text:
    No. 9809
    Orleans
    NORTHWESTERN BOTTLE CO. v. ROSEN, ET AL.
    (October 3, 1927. Opinion and Decree.)
    (October 23, 1927. Rehearing Refused.)
    (January 20, 1928. Writ of Certiorari 'and Review Denied by Supreme Court.)

      (Syllabus by the Court)

    1. Louisiana Digest — Banks and Banking —Par. 69, 73.
    A bank will be liable to the drawer for any damage he may suffer when it receives for collection a draft to which is attached a bill of lading to shipper’s order notify * * * accompanied by written instructions to deliver said bill of lading only on payment of tbe draft, and when the bank receives payment of the draft from a third person other than the drawer and delivers to him the bill of lading, and the drawer thereby suffers injury.
    2. Louisiana Digest — Judgment—Par. 36, 198.
    When a defendant is called in warranty by his co-defendant and is served with the original petition of iplaintiff and with the answer and call in warranty of his co-defendant and files an answer to the original .petition and attends the trial of the case in person and is represented by counsel and testifies as a witness on all branches of the case, he will be bound by the judgment rendered against him on the call in warranty although no preliminary default was taken against him thereon and no answer thereto was filed by him, when it is shown he did not raise that issue on the trial of the case nor in his application for a new trial nor suggest any injury for the absence of the default or of the answer.
    3. Louisiana Digest — Pleading—Par. 68, 70.
    A defendant who does not insist upon the trial of exceptions is presumed to have waived them.
    4. Louisiana Digest — Criminal Law — Par. 275, 277, 425, 426.
    A prisoner who has declared his readiness to go to trial cannot afterwards object that he was not served with a copy of the indictment, or that a juror, or the jury commissioners were not qualified. He cannot take the chances of a verdict in his favor and when rendered against him attack it for facts known to him before the trial.
    5. Louisiana Digest — Appeal—Par. 195, 197, 564, 568.
    Pleas and issues not raised in the lower court cannot be considered on appeal.
    Appeal from Civil District Court. Hon. H. C. Cage, Judge.
    Action by Northwestern Bottle Co. against Aaron Rosen, et al.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Lazarus, Michel & Lazarus, and H. S. Will, of New Orleans, attorneys for American Bank & Trust Co., defendant appellant.
    Jno. May, Wm. H. -Norman, of New Orleans, attorneys for plaintiff, appellee.
    Milling, Godchaux, Saal & Milling, of New Orleans, attorneys for Jackson Brewing Co., defendant.
    Woodville & Woodville, and J. B. Rosser, of New Orleans, attorneys for Aaron Rosen, defendant, appellant.
   CLAIBORNE, J.

This is an action for diversion and illegal appropriation of a bill of lading.

The plaintiff alleged that on April 30, 1920, they sold to one of the defendants, the Jackson Brewing Co., a carload of bottles for the price of $4.50 per gross or $1009.12 f. o. b. St. Louis, Mo.;

That on May 15th plaintiff shipped said carload of bottles via I. C. Railroad, notify Jackson Brewing Co., and on May 17th mailed the invoice;-

That on May 18th plaintiff drew on the Jackson Brewing Co. a sight draft, bill of lading,. for fifty per cent of the purchase price, say $504.56, and on May 18th deposited said draft with the Laclede Trust Co. of St. Louis, which forwarded the same for cancellation to the Liberty Bank and Trust Co. of New Orleans, now the American Bank ' and Trust Co., another defendant, with the bill of lading attached properly endorsed by plaintiffs;

That the Liberty Bank received said draft and bill of lading and accepted the same for collection;

That the said Liberty Bank failed to notify the Jackson Brewing Co. or to undertake to collect said draft, but tendered it to, and accepted payment thereof from, Aaron Rosen, another defendant, doing business as ' the American Bottle Co. in New Orleans and surrendered the bill of lading to him;

That the said Aaron Rosen tortiously converted said bill of lading and the carload of bottles to his own use, and on June 2nd delivered said bill of lading and bottles to the Jackson Bottling Co. in part fulfillment of a sale of ten cars of bottles that Rosen had made to the Jackson Brewing Co.;

That when the Jackson Brewing Co. received said bill of lading and bottles from said Rosen they knew that said bill of lading covered the bottles which plaintiff had shipped to them under their contract of sale, and that Rosen was without right to the bill of lading or bottles, and that the acceptance by the Brewing Co. of said bill of lading and bottles constituted a tortious conversion by said Brewing Co. for which it is liable in damages to plaintiff;

That the price at which plaintiff sold said bottles to the Jackson Brewing Co., viz: $1009.12, represented the fair market value of said bottles at New Orleans at the time of the negligent inaction of the Liberty Bank and of the tortious conversion by Rosen and the Brewing Co., “and that as a result of said negligence and conversion your petitioner, having received only the sum of $504.56, has suffered damage in the sum of $504.56, said sum representing the balance of the purchase price and value of said bottles;”

Plaintiffs pray for judgment in solido against the Liberty Bank, Aaron Rosen, and the Jackson Brewing Co.

Aaron Rosen denied all the allegations of the petition.

The Liberty Bank also denied all the allegations of the petition and averred that the draft referred to was not drawn on the Jackson Brewing Co., but was drawn on the American Bottle Co., of which the said Aaron Rosgn was the proprietor; that “it presented said draft to Aaron Rosen and received payment therefor from the said Rosen, and remitted the proceeds thus received to the Laclede Trust Co., from which it had received it; that on payment of said draft by Aaron Rosen, it delivered to him the bill of lading attached. The bank further alleged “that if it should develop on the trial of this cause that the said draft was not drawn on the American Bottle Co., or the said Rosen, and was drawn on the Jackson Brewing Co., as alleged by the plaintiff herein, and that therefore the bill of lading was improperly delivered to, or obtained by, the said Rosen in such a way, or under such circumstances, as might render your respondent liable to plaintiff herein for the amount demanded by it, or any other amount, then respondent shows that it is entitled to have and recover judgment against said Aaron Rosen for such amount as your respondent may be condemned towards plaintiff herein.” The bank prayed for dismissal of the suit and called Rosen in warranty.

The Jackson Brewing Co. excepted that there was a misjoinder of parties. It admitted the purchase of a carload of bottles; and that it received an invoice from plaintiff for the same, but it never received any bill of lading, that it called on the Liberty Bank for the same, and was there told that it had no such draft; it admitted that Rosen delivered the car of bottles to it as alleged in the petition. It denied all' the other allegations of the petition.

The exception of misjoinder was maintained as to the Jackson Brewing Co., and the suit against it dismissed.

The name of Liberty Bank was changed to that of American Bank and Trust Co.

There was judgment on the merits in favor of the plaintiff and against the defendant, the American Bank and Trust Co., for $462.66, and in favor of the American Bank against Aaron Rosen on the call in warranty for the same amount.

In refusing an application for a new trial filed by Rosen the trial judge wrote:

“I have never tried a case since I was on the bench in which the evidence was so clear and overwhelming against the defendants. Failure to give judgment for plaintiff as was done, in my opinion, would have been judicially impossible. This application for a new trial, in my opinion, is utterly baseless and utterly without merit.”

Aaron Rosen appealed on July 23, 1924.

The American Bank appealed on July 25th, two days after.

In this court plaintiff, the Northwestern Bottle Co., prayed for damages for a frivolous appeal taken by the bank alleging that plaintiff had proven, by undisputed evidence, that its draft was drawn upon the Jackson Brewing Co., and not upon the American Bottle Co.

The American Bank and Trust Co. also prayed for damages for the frivolous appeal taken by Rosen.

The facts of the case are that the plaintiff, the Northwestern Bottle Co., of St. Louis, sold to one of the defendants, the Jackson Brewing Co., of New Orleans, one carload of bottles for the price of $1009.12, of which it paid cash one-half, or $504.56, the balance payable on receipt of bill of lading. The plaintiff shipped the bottles consigned to shipper’s order, Northwestern Bottle Co., notify Jackson Brewing Co., with sight draft on Jackson Brewing Co. attached, for $504.56, or one-half the balance due on the car; but by error the bank notified the American Bottle Co., of New Orleans, owned and operated by Aaron Rosen.

The latter paid to the Liberty Bank the draft on the Jackson Brewing Co. for $504.56, representing one-half of the value of the carload of bottles, and received from the bank delivery of the bill of lading; Rosen then sold the bill of lading, representing the full value of the carload of bottles, to the Jackson Brewing Co., from which he received $967.23 for the whole car, for which the plaintiff had already paid one-half; in other words, Rosen, by paying the draft of $504.56, received a bill of lading for bottles worth $967.23, and sold them for that amount, less $41.80 for deficiency in weight, to the Jackson Brewing Co., which had. already paid one half of the carload,. so that Rosen received from the Jackson Brewing Co. $462.66 for bottles which already belonged to it.

