text:
    No. 10,846
    Orleans
    NEBEL v. WISE & MILLER
    (May 9, 1927. Opinion and Decree.)
    (May 23, 1927. Rehearing Refused.)
    (July 12, 1927. Writs of Certiorari and Review Denied by Supreme Court.)

      (Syllabus by the Court)

    1. Louisiana Digest — Brokers—Par. 21, 23.
    To prevent a salesman from recovering his contractual interest in a commission on sale of properties listed by him with defendants, defendants must prove that he had knowledge of and acquiesced in the rule providing that interest in commissions ceased with employment.
    Appeal from First City Court, Division “C”. Hon. W. V. Seeber, Judge.
    Action by Frank J. Nebel against Wise & Miller.
    There was judgment for defendants and plaintiff appealed.
    Judgment reversed.

      Gaspar Bossetta, of New Orleans, attorney for plaintiff, appellant.
    P. B. Preeland, of New Orleans, attorney for defendants, appellees.
   JONES, J.

This is a suit for two hundred twenty-two and 00-100 ($222.00) dollars, one-third of the commission paid defendants. for sale of certain properties which had been listed by plaintiff while working as salesman for defendants.

Defendants admit the listing by plaintiff of' the sale and receipt of commission, but deny plaintiff’s claim, because the properties were sold by another salesman of their office after defendant had left them.

They further aver in their answer that under the verdal contract of employment and under the rules and regulations of defendants’ office which were well known to plaintiff, it was entirely agreed and understood that plaintiff should have no further interest in listings made by him after he left their employment.

There was judgment for defendants and plaintiff has appealed.

As the listing of the properties by plaintiff, the subsequent sale by another employee of defendants and receipt of commission by them is admitted, the question before us is whether plaintiff’s contract for one-third of commission on property listed by him was limited in time to the duration of his employment.

On this point Miller, the defendant, corroborates plaintiff by testifying that nothing was said at time . of employment about plaintiff’s losing his interest in his listings upon leaving the firm, but both Miller and three salesmen, who were employed by the firm at the time of the trial, testify that such was the custom of the office.

Barnes says that he was so told when he was employed.

Evans and Guidry say that they only gained this information at a meeting of the salesmen after their employment.

Stokes, a witness for plaintiff, who sought employment from the firm three days before the trial, says that Miller did not mention any such limitation in outlining to him the terms of employment.

The record is bare of proof that any such custom prevailed generally in the local real estate business and there is no proof that any such rule of defendants’ office was ever brought to the notice of plaintiff.

Article 3 of the Civil! Code reads as follows:

“Customs result from a long series of actions constantly repeated, which have, by such repetition, and by uninterrupted acquiescence, acquired the force of a tacit and common consent.”

Article 1966 of the Civil Code reads as follows:

“By the word usage, mentioned in the preceding articles, is meant that which. is generally practiced in affairs of the same nature with that which forms the subject of the contract.
“House rent in some cities is generally paid by the month; in others by the quarter. In a contract for the hire of a house, without expressing when the rent was to be paid, the deficiency would be supplied by proof of the usage, but if a contrary intent appear in the contract, the usage would not contravene it.”

These articles show custom or usage may be applied to the solution of ambiguous contracts only when both parties to the contract are thoroughly familiar with the custom, and we think that proof of knowledge in plaintiff of the custom and acquiescence therein after such knowledge are essential to sustain the defense in this case.

Moreover, it will be noted in this case that a special custom or rule of the office is relied on not to solve an ambiguity in a contract but to establish a limitation or qualification in the terms of the agreement.

The defendant, after admitting frankly that he agreed to pay one-third of the commission for listing property, says that nothing was said about the loss of the commission in the event of severance of relations prior to sale.

As listing of property is an essential step in the consummation of every real estate sale, such service would' certainly seem entitled to compensation and, therefore, necessarily included in a general contract covering all payments to real estate salesmen, unless distinctly excluded. The limitation of such a general contract on this evidence will be not only an unwarranted extension but a complete misapplication of the law and practice with regard to custom in this state.

Defendant argues that plaintiff waived his claim, if he ever had any, because he said when Miller told him that he (Miller) would have to make payment personally:

“If that 'is the way you feel about it, alright.”

This seems to us merely a recognition by plaintiff of the fact that further discussion of the matter with defendant at that time was ill-advised and at best merely a temporary acquiescence or intention to relinquish, which intention was later changed. The presumption is against voluntary and gratuitous abandonment of a right and the intention to do so must be clearly established.

For above reasons the judgment is reversed. It is now ordered, adjudged and decreed that there be judgment in favor of plaintif, Frank J. Nebel, and against defendants, C. M. Wise and W. E. Miller, jointly and insólido, in the sum of two hundred twenty-two and 00-100 ($222.00) dollars, with legal interest from demand.


source: Caselaw Access Project

author: JONES, J.

license: Public Domain

text:
    No. 9747
    Orleans
    LESLIE CO. v. MICHEL BOUCHON CANNING CO.
    (May 23, 1927. Opinion and Decree.)
    (June 6, 1927. Rehearing Refused.)
    (July 12, 1927. Writ of Certiorari and. Review Denied in Supreme Court.)

      (Syllabus by the Court)

    1. Louisiana Digest — Obligations—Par. 12,. 181.
    When plaintiff sues on a contract, the-burden is on him to prove the contract. by a preponderance of the evidence, and when he fails to do so, his suit will be dismissed.
    Appeal from Civil District' Court, Division “A”. Plon. Hugh C. Cage, Judge.
    Action by John H. Leslie Company against Michel Bouchon Canning Company.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Dart, Kernan & Dart, Louis C. Guidry, of New Orleans, attorneys for plaintiff, appellant.
    Oliver S. Livaudais, of New Orleans, attorneys for defendant, appellee.
   JONES, J.

This is a suit for fourteen hundred ($1400.00) dollars, damages for breach of contract to deliver shrimp.

Plaintiff’s material allegations are as follows: .

(1) That the Hegler Commerce Company, acting as its agent, on May 6, 1922, by telegram to E. D. Cambon Co., brokers of New Orleans, offered to buy a carload of shrimp deliverable on or before June 15th, at one and 15-100 ($1.15) dollars factory subject to approval of samples;

(2) That the Cambon Co., on May 6, 1922, answered as follows:

“Wire received. Have booked John Leslie minimum car truck marked shrimp one fifteen factory shipment between now and June 15th, seventy-five percent wet, .twenty-five percent dry. Account Michel Bougon, Empire, La. Will mail samples Monday. Try sell spot car. Only thing available.”

(3) That on the same day the Cambon Co. confirmed the sale in writing as follows:

“New Orleans, May 6, 1922.
“Sold to John H. Leslie Co., Chicago, Ills.
“Account of Michel Bougois Canning Co., Empire, La.
“750 cans 48 No. 1 French Market Wet Shrimp at $1.15 per dz.
“250 cans 48 No. 1 French Market Dry Shrimp at $1.15 per dz.
“F.O.B. factory.
“E. D. CAMBON CO.,
“Per E. D. Cambon.”

(4) That Cambon & Co., acting under the instructions of petitioner’s brokers, dealt with Weil & Trapani, New Orleans brokers, who represented Michel Boucon Canning Co., and that on May 6, 1922, Weil & Trapani, being duly authorized by defendant, confirmed above sale on same terms and in substantially the same words.

Defendant filed an exception of no cause of action which was overruled, and then an answer denying that it ever authorized Weil & Trapani to enter into the contract and specially averring that these brokers had notified it of this order, “which would have been filled ‘subject to pack’ if shrimp had been available”.

There was judgment below for defendant and plaintiff has appealed.

All the letters and telegrams referring to the contract are in the record, and they show nothing from defendant, except a letter of October 3, 1922, to plaintiff’s attorneys, in which defendant says that it had no knowledge of ¡this matter, except that an order was sent in which it could not fill before the close of the season in June. .

The crucial issue before this court is the authorization of the sales contract.

"Weil testifies that his firm had acted as broker several times in sales made by defendant through Leovy; that he had no written authorization, but solicited orders from buyers, and the defendant fixed the price; that sometimes orders were accepted and sometimes rejected; that, if he succeeded in getting an order, he wrote up a sales memorandum like the one quoted above and mailed it to the defendant and considered it accepted by their failure to notify him of rejection; that he had no authority to make sales; that sales were made sometimes by defendant subject to pack and sometimes straight, according to defendant’s wishes; that on May 6, 1922, he had phoned Leovy, the president, to come to his office, had told him that he had an order for a car of shrimp; had asked him if he would accept it, and he had said yes; that he then wrote up the sales memorandum after Leovy left and sent it to Cambon & Co.; later he mailed a copy to defendant, but heard nothing from it.

Certainly it would have been more businesslike to have had Leovy approve the sales memorandum before he left the office, but even if this were overlooked, it hardly justifies his failure to follow up the order, when its receipt was never acknowledged by the factory, and he knew that orders were sometimes accepted subject to pack.

Leovy, the president, remembers the interview and the order, but states positively that he followed his invariable custom and accepted the order subject to pack (as was customary with all shrimp people), along with an order from Texas which was not filled until fall; that the letter of Wilbur, then vice-president and general manager, to plaintiff’s attorneys of date October 3, 1922, (referred to above), correctly states the facts; that on that date they had no shrimp, that the “pack was bad up to that time and got worse as it went on, and that year’s catch was the worst I have ever known.”

When shown an order blank of the Julian Packing Co., containing the clause subject to pack, he testified' that defendant always used the same form and they were used by all packers; that Weil did not mention the name of Leslie & Co., as he preferred to keep it quiet; that he left ,the state shortly after that interview and Wilbur had taken charge.

