text:
    No. 13,750
    Orleans
    SUBDIVISION REALTY CO., INC., v. WOULFE
    (June 8, 1931. Opinion and Decree.)
    (July 20, 1931. Rehearing Refused.)
    (October 6, 1931. Writs of Certiorari and Review Refused by Supreme Court.)

      R. J. Weinmann, of New Orleans, attorney for plaintiff, appellant.
    Bond, Curtis, Hall & Foster and Arthur M. Curtis, of New Orleans, attorneys for defendant, appellee.
   HIGGINS, J.

The plaintiff brings this action against the defendant on a written contract or bond for deed for the sale of real estate and fourteen notes, maturing monthly, given as a part of the purchase price for the property. The petition alleges the contract was entered into on August 15, 1927, under the terms of which defendant agreed to purchase certain lots of ground for the sum of $600, represented by a cash payment of $60 and thirty promissory notes of $18 each, payable monthly; that the defendant made the initial cash payment of $60 and also paid sixteen of the notes, but failed to pay the remaining fourteen, which had all matured and were unpaid notwithstanding amicable demand; that plaintiff was- ready and willing to convey to the defendant a warranted title to the property free of incumbrances, upon completing the payment of the fourteen notes sued upon.

The defendant, in his answer, admits the execution of the agreement,-but avers that the contract, or bond for deed for the sale of the real estate was, in accordance with its own terms, canceled by virtue of a letter of the plaintiff dated May 7, 1930, and a letter of the defendant in reply thereto dated June 6, 1930, and that, therefore, the notes being sued upon are without consideration and should be returned to the defendant. Defendant also, in reconvention, seeks to recover from the plaintiff the $60 cash payment and the amount of the sixteen notes which he paid on account of the purchase price of the property, setting up in his claim in reeonvention that the contract, or bond for deed, having been canceled by plaintiff on May 7, 1930, the plaintiff could not retain the land and also the payments on account of the purchase price made by defendant, because the law of Louisiana does not sanction the payment of punitive or exemplary damages.

The case was tried solely upon exhibits consisting of the contract, or bond for deed, the letter of the plaintiff of May 7, 1930, and the reply of the defendant thereto of June 6, 1930, and also a letter of plaintiff to defendant dated June 11, 1930.

There was judgment for defendant dismissing the plaintiff’s suit and awarding to defendant, as plaintiff in reconvention, a sum equal to the amount paid by him on account of the purchase price: of the land. Plaintiff has appealed.

The pertinent portion of plaintiff’s letter dated May 7, 1930, reads as follows:

“Mr. James J. Woulfe, 2658 Canal St., New Orleans, La.
“Dear Sir: On August 15th, 1927, under bond for deed No. 24 you agreed to purchase from the Subdivision Realty Co., Inc., Lots Nos. 1 and 38 of Square No. 5 in Pine Crest Subdivision, Slidell, La., making at that time a ten per cent payment and agreeing to pay a certain proportion of the purchase price each month.
“Only thirteen payments have been made by you on this contract and you have failed to comply with the conditions of the same. Your attention is directed to the following paragraph in the contract:
“ ‘It is mutually agreed that should the purchaser fail to make any of the payments herebefore specified, the whole amount remaining unpaid, shall at once become due and payable, and at the option of the seller may either be recovered in any proper action on said note or notes, or the note or notes may be returned to the Purchaser, and all payments previously made Shall be forfeited to the Seller as liquidated damages for the failure to make such payments in whole or in part, and all payments. that may have been made previously to such default shall be forfeited to the Seller as liquidated damages, notwithstanding the partial performance of this agreement by the Purchaser, the Purchaser hereby waiving all demands and formal putting in default. Thirty days written notice of such action on the part of the Seller - to be granted to the Purchaser, such written notices to be by registered mail to the address of the Purchaser which for the purpose of this contract is declared to be 2658 Canal St.’
“This letter is written you as a final thirty days notice of cancellation of said contract provided you have not complied with its conditions within that time. In the event you have not done so, the Company will retain payments made as liquidated damages in accordance with the terms of the contract as. (and) cancel same.
“After that time unless such adjustment is made, we will be free to sell the property to other persons without any further notice to you; please be advised accordingly.”

The relevant part of the defendant’s letter of June 6, 1930, written- by his attorney in response to the above letter, reads as follows:

“Subdivision Realty Co., Inc., 510 American Bank Bldg., New Orleans, La. Attention Mr. Prank C. Codifer.
“Dear Sir:
* * * *
“The paragraph contained in said purported Bond for Deed, and quoted in your letter which apparently gives to the vendor the right to cancel the agreement and retain as liquidated damages installments already paid, is null and void because not warranted in law, and is arbitrary, unreasonable and without consideration. It was .so held in the case of Heeb et uxor vs. Codifer & Bonnabel, Inc. (of which decision you are, no doubt, fully cognizant), decided by the Supreme Court of Louisiana, October ,5, 1926, and reported in the 162d Louisiana Reports, at page 139.
“As you have absolutely no right, legal or moral, to retain as liquidated damages the amounts paid in as a down payment and in installments, we hereby, on our client’s behalf, make formal demand upon you to return all amounts so paid in by him, as well as. the unpaid notes which you also hold.”

The reply of plaintiff under date of June 11, 1930, to defendant’s letter of June 6, 1930, is as follows:

“Under date of May 7, 1930, the Subdivision Realty Company, Inc., wrote you advising that your contract of August 15, 1927, for the purchase of lots 1 and 38 in Square 5, Pine Crest Subdivision, would be cancelled in thirty days and payments made forfeited as liquidated damages unless the outstanding notes were paid by you.
“This letter inadvertently stated that cancellation of the contract would follow as- it has been and is the intention of “the Subdivision Realty Company, Inc., to hold you to the fulfillment of your contract of August 15, 1927, and to the payments of fourteen remaining notes of $18.00 each, now being held by Codifer Development Company, Inc., as agents for the Subdivision Realty Company, Inc.
“You are hereby advised that the Subdivision Realty Company, Inc., makes demand on you for the payment of the said notes in principal and interest and that the Company is ready to convey a good and warrantable title to you to lots 1 and 38 in Square 5, Pine Crest Subdivision, upon said payment of remaining notes being made, failing which recessary steps w! 1 be taken to enforce collection of the said notes and the execution of the contract.”

Prom these documents we note that the facts of the instant case are identical with those in the case of Heeb et ux. v. Codifer & Bonnabel, Inc., 162 La. 139, 110 So. 178. In both cases there is involved a bond for deed or contract for the sale of real estate on an installment basis. The contracts contained the same cancellation and forfeiture clauses. In each case the purchaser defaulted by failing to pay the notes or installments as they matured. The seller in both instances invoked the cancellation and forfeiture clause against the purchaser. The purchaser in each case contended that while the seller had the right to cancel the contract because the purchaser had breached it by non-compliance with the provision concerning pay.ment of installments, promptly, the forfeiture clause was not valid and enforceable because it was a stipulation for punitive or exemplary damages.

But, says counsel for plaintiff, the above authority is not controlling in the instant case because the plaintiff’s letter of May •7th was nothing but a collection letter and was not to be construed as a cancellation of the contract. A careful reading of the letter convinces us that it was the intention of the plaintiff to cancel the contract and the letter does not in any way indicate that the plaintiff desired the contract to remain in effect. The mere fact that the notes were not returned in connection with this letter is, we believe, of no moment, because the letter very plainly states that the cancellation clause of the contract was being invoked by the plaintiff against the defendant. The delivery or return of the notes would merely follow as an incident after the expiration of the thirty-day period.

The second argument of counsel for plaintiff is that the rescission of a contract cannot be partial and where the alleged rescission is coupled with a forfeiture admittedly void it is without force or effect, citing Ruling Case Law, Vol. 6, page 936, Verbo “Contracts.” The authority cited is not in point for the reason that it covers cases where a party is attempting to retain a portion of the benefits of a contract, while seeking to have it rescinded. Such is not the case here.

As we view the contract in the present case, the plaintiff had the option at the time that the defendant breached it to enforce payment of the balance of the purchase price as represented by the notes, or to cancel the contract. The plaintiff’s letter of May 7th and the reply of defendant of June 6th clearly indicate to our mind that the plaintiff exercised the option of cancellation and that the defendant acceded to the cancellation, but protested against the forfeiture of the payments as liquidated damages. The plaintiff, then, in its letter of June 11th advises that it was through inadvertence that the letter of May 7th stated that the contract was can-celled in accordance with its provisions, as plaintiff intended to hold the defendant to the agreement.