The question, therefore arises, is the bank liable to the plaintiff for the $504.56, for having received payment of the draft of like amount from the American Bottle Co., or Aaron Rosen, its owner, and delivered to him the bill of lading, and if so, is Rosen liable to the hank in warranty?

The trial judge answered both questions in the affirmative and we are of the opinion that he was correct.

The contention of the defendants that the draft of $504.56 was drawn upon the American Bottle Co. is contradicted by the record.

J. R. Thursby, a former employee of the Laclede Trust Co., of St. Louis, in the capacity of teller, entirely disinterested either for himself or for the bank, testified that in May, 1920, the bank received for collection from the Northwestern Bottle Co., two drafts upon New Orleans, one dated May 18th on the Jackson Brewing Co. for $504.56, and another of May 12th for $611.91 on the American Bottle Co., which drafts were forwarded for collection to the Liberty Bank and Trust Co., of New Orleans; that he accompanied said drafts with the following letter of instructions:

"Deliver attached B/L only upon payment of draft.”

He was asked:

"Did you ever authorize or did any one, through you, ever authorize the Liberty Bank and Trust Co. to accept payment from the American Bottle Co., or from Aaron Rosen, of the. before referred to draft drawn on the Jackson Brewing Co., or to deliver to any one, other than the Jackson Brewing Co., the bill of lading attached to such draft?
* “A. To the best of my knowledge, no.
“Q. Is it customary for banks, on receiving drafts for collection drawn with bills of lading attached, to surrender such bills of lading to any person other than the person upon whom the draft is drawn?
“A. Not unless specific instructions are received to the contrary.”

This witness is corroborated in his testimony by Samuel Kranzbery, president of plaintiff company, and by L. A. Henline, late cashier of the defendant bank. The latter was shown the letter of instructions mentioned by the witness, Thursby, and asked:

“Under the banking practice who is the person that bill of lading should have been delivered to on payment of the draft?”

And he answered:

“It should have been delivered to the Jackson Brewing Co.
“Q. And to no one else?
“A. No, sir.
“Q. And if the Bank did deliver that bill of lading to any one else than the Jackson Brewing Co. it was an error on the part of some one in the bank?
“A. Undoubtedly.
“Q. And an unauthorized person received it?
“A. Yes, sir.”

The bank which received the draft offered no evidence to prove that it had been drawn on the American Bottle Co.

Rosen, who paid the draft, did not produce it to prove that it was drawn upon the American Bottle Co., nor did any officer of the defendant bank, nor any one on its behalf, contradict the testimony of Thursby or of Henline on any point.

As for the defendant, Rosen, he testified he did not know how to read or write, and he remembered nothing, and knew nothing of the transaction.

The case of Martin v. Hibernia Bank & Trust Co., 127 La. 301, 53 So. 572, relied on by Rosen has no application. In that case Mrs. Martin had not deposited a check for collection, but had sold it to the Areola Bank.

The singular anomaly is presented that while the American Bank prays for damages for a frivolous appeal, taken by Rosen, itself took an appeal from the judgment in favor of plaintiff. It would seem that if one judgment was frivolous, the other must be also. But we may distinguish, and consider that the bank did not want to be put in the position of having to pay the judgment against itself until it might itself be in a position to recover the amount of its judgment against Rosen. So considered, its appeal was not “frivolous.”

Nor can we hold Rosen’s appeal frivolous in view of the Martin case and the failure to the bank to have taken a default against Rosen.

The defendant, Rosen, contends that the judgment in favor of the bank and against him, called in warranty, should be annulled and set aside for the reason that no preliminary default was entered against him on the call in warranty, nor did he answer the same; and he relies upon the case of Conway vs. Bordier, 6 La. 349.

That was a petitory action. The defendant called his vendor in warranty.

He was cited, but he failed to answer “nor has judgment by default been taken against him.” The judgment against the defendant was affirmed, but the case was remanded for further proceedings against the warrantor “Jacques Riviere.” It does not appear in that case that Riviere was otherwise made a party to the suit, nor that he appeared in the suit in any manner. But in the present suit Rosen was already a party defendant, and he was again brought in as a warrantor, and was cited as such. Upon the trial of the case he was present and also represented by counsel and testified as a witness.

His counsel cross examined all witnesses. The testimony adduced affected Rosen, defendant, as well as Rosen, warrantor; no objection was ever made. After judgment had been rendered against him as warrantor he filed an application for a new trial on various grounds, but not on the ground that no default had been taken against him, nor that he had not filed an answer to the call in warranty; in other words he did not urge these two errors in the proceedings which he sets up now. Rosen was not obliged to file an answer to the call in warranty; he could have abstained from doing so. Although plaintiff should have taken a judgment by default against Rosen, C. P. 310; Adler, Goldman & Siegel vs. Wolff, 36 La. Ann. 175; he had the right to waive that formality.

Forms in prpceedings must be adhered to when their omission would work an injustice upon a litigant or deprive him of a right. The converse of the proposition is equally true, that technicalities must be disregarded when their absence has worked no injustice upon any one, and their enforcement would bring about hardship upon some one. The tendency of modern practice is to yield as little as possible to technicalities. LeBlanc vs. United Irrigation & Rice Milling Co., 129 La. 196, 55 So. 761; Davis vs. Arkansas Southern R. Co., 117 La. 320, 41 So. 587.

A defendant is entitled to a petition and citation; yet if he does not except to a proceeding by rule he is presumed to have waived citation and he is bound by the judgment. Quertier & Co. vs. Hille, 18 La. Ann. 65; Genella v. McMurray, 49 La. Ann. 988, 22 So. 198; Leboeuf vs. Merle, 1 La. Ann. 144.

In this case the taking of a default was a mere technicality the absence of which has not affected Rosen injuriously nor deprived him of any defense; nor would it have been of any advantage to Rosen had a default been taken. If Rosen filed no answer to the call in warranty, he had no one to blame but himself, Hazard vs. The Agricultural Bank of Miss., 11 R. 336; and it does not appear that the absence of that answer has injured him in his defense. Allain & Tremoulet vs. Truxillo, 15 La. 298. He testified as a witness and introduced other witnesses in his defense and pleaded and urged all the defenses he thought of. He was present throughout the trial of the case in person and was represented by counsel; Rosen made no. objection at any time that no default had been taken against him, and certainly he had no one to blame but himself if he filed no answer. When judgment was rendered against him as warrantor he filed an application for a new trial. But in that application he made no allusion to the want of a default. He should have spoken then or long before, or forever after his lips are sealed on that ground.

By applying for a new trial Rosen admitted that there was a valid judgment rendered against him which he was es-topped from afterwards denying, Abbot vs. Wilbur, 22 La. Ann. 368; Hazard vs. Agricultural Bank of Miss., 11 R. 337. A final judgment cannot be set aside for want of a judgment by default when the record shows that the defendants filed bills of exception and a peremptory exception and defended the suit. State vs. Hampton, 14 La. Ann. 725.

This suit was filed in May, 1921, and Rosen was cited in the same month; judgment was rendered against him on July 16, 1924. Can he be heard at this late day, three years afterwards and under the circumstances to say, that the judgment against him is null because no judgment by default was taken against him? Can he remain silent for six years, take the chances of a judgment in his favor, and if he loses, move to reverse the judgment by raising that point for the first time in the Court of Appeal?

We have said that taking a judgment by default was a formality. It is not every formality that is under all conditions essential to the validity of a judgment.

A defendant may waive formalities, Bawdwin vs. Shields, 21 La. Ann. 118; C. C. 11.

He may waive the formality of a default. Anheuser-Busch Brewing Assn. vs. McGowan, 49 La. Ann. 630, 21 So. 766, No. 9998 Court of Appeal.

A judgment cannot be rendered against a party until exceptions filed by him have been passed upon. Yet he is presumed to have waived his exceptions who does not insist upon the trial of them prior to the trial on the merits. 1 La. Dig., pp. 361-362, S. 197; Serio vs. Trainor, 139 La. 61. 71 So. 215.

Citation is waived by going to trial upon the merits. 1 H. D., No. 7, p. 245. Citation of appeal is waived by appearing. 1 H. D. 7, 1 No. 6; In re Great So. Lbr. Co., 132 La. 994, 62 So. 117; or by bonding sequestration, Bush & Thomson vs. Dewing, 24 La. Ann. 272.

Criminal practice is stricter than Civil, and as a general rule a strict observance of the forms of law is essential, forma dat esse rei, yet in some instances the defendant cannot take advantage of an omission of its forms.

