text:
    No. 11,258
    Orleans
    MAISON BLANCHE CO. v. SCHUTTEN
    (March 26, 1928. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Sales—Par. 59, 62, 134, 136.
    The stipulation in o, contract of sale on credit that the vendor shall be entitled to take back the property sold on failure of the purchaser to pay the price, and to retain the partial payments as liquidated damages, does not deprive the vendor, at his option, to demand the performance of the contract and to sue for the balance of the price remaining unpaid.
    Appeal from the First City Court. Hon. W. Alexander Bahns, Judge.
    Action by Maison Blanche Company against Reginald Schutten.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed and case remanded.

      L. R. Wertheimer, of New Orleans, attorney for plaintiff, appellant.
    Pomes & McCabe, of New Orleans, attorneys for defendant, appellee.
   CLAIBORNE, J.

This is a suit for the balance of the price of a superphonic Yictrola and ten records, .$154.20, subject to a credit of $10 paid on account.

Said contract provided that the balance was payable at the rate of $10 iper month between the 9th and 14th of each month thereafter, and that any default ip making payments according to the terms aforesaid would cause the entire balance of the price to at once become due and exigible, “and will further entitle the Maison Blanche Company, without resort to legal process and without incurring any liability for trespass, to at once take the articles sold from the residence of the purchaser or wherever they may be found. In any such event payments theretofore made shall be retained by the said Maison Blanche Company as liquidated damages for breach of obligation.”

The defendant pleaded that the petition disclosed no cause of action under the contract. He admitted the purchase of the Yictrola and the payment of ten dollars; he further averred, that the machine was defective, and that he had so informed the plaintiff who promised him a new machine but failed to do so. He claims in re-convention return of the $10 paid on account, $26 attorney’s fees, and $20 for loss of time.

There was judgment maintaining the exceptions and dismissing the suit, and (plaintiff has appealed. ■

The defendant’s exception of no cause of action is based exclusively upon the proposition that the plaintiff, on defendant’s failure to make the payments stipulated in the contract is only “entitled to at once take back the Victrola, and to retain by way of forfeit the amount paid on account as liquidated damages.”

We believe this to be a strained construction of the contract. Upon the failure of a purchaser to pay the credit portion of a sale, the law gives the vendor two remedies: One for the dissolution of the contract of sale, C. C. 2561, and the other for its enforcement by demanding the price of sale, C. C. 2551-2549. The stipulation in. an act of sale that the failure of the (purchaser to pay the price shall entitle the vendor to take back the thing sold, is nothing more than a contractual affirmance of the law and does not either expressly of impliedly carry with it a renunciation of the other right of demanding specific performance of the contract.

Waivers of rights are not presumed; they must bé expressly made. A vendor of property on credit who waives his mortgage on the property sold does not thereby waive his vendor’s privilege. 2 H. D. 1244 C-1; Gumbel & Co. vs. Beer, 36 La. Ann. 489.

It is therefore ordered that the judgment appealed from be reversed and set aside and that this case be remanded to be tried upon the merits in accordance | with the answer herein.


source: Caselaw Access Project

author: JONES, J.

license: Public Domain

text:
    No. 11,262
    Orleans
    ALEXANDER HAMILTON INSTITUTE v. MORRISON
    (March 26, 1928. Opinion and Decree.)

      (Syllabus by the Court)
    1. Louisiana Digest — Prescription—Par. 87, 89, 99.
    The three-year prescription in paragraph 3 of Art. 3538 of the Civil Code as to unpaid salaries of teachers by the year or quarter does not apply to a suit for balance due on a written contract for a business course (including 24 books) for printed lectures, trade reviews and business reports, especially where the amount due was acknowledged in writing by the debtor three months after contract was signed.
    Appeal from the First City Court, Division “B.” Hon. Val J. Stentz, Judge.
    Action by Alexander Hamilton Institute against George H. Morrison.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    L. R. Wertheimer, of New Orleans, attorney for plaintiff, appellant.
    Prentice Edrington, of New Orleans, attorney for defendant, appellee.
   JONES, J.

This is a suit for one hundred twenty-eight ($128.00) dollars based upon a written contract wherein the defendant agreed to enroll in a certain course of study for a certain amount, payable in installments, and the plaintiff agreed to enroll him and furnish him certain books and papers and in addition the course of study described in the contract. An exception of prescription of three' years under Art. 3538, C. C. was filed and also a denial of the receipt of the books by defendant. The record discloses that plaintiff proved all the allegations of the petition' and in addition shows delivery by the express company of the twenty-four bound volumes. After taking the matter under advisement and hearing argument of counsel the trial court in a written opinion maintained the plea of prescription and dismissed plaintiff’s suit.

Defendant urges that the claim is one of a teacher by the year or quarter and so falls within Article 3538 C. C., and is prescribed by three years notwithstanding the written contract.

The material part of the contract, which was attached to the petition reads as follows:

“Alexander Hamilton Institute:
“Please enroll me for your Modern Business Course and Service, extending over a period of two years from the date of enrollment and including: Modern Business Text — twenty bound volumes containing a digest of present day business principles and practice, forwarded immediately, express prepaid. Modern Business Talks, directing reading of text, one every two weeks. Modern Business Lectures, the experience of prominent business men, one every month. Modern Business Problems, actual business problems, solutions to which will be reviewed one every month. Modem Business Service, answers to all inquiries in connection with the course, for Modern Business Reports to be selected by subscriber; Monthly letter on Business Conditions and the Monthly Financial and Trade Review.
“In consideration of my enrollment for the above course and service, I agree to pay to your order the sum of $136.00, $8.00 cash and $8.00 month.
“(Signed)
“Geo. H. Morrison, Sept. 24, 1923.
“Application with payment of $8.00 received by P. A. Gregory, agent.
“Accepted — 9-27-23.
“Alexander Hamilton Institute,
“Per L. H. S.
“NOTE — All payments (except first, which should be made to representative at time of giving application) are to be sent by mail to Alexander Hamilton Institute. Should any part of the balance remain due and unpaid for sixty days, the entire balance becomes immediately due and payable. This contract is not subject to revocation; no reduction or allowance will he made on account of refusal or inability to enter upon or continue the course; no modifications or conditions, except as herein expressed in writing, will be recognized. The retention of this application denotes its acceptance.
“(Signed) Geo. H. Morrision.”

On January 18, 1924, in reply to a letter of January 9, 1924, demanding payment of amount then due, twenty-four ($24.00) dollars, defendant answered:

“Mr. T. Y. Morton.
“Gentlemen:
“These books are in the office just like they came, never unpacked.
“I told your agent before he went to New York to explain to you that my wife objects to me having them, so I have never taken them home. I have paid $8.00 on them and I told your agent I would pay $16.00 more ancl return your books to you. Please advise.
“Yours truly,
“(Signed) Geo. H. Morrison.”

This proposition was declined on January 24, 1924, and many other demand letters were written defendant by plaintiff, but no reply was made by him.

The applicable portion of Art. 3538 C. C. reads as follows:

“The following actions are prescribed by three years. That for the salaries of overseers, clerks, secretaries, and of teachers of the sciences, whp give lessons by the year or quarter.
“This prescription only ceases from the time there has been an account acknowledged in writing, a note or bond given, or action commenced.”

In Union Title Guarantee Co. vs. Perkins, 5 La. App. 389, this court said:

“The contract between the parties to this suit was that in consideration of $252.50 the plaintiff would guarantee defendant’s title in favor of the Industrial Homestead Association as mortgagee. It was a contract of guarantee. The consideration of defendant’s obligation to plaintiff was not for labor, nor for the price of goods, nor for the services, nor for any of the consideration mentioned in C. C. 3538.
“Prescription cannot be extended by analogy from one subject to another. Police Jury vs. McDonough, 10 La. Ann. 395; Cooper vs. Harrison, 12 La. Ann. 632; Garland vs. Estate of Scott, 15 La. Ann. 143; Flash, Hartwell & Co. vs. N. O. J. & C. N. R. R. Co., 23 La. Ann. 353; Knoop, Hanneman & Co. vs. Blaffer, 39 La. Ann. 23, 6 South. 9; John Chaffe & Sons vs. Walker, 39 La. Ann. 39, 1 South. 290.”

The prescription pleaded must come clearly under one of the provisions of the law.

In the case of N. O. I. & G. N. Rrd. vs. Estlin, 12 La. Ann. 184, defendant was sued for a balance of subscription to the stock of the company. The defendant pleaded prescription of three years on “open accounts.” The court rejected the plea and said:

“But that defendant was not sued upon an ‘open account’; the demand is based upon an express and written contract. The defendant’s subscription bound him to pay a liquidated sum.” Idem. 388-527; 4 Wall 660.

In the instant case this is a suit on a written contract, not for the salary of a teacher as expressly stated in terms in Art. 3538 C. C., but for the price of certain books, papers, etc., and a definite, prepared, printed course of instruction for a definite sum. This claim is entirely different from a monthly, quarterly or yearly salary as contemplated by the Code.

The cited article never was intended to cover such a case as this. No unpaid salary of a teacher of science by the year or quarter is involved here. The contract and the evidence in the record show that balance due is claimed for twenty-four books delivered, for printed lectures, for solution of business problems as submitted, for business letters, for business reports and trade reviews. At the time this Article in the Code was written such correspondence business courses were unknown and the article of the Code was intended to refer to the unpaid salaries of teachers who had been employed to give lessons in the school or privately by the quarter.

Defendant cites only one case referring to teachers. That of Cushman vs. Harris, 14 La. Ann. 59, but this decision is clearly not applicable.