The question of error of law or fact on the part of plaintiff was not raised by either party to the suit, but we observe that, whether it be an error of law or fact is immaterial, since Mr. Codifer, the president of the plaintiff corporation, • was an interested party in the case of Heeb et ux. v. Codifer & Bonnabel, Inc., supra, decided by the Supreme Court on October 5, 1926, and consequently, at the time of the writing of the letter of May 7, 1930, knew of the decision of the Supreme Court that the forfeiture clause was null and void.

The plaintiff, having exercised the option to cancel the contract, which was acceded to by defendant, cannot thereafter change its position and in a subsequent proceeding ask for the enforcement of a contract which it had previously canceled in accordance with its provisions. The case of Heeb et ux. v. Codifer & Bonnabel, Inc., supra, is decisive of the issues presented here.

For the reasons assigned, the judgment is affirmed.


source: Caselaw Access Project

author: WESTERFIELD, J. JANVIER, J.,

license: Public Domain

text:
    No. 13,398
    Orleans
    GOLDMAN v. YELLOW CAB CO. ET AL.
    (April 27, 1931. Opinion and Decree.)
    (May 25, 1931. Rehearing Refused.)
    (October 6, 1931. Writs of Certiorari and Review Refused by Supreme Court.)
    Dart & Dart, Louis C. Guidry and Robert Ewing, Jr., of New Orleans, attorneys for Milton Goldman, plaintiff, appellee.
    John P. Sullivan and David Sessler, of New Orleans, attorneys for Yellow Cab Company, defendant, appellee and appellant.
    Eraste Yidrine, of New Orleans, attorney for Emile J. Burvant, defendant, appellant.
   WESTERFIELD, J.

The plaintiff, Milton Goldman, while a passenger in a taxicab belonging to the Yellow Cab Company of New Orleans, Inc., was injured as a result of a collision between the taxicab and an automobile belonging to Emile Burvant and, at the time of the accident, driven by a chauffeur in his employ, by the name o.f Duplesis.

The accident occurred on Mardi Gras night, March 1, 1927, at the intersection of Conti and Decatur streets. Plaintiff brought this suit against the taxicab company and Burvant in solido for damages.

The taxicab company defended upon the ground that its chauffeur was free from fault, the accident, according tq its view, having been entirely due to the carelessness of the driver of the Burvant car. Burvant denied that his chauffeur was guilty of negligence and interposed the legal defense that, at the time of the accident, Duplesis was not acting within the scope of his employment but upon a mission of his own.

After a trial upon the merits which was had some three years after the accident and, in which an unusual number of eyewitnesses participated, the trial court found Duplesis alone at fault and held Burvant responsible for the result of his chauffeur’s negligence, awarding judgment against him in the sum of $1,081. Plaintiff and Burvant have appealed.

Insofar as the question of fact upon which liability for the accident depends is concerned, after examining the voluminous transcript, we are convinced that the issue was properly determined below. We can add nothing to the analysis of the testimony given by the able trial judge in his reasons for judgment on this point and we adopt his views as our own.

The Ifegal question raised by the defendant Burvant and earnestly pressed by his counsel in argument and brief before us is not so easily disposed of. It appears that on the night of the accident Duplesis had been given instructing to convey Mrs. Burvant and her brother to a point on Iberville street near Decatur street in order that they might witness a Mardi Gras parade which was . to pass in that vicinity. When the car reached its destination Mrs. Burvant and her brother alighted and instructed the chauffeur to wait for them, ordering him to lock the switch and park the car. Instead of doing as he was told, Duplesis drove the car to a poolroom on Elysian Fields avenue where he met several friends with whom, according to the effect of certain testimony, he had a few drinks and, after sitting a while in the poolroom he, and his friends, entered the car and started back to the point where he had left Mrs. Burvant and her brother for the purpose of taking them home. When he reached the intersection of Conti and Decatur streets, about two city squares from his destination, the accident occurred.

It is the contention of counsel for Burvant that at the time of the accident Duplesis was out of character as an employee of Burvant and on his own responsibility using, without permission, his employer’s automobile; that in going to and in coming from the poolroom Duplesis was not the servant of Burvant, the relation of master and servant being suspended until he returned to the point of departure. It is insisted that the case is within the holding of Glass v. Wise & McAlpin, 155 La. 477, 99 So. 409, 410. In the case relied on, the facts were as follows: Wise & Mc-Alpin, a partnership, engaged in the real estate, grocery and feed business in the town of Leesville, Louisiana, employed a man by the name of Mitchell to drive their truck. On one occasion, without the knowledge or consent of his employer, Mitchell took the truck, and accompanied by a friend also named Mitchell drove a distance of two miles from town to get some meat for his friend. On the return trip because of the negligent handling of the truck an accident occurred as it neared the town limits, in which Glass was injured. Glass was denied recovery as against Mitchell’s employers because:

“The act of Mitchell, the servant, was entirely disassociated with his employment and his duties to his employer from the time he started on his mission until the moment of’ the accident. There was no relation between the errand or trip to Turner’s for the meat and the delivery of groceries to the defendant’s customers. There was plainly no departure — no temporary turning aside — from the master’s business to engage in a matter concerning the chauffeur, and there could be no resumption of the master’s business because the errand had not been completed. The chauffeur left the store with the truck, not to deliver groceries for defendant, but for the sole purpose of going to Turner’s for some meat for Yolney Mitchell. He made no deliveries and did not purpose to deliver any groceries on the out-going trip. When he got to Turner’s and received the meat he started on his return, not to engage in his employer’s business, but to complete his own business for Volney Mitchell — to deliver the latter’s meat.”

The court discussed Cusimano v. Spiess Sales Co., 153 La. 551, 96 So. 118, distinguishing it upon the ground that the facts were different. The holding in the Cusimano case was to the effect that a servant, who had turned aside frqm his employer’s business for a purpose of his own, and, after fulfilling that purpose, was returning to resume his master’? business was in the master’s employ while so returning whether he had reached the zone of his employment or the territory in which he was employed or not.

In the case of Bowles v. McGlasson, 5 La. App. 367, we held the master responsible upon the authority of the Cusimano case. The facts in the Bowles case were as follows: Riley Coleman, McGlasson’s chauffeur, was instructed to drive McGlasson’s nurse, Mrs. Gage (McGlasson being ill at the time) to her residence. Before reaching Mrs. Gage’s home a stop was made to purchase some apples to be taken to the Charity Hospital where Coleman’s wife lay ill. After buying the apples Coleman took Mrs. Gage home and then drove to the hospital where he found his brother and sister-in law. He invited his relatives tq get in his employer’s automobile and drove them to his cousin’s house on Dryades between Julia street and Howard avenue, where he remained until 4 o’clock in the morning, more than eight hours having, elapsed since he started from his employer’s residence for the purpose of taking Mrs. Gage home. Coleman then, with his two relatives whom he intended to drop on the way, got back in the automobile and started for McGlasson’s home. On the way an accident occurred which was held to be due to his negligence. We held McGlasson responsible for the acts of his servant, Coleman, in that case because “as soon as he left his cousin’s house and turned his car back towards its garage at defendant’s home, then he resumed his employment, for it was his duty to return the car to the garage at his employer’s. home and he was so doing.”

It is our opinion that the case at bar cannot be distinguished from the Cusimano and the Bowles eases. Indeed, the facts of the instant case are far stronger from the plaintiff’s standpoint than those of the Bowles, case. The departure of Duplesis during the short period that Mrs. Burvant was viewing the parade was but slight as compared with the numerous private errands of Coleman, the chauffeur in the Bowles case.

In this case, unlike the situation which obtained in the Glass case, the chauffeur started upon an errand of his máster and his private excursion was but a departure, consequently he re-entered his employer’s service when he started upon the return trip but in the Glass case the truck was taken out for a purpose disconnected with his employer’s business and it could not be said that Mitchell, the chauffeur in that case, re-entered his employer’s service until the truck was put back into the garage and his private errands completed.

The master’s liability attaches only where there has been a deviation from an enterprise originally undertaken in the interest of the employer.

"If the master is liable where the servant has deviated it must be where the deviation occurs on a journey on which the servant had originally started on his master’s business.” 39 C. J. 1303.