Hihgle, a director of defendant, who had been secretary in May, 1922, testified that all sales were made subject to pack; that as far as he knew the board had never authorized. anyone to sell shrimp in any other way; that Wilbur had left the company before the trial on account of a serious accident and had gone to Missouri in January, 1924.

The above analysis shows that Weil’s statement as to acceptance of contract is contradicted by Leovy and that Leovy is confirmed in part by the letter of Wilbur and by Hingle.

It would certainly have been unbusinesslike in Leovy to accept this order unconditionally when he had no shrimp on hand, and the pack had been bad up to that time. We think that all the circumstances tend to confirm Leovy’s statement that he accepted the order conditionally and that Weil’s failure to have the sales contract confirmed then and there was largely responsible for ihe misunderstanding.

For above .reasons the judgment is affirmed.


text:
    No. 10,425
    Orleans
    BURMASTER v. T. & P. M. P. TERMINAL R. R. OF NEW ORLEANS
    (April 11, 1927. Opinion and Decree.)
    (May 23, 1927. Rehearing Refused.)
    (July 12, 1927. Writ of Certiorari and Review Denied by Supreme Court.)

      (Syllabus by the Court)

    1. Louisiana Digest — Evidence—Par. 59 — ■ Master and Servant — Par. 144.
    In order to recover damages for personal injuries in a suit against a carrier under the Federal Employers’ Liability Act and the Federal Boiler Inspection Act plaintiff must show that the carrier’s negligence contributed to cause the injury.
    2. Louisiana Digest — Master and Servant —Par. 144, 158.
    Where the circumstantial evidence is relied on to prove that the carrier’s negligence was the proximate cause of the injury the circumstances themselves must be proved and not presumed.
    3.Louisiana Digest — Negligence—Par. 42, 43. .
    A judgment for plaintiff in a case to recover damages for personal injury cannot be sustained where the record leaves the question of negligence uncertain.
    Appeal from Twenty-fourth Judicial District Court, Parish of Jefferson. Hon. R. L. Rivarde, Judge.
    Action by John J Burmaster against Texas & Paeifie-Missouri Pacific Terminal Railroad of New Orleans.
    There was judgment for plaintiff and defendant appealed.
    Suit dismissed.
    F. A. Middleton, Chas. J. Larkin, of New Orleans, attorneys for plaintiff, appellee.
    Dufour & St. Paul, Jno. E. Fleury, of New Orleans, attorneys for defendant, appellant.
   OPINION

JONES, J.

This is a suit filed May 29, 1922, by a locomotive engineer for forty-three thousand, eight hundred fifty dollars ($43,850) damages for personal injury caused by explosion of his engine while engaged in interstate commerce and switching cars loaded with bananas from the yards of defendant in New Orleans to their transfer boat on the Mississippi River.

Defendant answered admitting the employment and the explosion but denying all negligence and especially averring that plaintiff’s injuries were the result of his own gross carelessness, negligence and imprudence.

The case was tried before a jury on December 11th and 14th, 1925, and a verdict was given for the amount claimed. On December 18th the judge of the lower court rendered judgment based on that verdict.

On January 11, 1926, the motion for new trial was refused in the following words:

“When after hearing the argument of counsel in this case and considering the pleadings filed herein, the court has come to the conclusion that the motion for a new trial should be refused. The court feels that in view of the fact that the Supreme Court has said that it will consider the facts in the case and the Court of Appeals has likewise said that it will consider the facts in the case, and I am of the opinion that in view of the fact that the jury has rendered the verdict as it did, after hearing the evidence, and also because this case will necessarily be reviewed by the Court of Appeals, that the trial should be refused and it is so ordered.”

On January 13, 1926, a suspensive appeal was taken to this court.

The suit was brought under the Federal Employers’ Liability Act, passed by Congress on April 22, 1908, C. 149, 35 Stat. 65, 66 (Comp. St. Par. 8569) and under the Federal Boiler Inspection Act of Congress of February 17, 1911, as amended March 4, 1915 (Comp. St. 8630-8639).

Paragraph VI of plaintiff’s petition, the crucial paragraph in so far as this suit is concerned, reads as follows:

“That the explosion in said engine was caused by the gross fault, negligence and want of care of the Trans-Mississippi Terminal Railroad Co., its officers, agents and employees that the engine furnished petitioner was not safe or in good condition, but was defective, badly constructed and in need of repair; that the crown sheet was defective and not sufficiently strong to withstand the pressure of steam, and was not properly fastened that the boiler and injectors were in bad condition; that the water glass was in bad condition, and that the engine was not equipped with the necessary safety appliances or safeguards against accident as required by law; that defendant neglected to provide the .said engine with the necessary appurtenances, and failed to take the usual and necessary steps to inspect and repair the same, although it knew or should have known the condition thereof; and that petitioner had no knowledge of the defective condition of said engine or of the neglect of defendant to keep the same in good condition, and was not guilty of any fault -or negligence which in any manner contributed to the injuries suffered by him.”

The following facts are undisputed:

1. That plaintiff, who had been employed by defendant company or its subsidiaries for fourteen years as fireman and eleven years as engineer, had had charge of Engine 319 for a period of thirty or thirty-five minutes when the boiler exploded about two o’clock on the morning of June 1, 1921, on the incline leading from the ferry boat to the railroad yard.
2. That he was discharged by the company on account of this explosion.
3. That his fireman, Israel, who had been employed by the company about four years at the time of the accident has been made an engineer and was still in the employ at the time of the trial.
4. That Engine 319 was taken out of the round house of the company by the hostler on the west bank of the river shortly after midnight with steam up; that the injectors and water glass were then in good condition and working properly; that the engine was brought by a switch engine to the ferry boat in charge of Charles Evans, engine watchman, a colored man who says that he. opened the water glass at the .bottom, turned the water out and then shut water off and the water came back in the glass showing two gauges of water; that Hostler Sims, who was on the engine at the t-ime, turned on the right injector and he turned on the left; that he had been lighting fires at the roundhouse for five years.
5. Evans swears that' you can see if an injector is not working by the way she primes and by the water flowing outside and the injector’s kicking the steam back in the tank if “she isn’t bringing up her water” and that on the way to the boat he had the injector on and was getting up steam; that he heard the water and the whistle and that she had water enough for two or three hours; that he put the fires out going down the incline and left the engine with 145 pounds of steam.
6. That the boat crossed the river with the engine and a yard master named Dawson, who was not in the employ of the company and did not testify at the trial, lighted the fire in the engine, hauled some cars off the ferry boat and placed the engine u,pon a side track in the yard.
7. That plaintiff then came up, tried his gauge cocks which showed two gauges of water and went around the engine with his oil can before he took charge of the engine; that he then did some switching, took hold of some cars to be placed on the transfer boat, and having lined them up, took them on the transfer boat and placed them in the proper position upon the boat and returned to a position near the office of the general yardmaster, where he remained about ten minutes; that he then switched another string of cars and took them down to the transfer boat and was returning up the incline leading from the transfer boat to the city yards when he first heard a sound like a bursted air hose and a second or two later an explosion occurred which blew him up against the top of the iron cab, after which he fell out upon the incline and across the iron rail, striking his leg upon the rail; that the explosion was attended with considerable gas, smoke, soot and brick dust from the broken fire box; that he inhaled considerable of this mixture and complained about it immediately afterward and while in the Presbyterian Hospital, where he was taken and remained for six days.

Although there are many charges of negligence and much evidence was taken in an attempt to sustain these charges, it was admitted by plaintiff’s attorney after a detailed thorough argument in this court that the explosion was caused by letting the water get too low in the boiler and the issue was reduced to the cause of this scarcity of water.

Plaintiff’s brief outlines the negligence charged as follows:

1st. Because Engine 319, which exploded, was equipped with a faulty watergiass designed for the information and protection of the engineer and fireman in charge of said engine, and which equipment, being faulty, supplied to the engineer and fireman false information; and with faulty injectors which failed to replenish the boiler when operated.
2nd. Because the said mechanism referred to in paragraph 1 was disarranged and made faulty and unreliable by the acts of one Evans, an ignorant negro, who was placed in charge of said engine from the time that it left the water tank in the Gouldsboro yards until it was placed upon the transfer boat for removal •to the New Orleans side of the river.
' 3rd. Because said mechanism above referred to in paragraphs 1 and 2 was made faulty and unreliable and disarranged by one Dawson, yardmaster of the defendant company, in the city of New Orleans . yards, who, without authority, and against the rules of the company, went upon the transfer boat when it landed on the New Orleans side of the river, built the fires in said engine, operated said engine and equipment, in moving five cars from said transfer boat and up to and into the said railroad yards, switching said cars upon one track and then cutting loose from said cars and proceeding up another track.

Defendant argues that the evidence shows the following facts:

1. That even if the water-glass was defective, which is denied, plaintiff paid no attention to it, but relied entirely on his water gauges to test the amount of water and, therefore, the defect in the water-glass, if any, was not a contributing cause of the accident.
2. That the injectors were working properly and if they had not been carrying water into the boiler, plaintiff would necessarily have known.

On page six of his testimony, plaintiff says, “I tried the gauge cocks again and I asked him (the fireman) did you blow your glass out; he said T blew it out, but it didn’t seem to be working.’ I said ‘don’t depend on that glass with gauge cocks, the safe thing.’ ” And again on page eleven he says, “Your water-glass is not exactly the part to go by, because your gauge cock is the proper thing to go by. When you’ve not got the water in the gauge cocks you can’t have it in the water-glass. I do not depend on the water-glass.” And again on page twenty-six, “I stood there for ten minutes with both injectors working. I tried my gauge cocks again and said, “Day don’t depend on the water-glass, I have got the gauge cocks that are safer; here are two gauges of water.”