That was a suit for the recovery of salary by teacher in a school kept by the defendant under a written contract for a salary of ninety ($90.00) dollars’ per month. The prescription of Art. 3534 covering teachers by the month was applied, although the contract was in writing.

Furthermore, defendant’s letter written on January 18, 1924, almost three months after he had signed the contract, was an acknowledgment of the obligation, as he asks therein to compromise it by returning the books and paying sixteen ($16.00) dollars additional.

For above reasons the judgment is reversed and it is now ordered that there be judgment in favor of plaintiff, Alexander Hamilton Institute, and against defendant, Geo. H. Morrison, in the sum of one hundred twenty-eight ($128.00) dollars and all costs.


text:
    No. 10,483
    Orleans
    KIMBAL v. THE NATIONAL LIFE & ACCIDENT INSURANCE COMPANY, ET AL.
    (March 26, 1928. Opinion and Decree.)

      (Syllabus the Court)

    1. Louisiana Digest — Insurance—Par. 152.
    Where the insured in an industrial policy has done all that is required of her to effect a change of beneficiary and where provisions of policy as to change of beneficiary are not proved and all that remains to be done is apparently only a ministerial act by the office of the company the change will take effect, though the formal details were not completed before the death of the insured, which happened almost seven weeks after policies were delivered to agent for endorsement.
    Appeal from Civil District Court, Div. “B.” Hon. Mark M. Boatner, Judge.
    Action by Amelia Kimbal against the National Life & Accident Insurance Company.

      There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    Dart & Dart; Leo L. Dubourg, of New Orleans, attorneys for plaintiff, appellant.
    Frank B. Smith, of New Orleans, attorney for Máry Reuben, defendant, appellee.
    Sol S. Goldman, of New Orleans, attorney for National Life and Accident Insurance Company, defendant, appellee.
   JONES, J.

This is a suit on two policies of insurance known as “industrial policies,” aggregating Three hundred thirty-one ($331.00) Dollars, the premium on one being Fifteen Cents per week and the other Thirty Cents per week. Plaintiff alleges that Rena Bell, deceased, took out the two policies and originally designated Amelia Kimbal, plaintiff herein, as beneficiary. Later she moved to the house of the other claimant herein, Mary Reuben, and at that time changed the beneficiary to Mary Reuben. Still later Rena Bell moved back to the house of Amelia Kimbal, and, desiring to change the policies in favor of Amelia Kimbal, about the latter part of January, 1923, she signed the necessary requests for that purpose and delivered the applications and the two policies to the agent of the insurance company, who sent them on to the Shreveport office; Rena Bell died about March 19, 1923, before policies were returned by the agent with beneficiary changes, although the agent, when he received the policies agreed on behalf of the company to have change made and policies returned; Mary Reuben was also claiming the insurance money and this suit was brought against both the insurance company and Mary Reuben.

The insurance company in its answer, after saying:

“ * * * that the said policies with request for change of beneficiary duly executed by the assured were delivered by the assured to respondent’s Alexandria, La., agent who forwarded same to the respondents Shreveport, La., office and by the latter office to be sent to respondent’s home office at Nashville, Tenn.,, there to have the change of beneficiary endorsed on the policies, but' that the policies and requests for change of beneficiary were lost in the mails and never reached the home office * * * ,”

declared they were stake holders and deposited Three hundred thirty ($330.00) Dollars in registry of the Court.

Mary Reuben, after denying in her answer for want of information the various allegations as to original issuance of policy with name of plaintiff as beneficiary, averred that she was made the beneficiary in the policies, because plaintiff was indebted to her for board, lodging, nursing and doctor’s care, in the sum of Five hundred twenty ($520.00) Dollars.

There was judgment below dismissing suit as to insurance company and giving the money to Mary Reuhen. Amelia Kimbal has appealed.

Although the insurance company claims that the policies never reached the home office there is no evidence in the record as to this. The uncontradicted evidence in the record of three witnesses is as follows :

The two policies, with written request for change of beneficiary from Mary Reuben to plaintiff, made out on the regular forms of the company, were delivered about January 31, 1923, to the local agent of the company, D. P. Eckert by name, at the home of plaintiff in Colfax, La., to be sent by him at once to the home office in Nashville, Tenn., for endorsement and then to be returned to insured, who was at that time living with plaintiff and suffering with the illness which later caused her death at the same place on March 18th. Attached to the petition is a blank form of the company to be used for change of beneficiary and both witnesses swore that a similar form was used by the insured.

Over the objection of counsel the lower judge correctly admitted both plaintiff and her husband to testify, as against the insurance company, but not Mary Reuben, that the local agent, Eckert had stated to the ins'ured in their presence some two weeks after Ee took the policies and the application, that the policies had reached the home office, had been changed there and lost on the way back to him. These witnesses also testify that the sister, who had been taken ill in New Orleans, wrote for assistance and her brother-in-law came at once and took her from Mary Reuben.

Intervenor, Mary Reuben, swears that the insured lived with her in New Orleans from May 25 to November 18, 1922, though she was very ill at the time, she was getting no assistance from her husband, and was consequently entirely dependent upon her for board, lodging, nursing, medicine and physician’s service, that she paid to Dr. Gaines Thirty ($30.00) Dollars for his service and offered in evidence a receipt for that amount, dated April 6, 1925, for services rendered the insured in 1922; that she charged for all her services Twenty ($20.00) Dollars per week for twenty-six weeks, making altogether Five hundred twenty ($520.00) Dollars, which had not been paid, though the insured had of her own accord while staying with her changed the name of the beneficiary from plaintiff’s to hers. In this testimony defendant was confirmed as to her services and as to condition of the insured by Lorella Byrd, who had helped to nurse the invalid at times.

Insured’s husband swore that she had only been at Mary Reuben’s two weeks when the husband of plaintiff, the insured’s brother-in-law, came to New Orleans from Colfax and carried her back to his home, also Mary Reuben had been paid by another insurance company enough in sick benefits due the insured to reimburse her for all expenses.

In the record are two certificates, each dated June 7, 1923, each signed by president and secretary of insurance company, stating that one policy had been issued on December 13, 1920, and one on April 3, 1922, and that each certificate had been issued upon an application alleging that the policy had been lost or destroyed.

Here the evidence shows clearly that the insured had done all she could possibly do to have the beneficiary changed almost seven weeks before her death and there is no proof in the record as to what provisions the policies contained with reference to change of beneficiary. As she had made out applications for this change with the approval of the agent of the company, and had delivered them to the agent for transmission to the home office, certainly the mere stamping of the change on the policy was a mere ministerial act, for the non-performance of which she should not suffer.

The rule is well stated in Cooley’s Briefs on the Law of Insurance, as follows:

“If, however, the insured has done substantially all that is required of him to effect a change 'of beneficiary, and all that remain to be done are the ministerial acts of the officers of the association, the change will take effect, though the. formal details were not completed before the death of the insured.”

See also Joynes on Insurance, Sec. 751, Yol. 2.

The following authorities sustain this view:

Supreme Court, I. O. F. vs. Frise, 183 Mich. 186: “Where the holder of a life insurance certificate has the right to change the beneficiary named therein at his pleasure, and makes endorsement of the change upon his certificate in the manner and form required by a by-law of the company, which received it the day before his death, the change is effectually made notwithstanding his death occurs before the change is endorsed by the company upon the certificate.”

Garrett vs. Garrett, 31 Cal. App. 173. The United States Court for the Eastern District of Michigan followed the same rule in the case of Supreme Conclave vs. Cappella (C. C.) Fed. 1, holding:

“The general rule that the insured is bound to make such change of beneficiary in the manner pointed out by the policy and by-laws of the association is subject to three exceptions * * * (3) If the insured has pursued the course pointed but by the laws of the association, and has done all in his power to change the beneficiary, but before the new certificate is actually issued, he dies, a court of equity will decree that to be done which ought to be done, and act as though the certificate had been issued.” Citing National Assn. vs. Kirgin, 28 Mo. App.; Mayer vs. Assn. 49 Hun. (N. Y.) 336 (2 N. Y. Supp. 79); Supreme Lodge vs. Nairn, 60 Mich. 44 (26 N. W. 826); Kepler vs. Supreme Lodge, 45 Hun. (N. Y.) 274.

In a comparatively recent case this Court held as follows:

“The first beneficiary in a life insurance policy, though having an insurable interest, cannot prevent the second beneficiary having a like interest from collecting proceeds of the policy, on the ground that the change was not endorsed on the policy, as required by the contract, if she refused to surrender the policy to the insured or to the company when notified by both of the second change.”

Ahrens vs. First National Life Insurance Co., 6 La. App. 661.

The insurance company has answered the appeal and is asking that the judgment rendered herein be modified so as to allow its costs out of the insurance money.

To sustain this contention it quotes Section 6 of Act 123 of 1922, which provides that the applicant depositing the money shall not be required to pay any costs, except costs for service of citation on those who do not make any claim on fund.

As the policies were delivered to the agent of the insurance company almost seven weeks before the death of the insured, and as apparently no attempt was made by the agent to have duplicates issued or to remedy the evil apparently caused by it, we think the insurance company should pay its own costs.

Intervenor quotes two cases to sustain his contention that the proceeds of the policies should’ go to Mary Reuben, because the change of beneficiary had not been endorsed on the policies.

In the first case, N. Y. Life Ins. Co. vs. Murtagh, 137 La. 760, the decision is not applicable, because the policy in that case provided that no change of beneficiary should take effect until notice thereof was endorsed on the policy by the company at the home office.

Here provisions of policy on that point are not proved.