However, neither the Cusimano nor the Bowles cases which appear to us as ample authority to sustain the position of plaintiff in this case have gone as far in holding the master liable for the acts of his servant as Black v. R. I. A. & L. R. Co., 125 La. 101, 51 So. 82, 83, 26 L.R.A. (N. S.) 166. In that case plaintiff was injured by being run into, by an engine belonging to the defendant railroad which at the time of the accident, was in charge of two of its employees who had taken the engine out of the yard for their amusement and for no purpose in connection with their employment. There had been no initial movement of the engine upon an errand of the master but first and last for a purpose of the employees, nevertheless, the court held that in returning the engine (the accident happened on the return trip) to the depot they had re-entered their employer’s service for “conceding that in taking the train out of the depot merely for their own amusement, the men whom defendants had placed in charge of it were rendering no service to defendants and were doing nothing that they were employed to do, it can hardly be denied that their duty- to defendants as custodians of the property required that it should be returned to the place from which they had taken it.”

■ If the doctrine of the Black case has not been weakened by subsequent jurisprudence, and we know of no qualifying adjudication, there is ■ more than ample authority to sustain plaintiff’s position in this case, for it must be conceded that in order for the .plaintiff to recover in the Black case, it was necessary to go beyond the doctrine of the Cusimano and Bowles cases, the Cusimano case being largely predicated on the Black ease and the Bowles case on the Cusimano case.

As to the quantum, Goldman’s injuries are described as a contusion and swelling of the shoulder joint and a' fracture of the shoulder blade, the fracture extending from the upper border downward into the body of the blade towards the shoulder joint. The expenses incurred for services of a doctor and for drugs amounted to- $81. The judge below allowed $1,000 for pain and suffering. Under the circumstances we believe the proper award was made; consequently, and for the reasons herein assigned, the judgment appealed from is affirmed.

JANVIER, J.,

dissenting. I do not agree with my associates in their opinion that Burvant, owner of the automobile which caused the damage, should be held responsible because I am convinced that, at the time of the accident, the chauffeur, Duplesis, was not acting within the scope of his employment. While I agree thoroughly with the majority opinion in its findings of fact, I desire to, restate briefly the circumstances with regard to whether or not the chauffeúr was acting within the scope of his employment.

The owner»of the car, Mr. Burvant, had instructed the chauffeur, Duplesis, to drive Mrs. Burvant to a spot convenient for walking to Canal street, so that she might view the carnival parade and to lock the car and to go to the parade. (See testimony of Duplesis, chauffeur,, page 20, and of Mrs. Burvant, page ,3.) The chauffeur drove to a point on Iberville street and, under orders of Mrs. Burvant, got out of the car, locked it, and walked with her a short distance towards the route of the parade.

Either designedly, or accidentally, he became separated from her in the crowd and decided to go back to the car and to drive it to a poolroom some distance away and for a purpose with which Burvant, the owner of the car, was in no way concerned. Thereafter he started back to replace the car where it should have been and, at the request of certain of his friends, was riding them back towards that place, when the accident occurred.

My associates are of the opinion that, at the time of the accident, Duplesis, the chauffeur, had merely deviated from the route or course contemplated by the master and that, therefore, the master should be held responsible under the doctrine of those cases which hold that a mere deviation from a route does not result in the servant’s stepping outside of the scope of his employment. I well know that in this state it has been held that, if a master sends his chauffeur out on an errand and the servant deviates from the proper route and undertakes to carry out some purpose of his own, after that purpose has been carried out and he has commenced to return to his • master’s work, he then steps back into his character as an employee of the master, and that thereafter the master is liable for his actions, but this is because, when the master sends the chauffeur out, he knows that he must return and it is comparatively unimportant whether the chauffeur returns by the direct route or by another longer or more circuitous one. It is within the contemplation • of the master that he must come back home and, therefore, while he is coming back home, wherever it may be from, ■ the master is liable. Here, I am convinced, there was no deviation from a course or a route because there was no course; there was no route. The wife was authorized to give the chauffeur instructions, and she had instructed him to place the car in a particular spot and to lock it and leave it there. He did this and his connection with the car terminated as thoroughly and as completely as if he had been discharged.

If the master is liable under such circumstances, then it will be almost impossible for a master to escape liability, no matter how flagrant may be the violation of orders by the chauffeur. Let us assume that a master employs a chauffeur who drives him to his office in the morning and that the master instructs the chauffeur to drive the car into a public garage and to leave it there and to meet him there at 5 o’clock in the afternoon to drive him home. Let us further assume that the chauffeur, after leaving the car, goes back to the garage, takes the car out on a mission of his own, and, after completing his mission, while on his way back to the garage to replace it so that the master may not know that he has taken it out, negligently causes damage. Is the master liable under those circumstances? It is my opinion that to so hold establishes a most unsound doctrine and I do not believe that the courts of this state have so decided.

There are two decisions rendered in cases involving facts very similar to those presented here. One of them, Bowles v. McGlasson, 5 La. App. 367, my associates feel is controlling here. The other, Glass v. Wise & McAlpin, 155 La. 477, 99 So. 409, seems to me directly in point and, in my judgment, leaves us no other alternative than to correctly decide that the master is not liable. In the Bowles case the facts were these:

The defendant, master of the chauffeur, was ill with pneumonia. One evening the chauffeur drove to her home a registered nurse employed by defendant. On the way home the nurse went to a grocery and bought some fruit and when the car reached her home she gave the fruit to the chauffeur and told him to take it to his wife, who was sick at the Charity Hospital. The chauffeur took the fruit to his wife at the hospital and, after delaying considerably in his route home, negligently caused damage while bringing the car back. This court held that when the chauffeur left his master’s residence to drive the registered nurse tQ her home, he was acting within the scope of his employment. The court, however, found that after leaving the home of the nurse and while going to the hospital the chauffeur was not acting within the scope of his employment, and that, had the accident happened then, the master would not have been liable, but that it was the duty of the servant to return the car and that, thus, no matter how great may have been the prior departure from his line of duty, nevertheless the servant, immediately upon turning towards home with the intention of replacing the car, stepped back into his character as a servant of the master and that thereafter his negligent acts rendered the master liable.

I call attention to the fact that when the servant commenced the errand he was acting within the scope of his employment, whereas here, when the servant returned to the parked car and undertook an errand or mission of his own, the master was in no way concerned therein.

In the' other case, Glass v. Wise & Mc-Alpin, the very point which I make here was discussed and the court decided the case on that theory, to-wit: That since the servant took out the car without orders from the master, he did not act within the scope of his employment in doing so and that, therefore, his conduct did not constitute a mere deviation from duty. In that case the facts were that a chauffeur was employed by a grocery company. On one occasion, when he had no deliveries to make and when he was not sent out by anyone authorized to send him, he took the car for a purpose of his own, and, while completing this purpose, and while also on the way back to the master’s place of business, negligently caused damage. The Supreme Court held that the master was not liable.

I think the facts of the case at bar bring it squarely within the doctrine announced in that case. Here the chauffeur’s connection with the car terminated when he parked it under instructions of Mrs. Burvant and there was nothing more for him to do than to meet her at the car after the parade. The error into which I think my associates have fallen results, I believe, from the fact that they have treated the duty of the chauffeur as a continuing one from the time he left the Burvant residence until he returned, whereas I view it as having completely terminated when he parked the car. I concede that the fact that the friends of the chauffeur were riding in the Burvant car. is of no importance. The question to be determined is: Was he acting within the scope of his employment? If he was, and, in doing so incidentally carried out a purpose of his own, then his own individual purpose would not affect the situation.

In Cusimano v. Spiess Sales Co., 153 La. 551, 96 So. 118, the court held the owners of the automobile liable because there was a mere deviation from the route or course of employment.