These above extracts from plaintiff’s testimony show clearly that he did not rely on the water-glass, but on the water gauges.

In Chicago, M. & St. P. R. Co. vs. Coogan, 46 Sup. Court Reporter, p. 565, decided June 1, 1926, where a brakeman was killed while coupling the air hose of an interstate train and the Supreme Court of Minnesota had affirmed the judgment of the trial court, Justice Butler in a decision remanding the case uses the following words:

“By the Federal Employers’ Liability Act, Congress took possession of the field of employers’ liability to employees in interstate transportation by rail; and all state laws upon that subject were superseded. Second Employers’ Liability Cases (Mondou vs. New York, N. H. & H. R. Co.) 223 U. S. 1, 55, 56 L. Ed. 327, 348, 38 L. R. A. (N. S.) 44, 32 Sup. Ct. Rep. 167, I. N. C. C. A. 875; Seaboard Air Line R. Co. vs. Horton, 233 U. S. 492, 501, 58 L. Ed. 1062, 1068, L. R. A. 1915 C. 1, 34 Sup. Ct. Rep. 635, Ann. Cas. 1915 B, 475, 8 N. C. C. A. 834. The rights and obligations of the petitioner depend upon that act and applicable principles of common law as interpreted by the Federal Courts. The employer is liable for injury or death resulting in whole or in (part from the negligence specified in the act; and proof of such negligence is essential to recovery. The kind or amount of evidence required to establish it is not subject to the control of the several states. This court will examine the record, and if it is found that a? a matter of law, the evidence is not sufficient to sustain a finding that the carrier’s negligence was a cause of the death, judgment against the carrier will be reversed. St. Louis, I. M. & S. R. Co. vs. McWhirter, 229 U. S. 265, 277, 57 L. Ed. 1179, 1186, 33 Sup. Ct. Rep. 858; New Orleans & N. E. R. Co. vs. Harris, 247 U. S. 367, 371, 62 L. Ed. 1167, 1170, 38 Sup. Ct. Rep. 535; New Orleans & N. E. R. Co. vs. Scarlet, 249 U. S. 528, 63 L. Ed. 752, 39 Sup. Ct. Rep. 369.”
“The evidence is sufficient to warrant a finding that there was a breach of duty in this respect. But the precise question for decision is whether the condition of the pipe caused or contributed to cause the death of deceased.
“Whenever circumstantial evidence is relied on to prove a fact, the circumstances must be proved and not themselves presumed. (U. S. vs. Ross, 92 U. S. 281, Manning vs. John Hancock Mut. Life Ins. Co., 100 U. S. 693.)
“A judgment for plaintiff in an action to recover damages for wrongful death cannot be sustained where the record leaves the question of negligence in the realm of speculation and conjecture.”

In Copeland vs. Hines, 269 F. 363:

“A mere conjecture standing upon a basis of uncertain inference does not make substantial evidence.”

And in St. Louis & San Francisco Ry Co. vs. Mills, 271 U. S. 344-70, Law Ed. 979, decided May 24, 1926, Justice Stone holds in part as follows:

“One seeking to 'recover damages for death of an employee because of neglect on the part of the employer to furnish adequate protection against the violence of strikers has the burden of proving the alleged negligence.

“Nor is there evidence from which the jury might infer that petitioner’s failure to provide an additional guard or guards, was the proximate cause of decedent’s death. Whether one or more additional guards would have prevented the killing is in the highest degree speculative. The undisputed evidence_ is that the shooting was done by one o"r more of three men standing on the rear platform of the car. They had come there after decedent and his companions had seated themselves in the car. Without warning they fired a volley into the car and fled. Decedent and his guard were armed, but had no opportunity to defend themselves. On such a state of facts the jury should have been permitted to conjecture what might have happened if an additional guard had been present. See Patton vs. Texas & Pac. R. Co., supra; Reading Co. vs. Boyer (C. A. 3d 6 F. (2d) 185; Midland Valley R. Co. vs. Fulgham, L. R. A. 1917 E. 1, 104 C. C. A. 151, 181 Fed. 91; Laidlaw vs. Sage, 158 N. Y. 73, 44 L. R. A. 216, 52 N. E. 679 (348). The evidence must at least point to the essential fact which the jury is required to find in order to sustain the verdict.”

See also Long vs. N. Y. Central, 255 U. S. 455; L. & N. vs. Layton, 243 U. S. 617; Davis vs. Wolff, 263 U. S. 239.

As these decisions, the latest of the highest court, show clearly that the plaintiff must not only prove negligence but also that the negligence was the proximate cause of the accident, we conclude that plaintiff has failed to make out his case on this point.

In the case of Baltimore & O. R. Co. vs. Groeger, 266 U. S. 521, where a boiler had blown up and the widow of the engineer as administratrix of his estate brought suit under the 2 statutes relied on here, and the U. S. District Court for the Northern District of Ohio gave judgment for plaintiff and the judgment was affirmed by the Circuit Court of Appeals, Justice Butler uses the following language:

“It is a well-established rule that the master is not bound to furnish the latest or best tools or appliances for the use of his servants. That rule is applicable here, and we hold that defendant was not liable for failure to furnish the best mechanical contrivances and inventions or to discard appliances upon discovery of later improvements, provided the boiler was in proper condition and safe to operate, as required by the statute. Chicago & Northwestern Ry. Co. vs. Bower, 241 U. S. 470, 474, 36 S. Ct., 624, 60 L. Ed. 1107; Patton vs. Texas & Pacific R. R. Co., 179 U. S. 658, 664, 21 S. Ct., 275, 45 L. Ed., 361; Washington, Etc., Railway Co. vs. McDade, 135 U. S. 554, 570, 10 S. Ct., 1044, 34 L. Ed., 235.”

This case shows that a mere boiler explosion does not prove negligence. Otherwise, the Supreme Court would not have remanded the case.

On the second question as to the injectors, plaintiff’s witnesses testified as follows:

Plaintiff transcript, Page 6:

“I pulled up to the yardmaster’s office, when the fireman said to me, ‘John, try your injector, mine is not working sufficient’; I said ‘alright.’ I stopped the engine, put my injector on, she • worked, and I tried the gauge cocks. I said to my fireman, ‘Look, I’m got two gauges of water, try your injector.’ He waited a while, and finally got his on. I said, ‘Is yours working?’ He said ‘yes.’ ”

Plaintiff transcript, Page 13:

“Q. You also spoke of working your injectors, explain what you mean by that.
“A. If you take the hot and cold water, and there is a primer, some have, two, some have three, and some have one, you pull it to a certain distance until you hear the cold water run, and you pull it wide, and it puts all the cold water in. There are three little levers on the side of an injector. One is to leave the water in and one, the second one, is the primer, to get the steam out and cold water into the tank, and when that connects together the injector will give a different sound, to show that you have water. Then you turn the steam on, and that shoots it back into the boiler, and shoots this water up. You leave the one on the bottom set, and if your injector is not working right, giving too much water, they will put the water on the ground, and you have to raise that one up at least a little bit, which takes the water back in the boiler. That is an indication that you are wasting your water on the ground; you are putting it from the tank into the boiler. This injector that I had that night, I don’t know whether it was a Monitor or what, when I put that injector on she started to lose the water out of what we call the overflow pipe. I looked out of the cab window, and cut down until she picked this water u® and put it in the boiler, and I went to work and loaded these bananas.”
“Q. When you examine the water, and think it is getting to a point where you should supply more water, you turn on these injectors?
“A. Yes, sir.

Plaintiff transcript, Page 14:

“The fireman told me his injector wasn’t working right, to put my injector on. I stopped there fully ten minutes, with the engine on a level, tried the gauge cocks, and found two gauges of water. I asked the fireman to blow his glass out, did he blow his glass out, and he said, ‘Yes, but it is not working ¡properly, put your injector on.’ My injector worked, and I gave him chance to put his on, because his wasn’t working right. By the time he got his injector working right I said, ‘Is your water working?’ and he said ‘Yes.’ I stood there for ten minutes, with both injectors working.”

Plaintiff Transcript, Page 28:

“A. I saw him put his injector on. The boiler is between. I couldn’t see from my side, you understand, because the injector is away up in the front of the cab, and the boiler is in the cab. I could hear it from my side, how it worked, but couldn’t s'ee him put it on.
“Q. You could hear it from your side?
“A. Yes, sir.
“Q. Before you went on boat, did fireman say anything to you about the water?
“A. About the water?
“Q. Yes.
“A. No, sir; I asked him did he have his injector on and he said, ‘Yes,’ and I went on the boat. When I pulled off the boat I tried my gauge cocks and I said ‘There are two gauges of water, put the injector on.’ At that time he said, ‘My injector wont work, put yours on.’ I stopped the engine then and put mine on. I tried my water and had two gauges of water. I stayed there fully ten minutes. Then he said to me, ‘Mine is working straight now.’ That gave him ample time. Sometimes you take these injectors and you work them that way and they will get warm and when they get too hot they are liable not to work. I put mine on to give his time to cool off a little bit, while mine cools off.’ Then he blew his his working his was working and mine was working, too. Then I found the two gauges of water standing still and I proceeded to work again.”