In the second case, Freund vs. Freund, 208 Ill. 189, the Court uses the following language:

“In the case at bar, the company, under the statute, was required to give its consent to the change, and under the contract the company could only indicate its consent to such change by an endorsement in writing upon the policy at the home office. Certainly, the statute meant something when it stated that the right of the assured to change the beneficiary was dependent upon the consent of the company. The giving of consent is not a mere ministerial act, because it involves the exercise of judgment. We do not construe the New York statute as requiring the company to give its consent independent of the exercise of any judgment on its part whether it was right or proper to give such consent. Therefore, the act here required to be done by the company not being a mere ministerial act, the principle invoked does not apply.”

Here there was no statute involved requiring the company to give its consent.

Furthermore, these were industrial policies and the purpose of industrial insurance has been stated as follows:

“Not to create a fund to provide further support and maintenance for the insured’s family, but to provide a fund to take care of the insured during his last illness and to pay for his funeral.”

Ball vs. Metropolitan Life Ins. Co., No. 7780, Court of Appeal.

That this is what the deceased intended is clearly shown by the manner in which she changed the beneficiary as she changed her place of residence.

The purpose of industrial insurance being considered, it follows logically that changes of beneficiary should be facilitated and that the requirements for effecting such change are not and should not be the same as in policies of ordinary life insurance.

For above reasons the judgment as to the insurance company is now affirmed and the judgment as to Mary Reuben is now reverseñ.

It is ordered, adjudged and decreed, that there be judgment herein in favor of the defendant, National Life and Accident Insurance Company and against the defendant, Mary Reuben.

It is furthe'r ordered, adjudged and decreed, that there be judgment herein in favor of Amelia Kimbal and against the defendant, Mary Reuben, decreeing the said Amelia Kimbal to be entitled to the sum of Three hundred thirty Dollars proceeds of the life insurance policies (No. A. 4883731 and No. E. 5370432 on the life of Rena Bell, in the National Life and Accident Insurance Company) herein deposited in the Registry of this Court, by the said National Life and Accident Insurance Company, on the 12th day of March, 1925.


author: WESTERFIELD, J.

text:
    No. 11,239
    Orleans
    LEOPOLD v. NINTH SENATORIAL DISTRICT DEMOCRATIC EXECUTIVE COMMITTEE
    (December 12, 1927. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Courts—Par. 62.
    Whatever may be the opinion of this Court upon any question, as an original proposition, it must yield to the views as expressed in the jurisprudence of the State.

      2. Louisiana Digest — Domicile—Par. 2, 13; Elections by the People — Par. 73.
    Under the settled jurisprudence of Louisiana “an actual bona fide resident” within the meaning of Art. 8, Sec. 1 of the Constitution of 1921, relative to qualifications for office, need not continuously reside in the place of his alleged residence but it will be sufficient if he maintains “such relation with the place or premises as will entitle him at his will, and without making new arrangements therefor on each return to occupy such place whenever his necessities or pleasure required without asking permission of of someone else.”
    3. Louisiana Digest — Domicile—Par. 2, 13.
    His family may reside elsewhere and he may conduct his business operations from an office situated in another parish where his domestic establishment is located, and all his children reside.
    Appeal from the Twenty-fifth Judicial District Court, Parish of Plaquemine. Hon. E. K. Skinner, Judge, presiding in place and stead of Hon. Claude Meraux, Judge, recused.
    Action by Simon Leopold against Ninth Senatorial District Democratic Executive Committee..
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    A. Gif fin Levy, of New Orleans, attorney for plaintiff, appellee.
    J. T. Prowell, Leander H. Perez, Eugene H. Walet, Jr., of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

Simon Leopold gave notice of his intention to become a candidate for the Democratic nomination for the office of Senator from the 9th Senatorial District, comprising the Parishes of Plaquemine and St. Bernard, in the Democratic primary to be held January 17, 1928.

An objection was filed to his candidacy by a rival candidate, Clarence Ragus, upon the ground that Leopold was not a resident of Plaquemine Parish, but that on the contrary he resided in the Parish of Orleans.

The Ninth Senatorial District Democratic Committee, to which Leopold’s notice of intention and Ragus’ protest had been properly addressed, after hearing the parties, maintained the protest and held Leopold disqualified because of non-residence as alleged. An appeal was taken to the Twenty-fifth Judicial District Court of the Parish of Plaquemine, in accordance with the Primary Law, Act 97 of 1922. The judge of that court, Hon. Claude Meraux recused himself and designated Hon. E. K. Skinner of the Civil District Court of the Parish of Orleans to preside in his stead. Judge Skinner reversed the Democratic Committee and ordered Mr. Leopold’s name certified to the Secretary of State as a duly qualified candidate. An appeal was thereupon prosecuted to this court. The Court in its reasons for judgment expressed the opinion that Act 97 of 1922 was unconstitutional, because in conflict with Article 3, Section 10 of the Constitution of 1921 providing that “Each house shall be the sole judge of the qualifications, election and return of its members.” We believe the learned Judge, a quo, to be in error in this respect, for primaries are not elections. Newberry vs. U. S. 41 Sup. Ct. Rep. 649.

Counsel insists 'that in this situation we can do no more than remand' the case, because it is claimed Judge Skinner considered only the question of constitutionality and we can review only such matters as have been passed on below. Counsel’s error consists in confusing Judge Skinner’s reasons and his judgment. What we are called upon to consider is the action of the Court, a qua, not the words. A definitive judgment for plaintiff, ordering Simon Leopold’s name certified as prayed for was rendered by the Court and the correctness of this ruling must be considered. See Nevill vs. Parish Committee No. 11,221 of our docket, not yet reported.

Several exceptions were filed, in limine, but only one, no cause of action, is insisted upon here. This exception is based upon the alleged failure of Leopold to sign his affidavit appended to his notice of intention and statement of qualifications filed with the Democratic Committee. The document was annexed to plaintiff’s petition and by agreement the rules of the State Central Committee, the governing political body, which prescribes rules for the Parish Committees throughout the State was admitted and it was also agreed might be considered as part of the petition. These rules require an affidavit but the Primary Law does not. Whether the law or the rules control and whether there .was, as a matter of fact, a proper affidavit, we deem it unnecessary to discuss. No objection to Leopold’s candidacy was made upon that ground and the Committee did not refer to it in its decision. As was said in a case decided by the Supreme Court a few days ago, Adam Melerine vs. Democratic Parish Executive Committee for the Parish of St. Bernard, No. 28987 S. C., where a similar exception was considered:

“Defendant filed an' exception of no cause of action based on the proposition that plaintiff does not allege in his petition facts sufficient to show that he is duly qualified to hold the office to which he aspires. It was not necessary for him to do so; it sufficed for him to allege that he filed his application with the committee in due time and in due form; that his candidacy was objected to; and that said objection was sustained by the committee. For the aforesaid Section 11 requires that any objection to a candidate shall set forth ‘in detail’ the reason why said candidate is not qualified; so that the only question before the committee is whether said objections be well founded. And since the court can only review the decision of the committee, it follows that any other objections which might have been made, but were not made, are wholly immaterial to the issue before the court. And since new objections cannot be urged before the court which were not set up ‘in detail’ before the committee, it follows that this plaintiff was not called upon to anticipate any such new objections by setting forth in his petition, and later on proving, that he has all the qualifications required for the office which he seeks. To hold otherwise would amount, in effect, to allowing objections to plaintiff’s candidacy to be made for the first time in the courts and not before the committee, and. to allow such objections to be made not ‘in detail,’ but in the most general manner conceivable, to wit, that his petition ‘shows no cause of action.’ ”

On the merits the question is where does Mr. Leopold reside or in the language of the Constitution, of what Parish is he “an actual bona fide resident.”

In the determination of this; the ultimate question, we have found much difficulty, and, if we were privileged to regard the matter as an original proposition, might easily have reached a different conclusion. The facts, as we find from the record as are follows:

Mr. Leopold is sixty-five years old. He was born in Plaquemine Parish, married there, his children were born there, and continued to reside there, unquestionably, until 1924, when he sold his home to Albert Schayot, and has since maintained no domestic establishment there, his family having moved to the Parish of Orleans. Leopold always has been and still is a registered voter in Plaquemine Parish, for forty-four years, lie testified, in the same precinct. Following the sale of his house he recorded a declaration of domicile and entered into an agreement with the purchaser of his home reserving two of the rooms in the house for his personal use so long as there should be any of thé purchase price, represented by mortgage held by Leopold, unpaid. On the other hand, Leopold is general manager and secretary of the Lower Coast Construction Company and president and manager of the Highway Construction Company, both corporations have offices in the Godchaux Building in the City of New Orleans, where Mr. Leopold receives his business and personal mail. Mrs. Leopold and both of their two children live in the City of New Orleans. Mrs. Leopold with Mr. Joseph Haspel, No. 3 Everett Place, her son-in-law, whére' she entertains socially. Mr. Leopold, when in the City of New Orleans, also resides at No. 3 Everett Place, where he has a telephone in his own name. Mrs. Leopold has an automobile, which is registered in Plaque-mine Parish but they own no garage there .and use the garage on the premises of Mr. Joseph Haspel. There is no evidence that Mrs. Leopold has ever been in Plaque-mine Parish since the sale of their house and several witnesses testify that they have not seen her there. Phoenix, Plaque-mine Parish, claimed by Leopold as his home and the place where his house, which he sold, is located, is a community of some seven or eight families. One witness named from memory all the families she said resided there. Manifestly a community too small for a. man of Mr. Leopold’s business activity, and too small for Mrs. Leopold’s social proclivities as evidenced by newspaper clippings of several entertainments given at “her home” No. 3 Everett Place, which were offered in evidence. We are convinced that Mr. Leopold desired to maintain a political domicile in Plaquemine. He has given ample evidence of it, but it seems equally evident that he did not choose to live there. The two rooms which he reserved, though he was free to occupy them at any time, were at one time rented, to school teachers by Mr. Shayot, though he admits that if Mr. Leopold had appeared the teachers would have had to move. Whatever valuables Mr. Leopold has, he testifies, are in the Parish of Orleans.