It seems to me that part of the reasoning in Black v. R. I. A. & L. R. Co., 125 La. 105, 51 So. 82, 84, 26 L.R.A. (N. S.) 166, is direetly in conflict with the reasoning in Glass v. Wise & McAlpin, supra, because' the Glass case holds that, if the chauffeur takes the car and has no purpose of the master to serve, he is not acting within the scope of the employment qf the master, either in going out or in returning, whereas the Black case holds that, though the locomotive crew which surreptitiously took the locomotive out on a “joy ride” was not acting within the scope of their employment, nevertheless it was their duty to return the locomotive, and, since the accident happened on the return trip, the' master, to-wit, the railroad company, should be held liable. At any rate the broader ground on which that case was decided was, as discussed in Cusimano v. Spiess Sales Co., supra, that a locomotive is in the nature of a dangerous agency and that a railroad corporation which accepts a franchise to build tracks and to operate locomotives thereon and accepts the right of eminent domain is placed under the obligation of seeing, at its peril, that locomotives on those tracks be not negligently operated. That this seems to have been in the minds of the members of the court to a considerable extent is indicated by the following language:

“The broader, and as it seems to us correct, view of the case presented is that defendants, being vested with a franchise (that is to say, a privilege conferred upon them by the state, and not enjoyed, by citizens generally of common right) by virtue whereof they were authorized to lay their tracks across a public thoroughfare in an incorporated town, and to operate cars propelled by steam power thereon, incurred certain correlative obligations, and among them the obligation to use their franchise with due regard to the public safety.
‡ ‡ $
“Summing up our conclusions, upon the law of the case, we are of opinion that:
“1. A corporation exercising a franchise to operate steam cars on tracks crossing the streets of a town incurs the correlative obligation to use such privilege with due regard to the public safety and to maintain its tracks in a safe condition, and 'it cannot escape liability for failure to discharge such obligation by transferring, or attempting to transfer, it to an employe or other person.”
“4. The right to operate a steam locomotive on, or across a street in a town involves the use of an agency highly dangerous to life, limb, and property, and the responsibility for the exercise of such right cannot be shifted by the corporation in which it is vested to the person, who, by its authority, actually exercises it.”

My views are, then, that a master should be held liable where the accident occurs while the servant is returning the car to its proper place, if, in taking it away from its proper place he was acting under the instructions of the master, but that the master is not liable, even when the servant is returning the car to its proper place, if, in taking it away from its proper place, he was not acting within the scope of his employment, and I believe that a careful reading of the various decisions to which I have referred will leave no other conclusion.

The fact that to so hold in this case might have the unfortunate result of preventing ultimate recovery by the person receiving injuries without fault on his part, while regrettable, should not be given consideration. It was held that the Yellow Cab Company is not liable and with this conclusion I agree. If it is held that Burvant, the owner of the automobile, is not liable, as I believe it should be, then the only liability would be in the chauffeur of the Burvant car. That no recovery can be obtained from him because of financial irresponsibility is an unfortunate circumstance, but one with which we cannot be permitted to concern ourselves. I respectfully dissent.


author: MORENO1, J. ad hoc.

text:
    No. 13,864
    Orleans
    G. A. WIEGAND & CO. v. VILLEMEUR
    (July 1, 1931. Opinion and Decree.)
    (July 20, 1931. Rehearing Refused.)
    Frymire, Ramos, Cockfield & Hagen, of New Orleans, attorneys for plaintiff, appellee.
    Theodore Cotonio, of New Orleans, attorney for defendant, appellant.
   MORENO1, J. ad hoc.

G. A. Wiegand & Company, obtained a judgment in the First City Court for $155.23 against Lawrence Villemeur. This judgment was rendered on May 10, 1927, and thereafter fi. fas. were issued to seize the property of the debtor in satisfaction of the judgment, hut the constable was not successful in seizing any property belonging to the plaintiff until a fi. fa. was issued on July 8, 1930, under which the constable seized the interest of the defendant in the suit entitled “Lawrence Villemeur vs. Charles E. Woodward, et als.” pending in the Civil District Court for the parish of Orleans.

Villemeur then took a rule against Messrs. Frymire & Ramos, the attorneys for G. A. Wiegand & Company, to show cause why the fi. fa. should not be declared a nullity and the seizure made thereunder set aside. The rule was taken on the ground that G. A. Wiegand & Company was a commercial partnership consisting of George A. Wiegand and Alexander G. St. Mart and that G. A. Wiegand, one of the partners, had died, and the partnership was not represented before the court, either through a liquidator or through the heirs of the former partner. On a trial of the matter, the rule of the defendant was dismissed.

It must be clear that an attorney representing one of the litigants is not a party to the suit. He has no title as an attorney in or to the cause of action. Any rights which arise^ during the course of the litigation are not his rights, but those of his client. Since this is'so, it would be wholly futile for a judgment to be rendered in any cause decreeing that an attorney does not have a right which he does not assert and for which he does not contend.

It is not necessary to pass upon the question of whether or not the fi. fa. properly issued on the state of the record. It may well be that the proper parties were not before the court and that there was no one before the court with -a right to demand its issuing through the attorneys of record or through any other attorney. However, that fact would not entitle the mover in rule to so far depart from the orderly course of ° judicial administration as to take a rule against an attorney to determine rights arising out of a fi. fa. issued in the name of the client. The attorneys in this case did not claim to act for themselves, but claimed to act for their clients, and whatever rights arose through the issuance and execution of the fi. fa. were rights created in favor of the client. No court has power to adjudicate upon those rights contradictorily with attorneys who assert no interest in the rights. Any judgment rendered against the attorneys in the case would certainly not be binding upon their clients, because the rule to show cause is taken against the attorneys as individuals upon the theory that they have acted wrongfully and is not taken against the client which they represent for the purpose of divesting by a judgment a righ't asserted on behalf of the client.

It is no function of the court to point out the proper procedure to prevent the execution of the judgment, if such a right of prevention exists, and it suffices to say that unquestionably the attorneys in this case have no interest as individuals in the subject of the litigation, .and, consequently, any judgment rendered against them could not affect the existing rights, and would amount to a mere futility.

The judgment of the lower court dismissing the rule of Lawrence Villemeur is, therefore, affirmed.

WESTERFIELD, X, and DUNBAR, JR., J. ad hoc, participating.


author: JANVIER, J. HIGGINS, J.

text:
    No. 13,727
    Orleans
    TAYLOR ET AL. v. AMERICAN BANK & TRUST CO. ET AL.
    (May 25, 1931. Opinion and Decree.)
    (July 20, 1931. Rehearing Refused.)
    (October 6, 1931. Writs of Certiorari and Review Refused by ¡Supreme Court.)

      Edward Rightor and W. H. Sellers, of New Orleans, attorneys for plaintiffs, appellees.
    Merrick, Schwarz, Guste, Barnette & Redmann, of New Orleans, attorneys for defendants, appellants.
   JANVIER, J.

Plaintiffs, all members of the police force of the city of New Orleans, seek to collect from the various defendant banks rewards alleged to be due them in accordance with the notice quoted below, as 'the result of their having furnished information leading to the arrest of certain bandits who participated in the robbery of the Algiers branch of the Canal Bank & Trust Company on November 27, 1929.

At some time prior to November 27, 1929, defendant banks, members and associate members of the New Orleans Clearing House Association, had posted in their various places of business and had otherwise circulated printed notices or handbills reading as follows:

“$5,000 REWARD
“For information leading to the arrest and conviction of
BANK ROBBERS
“A reward of $5,000.00 will be paid by the NEW ORLEANS CLEARING HOUSE ASSOCIATION to the person or persons who furnish information leading to the arrest and conviction of the participants in any robbery of or attempt to rob or hold up any Member or any Associate-Member of the Association or a branch bank of any Member or Associate-Member Bank, or any messenger or agent of such banks or branches. The killing of any person or persons in the act of committing such robbery, or in the act of attempting such robbery qr hold up, shall, for the purpose of this reward, be considered as an arrest and conviction of such person or persons. All claims for such reward must be made to the Association within thirty (30) days after conviction.
“The Association is the sole judge of any dispute arising over the reward and the person or persons, if any, entitled to share therein, and its decision on any point connected with the reward will be final and conclusive.
“THE MEMBERS OP THE NEW ORLEANS CLEARING HOUSE ASSOCIATION ARE:
“American Bank & Trust Company
“Canal Bank & Trust Company
“Hibernia Bank & Trust Company
“Interstate Trust & Banking Company
“New Orleans Bank & Trust Company
“Whitney-Central National Bank
“Whitney-Central Trust & Savings Bank
“ASSOCIATE-MEMBERS:
“Algiers Trust & Savings Bank
“Gretna Trust & Savings Bank
“Jefferson Trust & Savings Bank, Gretna, La.
“Metairie Bank
“St. Bernard Bank & Trust Company.”

Plaintiffs allege that they were aware of the said notice; that their action, in courageously and intelligently following the various clues left by the bandits and in obtaining and in transmitting the information obtained constituted acceptance by them of ■ the offer made by the • banks and that this acceptance converted the said offer into a contract between them and the banks, under which contract they now bring this action.