If, on being brought to the bar', the prisoner declares that he is ready for trial, he cannot afterwards object that he was not served with a copy of the indictment. State vs. Hernandez, 4 La. Ann. 379; State vs. Fuller, 14 La. Ann. 667; 1 H. D. 374.

“So of an objection to a juror, that he is an alien. A prisoner, who by the list of jurors served on him, is furnished with the means of investigating their qualifications, cannot take the chance of a verdict in his favor, and when rendered against him successfully attack it for facts known to him before the trial.” 1 H. D. 398, S. 15; State vs. Marshall Green, 36 La. Ann. 97; State vs. Robinson, 37 La. Ann. 674; State vs. Jackson, 37 La. Ann. 897; State vs. Burns, 38 La. Ann. 362; State vs. Bird, 38 La. Ann. 499; State vs. Walker, 39 La. Ann. 22, 1 So. 269; State vs. Sopher, 35 La. Ann. 976.
“The principle is well settled that a new trial will not be granted for matters which the accused not having availed himself of at the proper time is presümed to have waived.” State vs. Walker, 39 La. Ann. 19 (22), 1 So. 269.

Same ruling as to qualifications of jury commissioners. State vs. Tisdale, 41 La. Ann. 344, 6 So. 579.

This question cannot he raised in this Court ior the further reason that it “cannot consider, on appeal, questions that have not been passed upon by the District Court.” Cunningham vs. Penn. Bridge Co., 131 La. 196 (203), 59 So. 119

“Pleas and issues not raised in the lower court cannot be raised on appeal.” Succession of Turgeau, 130 La. 65, 58 So. 497; Bonnin vs. Town of Crowley, 112 La. 1025, 36 So. 842; Neith Lodge vs. Vordenbaumen, 111 La. 214, 35 So. 524; De Grilleau vs. Boehm, 106 La. 472, 31 So. 74; State ex rel. Neyland vs. Read, 50 La. Ann. 445, 23 So. 715; State ex rel. Hibernia Nat. Bank vs. Peals, 50 La. Ann. 28, 22 So. 972; Succession of Rhodes, 39 La. Ann. 473, 2 So. 36; Jackson vs. Michie & Murdock, 33 La. Ann. 731; Verret vs. Bonvillain, 32 La. Ann. 29; Theodore vs. N. O. Mutual Ins. Assn., 29 La. Ann. 917; Slocomb vs. Williams, 23 La. Ann. 245; Montgomery vs. Barrow, 19 La. Ann. 169; Bludworth vs. Hunter, 9 Rob. 256 (263) 1 N. S. 242.
“It does not appear whether the district judge ever passed upon the exception to the mode of citation, therefore we do not pass upon it.” McAlpin vs. Jones, 10 A. 552 (553).

The judgment is correct and it is affirmed.


source: Caselaw Access Project

author: WESTERFIELD, J.

license: Public Domain

text:
    No. 10,259
    Orleans
    FREIBBERG v. MAMMELLI BENADEY, INTERVENOR
    (May 21, 1928. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Laws—Par. 29, 43; Chattel Mortgages — Par. 1, 2.
    The expression in the title of Act 198 of 1918 of the purpose to grant the right to mortgage movable propery is sufficient to indicate an intention to confer a privilege upon the mortgagee. The act is not repugnant to Sec. 16 of Art. 3 of the Constitution of 1921.
    Appeal from Civil District Court, Division “E.” Hon. Wm. H. Byrnes, Judge.
    Action by Louis W. Freibberg against Dominick Mammelli, Harry A. Benadey, intervenor.
    There was judgment for plaintiff, and intervenor appealed.
    Judgment affirmed.
    Monroe & Lemann & W. K. Leverich, of New Orleans, attorneys for plaintiff, appellee.
    Geo. J. Unteriener, of New Orleans, attorney for intervenor, appellant. ■
   WESTERFIELD, J.

In this suit plaintiff and intervenor claim priority in the distribution of the proceeds of certain property sold by the sheriff. Plaintiff, as the holder of a chattel mortgage is admittedly entitled to the money unless the chattel mortgage law Act 198 of 1918 be held unconstitutional. The ground upon which the act is assailed is its alleged repugnance to Sec. 16, Art. 3’ of the Constitution of 1921 which provides that “Every law enacted by the Legislature shall embrace but one object, and shall have a title indicative of such object.”

The title to the act reads:

“To grant the right to mortgage movable property; to provide the method of executing, recording, foreclosure and enforcement of such right of mortgage; to provide for the regulation and effect of such júght of mortgage; to provide penalties for the fraudulent disposition or concealment of property mortgaged under this Act; to provide penalties for the fraudulent release of a mortgage arising under this Act; to provide penalties for the granting of a mortgage ■ on property not belonging to the mortgagor; to provide penalties for concealing the existence of liens, privileges or encumbrances already existing on the property mortgaged under this Act; to provide for the obtaining of an affivadit by a resident of any parish from a non-resident of such parish in connection with the purchase of the movable property which may be mortgaged under this Act; to provide penalties for the violation by the mortgagor and other persons of the provisions of such mortgages and of this Act and penalties for frauds in connection therewith; to provide for the repeal of laws in conflict herewith.”

Counsel contends that the act purposes to accomplish four distinct objects which he enumerates as follows:

First: To create the right to mortgage of movable property and to provide the method of its executing, recording, enforcement and foreclosure.

Second: To create a privilege by making the recordation of a mortgage of movable property creating a lien on the property mortgaged.

Third: To make the lien so created superior to any lien or privilege arising thereafter.

Fourth: To make the removing of mortgaged property from the parish where the mortgage is recorded a misdemeanor.

The argument is that there is a' difference between a mortgage and a privilege and that a chattel mortgage under our law is a privilege and that the title of the act contains no sufficient description of privilege. R. C. C. 3185 and 3290. We are referred to a number of decisions holding laws unconstitutional because repugnant to the constitutional provision relied on here.

State vs. Capdeville, 135 La. 669, 65 So. 890; Sullivan vs. Minden Lumber Co., 135 La. 331, 65 So. 479; Lavedan vs. Thompson, 133 La. 882, 63 So. 389; State vs. Duson, 130 La. 488, 58 So. 159.

We premise our discussion with the observation that acts of the legislature are presumed to be constitutional, State vs. Rose, 125 La. 462, and will not be pronounced- otherwise unless manifestly so, a mere doubt of their validity being resolved in their favor and that when possible such construction will be adopted as will give it constitutional life rather than another construction which would strike it with constitutional death. Grenage vs. Times-Picayune Pub. Co., 107 La. 121, 31 So. 682; State vs. Capdeville, 104 La. 561, 29 So. 215; State vs. Winnfield, 127 La. 755, 53 So. 980.

We find only one object .expressed in the title of the act and, that, the purpose of permitting personal property to be mortgaged in this state. It is fairly disclosed in the title and the scope of the act itself is no broader. All else that is said on the subject is cognate and not inconsistent with the object of the law as expressed in its title. We know of no constitutional mandate requiring definition of terms or minute details of legislation to be expressed in the title.

Whatever distinction may have been recognized by our courts between mortgage and privilege, a mortgage upon personal property must necessarily import a privilege.

For the reasons assigned the judgment appealed from is affirmed.


author: JONES, J.

text:
    No. 10,806
    Orleans
    ALLEN v. GENTRY
    (May 21, 1928. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Payment—Par. 21 Evidence — Par. 58, 59.
    He who pleads payment must prove it or plaintiff will have judgment.
    Appeal from Division “C,” Civil District Court. Hon. E. K. Skinner, Judge.
    Action by Dr. Kotz Allen against Benjamin M. Gentr-y.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    James Brittingham, Jr., of New Orleans, attorney for plaintiff, appellee.
    S. G. Wimberly, of New Orleans, attorney for defendant, appellant.
   JONES, J.

Plaintiff claims rent for March, April, May, June, July, August, September and October — eight months — at fifty ($50.00) dollars per month. Total, four hundred ($400.00) dollars.

Defendant admits owing fifty ($50.00) dollars for October and pleads payment of the balance.

The District Judge gave judgment for three hundred ($300.00) dollars, and defendant appealed.

Plaintiff-appellee has answered the appeal asking for the amount claimed.

“He who pleads payment admits the existence of the debt, and must prove payment, or the plaintiff will have judgment.’’

Diggs vs. Parish, 18 La. 6.

Kennedy vs. Beaseley, 8 La. Ann. 88.

Irwin vs. Gernon, 18 La. Ann. 228.

St. Armand vs. Alexander, 18 La. Ann. 243.

Gernon vs. McCan, 23 La. Ann. 84.

Mantin vs. Dickson, 35 La. Ann. 1036.

