public officers or their salaries. The word “fireman” is used, but the connection in which it is employed, indicates that the fireman referred to is the fireman of a locomotive, whose business is to keep the fire burning and not a fireman like the defendant in this case, a member of the fire department, whose business it is to put out the fire.

In view of the holding in the Dubroca ease, concerning the public policy of the State, and the conclusions reached in that case, to the effect that the Act . of 1918 by reason of its failure to include among the exemptions the salary of a public officer which had been among the exemptions included in the law, which it had repealed, did not have the effect of subjecting the salary of a public officer to seizure because two other codal provisions, established the exemptions, thus refusing to extend by implication the effect of the law beyond its express provision. We consider the principle of • that case as controlling here, where, as we see it, a much stronger case is presented in'favor of the exemption.

For the reasons assigned the judgment appealed from is affirmed.


text:
    No. 10,394
    Orleans
    CLARK v. ENGELHARDT
    (November 13, 1928. Opinion and Decree.)
    Habans & Coleman, of New Orleans, attorney for plaintiff and appellee.
    E. Howard McCaleb, of New Orleans, attorney for defendant and appellant.
   WESTERFIELD, J.

Plaintiff on June 18, 1924, by written contract, leased an apartment from defendant, the lease to begin on October 1, 1924, and terminate on the last day of September, 1926. Under the terms of the lease the defendant, the owner of the property, obligated himself “to refinish all walls.” On September 10, 1924, by arrangements with a party by the name of Good, who at that time occupied the apartment, plaintiff, with the consent of defendant, moved in. Almost immediately thereafter, defendant contracted with one Raub, for the painting of the walls. Mr. Raub, or his employee, was negligent in the execution of his contract, in that he failed to protect plaintiff’s furniture from paint which fell as it was being applied to the wall.

Plaintiff sues for $335.00, the alleged amount of damages sustained by his furniture, in consequence of the negligent act of Raub or his employee. The defense is two-fold. First, that, at the time the damage occurred, plaintiff was a sub-tenant under an agreement with Good, defendant’s tenant, and, that defendant, as the landlord is not responsible to plaintiff, because the relation of landlord and tenant had not yet begun. Second, defendant cannot be held responsible for the negligent execution of the painting contract, because Raub was an independent contractor.

The trial court awarded plaintiff damages in the sum of $250.00 and defendant has appealed.

As to the first point raised, the evidence is to the effect that the tenant, Good, occupied the premises, under a lease from defendant which prohibited sub-letting of the premises without the consent of the owner, defendant herein; that the owner’s consent was first obtained, whereupon defendant took immediate steps to refinish the walls as he was obligated to do, under the terms of the lease with plaintiff. Defendant testified that he warned plaintiff of the possibility of injury to his furniture by the painting of the walls, and that plaintiff assumed all risk incident thereto. This statement is denied by plaintiff and is not, otherwise supported, consequently it cannot he considered, because not established. Plaintiff cannot hold Mr. Good responsible for the damage to his furniture for Good had nothing whatever to do with the painting, which was the subject of an agreement between plaintiff and defendant. The fact that he elected to perform that obligation a few days before the beginning of plaintiff’s lease, was a voluntary performance of an obligation imposed by the lease, and cannot, in our opinion, absolve him of responsibility as landlord.

It must be conceded that the evidence establishes that the painting of the walls was done by an independent contractor, and there is no dispute that the damage, for which compensation is claimed in this suit, was caused by the contractor or his agents. The law is well settled to the effect that, as a general rule, an employer is not liable for the neglige'nce of an independent contractor, his agents or employees, but this rule, like all rules, admits of exception.

The question presented here is whether a landlord, who has obligated himself in a lease contract with his tenant, to make repairs, is responsibile for the careless execution of the repairs by the agent of an independent contractor.

We are referred to the case of Smith vs. The Female Orphan Asylum, 1 La. 547, where it was held that “If any damage, be sustained by the lease in consequence of repairs put upon the building by the lessor, the latter is responsible.” Criticising this case, opposing counsel points to the fact that it was decided in 1830 when, perhaps, the doctrine of independent contractor did not prevail, and that, in any event, no such defense was made in that case. The opinion in that case does show that the repairs were made by a contractor, though there is no discussion of the doctrine of independent contractor. We qiuote the following:

“The undisputed facts of the case are the following: The appellants leased to Smith a part of a house owned by them in the Faubourg St. Mary, for the term of five years, to commehce from the 1st of January, 1829, to be used as an ice-house; at the time of the lease the house required some repairs; on the 21st of April, in the same year, the owners contracted with certain undertakers to make them, and amongst other things to put on a new roof. The repairs were not commenced (at least so far as they related to the roof) until the middle of June, at which time the old roof was taken off; and rains which immediately succeeded destroyed about 200 tons of ice, which had been put by the plaintiff into that part of the tenement by him rented. The value of the ice is proven to have been forty dollars per ton.
“According to these facts, the defendants are clearly responsible in damages for the loss occasioned to plaintiffs; being a direct consequence of the misconduct of their agents (the undertakers) in removing the roof of the house, by which the property therein stored, was exposed to imminent, risk and danger, especially such an article' as ice, which could not fail to be suddenly and totally destroyed by exposure to rain.”

The industry of both counsel has failed to produced any other Louisiana case presenting. closer analogy with the instant case than the Smith case.

In Burke vs. Werlein, 143 La. 791, 79 So. 405, it was held, that a property owner was liable in solido, with an independent contractor, where the work done under the contract “was intrinsically dangerous.” It might be argued that the work done by the contractor, in this case, was intrinsically dangerous to plaintiff’s property. It was certainly calculated to injure plaintiff’s property unless proper steps were taken to protect it.

The learned judge of the trial court was largely influenced in his conclusion by the holding in the case of Fowler vs. Saks, 18 D. C. (7 Mackey 570), 7 L. R. A. 649, decided by the Supreme Court of the District of Columbia. In that case the Court, after discussing the doctrine of independent contractor, said:

“But the rule itself has certain very proper and reasonable exceptions. These are expressed, perhaps, as well as anywhere else, in Cooley on Torts, pages 547 and 548.
“ ‘In general,’ it is said, ‘it is entirely competent for one having any particular work to be performed to enter into agreement with an independent contractor to take charge of and do the whole work, employing his own assistants and being responsible only for the completion of the work as agreed. The exceptions to this statement are the following: He must not contract for that the necessary or probably effect of which would be to injure others, and he cannot, by and contract relieve himself of duties resting upon him as owner of real estate not to do or suffer to be done upon it that which will constitute a nuisance, and therefore an invasion of the rights of others. Observing these rules, he may make contracts, under which the contractor, for the time being, becomes an independent principal, whose servants are exclusively his, and no those of the employer he contracts with; and the contractor is in no such sense the servant of his employer as to give to others rights against the employer growing out of the contractor’s negligence. In one case the following rules have been laid down: “i. If a contractor faithfully performs his contract, and a third person is injured by the contractor in the course of its due performance or by its result, the employer is liable, for he causes the precise act to be done which occasions the injury, but for the negligence of the contractor hue done under the contract, but in violation of it, the employer is in general not liable. 2. If I employ a contractor to do a job of work for me which, in the progress of its execution, obviously exposes others to unusual perils. I ought, I think, to be responsible on the same principle as in the last case, for I cause acts to be done which naturally expose others to injury”.’ ”

An interesting discussion of the subject we are considering will be found in the 15th American Law Report at page 975, et seq. It is there pointed out that in at least two jurisdictions, a landlord is not responsible for injury to the tenant’s goods because of the negligence of the contractor, if the contractor be competent and the work contracted for not inherently dangerous. Lawrence vs. Shipman, 39 Conn. 586; Meany vs. Abbott, 6 Phil. 256. Some jurisdictions hold that liability of the landlord depends upon whether repairs were made gratuitously or in the performance of a duty resting on the landlord. Bains vs. Dank, 199 Alabama 250, 75 S. O. 341; S. W. Noggle Wholesale and Mfg. Co. vs. Sellers & M. Roofing Co., 183 Mo. App. 659.