Various defenses are presented, all but one of which we have found it unnecessary to consider, since that one appears to us to be well-founded and to offer an insurmountable barrier to plaintiffs’ recovery. That defense is that all of tbe plaintiffs are public officers employed by the city o.f New Orleans for the purpose of tracking down and apprehending criminals guilty of violations of law committed within the territorial limits of the city of New Orleans, and that, thus, not only is it against public policy that such public officers should be permitted to claim rewards for services performed in line of duty, but, even if no question of public policy were involved, no consideration for the contract has been given by plaintiffs, since all that they did they were bound by their official duties to do.

It is conceded that in most jurisdictions it is violative of the public policy for peace officers to demand special rewards for services performed in line of duty, however courageous or meritorious the services may have been, but it is argued that in this state not only has no such public policy been established by statute, ordinance or jurisprudence, but that, on the contrary, many legislative and municipal enactments indicate a public policy favorable to the acceptance of such rewards or gratuities. Our attention is directed to the following:

Section 35 of Act No. 74 of 1868; Jewell’s Digest of Municipal Ordinances (1882) p. 304, sec. 28; section 22 of Act No. 63 of 1888; section 23 of Act No. 95 of 1896; section 10 of Act No. 32 of 1904; Act No. 10 of 1910; section 54 of Act No. 159 of 1912; .section 7 of Act No. 27 of 1914; Act No. 29 of 1926.

We have most carefully considered the above referred to statutes and the ordinance set forth in Jewell’s Digest. The ordinance referred to absolutely prohibits the receipt by a public police officer of such a reward.

. The various statutes referred to. are not indicative of a public policy favoring .the right of a public peace officer to demand such rewards and it is evident that the framers thereof intended that only in extraordinary cases and only after the strictest scrutiny by tne proper officials should police officers be permitted to retain rewards, if voluntarily tendered.

We find a vast distinction between permitting a police officer to retain a reward tendered after the performance of service and authorizing the same officer to bring suit for a reward claimed to be due him as the result of a contract.

We do not believe that the enactments to which we have referred indicate that in this state there has been established a public policy favorable to permitting public officers to demand rewards for services performed in line of duty, even when such rewards have, prior to the performance of the service, been offered to the general public, without restriction or limitation.

Counsel for plaintiffs argue that, even if we come to such conclusion, nevertheless, plaintiffs here should be permitted to recover because the information was obtained and transmitted outside of the territorial limits of the parish of Orleans, which limits also form the jurisdictional boundaries of the authority of plaintiffs; that, thus, as soon as they crossed the border of Orleans parish and entered the parish of Plaquemines, they lost their character as police officers of the city of New Orleans and became private citizens; and that, therefore, any acts done by them were not done in their respective official capacities, nor within the scope of their official duties, and'that, thus, in so acting, they, as other private citizens would have been, are entitled to the reward.

This contention is based on the alleged absence of authority of Orleans police officers to make arrests in the parish of Plaquemines. Whether officers of one parish may in another parish apprehend criminals for acts done in the parish in which the officers have jurisdiction is an interesting question, but one which we find it unnecessary to solve in considering the contention now confronting us because it is not the arrest which was made in- the parish of Plaquemines which forms the basis of the claims for the reward, but the furnishing of the information, and it cannot be denied that a peace officer, if sent by his superior into another parish to obtain information, is, while seeking that information, acting within the line and scope of his official duties.

It appears from the testimony of De-Roccha, one of the plaintiffs, that when they left New Orleans to go into the adjoining parish, they ^did so under orders of their superior officer, Superintendent Ray. How, then, can it he contended that, in obtaining the information, they were acting as private citizens? If they obtained the information while acting as peace officers, how can they claim a reward for divulging it? How can they claim that in divulging it they furnished a consideration sufficient to bring into existence a contract with the various banks who had offered the reward? The information was not theirs to sell or to barter. It belonged to the officers entitled to receive it and in transmitting it they did only what their duties required.

Instead of finding, in Union Pacific R. Co. v. Belek (D. C.) 211 F. 699, 708, anything antagonistic to the views which we have expressed, we see in that opinion language impressively supporting the doctrine which we consider sound. There the court held that a peace officer who, without a warrant, arrested a fugitive from justice from another state, was entitled to a reward because his duties in such case were “limited to the execution of a warrant for such arrest.” Thus, the officer was doing something not entirely within the scope of his duties. The court said that if it had been within the scope of his duties to make such arrest, then for doing so he could not have claimed the reward. The court used this language:

“As there does not appear to have been any duty imposed by law upon the two police officers who made the arrest, they are entitled to receive the amount offered for that service.”

Here, 'as we have shown, it was the duty to which these officers were assigned to go -into the adjoining parish and there obtain information. In obtaining and transmitting it they did their duty. That they did it well and courageously does not entitle them to enforce the payment of a reward.

The various statutes to which we at first referred do no more than declare that in such situation, if the banks had voluntarily paid the reward, the proper superior authorities might, if it appeared proper, permit the officers to retain a portion of it.

Murphy v. City of New Orleans, 11 La. Ann. 323, is distinguishable on two grounds: First, that Murphy was not performing an act incumbent upon him; second, that the reward was offered by public officials and not by a private citizen.

That the act was not one incumbent upon Murphy appears from the following language in the decision:

“It does not appear that the defendant was acting as a police officer when Roberts was accused of the crime for which he was convicted and sentenced. But admitting that he did, nothing shows that it was incumbent on him as such to perform the act for which he claims the reward allowed under the ordinance.”

That there is a vast distinction between permitting a public employee to claim a reward offered by his superiors and permitting him to demand a reward tendered by a private citizen, appears from a decision of the Supreme Court of the United States, United States v. Matthews, 173 U. S. 381, 19 S. Ct. 413, 415, 43 L. Ed. 738, in which Mr. Chief Justice White said:

“The broad difference between the right of an officer to take from a private individual a reward or compensation for the performance. of his official duty, 'and the capacity of such officer to receive a reward expressly authorized by competent legislative authority, and sanctioned by the executive officer to whom the legislative power has delegated ample discretion to offer the reward, is too obvious to require anything but statement.”

That plaintiffs, at the time they obtained the information, were on duty and were acting as public peace officers, is conclusively shown by the testimony of De-Roccha, and that he, at least, was not acting as a private citizen is best evidenced by the fact that when he was off duty he immediately ceased his efforts to apprehend the criminals.

On the day which intervened between that on which the crime was committed and that on which the information was obtained DeRoecha was “off duty.” Had he on that day, though off duty, devoted himself to the solution of the crime, a different question might have been presented. But he did not do so. On that intervening day he went on a hunting expedition not for criminals, but for game, and it was not until the next day when he had returned to his official duties that he again took up the task of seeking the necessary information.

While it may he that there is nothing objectionable in permitting a police officer or other public servant, after performing meritorious' services, to accept a reward voluntarily offered, we feel that, with reference to the legal right of such officer or servant to demand such reward, the public policy of this state is identical with that of all other states and with that -of the United States as expressed by Mr. Chief Justice White in United States v. Matthews, supra, in the following words:

“It is undoubted that both in England and in this country it has been held that it is contrary to public policy to enforce in a court of law, in favor of a public officer whose duty hy virtue of his employment required the doing of a particular act, any agreement or contract made by the officer with a private individual, stipulating that the officer should receive an extra compensation or reward for the doing of such act.”

The trial court rendered judgment in favor of the various claimants each for his virile share of the total reward of $5,000. The judgment was erroneous.

It is ordered, adjudged and decreed that the judgment appealed from be and it is annulled, avoided and reversed, and that there now be judgment in favor of defendants and against plaintiffs, dismissing this suit at the cost of plaintiffs.

ON MOTION TO DISMISS

HIGGINS, J.

The four plaintiffs, members of the New 'Orleans police force, sued the eleven defendants jointly to recover the sum of $5,000, alleged to have been offered as a reward for the arrest and conviction qf bank bandits.

There was judgment as prayed for against each of the defendants in the sum of $416.66, except as to one of the defendants, against which judgment for $833.33 was rendered. The defendants have appealed.

The appellees filed a motion to dismiss the appeal on the ground that under the provisions of section 10 of article 7 of the Constitution of 1921, with reference to the judicial department, the Supreme Court has appellate jurisdiction of the case, contending that the fund to be distributed is $5,000.

The prayer of the petition reads as follows:

“Wherefore, petitioners pray that said defendants be cited to appear and answer this demand and that after due proceedings had, there be judgment in favor of your petitioners and against each defendant in the sum of Four Hundred Sixteen and 66/100 ($416.66) Dollars, except defendant Gretna Trust & Savings Bank, there be judgment against it in the sum of Eight Hundred Thirty Three and 32/100 ($833.32) Dollars with 5% on each amount from December 4th, 1929, and with all costs of Court and general relief.”