But we are not at liberty to indulge our personal views, the jurisprudence is very clear.

To begin with, there is a presumption that the domicile of choice like the domicile of origin once established remains unchanged. Fleming vs. Joyce, 123 La. 630, 49 So. 218; Caufield vs. Cravens, 138 La. 283, 70 So. 226; Mosely vs. Dabezies, 142 La. 259, 76 So. 705.

In Caufield vs. Cravens, 138 La. 283, 70 So. 226, it was held, on page 287:

“The term, ‘actual bona fide resident,’ as used in the Constitution, cannot reasonably be interpreted to mean that, in order to acquire, and still less, to retain, such status, one must remain continuously in the town, or upon the premises, of the residence, and the status described is not therefore affected by temporary absences, occasioned by considerations of duty, business, health, or pleasure, unless, being voluntary, they extend beyond prescribed periods, or, are accompanied by the acquisition of residence elsewhere; nor is it affected by absences of indefinite duration if one be engaged in the business of the state, or the United States, or on the high seas, or be a student of any institution of learning. Const. Art. 208, R. S. Sec. 1202. Nor, is is affected by the fact that one resides in a hotel, or boarding house, or in the house of some family connection, since the law prescribes no condition in that respect. The words ‘bona fide,’ as used in the present Constitution (Article 197), appear to have been added to the word ‘actual,’ as used in the Constitution of 1879 (Article 185) merely, as they themselves indicate, to emphasize the importance of ‘good faith,’ as a factor in the determination of the question of residence, and, by the application of that test, to prevent a person who has two or more residences from calling the one or the other his legal residence as it may suit his interest or convenience, but to the prejudice of the rights of others.”

Again on page 285:

“One does not, however, lose his status, as an actual, bona fide, resident of a place, either because he finds it necessary to establish his family elsewhere, or because, in the absence of his family, he does not maintain a domestic establishment at such place. The question is one largely intention, and the intention of a person, in that respect, is determined by his expressions thereof, at times not suspicious, and his testimony, when called on, considered in connection with his conduct and the circumstances of his life.”

In Estopinal vs. Michel, 121 La. 879, 46 So. 907.

“The place where a man’s family lives does not determine his domicile, and still less his residence. The domicile of wife and children follows that of the husband, not that of the husband that of wife and children. In the case of State ex rel. Attorney General vs. Steele, supra, the fact that the defendant had sold his home in Tensas Parish and purchased another in Natchez, Miss., and had removed his family to this new home, was held not to have necessarily had the effect of operating a change of domicile.”

In the case of Hall vs. Godchaux, 149 La. 734, 90 So. 145, after stating that the' words “actual bona fide resident” did not mean that such resident should occupy his abode every moment during the period necessary to become a resident, the Court said:

“However, we think that he is required to maintain such a relation with the place or premises so selected as will entitle him at his will, and without making new arrangements therefor upon each return, to occupy such place whenever his necessities or pleasure require, and this without having to ask the permission of someone else. This cannot be said to have been true of Judge Godchaux while he was stopping at the De Soto Hotel, under the circumstances which we have outlined * * * If the individual maintains a place to which he can return, as above indicated, he does in law have an actual bona fide residence, and when away under the call of business or pleasure is an absent actual bona fide resident. But we cannot see how it can be said that he is such a resident when he possesses no other right than that of going to a hotel, registering and being assigned a room with no fixed relation thereto, as has been shown to have been the case with Judge Godchaux.” (Italics ours.)

In the Godchaux case, the following analysis is made of the Caufield case cited supra:

“In the first case Caufield was a railroad conductor who had many years resided, voted, paid street and poll taxes, and in every way maintained his identity with the town of Wilson, in the parish of East Feliciana. He found it necessary to send his wife and children to the City of Baton Rouge for the purpose of edu-. eating the latter, rented a house, and established them there for that purpose. His duties included runs on several different branches of the same railroad, but he was required to report at Wilson, where he has always resided, for the purpose of obtaining orders and assignments for his different runs. When in Wilson he sometimes stopped at a place called the Valley Hotel, and always occupied one ”f the two rooms, Nos. 2 and 5, set apart for conductors, for which he paid 25 cents per night. And at others he stopped at the home of his father-in-law, for which he paid board. But he did have the privilege at all times of occupying these same quarters * * * ”

In Brantley vs. Smith, 6 La. App. 182, it was hejd that Smith had not lost his residence in Union Parish although he had moved to Arkansas with his family, was employed there and rented an apartment because—

“The testimony that they retained their establishment in Union Parish during their absence and that they intended all along to maintain their residence in that parish and to return when the first opportunity to get work presented itself is undisputed and is borne out by subsequent events. They acquired no property in nor did they make any effort to become residents or voters in the state of Arkansas.”

Finally it was held November 28, 1927, in the case of Adam Melerine vs. Democratic Executive Committee for the Parish of St. Bernard, No. 28987 S. C., Melerine was a resident of St. Bernard because, “There is no doubt whatever of plaintiff’s intention in the premises. He was born in St. Bernard and resided there from the age of 10 to 26, when he married, to wit: July, 1925. He has always claimed to reside there, even since his marriage, and to the present day, by registering as a voter, and by paying poll taxes and by voting in said Parish and no where else.”

Melerine’s parents lived in St. Bernard in a house, the rent of which was paid by Melerine, but the front bedroom was at the disposal of himself and wife whenever he or they chose to occupy it. However, both Melerine and his wife lived in New Orleans. At least he rented a house in New Orleans by the month and all customary municipal conveniences such as telephone, electric light, gas, water, etc., were installed on applications made out either by his wife or himself, and, though he testified that most of his time was spent in St. Bernard, the record of his consumption of electricity when exhibited to the electrical engineer of the New Orleans Public Service provoked the following comment:

“The statement here would seem to indicate that there has been some electricity consumed during every month (July, 1925, to October, 1927) * * * This total consumption here for (by) is not as large as most of the consumers in New Orleans consume. Our average customer here consumes 380 kilowatt hours a year; that is large and small and everything thrown in. This record shows about 220 a year.”

The court in this case (Melerine) repeated what was said in the Godchaux case and underscored the words as indicated in the following quotation:

“An ‘actual bona fide resident’ * * * need not have occupied his place of aboue every moment during the required period of time but must have maintained such relation with the place or premises as will entitle him at his will, without making new arrangements therefor on each return to occupy such place whenever his necessities or pleasure required without asking permission of someone else.” (Italics ours.)

The only requirement therefore is as emphasized by the jurisprudence that such relation shall be maintained as will entitle the individual without making new arrangements to return to the place of his alleged domicile at his will without asking permission of anybody else. Leopold certainly maintained such relation with the Parish of Plaquemine. He proved an agreement by which he was privileged to occupy two rooms in the house formerly owned by him at any time providing the mortgage given by his vendee was unpaid. It was proven that the mortgage was still unpaid at the time of the trial. It is true that his vendee at one time rented the rooms so reserved to Leopold, but it is not shown that Leopold consented or knew anything about it and it is admitted that Leopold could have dispossessed the occupants at any time.

The judgment appealed from must be and it is hereby affirmed.


text:
    No. 10,213
    Orleans
    TESTARD v. BOARD OF COMMISSIONERS OF THE PORT OF NEW ORLEANS
    (February 20, 1928. Opinion and Decree.)

      {Syllabus by the Court)

    1. Louisiana Digest — Automobiles—Par. 4; Municipalities — Par. 221.
    Tbe rule to tbe effect that drivers of automobiles are required to regulate the speed of their cars and maintain such control as will permit their stopping within the range of objects and obstructions plainly visible, has no applica- ‘ tion to emergencies creating, unexpected hazards which could not reasonably be anticipated.
    Appeal from Civil District Court, Div. “C.” Hon. J. Porter Parker, Judge.
    Action by Henry A. Testard against the Board of Commissioners of the Port of New Orleans.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Woodville and Woodville, of New Orleans, attorneys for plaintiff, appellant.
    Lemle, Moreno & Lemle, of New Orleans, attorneys for defendant, appellee.
   WESTERFIELD, J.

This suit results from a collision of automobiles. Plaintiff was driving down St. Charles Avenue at about 9. a. m. Following plaintiff was a Ford and behind the Ford, defendant’s car.

Plaintiff observed a friend of his waiting at a street intersection for a street car, wanted him to ride, and in order to pick him up stopped his car near the neutral ground and a little ways beyond the intersection. The Ford car avoided striking plaintiff’s car by turning sharply to the right, but defendant’s chauffeur claims, and we think the record supports him, that he was unable to turn to the right because of the presence of a Buick automobile, abreast of him. Plaintiff’s car was struck in the rear and damaged.

It is admitted that plaintiff was guilty of a violation of the City Ordinance, as in fact he clearly was as appear by reference to the following provision:

“On streets divided by a neutral ground, no vehicle shall stop next to either curbing of the neutral ground.”