It has also been held that where a landlord is under a legal obligation to make repairs, he cannot escape responsibility for injury to tenant’s goods, by showing that the damages .were caused by the independent contractor. “The covenant of the defendant, in the lease, to repair, is a personal one, the performance of which it could not delegate to another so as to absolve it from liability for damages resulting from the negligent performance of the duty.” Eberson vs Continental Investment Co., 188 Mo. App. 67, 93 S. W. 297. In Bickley vs. Luce, 148 Mich. 233, 111 N. W. 752, the landlord was held responsible for damage to the tenant’s merchandise caused by the negligent alterations made by another tenant, at liis own expense, with the permission of the landlord. In that case the Court said:

“If the landlord had directed the tenant to make the repairs, at the landlord’s expense, in whole or in part, the men who_ carried out the work would have represented the landlord, whether they were independent contractors or not. The dutv to so reconstruct the building as not to injure the plaintiff would be an absolute duty, resting upon the landlord,' which he could not delegate to another, and thereby escape liability, * * * Whatever the rule might be as to a stranger, it can make no difference in principle as to plaintiff, who occupied under a covenant for quiet enjoyment, whether the expense of reconstruction was borne by the landlord or another, acting by his authority. In either event, the invasion of plaintiff’s possession would be due to the authority' of the landlord, who had; agreed to protect it, and, in either event, the landlord should be held liable for the negligent execution of the work, the result of which, directly attributable to the authority of the landlord, was an eviction of the tenant.”

In 14 R. C. L. Verbo “Independent Contractor,” page 104, we find the following text, supported by a number of authorities:

“If a landlord is obligated to, or attempts to make repairs to leased premises, due care must be exercised to the end that injury to the tenant will not be caused; and, if the landlord employs an independent contractor to make the repairs and he does the work so negligently that injury is thereby caused to a tenant, the landlord is responsible.”

Whatever dearth of jurisprudence may be- in this state on the subject, there is no lack of authority in other jurisdictions, the great weight of which seems to be to the effect that a landlord is liable under the circumstances prevailing in this case.

For the reasons assigned the judgment appealed from is affirmed.


text:
    No. 10,479
    Orleans
    MARTINO v. PHOENIX FIRE INS. CO.
    (November 13, 1928. Opinion and Decree.)
    (December 10, 1928. Rehearing Refused.)
    U. Marinoni & M. Provosty, of New Orleans, attorneys for plaintiff and appellant.

      J. C. Hollingsworth, of New Orleans, attorney for defendant and appellee.
   WESTERFIELD, J.

This is a suit for $900.00, on a policy of insurance. There judgment for defendant and plaintiff has appealed.

The plaintiff, an illiterate Italian, operated a “soft drink” business at No. 1115 Murat Street, New Orleans. His place of business and its contents were completely destroyed by fire on October 23, 1923. He had a policy with the defendant company which described the property insured to be' “one stock of soft drinks, candies, cigars, cigarettes, and all other articles usual to his line of business not more hazardous.”

The defendant relies upon plaintiff's breach of the iron safe clause, which requires that the assured shall keep a set of books, take a periodical inventory and keep the books and the inventory in a- fireproof safe. There has been a feeble effort made to show, that plaintiff substantially complied with this clause in his policy, to the extent held necessary in the case of Block vs. Detroit Fire & Marine Insurance Company, 7 La. App. 20, but it is q/uite clear, that plaintiff has not complied with the iron safe clause, substantially or otherwise. In the first place, he kept no brooks, took no inventory and had no safe, his business being one of the simplest, was conducted by himself, and he did not possess the ability to read or write. But in the view we have taken of the case, the iron safe clause is of no importance.

There was in the building, at the time it was destroyed by fire, four pool tables, one piano, one ice box, chairs, glasses and tables, of an aggregate value in excess of the principal sum mentioned' in the policy. The evidence in ‘ the record clearly establishes that these articles were usual to plaintiff’s line of business and it is obvious that they were not more hazardous than soft drinks, candies, cigars, etc. The iron safe clause, by; express provision of the policy itself, applies only to stock in trade and it has been held, that, a failure of warranty in respect to this clause, does not result in a forfeiture of the entire policy, so as to prevent recovery for the loss of other items covered by the policy. Thompson vs. State Assurance Company, 160 La. 683, 107 So. 489. See also Hanover Fire Insurance Company vs. Crawford, 121 Ala. 258, 77 American State Reports, 55, 25 So. 912; Manchester Fire Assurance Company vs. Feibelman, 118 Ala. 308, 23 So. 759; Mitchell vs. Mississippi Home Insurance Company, 72 Miss. 53, 18 So. 86, 48 Am. St. Rep. 535; Sun Mutual Insurance Company vs. Tufts, 20 Tex. Civ. App. 147, 50 S. W. 180.

Defendant’s counsel contends that nothing was insured under plaintiff’s policy, except his stock in trade and that the language quoted cannot be construed as embracing other property of plaintiff. If the policy had read “one stock of soft drinks, candies, cigars, cigarettes and all other articles usually carried in stock by persons in the assured’s line of business not more hazardous,” it would have been perfectly clear that the stock alone was covered by the policy, but since the provision read “one stock of soft drinks * * *, and all other articles usual to his line of business * * *, we must give the usual effect to the words employed, and we cannot interpolate words not found in the text.. The use of the word “and” would imply that something in addition to what is previously described as insured, is included in the policy, and in this case, the additional coverage embraces “all other articles usual to his line of business.” The record clearly establishos, a custom prevailing with the proprietors of soft drink establishments, to maintain pool tables and pianos for the entertainment of their customers, to insure their presence in the establishment, and stimulate the sale of cigars and drinks, the usual stock in trade. Moreover, the record clearly shows, that, the plaintiff kept a very small stock of goods, his weekly purchases of cigars, as established by the dealer with whom he transacted that feature of his business, amounted to $22.50. His total loss, as it is described in his petition, amounts to $1,155.00, of which amount the sum of $155.00 represents the entire loss due to the destruction of his stock in trade.

In view of the small amount of stock carried by plaintiff, it would be absurd for him to insure his stock for the sum of $900.00, and it is almost unbelievable that a competent agent of an insurance company would permit him to do so.

We are of the opinion that plaintiff is entitled to recover from the defendant the sum of $900.00, plus 12% penalty and a reasonable attorney’s fee, as provided by Act 168 of 1908. We fix the fee at $150.00. See Bloch vs. Detroit Fire Insurance Company, and authorities there cited, 7 La. App. 20,

For the reasons assigned, the judgment appealed from is reversed, and it is now ordered that there be judgment in favor of plaintiff, Joseph Martino, and against the defendant, Phoenix Fire Insurance Company of Paris, France, in the sum of $900.00, plus 12% thereof, with interest thereon from judicial demand until paid, and in addition thereto, the sum of $150.00 as attorney’s fees, and all costs.