Taggart vs. Noonan, 8 Orl. App. 150.

Precter vs. Jannorelli, 10 Orl. App. 179.

Succ. of Simon, 10 Orl. App. 70.

Mose vs. Traverse, 11 Orl. App. 342.

Defendant having the burden of proof as to ¡payment, a finding against payment is justified — where the defendant alone testifies thereto and is contradicted by a creditable witness.

Loyd Mercantile Co. vs. Long, 123 La. 777, 49 So. 521.

The only witness who swore to payment for any particular months was Benjamin M. Gentry, the former tenant, who did not produce his records, though he promised to do so. Furthermore, he could give no particular dates, and testified from memory entirely.

He was contradicted by plaintiff, who testified from record entries, made by his own hand, which apparently showed defendant was six months behind in the rent, but these records, though offered in evidence, are not in the record.

The only other witness is Miss Hazel Malone, stenographer for plaintiff, who testified defendant made two payments between June and November, but didn’t know what months they covered.

We agree with the trial judge in thinking that the proof does not suffice to sustain a judgment for two additional months.


author: CLAIBORNE, J.

text:
    No. 10,783
    Orleans
    LUND v. SCHUERMANN
    (May 28, 1928. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Appeal—Par. 625.
    The judgment of the trial court will be affirmed unless shown to be manifestly erroneous.
    Appeal from the Civil District Court. Hon. E. K. Skinner, Judge.
    Action by Felix Lund, et al., against Mrs. John P. Schuermann.
    There was judgment for plaintiff and defendant appealed.
    Judgment amended and affirmed.
    George Piazza, of New Orleans, attorney for plaintiff, appellee.
    Woodville & Woodville, of New Orleans, attorneys for defendant, appellant.
   CLAIBORNE, J.

The plaintiff sued on behalf of his minor son George for $1269 damages. He alleged that on May 10, 1924, at about eight o’clock a. m., his son was standing upon the neutral ground proper of Tulane Avenue, at the intersection of Dupre Street, on the uptown river side, ■waiting for a river bound street car; that while so standing an automobile driven by the defendant, Mrs. John P. Schuermann, ran upon the neutral ground where his son was standing and knocked him down; that defendant was driving her automobile upon the uptown roadway of Tulane Avenue in the direction of the river; that his son received the following injuries; A bruised face and jaw, and left knee, and general contusions of the body; that he was confined within the Charity Hospital for one day and continued to be treated there for three weeks; that he suffered intense physical pain and mental anguish, and walked with difficulty during three months; that at the time of the injury he was employed as a collector and earned $16 a week, and was disabled during four weeks and deprived of his salary and paid $5 for medicines.

The defendant admitted that plaintiff’s son was standing upon the neutral ground but denied all the other allegations of the petition. Further answering the defendant alleged that on the date alleged in plaintiff’s petition she was driving upon the uptown roadway of Tulane Avenue and upon approaching Dupre Street noticed plaintiff’s son and a lady standing at the intersection of the neutral ground, apparently waiting for a street car; that she was running at a very slow speed; that another automobile, going at a rapid speed, attempted to pass defendant on the right side; that on approaching defendant’s car this automobile cut in front of defendant’s car in order to avoid a truck that was parked along the curbing next to the cor-' ner; in so doing the left front wheel of said automobile struck the right front wheel of defendant’s car shoving it upon the neutral ground and making it strike plaintiff’s son; that the fault was with the driver of this automobile and not with her.

Judgment was rendered in favor of defendant.

The plaintiff moved for a new trial alleging that since the trial of the case he had discovered the names of the occupants of the automobile mentioned by the defendant, and that they would swear that they did not strike the defendant’s car, but that the defendant’s ear ran into them while she was attempting to pass them, and that defendant’s car struck plaintiff’s son.

The new trial was granted.

Upon the new trial, judgment was rendered in favor of plaintiff for $300.

Prom this judgment the defendant has appealed.

On behalf of plaintiff six witnesses were examined:

1st. Miss Yvonne Sougeron, bookkeeper at the Whitney Bank, testified that she lived at 7317 Sycamore Street; that on May 10, 1924, at about 8 o;eloclc she was going to work riding in a Ford coupe on Tulane Avenue towards Canal (on the river); the defendant’s automobile was behind her, and passed her on the left hand side; in attempting to do so the defendant’s right front wheel locked the left front wheel of witness’ car, and defendant pulled to the left and went to the neutral ground where she hit the boy; the witness’ car pulled to the right, never pulled to the left; the defendant blew no horn; the witness’ brother was driving their car; besides herself in the car was her sister; they were all three going to work; her sister was due at 8, herself and her brother at 8:30; her brother sat on the left and her sister on the right; witness did not notice a truck pulled up by the sidewalk at the corner; she did not see the boy as he was struck; she saw him only after he had been picked up; she was not running faster than usual.

2nd.- Miss Lucille Sougeron was employed at the Louisiana Red Cypress Company as stenographer for the last 12 years; her brother was at the wheel, she sat next to him, and her sister on her right; she is due at her work at 8; the defendant was running fast.

The. balance of her testimony corroborates her sister Yvonne.

3rd. George Sougeron was employed at the machinery sales department of A. M. Locket and Co., he was driving the car; about one-half of the block before Dupre Street he heard a car back of him blowing for the right of way; he pulled over to the right to allow the car to pass on the left; near .Dupre Street the defendant’s car hit his left front wheel when he pulled over to the right and passed a truck that was parked to the right of the road; he was running about 15 miles an hour; his. car was hit with such force that it almost upset it; it was about a quarter of 8; the collision occurred on the lake side of Dupre Street; he has not been sued by Lund; he is 21 years of age, and was 19 at the date of the accident; he has been driving automobiles about six years. The balance of his testimony corroborates his two sisters.

4th. Miss Lillian Lund was standing on the downtown side of Tulane Avenue neutral ground waiting for a car going from the river to the Cloverland Dairy where she was working as a bookkeeper. She thus explains the accident: “The only thing I saw is there was a Ford coupe driving ahead and there was big sedan coming behind the Ford and the only thing I saw is when the sedan came into the neutral ground and knocked my brother down, and swerved again;” her brother was standing upon the neutral ground proper; upon: the uptown side on the town side, waiting for a street car going towards the river; she did not see the collision between the cars. Her brother had his face and jaw scratched and his knee sprained and terribly swollen.

5th. George Rojas is a (pharmacist in the employ of Katz and Besthoff for the last five years; at the time of the accident he was standing on the neutral ground on the uptown river side waiting for a car running towards the river; together with him were his wife and the plaintiff’s son; he describes the accident as follows: “There was a Ford coupe and a sedan coming and it looked to me as if the Ford coupe was about to come to a stop, and the sedan in the back of the coupe, to my knowledge from looking at it, looked as though she tried to go ahead of the coupe, and she hit the front portion of his Ford coupe and knocked this boy down, as I grabbed my wife and pulled her out of the way to keep it from hitting her and myself.” He is positive the Ford coupe did not turn towards the neutral ground; no portion of the boy’s body was extending into the street; the Ford coupe was in front of the sedan and the sedan was behind; “the sedan was in the back of the coupe' and he was in the middle of the street, and she was trying to get ahead of him; the sedan hit the front left wheel of the coupe; the Ford was in front of the sedan about the middle of the street and the sedan was trying to get ahead of him and as she did, she hit the front left wheel of the Ford; if the car in the back had stopped and didn’t try to get ahead of the Ford, there wouldn’t have been an accident.

6th. George Lund, the plaintiff’s son, is 20 years of age; was rent collector for Carrere Real Estate Company. He was standing on the neutral ground, waiting for a car to go to work; his knee joint, and his jaw and face were hurt, contusions, bruises, sprain, and swelling, after the accident he was taken to the Charity Hospital where he stayed for about nine hours; X-ray picture and bandages and serum; could not go to work for four weeks; could not walk; went to hospital three times a week for four weeks; was earning $16 a week; he was in bed when Schuermann visited him.

Opposed to those six witnesses is the testimony of two witnesses to the accident and two to the injury.

The defendant, Mrs. Beulah Schuermann, testified as follows:

“It was on May 10, 1924, about five minutes of eight in the morning. I brought my husband to work on Tulane and Carrollton Avenues, and having with me my 2'3 months old grandson and having nothing to • do, going slowly, going on Tulane Avenue, all the way in a,bout 15 miles an hour. Just before I reached Dupre Street there was a Ford behind me, and I could hear his engine raising up and just as I got to Dupre Street he tried to pass me on the right, and not seeing the truck was at the corner parked, he hit my front hub and threw me on the neutral ground and I stepped on my brakes where I was, my bumper coming in contact with Mr. Lund.”