It is insisted, however, that plaintiff’s negligence was not the cause of the accident which is averred to be due to defendant’s fault, in that its car was not operated at a speed sufficiently slow, and under such control that it could be stopped within the distance in which he can plainly see an object in front of him. The rule invoked is undoubtedly sound, but it has no application here because the car of plaintiff could not be seen until the Ford had been forced out of the line by the sudden stopping of plaintiff’s car, and when seen created a hazard which defendant’s driver had no reason to anticipate, nor guard against. In fact, there was every reason to expect the contrary for it must be presumed that automobile drivers will observe the traffic ordinance. His only chance to avoid the accident was by turning sharply to the right as the driver of the Ford did, but this he could not do, because of the presence of the Buick car abreast of him. See Jacobs vs. Jacobs, 141 La. 272, 74 So. 992.

It is argued that there was no other place for plaintiff to stop his car because he could not drive over to the curb nearest the sidewalk, for to do so would necessitate crossing the path of two lines of cars traveling in the same direction. The answer to this argument is that in that situation he should not have stopped at all and should have foregone the pleasure of giving his friend a ride.

The judgment appealed from is affirmed.


author: JO'NES, J.

text:
    No. 10,200
    Orleans
    LANDRY v. CHECKER CAB CO., INC
    (April 9, 1928. Opinion and Decree.)
    (May 7, 1928. Rehearing Refused.)

      (Syllabus by the Court)

    1. Louisiana Digest — Appeal—Par. 625.
    Where there is no manifest error in the decision of the trial judge on a question of fact, his judgment will be affirmed.
    2. Louisiana Digest — Appeal—Par. 635, 637
    Amount will be reduced where the evi dence as to earnings is vague arid the physician testifies that the suffering was not great.
    Appeal from Civil District Court, Div. “B.” Hon. Mark M. Boatner, Judge.
    Action by Joseph L. Landry against the Checker Cab Co., Inc.
    There was judgment for plaintiff and defendant appealed.
    Judgment amended and affirmed.
    Spearing, Miller & Mabry, of New Orleans, attorneys for plaintiff, appellee.
    P. L. Pourchy, of New Orleans, attorney for defendant, appellant.
   JO'NES, J.

Plaintiff claiming to have been injured in an automobile collision sues defendant for damages in the sum of Pour Hundred Ninety-five and 45-100 ($495.45) Dollars, itemized as follows:

(a) 4 weeks salary at $41.00 per week -----------------------------------------$164.00
(b) Damages to suit of clothes, costing $27.50 ----------------------------------- 15.00
(c) Physician’s services to date _ 9.70
(d) Hospital services ______________________ 6.00
(e) Taxicab from hospithl to home .75
Pain and suffering ________________________ 300.00
$495.45

Defendant denied the allegations of plaintiff and pleaded contributory negligence.

As the accident happened at the corner of Dryades and Poydras Streets, just above where the market crosses Dryades Street, the trial Judge visited the scene of the accident, had the two taxicabs placed in the positions which they claimed to have occupied just prior to the impact and drew a diagram of the intersection showing the line of vision between the drivers.

After careful examination of the diagram and the entire evidence, we agree with the trial Judge in thinking that defendant’s driver was negligent, because he did not stop his cab and see plaintiff who had the right-of-way coming up Dryades Street. As the Judge’s diagram shows that the defendant’s driver could have seen plaintiff twenty-one feet down Dryades Street, and as the photographs of plaintiff’s cab in the record show that it was struck on the rear right fender, defendant’s driver evidently tried to get across before the way was clear and thereby caused the accident.

We think the amount allowed a little too high.

The doctor testified that plaintiff, who had three fingers on his left hand broken, was in hospital three days and then' was treated by him for three weeks when he was discharged as free of disability.

Plaintiff testifies that the highest check he ever got for his weekly salary in the best winter months was Twenty-seven and 91-100 ($27.91) Dollars and that in addition to this he got tips and extra pay for extra passengers and his whole pay amounted during the winter months to Thirty-five or Forty Dollars per week.

As the doctor testifies that there was no great amount of suffering connected with the accident, we think substantial justice will be done by allowing him:

For pain and suffering_______________________$250.00
For 4 weeks salary at $30 per week 120.00
For damage to suit ____________________________ 5.00
Total ______________________________________________________$375.00
The other damages are not proved.

For above reasons it is how ordered that there be judgment in favor of Jos. L. Landry and against defendant Checker Cab Co., Inc., in the sum of Three hundred seventy-five ($375.00) Dollars, with legal interest from judicial demand.


author: CLAIBORNE, J.

text:
    No. 9945
    Orleans
    MARINE & MOTOR INS. CO v. CATHEY
    (October 17, 1927. Opinion and Decree.)
    (November 14, 1927. Rehearing Refused.)
    (January 20, 1928. Writ of Certiorari and Review denied by Supreme Court.)

      (Syllabus by the Court)
    1. Louisiana Digest — Automobiles—Par. 9 —Warehousemen and Warehouse Receipts — Par. 6.
    One who has received an automobile for the purpose of repairing the same is liable to the owner for any damage caused by his negligence.
    Appeal from the Civil District Court. Hon. Porter Parker, Judge.
    Action by Marine and Motor Ins. Co. against J. D. Cathey.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    A. A. Moreno, of New Orleans, attorney for plaintiff, appellee.
    John R. Perez, of New Orleans, attorney for defendant, appellant.
   CLAIBORNE, J.

This is a suit for damages to an automobile while in the possession of defendant for repairs.

The plaintiff alleged that the defendant is engaged in the business of repairing automobiles; that on April 12, 1920, William K. Seago brought his auto to defendant’s garage for having repairs made to it; that while in the possession of defendant said auto was partially burned through the negligence of defendant’s agents; that plaintiff had issued to said Seago a policy of insurance against fire by which it had agreed to pay the assured the damage to said auto by fire; that as a result of the ■damage to said auto the plaintiff was compelled to pay $350 for painting the auto, and one hundred two and 55-100 dollars for repairs to the engine; that plaintiff has been subrogated to the rights of Seago against the defendant; and it prays for judgment against it for $452.55.

The defendant admitted that plaintiff’s auto was damaged by a fire caused by internal combustion within the automobile itself while the same was in defendant’s floor; but defendant denied every other allegation in plaintiff’s petition contained.

There was judgment for plaintiff as prayed for and defendant has appealed.

William K. Seago testified that he bought the car from defendant; there was a tacit agreement that the car should be kept in repair for some time and whenever any little trouble happened to the car he took it to the defendants for repairs; he took it to them the last time for some minor trouble, and when he went for the car he found it pretty badly damaged by fire.

It was admitted that Seago had a fire policy in the defendant company, and that it caused to be made the repairs caused by the fire, and that Seago subrogated it to his rights against defendants; when he brought his car to the defendants’ garage he merely delivered it to some one in charge and told him what the trouble was with the idea of having the repairs made.

It was admitted that William M. Jurgens paid $102.55 for repairs to the auto which were necessitated by the fire.

C. A. Miessner testified that he does automobile painting and trimming; that wheh the car was brought to his place of business the inside’ upholstering was burned and the cowl. all burnt up; that he was paid $350 for the repairs.

“Q. Mr. Meisner, what was the cause of the fire damage to the car? Was it apparent that the fire damage had been caused by a fire within or without the car?
“A. That I could not answer; I don’t know.
“Q. Didn’t you examine the car when you painted it?
“A. No, sir, I had no occasion to examine the car. My orders were to paint it and fix up the upholstering on the inside of the car that was burnt.
“Q. Didn’t your examination, however superficial it might have been, evidence to you that fire was caused from within the car rather than from without?
“A. No, that I couldn’t answer.
“Q. You couldn’t answer that?
“A. No; I don’t know.”

J. D. Cathey, defendant, testified that his business is selling and repairing automobiles; he is president of the defendant company; he denied that he had a contract with the plaintiff for the repairs of his car because there was no special work nor specified sum; yet he admitted that it is customary for customers to bring cars into the repair shop without seeing him This part of the defense is not worthy of serious consideration. The only explanation he gives of the fire in the car is as follows:

“Well, I found the car burned on the inside caused by the vacuum tank which holds a certain amount of gasoline having caught fire through some cause on the inside of the car, and burned on the inside.”

Philo Willey is a mechanic and was the service manager for the defendant; he testified that Seago brought his automobile to the shop and talked to him, and gave him the nature of fhe repairs to the motor; he was in charge of the repair work of this car; the car was in the garage about 24 hours before the fire, he explains the fire as follows:

“I was standing near the center of my service department there, and all at once some one hollered ‘Pire,’ and I went back and the car was on fire standing near the wash-rack. How the fire started I don’t know; there was.no one near' it; there was no one working on the car at the time.”

Work had been done oh the car the day previous about 5 o’clock when they left off; and the fire was at half past one or two in the afternoon; as near he could figure, it was caused by a short circuit possibly in the wiring some place at some part of the ignition or lights; it is possible for that to happen at almost any time; it might have happened upon the street as well as in the garage; the work to be done on the car was to remove the motor and - to do some work on the cylinders; he saw that was done; the electrical system of the car had been adjusted or removed and something done to it by the mechanics; it had to be done to take the motor out. On cross examination he admitted . that he had signed a statement that ‘a man named Seaman had been working on that car at the time of the fire and had left the car to go to a work bench.”