Judgment reversed.


author: JONES, J.

text:
    No. 10,893
    Orleans
    GENERAL OUTDOOR ADVERTISING CO., INC., v. HOLLANDER
    (October 29, 1928. Opinion and Decree.)
    (November 13, 1928. Rehearing Refused.)
    Lemle, Moreno & Lemle, of New Orleans, attorneys for plaintiff and appellant.
    A. B. Leopold, of New Orleans, attorney for defendant and appellee.
   JONES, J.

Plaintiff, as successor to all the rights of Thos. Cusack Co., demands cancellation of a lease made by its predecessor, with defendant for use of roof of building at 538-542 Camp, Street, for advertising purposes on the ground that defendant had violated its obligation by permitting the use of other signs on the building.

After filing exception of no cause of action and vagueness, which were overruled, defendant answered denying generally the breach and urging as a special defense, “estoppel,” on the ground that defendant had judgment, later affirmed by this Court, in a suit against Thos. Cusack Company in the City Court in April, 1926, for three months unpaid rent amounting to $90.00, although the defendant company had pleaded as a defense to that suit the very reason it now urges in present petition.

In the trial of this case, without hearing the merits, the plea of estoppel was maintained and the suit was dismissed. In this Court defendant urges his exception of no cause of action on the ground that there was no allegation that defendant consented to the transfer of this lease. To support this contention he cites C. C., Arts. 2669 and 2692, and Knapp vs. Guerin, 144 La. 754, 81 So. 302. As none of these authorities have any bearing on this point and as leases are transferred every day without consent of the lessee, the argument has no merit.

Though the special defense was urged as a plea of estoppel in the trial court and was so called by the judge, it is referred to here both in argument and brief as a plea of “res judicata.” As courts are governed by the essence and not the name of pleadings, we shall treat the defense here as a plea of “res judicata,!’ because by so doing we can go thoroughly into the issue.

In so doing we wish to emphasize the fact that we fully recognize that in this state the two pleas are essentially different, the one being equitable and the other statutory. Here we consider the defense as misnamed “estoppel” hut really “res judicata.”

This plea is untenable because the fundamental issues in the suits are not the same. In the City Court suit the thing demanded was $90.00, three months’ rent. In this suit the thing demanded is the cancellation of the lease.

The fact that plaintiff got judgment, does not show that the defense of prior breach of contract of lease, by allowing them to use the building for advertising signs was not sustained.

It may very well be that there had been a prior breach by plaintiff but that defendant could not avail itself of that defense, at that time, for many different reasons, among them, want of default, waiver of rights by permitting such use, without protest, etc.

One of the leading cases wherein this principle is stated is State vs. American Sugar Refining Co., 108 La. 603, 32 So. 965. There the State .sued the American Sugar Refining Company for a license tax and was met by the defense that the company was exempt because it was engaged as a manufacturer. The plea of res judicata was set up, on the grounds that it had been sued for the taxes of 1898, and the Court had held that it was not a manufacturer, and, therefore, it could not set up that defense when sued for the taxes of 1900 and 1901. In rejecting the plea of res judicata the Court said:

“The law of res judicata is stated with great simplicity and precision by Article 2286, Civ. Code, as follows: ‘The authority of the thing adjudged takes place only with respect to what was the object of the judgment. The thing demanded must be the same; the demand must be founded on the same cause of action; the demand must be between the same parties, and formed by them against each other in the same qualities. * * * The exception of the thing adjudged is stricti juris, and, if there should he any douht as to the identity of the things claimed, or of the persons claiming them, it cannot he maintained.’ West vs. His Creditors, 3 La. Ann. 529. ‘The plea of res judicata is without force, unless the object demanded in the former suit was precisely the same as that demanded in the action pending.’ Edwards vs. Ballard, 14 La. Ann. 362. ‘The only test as to the effect of a decree is its finality as to the matters embraced in it, and its having the requisites of Articles 2265 (2286) of the Civil Code.’ Kellam vs. Rippey, 3 La. Ann. 203. ‘The authority of res adjudicata takes place only with respect to what was the object of the judgment.’ Succession of Durnford, 1 La. Ann. 92. See also, First Presbyterian Church vs. City of New Orleans, 30 La. Ann. 259, 31 Am. Rep. 224; Slocomb vs. DeLizardi, 21 La. Ann. 355, 99 Am. Rec. 740; State vs. Jumel, 30 La. Ann. 861; Carre vs. City of New Orleans, 41 La. Ann. 996, 6 South. 893; Plicque vs. Perrot, 19 La. 327; and innumerable other cases. Our court has. never wavered, that we know of, in the rigid exaction of the three identities.
* * *
“The basic principle of res judicata is found in the necessity that a time should come when the litigation shall cease, in order that the decree of the court may be carried out. This is what the law concerns itself with, that the object of the judgment shall not remain enternally in suspense, but he delivered into the quiet and undisturbed possession of the successful litigant. This is what the Code means when it says that ‘The authority of the thing adjudged takes place only with respect to what was the object of the judgment.’ The law by virtue of which the object of the judgment is delivered is no part of the object of the judgment. It is only one of the reasons for judgment, and res judicata does not take place with respect to the reasons for judgment, but ‘only with respect to what was the object of the judgment.’ ”

In the case of Woodcock vs. Baldwin, 110 La. 270, 34 So. 440, Baldwin had obtained an injunction against Woodcock to prevent him from interfering with the possession of certain property which each claimed. The injunction against Woodcock had been made perpetual, but in subsequent litigation Woodcock sued Baldwin for rent of the premises and the latter set up the judgment in the injunction suit as res judicata. The Court, in overruling the plea, said:

“The doctrine of the common law courts that res judicata includes not only everything pleaded in á cause, but even that which might have been pleaded, does not. obtain generally under our system.
“Here in Louisiana the doctrine is much more restricted than in common law states. State of Louisiana vs. The American Sugar Refining Co., (recently decided), 108 La. 603, 32 South. 965.
“It is with us of statutory declaration and its scope and extent is defined and limited by the codal provisions of the law. Thus, Civ. Code, Art. 2286, declares that the authority of the- thing adjudged takes place only with respect to what was the object of the demand. The thing demanded must be the same and the demand just be founded on the same cause of action.”

There is nothing in the later jurisprudence of this State to warrant the upsetting of so elemental a principle so long applied to the decision of the plea of res judicata. As the thing demanded in the suit of Hollander against Cusacks Company was rent and the thing demanded in the suit of the General Outdoor Advertising Company against Hollander is the cancellation of the lease, there is not the necessary identity of the object demanded to apply the principle of res judicata. The judgment of the lower court must he reversed and the case remanded for further proceedings.

This judgment is therefore reversed and it is now ordered that the case be remanded for further hearing.


text:
    No. 10,544
    Orleans
    DERBES, CABELLERO & MILLER v. FITZPATRICK-TILL AUCTION CO., INC.
    (December 10, 1928. Opinion and Decree.)
    Lemle, Moreno & Lemle, of New Orleans, attorneys for plaintiff and appellee.
    G. P. Eberle, of New Orleans, attorney for defendant and appellant.
   JONES, J.

This is a suit for $1,017.50, alleged balance due plaintiff for auditing defendant’s books. Defendant denied all indebtedness and averred that plaintiff’s work was so negligently performed that he sustained a loss, through a defaulting bookkeeper, of $879.63, for which amount he reconvened.

There was judgment below for the amount claimed by plaintiff and a judgment on the reconventional demand in favor of defendant for $85.00. Defendant has appealed suspensively to this Court.

The sole question before us is one of fact, the existence vel non of the indebtedness.

Appellant made no appearance in this Court either by brief or by oral argument.