August L. Hady is engaged in the ice business in a truck and wagon; on the mormng of the accident he was standing on the front platform of a Tulane car going out Tulane Avenue.

When about 125 feet from the corner of Dupre Street he saw the accident. He describes it as follows:

“This lady here (indicating defendant) was proceeding out Tulane Avenue towards Canal in a Hupmobile, I think, and there was a truck standing on the corner of Dupre and Tulane Avenue in front of a grocery store, and there was a Ford coupe coming and just when it got near the corner, the Ford coupe tried to pass in between the truck and the Hupmobile, and they collided the two front wheels, the left front wheel of the Ford and the right front wheel of the Hupmobile causing the Hupmobile to swerve to the left. * * “ The Ford coupe tried to pass in between the Hupmobile and the truck and his left front hub cap struck her right hub.”

Defendant’s husband did not see the accident. He visited the plaintiff’s son the day after the accident. The son came to him unassisted, but after he discovered who he was he walked to the mantlepiece and got a stick; he said his knee was a little stiff and he had a brush hum; he rolled up his pantaloons and showed the bandages; there was nothing on his face except a smile.

H. Kaul is Shuermann’s son-in-law; in company with his father-in,-law he called on the plaintiff’s son; he was walking and when they mentioned who they were he got a walking stick; he said his knee was a little stiff, hut outside of that he was all right; he did not see any bandage on his knee; he did not show the bandage on his knee.

The testimony of the defendant as to the manner of the collision, loses much of its weight contradicted as it is by that of disinterested witnesses.

The testimony of the witness, Kaul, is contradicted hy that of Lillian Lund and of the three Sougerons and especially by that of the disinterested witness, Rojas. It is true that the Sougerons have a moral interest in absolving themselves from any blame in the matter; but at the time the case was tried their possible pecuniary liability had been extinguished by prescription. If the defendant had been blameless, why should her husband and her son-in-law have called upon the plaintiff’s son the day after the accident?

The scales are turned against the defendant by the judgment of the trial court.

But the amount of the judgment seems to us excessive. The plaintiff’s son lost four weeks’ wages at $16, making $64, and suffered a sprained knee with slight pain during four weeks. We will reduce the judgment to $200. The injuries to the face seem negligible.

It is therefore ordered that the judgment herein be reduced in capital from three hundred to two hundred dollars and as thus amended that it be affirmed, at the cost of defendant in both courts.


text:
    No. 10,826
    Orleans
    JONES v. CONZELMAN
    (May 21, 1928. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Appeal—Par. 625.
    Only questions of fact are involved and the decree of the trial judge being manifestly correct, is affirmed.
    Appeal from the Civil District Court. Hon. M. M. Boatner, Judge.
    Action by Mrs. Eva Francis Jones against Harold Conzelman.
    There was judgment for defendant and plaintiff appealed.
    Judgment atlirmed.
    Marx & Levy & Anna Judge Veters, of New Orleans, attorneys for plaintiff, appellant.
    P. M. Milner, of New Orleans, attorney for defendant, appellee.
   JONES, J.

Plaintiff alleges that her deceased husband, on the night of December 8, 1925, at 7 o’clock p. m., while attempting to cross Louisiana Avenue, from the neutral ground on the downtown side of Louisiana Avenue at South Liberty Street, was knocked down and killed by the defendant, Harold Conzelman, who was driving rapidly and negligently.

Defendant admitted the accident, but averred that the plaintiff attempted to cross without looking, and without any warning to the defendant, directly in front of defendant’s car, and so close as to make it impossible for defendant to avoid running him dpwn, although defendant, who was driving carefully, stopped his car immediately and took the injured man to the hospital.

The defendant pleads, only in the alternative, contributory negligence.

There was judgment for defendant and plaintiff has appealed.

Dr. Segue, (colored) dentist, as witness for plaintiff testifies as follows:

“He stopped his car on the neutral ground for a street car to pass and stood at a standstill until the passengers were discharged from the car. Jones, who had crossed from the upper sidewalk of Louisiana Ave. with a colored woman, Bessie Walker, waited on the lake side of neutral ground until the street car going toward the lake stopped and then stepped off of the curb of the neutral ground into the roadway, in the direction of the downtown sidewalk while the street car was at a standstill, letting off and taking on passengers; Jones was struck by left side of defendant’s car; though defendant was not speeding, he was probably going fifteen to twenty miles per hour, ‘hugging the neutral ground,’ i. e., about seventeen inches from it; Jones, who was found unconscious half way under the auto with skull crushed, died in a few hours; though a colored man, he had ‘lots of sense and reading’ and was a collector for the Unity Insurance Co. with which his wife was connected; did not see a car parked on the lower side of the roadway, although his headlights, the street lights and street car lights were burning.”

On cross-examination, he said street car passengers were “jumping and jamming,” was not watching the auto but the street car and, therefore, he was only estimating speed by distance in which auto stopped, heard the grinding of the brakes, saw only two people in defendant’s car, identifies defendant and McMahon in the courtroom as the two men in the auto and denies positively that he had ever seen McMahon and Kairdoff, the other two white men alleged to have been in the auto with defendant; he helped put Jones in the car and would certainly have seen them if they had been in the car at the time.

Bessie Walker, colored, a sister-in-law of plaintiff, testifies for him as follows:

The street car was stopped and was discharging passengers; she and Jones were standing near the rear of the street car on the neutral ground about three feet from the car; Jones said something to her and stepped off the neutral ground, facing straight downtown, just in front of the coming auto and was knocked down instantaneously before he heard her scream of warning; she did not known whether Jones looked before he stepped into the street or not, but she had seen the auto a block away at Franklin Street; auto was coming fast, very close to neutral ground curb; street light was burning but she heard no horn; saw no cars parked there on lower roadway; Jones was lying between front and back wheels of auto, she saw only two people in auto.

On cross-examination, she says she and Jones had been waiting alone for the street car three or four minutes, he left her after the car stopped, as she had intended to board it; didn’t know how many people got off, as she was standing sideways; didn’t notice headlights of oncoming auto.

Another witness for plaintiff, Earl De Joie, states that he was on the uptown side of the neutral ground where street car going out stops at the time of the accident, but he did not see Dr. Segue’s automobile on the neutral ground; there is a barber shop on the downtown river corner of Louisiana Avenue and S. Liberty Street and a cottage on the lake side and Jones was struck in front of cottage and the street car had just pulled off; auto was travelling pretty fast in a foot of neutral ground; two or three people got out of the street car. He did not render any help or give his name to the policeman who came after the ambulance arrived; later accidentally met the lady and gave his name.; only two people were in the auto.

Ida Mouton, colored, another witness, testifies she was in middle of block between Franklin and Liberty Streets, but did not see the accident; they were taking Jones up when she arrived, and a street car was stopped there; a great many boys were around there, auto was about five feet from neutral ground and about nine feet from lower sidewalk; heard no horn; knew Dr. Segue before the accident, as he had pulled teeth for her, but she did not see him or his car there, thought she saw them put Jones into defendant’s car.

Mrs. Eva Francis Jones, plaintiff, widow of decedent, testifies as to her funeral expenses, salary of her husband, etc.

Defendant, Thomas J. McMahon, Lawrence McCarthy and Wm. J. Cardoff, all testify substantially as follows:

They were driving in án open Cadillac car about twelve or fifteen miles per hour; plaintiff’s husband ran from the barber shop on the river corner, diagonally across the road, from behind a parked automobile so closely in front of the oncoming car that it was impossible to avoid striking him; his back was partly turned toward the car and he was struck by the right front fender and knocked down; the car was stopped almost immediately and Jones, who was lying partly under the right running board, was placed on the back seat and carried immediately to the Charity Hospital where he died that night; the auto, which was running within three to five feet of neutral ground purb, did not slow down at the crossing as it had already ¡passed the street car further back in the block and no one was crossing the well-lighted street, car brakes were in good working order, did not see Dr. Segue there.

The motorman of the passing street car, Leninger, says the auto, passed his street car in the middle of the block; as he approached the corner of S. Liberty Street, saw a woman waiting for the car, a colored man ran from the downtown side of the banquette, doesn’t know whether he ran in front or on the side as the hood of the machine stopped his view.

It is a rule of the company, if the accident happens ten feet away from the car, conductor must make out a report, but no such report was made here, as car was forty-five or fifty feet away from the accident; couldn’t tell whether man ran straight or diagonally, though Jones ran from downtown lake corner, stopped his car for the woman to get on, but she didn’t do so and he went on, saw no automobile on uptown street car track waiting to cross.

