text:
    No. 3630
    Second Circuit
    MARITZKY ET AL. v. CHADICK-HAYES CO., INC.
    (November 18, 1929. Opinion and Decree.)
    (December 31, 1929. Rehearing Refused.)
    Roberts & Naff, Wilkinson, Lewis, Wilkinson & Buford, of Shreveport, attorneys for plaintiffs.
    Thatcher, Browne, Porteous & Myers, of Shreveport, attorneys for defendant.
   ODOM, J.

This litigation grows out of a collision which took place between plaintiff’s automobile, driven by Mrs. Maritzky, and a truck belonging to the defendant company on a public highway. The occupants of the automobile received personal injuries, and the automobile and truck were each badly damaged. Plaintiffs sue the defendant for the damage which they sustained, alleging that the collision was due to the gross fault and negligence of the truckdriver. Defendant denies any negligence on its part, but alleges that the collision was due to the fault and negligence of plaintiffs, and reconvenes for the damage done to the truck. The district judge found and held that both parties were at fault and rejected plaintiffs’ demands, as well as defendant’s reconventional demand. Both parties appealed.

We are indebted to the judge of the district court for his written opinion which we find in the record, and, as he has correctly stated the issues involved and the facts, we copy his opinion in full:

“Plaintiffs, Marx Maritzky and Isadore Maritzky, owners of the automobile driven by Mrs. Brody Maritzky, wife of Marx Maritzky, and Mrs. Maritzky bring this suit for damages to the automobile and for personal injuries to Mrs. Maritzky resulting from a collision with a truck belonging to the defendant.

“The collision occurred on the Shreveport-Minden road just before noon near Red Point in Bossier Parish. Mrs. Maritzky was proceeding from Minden towards Shreveport. She was approaching at a speed of thirty or thirty-five miles per hour a highway bridge across said road. A heavily loaded Dodge truck belonging to defendant was crossing said bridge. The tracks of the truck, examined and measured after the accident, show that the truck proceeded, after it crossed, the bridge, a distance of some thirty feet in a straight line. The bridge, as is usually the case, is somewhat narrower than the road. The road from shoulder- to shoulder was twenty-one feet wide at the time of accident. There is nothing to show that the truck was going at an excessive or unsafe speed.

“The tracks show that the right wheels of the truck were three and a half feet from the righthand, curb of the bridge as the truck was crossing the bridge. The tires and wheels extend some six inches into this three and a half feet and the overhang of the truck extends some foot and a half further. The testimony seems to indicate that the driver was driving as close to the righthand side of the bridge as he could reasonably and safely drive.

“At the point of the collision the measurements show that the tracks of the left-hand wheels of the truck were six inches to the left of the center of the road. As stated above, added to this would be the six inches of the wheel and the foot and a half overhang perhaps of the truck. In other words, the body of the truck was perhaps two feet over on its lefthand side of the road, the road being twenty-one feet wide. As stated above, this would leave eight and a half feet for the passage of vehicles going in the opposite direction.

“The testimony in the record as to the width of an automobile is somewhat conflicting, a witness stating once that it was seven feet and once that it was five and a half feet. As we know from personal experience that five and a half feet is correct, we will consider that to be the width of the automobile. It is therefore apparent that there was room for the car driven by Mrs. Maritzky to pass the truck.

“Photographs of the truck show that it was struck on the left side just back of the front wheel, a very severe blow; severe enough to knock the engine from its fastenings, break the steering apparatus and otherwise seriously damaging the truck. The breaking of the steering apparatus caused the truck, as it proceeded on after being struck, to angle into the righthand ditch some short distance beyond the point of the collision, where it turned over.

“The car driven by Mrs. Maritzky was standing face about after the collision in practically the middle of the road. It had been struck twice in front; once by the truck and once by a car which was following it and which collided with it after it had collided with the truck and turned completely around. Mrs. Maritzky says that, as she approached the bridge she saw the truck; that she slowed down, coming almost to a stop, and that she was as far on her righthand side of the road as it was possible to get. This statement does not tally with the physical facts. The way we view the matter we are satisfied that Mrs. Maritzky was approaching this bridge, narrower than the road, and occupied by the truck, at a fairly rapid rate of speed. We think she realized that it would be too tight a squeeze for her to pass the truck upon the bridge; that she became confused, put on her brakes and skidded in the loose gravel, losing control of the car and ramming the side of the truck. This view is borne out by the testimony of the witness who was driving directly behind Mrs. Maritzky. He testifies that when the collision occurred he endeavored to stop his car, put on the brakes and skidded into the loose gravel, causing him to collide with her ear- as stated above.

“We think that Mrs. Maritzky was clearly negligent in approaching a dangerous situation at a speed so great that she did not have her car under control. Her statement that the truck suddenly swerved from its righthand side of the road onto the lefthand side and struck her is completely disproved by the testimony of her own witnesses that the tracks of the truck from the bridge to the point of the collision was straight ahead and did not turn in any direction.

“In any event it was broad daylight; the whole situation was before her. If the truck was on the righthand side of the road it had been there ever since it went upon the bridge. The situation was before her, and even though the truck was where it should not have been, she should have avoided, by the use of due care, any collision with it. We, therefore, think that plaintiffs cannot recover.

“On the other hand there is no doubt that the truck was on, at least to the extent of two feet, the righthand side of the road. We have no doubt that this wrongful position of the truck, at least after it had left the bridge, caused the dangerous situation which confused Mrs. Maritzky and led to the collision. We think, then, that both parties were guilty of negligence, and that .the law should leave them where they are. The fact that the truckdriver continued straight ahead after crossing the bridge instead of cutting to the right to give the oncoming cars their full portion of the road, convicts him of contributory negligence and bars recovery on the reconventional demand.

“The statement of the driver of the truck that Mrs. Maritzky collided with him because she suddenly turned out trying to pass a Ford automobile is not supported by the preponderance of the testimony in the case. We do not believe that any driver would turn suddenly out to pass an automobile on the approach to a narrow bridge. The accident was not so seen by any other witness, though one witness does testify that he was driving in the same direction as the truck and that he passed a Ford coupe going in the same direction as the automobile some six or seven hundred yards towards Shreveport from where the accident occurred. Furthermore, the testimony of W. E. Johnson, driver of the truck, on page 47 of the testimony, that the Ford coupe had gotten on the bridge and gone by before the time that the collision occurred, does not tally with his testimony that Mrs. Maritzky ran into him while suddenly turning out from behind the Ford coupe some thirty or more feet from the bridge.

“We, therefore, conclude that the demands of both plaintiffs and defendant should be rejected. Plaintiffs to pay the cost of the main demand and defendant to pay the cost of the reconventional demand.”

A reading of the briefs filed by appellants discloses that neither side seriously questions the findings of the district judge on the facts. But, we note that counsel for plaintiffs state that, even though it be true that there was ample room for Mrs. Maritzky to have passed the truck, the testimony shows that there were small washouts over on the shoulder of the road which made it dangerous for her to get too far over on the side. But, our1 reading of the testimony discloses that there was a space of at least eight and a half or nine feet of perfectly safe roadway over which she might have passed. On page 99 of the record, the witness who testified that he had measured the road, was asked:

“Q. How wide was the portion of the road at that point which could be traveled?