In the case of Schwan vs. Peterman, 123 La. 726, 49 So. 486, the Supreme Court said:

“The judgments of the district courts are presumably correct, and appellate courts are justified in affirming them on the strength of that presumption, when counsel do not, either by personal appearance or through a brief, point out the specific grounds of complaint which they could urge against them.”

In Traders Securities Co. vs. Heartfield Allen Drug Co., Inc., et al., 8 La. App. 518, the Second Circuit Court held as follows:

“Where a case is submitted without argument and without brief and the record apparently sustains the judgment appealed from, the judgment will be affirmed.”

In Succession of Suner, 5 La. App. 121, this Court held as follows:

“Judgments are presumed to be correct. Consequently when no appearance is made in this court, and no brief filed, nor argument made, on behalf of appellant, and the judgment, superficially considered, appears correct, it will be affirmed.”

These decisions are sustained by numerous authorities, set forth in detail in the above citations.

For above reasons, the judgment is affirmed.


text:
    No. 10,956
    Orleans
    UNITED STATES FIDELITY & GUARANTY CO. v. A. C. VREELAND, INC.
    (November 26, 1928. Opinion and Decree.)
    J. Zach Spearing, of New Orleans, attorney for plaintiff and appellee.
    Gordon Boswell, of New Orleans, attorney for defendant and appellant.
   JONES, J.

This suit is for $105.93, amount of premiums due by defendant to plaintiff on three bonds and a policy of insurance, all as shown by the statement annexed to plaintiff’s petition.

Defendant admitted the correctness of the items and extensions in his answer, but averred that the statement was incomplete because a commission of $93.86, due on a bond issued to the McKeithen Construction Company had been omitted. If this amount were credited the balance due would be $12.07, which amount had been tendered to plaintiff.

The lower court decided for plaintiff and defendant has appealed.

Whether defendant or J. J. McGrath is entitled to the commission of $93.86 on the McKeithen bond is the factual issue before us.

The record shows that J. E. Buck and J. J. McGrath became managers of plaintiff company on January 1, 1923, at which time and for several years prior thereto, the McKeithen Construction Company was a customer of plaintiff. McGrath’s connection with the company was severed in, June, 1923, and at that time, he was indebted to the company for approximately $5,000.00. Later McGrath became attached to defendant’s office under an. arrangement by which he was allowed on all business controlled by him 15% of the 20% obtained by defendant. He was also advanced $40.00 a week by defendant pending payment of his commission. McGrath had been more or less intimate with McKeithen, while acting as a joint manager for the plaintiff company and in the latter part of December, 1924, he tried to get a bond for Mc-Keithen through the Vreeland Agency. This, he was unable to do, because defendant did not have a financial statement of McKeithen in his office which was a prerequisite to issuance of the bond. Mc-Keithen then applied to Buck, who personally filled out the application for the bond at the Hotel Monteleone in this City, where it was duly signed by McKeithen. At that time, McKeithen asked Buck if he would allow McGrath a commission on the bond and Buck consented to this. By doing this Buck could please a client without costing his company one cent, because of Mc-Grath’s indebtedness.

At the end of January, plaintiff following its usual custom, mailed a hill to MeKeithen for the amount due on this bond. At the same time, it sent a copy of the bill to defendant, and credited to McGrath on its books, 20% of the commission, which amounted to $93.86. Buck, in explanation of his sending the credit memorandum to defendant instead of to McGrath, says that he knew McGrath had an office with defendant but that he did not know what the relationship was between them.

The record contains a carbon copy of a letter from the MeKeithen Construction Company to plaintiff of date March 11, 1925, in which MeKeithen requested that the commission of $93.86 be paid to defendant. Defendant’s able attorney argues that this letter tends to show that MeKeithen thereby recognized that the business properly belonged to his company. The force of this argument is greatly weakened, if not destroyed, by the fact that the record also contains a letter to MeKeithen Construction Company of date February 28, 1923, signed by McGrath in which the writer stated that a dispute had arisen about the matter and that he wished to settle it by having the commission credited to defendant.

Evidently McGrath had realized that the paper credit to him would be of no financial benefit as he would not get a cent in cash whereas he would get some small amount if it was paid through the Vreeland Agency.

The record also shows that it was the invariable custom of defendant, when it had secured the services of plaintiff to write a bond or policy for one of its customers, to charge the premium on its books and make the collection itself. In such cases, it, as an insurance broker, owed the premiums to the plaintiff, whether it collected them from its customers or not. In the MeKeithen case defendant made no charge on its books but plaintiff charged Mc-Keithen directly with the premium and collected it from him. If he had failed to pay it would have been plaintiff’s loss, not defendant’s.

The fact that Buck agreed to give Mc-Grath the commission under the circumstances does not strike us as improbable. MeKeithen, who had done business for a long time with McGrath, while he was with the plaintiff company would naturally be anxious to help his friend, if possible, and Buck would naturally wish to please his customer and do the favor for McGrath, if he could. Such a step was wise in this case, as it greatly pleased his customer without cost to his company.

A careful consideration of the evidence as analyzed above convinces us that the question of fact was correctly answered by the trial judge.

For above reasons, the judgment appealed from is affirmed.


text:
    No. 11,663
    Orleans
    SELLE v. BOULET TRANSPORTATION COMPANY
    (December 10, 1928. Opinion and Decree.)

      Hry. Fallon, of New Orleans, attorney for plaintiff and appellee.
    Beard and O’Keefe, of New Orleans, attorneys for defendant and appellant.
   JONES, J.

The sole question before us is the amount of damages done to plaintiff’s Ford touring car.

Plaintiff sued the Boulet Transportation Company and the City of New Orleans for $169.80, alleging that his car had been legally parked on the right side of Dumaine Street and that trucks of the two defendants’ had collided and knocked the Boulet Transportation Company’s truck into the back of his Ford, thereby causing the damage. He attached to and made part of his petition the following itemized statement:

“STAIR-LASKER MOTORS CO., INC.
“New Orleans
“October 13, 1927.
“Approximate cost of installing and furnishing new 1926 Touring Body and repairing car bearing license number 173845, made up as follows:
New Touring Car Body Installed________$141.00
Rear top curtain installed___________________ 4.50
Windshield glass installed___________________ 3.30
Tire carrier fork installed___________________ 1.00
Overhauling rear end________________________ 12.00
Miscellaneous repairs_______________ 8.00
$169.80”

The City of New Orleans filed an exception of no cause of action, which was subsequently maintained. There was judgment in the lower court against the Boulet Transportation Company, for the amount claimed, $169.80, and it has appealed to this court suspensively.

In his oral argument and brief, appellant admits his liability for some damage, but argues strenuously that it was unnecessary to install a new touring car body for $141.00 and that a rear panel, costing about $30.00, would have been sufficient. In support of this argument he quotes two decisions of this court to the effect that the measure of damages which a plaintiff may recover against a defendant who has injured his car in a collision, is the cost of having his car made as good as it was before the accident.

This principle we readily admit, but we fail to see its application here.

On the trial of the case, plaintiff himself testified that the whole rear end of the car was mashed in, the front windshield was broken and the rear end was never right afterwards; that the whole body was loosened, the front doors mashed in, and none of the doors would shut; that when he went to the repair company and asked for an estimate, he told them to look over the car and see what was needed, and they gave him the above itemized statement; that he had also told them that he wanted a new body because he did not think the old body could be fixed; that the car was in perfect condition before the accident, as he only used it to go to his office and it was only one year and nine months old. On cross-examination he admitted that he was not an automobile mechanic and that he was not an expert on the subject, but still insisted that he did not believe that the old body could be repaired because the “woodwork was all split.”