H. L. Landry testified that he was in charge of the service department of defendant and an auto mechanic; he saw the fire and helped to put it out; he was 50 to 75 feet from the fire when it started; he does not know how the fire occurred; “it started of -its own origin; that is the fire just started by itself; the fire started inside of the car; there was no fire any where near; the fire was due to some short circuit in the car; the engine was taken out of the car; the wires had to be disconnected before the engine was taken out. The following questions were put to the witness:

“Q. Now, isn’t it a fact that in order to set off any electricity being fed to any part of that car, that all you have to do is to unscrew the little screw on the top of the battery?
“A. Yes.
“Q. Isn’t that right?
“A. Yes, sir.
“Q. Now, isn’t it a fact, Mr. Landry, that if man who worked on that car had simply unscrewed the little screw on the top of the battery, that there would have been no possible communication of electricity to 'any part of that car?
“A. I don’t know; not after it is disconnected, no sir.
“Q. Well, then, you say that if the wire was disconnected, that that would have shut off the electricity entirely from any part of the car; is that right? Didn’t you say that?
“A. Yes.
“Q. Now, generally, about how long does it take you to turn that screw on the top ■ of the battery?
“A. Well, five or ten minutes, that is the maximum; sometimes you can unscrew it in half a minute.
“Q. So that, if the mechanic who went to work on that car had spent from half a minute to ten minutes in unscrewing the screw from the top of the battery, he would have completely disconnected the electricity; isn’t that right?
“A. Yes.
“Q. And if he had done that; there could have been no possibility of a short circuit?
No answer.
“Q. Won’t you answer that?
“A. Well, no, there would not.”

The witness further stated that it was not customary for garages to disconnect the batteries. .

Mr. Willey, recalled, stated that Mr. Seaman had worked on the car; he was discharged by the witness because he was a Bolshevist, witness made no attempt to procure him; witness is no longer connected with the defendant company.

The defendant was a depository for repairs.' In that capacity he is liable if property in his possession suffers damage or loss through his fault or through his want of care.

C. C. 2937 (2908); James vs. Greenwood, 20 La. Ann. —; Levy vs. Pike Bro. & Co., 25 La. Ann. 630; Marks vs. N. O. Cold Storage Co., 107 La. 173; 31 So. 671, 137 II. S. 613; Levy vs. Kirwin, 6 La. App. 93; No. 10883, Orl. App.

Although it is possible for a fire to occur as a result of a short circuit at any time on the street as well as in the garage, we are of the opinion that the preponderance of possibilities in this case is that the short circuit was caused by the mechanics engaged in the work on the car and owing to the negligent manipulations of the mechanics after they had removed the motor and engine and disconnected the wires. But if we are wrong in that conclusion, we entertain no doubt that it was negligence on the part of the defendant not to have removed the screw on the top of the battery and in that simple way have removed all possibility of a short circuit.

That there was danger after the wires were disconnected is proven by the fact that the defendant attempted to guard against it by taping the ends of the wires; it is evident that they did not succeed.


text:
    No. 11,248
    Orleans
    HIRSCH v. MONTGOMERY
    (May 21, 1928. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Prescription—Par. 179, 183.
    Partial payments on a bill made several months after a futile protest againsc the amount of the charge constitute an acknowledgment of the debt and interrupt prescription.
    Appeal from First City Court, Div. “B.” Hon. Val J. Stentz, Judge.
    Action by Dr. Julian Hirsch against William J. Montgomery.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Thomas J. Dobbins, of New Orleans, attorney for plaintiff, appellee.
    William C. McLeod, of New Orleans, attorney for defendant, appellant.
   JONES, J.

This is a suit for One hundred fifty ($150.00) Dollars, balance due on a surgeon’s bill of Three hundred ($300.00) Dollars for a successful appendicitis operation on the wife of defendant, performed on September 22, 1923.

The defense is a denial of the indebtedness accompanied by a plea of prescription.

There was judgment for plaintiff and defendant has appealed.

The evidence shows that the operation was performed on September 22, 1923, by plaintiff, after his diagnosis and recommendation of operation had been confirmed by Dr. H. B. Gessner, a surgeon of high repute in this city; that bill for Three hundred ($300-00) Dollars was rendered early in the following December, whereupon defendant and his wife protested verbally to plaintiff against its size, but plaintiff refused to make any reduction; on December 18th, a day or two later, defendant sent a check for Fifty ($50.00) Dollars, and on December 18th wrote a letter renewing his protest, stating that the charge was excessive for the services performed and that his financial ability to pay had been overestimated by plaintiff.

On' December 28, 1923, plaintiff wrote that removal of the appendix under a local anaesthetic under the circifmstances of this case was not a minor operation, that he considered the bill reasonable and would not reduce it, though he was willing to be lenient in allowing time for payment.

Without further communication defendant made following payments:

February 9, 1924________________________________________$25.00
March 31, 1924___________________________________________ 25.00
May 16, 1924_____________ 25.00
August 15, 1924_________________________________________ 25.00

On July 16, 1925, in response to a letter of plaintiff’s then attorney demanding immediate payment of balance, defendant swears he explained the entire matter to the attorney without admitting correctness of the bill and refused to pay anything more, but in rebuttal of this statement, plaintiff testifies that he telephoned defendant before filing suit, that prescription had nearly run and defendant promised to let him hear further but failed to do so.

The evidence further shows that such an operation performed with only local anaesthesia on account of the then physical condition of the patient is more difficult and more delicate than a similar performance with a general anaesthetic.

Both plaintiff and Dr. Gessner testify that it was considered a major operation and reasonably worth the price charged.

Defendant’s main argument is that payment of a part of the bill after futile protest as to its size did not constitute acknowledgment of claimant’s right and in support of his contention, he relies mainly on two cases, Bennet-Brewer Hardware Co. vs. Wakeman, 160 La. 407, 107 So. 286 and Shultz vs. Houghton, 36 La. Ann. 407.

As the former case does not deal with the point her'ein considered, it need not be discussed. The decision in the latter case is based on lack of evidence as to acknowledgment rather than as to the right. In the course of his brief opinion Judge Fenner uses the following language:

“It is claimed, however, that defendant made a general acknowledgment of indebtedness, which is sufficient to interrupt prescription.
“The evidence on this point is of the vaguest and most general character, not pretending to give the language, or definite purport of the language used.
“It is very clear the defendant never made an ‘acknowledgment of the right’. claimed by the creditors, which was the right to claim the amount shown due by the account.
“Non constat that after examining his papers he might not have disputed any. indebtedness whatever, the account being one of large debits and credits.”

The last paragraph above quoted, though by no means clear, may be construed as holding that there was a denial of all indebtedness.

In support of this decision the learned Justice quotes from the decision in the case of Lackey vs. Macmurdo, 9 La. Ann. 17, where the suit was on a partnership note of the firm W. L. Addison & Co., of which defendant was a member and where evidence showed that defendant, after refusing to pay' the notes on the ground that it was a firm and not an individual debt, had offered to pay Fifteen Cents on the dollar, the amount which all creditors were accepting in full settlement.

Here, although the Supreme Court held that acknowledgment might be inferred and not express, it found the assent therein insufficient to interrupt prescription.

Neither this case nor any of the other three cases referred to by Justice Fenner go so far as contended by the defendant, they are all based on the question of the insufficiency of the evidence of verbal acknowledgment.

Here there is no question of oral acknowledgment. The defendant made five payments on the bill after plaintiff had definitely refused to reduce it. Had defendant stated or written that One hundred and fifty ($150.00) Dollars was his maximum and that he denied owing anything more, his case would have been far stronger, but there is- no such proof. The record contains no testimony that he ever offered to pay any fixed amount. On the contrary when last spoken to about the bill, he promised to take it up later, but made no claim that it had been settled. Such a futile protest had no legal significance. It was mere trade talk, “brutum fumen,” and could not change the right of the creditor, who had every reason to presume from defendant’s continued payments after his refusal of defendant’s request for reduction that he acquiesced in the charge. Disputes about the size of bills are common, and to hold that they changed the rights of the creditor without his knowledge or consent would open the door to untold litigation.

Under the evidence adduced here defendant has acknowledged by his payments and by his silence acquiesced the right of the creditor.

The decision of the Supreme Court in Clarkson vs. Williams, 29 Ann. 247, to the effect that the payment of a small portion of a debt was a sufficient acknowledgment thereof to prevent prescription is controling in this case.

See also Butler vs. Ford, 9 Rob. 112; Collier vs. Creditor, 12 Rob. 398; Cockfield vs. Farley, 21 La. Ann. 521; Canal Bank vs. Ascension Bank, 140 La. 465, 73 So. 269; D. H. Holmes, Ltd., vs. Edw. J. Heller, No. 11,165, decided by this Court on February 27, 1928.

After a careful review of the authorities this Court in the last cited decision held that a partial payment constituted an acknowledgment of the debt and interrupted prescription.

We agree with the trial Judge that the evidence proves that the bill was reasonable.

For above reasons, the judgment is affirmed.


text:
    No. 11,282
    Orleans
    SMYTH v. HILL STORES, INC.
    (May 21, 1928. Opinion and Decree.)

      (Syllabus by the Court)
    1. Louisiana Digest — Automobiles—Par. 4, 4b.
    Where two automobiles approach an intersection at a right angle, and one of them nearly completes the crossing before the other arrives at the intersection, the one which almost traverses the intersecting street is entitled to proceed notwithstanding the fact that the other car had the right--of-way.
    2. Louisiana Digest — Automobiles—Par. 6, 7.
    The contributory negligence of the driver of an automobile cannot be imputed to a guest having no part in its management, so as to defeat recovery by the guest for negligence of another.
    Appeal from First City Court, Div. “B.” Hon. Val J. Stentz, Judge.
    Action by John T. Smyth against H. G. Hill Stores, Inc.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    George Piazza, of New Orleans, attorney for plaintiff, appellee.
    Spearing & Mabry, of New Orleans, attorneys for defendant, appellant.
   JONES, J.

This is a suit for damages for personal injuries sustained by plaintiff, a guest in a Ford roadster, on the 13th day of October, 1925, about 6:50 a. m., at the corner of Peniston and Carondelet Streets in a collision with defendant’s Ford truck.