“A. Twenty-one foot (21'). We measured both ways.”

The testimony found on page 106 of the transcript shows that the road is in fact twenty-four feet wide at the point where the collision occurred, but at the time the road had not been recently graded so that the safe portion thereof was only twenty-one feet. It is clear to us that the small washouts mentioned by counsel for plaintiffs in their brief and in their oral argument were farther over on the side of the road and that the measurement of twenty-one feet had reference to that part of the roadway which was entirely safe for travel.

Our conclusion, after a careful review of the testimony, convinces us that Mrs. Maritzky, driver of the automobile, was negligent in her handling of the car and that her negligence was of such character as to preclude recovery on the part of plaintiffs.

Counsel for defendant urge the point that, if it be held that the driver of plaintiffs’ car was negligent, then it follows that defendant should recover for the damage done to its truck. That does not necessarily follow. Defendant’s driver was also negligent. When he passed over the bridge, he saw, or could have seen if he had looked, the automobile approaching from the opposite direction. It was then his duty to swerve his truck over to the righthand side of the road as far as he could with safety. Instead of doing that, he proceeded straight down the road until he met the automobile, at which time the extreme lefthand portion of his truck was at least two feet beyond the center of the road. There is no reason suggested why he should not have gotten entirely over on his side of the road. The fact that he did not do so js due to his own fault and negligence. It is perfectly clear that the truckdriver’s negligence in getting across the center of the road contributed to the collision. We think that even though Mrs. Maritzky was negligent, defendant’s contributory negligence was such as to bar its recovery.

For the reasons assigned, it is ordered and decreed that the judgment appealed from be affirmed; with costs in both courts.

REYNOLDS, J., recused.


source: Caselaw Access Project

author: JANVIER, J.

license: Public Domain

text:
    No. 11,421
    Orleans
    L. & N. W. R. R. CO v. UNION INDEMNITY CO.
    (November 18, 1929. Opinion and Decree.)
    (February 5, 1930. Rehearing Refused.)
    John R. Perez, Henry G. McMahon and John R. Holmes, of New Orleans, attorneys for plaintiff, appellee.
    Manning W. Heard & William W. Ogden, of New Orleans, attorneys for defendant, appellant.
   JANVIER, J.

Plaintiff, a railroad company, seeks to recover from defendant, a fidelity insurance company, a sum of money which the railroad company had paid to certain shippers to compensate them for losses sustained as the result of misappropriation of funds of the shippers by an employé of the railroad.

The fidelity company resists payment, claiming that the employé of the railroad at the time of the respective misappropriations was not acting within the scope of his employment as an employé of the railroad, but was acting rather as the agent of the shippers, and that thus the railroad company was not liable for the losses and should not have reimbursed the shippers.

The fidelity company contends that it agreed to indemnify the railroad company against only such losses as it would be liable for, and not against voluntary payments which for reasons of policy the railroad might wish to make, and that the only acts of employés, contemplated as being within the protection of the fidelity bond, were those within the scope of the employment of the respective employés.

The bond in question contained a list of railroad employés against whose acts the railroad was to be indemnified, and among the employés listed was Evan D. Fomby, cashier of the railroad at Magnolia, Ark.

Moore and Brown, shippers and consignees of lumber to and from Magnolia, Ark., for their own convenience, and without the knowledge or consent of the railroad, left with the said cashier checks signed by them, but in which the amounts were left blank, so that the cashier might, whenever collect shipments arrived, fill in correct amount of freight charges and deliver the shipments without delay.

There were two checks involved in the transaction which resulted in this loss. Under the agreed statement of fact, one of these checks had been. made payable by Moore and Brown to “H. F. Greer, Agent,” but there is some dispute as to whether under the agreed statement of fact the name of the payee had been filled in by Moore and Brown on the other check. At any rate, on two occasions Fomby fraudulently filled in checks for amounts which were not due, and, after indorsing the checks “H. F. Greer, Agt. F.,” cashed the checks. He was authorized by the railroad to so indorse checks which might come into his possession for the payment of freight charges.

The two checks in question were for the amounts of $197.40 and $476.48, respectively. The smaller check was presumably to cover freight charges on car MC 63104 on which the charges had been entirely prepaid, and the larger was presumably to cover charges on a shipment on which only $246.48 was due; thus on the two transactions Moore and Brown were defrauded to the extent of $427.60.

Among the contentions of defendant we find the argument that the bond in question was intended to protect the railroad against direct loss only, and that, since this loss, if the railroad was liable at all, was indirect, in that it was first sustained by Moore and Brown and then by the railroad, there was no liability under the bond.

We think that the provisions of the bond itself fully answer this contention. The stipulation of the bond which is pertinent reads as follows:

“For direct pecuniary loss of money, securities or other personal property belonging to the employer or for which the employer is legally responsible to the owner.”

Assuming temporarily that the employé was acting within the scope of his employment, it is manifest that, for the embezzlement of the funds, the employer, which is the railroad, would have been legally responsible to the owner, Moore and. Brown, and that thus the loss is clearly “nominated in the bond.’’

But was Fomby acting within the scope of his employment in receiving from Moore and Brown, in advance, their checks in blank? We think not. Was he acting within the scope of his employment in filling in blanks left by them in checks? We think not.

He was the agent of the railroad for the purpose of receiving freight money due; not for the purpose of becoming a depositary for Moore and Brown; not for the purpose of receiving money not due. The checks which were left’ with him represented money. Moore and Brown put it into his power to defraud them. They turned over to him their property, which at the time it was turned over to him, was in no sense owing to the railroad company, and thus made him their agent.

“It is well-settled and familiar law that, if one affixes his signature to a printed blank for a promissory note, and intrusts it to the custody of another for the purpose of having the blanks filled up, and thus becoming a party to a negotiable instrument, he thereby confers the right, and such instrument carries on its face an implied authority, to fill up the blanks and complete the contract at pleasure, as to names, terms, and amount, so far as consistent with its printed words, * * * the person to whom a blank note is thus intrusted must be deemed the agent of the signer, and the act of perfecting the instrument is deemed the act of the principal. An oral agreement between such principal and agent, limiting the amount for which the note shall be perfected, cannot affect the rights of an indorsee who takes the note before maturity for value, in ignorance of such agreement, with a different amount written in it.” Market, etc., Nat. Bank vs. Sargent, 85 Me. 349, 27 A. 192, 35 Am. St. Rep. 376; 8 C. J. 732; Wilkes vs. Pope, 4 Ga. App. 36, 60 S. E. 823; C. J. 731.

It is, however, contended by plaintiff that the loss resulted, not from the fraudulent act of Fomby in filling in the amount of the checks, but from the cashing of the checks through the indorsement by him of the name “H. F. Greer, Agt. F.”

We do not think that the proximate cause of the loss was the authority given by the railroad to Fomby to indorse, but was rather the authority given by Moore and Brown to fill in, checks, which authority put it within his power to fill in the checks' for amounts not due or for larger amounts than were due.