The above analysis shows that the witnesses for plaintiff and defendant contradict each other on practically every detail of the accident. Although plaintiff’s able attorney argued strenuously in the lower court, that defendant’s negligence in driving'so close to the neutral ground in violation of traffic ordinance was the (proximate cause of the accident, the judge found, without considering defendant’s evidence, that the deceased was guilty of contributory negligence because plaintiff’s witnesses testified that he had stepped without looking from the neutral ground immediately in front of an oncoming automobile. Here the former argument is again made with the additional contentions that the evidence does not show that the deceased, stepped from neutral ground without looking in front of an oncoming automobile and that the evidence of defendant’s witnesses is so contradictory as to be negligible.

As plaintiff’s testimony inevitably convicts the deceased of either stepping without looking or deliberately attempting to commit suicide, we accept the conclusion of the trial judge on this point, as the more probable.

However, we find that the evidence of defendant is more consistent and more probable than that of plaintiff. The story of defendant and the other three occupants of his car is confirmed by the testimony of the motorman in all essentials. If the story of plaintiff’s witnesses were correct, we must believe that Bessie Walker, the sister-in-law, who had seen the Cadillac coming at a fast speed close to the neutral ground for at least two hundred feet, allowed Jones without warning to step in front of the car and that the conductor in violation of the rules of the company and all the incoming and outgoing passengers in violation of every sympathetic impulse deliberately left the scene without tending aid to the dying man. Even if these statements were not contradicted by anyone, we should hesitate to believe them as contrary to the dictation of common sense and every day experience, but when our natural incredulity is buttressed by the contradicted statements of five apparently truthful witnesses, assurance is made doubly sure.

We conclude that plaintiff has entirely failed to prove her allegations and that her petition should be dismissed.

For above reasons the judgment is affirmed.


author: LECHE, J. MOUTON, J.

text:
    No. -
    First Circuit
    LAMPLEY v. STANDARD BRICK & CLAY PRODUCTS COMPANY
    (February 15, 1928. Opinion and Decree.)
    (April 11, 1928. Rehearing Refused.)
    (May 7, 1928. Writs of Certiorari and Review Denied by Supreme Court.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Master and Servant Par. 160 j.
    Where the evidence in a case under the Workmen’s Compensation Act No. 20 of 1914 as amended does not prove with certainty or by a preponderance of evidence that mental condition of injured employee was caused by the injury, there can be no recovery of compensation under the act.
    Appeal from the Parish of St. Tammany. Hon. Prentice B. Carter, Judge.

      Action by Jesse Lampley against Standard Brick & Clay Products, Inc.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed.
    S. W. Provensal, of Slidell, and C. S. Frederick, of Covington, attorneys for plaintiff, appellee.
    Harvey E. Ellis and Robt. S. Ellis, Jr., of Covington, attorneys for defendant, appellant.
   LECHE, J.

Jesse Lampley was employed as a laborer by the Standard Brick & Clay Products Company, Inc., and while so employed was assaulted and struck by another employee of said company. Charging that the injury received by him at the hands of his fellow employee, has rendered him totally and permanently disabled to work, he prays for compensation at the rate of 65% of his weekly wage of ($15.00) fifteen dollars, for a period not to exceed (400) four hundred weeks and for medical, surgical and hospital fees, an additional sum not to exceed ($250.00) two hundred and fifty dollars.

Lampley recovered judgment as prayed for in the District Court, and defendant has appealed.

Lampley was assaulted by one Frank Wilson, who struck him with his fist, on the ear and in the face, causing Lampley to fall to his knees and to bleed profusely. After being thus assaulted Lampley proceeded to wash his face and continued to work for an hour or two and then left. Wilson had no authority over Lampley and whether Wilson was acting within the scope of his employment is irrelevant, for this is not a demand in damages under Art. 2315 of the Code, but a demand for compensation, and the injury even if inflicted by a fellow servant, arose out of and in tfce course of plaintiff’s employment, and is compensable under the statute if it has caused disability to do work.

In his petition plaintiff charges that he was knocked unconscious, but that allegation is not borne out by the evidence. For when plaintiff left his work, he went unaccompanied by any one to the office of Dr. Singleton, his family physician, for advice and treatment. Dr. Singleton says that he treated plaintiff for a lacerated wound of the ear and contusions about the head.

Plaintiff’s petition does not state the exact nature of the injury which has permanently and totally disabled him to do work of a reasonable character, it does, however, state the cause to be the assault which Wilson committed upon the plaintiff.

The evidence is abundant that plaintiff’s alleged injury is not of a physical nature. Dr. Singleton, who treated him, and Dr. Heintz and Dr. Griffith who together with Dr. Singleton had plaintiff to undergo in their presence, a most careful and rigid physical examination several weeks after the assault, could find no signs of any physical injury. Dr. Singleton says that at the time of this examination, the wounds and contusions for which he had treated plaintiff had completely healed.

Plaintiff, however, continued to insist that he was not well and that he was suffering and unable to work. Dr. Singleton, then, as a super-cautionary measure, sent plaintiff to the Charity Hospital in New Orleans in order to have an x-ray picture taken of his head, and for treatment. Plaintiff reported at the hospital to Dr. Miller, one of the house surgeons, he was examined and x-ray pictures were taken of his head. Dr. Miller tried to keep plaintiff at the hospital in order to find out the cause of his trouble, but plaintiff re-fused admission. The x-ray picture it seems disclosed no lesions, fractures or other abnormal condition of the head.

It appears from the testimony, that the particular ailment not mentioned in the petition, upon which plaintiff’s demand is based, is called by Dr. F. F. Young, who conducts the “Fenwick Sanitarium” at Covington, La., Traumatic Neurosis Psychosis, a mental disease alleged to have been brought on plaintiff by the hereinbefore mentioned assault committed upon him by Wilson, on January 13, 1926, while in the employment of defendant.

There are then two questions involved in the case, first, whether plaintiff’s mind is really diseased to the extent of unfitting him to do work of a reasonable character, and second, if such disease does really exist, whether such disease was brought into existence by the assault committed on plaintiff by Wilson, while plaintiff was in the employ of defendant.

Dr. F. F. Young, whose opinion is worthy of great respect, who has had many years of experience in the treatment of mental and nervous diseases, examined plaintiff and diagnosed his trouble as traumatic neurosis phychosis. Dr. Young is of the opinion that plaintiff is not mentally responsible, not physically able to do any work of a reasonable character. He is also of the opinion that this condition of plaintiff’s mind was brought on by the blows inflicted upon him by Wilson in the assault of January 13, 1926.

Plaintiff also relies upon a letter of Dr. Daspit written to Dr. Griffith, in which Dr. Daspit expresses an off-hand view as to the possible condition of plaintiff, but that letter is so clearly inadmissible as evidence in the case that it should not be noticed. Dr. Daspit was not under oath and defendant had no chance to cross-examine him.

Dr. J. C. Menendez, another reputable expert on nervous and mental diseases, who also examined plaintiff, is of the opinion that the injury received by plaintiff at the hands of Wilson on January 13, 1926, had nothing to do with any mental ailment of which it is claimed that plaintiff was suffering at the time this case was tried.

Dr. C. V. Unsworth who has acquired a great reputation as a specialist and an expert on nervous, and mental diseases, is most positive in expressing the opinion that plaintiff is malingering and that the alleged assault of January 13, 1926, could not have produced the mental condition of which it is complained that plaintiff is suffering.

All three of these experts were present in the courtroom during the trial of the case. They saw plaintiff, had him under observation and heard him testify. Plaintiff’s answers to the questions propounded to him, were sometimes not responsive, sometimes evasive and often consisted of “I don’t know.” Whether such answers arose from a diseased mental condition or were given designedly, it is difficult for the layman to say. But the experts heard them, they saw plaintiff’s actions, his movements and his general behavior in court and yet their testimony, given with the utmost sincerity, was substantially as above recited.

Dr. Griffith describes plaintiff as a man of very low order, of mentality and both he and Dr. Singleton, though not pretending to be experts on nervous and mental diseases, did not believe that the injury received by plaintiff at the hands of Wilson, had anything to do with the ailment of which it is complained that plaintiff is suffering.

Plaintiff’s condition, if not simulated, is deserving of great sympathy, but careful consideration of all the testimony, impresses the judicial mind as constituting a case which is not proved with certainty or even by a preponderance of evidence. For that reason the judgment appealed from should be reserved and plaintiff’s demand should be rejected at his costs, and it is so ordered.

ON APPLICATION FOR REHEARING.

MOUTON, J.

Urged by a very earnest application for a rehearing in the above matter, we have again considered all the evidence of the physicians and experts who testified in the case. The question involved is one of fact and the solution of it, is more properly within the domain of the medical profession. We believed when we first decided the case, that we had reached a conclusion which is supported by a preponderance of the evidence. A reconsideration of that testimony has not changed our belief in that respect.