The question before us is whether we should regard this as a suit involving the distribution of a fund of $5,000 or as a joint action to recover of each of the defendants, who are bound severally, amounts of less than $2,000, but which aggregate more than $2,000.

In the case of Meritt v. Hozey, 4 Rob. 319, the court said:

“This suit is brought to recover from the late Sheriff of the Parish of Orleans, and his sureties, $600. with interest and costs. There are eight sureties on the bond, all of whom are joined in this action, each of them being severally bound for a fixed sum; and judgment is prayed for against the principal for the whole amount, and against each of the sureties, for such amounts as will be in proportion to the respective sums for which each has bound himself in the bond. Judgment was rendered against four of the sureties, each for the sum of $93.33-1/3 with interest; and against four others, each for the sum of $81.66-2/3, with interest. From this judgment or judgments, (they are all in one) four of the sureties appealed in one petition, ami gave bond and security in the sum of $1,000. for which they are jointly bound, and the surety bound generally for all. * * *
“The appellee moves to dismiss the appeal, for want of jurisdiction, as the amount claimed of each surety, does not exceed three hundred dollars.
“We are of opinion that the appeals must be dismissed. The sum claimed of each of the defendants is less than $300; and they cannot, by joining in one appeal, give the court jurisdiction, when they have separately no right to be. heard. In 5 Mart. N. S. 87, the court said: ‘The attempt made by this mode of proceeding to obtain a review of these judgments, and to have their nullity established, is an attempt to have that done indirectly, which the law will not permit to be done directly. We are of opinion that we cannot, in this way, take cognizance of cases of which the constitution and the law have denied us jurisdiction.’
“The appellants contend, that as the plaintiff has joined them in the same suit, he has himself made a case, which authorizes them to appeal. We are of a different opinion. If a separate suit had been instituted against each appellant, claiming only tHe sum of $93-1/3 it is very clear no one of them would have been entitled to an appeal; and we do not see that the joining of them in one suit makes any difference as to their rights. If they thought their rights endangered by being all joined in the same suit, the appellants ought to have objected in the inferior court, and not have reserved their objections for this tribunal.”

In the case of Hotard et al. v. Perilloux, 160 La. 752, the Supreme Court said:

“There are six plaintiffs in this suit, * * *. Each plaintiff is the owner of a separate tract of land, and the defendant owns land situated immediately in the rear of plaintiffs’ properties. The suit is for damages to the plaintiffs resulting from an alleged breach of contract by the defendant to keep open and to properly maintain a certain described ditch or canal which served to drain the plaintiffs’ properties. The total sum claimed is $2,395.25, and the prayer of the petition is for that sum, to be apportioned in the judgment to the respective plaintiffs as follows: Noe Hotard, Charles Darensbourg, Ernest Vicknair and John Wilson, $450.00 to each; to Morris Perilloux, $300; and to John Hall, $250.00.
“* * * Defendant moved this court to dismiss the appeal * * *.
“Section 10 of Article 7 of the Constitution of 1921 prqvides that this court shall have appellate jurisdiction in all civil suits where the amount in dispute, or the fund to be distributed, shall exceed $2,000. exclusive of interest, except those for physical injuries or for the death of a person or those brought under the state or federal Workmen’s Compensation Law.
“This suit cannot be differentiated from the case of Alessi et al. v. Town of Independence, 76 So. 792, 142 La. 338.
“In this case, the cause of action of each plaintiff grew out of the same alleged quasi offense on the part of the defendant. Each plaintiff has a separate and distinct right of action in which none of his co-plaintiffs have the slightest interest. Plaintiffs have cumulated their demands in a single suit against a common defendant, and the sum claimed by each plaintiff is far below our appellate jurisdiction. In the Alessi case this court said:
“ ‘The question then is: Could they by consenting to cumulate their demands, bring them within the appellate jurisdiction of this court? Surely, if each separate claim had been for an amount below the original jurisdiction of the district court, the plaintiffs could not have given that court jurisdiction, by consenting to cumulate their demands, even though their cause of action arose from one and the same alleged quasi offense on the part of the defendant. And it seems equally plain that the plaintiffs did not, and could not, give this court jurisdiction of the several claims of which we had no jurisdiction by consenting tq cumulate their demands. See Bazoni v. Marcexa, 18 La. Ann. 136; Broadwell v. Smith et al., 28 Ann. 172; Stevenson v. Weber, 29 La. Ann. 108; Larrieux v. Crescent City L. S. & S. H. Co., 30 La. Ann. 609; Louisiana Western R. R. Co. v. Hopkins, et als., 33 La. Ann. 806; Tague v. Royal Insurance Company, 38 La. Ann. 457; Harrison & Harrison v. Moss & Company, 6 So. 528, 41 La. Ann. 239; Southern Timber & Land Company v. Wartell, 33 So. 559, 109 La. 456, and decisions there cited. Our conclusion is that this court has not jurisdiction of the case.’
“We adhere to the ruling in Alessi et al. v. Town of Independence, and it is therefore ordered that this case be transferred to the Court of Appeal. Parish of Orleans.”

See, also, Louisiana Digest, verbo Courts, sections 128-144, vols. 8 and 9.

In the present case it does not appear to us that the alleged $5,000 reward is a sum to be distributed among respective claimants but is a joint suit by the plaintiffs who have separate and distinct rights of action in which their co-plaintiffs have no interest. The fact that all the plaintiffs join in one suit for specific amounts shows that there is no controversy among them as to the amount that each claims from the defendants. The defendants are severally liable for the alleged respective amounts due each of the plaintiffs, none of which said amounts exceed the sum of $2,000. We are, therefore, of the opinion that this court has jurisdiction and the motion to dismiss the appeal is not well founded.


author: WESTERFIELD,. J.

text:
    No. 13,636
    Orleans
    ROQUES v. CONTINENTAL CASUALTY CO.
    (June 8, 1931. Opinion and Decree.)
    (July 1, 1931. Rehearing Refused.)
    (October 6, 1931. Writs of Certiorari and Review Refused by Supreme Court.)
    S. S. Goldman, of New Orleans, attorney for plaintiff, appellee.
    Deutsch & Kerrigan and Bert Flanders, Jr., of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD,. J.

The interesting question presented by this appeal involves the meaning of the phrase “arise and accrue” as employed in Act No. 172 of 1908, which, so far as it is pertinent to this discussion, provides:

“That all * * * life * * * insurance companies * * * shall, annually give a bond in favor of the State of Louisiana * * * in the full sum of twenty thousand dollars ($20,000.00) * * * conditioned for the prompt payment of all claims arising and accruing to any person during the term of said bond by virtue of any policy issued by any such corporation upon the life or person of any citizen of this State * " * * and such bond shall be annually renewed, and the old bond will become canceled by the acceptance of the new bond by the State Treasurer. * * * Provided that no bond shall be canceled, or withdrawn unless a new bond has been substituted as. above provided, or satisfactory evidence has been submitted to the insurance department that the company has discharged all of its obligations and liabilities in this State, and that it has no liabilities whatever outstanding in this State.”

The plaintiff, Mrs. Alexine L. Roques, the beneficiary of an insurance policy issued on June 17, 1923, by the Southern Insurance Company, on the life of her husband, Constantine Roques, brings this suit against the Continental Casualty Company, surety on the bond of the Southern Insurance Company, issued in compliance with the act of 1908. Mr. Roques died in August, 1924. His policy provided that following his- death his beneficiary would be paid $600 a year for seven years, in quarterly installments of $150 each, paya- . ble in March, June, September, and December. The company defaulted on the payment due March, 1930, and, after obtaining judgment by default against the insurance company for the amount of this quarterly installment, suit was brought against the Southern Insurance Company’s surety, the Continental Casualty Company, on a bond which it had given pursuant to the terms of the act of 1908.

The suit is defended upon the ground, first, that, according to the terms of the act of 1908, the bond is given for the benefit of citizens of this state, and that the petition fails to allege that the assured, Constantine Roques, was a citizen of the state, and there is no proof in the record to that effect. However, we find that the policy itself, which has been offered in evidence, without objection, shows- that the company dealt with Roques as a citizen, and, in the absence of any proof to the contrary, we believe this showing to be sufficient.