Plaintiff transcript, Page 29:

“A. He blew his glass out, tried his injector; then he told me, ‘Put yours on while mines cools off.’ Then he blew his glass out, and said his glass was not registering. I stopped and tried my gauge cocks, which is the safe (part, and I found two gauges of water while I was standing there, giving him .ample time to work his injector. While I was doing that he got his injector to work, with mine still on. Then I asked him, ‘Is your injector working?’ and he said, ‘Yes, mine is on.’ Then I proceeded to finish that boat, that cut of cars, not to delay that boat.
“Q. After he -told you that his injector was not working, did you stop the engine?
“A. Yes, sir.
“Q. Plow long did you stop?
“A. Fully ten minutes; I was there on the level.”

Capdeville (switch foreman) transcript, Page 50:

“A. They (the injectors) were working when they pulled off the boat; you see I loaded the little side of the boat with five cars to go up, I heard the fireman put the injector on.
“Q. That was about how long before the explosion, do you think?
“A. I suppose about fifteen or twenty minutes.”

Israel (the fireman) transcript, Page 62:

“A. He tried his gauge cocks and I put on my injector. '
“Q. Did your injector work?
“A. It did.
“Q. When he tried his gauge cocks, what did he have?
“A. It sounded to me like two gauges of water, but I was on the other side of the engine. Then I put on my injector right away.
“Q. Did Mr: Burmaster put on his injector?
“A. Not then. He hacked up to load the boat, pulled down on the outside and we were coming off the boat and I told Johnny, I said, ‘You better put your injector on, Johnny, this injector looks’ like it’s not putting much water in the boiler.’ I don’t know whether he got his injector on or was trying to put it on, but it wasn’t no time after that that the explosion happened.
“Q. Then, while you were coming off the boat, you attempted to have your injector work and it wasn’t working, is that what you said?
“A. No, it was working.
“Q. I thought you told Johnny your injector was not working?
“A. It was working, but the water wasn’t going in my glass, you know. I was watching the overflow pipe, it wasn’t losing any water, and I told Johnny he better put his on.
“Q. You say you had your injector working, but it wasn’t working, it was not making any headway?
“A. Not in the water glass, no, sir.”

Israel transcript, Page 64:

“Q. I don’t mean to pin you down to minutes; just give us an idea.
“A. I put that injector on three or four times, and shut it off for a little while at a time. The boiler was full of water, and there wasn’t any use of flooding it. I put it on a little while and shut it off and waited a little while and put it on again and shut it off.”

Israel transcript, Page 69:

“Q. You put your injector on, after you blew the water glass out?
“A. Yes.
“Q. Nothing wrong with it?
“A. Apparently nothing wrong with it, you can tell if an injector is not working right; it will lose water through an overflow pipe.
“Q. Did you tell him to put his injector on at any time?
“A. After we were coming off the boat.
“Q. After you were coming off the boat, you told him to put his injector on?
“A. I asked him to put his on, yes.
“Q. Why did you ask him that, Mr. Israel?
“A. It looked like my injector wasn’t bringing any water in the glass. That is all I had to go by, the glass. There are no gauge cocks on the left-hand side of the engine.
“Q. But there are on the engineer’s side?
“A. Yes; the water wasn’t picking up full in the water glass and I said, ‘You better try to put your injector on; my injector don’t look like it is filling her much.’ ”

It is thus seen that plaintiff testifies that the injector will give a different sound *‘to show that you have water,” and “if the injector is giving too much water it will put water on the ground and you have to raise one up the least little bit, which takes the water back in the boiler.”

He also swears that the water ran on the ground when he first put his injector on that night; that “he looked out of the cab window” and t “cut it down until she picked up and put it in the boiler.”

This evidence, far from showing that the injectors were not putting water in the boilers, tends to show, that they were working properly and if they had not been, plaintiff would, have known at once by the water overflowing on the ground.

Attorney for plaintiff, in his brief. admits that defendants proved unquestionably by competent evidence that the injectors were working properly and the water glass*‘was in goo,d condition, when Engine 319 left the round house that morning on its fateful journey, but he argues that defendant was negligent in permitting Evans, the engine watchman, to take the engine to the boat and in permitting the yardmaster, Dawson, to take the engine off thq boat. Tlie evidence shows that it is against the rules of defendant company for a watchman or yardmaster to operate an engine, except in emergencies and there is no proof of an emergency here.

Still there is absolutely no proof that the handling of this engine by either Evans or Dawson had any casual connection with the accident and mere conjectures or suppositions are not sufficient.

Plaintiff’s attorney admits in his brief that the injectors were working at frequent intervals during the entire time that engine operated, but he contends that the injectors must have been out of order, because that is the only rational explanation of the accident which harmonizes and makes consistent all the evidence.

This contention is not tenable, for Robert Oswell, engine inspector, two years a machinist, testifies that he looked at the injectors shortly after the accident and they were both open and apparently working!

O’Connell, the master mechanic of the defendant company for ten years, says he saw the engine at 4 A. M. (about two hours after the accident), that both injectors were open and both appeared to be working; that in compliance with rules of Interstate Commission the cab was boarded up and engine kept statu quo for the government inspection four or five days later; that he then, under instructions from one of these inspectors, had a mechanic try these injectors on another engine of the same kind and they both worked perfectly.

After testifying that this engine could have been exploded in twenty or twenty-five minutes while removing cars from the yard to the ferry boat if the injectors were not properly used, he testifies as follows:

“Q. When a locomotive is filled up — I might refer to Charley Evans, he said he heard a whistle. What whistle is that, that whistles?
“A. Here is what I would say. He had that engine so full of water, away up above the three, gauge cocks, and possibly he put his hand on the whistle lever, which would make a whistling noise. There is no occasion for filling the engine clean up to the whistle. In fact you couldn’t work an engine that was so full of water. There would be no steam space if this engine was filled up with water that much.
“Q. If this engine was filled up with water, and put on the boat with 145 pounds of steam, such as Evans said it was filled up, and carried across the river, how long would it take an engine, under those conditions, to have used up all that water above the gauge cocks?
“A. Well, if she wasn’t in use, just transferred, and without being used, she would last two or three hours; but if she was put • to work she would soon work all the water down. It would only take her a short while. You can burn an engine in fifteen minute.s, especially an oil burning engine. The water can get away from you in twenty minutes. You can have two gauges of water, and fail to have water in the boiler, with an oil burner, which is the most severe heat you can put in a fire box, and get rid of all that water in a short time.
“Q. Was this an oil burning engine?
“A. Yes, sir. Coal won’t do that.”

Again on Page 115:

“Q. If, during those 15 or 20 minutes your injectors are working off and on, and one injector is working for live to seven minutes previous to the explosion, would you still say that a boiler would explode within 20 minutes?
“A. No, sir; I wouldn’t that the water was low, if I knew that water was going into that boiler.
“Q. Then, if the water was low and the injector was working, what would you say about the injector?
“A. I would say maybe something was wrong with the injector and it wasn’t putting any water in the boiler. I have had cases of obstructions at a particular time that would get into the. house just ahead of the injector and that injector wouldn’t put water in the boiler. I don’t know that this occurred.”

Now it will be recalled that Evans had testified that the steam would kick back in the tank or overflow if the water wasn’t going into the boiler.

After the most careful examination of the record, we do not think that the evidence shows that the master mechanic’s suppositions and explanation accords with the' other facts in this case and we, therefore, hold that (plaintiff has failed to show that the negligence of defendant was a contributing cause to this accident and as such showing is essential to recovery here (see cases referred to above and McCalmont vs. Pennsylvania R. Co., 273 Fed. 240, affirmed by C. C. A., 6th Circuit; Phillips vs. Pennsylvania R. Co., 283 Fed. 382 C. C. A., 7th Circuit; Penny vs. New Orleans Great Northern, 135 La., 962; Seaboard Air Line vs. Horton, 233 U. S., p. 501; Frese vs. Chicago B. & Q. R. Co., 263, U. S., 1-2; Lang vs. N. Y. C., 255 U. S., 455; L. & N. vs. Layton, 243 U. S., 617; Davis vs. Wolff, 263 U. S.) plaintiff’s suit must be dismissed.

It is, therefore, ordered, adjudged and decreed that this suit be dismissed at plaintiff’s cost.


text:
    No. 9787
    Orleans
    GENERAL CIGAR CO. v. SEMON
    (--. Oipinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Landlord and Tenant —Par. 51, 53, 65.
    A lessee cannot recover from his lessor the cost of moving owing to the defective condition of the leased premises.
    Appeal from Civil District Court, Division , “D”. Hon. Porter Parker, Judge.
    Action by General Cigar Company, Inc., against Jacob H. Semon.

      There was judgment for defendant and plaintiff appealed.
    Judgment amended.
    Legier & Gleason, D. Y. Dussan, of New Orleans, attorneys for plaintiff, appellant.
    M. H. Manion, H. W. Kaiser, of New Orleans, attorneys for defendant, appellee.
   JONES, J.

In this suit plaintiff seeks to maintain in force a certain lease, although the lessee had been forced to leave the premises for ninety days on account of necessary changes in the building ordered by the city engineer. The defendant having averred that the necessary work amounted to reconstruction and, therefore, justified annulment of the lease, prayed for. cancellation thereof and damages.

As the lower court annulled the lease and allowed as damages the amount paid by defendant for moving one hundred and twenty-five ($125.00) dollars, plaintiff has appealed suspensively to this court.

■ The sole issue before us is the validity of thte judgment for damages, as the Supreme Court has recently annulled the lease for another portion of the same building in the case of Chryasoverges vs. General Cigar Co., No. 26514 La. Sup. Court.

In the case of Kelly vs. During, decided by this court on May 9th, 1927, we held that a lessee could not recover under such circumstances.

The judgment is, therefore, affirmed in so far as it annuls the lease and reversed in so far as it granted damages to the lessee.


author: REYNOLDS, J.

text:
    No. -
    Second Circuit
    THORNHILL v. YELLOW CAB CO. OF MONROE
    (May 13, 1927. Opinion and Decree.)
    (June 28, 1927. Rehearing Refused.)