Even had Fomby not been authorized by the railroad to indorse the checks, it would have been a very simple matter for him to have defrauded Moore and Brown by merely taking out of his cash drawer sufficient cash to cover the amounts he desired to steal and by substituting therefor checks filled, in by him for similar amounts.

In conclusion, and viewing the transaction as a whole, it appears to us that, when Moore and Brown left blank checks with Fomby, they constituted him their agent, and could not have recovered from- the railroad company except by the voluntary assumption by the railroad of liability.

The trial court felt that plaintiff should recover, but, for the reasons which we have given, the judgment appealed from is annulled, avoided, and reversed, and there is now judgment in favor of defendant, dismissing the suit of plaintiff at its cost.


author: WEBB, J.

text:
    No. 3699
    Second Circuit
    GLOVER v. WASHINGTON-YOUREE HOTEL CO., INC.
    (December 31, 1929. Opinion and Decree.)
    Harry V. Booth, of Shreveport, attorney for plaintiff, appellant.
    Pugh, Grimmet & Boatner, of Shreveport, and Spearing & Mabry, of New Orleans, attorneys for defendant, appellee.
   WEBB, J.

This is an action under the Employers’ Liability Law (Act No. 20 of 1914,- as amended by Act No. 242 of 1928).

Plaintiff prayed for judgment for compensation under paragraph (c), subsec. 1, see. 8 (Act No. 242 of 1928, p. 357), which provides that, where the injuries result in partial disability to do work of any reasonable character, the weekly rate of compensation shall be 65 per centum of the difference between the wages received at the time of, the injury and the wages which the injured employee is able to earn thereafter during the period of disability, not to exceed 300 weeks.

■ In answer to the suit, defendant pleaded a general denial, and on trial judgment was rendered awarding plaintiff compensation at the weekly rate claimed, for a period of 20 weeks; and plaintiff appealed.

Defendant moves to dismiss the appeal on the ground that plaintiff had acquiesced in the judgment by issuing execution thereon and forcing the payment of the amount awarded.

The identical question was presented in the cause of Cory vs. Askew (No. 30151 on the docket of the Supreme Court) 125 So. 455, decided December 2, 1929, in which it was held that the plaintiff did not, by issuing execution on the judgment and forcing payment, acquiesce in the judgment, and lose the right to prosecute the appeal.

The motion to dismiss the appeal is therefore denied.


text:
    No. 11,930
    Orleans
    GAISSER v. N. O. PUBLIC SERVICE, INC.
    (November 18, 1929. Opinion and Decree.)
    (December 16, 1929. Rehearing Refused.)
    (February 5, 1930. Writ of Certiorari and Review Denied by Supreme Court.)

      Ivy G. Kittredge, of New Orleans, attorney for plaintiff, appellee.
    W. J. & N. W. Waguespack, of New Orleans, attorneys for defendant, appellant.
   JANVIER, J.

This suit grows out of the accident which we have discussed in the opinion rendered by us this day in the matter of A. Geismar vs. Charles Gaisser and Mrs. Charles Gaisser et al., 124 So. 691.

In the Geismar case judgment was rendered by the trial court dismissing the suit of Geismar as against Mr. and Mrs. Gaisser, and no appeal was taken from that judgment, so that we are not concerned with the question of the negligence, vel non, of Mrs. Gaisser, who was driving the car, and we held that, as the street car had been running at too rapid a rate of speed considering the locality in which it was, the defendant, New Orleans Public Service Inc., should be held liable. Here, however, the situation is different, and liability is sought to be avoided on the ground of the contributory negligence of the plaintiff, Mrs. Gaisser. It is manifest that Mrs. Gaisser could have seen the street car approaching from her rear, had she given any thought to her own safety. All of the other witnesses who were in position to do so saw the headlight of the street car and it was plainly negligence on her part to emerge from her position of safety alongside the curb and to drive directly into the path of the approaching street car. Her statement that she saw the car some two or three blocks away, even if true, will not benefit her position, because it shows that she knew of the presence of the street car, which knowledge would place on her the duty of again looking before she drove onto the tracks.

Mrs. Gaisser’s testimony as to whether she drove on the tracks immediately in front of the street car, or whether she had been on the track and had traversed several feet before she was struck, is very confusing; but her evidence, taken in connection with that of Leithman and of the motorman, convinces us that she drove onto the tracks only a few feet in front of the ear. Such being the case, she was guilty of contributory negligence, and although the car seems to have been operated at an excessive rate of speed, this contributory negligence prevents her recovery.

We realize that, in coming to this conclusion, we necessarily must reverse the finding of two judges of the district court, since this case was tried by one judge and the Geismar case to which we refer was tried by another, and they both held that Mrs. Gaisser was n.ot at fault. We realize that an appellate court should not reverse a trial court on a question of fact unless the finding is manifestly erroneous, but a careful reading of the entire record in both cases leaves us thoroughly convinced of the correctness of our finding, and thus renders it necessary that we reverse the judgment of the court below.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be and it is annulled, avoided, and reversed, and that there now be judgment in favor of defendant, dismissing plaintiff’s suit at her cost.


text:
    No. 11,398
    Orleans
    GEISMAR v. GAISSER ET AL.
    (November 18, 1929. Opinion and Decree.)
    (December 16, 1929. Rehearing Refused.)
    M. R. Simoneaux, of New Orleans, attorney for plaintiff, appellee.
    Ivy G. Kittredge, of New Orleans, attorney for defendants, appellants.
   JANVIER, J.

Plaintiff seeks to recover for damages caused to his automobile while it was parked alongside the curb in front of his residence at 4721 Prytania Street.

It was struck by a Ford car owned and driven by Mrs. Gaisser, one of the defendants, which Ford car had in turn been struck by a street car of New Orleans Public Service, Inc., and pushed by the street car into the Geismar automobile. All three vehicles were headed in an uptown direction.

The Gaisser car had, a few moments before the accident, been parked alongside the curb about forty or fifty feet in the rear of the Geismar car. Mrs. Gaisser entered her car and started it forward. As the space between the street car track and the curb was only about ten feet, it became necessary for her to turn to her left in order to pass around the Geismar car. In doing this she drove in front of the approaching street car, which was coming so fast that it could not he stopped in time to avoid striking her car. The momentum of the street car carried the Ford along until it had traversed the few feet intervening between it and the Buick car of Geismar and then crushed it into the Buick with such force as to cause the latter to roll forward with the other two vehicles for an additional distance of about thirty or forty feet.

It is apparent that Geismar should recover from one of the defendants, as he was entirely without fault, and as his car was parked where he had a perfect right to leave it.

The trial court dismissed the suit as against Mr. and Mrs. Gaisser, and, as no appeal was taken by plaintiff from that part of the judgment, we are not now concerned with the question of whether Mrs. Gaisser was negligent.

If the New Orleans Public Service, Inc.,, was at fault and that fault contributed proximately to the final unfortunate result, that corporation is liable and may be held for the whole loss. Shield vs. F. Johnson & Son Co., Ltd., et al., 132 La. 774, 61 So. 787, 47 L.R.A. (N. S.) 1080; Cunningham vs. Penn Bridge Co. et al., 131 La. 196, 59 So. 119.