August Lagarde, witness for plaintiff, who was driving the truck of the City, testified that the whole front of the truck struck the Ford in the middle of the hack and that the Ford was all bent in.

Roy Lagarde, who was riding on the City truck with his brother, testified that ‘the Ford was pretty badly damaged, but he could not give the details.

Charles Vicknair, who was also on the City truck, testified that the back of the Ford was “all knocked in” and that it was pretty badly damaged.

6 James Avetant, a witness for plaintiff, also testified that the car was badly damaged and all the back was pushed in.

W. C. Cochran, who was driving the Boulet truck, testified that the back of the Ford was “all pushed in.”

Benoist, the expert mechanic of the StairLasker Company, who prepared the estimate for repairs to the car, testified that the car was all bent in; that there was a big hole in the side, the top was broken, the windshield broken; that the repairs were for parts damaged by the collision; that it would have cost as much to repair the parts as it did to put on a new body.; that the top was torn, that the ribs were torn and the top bolster broken; that it would have cost about $30.00 to put in a new rear panel and that he did not include the top in the estimate because the new body included the top.

The above analysis shows the following:

That the whole rear of the car was mashed in; that none of the doors would open; that .the expert thought it would cost more to do the repairing than it would to put on a new body. There is absolutely no evidence that the insertion of a rear panel would have been sufficient, nor is it shown how much the repairs to the top and sides would have been if this had been done.

We think that the evidence amply sustains the finding of the lower court, and for this reason the judgment is affirmed.


text:
    No. 11,542
    Orleans
    RHODES & SYMES v. NADESKI
    (December 10, 1928. Opinion and Decree.)
    F. C. Johnson, Jr., and Guión and Upton, of New Orleans, attorneys for plaintiffs and appellants.

      J. J. Landry, of New Orleans, attorney for defendant and appellee.
   JONES, J.

Plaintiffs, real estate agents, sued on December 1, 1927, for a commission of $225.00, alleging that defendant is indebted to them in this sum because he had breached a contract of sale of six lots of ground made on October 1, 1925. Defendant answered, admitting signing the acceptance, but denying all indebtedness, and averring that no demand had been made for more than a year after the contract was signed, and that he had never ■ been put in default. He further alleged that the purchaser had abandoned the contract and had never been able or willing to comply with it.

The trial judge decided in favor of defendant, but granted a new trial on motion of plaintiffs averring that they had discovered new evidence, showing that demands had been made on the defendant and a deed to the property had been tendered. The second trial resulted in a like judgment for defendant and plaintiffs have appealed to this court.

The pertinent parts of the contract read as follows:

“CONTRACT TO PURCHASE
“New Orleans, La., Oct. 1, 1925.
“RHODES & SYMES,
“Real Estate Agents.
“I hereby offer and agree to purchase through you, Rhodes & Symes, for the sum and price of $4,500.00, the following described property.
“If this offer is. accepted, I will deposit with you immediately in cash 10% of the amount thereof on account of the purchase price, non-interest bearing, this deposit not to be considered as earnest money, the parties hereto reserving the right to ‘demand specific performance.
“If a good and merchantable title can be made to me, I agree to accept title to above property and pay the balance of the purchase price upon passing Act of Sale, which shall be done at my expense before ----------------, Esq., Notary Public, within.............
“Should I fail to comply with the terms or conditions of this offer after same is accepted, I obligate myself to pay on demand your commission on this sale, and any Attorney’s fees and costs of Court that you may incur in enforcing collection of your claim. This offer remains binding and irrevocable until_________
“Purchaser’s Signature: Dendinger, Inc.,
“By Geo. Dendinger.
“New Orleans, La., Oct. 1, 1925.
“Rhodes & Symes,
“Real Estate Agents.
“I hereby accept the above offer and agree to pay you, Rhodes & Symes, commission of 5% on the above sale.
“Owner’s Signature: Prank Nadeski.”

On the trial of the case, George Dendinger, testified that he had signed the contract for his company and made at the same time a deposit of $450.00, and had always been willing to go through with the contract; that he had subsequently consulted his attorneys who had advised suit for specific performance, but that the “boom in Lakeview property had busted,” and that he had withdrawn his deposit before this suit was filed.

Plaintiff’s bookkeeper testified that his books showed that deposit of $450.00 had been made on October 3, 1925, by Dendinger, and credited to defendant, and that it had been withdrawn on November 18, 1927.

Barrios, the then salesman for plaintiffs, who brought about the purported transaction, testified on direct examination that he had known defendant for a long time, and that he had persuaded defendant to sign the contract in blank before the offer had been filled out by telling him that he could get $4,500.00 for the property, and that he then persuaded George Dendinger to fill out and sign the offer on the same day, and on the next morning secured the deposit of $450.00.

On cross-examination he states that defendant had signed the acceptance on a blank offer signed by him “Rhodes & Symes, agents;” that he was representing Nadeski at the time, but later represented both parties; speculation was rife in the Lakeview property at the time, and that it was going up by leaps and bounds; that he did not notify defendant until October 15 of the deposit.

Nadeski, the defendant, testified that after signing the blank offer he heard nothing further from the agents, and on October 13 he wrote a letter to plaintiffs reading as follows:

“Rhodes & Symes, Agents, and N. J. Barrios,
“740 Perdido St.,
“City.
‘Gentlemen:
“I hereby beg to notify you, that I have withdrawn from the alleged agreement of sale signed by you on October 1, 1925. The reasons for my withdrawal, amongst others, are as follows:
“1st. You had me sign an acceptance of an offer addressed to you as Agents and signed by yourselves as Agents which in reality is no offer at all.
“2nd. There is no certainty in the description sufficient to identify the property.
“3rd. Even if these two reasons were not valid in law the terms of the offer have not been complied with as you have not notified me that the 10% deposit required by the offer has been made. Under the circumstances I consider the offer of no further effect.
“Yours respectfully,
“Prank Nadeski (Signed).”

That on October 15, he had received a letter from plaintiffs reading as follows:

“October 15, 1925.
“Mr. Prank Nadeski,
“2441 Orleans Street,
“New Orleans, La.
“Dear Sir:
“In reference to the sale of lots 27 to 32 inclusive, in square No. 235, fronting on Harrison Avenue, corner of Toulouse Street, we beg to advise that this contract was made and signed by Dendinger, Inc., purchasers, on October 1st, 1925, and accepted by you on the same date, and the said Dendingei’, Inc., posted the 10% deposit on October 2nd, according to the agreement of sale.
“This deposit is held by us according to the custom in Real Estate transactions, and we are to deduct our 5% brokerage and return the balance at the time of passing the Act of Sale.
“Yours very truly,
“RHODES & SYMES.”

That he heard nothing further from plaintiffs until a short time before. this suit was filed on December 1, 1927.

The defendant’s wife and her sister both testified that they had gone to the office of Rhodes & Symes a few days after October 1st and had been informed that Barrios was no longer employed there, and that they knew nothing about, the Nadeski lots, and had no record referring to them.

The above analysis shows that plaintiffs’ proof confirms the statement in defendant’s letter above quoted, to the effect that he had signed an acceptance addressed to plaintiffs as agents, and signed by them as agents. Apparently, therefore, the so-called ' offer had no legal validity, and this fact alone sufficies to justify the decision of the lower court, for plaintiff could not accept an offer when there was none in existence.

Other valid reasons for affirming the judgment of the lower court are added, as defendant, in his answer, apparently admitted acceptance of this contract, though the proof shows differently.