      (Syllabus by the Court)

    1. Louisiana Digest — Automobiles—Par. 4, 4a.
    It' is actionable negligence for the driver of a, taxicab, after he has stopped his cab, looked back and observed an automobile following in his rear, to back into same; before backing he should make sure that the car in the rear of his has. cleared the space he wishes to traverse before backing into it. Landreanau vs. Chapman, 4 La. App. 402.
    2. Louisiana Digest — Automobiles—Par. 4, 4a.
    It is actionable negligence for the driver of a taxicab to back his car into territory that might be occupied by another automobile without first looking and making sure that the territory he wishes to enter is vacant. Ibid.
    3. Louisiana Digest — Automobiles—Par. 4, 4a.
    Drivers of automobiles owe the use of reasonable care to avoid colliding with other vehicles moving on the same highway; it is actionable negligence for the driver of a taxicab to drive his car immediately in front of a rapidly approaching automobile on the public highway from a private road; and a fortiori it is actionable negligence for the driver of a taxicab to drive his car into a passing car on a generally used highway.
    4. Louisiana Digest — Automobiles—Par. 4, 4d.
    A city ordinance, regulating the operation of automobiles on public streets must be observed, and if an injury results from its violation the owner of the car must answer for the damage done. Dill vs. Colley, 3 La. App. 305.
    5. Louisiana Digest — Automobiles—Par. 4, 4a, 8.
    When the driver of a taxicab has created a dangerous situation from which damage results to another he will not be allowed to exonerate himself by the plea that if the injured person had acted differently the injury would haye been averted. Ibid.
    6. Louisiana Digest — Automobiles—Par. 4, 4b.
    It is proper to allow recovery where the driver of a motor car sees a car passing beyond him in time to avoid injury by stopping and fails to reduce his speed or bring his car to a stop. 20 Ruling Case Law, 140-141.
    7. Louisiana Digest — Automobiles—Par. 4, 4b.
    It is part of the duty of the operator of a motor vehicle to keep his machine always under control so as to be able to stop it in time to avoid collision with another car or other object. He has no right to assume that the road is clear but under all circumstances and at all times he must be vigilant and must anticipate and expect the presence of others. Accordingly the fact that be thought that a passing car had cleared the territory he intended to use is no excuse for conduct which would have amounted to recklessness if he had known that another vehicle was behind him. He should be specially watchful in anticipation of the presence of others at depots and other places where many vehicles are congregated and where men, women and children are congregated.
    2 Ruling Case Law 1184.
    Southall vs. Smith, 151 La. 967.
    Appeal from the Fourth Judicial District Court of Louisiana, Parish of Ouachita. Hon. J. T. Shell, Judge.
    Action by- H. G-. Thornhill; et al., against The Yellow Cab Company of Monroe, Inc.
    There was judgment for plaintiffs and defendant appealed.
    Judgment affirmed.
    Hudson, Potts, Bernstein & Sholars, of Monroe, attorneys for plaintiffs, appellees.
    Theus, Grisham & Davis, of Monroe, attorneys for defendant, appellant.
   STATEMENT OF THE CASE

REYNOLDS, J.

This is a suit to recover damages for a collision between automobiles. Defendant denied liability and alleged that the collision was caused by the fault and negligence of Mrs. Flora Thornhill, one of the plaintiffs.

On these issues the case was tried and there was judgment in favor of the plaintiff, H. G. Thornhill, for $20.00 on his own account and for $300.00 for the use and benefit of his minor son, Harry Thornhill, Jr. The defendant appealed.

OPINION

Mrs. Flora Thornhill, accompanied by her minor son and her daughter, was driving in an automobile on a public street in the city of Monroe a short distance (from fifteen to thirty feet) behind an automobile belonging to defendant ' and being operated by one of its employees. Defendant’s taxicab turned from the direction in which it was moving and the car being driven by Mrs. Thornhill continued on its way. The taxicab was thrown into reverse, and backed into Mrs. Thornhill’s car, and thereby caused the collision complained of. Before backing defendant’s employee did not sound a horn or give other warning signal of his intended movement. In fact the horn on the taxicab was not in working order, and while the lack of a horn on the taxicab did not contribute to cause the accident it it a badge of reckless and careless driving and indicated a lack of regard for the safety of others using the public highway.

Mrs. Thornhill swears that the driver of the taxicab did not hold out his hand or otherwise indicate that he intended to change the course of movement of his car, and we accept her testimony as true, as evidently did the trial judge.

The driver of defendant’s car swore that he did hold out his hand. If he did so, he did not allow the driver of the car following him time to regulate the movement of her car agreeably to his signal, for he immediately threw his car into reverse and backed into the car Mrs. Thornhill was driving. It is useless to give a signal indicating what the driver of a car intends to do unless time enough is allowed to those signalled to govern themselves accordingly.

Defendant argues that the accident was due to Mrs. Thornhill’s applying the brakes to her car suddenly. We do not think so, for according to defendant’s testimony she brought her car to a stop and then started ¡it and later stopped it within a length of approximately sixty feet. We do not think it possible for a car to stop, start again, and then stop within sixty feet so abruptly as to throw an occupant of the car through the wind- ■ shield.

But be that as it may, it is clear that the driver of defendant’s taxicab, by throwing his car into reverse and backing it as he testified he did, created a hazardous condition that placed Mrs. Thornhill and the other occupants of the car in Imminent danger, and defendant will not be heard to say that ‘if Mrs. Thornhill had acted differently the collision would have been averted.

The turning aside of defendant’s car and immediately backing it into plaintiff’s car following it was in violation of an ordinance of the city of Monroe and hazardous and highly dangerous.

The driving of plaintiff’s car, under the evidence, was without fault.

The finding of the trial judge as to this matter of fact is Correct.

This brings us to the question of damages.

Plaintiffs’ eleven-year-old son was thrown through the windshield of the car in which he was riding and his nose was cut to the bone. By prompt medical attention the cut healed quickly and, though it has left a scar, the evidence shows that the scar will eventually disappear.

In our opinion the allowance by the District Court of $300.00 for the damage sustained by plaintiffs’ minor son is not unreasonable. Tbe $30.00 allowed to plaintiff is clearly sustained by the evidence.

For these reasons it is ordered, adjudged and decreed that the judgment appealed from be affirmed.


text:
    No. 2859
    Second Circuit
    REYNOLDS v. HOTEL YOUREE CO., LTD.
    (June 28, 1927. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Master and Servant —Par. 160j.
    The uncorroborated testimony of a plaintiff that he had sustained an impairment of a physical function in his side, shoulder, leg and foot, will not warrant a judgment in his favor when his testimony is in direct conflict with that of all the physicians who testified in the case, who, after a physical examination of him, aided by x-ray exposures, to the effect that plaintiff had not sustained impairment of any physical function.
    Upshaw vs. Triangle Drilling Co., 5 La. App. 224.
    Fuller vs. Robinson Const. Co., 5 La. App. 242.
    2. Louisiana Digest — Master and Servant —Par. 160j.
    Under the Workmen’s Compensation Law of Louisiana a plaintiff carries the burden of making out his case by a fair preponderance of the evidence..
    King vs. Rapides Packing Co., 5 La. App. 424.
    DeGruy vs. Cire & Delhomer, 4 La. App. 552.
    (The recent amendment of Act 20 of 1914 is Act 85 of 1926. Editor’s note.)
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo. Hon. J. H. Stephens, Judge.
    Action by Oliver Reynolds against Hotel Youree Company, Limited.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Long & McSween, of Shreveport, attorneys for plaintiff, appellant.
    Wise, Randolph, Rendall & Freyer, of Shreveport, attorneys for defendant, appellee.
   STATEMENT OF THE CASE

REYNOLDS, J.

Plaintiff sued defendant for compensation under Clause (e) of Subsection 1 of Section 8 of the Workmen’s Compensation Law for the permanent impairment of a physical function.

Defendant filed an exception of no cause of action and, reserving its rights under the exception, filed an answer denying liability.

The exception was overruled and on trial of the case on the merits there was judgment rejecting plaintiff’s demand and dismissing his suit and he has appealed.

OPINION

Defendant does not press its exception of no cause of action, and therefore it is not necessary for us to pass upon it.

Plaintiff testified as to his injuries (pages 3-7):

“Q. -Are you suffering from any trouble now?
“A. Yes, I have been. And my leg bothers me at all times — that is, after I do hard walking or any hard work. And also at night it bothers me so that I can hardly sleep.
“Q. Is there anything the matter with that left foot?
“A. Well, I have to wear an arch support up there all the time to be able to get around.
“Q. You have to use that arch support to get around even like you do now?
“A. Yes, sir.
H* jK ❖
“Q. You say that your entire left leg hurts you? Explain how that hurts you; where you feel the most pain and how it feels.
“A. Well, in the muscle there at all times — that is after I do any hard work or heavy lifting or anything like that. It bothers me at night; when I try to sleep it bothers me lots.
“Q. Does it pain you?
“A. Yes, sir.
“Q. Does it pain you when you walk around ordinarily like the walking you have done today; does that pain you?
“A. Yes, sir; sometimes.
“Q. Has it been bothering you continuously since that time?
“A. Yes, sir.”