While the speed at which the street car was going was such that, under ordinary circumstances, it could not be said to have been excessive, it appears to us that, in view of the fact that it was approaching a busy commercial center, it should have been under such control as would have permitted of its being stopped within a reasonable distance. Just a block away were located several automobile filling stations, a public market, a large bakery, several groceries and three or four other stores, as well as the large street car barn of defendant corporation. The night was misty and the tracks were wet from a shower of rain which had fallen only a short time before. In view of these circumstances we are of the opinion that the speed at which the car was traveling was excessive.

The two principal disinterested witnesses produced by defendant corporation testified as to the speed as follows:

Camhus: “Yes, he was going rather fast; in fact, I remarked in my own mind, I was reading a newspaper, on the manner in which the car kept jumping, and he was sounding his bell, and I thought he was going a little too fast.”

Leithman: “It was going pretty fast.”

Whatever may have been the fault of Mrs. Gaisser, certainly the speed of the car was a contributing factor to the accident. Such being the case, defendant, New Orleans Public Service, Inc., is liable.

Mr. Gaisser, the husband of the owner and operator of the Ford car, was made a party defendant, but the evidence showed conclusively that the automobile belonged to his wife, having been given to her by her mother and was being operated by her entirely in her own affairs, and for these reasons the suit as against Mr. Gaisser was dismissed.

The amount allowed by the trial court, $247.75, with legal interest from judicial demand, covers the actual damages sustained by the automobile, and we see no reason to change it.

It is therefore ordered, adjudged and decreed that the judgment appealed from bs and it is affirmed, at the cost of appellant.


text:
    No. 11,473
    Orleans
    RAYMOND v. DAVIS
    (December 16, 1929. Opinion and Decree.)
    Edward Rightor, of New Orleans, attorney for plaintiff, appellee.
    Chas. F. Fletchinger, of New Orleans, attorney for defendant, appellant.
   JANVIER, J.

Defendant, Davis, a general contractor, was induced by his friend, Walker, to bid on certain reinforced concrete work required by the board of commissioners of the Port of New Orleans, which board we will hereinafter, for brevity, call the Dock Board.

Davis, through Walker, solicited from various furnishers of reinforcing steel, including plaintiff, Raymond, bids on the steel bars necessary. Some of the bidders specified in their bids that the steel bars would comply with the specifications of the Dock Board, but Raymond’s original bid made no reference to specifications, but merely contained an offer to furnish “45,589 pounds of reinforcing steel bars cut to length as shown on list, which you (Walker) gave me today.”

The list referred to made no mention of the fact that approximately 75 per cent of the bars would have to be bent.

This offer was made by Raymond on June 30, Í925. On IJjily 13, 1925, Davis wrote Raymond accepting his bid with the proviso that the steel should comply with the Dock Board’s specifications. With this letter Davis sent Raymond blueprints showing that three-fourths of the steel was to be bent. The specifications, a part of which was quoted in Davis’ letter, provided that the steel should be billet steel, except that that part of it which was to be used straight, might be rail steel. Billet steel is more expensive than rail steel.

On July 16th Raymond wrote to Davis, thanking him for the order, and in his letter inclosed -“one copy of straight bar list and bending details.’’ When the steel arrived, all of it that was bent was rejected by the Dock Board on the ground that it was rail steel and not billet steel and therefore did not comply with the specifications. Davis was compelled to secure other steel at a higher price and he was' forced to remove and store the rejected steel, as Raymond refused to receive it back.

Raymond brings this suit for the contract price of the entire order ($1,344.45).

Davis concedes his indebtedness for so much of the steel as he used, but contends that, whereas under the contract he was to obtain all the steel for the price mentioned, as a matter of fact he was compelled to pay more for the steel which he bought elsewhere, and was also compelled to pay for freight and for hauling and storage expenses, so that the total cost to him was $1,351.41, or $6.96 more than the contract price which Raymond had made him, and he asks that his right to sue for this sum, to-wit, $6.96, be reserved to him.

The sole question presented is: Did Raymond know or ought he to have known, that 75 per cent of the order must be billet steel?

We are thoroughly convinced of the absolute good faith of both parties. The error was one of those unfortunate ones which, without intentional wrongdoing, result in loss. But, since there was loss, we must determine by whose fault it occurred.

Raymond claims that he was justified in assuming that, since the first list furnished him made no mention of billet steel or of the fact that some of the steel must be bent, all of it was to be straight and that rail steel would be acceptable.

We find it unnecessary to determine whether or not a copy of the specifications was furnished to Raymond with the first list. Walker says that it was, but Raymond claims that it was not. We are quite convinced that, before the offer was accepted, both the specifications calling for billet steel where bent and the bending details, showing that most of it was to be bent, were in Raymond’s possession. Whether he overlooked the requirement of the specifications, or whether he thought he could convince the Dock Board that rail steel was just as good, we are unable to say. All that is important is that, had he carefully read the letter, or had he carefully checked the specifications, he would have seen that rail steel would not do. He was an expert in matters of that kind and his oversight caused the loss. He is therefore responsible for it.

The trial court awarded Raymond judgment for the amount of steel used. If Raymond had been in tut right, he would have been entitled to a judgment for the full amount oí his contract. Since he was in the wrong, he is liable for the loss caused Davis, which loss was more than Davis owed him. Davis is entitled to his right in this suit to claim as an offset so much of the additional amount spent by him as may be necessary to balance the claim of Raymond.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be and it is annulled, avoided, and reversed, and that there now be judgment in favor of defendant, dismissing plaintiff’s suit at his cost.


author: WESTERFIELD, J.

text:
    No. 11,885
    Orleans
    L. FEIBLEMAN & CO., INC., v. O’ROURKE
    (November 18, 1929. Opinion and Decree.)
    (December 16, 1929. Rehearing Refused.)
    (February 5, 1930. Writ of Certiorari and Review Denied by Supreme Court.)
    Deutsch & Kerrigan, and Bert Flanders, Jr., of New Orleans, attorneys for plaintiff, appellee.
    E. M. Stafford, and Howard Carter, Jr., of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

This is a suit by a department store against the husband for purchases made on open account by his wife. The amount claimed is $193.03, for which judgment was rendered as prayed for, and defendant has appealed. Defendant resists payment of the account upon the ground that the items of which it is composed were not necessary, since he had supplied his wife with everything she needed consistent with his station in life.

Article 120 R. C. C. provides that the husband is obliged to furnish his wife with “whatever is required for the convenience of life, in proportion to his means and condition.”

In Schaeffer vs. Trascher, 165 La. 315, 115 So. 575, 576, it was held that “a husband is liable for necessaries supplied to his wife when he himself fails or refuses to supply them. Van Horn vs. Arantes, 116 La. 130, 40 South. 592. But the reverse of this is equally true, to-wit: that the husband is not liable for supplies furnished to the wife when he himself is ready and willing to supply them.”