The application for rehearing is refused.


text:
    No. 10,892
    Orleans
    THE ITEM CO., LTD., v. HECKER
    (April 23, 1928. Opinion and Decree.)
    (May 7, 1928. Rehearing Refused.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Newspapers (no paragraph); Obligations — Par. 138, 166.
    Where a number of druggists in conjunction with a daily newspaper persuade defendant, the owner of a small country drug store, to join a co-operative movement, styled a “Truth Campaign” contemplating periodical advertising in the newspaper which agrees to distribute promotional data to defendant and others joining the movement, all drug stores, to pay the same rate for advertising, and the evidence establishes that defendant was not given the same considerations as the other drug stores the.re can be no recovery as against defendant by the newspaper suing for its advertising bill.
    Appeal from Twenty-fourth Judicial District Court for the Parish of Jefferson. Hon. L. Robert Rivarde, Judge.
    Action by The Item Co., Ltd., against Jacob Hecker.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Deutsch & Kerrigan, of New Orleans, attorneys for plaintiff, appellant.
    . Ernest M. Conzelman, of New Orleans, attorney for defendant, appellee.
   WESTERFIELD, J.

This is a suit by the publishers of a newspaper for advertising in connection with what is styled “The Truth Campaign of the New Orleans Retail Druggists.”

Defendant entered into a written agreement with plaintiff whereby he agreed to pay $4.00 per week for 52 weeks for the listing of his drug store in the “Truth Campaign.” Plaintiff declared its approval of the campaign, agreed to publish certain advertisements at intervals mentioned and to bear all expense relating to “release of copyrights, art-work, ad-writing, circularizing and other promotional data in connection with this campaign, and that copies of all advertisements published will be mailed to each store listed without additional expense.”

The campaign had hardly gotten under way before defendant expressed his dissatisfaction With it upon the ground that he was the subject of discrimination. He was not getting his copies of advertisements promptly and not in the quantity given others. He testified that the Truth Campaign was an advertising campaign and he was induced to participate upon the understanding that he, as the proprietor of a small country drug store would receive the. same consideration as the large city drug stores; that die failed to receive such consideration all during the alleged campaign, and notably during “Candy Week” which was introduced by plaintiff in the following words:

“Prepare to do the biggest candy business in the history of your store during the week beginning Sunday, November 25th, ‘Candy Week’ in the ‘Truth Campaign.’
“In order to make this week produce maximum results and on account of the friendship existipg between the Jacobs Candy Company and the druggists in the ‘Truth Campaign’ this concern is offering your customers and the thousands of residents in your vicinity a special free offer for ‘Candy Week.’
“Be prepared to make attractive window displays and counter displays. The Jacobs Salesmen will call on you next week to acquaint you with this extraordinary offer. They are making this special offer to increase your business and to increase your profits.”

He testified that he prepared to do the great business referred to in the letter and to receive the free samples for distribution and to make attractive display but no samples were delivered, no salesmen called and the beneficient results, which the letter so hopefully proclaimed, so far as he was concerned did not materialize.

Defendant’s evidence is not contradicted and serves to convince us that he did not receive the advantages given to others, which appears to have been the moving consideration for his agreeing to this relatively large advertising expense in connection with his relatively small drug store. A drug store so small as to be without “a local habitation or a name” being referred to in the contract and in the correspondence as “next to Marrero Bank, Marrero, La.”

It is said that plaintiff did not agree to furnish samples, or send salesmen to defendant for instruction in the art of candy display for “Candy Week” and that there is nothing in the contract to that effect. Conceding this to be the case, plaintiff did and it is so stated in the contract, agree to furnish all “promotional data” in connection with the “Truth Campaign” and in the absence of any information as to what the “Truth Campaign” was beyond the statement in the contract that it was a “co-operative movement,” we conclude that defendant did not receive the co-operation he was entitled to expect. The trial judge was of this opinion and we agree with him.

The judgment appealed from is affirmed.


text:
    No. 11,211

      Orleans

    SILVERSTEIN v. BOARD OF COMMISSIONERS OF THE PORT OF NEW ORLEANS
    (May 21, 1928. Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Automobiles—Par. 4d.
    The driver of an automobile coming to a sudden stop must give warning, as required by the traffic ordinance, of his intention to do so. Failure to observe the ordinance is negligence.
    Appeal from the First City Court, Section “A.” Hon. W. Alexander Bahns, Judge.
    Action by A. N. Silverstein against Board of Commissioners of the Port of New Orleans.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    St. Clair Adams and Leslie Moses, of New Orleans, attorneys for plaintiff, appellant.
    Wm. Porteous, of New Orleans, attorney for defendant, appellee.
   WESTERFIELD, J.

This suit results from a collision of automobiles. Plaintiff claims $112.00 as damages to his car.

Plaintiff was driving down St. Charles Avenue closely followed by defendant’s automobile. A dog ran in front of his car and, was pursued by a woman. In order to avoid injury to the woman, and/or the dog, plaintiff came to a sudden stop, whereupon he was struck in the rear by defendant’s automobile.

The case turns upon a question of fact, to-wit: Did the driver of plaintiff’s car give warning of his intention to stop, as required by the City Ordinance. The woman and dog were observed by plaintiff at a point sixty feet distant, according to plaintiff, who was seated in the rear seat of his automobile. His chauffeur did not testify. Ample opportunity existed for giving the required signal which consisted in extending the driver’s arm outwards and downwards. See Sec. 11, No. 7490 C. C. S.

The testimony convinces us, as it did the trial judge, that no signal was given. The judgment appealed from will be affirmed.


author: MOUTON, J.

text:
    No.-
    First Circuit
    MADISON PAINT CO. v. POLICE JURY OF EAST FELICIANA PARISH
    (April 11, 1928. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Sales—Par. 17, 18, 116.
    An order, acceptance, and shipment of paint sold according to salesman’s price list at customary prices and their market value constituted a contract of sale, which was completed by delivery of the goods to the common carrier.
    Appeal from the Parish of East Feliciana. Hon. Charles Kilbourne, Judge.
    Action by Madison Paint Company against Police Jury of East Feliciana Parish.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    E. S. Muse of St. Francisville, attorney for plaintiff, appellant.
    Jos. L. Golson, District Attorney of St. Francisville, for defendant, appellee.
   MOUTON, J.

In January, 1926, Walter Manley, salesman for plaintiff company, had a conference with W. E. Woodward, president of the Police Jury of defendant parish, in reference to the sale of paint which was to be used on the courthouse at Clinton, La.

The following quotations in writing of the prices for paint, were left by Manley, the salesman, with Woodward, viz:

Madeliska Green____________________$1.60 per gallon
Battleship Gray________________________$1.25 per gallon
Mill White flat________________________$1.35 per gallon

This is shown by the testimony of Manley, Woodward, and by letters written to plaintiff company, by the latter.

In that conference in reference to-these three qualities of paint, Woodward made no selection. In his testimony he says, he told Manley he would not give him. an order on that day, but that he expected to give his order the week after, and asked if he should give it in Manley’s name, or from the house. He was instructed to order direct from the house, he testifies. It is obvious that no sale had been effected at this conference, as Woodward had made no selection of the kind of paint he wanted, or as to what quantity. Evidently, this had been left for future determination. The defendant parish, under this arrangement, was a mere prospective purchaser.

On Jan. 12, 1926, Woodward wrote to plaintiff company the following letter:

“Dear Sirs:
“Your man Manley was in to see me some days ago, and I have concluded to try your paint on o.ur courthouse, so please send me as per agreement one bbl. (60 gal.) of white oil paint, and 60 gal. of white cement paint, and two steel brushes.
“I am going to use the cement paint on repairing our brick structure, so send me the best you have; make payable in .60 or 90 days with discount and oblige.
“For acct. East Feliciana Parish,
“(Signed) W. E. Woodward,
.“Prest. Police Jury.”

After securing the order, plaintiff company on January 15, 1926, wired Woodward asking that he wire at its expense if the white oil paint and cement paint were intended for interior or exterior use. Woodward on the 16th, the day following the reception of the telegram, wired back that it was all for outside work.