Defendant answered as follows:

It had the right-of-way though both cars reached the intersection at the same time, the roadster attempted to “beat” the truck across the intersection, thereby causing the damage without any negligence on its part.

There was judgment for Two hundred ($200.00) Dollars and defendant has appealed.

John J. Noonan testified as follows:

He was driving an automobile up Carondelet Street; the Ford roadster stopped before entering Carondelet "Street and then proceeded across at a very slow rate of speed; when “all but across,” truck, which was traveling twenty-five or thirty miles an hour, struck the rear portion of the roadster; after the accident the roadster was in Peniston Street, off of Carondelet Street, turned completely around so that it faced the sewer; he saw plaintiff after the accident bleeding from cuts over left eye and blood running down his face.

Leon, the driver of the Ford roadster, was dead at the time of the trial.

Smyth, plaintiff herein, was dead at the time of the trial, but while confined at the Charity Hospital, during his last illness, his testimony was taken by consent of counsel. He testified as follows:

He was riding as a guest in the Ford roadster with Leon, who was kind enough to take him down frequently. Leon, who was a very careful old man, stopped before entering Carondelet Street and then proceeded across the intersection very slowly; that when they had nearly completed the crossing, defendant’s truck came down Carondelet Street rapidly; just before the accident defendant’s driver had his head turned looking toward the river; that plaintiff, believing an accident inevitable, screamed to the driver of defendant’s truck to attract his attention thereby averting almost certain death; the driver then swerved his truck to the right, struck the rear fender and wheel of the roadster and truck turned over, landing on the downtown river corner of Carondelet and Peniston Streets; the Ford roadster was turned completely around; after the accident it was entirely off of Carondelet Street.

Morris D. Moreaus, driver of the Hill truck, testified as follows:

He was traveling on the right side of Carondelet Street, about three feet from the sidewalk curb, about eight miles an hour, both cars reached the intersection about the same time; plaintiff, who was coming at a moderate speed about eight miles per hour, did not stop, but tried to beat him across, when right front fender of the truck struck right rear wheel and fender of the Ford roadster; when he saw the roadster was in front of him, he put on his brakes and swerved his truck to the left, but it was too late and his truck turned over on the downtown river corner of Carondelet and Peniston Streets, but the roadster was in Peniston Street; he admits that his head may have been turned before the accident.

The testimony of Becker, who was a block away at the corner of Baronne and Peniston Streets, is so contradictory and confusing that it adds nothing to the case.

If the statement of the defendant driver be considered correct, the Court must believe that the Ford roadster, which was struck in the rear, crossed from the lake side of Carondelet Street to the river side, practically completing the intersection, while the truck going at the same speed traveled only a few feet, certainly not more than one-fifth of the distance.

It is true that the Hill truck had the right-of-way at this intersection, but that privilege did not give the defendant the right to disregard the safety of others already in the crossing. The Traffic Ordinance regulations on this question simply state that if two vehicles reach an intersection at the same time, the one having the right-of-way shall proceed in preference to the vehicle not having the right-of-way. Once a vehicle has entered the intersection, irrespective of the right-of-way of the other vehicles, it has the right to continue across. That is set forth in Article 1, Section 7, Paragraph (g), City Ordinance No. 7490 C. C. S., and under the following decisions of this Court:

Vance vs. Poree, 5 La. App. 109; Trowbridge vs. Rackle, 3 La. App. 368; Hirsch vs. Ashford, 5 La. App. 290.

Furthermore, as plaintiff was a guest in the roadster, the negligence of the driver cannot be attributed to him.

Jacobs vs. Jacobs, 141 La. 273, 74 So. 992; Churchill vs. T. & P. Ry. Co., 151 La. 727, 92 So. 314; Vitale vs. Checker Cab Co., decided by Supreme Court May 7, 1928.

Plaintiff’s injuries consisted of: Lacerated wound of left temple; small lacerated wound of right side; lacerated wound of right knee; cut on bridge of nose; brush wounds of forehead; bruises of scalp; general contusions all over body, worse over region of right chest wall.

As a result of these injuries he was confined to his home about four days; had to visit the doctor three or four times; suffered some for about two months after the accident.

Though it is always difficult to fix the quantum in such cases, we think the judgment of the trial court does substantial ' justice.

The judgment is, therefore, affirmed.


text:
    No. 11,409
    Orleans
    DASTUGUE v. COHEN, ET ALS.
    (April 9, 1928. Opinion and Decree.)

      (Syllabus by the Court)
    1. Louisiana Digest — Injunction—Par. 87, 101; Appeal — Par. 110, 113.
    An appeal from an order refusing to permit defendant to bond a preliminary injunction is properly denied when the case has been tried on its merits and judgment rendered by consent of all parties in interest perpetuating the preliminary injunction.
    Action by M. F. Dastugue et als. against Walter Cohen et als.
    Alternate writ of mandamus recalled.
    W. O. Hart, of New Orleans, attorney for relator.
   WESTERFIELD, J.

Relator seeks by mandamus to compel the Judge of Division “E” of the Civil District Court to grant an appeal from an order refusing to permit him to bond an injunction. It is alleged that the injunction is temporary and relator’s right to bond absolute; C. P. 307; Barthe vs. Judge, 28 La. Ann 903; Doullert vs. Judge, 29 La. Ann. 869.

The respondent Judge justifies his refusal to grant the appeal upon the ground that Art. 307 C. P. permits defendant to bond, in the discretion of the court only when the act prohibited by the injunction would not work irreparable injury, which is not true, he avers, in this case, and upon the further ground That the preliminary injunction was made perpetual in a judgment prepared by counsel for all parties in collaboration, and at the particular request of counsel for relator. We quote from the Judge’s return the following:

“It was agreed by all parties at interest that the cases be tried on the merits, as well as on the rule for preliminary injunction, and that the judgment would be rendered accordingly; and the cases were so tried.”
“After hearing the pleading, the evidence and the argument of counsel, your respondent was of the opinion that the plaintiffs were entitled .to a judgment protecting them in the possession and occupancy of their respective offices until such time as the defendants should establish their right to the offices in proper legal proceedings, and such judgment was rendered. Upon inspection of the judgment, as prepared by counsel for plaintiffs, counsel for defendants desired that same show that the preliminary injunction was granted and then that same had been perpetuated, and counsel for plaintiffs inserted in said judgment the clause suggested by counsel for defendants as meeting his views in that regard; whereupon the judgment was signed.”

The accuracy of this statement is not challenged by counsel for relator. It therefore appears that the preliminary injunction, which relator seeks to bond was, after a trial upon the merits, made perpetual by consent and at the express stipulation of counsel for defendant, relator.

It is said that the judgment is not final, because signed prematurely and before delays for application for new trial had elapsed, citing Succ. of Corbury, 23 La. Ann. 110; Newman vs. Judge, 32 La. Ann. 207.

We concede the rule to be as counsel states it, but it can have no application where, as is the case here, the judgment is prepared and consented to by counsel for all parties in interest.

For the reasons assigned the alternate writ of mandamus heretofore issued is recalled at relator’s cost.


text:
    No. 11,448
    Orleans
    STATE EX REL. DURIEU v. NEW ORLEANS LAND CO. RENECKY; INTERVENOR
    (May 21, 1928. Opinion and Decree.)

      (Syllabus by the Court)

    1, Louisiana Digest — Appeal—Par. 261, 514, 515.
    The suspensive appeal having been taken more than ten days (exclusive of holidays) after the signing of the judgment, under Art. 575 of the Code of Practice, it must be dismissed.
    Appeal from Civil District Court, Div. “C.” Hon. W. Catesby Jones, Judge.
    Action by The State ex rel. Emile Durieu and Arthur Durieu against New Orleans Land Company. Joseph E. Renecky, Intervenor.
    There was judgment for defendant and iplaintiff appealed.
    Appeal dismissed.
    C. S. Hebert, of New Orleans, attorney for relators, appellants.
    Anna Judge Yeters, of New Orleans, attorney for intervenor.
    W. O. Hart, of New Orleans, attorney for defendant, appellee.
   JONES, J.

The judgment appealed from was rendered on February 6, 1928, and was signed on February 27,1928. The suspensive appeal (and also a devolutive appeal) was not applied for until March • 12, 1928. Joseph E. Renecky, Intervenor, in whose favor the judgment of the lower court was rendered, filed a motion to dismiss the suspensive appeal on the grounds that it was not taken within the ten days al-' lowed by law.

Article 575 of the Code of Practice, which prescribes the time within which an appeal must be taken in order to be suspensive, reads as follows;

“If the appeal has been taken within ten days, not including Sundays, it shall stay execution and all further proceedings.”

As the judgment in this case was signed on Monday, February 27, 1928, and there was only one Sunday intervening, to-wit, March 4th and no" legal holidays, from Tuesday, February 28th and eliminating Sunday, March 4th, the ten days expired on Thursday, March 8th.

See Beuhler vs. Beuhler Realty Co., 155 La. 319, 99 So. 276; Mundy vs. Phillips, 142 La. 180, 76 So. 602; Barrow vs. Caffery, 161 La. 778, 109 So. 488.