Defendant and his wife were married in 1924 and lived together more or less happily for four years, when a suit for separation was instituted. Defendant claims to have allowed his wife the sum of $25 per week, out of which she was expected to purchase the groceries and marketing and such clothing as she might require. He was not very impressive as a witness, since, when first questioned, he could not tell the amount of his income, or the number of pieces of real estate which he owned, and would not hazard an approximation. He ultimately admitted that he owned about fifteen pieces of (property and guessed his income to be in the neighborhood of $550 a month, out of which sum he claimed to have a net income of only $150, though he is by no means clear in accounting for the difference. By net income he means the amount remaining after paying about $200 a month to the homestead on account of certain mortgages resting on his property and making an allowance to his wife for housekeeping expenses. On the other hand, his wife testified that she received only $15 a week and was expected to provide food for both of them and dress herself on what might be left out of this meager sum. She testifies, and it is not contradicted, that the account with plaintiff is the only one which she opened during their married life. The account is made up of items relating exclusively to female attire, dresses, underclothing, a number of stockings, “teddies” and “step-ins,” which counsel for the defendant husband contends were excessive as to quantity and of unnecessary quality. The defendant has not satisfied us that he supplied his wife with sufficient funds to permit of her clothing herself in a manner t consistent with his circumstances. Even if his statement concerning the $25 per week is correct, and it is not established by the evidence, that amount would hardly be sufficient to supiply food for both of them and clothing for his wife. We are not certain as to whether the articles mentioned were necessary or not, or whether they were in such quantity, or of such quality as defendant’s means and condition warranted, and we are unable to say with any confidence the exact number of dresses, t stockings, “teddies” and “step-ins” which a lady in the situation of Mrs. O’Rourke would or should require, but since this is the only account which she charged to him during the four years of their married life, and that account was opened just prior to their separation, we take it that she must have been very much in need of clothing, and the amount of the bill does not appear to us excessive in the light of such information as we have on such subjects.

The trial judge was of that opinion and we agree with him.

For the reasons assigned the judgment appealed from is affirmed.


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    No. 11,471
    Orleans
    MAESTRI v. SCHAFER BROS.
    (November 18, 1929. Opinion and Decree.)
    (December 16, 1929. Rehearing Refused.)
    (February 5, 1930. Writ of Certiorari and Review Denied by Supreme Court.)

      Guy J. D’Antonio, of New Orleans, attorney for plaintiff, appellant.
    Deutsch & Kerrigan, and E. Jose Duron, of New Orleans, attorneys for defendants, appellees.
   WESTERFIELD, J.

This is a suit in damages for an alleged breach of a contract for repair of a building belonging to plaintiff. The contract is set forth by the following written offer and acceptance.

“New Orleans, La., November 2, 1925,

“We propose to do all alterations on residence #1737 Esplanade Ave., as per plans and specifications #579 by J. J. Lagarde for the sum of Six Thousand Eighty Eight ($6088.00) Dollars.

“Hoping that this price meets with your approval and to be favored with same.

We are respectfully,

Schafer Bros.

Per Aug. F. Schafer,

1023 Piety St.,

Phone Hem. 493.

“P. S. — -The above price is for a glazed tile roof. Deduct $150.00 for a terra cotta roof.”

“New Orleans, La.

“November 6th, 1925.

“Schafer Bros.,

1023 Piety Street,

New Orleans, La.

Attention: Mr. A. F. Schafer. Gentlemen:—

“I have accepted your bid under date November 2nd, 1925, for alterations and additions to the premises #1737 Esplanade Avenue, as you know, under J. J. Lagarde’s plans and specifications #579 as is set forth in your bid, and I understand that you have sixty (60) days within which to begin the work.

“Without in any manner changing that offer and the acceptance of it, I wish to assure you that I will deem it as a personal favor to me if you will cause the work to begin as soon as you can conveniently dp so.

“With kindest ¡personal regards to you, I am,

Yours very truly,

NM Signed N. Maestri.”

It is admitted that the damages claimed, $902, are not excessive.

Subsequent to entering into the contract defendant was asked by plaintiff to furnish a bond, with which request he failed to comply and declined to carry out his agreement. There is testimony in the record by plaintiff to the effect that he had always intended to have a bond given by defendant and to draw up a regular notarial building contract under the building laws of Louisiana. The defense to this suit is based on that circumstance.

The court below in deciding the case in defendant’s favor gave the following written reasons:

“The court is of the opinion that a written contract was intended at all times by both parties. Hence there was no contract, as this written contract was never signed. Laroussini vs. Werlein, 52 La. Ann. 424, 27 So. 89, 78 Am. St. Rep. 350.

“Plaintiff’s suit must therefore be dismissed.”

We find ourselves unable to agree with our learned brother below in his opinion that the instant case is controlled by Laroussini vs. Werlein, 52 La. Ann. 424, 27 South. 89, 90; 78 Am. St. Rep. 350.

In the first place, there is here a written and not a verbal contract. The agreement between the parties to this case as set out in their written correspondence does not on its face indicate that it was subsequently to have any other form, and there is no reference to any intention on the part of either party to join in a notarial act. That the defendants were under no misapprehension as to the character of the agreement they had entered into, is shown by the fact that they immediately requested the use of the specifications in order that they might order the materials necessary for the work which they had undertaken. Even if the plaintiff in this case had intended to ask the defendants to enter into a notarial contract with all the formality required under the building laws of this State, the mere fact that he entertained such an idea could not invalidate his written agreement with the defendants.

In the Laroussini case, it was held that, when a verbal contract of lease is agreed on and it is understood that it would be reduced to writing and the written lease take the place of the verbal agreement, that, until such written lease was confected, there would be no contract of lease, but, at the same time, the court declared that:

“A verbal contract of lease, complete in itself, independent of any writing, and unaccompanied by an intention to have the same reduced to writing, as perfecting it, is an enforceable contract. And if such a verbal contract be made, and subsequently the parties agree that the same shall be reduced to writing and be signed and afterwards there is a failure to so reduce it to writing and to signatures— one of the parties refusing — it is still enforceable as a binding contract.”

In the case at bar, as has been heretofore stated, the contract was in writing and there is no reason to suppose that, at the time of its confection, there was any intention to have another contract prepared. Whatever may have been plaintiff’s intention in that respect, the defendants did not so understand the situation, as is evident from their conduct in ordering building materials immediately after the acceptance of their offer.

Our conclusion is that the plaintiff should recover, consequently, for the reasons herein assigned, the judgment appealed from is annulled, avoided and reversed, and there is now judgment in favor of plaintiff, Natale Maestri, and against the defendants, Schafer Brothers, an ordinary partnership composed of August F. Schafer and.Louis Schafer, in the full sum of $902 with legal interest thereon from date of judicial demand until paid and for all costs.


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    No. 11,915
    Orleans
    MAYER v. WAGUESPACK
    (November 18, 1929. Opinion and Decree.)
    (December 16, 1929. Rehearing Refused.)
    Arthur F. Peters, of New Orleans, attorney for plaintiff, appellant.
    W. J. Waguespack, of New Orleans, attorney for defendant, appellee.
   JANVIER, J.

Plaintiff is the owner of a duplex apartment. He had leased one of the apartments to defendant.

The apartment had just been remodeled and a new steam-heating system had been installed. Defendant did not occupy the premises for the whole term of the lease, but sublet it to another tenant. At the expiration of the lease it developed that there were certain defects in the premises, the only important one of which was a leak in the steam boiler. This suit is brought by plaintiff i,n an attempt to recover from defendant the damages caused the premises.