When plaintiffs allowed Dendinger to withdraw his deposit of $450.00, they violated that paragraph of the contract quoted above which says that the deposit shall be retained as a part of the purchase price. By this breach of duty, directly imposed upon them by the contract, they rendered specific performance impossible and thereby deprived defendant of a valuable right.

In this case a high degree of trust was necessarily’ imposed upon the agents, who were acting as the brokers for both parties, and it is incumbent upon them, in order to secure proper compensation for their services, that they shall prove that they measured up to the responsibilities imposed. The law requires that brokers shall furnish a purchaser able and willing to carry out their contracts, and if they allow the purchaser to withdraw his deposit and thereby abandon his contract, the purchaser is no longer willing to perform, and an essential element of recovery is thereby destroyed. This equitable doctrine has been repeatedly upheld by this court.

“A contract between an owner of real estate and a broker, by which the latter is to receive from the former a commission to effect a sale, contemplates an actual sale.” McWilliams vs. Lyons, 5 Orl. App. 231.
“A real estate broker does not earn his commission for procuring a sale of the property by obtaining for the owner a mere executory agreement, not specifically enforceable, and from which the prospective purchaser in fact withdraws by forfeiting' the ‘earnest money’ deposited by him.” Haight vs. Marrero Land & Improvement Assn., 12 Orl. App. 369.
“Where the proposed purchaser is not ready and willing to buy on the terms thus proposed, and the sale is not made on account of his refusal to take the property, the broker’s commissions have not been earned.” Loyacano vs. Succ. of Thompson, 4 Orl. App. 345.

For above reasons the judgment is affirmed.


text:
    No. 11,196
    Orleans
    LOUISIANA OIL BURNING EQUIPMENT CO. v. McGREGOR
    (December 10, 1928. Opinion and Decree.)
    Bond, Curtis & Hall, of New Orleans, attorneys for plaintiff, appellant.
    Warren Doyle, of New Orleans, attorney for defendant, appellee.
   JONES, J.

This is a suit for $150.00, alleged to be the balance due for installing a Kleen-Heet Oil Burner at the residence of Dr. George F. Roeling in this City, under an oral contract fixing the price of heater at $550.00. In his answer defendant, after denying all indebtedness, avers specifically tbat he never had a contract with plaintiff and that plaintiff’s entire transactions in the matter were with Dr. Roeling himself. There was judgment for defendant and plaintiff has appealed.

Although a large part of the record is taken up with testimony as to whether the oil burner worked satisfactorily, we do not find it necessary to consider that point, as it was not raised by the answer and is not urged in argument or brief by defendant’s attorney.

On the trial of the case, Mr. Fiduccia, doing business under the name of plaintiff, testified that he had made- an oral agreement with McGregor to place a Kleen-Heet Burner in the house of Dr. Roeliuar for $550.00; that he had carried out his agreement and the heater worked satisfactorily; that Dr. Roeling first gave him a check for $400.00 on account, in which McGregor was made payee, hut that Mc-Gregor refused to endorse the check, and he then obtained a second check from Dr. Roeling, made payable to him, and cashed it.

Both Edwin C. McGregor, the defendant, and his son, Oswald McGregor, who is shown to have managed the business, testified positively that neither one of them ever made any contract with plaintiff and they both assert that they never knew plaintiff until they met him at the residence when the burner was being tested. Oswald McGregor further testifies that he refused to endorse the check because he had nothing to do with the transaction.

Dr. Roeling testifies that he employed defendant to put in a coal-burning heat system for him and that he made a written contract for this work, and after the satisfactory completion of this work by Mc-Gregor, Fiduccia heard that he (Roeling) was interested in the Manalle oil heating system, and that one day he came home and found Fiduccia’s men placing an oil tank in his yard; that he then dismissed the men, but they came back the next day, while he was away, and put in the tank without his knowledge, that he remonstrated with Fiduccia, who told him that he would .remove the oil burner if it did not work satisfactorily; that he had never even talked to McGregor about installing this burner and that, in his opinion, if anyone owed any balance, he was the debtor, and not McGregor; that he had understood from plaintiff at the time he paid him that the $400.00 covered the entire cost and that the heater would be removed if not satisfactory.

The written contract was not filed in evidence, though called for by plaintiff, and the • act of Dr. Roeling, in permitting his yard to be torn up and an oil burner installed, without authorization on his part, is unbusinesslike and unusual. These considerations make the case somewhat difficult, but the claim of plaintiff is supported only by his testimony, while the defense is supported by the testimony of the two McGregors, and also indirectly by Dr. Roeling, and by the fact that McGregor refused to endorse the first check for $400.00, and later Roeling paid plaintiff directly.

Article 2277 of the Revised Civil Code provides that contracts for the payment of more than'$500.00 shall be proved by at least one witness and other corroborative circumstances. In this case the contract is for more than $500.00 and there is only one witness, without any corroborative circumstances, except, possibly, the installment of the heater, which is in part explained by Roeling. State ex rel Richard D. Carl vs. Judge of the First City Court, 37 La. Ann. 381.

This is pre-eminently a case for application of the familiar rule that a judgment on questions of fact will not be reversed unless there is manifest error.

For above reasons the judgment is affirmed.


text:
    No. 11,291
    Orleans
    STATE OF LOUISIANA v. THE PREST-O-LITE COMPANY
    (November 13, 1928. Opinion and Decree.)
    • Charles J. Larkin, Jr., of New Orleans, .attorney for plaintiff and appellee.
    P. D. Olivier and A. B. Booth, Jr., of New Orleans, attorneys for defendant and appellant.
   JONES, J.

In this proceeding the State of Louisiana seeks to collect a delinquent license tax from defendant for the years 1925 and 1926, as provided by .Section 15 of Act 205 of 1924. Defendant filed exceptions of vagueness and want of affidavit, along with an answer averring that they were manufacturers and were therefore exempt, because its business was not covered by the above quoted section. The exceptions and merits were tried together and there was judgment for plaintiff.

The record describes the business of defendant as follows:

Solid calcium carbide is put in water and acetylene gas is formed. This passes into a large tank, then through a set of purifiers and driers, where the impurities and the water vapors are taken out. It is then pumped through oil traps, where all oil is removed. From thence it is pumped into charging racks. On these racks are placed steel cylinders which are filled with a porous .substance, generally asbestos or cement or charcoal and acitone. When the acetylene gas is pumped into these cylinders, the acitone dissolves it.

This dissolved acetylene cannot be used as it leaves the plant for either making light, heat, or power, but when mixed with oxygen it is used for welding.

Section 8 of Article 10 of the Constitution of 1921 reads as follows:

“License taxes may. be levied on such classes of persons, association of persons and corporations pursuing any trade, business, occupation, vocation or profession, as the Legislature may deem proper, except clerks, laborers, ministers of religion, school teachers, trained nurses, those engaged in mercantile, agricultural or horticultural pursuits or in operating saw mills.”

Section 15 of Act 205 of 1924 reads as follows:

“That for carrying on each business of ' gas light, gas heat or power, etc., other than those subject to license under the foreign license act or special laws, the license shall be based as follows, to-wit:”

The general (sometimes called an “omnibus”) clause, found in sub-section 34 of paragraph 2, section 24, of the above quoted act, reads as follows:

“That any other business not provided for in this act and not otherwise provided for by separate law, excepting manufacturing shall be graded the same as above set forth and shall pay a license as fixed in this Section.”