We pass now to the second and more serious point, to the effect that the statute, which, of course, must be read into the bond given by defendant, does not obligate this defendant to pay this claim, because the claim did not arise and accrue during the term of the bond is.sued by the defendant company, but prior thereto, at the date of the death of Roques in August, 1924, something more than five years before the execution of the bond by defendant. Turning to the statute, we find the condition of the bond to be for the “prompt payment of all claims arising and accruing to any person during the term of said bond * * * and such bond shall be annually renewed and the old bond will become canceled by the acceptance of the new bond by the State Treasurer. Provided that no bond shall be canceled, or withdrawn unless a new bond has been substituted as above provided. * * * ” In view of the admission that this bond had not been canceled in the manner provided for its cancellation in the statute, we are of opinion that it was in force on March 31, 1930, the date on which the default on the payment of the quarterly installment occurred, notwithstanding the fact that it is called an annual bond and was given in February, 1929, more than a year before the default. But did the claim “arise and accrue” during the term of the bond? It will be recalled that Roques died in August, 1924, and possessed of a policy issued in June, 1923, which was in default in March, 1930. It is the contention of counsel for defendant that the . claim arose and accrued at the time of Roques’ death -in 1924, and that whatever claim his beneficiary may have must be asserted against the surety on some precedent bond then in force.

In Bouvier’s Law Dictionary we find that “accrue” means.: “To rise, to happen, to come to pass; as the statute of limitation does not commence running until the cause of action has accrued. 1 Bouvier. Inst. n. 861; Scheerer v. Stanley, 2 Rawle (Pa.) 277; Braddee v. Wiley, 10 Watts (Pa.) 363; Bacon Abr. Limitation of Actions (D, 3).”

Accrue also means, according to this authority :

“To be added to, as the interest accrues on the principal. Accruing costs are those which become due and are created after judgment; as the costs of an execution. See Johnson v. Ins. Co., 91 Ill. 95, 33 Am. Rep. 47. * * *” “Cause of action accrues when a suit may first be legally instituted upon it. U. S. ex rel. Louisville Cement Co. v. Interstate Commerce Comm., 246 U. S. 644, 38 S. Ct. 408, 62 L. Ed. 914, citing Amy v. Dubuque, 98 U. S. 474, 25 L. Ed. 228; U. S. v. Taylor, 104 U. S. 216, 26 L. Ed. 721; Rice v. United States, 122 U. S. 617, 7 S. Ct. 1377, 30 L. Ed. 793.”

In Ballentine’s Law Dictionary we read:

“In its generally accepted sense, the word means to he added or attached to something else; as accrued interest on a principal sum. See Johnson v. Humboldt Insurance Co., 91 Ill. 92, 33 Am. Rep. 47.
“As applied to a cause of action, the word means to arrive; to commence; to come into existence; to become a present and enforceable demand. See Eising v. Andrews, 66 Conn. 58 (33 A. 585) 50 Am. St. Rep. 75.”

In 1 Words and Phrases, Second Series, page 267, we find the following:

“The word ‘arise’ is used in various senses with .the words ‘begin, mount, appear, happen, proceed -from, exist.’ It has not the same significance as the word ‘accrue,’ which signifies ‘result, add, 'acquire, receive, benefit.’ A cause of action, ‘arises,’ * * * when the obligation was created which gave rise to a right of action as soon as such right accrued thereon, Doughty v. Funk, 84 P. 484, 486, 15 Okl. 643, 4 L. R. A. (N. S.) 1029.”

In Moran v. Moran, 144 Iowa, 451, 123 N. W. 202, 30 L. R. A. (N. S.) 898, it was held:

“That a cause of action ‘accrues’ when by maturity of the note and default in payment the holder may sue thereon, but it ‘arises’ and has its origin in the transaction which brought the obligation into existence, the two words not being synonymous. *' * *” Syllabus.

In United States Fidelity & Guaranty Co. v. Fultz, 76 Ark. 410, 89 S. W. 93, 94, the court was considering a statute almost in the identical terms as the one before us, viz.:

“Sec. 4124. All fire, life and accident insurance companies * * * in this state shall * * * annually give a bond to the state of Arkansas, with not less than three good and sufficient sureties to be approved by the Auditor of the state, in the sum of twenty thousand dollars, conditioned for the prompt payment of all claims arising and accruing to any person during the term of said bond by virtue of any policy issued by any such company, individual or corporation upon the life or person of any citizen of the state or upon any property situated in this state, and such bond shall be annually renewed.

It was held in that case that, a claim on a fire policy arises and accrues within the meaning of the statute, and of a bond issued in compliance therewith, when the loss by fire occurs, though the policy postpones the time of paymént of loss for sixty days after furnishing proofs of loss, the court citing with approval the following from the opinion of the United States Circuit Court of Appeals for the Eighth Circuit, in the case of Union Central Life Insurance Co. v. Skipper, 115 F. 69, 72, 52 C. C. A. 663:

“We may either assume that the word ‘and’ is used in the statute, as it frequently is, in a disjunctive sense, and that the legislature intended to make the obligors in such bonds as the one sued upon liable for any loss where either the death occurs, or the loss becomes payable, by the terms of the policy, during the lifetime of the bond. Or we may assume that the words ‘arising and accruing’ mean the same thing; one word being used as explanatory of the other; the intent being to say that the obligors in such bonds shall be liable to pay all losses that ‘arise or accrue’ by reason of deaths which occur during the period covered by the bond. We incline to the opinion that the latter is the correct interpretation of the statute, and that the time when a death occurs fixes the liability on this class of bonds.”

As we have seen, the terms “arise and accrue” have different meanings. In fixing the liability of the surety, was it the intention of the Legislature to limit the obligation of the surety to such claims as had both arisen and accrued? For example, a claim might be said to have arisen when Roques died in 1924 and to have accrued when default was made in the December payment, under the terms of the policy, in 1931, seven years later. In the meantime the surety upon the 1924 bond would have been discharged, or, if the discharge did not relieve it of liability for claims which; arose and accrued during! its term, no recovery could be had against this surety, because the claim arose but did not accrue during the term of the bond. Nor could there be recovery as against the 1930 surety, because the claim did not arise during the term of that bond. Therefore neither surety would be liable, because the claim did not arisei and accrue during the term of either bond. Little protection would be afforded policyholders under this interpretation of the statute, for the reason that we suspect but few claims would arise and accrue during the space of one year, the term of the bond. We are of opinion, therefore, that the word “and” in this clause is not employed in a conjunctive sense, but was intended to be understood as disjunctive and in the sense of “or,” so that the obligation of the surety would be to pay unsatisfied claims which had either arisen or accrued. This was the interpretation placed upon this clause in the last-cited ease by the United States Circuit Court of Appeals (Union Central Life Insurance Co. v. Skipper, supra), from which we quote:

“If the words ‘arising and accruing,’ as used in this bond, are construed as meaning something different, — for example, if the word ‘arising’ means when death occurs, and the word ‘accruing’ means when the loss, by the terms of the policy, becomes payable, — and if it be true that a loss must both arise and accrue within the lifetime of the bond, to render the obligors therein liable, then it is obvious that it would often happen that losses would occur under policies which would not be within the terms of any bond, because they would not both arise and accrue while it was in force. * * * The legislature cannot be presumed to have intended such a result, and this is a sufficient reason for rejecting the construction contended for, and seeking for some other which is more reasonable and more in harmony with the presumed intention of the lawmaker. * * * We cannot assent to the view that these words refer to different events, — the one to the death of the insured, and the other to the time the loss is payable by the terms of the policy, — and that both of these events must occur during the life of a bond, to render the obligors therein liable. The lawmaker, in our judgment, had no such purpose in view when the statute was framed.”

Our conclusion, therefore, is that the Legislature intended to secure policyholders whose claims, were unsatisfied, and which had either “arisen or accrued” during the term of the annual surety bond required by Act No. 172 of 1908.

For the reasons given, the judgment appealed from is affirmedo.

JANVIER, J., takes no part.


author: WESTERFIELD, J.

text:
    No. 13,493
    Orleans
    PHILIP SCHICK & SONS v. PIXLEY
    (June 8, 1931. Opinion and Decree.)
    (July 1, 1931. Rehearing Refused.)
    (October 6, 1931. Writs of Certiorari and Review Refused by Supreme Court.)
    Beard & O’Keefe and C. A. Peyronnin, of New Orleans, attorneys for plaintiffs and appellant, appellee.
    Deutsch & Kerrigan and Bert Flanders, Jr., of New Orleans, attorneys for defendant and appellee, appellant.
   WESTERFIELD, J.