Defendant contends that, so far as the minor items are concerned, settlement has been made for these, and, so far as the major item, consisting of the damage to the steam boiler, is concerned, the proof fails to show that the leak in question did not exist at the time of the commencement of the lease. The trial court rendered judgment in favor of defendant.

A study of the record leads us to the belief that the finding of the trial court was correct. There is some conflict as to whether or not the water bill which defendant claims he settled was the same bill for which plaintiff is now seeking to recover. This is purely a question of fact which was resolved by the trial court in favor of defendant, and we are unable to say that the evidence convinces ns that the finding of the trial court is erroneous.

At the time of the installation of the heating system, it was absolutely new, and therefore ordinarily it would be fair to presume that it was not defective. The testimony, however, shows that the defect whinh is now complained of would not make itself manifest until the pressure in the boiler was raised to about five pounds, and the evidence also shows that in ordinary normal houses a pressure of three or four pounds was all that was required for the heating of the premises. It is therefore quite possible that the defect existed at the time of the installation of the boiler, and the evidence of plaintiff’s witnesses, instead of showing conclusively that the defect did not exist at that time, shows that there was a fair possibility of its having been there from the very beginning. For instance, Mr. Troy, who repaired the boiler for plaintiff after the defect was discovered, testified as follows:

“Q. You don’t know whether it was an original crack? It is practically impossible to state what was the cause of it, this crack was right where the cold water entered the thing and it might be an original defect?

“A. That is possible, it had never been run under any high pressure.”

In our judgment there is considerable doubt as to whether this defect existed originally or not, but the burden is on plaintiff to prove that it did not exist when the premises were leased to defendant, and the evidence produced by plaintiff is not sufficient on this point.

We are of the opinion that the finding of the trial court was correct, and the judgment appealed from is therefore affirmed.


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    No. 11,507
    Orleans
    WILLIAMS v. MESSINA
    (December 16, 1929. Opinion and Decree.)

      Johnston Armstrong, of New Orleans, attorney for plaintiff, appellee.
    Maurice R.' Woulfe, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

The plaintiff, while a tenant of defendant, was injured by falling from a gallery attached to the rear of the premises she occupied. She alleges that her fall was due to the defective condition of the railing or banister, which broke when she placed her hand on it precipitating her to the ground.

Defendant admits that plaintiff fell from the gallery and was injured, but contends that he is not responsible for the damages, for the reason that the banister in question gave way when used as an anchorage for a clothes pole on which had been stretched a clothes line laden with heavy wet clothes, and, that while in the act of tying the clothes line to the banister, the banister gave way under the unusual strain at a time when the plaintiff was leaning over it with her weight against it.

Defendant relies on the authority of Parker vs. Kreber, 153 La. 197, 95 So. 601, 602, and Weston vs. Vernaci, 11 La. App. 186, 123 So. 166.

In the first-cited case the plaintiff leaned against the balustrade, which gave way and caused her to fall, but she knew that “the railing was in a dilapidated and defective condition” and that a carpenter was present at the time for the purpose of repairing it. In the other case it was held that the plaintiff was injured by stumbling when walking down the stairway and not by reason of the defective condition of the stairway, and her recovery was denied on that ground.

In the instant case, the question of the cause of plaintiff’s injury is the subject of contradictory testimony, which the trial judge resolved in favor of plaintiff, very largely because of the fact that the defective railing was shown by the evidence to have been in the possession of defendant and was not produced by him. His reasons for judgment are very brief and as follows:

“The evidence is contradictory, but I believe more in the credibility of plaintiff’s witnesses than of those of defendant. It appears too that defendant had possession of the rotten rail; but’failed to produce it to prove its condition when he could have done so.”

From our examination of the record, we are unable to say that, in reaching his conclusion upon this controverted question of fact, the trial judge Was manifestly in error.

As to the quantum, the plaintiff is a negro washerwoman, and she doubtless suffered a loss of income, the amount of which appears uncertain from the record. She suffered very little from her injuries, which were very slight. The judge a quo fixed her damages at the sum of $250, and we are not disposed to disturb that award.

For the reasons assigned, the judgment appealed from is affirmed.


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    No. 13,109
    Orleans
    UHALT v. THE ITEM CO., LTD.
    (December 16, 1929. Opinion and Decree.)
    Dart & Dart, and Leo L. Dubourg, of New Orleans, attorneys for plaintiff, appellee.
    Henry & Cooper, of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

This suit results from the collision of an automobile and a motorcycle at the corner of Melpomene and Howard streets in the city of New Orleans. The trial court found the motorcycle operated hy the defendant company to be at fault and assessed the damages to plaintiff’s car at $75. Defendant has appealed.

We have no difficulty in reaching the conclusion that the judgment appealed from is correct. Our appreciation of the facts, as developed hy the record, is as follows:

Plaintiff’s car, a Yelie sedan, was proceeding out Melpomene street from the direction of the lake toward the river and was well in the intersection of Howard street, when defendant’s motorcycle, to which was attached a side car, approaching at a high rate of speed, suddenly emerged from the rear of a Ford roadster, which had stopped at the intersection to permit the Velie sedan to pass. The driver, seeing the sedan in his path, attempted to come to a stop, but lost control of the motorcycle, which skidded over the pavement and crashed into the rear of the Velie sedan at a point near the river curb of the intersection.

On behalf of defendant it is argued that, since the motorcycle was approaching from the right side of the Velie, it should have been accorded the right of way, citing Ross vs. Corcoran, 10 La. App. 305, 120 So. 883. The Ross case is not in point for the reason that the Velie car was in the intersection and had almost completed the crossing when the motorcycle entered It. Moreover, we are convinced that the accident was due to the excessive speed of the motorcycle, which, as it approached the intersection, was hidden from the view of the driver of plaintiff’s car, being screened by the Ford roadster.

There is no dispute as to the quantum of damages awarded by the court, a qua.

For the reasons assigned, the judgment appealed from is affirmed.


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    No. 13,166
    Orleans
    CITY OF NEW ORLEANS BY AND THROUGH THE PUBLIC BELT R. R. COMMISSION FOR THE CITY OF NEW ORLEANS v. NEW ORLEANS COAL & BISSO TOWBOAT CO.
    (November 18, 1929. Opinion and Decree.)
    (December 16, 1929. Rehearing Refused.)
    Wm. McL. Fayssoux, of New Orleans, attorney for plaintiff, appellee.
    Bond, Curtis, Hall & Foster, of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

The plaintiff sued for demurrage on coal cars in the sum of $5,155, and for legal interest from judicial demand. The defendant, in answering, denied any indebtedness, but on the trial of the case admitted that $4,265 was due, and contested only an item of $5 and another i,tem of $293, whereupon the plaintiff reduced its claim to $4,563. The trial court, after a hearing in which only $298 was in contest, rendered judgment for plaintiff in the sum of $4,563, the amount to which plaintiff’s claim had been reduced. Defendant first appealed to the Supreme Court, and that court, under the number of 29842 of its docket. City of N. O. vs. N. O. C. B. Towboat Co., 168 La. 1093, 123 South. 724, held, through Chief Justice O’Niell, that the amount involved was only $298, a sum manifestly below its minimum jurisdiction, and ordered the case transferred to this court.