As defendant is admittedly a manufacturer, plaintiff, to maintain its position, must prove that this business is covered by some specific section or paragraph in the law. The only one pertaining thereto is Section 15, quoted above, which applies only to the business of manufacturing gas for light, heat or power. .

This provision clearly has no application to the business of defendant for two reasons: First, defendant is not manufacturing gas; Second, it does not use its’ product (dissolved acetylene) for light, heat or power.

On the contrary, the business of defendant , is manufacturing dissolved acetylene, a liquid which . is only used when combined with oxygen, for the purposes of welding.

For above reasons the judgment is reversed, and it is now ordered that the suit be dismissed.


text:
    No. 10,984
    Orleans
    FERGUSON v. G. H. A. THOMAS LUMBER COMPANY
    (October 29, 1928. Opinion and Decree.)
    W. W. Wall, of New Orleans, attorney for plaintiff, appellee.
    Wm. McL. Fayssoux, of New Orleans, attorney for defendant, appellant.
   JONES, J.

Plaintiff brought this suit for described as follows:

Mary Ferguson, for one thousand five hundred dollars damages for personal injury caused by an automobile collision, the benefit of his minor daughter, Miss

“On the morning of 'December 10th, 1923, about eight o’clock, J. F. Behr was driving his wife, Miss Mary Ferguson, and a small boy, in an automobile, on Tulane Avenue on the uptown side, going towards the river. When near St. Joseph Church, Behr blew his horn to signal the driver of a lumber wagon, drawn by four mules, to move to the side of the street. The driver then pulled over to the right-hand side of the roadway immediately behind another wagon, which had turned out the same direction, but, instead of remaining in that position and allowing plaintiff to pass, the driver suddenly turned his team to the left just as Behr’s car was passing, breaking the glass in right door and knocking the handle off.”

It is alleged the flying glass cut Miss Mary Ferguson on the lip and hand to such an extent that she had to have her lip sewed up. As a Tesult of these wounds, Miss Ferguson was caused great pain and physical suffering, and her face was permanently disfigured. Before the collision, Miss Ferguson was an unusually beautiful girl, but her looks have been permanently marred by the scar she now has on her face as a result of said collision.

The defendant, after denying all negligence on its part, averred that the automobile was being driven at a rapid rate of speed and in a careless manner, in violation of the city ordinances, and that it struck defendant’s mule with such violence as to tear the harness from the animal and render it useless for further service.

The case was tried by a jury and a verdict was rendered in favor of plaintiff for seven hundred fifty dollars.

The sole question before us is the negligence of defendant, as plaintiff’s daughter was a guest in the automobile, and the negligence of the driver, Behr, if there was any, cannot be attributed to her.

The jury found the facts against defendant, and as we think their conclusion with reference to the negligence of defendant is amply sustained by the record, it would serve no useful purpose to analyze all of the testimony. This conclusion is strengthened by the fact that if the defendant’s wagon was standing in the position shown in defendant’s photograph marked “D-3," which was offered as a true picture of the wagon at the time of the accident, it would have been impossible for the automobile to run into the hames of defendant’s left mule without turning, as claimed by defendant, because the photograph shows the rear wheel of the wagon further out than the mule.

We think the amount allowed is excessive. The evidence shows that Miss Ferguson’s lip was badly cut; that she was carried to the Charity Hospital where it was sewed up, and that she continued to suffer some two or three weeks thereafter, but it was stated by attorney for plaintiff, in argument before this court, that the wound had healed and that the. scar was not so disfiguring as had been expected.

Considering these facts, and the former decisions of this court and the Supreme Court, we think that an allowance of four hundred dollars will do substantial justice.

For the above reasons, the judgment is amended and it is now ordered, adjudged and decreed that there be judgment herein in favor of the plaintiff, William E. Ferguson, for the use and benefit of his minor daughter, Miss Mary Fqrguson, and against the defendant, G. H. A. Thomas Lumber Company, in the full sum of four hundred dollars, with legal interest thereon from judicial demand until paid and all costs.


text:
    No. 11,477
    Orleans
    ASCANO v. MACALUSO
    (November 13, 1928. Opinion and Decree.)
    (November 26, 1928. Rehearing Refused.)
    Marx & Levy, of New Orleans, attorneys for plaintiff, appellee.
    George J. Untereiner, of New Orleans, attorney for defendant, -appellant.
   JONES, J.

This is a suit for One Hundred Seven and 25-100 Dollars ($107.25) for work done and labor furnished in building a fence for defendant at 2907 Ursuline Avenue, this city. Attached to the petition is an itemized bill showing the amount of labor and material alleged to have been furnished at above address.

Defendant filed exceptions of vagueness and no cause of action along with special denials of each allegation.

The exceptions and merits were tried together, and after hearing plaintiff and two other witnesses in support of petition, and none for' defendant, the trial Judge rendered judgment in favor of plaintiff for the amount claimed.

The only defense urged in this court is based on an objection to evidence arising under the following circumstances: When the plaintiff was shown a statement for material delivered at 2906 Ursuline .Avenue, defendant said:

“I object. We have been sued for material and labor at 2907 Ursuline Avenue.”

The record does not show what ruling was made by the trial judge on this objection, but the witness was allowed to continue his testimony without further protest; although he was cross-examined meticulously by defendant as to all details of the work. Furthermore, defendant did not plead surprise or ask for a continuance."

In the course of his testimony plaintiff stated that he did not remember the correct number of the house, but he was positive that the work was done on the uptown side of the street, for defendant. He further stated that this was the first and 1 only time that he had ever done any work on Ursuline Avenue, and it was the first ■ time that he had ever done any work for the defendant.

The Judge of the lower court, in overruling motion for a new trial based on surprise, uses the following language:

“New trial refused because there is sufficient evidence to show that 2907 Ursuline Street is an error, and correct number is 2906 Ursuline.”

We agree with the trial Judge that the error in the number was not sufficient to justify a new trial.

The evidence shows that the work was done on the order of defendant, on the uptown side of Ursuline Avenue, and we do not think that any injustice has been done him by the typographical error, as he knew full well that 2906 Ursuline Avenue was the only place at which he had ordered work from this contractor. It is furthermore shown by the evidence that the wife of defendant inspected the work after it was done. Our Supreme Court has taken this view of the matter in the following two cases:

United States Fidelity & Guarantee Co. vs. Manthe, Teiss, Orleans App. Dig. 69:

“Under an allegation that a collision took place on or about April 19th, on the corner of St. Charles and Louisiana Avenue, plaintiff may prove that it happened on April 17th on St. Charles Avenue near Josephine Street when the time and place are not the gist of the accident.”

Thomson vs. Lowery, 37 La. Ann. 646:

“A discrepancy between notes sued on and the notes described in an act of mortgage, consisting merely in the name of the month ‘July’ instead of ‘June,’ is insufficient to defeat a claim for the enforcement of payment with mortgage on the property described in the act and in the petition, particularly where there is no pretense that the mortgagor has issued notes identical with those described in the act and which are outstanding, and where there is no proof in support of such objection.”

This court has also applied the same principle in the following cases:

Guillot vs. Wilhelm Moss Co., 5 La. App. 749:

“Amendments to pleadings . are favored by jurisprudence when they tend to end litigation and accomplish justice.”

Triggs vs. George, 4 La. App. 419; Aaron & Son vs. Keyser, 2 La. App. 649; Jones vs. Texas Railroad Co., 11 Orleans App. 316.

The whole tendency of modern practice is to disregard inconsequential errors.

For above reasons ' the judgment is affirmed.


text:
    No. 10,551
    Orleans
    VIAU v. SEMPREVIVO
    (December 10, 1928. Opinion and Decree.)