Contradictorily to this testimony of plaintiff’s, Doctor J. E. Slicer testified (pages 17-24):

“Q. Doctor, did you have occasion to see Mr. Reynolds and treat him at any time?
“A. Yes, sir.
“Q. What did you find when you first examined him? -
“A. I found him complaining a great deal of his left shoulder on which there were some slight lacerations, to which I administered first aid treatment and had him taken upstairs to a room. Later that day I sent him up to the x-ráy man to see if there had been any damage done to the shoulder.
“Q. To whom did you send him?
“A. Doctor Adair. Doctor Adair’s report to me was negative for bony injury.

* * * *

“Q. Was there any broken flesh that you could see?
“A. Well, there was no complete break of the skin, no, sir. There was some,
what we call ‘brushed skin,’ where some of the layers of the skin were brushed off but not entirely broken.
“Q. Did you make an examination to see if you could find • any injury to his left side?
“A. Yes.
“Q. Did you find any?
“A. . Only what I have just spoken of.
“Q. Were there any injuries that you could find necessitating any treatment of any kind?
“A. For two or three days these lacerations had to be dressed but they soon disappeared because they were only of a minor character.
“Q. That is, on the shoulder?
“A. Yes, sir.
“Q. Were they superficial or did they go deeper?
“A. They were only superficial.
“Q. Prom your observation of him and having him under your care and observation, is there any reason that you could ascertain why there should be any disability of any kind to him from that, accident?
“A. I have never been able to satisfy myself that there was any permanent disability -in that case whatsoever.
“Q. When you say permanent disability, just what do you mean?
“A. Well, any destruction of tissue or any dislocation or any bony or muscular injury; any iigaments strained or torn. 1 have never been able to discover any of these things. The only- evidence that I had of any injury whatsoever was his statement to go on.
“Q. Is there any reason that you know of at this time why he should limp?
“A. None whatever.
“Q. Had he complained about his foot previously?
“A. No, sir.
“Q. Then when he complained of his foot, what did you do?
“A. I examined it and from my examination I couldn’t discover any injury. I then had an x-ray made to see if there had been any damage and the x-ray report was negative. -And I told him I was at a loss to know what I could do; that I couldn’t satisfy myself that there was any injury to him at all.
“Q. Can you ascertain that there should be any reason for any pain at this time so far as that accident is concerned?
“A. None, whatever.
“Q. Or any disability there?
“A. No, sir.
* * * *
“Q. Doctor, from your examination and attention to him while he was under your observation and care, would you say that the usefulness of a member or any physical function has been seriously or permanently impaired at this time?
“A. No, sir.
* * $ *
“Q. But, I say, if that be a fact then there is a more or less permanent impairment or disability of the member?
“A. Your question is one that is difficult for a doctor to answer. The only way I can answer that question is' to' tell you I took note of every complaint that he made to me, examined the parts with my eyes and hands, and then sent him to the x-ray expert, and the result of all of these examinations did not disclose any disability whatsoever that we could find.”

Doctor M. L. Adair testified (pages 27-30):

“Q. Did you have occasion to make pictures or an examination of Mr. Reynolds, 'the plaintiff in this case, at any time?
“A. I did. On December 13th Mr. Reynolds was sent to me by Doctor Slicer with orders to examine his left shoulder and anything else that I thought might throw any light on his injuries. I made a radiograph of the left shoulder on December -13, 1925, which showed no fracture or dislocation. At the same time I examined his left knee where he complained of pain and found no evidence of fracture or dislocation of bone or injury there. I also examined his left leg and knee just above the ankle and found no evidence, and I examined his left foot, which was negative, with no evidence of injury.
“Q. From the x-rays which you took and the examination which you had the opportunity to make, and the times that you saw him and examined him, is there any reason that you can discover for there being any injury or disability to the plaintiff at this time?
“A. No. I" could never find any evidence after the first time he was in the office. At that time he had a few scratched places, but I have never • been able to find anything that would indicate a serious injury.
“Q. Are there any reasons that you could assign at this time, from an examination and the pictures that you made, why he should limp?
“A. No.
“Q. From the examination and pictures that you made would you say or could you say there were any reasons for the usefulness of a member or any physical function being seriously or permanently impaired?
“A. Not from my examination; no.
“Q. Is there any reason that you could ascertain from your pictures why there should be any pain or inconvenience or disability as the result of that accident?
“A. No; my x-ray pictures are absolutely negative; showing no indication of pathology whatever.
“Q. You made somewhat of an examination outside of the x-ray, did you not?
“A. Yes, sir; the first time he was in the office I went completely over him to find out what to x-ray, as Doctor Slicer had told me to x-ray anything and everything that I thought would throw any light on the case.
“Q. Dia you find anytning from that physical examination to indicate that there was any disability or pain?
“A. No, sir.”

All the evidence in the case shows that plaintiff has failed to discharge the burden resting upon him to make out his case by a fair preponderance of the evidence and that he did not suffer the impairment of any physical function.

The judgment appealed from is correct and accordingly is affirmed with costs.


author: CLAIBORNE, J.

text:
    No. 9684
    Orleans
    BLACK RIVER LBR. CO. v. SOUTHERN SCRAP MATERIAL CO., Appellant
    (April 25, 1927. Opinion and Decree.)
    (May 23, 1927. Rehearing Refused.)
    (July 12, 1927. Writs of Certiorari and Review Denied by Supreme Court.)

      (Syllabus by the Court)

    1. Louisiana Digest — Obligations—Par. 79, 86.
    The letters F. O. B. stand for “Free on Board,” and mean that the seller shall bear all expenses of carriage until the goods are delivered at the place where they are to be F. O. B., and that all further expenses are upon the buyer.
    Appeal from Civil District Court. Hon. Mark M. Boatner, Judge.
    Action by Black River Lumber Company against Southern Scrap Material Company, Ltd.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Dale, Young & Dale, of Vidalia; Spencer, Gidiere, Phelps & Dunbar, of New Orleans, attorneys for plaintiff, appellee.
    Lazarus, Michel & Lazarus, H. S. Weil, of New Orleans, attorneys for defendant, appellant.
   CLAIBORNE, J.

The plaintiff claims the price of scrap iron sold to defendant.

The suit is based upon the following contract:

“Willets, La., March 8th, 1923
“Black River Lumber Company, Willets, La.,
“Gentlemen:
“Confirming conversation of even date, I agree to purchase from you: The chilled cast iron wheels with axles that were shown me, not less than 26 wheels in all, i. e., 26 axles and 52 wheels. The em tire pile of scrap iron lying on the same siding east of the wheels. The entire pile of boiler tubes lying north of the saw mill. Price $10.00 per net ton, F. O. B. Cars, Willets, La. Terms net Cash, loading to be directed by myself. The accepted weight to be the certified weight given by the Texas and Pacific Railway. In the event that the weight cannot be ascertained prior to leaving Willets, terms are to be sight draft with bill of lading attached. I furthermore agree that I will accept those cars within ten days from date, if not this agreement cancels itself.
“Yours truly,
(Signed) “John S. Marshall,
“Baton Rouge, La.”

Marshall transferred this contract to the defendant, the Southern Scrap Material Company on March 26th.

On March 27th the plaintiff wrote to defendant:

“Southern Scrap Material Co.,
“New Orleans, La.,
“Dear Sirs:
“Confirming our telephone conversation of yesterday in regard to loading the scrap iron.
“This material will he loaded as follows: 1 car Boiler Tubes, 1 car wheels with axles, 1 car miscellaneous scrap. These three cars will he consigned to the Southern Scrap Material Co. Immediately on receipt of B-L with certificate of weights attached, we will forward sight draft, B-L attached, to your office.
“Yours very truly,
“Black River Lumber Co.”

On April 11th the plaintiff wrote to the defendant:

“Southern Scrap Material Co.,
“New Orleans,
“Gentlemen:
“We herewith enclose memorandum bills and Bills of Lading covering the following cars of scrap iron shipped to you:
T. & P. 9689 ____________________________________________$191.50
S. L. and S. P. 71467 ____________________________ 305.00
P. M. 10395 ______________________________________________ 298.50
Penn 793334 ............... 214.50
“Original bills of lading and invoices with drafts have gone forward through our bank today, and you no .doubt will be notified in due course.
“We have had some difficulty in securing Certificates of Weights from the Texas and Pacific Railway Co. We instructed them to mail us these certificates immediately upon weighing these cars, but somehow or other they failed to do so. We have just been successful today in obtaining these documents. We have written the Texas and Pacific Railway Co." that should any demurrage occur through their laxity in handling this matter that we expect them to absorb these charges.
“We trust that the delay in shipping has caused you no inconvenience.
“Yours- truly,
“Black River Lumber Co.”

On April 14th the defendant, the Southern Scrap Material Co., wrote to the plaintiff:

“The Black River Lumber Co., Willets, La., “Gentlemen:
“We are in - receipt of yours of the 11th inst. enclosing memo, bill and duplicate bills of lading on four cars of scrap iron shipped to us at New Orleans, and note that you have sent original bills of lading to the bank in the form of drafts which is entirely satisfactory, inasmuch as. you have advised the T. and P. Railroad to look to you for any demur-rage of these cars if any.
“We beg to draw your attention, however to little items that you overlooked, namely, car Penn 793334 only weighs 42,900 lbs., the minimum charge for freight is 50,000 lbs., which is an underweight of 7,100 lbs., which on the basis of $4.20 per ton would make a balance due us on this car of $14.91.
“The same thing applies to car C. and P. 9669 weighing 38,300 lbs., which is 11,700 lbs. under the mimimum, which on the basis of $4.20 per ton makes balance due us on this car of $27.57.
“Would you please mail us your check for these two items by return mail, and oblige?
“Yours truly,
“Southern Sera® Material Co., Ltd.,
(Signed) “B. Turkheimer.”