The issues presented here involve:

First, an item of $5, representing a charge for demurrage on car D. T. I. 1029, under date of July 22, 1923;

Second, a demurrage charge amounting in the aggregate to $293, based upon an amount alleged to be due plaintiff on cars which defendant contends has not been sufficiently proven; and

Third, a question of whether interest shall be allowed upon the judgment from judicial demand.

As to the first charge, that concerning the item of $5, the objection is made that under the tariff rule's demurrage begins to run only after 7 o’clock a. m.; that is to say, that a shipper has until 7 a. m. in which to unload a car before being charged for demurrage for that day. It is alleged that thi,s particular car was examined at 6 a. m. instead of 7 a. m., and it is contended that, though it was found to be full at 6 o’clock, it might have been emptied by 7 o’clock. There is no pretension that it was, as a matter of fact, emptied at 7 o’clock, but simply that it might be. The point is not stressed and, does not seem to us to be serious, since there is no showing that defendant was in any way prejudiced by the examination of the ear at 6 o’clock instead of 7.

As to the second item in contest, that involving $293, defendant resists payment of this amount upon the ground that it is based upon the record of the demurrage clerk of the plaintiff railroad, who reported the cars for which charges of demur-rage were assessed as having been constructively placed, when the records of the yard clerk do not affirmatively show that the cars in question had been received in the yard of the plaintiff Public Belt Railroad. In the absence of any countervailing proof, we consider the record of the demurrage clerk, whose duty it was to check the cars and assess the demurrage charges, sufficient.

As to the third contention of defendant, to the effect that interest should not be allowed, the argument is that demurrage is a penalty and not a debt upon which interest may be assessed for failure to pay. On the other hand, plaintiff relies upon article 1938, R. C. C., which provides that “all debts shall bear interest at the rate of five per centum per annum from the time they become due, unless otherwise stipulated.” Interest is asked only from judicial demand. We have been referred to no express authority on either side and have reached the independent conclusion that interest is due. Demurrage may be assimilated to storage charges, with which it is closely analogous; “the only difference being that, in- the latter instance, the goods are removed from the car by the carrier’s agents and placed in warehouses, while in the former they remain in the car until unloaded by the owner.” 10 C. J. 464.

“The law imposes upon railroad companies the duty of supplying the shipping public with prompt and proper service. They are bound to furnish cars, and if the owner of goods shipped does not perform his duties in unloading within a reasonable time, the public, as well as the carrier, may be greatly inconvenienced. Railroads are under heavy duties and liabilities as public carriers, and it would be manifestly unjust to deny them the right to make reasonable demurrage charges for the unreasonable detention of their cars.” Baltimore, etc., R. Co. vs. Luella Coal Co., 74 W. Va. 289, 81 S. E. 1044, 1045, 52 L. R. A. (N. S.) 398.

In this view demurrage may be said to be compensation for the use of the facilities of the railroad beyond a reasonable time, during which their gratuitous use is permitted by, or required of, the carrier. We are of opinion that interest should be allowed upon demurrage charges, as well as upon charges for freight or other obligations of the shipper.

For the reasons assigned the judgment appealed from is affirmed.


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    No. 11,890
    Orleans
    INDUSTRIAL DISCOUNT CO., INC., v. SCHERER ET AL.
    (December 16, 1929. Opinion and Decree.)
    Guy D’Antonio, of New Orleans, attorney for plaintiff, appellant.
    Frymire & Ramos, of New Orleans, attorneys for defendant, appellee.
   WESTERFIELD, J.

The plaintiff, alleging itself to be the holder in due course of a certain promissory note of the principal sum of $150, brought suit against the maker and indorsers thereof, of which latter there were several, and among them H. Eckelman, the appellee herein. Eckelman in his answer denied signing the note as indorser and averred that his purported signature was a forgery.

On the trial of the case it was admitted that Eckelman’s signature had been affixed to the note by the maker, but it was contended that the action of the maker i,n this respect was authorized by Eckelman, and that in any event Eckelman had subsequently ratified the action, whether authorized or not.

Defendant’s counsel promptly objected to any evidence tending to prove authorization or ratification upon the ground that its effect would be to enlarge upon the pleadings and inject new issues, since the petition alleged that Eckelman had signed the note. This objection was overruled by the trial court, and the evidence admitted. Notwithstanding its admission, the court rendered judgment in favor of defendant, dismissing plaintiff’s demand.

The view we take of the case precludes a consideration of the defenses unsuccessfully relied upon below, and again pressed here, because we are of opinion that the evidence, in support of these defenses was clearly inadmissible. The sole issue before the court was the genuineness of Eckelman’s signature to the note, the question of forgery vel non.

“Evidence, which does not correspond with the allegations of the party offering it, is inadmissible. Thus, under a special allegation of one title, evidence of another can not be received. (1832) Delogny v. Smith, 3 La. 418; (1845) Nicholls v. Creditors, 9 Rob. 476.” 6 La. Dig. 113.

“Evidence cannot be received to prove a demand where it has not been alleged in the petition. McMaster v. Brandon [Brander] 2 Rob. 498.” 6 La. Dig. 113.

“Evidence which tends to change the issues raised by the pleadings should not be received over defendant’s objection. Ruddock Orleans Cypress Co. v. DeLuppe, 123 La. 831, 40 So. 588.” 6 La. Dig. 113.

“One cannot prove what he has not alleged, and under pleadings which are, in effect, a general denial, the controversy is reduced to proof or falsity of plaintiff’s allegations. Wells v. St. Dozier [Dizier] 9 [La.] Ann. 119; Chase v. Gas Light Co., 45 [La.] Ann. 303 [12 So. 308]; Alaux v. Thompson, Teiss, Orleans App. Dig. 69.” 8 La. Dig. 778.

For the reasons assigned, the judgment appealed from is affirmed.


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    No. 11,591
    Orleans
    WILLIAMS v. LYKES BROS. S. S. CO.
    (December 16, 1929. Opinion and Decree.)
    Scott E. Beer and Walter M. Barnett, Jr., of New Orleans, attorneys for plaintiff, appellant.
    John C. Hollingsworth and Thomas J. Dobbins, and Lloyd A. Ray, of New Orleans, attorneys for defendant, appellee.
   JANVIER, J.

Plaintiff, a river front laborer, was injured while at work by being run over by an automobile truck owned ■ by defendant and operated by one of its employés within the scope of his employment.

At the time of the injury, plaintiff was manipulating a small hand truck across the roadway which parallels the sheds of the docks on the bank of the river.

Plaintiff claims that he was pushing the hand truck, and defendant’s witnesses contend that he was walking backwards and pulling it. Since it was his right foot which was injured, his counsel claims that he must have been pushing the hand truck, as otherwise his left side would have been towards the autotruck and his left leg instead of his right would have received the injury. But if he was pushing the hand truck, manifestly it was in front of him, and it would have been struck by the autotruck. The evidence convinces us that the hand truck was not struck at all. Therefore it necessarily follows that Williams must have been pulling it with his back in the direction in which he was moving. This physical fact would not of itself be sufficient to convince us that he was pulling the truck instead of pushing it, but, in connection with the testimony of defendant’s witnesses, it causes the evidence to preponderate in favor of defendant’s contention. It is quite evident, from a reading of the record, that Williams emerged from between the two other automobile trucks when defendant’s truck was immediately upon him, and that there was therefore no time for its driver to stop, and that the doctrine of the last clear qhance is not applicable.