      McLaughlin & West, of New Orleans, attorneys for intervenor, appellant.
    W. O. Hart, of New Orleans, attorney for Civil Sheriff.
    E. H. McCaleb, of New Orleans, attorney for plaintiff, appellee.
   JONES, J.

The sole question before this Court is whether plaintiff or third opponent shall pay a keeper’s bill of $132.00. To solve the problem, it will be necessary to give a chronological outline of the various proceedings shown by the record.

On November 17, 1925, plaintiff filed a suit for rent for $360.00 and obtained an order of provisional seizure of the furniture in the leased premises. The writ was duly issued and the furniture was seized the same day. On November 23, 1925, the Civil Sheriff filed a return to the writ, stating that the seizure had been released upon defendant’s furnishing a bond for $500.00, with a surety acceptable to plaintiff’s attorney.

On January 11, 1926, due proof having been made of plaintiff’s demand, a judgment was rendered by default against defendant for the full amount thereof and judgment was signed on January 19, 1926. A writ of fieri facias was issued on the same day and defendant was notified that in three days from the service thereof the Sheriff would proceed to sell and advertise the furniture at the residence.

On January 25, 1926, the Max Barnett Furniture Company, Inc., filed a third opposition, claiming that it had a vendor’s lien and privilege upon the furniture under a duly recorded chattel mortgage, and it prayed for a separate appraisement and sale of the furniture described in the act of mortgage, with recognition of priority of its lien. On February 3, 1926, after ten days’ advertisement, the furniture was sold at the residence of defendant for the price and sum of $213.00. The Sheriff’s return shows the following accounting:

“1st. Cash received from attorney for plaintiff as advances for keeping fees and a part of the docket fees_________________________$121.00
“2nd. Amount realized in sale________ 213.50 "Costs and charges of suit and sale, including 23 days and 21 nights of keeping __________________ 184.83
“Balance which is being held awaiting the final demands of the intervenors ............. 149.67
$334.50”

On March 4, 1926, while its intervention was still pending in the lower court, third opponent filed a rule against plaintiff and the Civil Sheriff to show cause why the entire proceeds of the furniture covered by the chattel mortgage should not be' turned over to it. On the 13th day of April, judgment was rendered on the intervention and on the rule.

The priority of third opponent’s lien was recognized on the proceeds of the furniture, after all costs and expenses of seizure and sale had been paid out of the funds received. From this decision third opponent has appealed to this Court.

In this Court liability for., costs of the separate sale and appraisement is admitted. The only element of the costs disputed is the charge for a keeper of 23 days and 21 nights, amounting to $132.00.

On the trial of the third opposition, the Sheriff, after itemizing his fees, testified as follows:

$121.00 of keeper’s fees had been advanced by attorney for plaintiff, who had originally ordered the keeper; that when the attorney for the third opponent first objected to retention of keeper, he had told him that the attorney for plaintiff controlled the writ, and that later, a few days before sale, all parties had agreed that the furniture would sell better on the premises than at the Sheriff’s warehouse; that the cost of moving the furniture from the premises to the Sheriff’s warehouse would have been almost as much as the keeper’s fee for the remaining days before sale that in such cases he frequently allowed furniture to remain on the premises under a keeper, as it brought more there than it did at the Sheriff’s warehouse.

Attorney for third opponent argues that the filing of his chattel mortgage in the mortgage office gave plaintiff knowledge of his claim and that the payment of these keeper’s fees by the plaintiff was illegal.

If we admit that the chattel mortgage was known to plaintiff when he filed suit, he could not have told how much had been paid on the furniture during the year intervening between the date of the sale and the time suit was brought.

Appellant admits that he is liable for all the costs of separate appraisement and sale of the furniture. Necessarily, this would include the moving from the residence to the Sheriff’s warehouse and the storage there, and as the record does not show what these costs would be, it would be impossible for this Court, in the present state of the record, to fix that amount, even if the law or the equities should be found in his favor, but such is not the case.

Appellant does not state clearly his contention. The record apparently shows that part of the keeper’s fees was incurred two months before the third opposition was filed and before plaintiff’s claim was reduced to judgment.

The placing of a keeper under such circumstances is both economical and sensible and if third opponent considered it illegal, he should have protested more promptly.

The above analysis of the facts and pleadings shows that the equities are by no means with the plaintiff in this matter and a thorough study convinces us that the law is with the defendant.

1 In the case of Fulton vs. Husband, 7 Rob. 73, the Supreme Court held that all privileges and mortgages existing on property sold under execution, where debtor has no other property to pay his debts, are transferred to its proceeds, the distribution of which must be made as in case of a concursus.

In the case of Bowman vs. McKleroy, 14 La. Ann. 587, where several third opponents with privileges were disputing the distribution of the proceeds of the sale of slaves in the Sheriff’s hand, the Supreme Court ordered that all of the costs of the lower court be paid first out of the proceeds.

In the case of Connors vs. Citizens Mutual Insurance Co., 22 La. Ann., 330, the Supreme Court held that the Sheriff was authorized to pay his own costs and those of the clerk of court, who issued the process, out of the funds realized by sale of the property under a writ of fieri facias, and that the debtor could only claim the surplus after such costs were paid.

These rulings are supported by the following authorities:

Code of Practice, Art. 301; Jamison vs. Barelli, 20 La. Ann. 452; Succession of Forstall, 39 La. Ann. 1052, 3 So. 277; Citizens Bank vs. Tureaud, et al., 40 La. Ann. 149, 3 So. 538.

For above reasons the judgment appealed from is affirmed.


text:
    No. 10,417
    Orleans
    PAILET v. MIRANDONA
    (November 13, 1928. Opinion and Decree.)
    J. H. Wiener & S. G. Roos, of New Orleans, attorneys for plaintiff and appellee.
    C. H. Osterberger, of New Orleans, attorney for defendant and appellant.
   JONES, J.

Plaintiff sues for eleven thousand and one dollars ($11,001.00) for damages alleged to have been caused by the negligence of defendant when he carelessly drove his Nash automobile into the car driven by her husband, in which she was a passenger, on New Year’s Day, January 1, 1924, about 2:40 a. m., at the corner of Clark and Canal Streets, this City. The damages were itemized as follows:

Five thousand dollars ($5,000.00) for the physical pain and suffering caused by the accident; two thousand dollars ($2,000.00) for the nervous shock and mental anguish; three thousand dollars ($3,000.00) for the permanent injury, disfigurement, discomfort and inconvenience caused by the loss of her teeth; and, for expenses, medical and dental attention, caused by accident; doctor bill, twenty-nine dollars ($29.00), dentist bill, one hundred and twenty-seven dollars ($127.00), medic&ie, twenty-five dollars ($25.00), surgical dressing, twenty-five dollars ($25.00); for the value of her' Ford car the sum of seven hundred and ninety-five dollars ($795.00).

After his exceptions of no cause of action and vagueness had been overruled by the trial court, defendant filed an answer, admitting the accident, but denying the damages, and denying all negligence. After hearing the plaintiff and eleven other witnesses on her side, and the defendant and six other witnesses for him, the trial court gave judgment in favor of plaintiff for one thousand dollars ($1,000.00). From this judgment defendant has appealed and plaintiff has answered the appeal, praying that the judgment be raised to the amount originally sought.

Appellant has made no appearance in this court either by brief or oral argument. The question is purely one of fact and a careful reading convinces us that the record sustains the judgment of the trial court both as to negligence of defendant, and as to the amount allowed in damages.

For above reasons, the judgment is affirmed.