This suit results from a collision between a motortruck belonging to plaintiff and a Dodge automobile belonging to defendant. The accident occurred at .the intersection of Poydras street and South Claiborne avenue. Plaintiffs sue for damages to their truck in the sum of $145, and the defendant reconvenes, claiming $123.85 as damages sustained by his Dodge car as a result of the accident. There was judgment below dismissing both the main and reconventional demands. Both parties have appealed.

The usual conflicting testimony concerning the speed" of the colliding vehicles is found in the record, but certain facts, which we deem important, do not appear to be in controversy. The Dodge, .which was being driven by Mrs. Pixley, the wife of defendant, on South Claiborne avenue, collided with the truck, which was going out Poydras street in the direction of the Mississippi river, at a point just about abreast of the property line on the uptown river corner. It is- charged in the petition and conceded by Mrs. Pixley that she proceeded to cross, the intersection of Poydras street and Claiborne avenue without stopping and at a speed estimated by some at 30 miles per hour, and admitted, by Mrs. Pixley to be between ten and fifteen, miles per hour.

Subparagraph (d) of article 1 of the Traffic Ordinance No. 7490, C. C. S., provides :

“(d) On streets and avenues having neutral grounds and carrying street car lines, vehicles crossing such neutral grounds shall have right-of-way to complete the crossing of the roadway' of such street or avenue under the following conditions:
“Provided the vehicles shall come to a full stop when about to leave the neutral ground and enter the roadway, shall signal with horn, and give opportunity for approaching vehicles in the roadway to come to a stop; it being the intention of this provision to require vehicles in said roadway to stop upon receiving reasonable warning in order that vehicles standing on the neutral ground shall be permitted to complete the crossing of or turning into the roadway.”

Defendant contends that Poydras street is. not a street “having neutral ground and carrying street car lines.” In this we believe he is mistaken. The center of the street is paved, and does not have the customary grass plot, trees, or shrubbery which is usually found on neutral grounds, nor are there any street car lines, but there are steel rails used by steam cars. We see no reason- to exempt Poydras street from the provisions of the ordinance relating to neutral ground streets It is also contended that, even though Poydras street, may be considered a neutral ground street, the ordinance is not susceptible of a' construction which would require an automobile leaving the neutral ground to stop or signal before entering the intersecting street. We have held the contrary. Fisse v. Toye Bros, et al., 14 La. App. 70, 127 So. 756; Bannon v. Picou, 15 La. App. 511, 132 So. 390; Mrs. Tarleton-Gaspard v. Malochee et al., 16 La. App. 527, 133 So. 409.

Finally, it is contended that, if Mrs. Pixley’s conduct be considered a violation of the ordinance, it in no way contributed to the accident. Aetna Casualty Co. v. Lee, 10 La. App. 763, 123 So. 137. Mrs, Pixley says she did not see the truck at all, and the driver of the truck did not testify because of the fact that he died before the trial of the case. However, an occupant of the driver’s! seat did testify that he did not see or hear Mrs. Pixley. We are satisfied that Mrs. Pixley’s, failure to stop, and/or signal was the cause of the collision, because each driver would have been conscious of the proximity of the other if the ordinance had been observed. Mrs. Pixley would have seen the truck and the truck driver would have heard Mrs. Pixley.

On the question of quantum, it is contended that the proof is insufficient to justify an award. However, it seems to us that plaintiff has sufficiently proven damages to the extent of $103.05, for which amount we believe judgment should be rendered.

For the reasons assigned, the judgment appealed from is reversed, and it is now ordered that there be judgment in favor of plaintiff, Philip Schick & Sons, and against defendant, R. B. Pixley, in the sum of $103.05. It is further ordered that the reconventional demand of R. B. Pixley be, and the same is hereby, dismissed.


author: MORENO, Judge ad hoc.

text:
    No. 13,885
    Orleans
    STATE EX REL. RICE v. RECORDER OF MORTGAGES
    (July 1, 1931. Opinion and Decree.)
    (July 20, 1931. Rehearing Refused.)
    (October 6, 1931. Writs of Certiorari and Review Refused by Supreme Court.)
    Jas. N. Brittingham, of New Orleans, Attorney for Public Administrator, plaintiff, appellee.
    Paul W. Maloney, of New Orleans, attorney for Harry Broadwell Rice, defendant, appellant.
   MORENO, Judge ad hoc.

Both the facts antd law of this case are simple and require no elaborate discussion to sustain the judgment of the lower court.

On April 1, 1920, Harry Broadwell Rice filed suit against Jean Brunnetti and the recorder of mortgages for the parish of Orleans, asking for the cancellation of' a mortgage resting against the property of the plaintiff to secure the’ payment of a note .of $1,000, dated July 21, 1914, and payable one year after date.

The plaintiff alleged that the note was made payable to his order and indorsed by him, and that in due course Brunnetti, who was. a Canadian, became the owner of . the note. Shortly after the execution of the note, the World War broke out, and Brunnetti left for Canada, and on July 22, 1915, sent to the Whitney Central Trust & Savings Bank his note for the purpose of collection. Two hundred dollars and interest .was paid thereon, and the note extended for one year. Thereafter nothing further was heard from Brunnetti, and because of his age and his nationality, it was assumed that he had gone to war, and doubtless had never come back.

Plaintiff alleged that he desired to pay the note and to have canceled the mortgage resting on his property, and a curator’ ad hoc was appointed to represent Brunnetti. Contradictorily with this curator ad hoc, a judgment was rendered decreeing that upon the deposit in the registry of the court by Rice of the $800 due on the note, with the interest, that the recorder of mortgages should cancel the mortgage resting on Rice’s property. The deposit was duly made and the mortgage canceled.

The public administrator, in the course of his duties, ascertained that the clerk of the civil district court had on deposit to the account of Brunnetti the sum of $1,-070, representing the principal and the accumulation of interest through the years. He provoked an administration on the ground that the estate was vacant and, in due course, prepared his final account for distribution.

The plaintiff, Rice, then took a rule on him to show why the money which had been left on deposit with the clerk of court should not be turned over to him, instead of being distributed by the public administrator. The theory upon which the rule was taken was that Rice had made the deposit with the clerk of court for the purpose of discharging the debt and to cancel the mortgage, and that the note had prescribed after five years, and-that the mortgage had perempted after ten years. He, therefore, claimed that since his money had not been used to pay the note he was entitled to its return. In support of his contention, Rice cites the case of McGlouhry, wife of- James G. Posey, v. Widow Julian Habana et al., 9 Orí. App. 225.

An examination of that case shows that it clearly has no reference to the facts stated here. In that case money was deposited for the purpose of discharging an obligation which was for some reason or other never discharged. The plaintiff in that case always retained title to the money and, consequently, had a right to its demand.

In this case, Mr. Rice 'paid the money into the registry of the court for the purpose of paying the note and canceling the mortgage, both of which things were done. By that payment his legal situation was improved and that of Brunnetti was adversely changed. By the payment which he made into the registry of the court he secured a cancellation of the mortgage which rested on his property and discharged the obligation evidenced by the note. Brunnetti, on the other hand, because of the deposit by Rice, suffered the destruction of his security, and, consequently, became entitled to the ownership of the funds deposited by Rice. It would be wholly lacking in reason to say that Mr. Rice could discharge his obligation and free his property of mortgage and yet retain ownership of the money, the payment of which was necessary to accomplish his purpose.

There, of course, can be no question that if the money had been deposited with an agent of Mr. Rice for the discharge of an obligation, and the creditor had never elected to collect his debt within the prescriptive period and the claim had prescribed, the depositor of the money would have been entitled to its return. That, of course, would have been upon the theory that he had never parted with title to the money and that the title to it would have resided in him until his debt had been discharged. Certainly, the person with whom the deposit had been made did not acquire title to the money and, consequently, could assert no right adverse to that of the depositor.

Here, however, the situation is wholly different, because immediately upon the deposit being made, the debt due to Brunnetti was discharged and the right to the cancellation of the mortgage Immediately arose. Mr. Rice stands in no better position than any other member of the publie, since he parted with title to his money as soon as his debt to Brunnetti was discharged, and having no title to the money, he is naturally without a right of action to determine its disposition and, consequently, can assert no rights against the publie administrator.

The judgment of the lower court is therefore affirmed.

WESTERFIELD, J„ and DUNBAR, Judge ad hoe, participating.