On April 13th the Southern Scrap Material Co. wired plaintiff:

“Pour cars in New Orleans with heavy demurrage accruing. Railroad will not release cars account order notify. Have your agent wire Texas and Pacific, New Orleans to release cars to us at once, all demurrage chargeable your account.”

On April 14th the defendant wrote to the plaintiff:

“With further reference to the purchase of Mr. Marshall from you on March 8th and subsequent correspondence between Mr. Marshall, yourselves and ourselves.
“Please be advised that unless we hear from you today as per phone conversation this morning that we will not accept the cars at the purchase price until we have had an opportunity to make an inspection of same.
“As advised you over the phone, the market has declined about $3.00 a ton within the last week or ten days and due to either your negligence or somebody’s negligence for not. having the bills of lading in our hands a week ago we cannot take the responsibility for the decline in the market in the meantime.
“We assure you that we dislike to be forced uipon taking this stand, and if we do not hear from you today authorizing us to take the cars, at the original pur-' chase price made by Marshall, we will turn down this transaction altogether and will take the cars at the market price when same is turned over to us. If on the other .hand we receive authority to take the cars today, we will take them at the original sale price by Marshall, otherwise we withdraw all quotations made you and cancel any purchase which we may have with you.
“Yours truly,
“Southern Scrap Material Co./ Ltd.,
(Signed) “A. Diefenthal.”

In another letter dated April 16th the defendant made the following offer:

“Now, Mr. Andrews, inasmuch as these cars are now in New Orleans on very heavy demurrage, and w'e have inspected same this morning, we make you the following proposition: That we will pay you $11.00 per net ton P. O. B. cars New Orleans for the four cars at New Orleans at this time, and that we will either pay your draft at this price, less freight and demurrage accrued to date, or will take cars from the railroad you authorizing, them to turn over to us, and we ’will mail you our check immediately after freight and demurrage has been deducted, also difference on less than minimum.”

Answering this letter and others on the 18th, the piaintiff declined the offer and said:

“In the writer’s conversation with your Mr. Purkheimer this morning, he declined this proposition and advised Mr. Purkheimer that he would adhere strictly to the terms of the contract, which was entered into by ourselves and Mr. Marshall and which is binding. This contract does not specify any time for delivery, but does specify that these cars were sold $10.00 per net ton P. O. B. Willets, and you no doubt are aware of the fact that the consignor’s responsibility ceases after receiving a clean B-L from the railroad. We advised you that we had some difficulty in securing certificates of weights from the railroad, which were absolutely essential before we could draw our drafts on you. Immediately upon receipt of these documents we forwarded our drafts drawn on you and advised Mr. Purkheimer that these papers were at the Canal Commercial Bank which was part of the contract. We therefore must insist that our drafts be paid, as drawn, billing us with the differential in minimum weight and demurrage, which has accrued up to Monday, April 16th. Immediately upon receipt of the necessary documents we would send you a check covering these items and file claims for the demurrage with the T. and P. because we feel that they are entirely at fault in this matter.
(Signed) “Black River Lumber Co.”

The defendants declined.

It was finally agreed on May 1st between the plaintiff and the. defendant, simply to relieve the parties from unnecessary further expenses and to minimize damages, leaving to each their rights in the premises, that the defendant should receive the bills of lading and pay $10 cash' per ton E. O. B. New Orleans less demurrage and freight, without prejudice to the rights of either party.

On these conditions the scrap iron realized as follows: $1009.50

Less freight __________________________$452.43

Demurrage ____________________________ 357.00 809.43

$200.07

The plaintiff then filed, suit for $809.43.

The plaintiff received the weight certificates frqm the Texas and Pacific Railroad on April 11, 1923, and immediately drew four drafts upon the defendant and mailed them for collection to a bank in Vidalia, with Bills of Lading attached, the Bills of Lading were to shipper’s order, notify Southern Scrap Material Co. Said hank returned the Bills of Lading to plaintiff for endorsement; after endorsement they were returned to the Vidalia Bank which transmitted them on April 14th to the Canal Bank in New Orleans with the four drafts for collection; the defendants were notified on April 17th.

The defense is:

1st. That the scrap iron was to have been shipped within ten days and was* not so shipped. ' .

2nd. That the iron was shipped by plaintiff to its own order and the hills of lading were retained by plaintiff under its control .until April 18th and- — ■

3rd. That because of respondents’ inability to obtain possession of the bills of lading and to claim the cars and. unload them, heavy demurrage accrued which was due entirely to the fault of plaintiff.

There was judgment for plaintiff and defendant had appealed.

There was no time specified in the original Marshall contract of March 8th for performance by plaintiff. The obligation was on Marshall alone. The contract reads: “I furthermore agree that I will accept these cars within ten days from date, if not this agreement cancels itself, (signed) John S. Marshall.” But this Marshall contract was transferred on March 26th to the defendant. By letter of March 27th the contract was amended and nothing thereon was stated as to time of performance. On March 26th the ten days had long since expired. The subsequent negotiations show' that the time of performance was not an element. On the trial this defense was abandoned.

II.

The contract specified the price and the mode of payment, thus: “Price $10.00 per net ton P. O. B. cars, Willets, La. Terms net cash, loading to be directed by myself. The accepted weight to be the certified weight given by the Texas and Pacific Railroad. In the event that the w'eight cannot be ascertained prior to leaving Willets, terms are to be sight draft with bills of lading attached.”

The contract fixed the terms of sale as “net cash.” That meant payable cash on delivery. The delivery in this case was the transfer of the bills of lading. “The seller is not bound to make a delivery of the .thing if the ■ buyer does not pay' the price and the seller has not granted him any terms for the payment.” C. C. 2487 (2463).

The plaintiff drew four drafts upon the defendant, and transmitted them, with bills of lading attached, to the Canal Bank for collection.

Plaintiff so informed the defendant by letter of April 11th and the defendant answered on the 14th that it was entirely satisfactory. The defendants subsequently refused to pay the drafts for the sole reason that demurrage had accrued for which they did not think they were liable.

III.

We do not find it necessary to decide the much mooted question whether the delivery of goods at the place of shipment F. O. B. transfers the title to the purchaser. As the defendant denied liability for this demurrage the sole question before us is whether it was due by the defendant or by the plaintiff.

In Williston on Sales, Sec. 280, he said:

“If the buyer is to pay the freight it is a reasonable presumption that he does so because the goods became his at the point of shipment and the. carrier is his agent transporting them. On the other hand if the seller is to pay the freight the inference is equally strong that the duty of the seller is to have the goods transported to their ultimate destination and that the carrier is his agent in transporting the goods. In mercantile contracts the letters ‘F. O. B.’ are frequently used to express the obligation of the parties in regard to the payment of freight and other charges. These letters which stand for the words ‘free on board,’ mean that the seller shall bear all expenses until the goods are delivered at the place where they are to be ‘F. O. B.’ By necessary implications, all further expense is upon the buyer. If, therefore, the contract provides that the goods are to be delivered ‘F. O. B.’ at the point of shipment, the presumption that the property is to pass to them is applicable.”

35 Cyc. 108.

This opinion is corroborated by the testimony of Mr. Defenthal, one of the defendants.

Thq defendants nowhere denied their liability for the freight. On the contrary they paid it. They denied their liability only for the demurrage, because as they alleged the fault for the delay was with plaintiff or with the railroad, its agent.

There is nothing that shows fault or negligence on the part of plaintiff in the delivery of the iron to the railroad, nor does defendant charge it.

Defendants charge plaintiff with culpable delay in drawing drafts upon them and delivering the bills of lading to them only several days after the railroad had carried the iron to New Orleans and was ready to deliver it, and after demur-rage had accrued. But the contract specified that:

“The accepted weight to be the certified weight given by the Texas and Pacific Railway.”

The action of the railway became therefore a condition precedent to fixing the value of the iron and the amount of the drafts to be drawn upon the defendants. The railway was the agent selected by the defendants to fix the amount they would have to pay for the iron according to its weight. The defendant would not pay upon the weights stated by plaintiff but only upon that determined by the railway. The railway did not make returns of weight until April 11th. Up to that date no negligence or fault is found with the plaintiff. If there was fault anywhere it was 'with the railroad. As the railway had been constituted by the defendant as its special agent for that particular business of weighing, the defendant and not the plaintiff is liable for its delay up to April 11th and up to April 14th, the time it took to mail the drafts and bills of lading to New Orleans. The delay from April 14th to the 17th resulting from the failure of plaintiff to endorse the bills of. lading amounts to $51 is properly chargeable to the plaintiff, which has been provided for by the District Judge. The defendant never offered to pay any part of the demurrage. They were liable for it, over and above the price of the iron, as the District Judge has found, and we agree with him.

IV.

The defendant also argued that the plaintiff had breached his contract because the letter of March 27th by plaintiff to defendant stated that the cars will be consigned to the Southern Scrap Material Co., and that “sight drafts B-L attached will be forwarded ‘to your office,’ while the plaintiff consigned the cars, to its own order and the sight drafts were remitted to the Canal Bank for collection. This defense was not made in the answer.

The argument that if the iron had been consigned to the defendant he could have taken possession of it without payment is without force because the same letter of March 27th provides that “sight drafts, B-L attached, will be forwarded.” This meant that the iron could not have been withdrawn without payment of the drafts.

But when the defendant was informed that the weights had -been obtained and drafts drawn the defendant wrote on April 14th:

“We are in receipt of yours of the 11th inst. enclosing memo, bill and duplicate bills of lading on four cars of scrap iron shipped to us at New Orleans, ana note that you have sent original bills of lading to the bank in the form of drafts which is entirely satisfactory inasmuch as you have advised the T. and P. Railroad to look to you for any demurrage of these cars if any.”