The suspensive appeal having been taken more than ten days (exclusive of holidays) after the sighing of the judgment, it is ordered, adjudged and decreed that the suspensive appeal be dismissed.


text:
    No. 11,396
    Orleans
    OWENS v. WOODS
    (March 27, 1928. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Elections by the People — Par. 49, 64, 83.
    After a critical examination of the ballots and elimination of spoiled ballots for reasons to be hereafter committed to writing, we have come to the conclusion that the defendant and appellee still has a majority over the plaintiff and appellant.
    2. Louisiana Digest — Elections by the People — Par. 49, 63, 64.
    In disputed election cases light pencil marks, or slightly irregular crosses or faint erasures on ballots ,not calculated to serve as marks of identification will not invalidate ballots.
    Appeal from Civil District Court, Div. “E.” Hon. Wm. H. Byrnes, Judge.
    Action by Prank J. Owens'’ against Charles J. Woods.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    J. T. Prowell, John C. Davey, of New Orleans, attorneys for plaintiff, appellant.
    Rene Yiosca, P. C. Querens, of New Orleans, attorneys for defendant, appellee.
   CLAIBORNE, J.

Plaintiff and defendant were candidates for the House of Representatives from the Second Ward, Parish of Orleans, at the second Democratic primary held on February 28, 1928.

The official returns, as promulgated by the Orleans Parish Democratic Executive Committee gave plaintiff nine hundred fifty-nine (959) votes and defendant nine hundred sixty-five (965) votes.

The Parish Committee declared defendant the nominee for the office by a majority of six (6) votes. Plaintiff thereupon filed this suit against defendant and the Orleans Parish Democratic Executive Committee to have the action of Parish Committee set aside and be declared the nominee.

The material allegations of his petition are substantially as follows:

(1) That the true and correct returns will show that he received over one thousand (1,000) votes and defendant less than nine hundred (900).

(2) In Precinct 2, although poll list shows two hundred thirteen (213) electors voted, tally sheet shows only two hundred seven (207) ballot's were counted, with no notation of spoiled ballots; these six (6)votes were cast for him, and the commissioners counted ballots illegally cast in favor of defendant.

(3) In Precinct 6, all commissioners did not sign tally sheet or poll list and though poll list shows one hundred sixteen (116) electors voted, tally sheet shows only one hundred thirteen (113) ballots were counted; these three (3) ballots were cast for him and commissioners counted illegal ballots for defendant.

(4) In Precinct 7, there was a discrepancy of five (5) votes between the poll list and tally sheet, which five (5) votes were east for him, illegal votes were cast for defendant and persons were allowed to vote in this precinct who were not entitled to vote.

(5) In Precinct 8, there was again a discrepancy of five (5) votes between the poll list and tally, which five (5) votes were cast for him, and again illegal votes were cast for defendant.

(6) In Precinct 9, there was again a discrepancy between the poll list and tally sheet of five (5) votes, which five (5) votes were cast for him, ballots were given out in rotation in direct violation of law, “endless chain” was worked, number of ballots were changed after they were put down on poll list and no record was kept on poll list of the number of poll tax receipts or registration certificates as requested by law, election was held illegally and whole box should be rejected.

(7) In Precinct 10, there was -again a discrepancy between poll list and tally sheet of six (6) votes, which six (6) votes were cast for him; all commissioners did not sign poll list and tally sheets and they did not keep numbers of poll tax receipts and registration certificates; ballots were given out in rotation and commissioners allowed deputy sheriff and others without right to enter the room where election was held and interfere with the voting; commissioners allowed eight (8) persons (whose ñames are given) to vote, who had no right to vote; that Edward Burke, supposed to be deputy sheriff, assumed charge of the polls, bullied commissioners and intimidated the voters; that election was entirely illegal and all the votes should be. rejected; that commissioners did not count the ballots and did not keep poll list as required by law; they permitted Deputy Sheriff Burkes to handle all the ballots when poll closed and made up tally sheets in advance of opening ballot box.

(8)That it is necessary for court to order boxes in Precincts 2, 6, 7 and 8 opened and votes recounted on account of aforesaid fraud; that the ballots in Precincts 9 and 10 should be entirely rejected, because all laws pertaining to elections were therein violated and he should be declared nominee.

To this petition defendant filed exceptions of misjoinder, non-joinder and no right or cause of action, annexing 'certified official returns from all ten (10) precincts in the ward and also certified copies of official returns of first primary held January 17, 1928. At same time defendant answered denying charges of fraud and irregularity on the part of defendant and declaring that defendant actually received more votes than plaintiff and in the alternative and only for further answer by way of reconventional demand defendant averred that a certain lady by name of Mrs. 'Claude Simons had voted illegally for plaintiff without proper poll tax for 1926 and her vote should be deducted. That numerous spoiled ballots were counted for plaintiff, ballots which were identified ballots marked . with other than a cross mark as required by law, ballots in which cross mark was not placed in space fixed by law, ballots marked in ink and blue pencil, ballots with numbers attached and other illegal ballots, all of which amounted to fifteen (15) votes in each of Precincts 1, 3 and 4 of Ward 2, while similar ballots in favor of defendant were not counted. ,

Defendant further averred that if it should become necessary, because of any possible change in results, then the ballots in Precincts 1, 3 and 4 should be recounted and all legal ballots in favor of defendant counted for him and all illegal ballots in favor of plaintiff rejected; that plaintiff was illegally given one hundred fifty (150) votes in Precinct 4 when the tally sheet shows he received only one hundred forty-five (145), which five (5) votes should be rejected.

Defendant then prayed that suit be dismissed; that the official count be upheld, or if, in the alternative, it should be necessary then the ballots in Precincts 1, 3 and 4 be counted.

The Orleans Parish Committee answered that it had no interest in the matter and attached to its answer certified copy of all its minute entries relative to this contest.

The trial Judge maintained the exception of misjoinder and dismissed the suit as to Parish Committee. Though he stated that he realized the question was close, he overruled exception of no cause of action and declined to throw out boxes nine and ten on the ground that charges of fraud were too vague. He then appointed on recommendation of opposing attorney, commissioners to count the ballots in boxes two, six, seven, eight, nine and ten. After deducting five (5) ballots from plaintiff in Precinct 4 on the ground that the tally sheet from that precinct sent to the Parish Committee showed only one hundred forty-five (145) votes, and passing on seventy-four (74) disputed ballots, he gave judgment for defendant declaring that he had nine hundred forty-five (945) votes and plaintiff nine hundred thirty-five (935).

In reaching this conclusion, trial Judge credited Woods with twenty-three (23) of the disputed ballots and Owens with nineteen (19). He rejected as illegal twenty-seven (27) votes which had been given to Woods and ten (10) which had been given to Owens.

From that judgment plaintiff has appealed.

In this Court defendant urges emphatically his exception of no cause of action and cites many decisions of the appellate courts to the effect that general allegations as to fraud and illegality in elections do not suffice in petitions of this sort, 'but specific details should be set forth.

While we recognize with the trial Judge that the question is a close one and the margin narrow, because the specifications of illegality are not set forth in detail, we think that these defects were iproperly subject more to an exception of vagueness than to one of no cause of action and that taken as a whole the petition did allege a cause of action. This conclusion is based on the fact that the rights of defendant were substantially protected by the trial Judge in his rulings as to admissibility of evidence tendered by plaintiff and the right to amend where no cause of action is based on insufficiency of allegation has been liberally extended in recent cases.

See James vs. New Orleans, 151 La. 480, 91 So. 846; Southern Equipment Co. vs. Cardwell Stove Co., 154 La. 109, 97 So. 332; Stone vs. Crescent Encampment Co., Orleans App. Digest, 131.

Although, plaintiff’s brief states that seventy-nine (79) ballots were protested before the trial Judge of which fifty (50) were cast for defendant and twenty-nine (29) for plaintiff, we find in the record seventy-three (73) ballots which added to the five (5) in contest from Precinct 4 make a total of seventy-eight (78).

In passing on the legality of the seventy-three (73) disputed ballots, we have been guided by the decision of the Supreme Court in the case of Perez vs. Cognevich, 156 La. 331, 100 So. 444, and by that of this Court in the recent case of Nolan vs. Martin, decided on March ___, 1928, not yet reported.

In the Perez case the Supreme Court held a.s follows:

(1) Ballot with pencil dot slightly below and to the left of one of the squares was not invalid as marked for identification.

(2) Irregular cross marks on ballot did not invalidate it, as cross mark was not required to be perfect.

(3) Erasures on ballot, which might serve as identification marks did invalidate it.

Of the fifteen (15) disputed ballots from the Second Precinct, we found that eight of those cast for Owens were good and three (3) bad, that two (2) of those cast for Woods were good and two (2) bad.

Of the forty-one (41) disputed votes from the Seventh Precinct, we found eight (8) of those cast for Owens good and two (2) bad, twenty-seven (27) of those cast for Woods good and four (4) bad. Most of these ballots had been disputed, because • they showed more or less plainly that the cross mark- had been erased in the square, but we did not consider these erasures sufficiently plain to serve as identification marks, particularly where one box contained so many similar erasures.

In Precinct 8, of the three (3) disputed ballots, we found two (2) cast for Owens good and one (1) cast for Woods bad.

In Precinct 9, of the four (4) disputed votes we found three (3) cast for Owens good and one (1) for Woods good.

In Precinct 10, of the ten (10) disputed votes, we found three (3) cast for Owens good, four (4) cast fqr Woods good and three (3) bad.

To sum up, excluding the fifteen (15) illegal ballots, we credit Woods with thirty-four (34) of the disputed ballots and Owens with twenty-four (24), thereby giving Woods eleven (11) more' ballots and Owens only five (5) more than the trial Judge and increasing his majority to sixteen.

As Woods would still have a majority, even if we gave Owens the five (5) votes from Precinct 4, we do not find it necessary to decide the question as to whether the actual number of strokes on the tally sheet should control or the total figure as written out by the Commissioners.

For . above reasons the judgment is affirmed.