. Plaintiff company shipped the paint and cement Woodward had ordered as per his letter and telegram. Woodward refused to accept delivery of the shipment claiming that the prices charged for the articles shipped were nearly double in amount of the prices which had been agreed upon between him and Manley. After refusing the shipment, Woodward wrote plaintiff company, on Jan. 2'5, 1926, that its charges were excessive, and saying that the order he had given was based on the prices and quotations of Manley which were as follows:

Madeliska Green____________________..$1.60 per gallon
Battleship Gray________________________$1.25 per gallon
Mill White flat________________________$1.35 per gallon

This is the quotation in writing to which we have hereinabove referred, and as to which we took occasion to say there had been no sale, as Woodward was to order the paint direct from the house, the week after, if he decided so to do. Even if it is possible to concede that an agreement for thq sale had been entered into, in reference to the paint above mentioned, it is manifest that Woodward, in his order which was accepted by plaintiff’s telegram, made no allusion whatever to the prices as to Madeliska Green, Battleship Gray, or Mill White flat, which was to be ordered direct from the house, if Woodward so directed. The order made no mention of the quality of paint, -and the prices as appeared in the written quotation. The order says:

“Send me as 'per agreement one bbl. (60 gal.) of white oil paint and 60 gal. of white cement paint.”

The articles so ordered were entirely different from those listed in the quotation, and constituted a contract altogether distinct and independent of the considerations which had prompted Manley in leaving the written quotation as a guide to Woodward, should the latter decide to order the paint therein listed. It is true that the order says: “Send me as per agreement * * * white oil paint * • * * and white cement paint.” In commenting on the words “as per agreement” so used in the order, the judge of the lower court in his reasons for judgment says:

“Plaintiff was put on its guard by Wood- • ward’s reference to the agreement, and if it shipped the paint without information on that point, it did so at its own risks.”

It must be observed that after the words “as per agreement” the order reads: “One bbl. (60 gal.) of white oil paint and 60 gal. of white cement paint.” Now as a matter of fact there was no agreement between Woodward and Manley in reference to any white oil paint or white cement paint. The fact is, that in the written quotation which was left in the possession of Woodward for his guidance there is no mention or reference in the slightest degree to any white oil paint or white cement paint, and it is on this quotation list that Woodward says in his letter of Jan. 25, 1926, that he based his order. Hence, we are constrained to differ with our learned brother of the District Court as to his conclusion that plaintiff should have been put on its guard by Woodward’s reference to an agreement, as there had been no agreement on the subject matter to which Woodward refers in his order. The record therefore shows that the shipment of the white oil paint and the white cement paint was made by the plaintiff company to defendant under its order of Jan. 12, 1926, according to the salesman’s price list of plaintiff company and which were sold at customary prices and at their market value. The order, acceptance, and shipment constituted a contract of sale, which was completed by delivery of the goods to the common carrier. Court of Appeal Reports, Vol. 5, page 20; Page and Hill Co. vs. Shreveport Eldorado Pipe Line Co. (Second Circuit); Vol. 1, p. 692, Morotock Mfg. Co. vs. Britt & Norris (Second Circuit) . Here they were refused at point of delivery. The defendant parish is liable for the amount claimed, and the judgment rejecting the demand must be reversed.

It is therefore ordered, adjudged and decreed that the judgment appealed from be avoided and reversed; it is further ordered and decreed that plaintiff have judgment against defendant in the sum of three hundred and seventy-three and 35-100 dollars ($373.35) with five per cent per annum interest thereon from the 20th day of March, 19.26, until paid, with all costs of suit.


author: ELLIOTT, J.

text:
    No.-
    First Circuit
    MAYER v. SECURITY UNION INS. CO.
    (May 8, 1928. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Insurance—Par. 24, 26, 121, 144.
    Act 59 of 1921 places the burden of the initiative in the matter of adjustment of losses of automobiles on the insurer and intends that it shall act promptly. Therefore, insurer is not justified in doing nothing because the insured did not sign an appraisal agreement containing the. name of his appraiser and send same to the insurer as requested.
    2. Louisiana Digest — Insurance—Par. 24, 26, 121, 160.
    Where insurer does nothing within' sixty days in regard to the settlement of a fire loss of an automobile because of failure of insured to sign an appraisal agreement containing name of appraiser, the insured can recover the amount of the loss plus twenty-five per cent penalty and attorney’s fees, under Act 59 of 1921.
    Appeal from the Parish of Beauregard. Hon. Thos. F. Porter, Judge.
    Action by Raymond A. Mayer against Security Union Insurance Co.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    R. J. O’Neal, of DeRidder,. attorney for plaintiff, appellee.
    G. C. Vidrine, of Beaumont, attorney for defendant, appellant.
   ELLIOTT, J.

Raymond A. Mayer insured his automobile with Security Union Insurance. Company for. $740.00 against loss by fire. The automobile was destroyed by fire, and plaintiff sued to recover the amount of the policy and 25% thereon as a penalty and $150.00 in addition as attorney’s fees.

Defendant admits its liability for the cash value of the automobile, but contends that its value has not been ascertained in conformity with policy provisions.

There was judgment in favor of the plaintiff as prayed for, and defendant has appealed.

The plaintiff moved in the lower court to strike out and disallow that part of defendant’s answer which has reference to an alleged failure on plaintiff’s part to comply with the appraisal arrangement contained in the policy on the ground that the demand in defendant’s answer is in effect a ©lea in prematurity, and as such was not an available defense that could be urged in the answer. That the appraisal arrangement set forth in the policy was in effect an arrangement to refer differences that might arise in a future litigation to abitrators; that an arrangement of the kind was against public policy and not enforceable, etc. That defendant was es-topped from demanding an appraisement after an elapse of more than sixty days from the rejection of plaintiff’s loss, etc.

The answer of the defendant puts at issue the right of plaintiff to recover judgment in the present suit.

The defendant rejected the proof made by the plaintiff as to the amount of his loss and demanded an appraisement in conformity with the appraisal arrangement contained in the policy, and sent to the plaintiff an appraisal agreement which the plaintiff promptly signed and returned to the defendant. The defendant filled in the blank space left in the agreement where the names of the appraisers should have been written with the names of R. A. Mayer and Security Union Insurance Company. As filled out by the defendant and sent to the plaintiff for his signature there was no place left in the agreement for the names of the ap'praisers and there was no accompanying request that plaintiff name his appraiser at that time and send the name to the defendant. The filling in the blank space intended for the names of the appraisers may be regarded as an inadvertence on the part of defendant’s clerks, but it was not plaintiff’s fault. The plaintiff, however, on signing the appraisal agreement, wrote a memorandum on a piece of paper which he signed and attached to the agreement saying in effect that he would have an appraiser ready when defendant sent its appraiser.

Defendant’s agent testified that when the appraisal agreement signed by plaintiff was received, he noticed that plaintiff had not designated in it the name of his appraiser, so he directed his clerk to send plaintiff another appraisal agreement with the request that he sign it and designate in the agreement the name of his appraiser.

Plaintiff testifies that he never received this second agreement and letter which defendant contends accompanied it. The district judge did not believe that such a letter was ever written. After considering the evidence on the subject, our impression is the same. The defendant does not claim to have done anything after receiving the agreement signed by plaintiff and the memorandum attached, except to send plaintiff, after a few days, another appraisal agreement with a letter requesting him to sign the agreement and to name in it his appraiser and return same to defendant.

The first appraisal agreement was signed by plaintiff, but not by the defendant. The defendant does not contend that it signed the second appraisal agreement nor wrote in it the name of the appraiser, but claims that the name of its appraiser was communicated to plaintiff by means of the letter, which under the evidence, cannot be regarded as having been sent.

At the time defendant claims to have sent a, second appraisal agreement to be signed by ¡plaintiff, with the request that he write in it the name of his appraiser, the defendant had in its hands an appraisal agreement signed by plaintiff with memorandum attached to it to the effect that he would select and have ready an appraiser when defendant’s appraiser arrived. This was enough on plaintiff’s part under the policy arrangement on that subject. The defendant should have promptly signed the agreement and forwarded it back to DeRidder with its appraiser, authorized to act with one to be named by plaintiff. This appraisal arrangement contained in the policy sued on must be followed up by the insurer and carried out in conformity with the letter and spirit of Act 59 of 1921, which provides that if the proofs of loss are not satisfactory to the company, it shall be the duty of the company to proceed under the terms of the policy to ascertain and adjust the amount of the loss and its liability under the terms of the policy and make payment of the amount due within sixty days from the date on which it received the proofs of loss offered by the insured, etc. The law places the burden of the initiative in the matter of adjustment on the insurer and intends that it shall act promptly.

The defendant contends that as plaintiff never did sign an appraisal agreement con-taming the name of his appraiser and send same to the defendant as requested, that it was justified in doing nothing, etc. The delay to adjust and settle the amount due by the defendant in this case, is because of its willful act. No just ground for the delay appears.

As for the legality of the a/ppraisal arrangement in the policy from a standpoint of public policy, we express no opinion for the reason that the plaintiff on his part complied with it.

The district judge reviewed the case in a written opinion in which we fully agree.