These bills of lading state, “Consigned to Black River Lumber Co., notify Southern Scrap Material Co.”

In the j case of Lundy vs. Pfeifer, 162 La. 355, 110 South. 556, it did not appear that the ¡plaintiff shipped the goods within the time specified in the contract, and that he instructed the carrier to notify A. L. Lundy, vendor, instead of Pfeifer and. Co., buyers, according to contract. The evidence in this case shows that that defendant received from plaintiff duplicate bills of lading and from the bank notice of drafts, and that he declared “it was entirely satisfactory.” If the iron had been consigned to the defendants they could not have received delivery of it without payment.

Notice of the sight drafts was sent to “defendants’ office” through the Canal Bank for collection. The drafts themselves could not have been sent. The defendants understood that the drafts were to be remitted to their office through some bank as they telephoned to every bank in the city for them.

Judgment affirmed.


text:
    No. 2153
    .Second Circuit
    SHARP v. NABORS
    (April 8, 1927. Opinion and Decree.)
    (May 13, 1927. Rehearing Refused.)

      (Syllabus by the Court)

    1. Louisiana Digest — Appeal—Par. 625. The finding of fact by the trial court will not be disturbed on appeal unless manifestly erroneous.

      Appeal from the Twelfth Judicial District Court of Louisiana, Parish of Desoto. Hon. John H. Boone, Judge.
    Action by F. T. Sharp against W. C. Nabors.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    S. D. Ponder, of Many, attorney for plaintiff, appellee.
    Lee & Bell, of Mansfield, attorneys for defendant, appellant.
   STATEMENT OF THE CASE

REYNOLDS, J.

Plaintiff, F. T. Sharp, sues the defendant, W. C. Nabors, to recover the sum of $1271.25, damages alleged to have been done to plaintiff’s automobile in a collision between it and a trailer attached to a motor truck owned by defendant and being operated by his chauffeur.

Plaintiff alleged that the proximate cause of the accident was. reckless driving by defendant chauffeur and the motor truck being on the wrong side of the highway and moving at a high rate of speed.

Defendant denied liability and alleged that the proximate cause of the accident was reckless driving of plaintiff’s automobile and its being on the wrong side of the road, and defendant reconvened against plaintiff for $68.55 damages alleged to have been done to his trailer.

On these issues the case was tried and there was judgment in favor of the plaintiff for $900.00 and rejecting defendant’s reccmventional demand.

A new trial was granted the defendant and on the second trial judgment was rendered in favor of the plaintiff for $500.00.

Defendant appealed. The plaintiff has answered the appeal and asks that the judgment be increased to the amount asked for in his petition.

OPINION

The first question to be decided in this case is, whose fault was the proximate cause of the accident.

Plaintiff, F. T. Sharp, testified, pages 4, 5, 12, 13.

“Q. Well, state to the court how fast you were running when you approached the truck.
“A. Not over fifteen miles an hour.
“Q. What part of the road were you on?
“A. On the right — when I first saw it.
“Q. Yes?
“A. I was about in the middle of the road then.
“Q. What did you do when you saw it approaching?
“A. I got on the right hand side as far as I could get without getting into the ditch.
“Q. What else?
“A. I blew my horn and continued to blow.
“Q. What did the negro who was operating the truck do, if anything?
“A. He didn’t do anything. He stayed right in the middle of the road.
“Q. Until when?
“A. Until he was up even with me, and then he tried to cut out, but it was too late.
“Q. Got up even with you?
“A. His truck was even with me, and when, he went to get out the front end of the trailer crossed the road right into me.
“Q. What do you mean by crossing the road?
“A. It left the middle of the road and came over on my side.
“Q. Did he at any time at all turn his truck to the right when you turned to his right?
“A. No, sir; not until he got even with me.
“Q. Not until when?
“A. Not until he got even with me. His truck was even with me.
“Q. What was the effect of his turning the truck then?
“A. The effect was,, when he turned his truck, his trailer run right over and hooked in my front wheel and broke my steering ge.ar, shot me across the road to the opposite side and turned me over.
* * *
“Q. Ask you again to describe just what you did as you approached the truck and just what the truck driver did as he approached you? ' .
“A. When I saw the truck coming, I got out on the right hand side as far as I could get without going into the ditch.
“Q. All right, go ahead with your description.
“A. And when I saw the car coming, I got on the right hand side as far as I could without going into the ditch and he didn’t move from where he was — just kept going along in the same place. Just as he got even with me, h§ cut out and the trailer came into me.
“Q. Which way did he cut?
“A. To the right.
“Q. You wer already on your right?
“A. I had already gone as far as I could.
“Q. You described the action of the trailer to Mr. Ponder — I will ask you to describe it over again.
“A. When he cut to the right, that threw* the trailer right; into me.”

Mrs. F. T. Sharp testified, page 23.

“Q. How far was the truck from you when you first sa,w it before the accident occurred — how far away?
“A. When we first saw it?
“Q. Yes, Ma’m.
“A. About fifty yards; something like that.
“Q. Well, when you saw the truck approaching, what did your husband do to his car
“A. Well, he blew the horn and he turned his car over to the right and went to the ditch.
“Q. Turned to the right?
“A. Yes, sir. '
“Q. What did the truck do?
“A. The truck came on ahead.
"Q. Came on? Well, where was the truck running at the time — what part of the road?
“A. Looked like more on our side than anywhere else.
“Q. When did it turn to the right, if it did?
“A. It didn’t turn until he got just even with us. His truck was even with us.
“Q. The truck was even with you?
“A. Yes, the truck part.
“Q. Describe to the court what was done — what the negro did with the truck as it got even with you and what occurred?
“A. Well, he turned to his right then when he got even with us and the trailer swung over toward us and hit our car.
“Q. What did he strike?
“A. Hit our front' wheel — hit the front wheels.
“Q. Then what occurred when it hit?
“A. It went over to the left — to our left into the ditch. Went over to the ditch.
“Q. IDid it go on the opposite side or the same side of the road?
“A. From where we were?
“Q. Yes, ma’m; did it go across the road?
“A. Yes, it went across the road.
“Q. What did it do when it got there?
“A. T'urned over and caught fire.”
Mrs. J. R. Lynch testified, page 27.
“,Q. You were in the car at the time the trailer of Mr. Nabors’ truck ran into Mr. Sharp’s car?
“A. I was; yes, sir.
“Q. Well, how far were you from the truck at the time you first observed it?
“A. About fifty yards.
“Q. Well, when you were approaching the truck, what did Mr. Sharp do with regard to his car?
“A. He turned to the right and blew.
“Q. What did the negro do with the truck?
“A. He came as close to us as he could before he turned out.
“Q. What did the trailer do when he turned the truck to the right; which way did the trailer go?
‘‘A. It struck the front wheel of our car.
“Q. What effect did it .have on the front wheel ?
“A. It knocked the gear out of the car.
“Q. What other effect did it have?
“A. It caused us to run on down the road and go into the ditch.”

The only other eye-witness to the accident who testified in the case was Noble Williams, a colored man, and’ the person who drove defendant’s truck with the trailer attached; pages 82, 83, 85.

“Q. Now, on the day of the accident, when did you first see the car that ran into you or that you ran into?
“A. When I seen it, it was on top of the hill coming over the hill.
“Q. He was going down the hill towards you?
“A. Yes, sir.
“Q. And you were going uphill?
“A. Yes, sir.
“Q. He was coming down hill?
“A. Yes, sir.
“Q. What did you do?
“A. I pulled out of the road.
“Q. Did you get out of the road?
“A. Yes, sir; I got out.
“Q. How far did you get?
“A. I don’t know exactly; I know I got out of the road.
“Q. What happened?
“A. He ran into me.
“Q. What?
“A. He ran into me.
“Q. What part of the road were you on?
“A. On the right side.
“Q. On the right side which way?
“A. Coming to town.
“Q. Where?
“A. Coming to Mansfield.
“Q. You were on the right side of the road going toward Mansfield?
“A. Yes, sir.”
“Q. What side was Mr. Sharp on?
“A. He was on the right side going to Sodus.
“Q. Was he on the same side you were on?
“A. No, sir.
“Q. Hq was on one side of the road and you were on the other?
“A. Yes, sir.

The width of the road at the scene of the accident, as established by the testimony of the witness Willard Benson, page 104, is from twenty-four to forty feet, and if the testimony of the driver of defendant’s truck were true the accident could not have happened.

After carefully reading all the evidence in the case we have reached the conclusion that, the accident was caused by the jolting of the trailer attached to defendant’s motor truck into the front wheel of plaintiff’s automobile and • that this jolting was caused by the negligent operation of the truck and trailer.

This appears to have been the conclusion of the trial judge, who heard and observed the witnesses testify and who appears to have accepted the version of Mr. and Mrs. Sharp and Mrs. Lynch as to the cause of the accident.

This brings us to the question of damages, and while the evidence on that point is conflicting, we are unable to say that the award of the trial court is not correct.

The evidence shows that plaintiff expended for repairs of the damage done to his car by the accident $329.25, and it further shows that the body of plaintiff's car was broken and its top injured and that it would cost $600.00 to replace the damaged body and top with a new body and top.

From all the evidence we are of the opinion that the allowance of $500.00 damages by the trial court was not excessive.

Plaintiff contends for a larger amount of damages, but he has not furnished us with an itemized statement showing in detail the amount of damage sustained by him beyond the amount actually paid out for repairs; and the evidence does . not enable us to say that the amount awarded by the District Judge does not do substantial justice between the parties.

For the reasons assigned; it is ordered, adjudged and decreed that the judgment •appealed from be affirmed. ■