Defendant’s witnesses state that Williams suddenly backed into the autotruck, and we are convinced that that is what happened.

That his right foot was injured resulted from the fact that that foot was the one which was thrust forward just as the truck passed.

Only a question of fact is involved, and we cannot say that the trial court was manifestly erroneous in its finding that defendant was not liable. On the contrary, the evidence well convinces us that the fault lay entirely with plaintiff himself.

The judgment appealed from is therefore affirmed.


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    No. 13,180
    Orleans
    FLYNN v. EGAN
    (November 18, 1929. Opinion and Decree.)
    (December 16, 1929. Rehearing Refused.)

      Richard A. Dowling and Wm. R. Kinsella, of New Orleans, attorneys for plaintiff, appellee.
    Milner & • Porteous and P. M. Milner, of New Orleans, attorneys for defendants, appellants.
   WESTERFIELD, J.

Plaintiff brings this suit for damages for personal injuries against defendants, who are paving contractors, alleging that he fell into an excavation in the sidewalk which had been made by the defendants in connection with certain paving work they were engaged in.

The accident occurred at 8 p. m. on the night of January 10, 1929, on Franklin Avenue, between Myrtle and Elder Streets. The excavation, which was on the sidewalk of Franklin Avenue, was seven feet long, four feet wide and three feet deep. This sidewalk' is paved in the center, with a grass plot on each side. The paving is four feet wide and the excavation extended into the paving about twelve inches. The night of the accident was rainy and, dark. Plaintiff alleges that, at the time of the accident, he was walking with his mother on the pavement on Franklin Avenue, that the hole was not protected by any barricade or lantern and that he was suddenly precipitated into it without being aware of its presence. Defendants aver that they are without responsibility, for the reason that a proper barricade had been erected and a red lantern placed about the excavation, and that at 6 o’clock of the evening of the accident a night watchman in the employ of defendants, whose duty it was to inspect this lantern and, others on similar excavations in other localities where defendants’ paving operations were in progress, observed this lantern to be burning.

There was judgment below in plaintiff’s favor in the sum of $979.50 and defendants have appealed.

There is little dispute as to the facts. We are convinced, as was the judge of the trial court, that the barricade and lantern had been put in place by an employee of defendants on the night of the accident, but that neither the barricade nor lantern was there when plaintiff fell in the hole. It appears from the testimony of defendants’ witnesses that several times prior to the accident the barricade had been removed and had to be replaced, one of the witnesses attributing the removal of the barricade to “bad boys” in the vicinity.

The trial court based its judgment upon the insufficiency of the barricade, which consisted of a plank two inches wide by ten feet long, supported by tiling ten inches wide and three feet high, in the middle of which had been placed a red lantern. Referring to this barricade the court said:

“I don’t think the barricade was a sufficient barricade to protect the public. A lantern laying on a loose plank of that kind, supported on two tile pipes, especially in a neighborhood where boys are in the habit of removing it, does not allow a proper amount of safety to protect pedestrians walking along sidewalks from possible injury such as happened on this particular night.’’

We agree with our brother below and are also of the opinion' that the barricade was insufficient. A barricade should be an obstruction and an actual impediment to travel, not merely a warning. The placing of a lantern in the middle of a plank loosely supported by tiles at each end does mot impress us as a compliance with defendants’ obligation in the premises, particularly since similar barricades had several times, in the past, been removed by unauthorized persons, leaving the excavation without any protection whatever. Moreover, this hole extended into the narrow paved walk upon which pedestrians were obliged to travel, an additional reason for the presence of a proper barricade. We are of opinion that defendants were properly held liable under the circumstances.

As to the quantum, the trial court allowed $750 for pain and suffering, in addition to medical expenses incurred by plaintiff and earnings of which he was deprived by reason of the accident. Plaintiff’s knee was injured and he was confined to his home for four weeks. It does not appear that he suffered' to any great extent and we believe an allowance of $500 for this item of damage would be more consistent with awards we have approved in similar cases.

For the reasons assigned, the judgment appealed from will be amended by reducing the amount awarded plaintiff by the sum of $250 and, in other respects, affirmed.


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    No. 12,076
    Orleans
    SIMS v. HARPER
    (November 18, 1929. Opinion and Decree.)
    (December 16, 1929. Rehearing Refused.)
    (February 5, 1930. Writ of Certiorari and Review Denied by Supreme Court.)
    ■ Roland B. Howell, of Thibodaux, attorney for plaintiff, .appellee.
    Chas. J. Mundy, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

Plaintiff brings this petjtory action against the defendant, Jefferson Harper, alleging that, in the early part of 1928, she acquired by authentic act of sale all of the undivided interest of the heirs of Gilbert Bradley in and to several pieces of property situated in the parish of St. Charles; that Gilbert Bradley died intestate, the succession being opened in the Twenty-Eighth judicial district court in the parish of St. Charles, under the number of 1242 of the docket thereof; that judgment was rendered in the succession proceedings, sending the heirs of Bradley into possession of his property, included in which was a certain lot No. 126, described in plaintiff’s petition; that the defendant Harper is in possession of lot -No. 126 and • refuses to surrender possession thereof to plaintiff.

Defendant, in his answer, admitted substantially the allegations of plaintiff’s petition, but claimed to be the owner of lot No. 126 by virtue of a certain act of sale and purchase passed before Joseph Clement Triche, a notary public, on July 5, 1906, whereby Gilbert Bradley transferred to defendant lot No. 132, instead of lot No. 126; “that Gilbert Bradley could not read or write and erroneously gave to .Mr. Joseph Clement Triche, the notary before whom the act of sale was passed, the description of lot No. 132, instead of lot No. 126; and which erroneous description was thus incorporated in said deed without the knowledge or the intent of either party to this transaction.” Further answering, defendant avers' that he went into immediate possession of lot No. 126, “built his house and other buildings thereon without any hint of objection of said Bradley that he (respondent) was on the wrong land; that respondent and Bradley lived side by side, within a few yards of each other, for nearly three years, until Bradley’s death, without either party to the transaction (knowing) that there had been a mistake made ‘ in the -description contained in respondent’s deed”; that his family are still in possession and have been for over twenty-two years; that plaintiff “was not in good faith because she well knew before she purchased the land that respondent was in possession -of lot No. 126 and believed that he was the absolute owner thereof.”

The plaintiff filed a rule for a judgment upon the face of the pleadings, which was made absolute. From this judgment defendant has appealed.

Every issue presented by this record was considered in the case of Gonsoulin vs. Sparrow, 150 La. 103, 90 So. 528, where it was held that innocent third parties who deal on the face of public records are protected thereby; that the fact that the purchaser of real estate knew that the prior owner occupied the property when they bought is not sufficient to prove that they acted in bad faith; that article 1881, Rev. Civ. Code, declaring engagements made through error, fraud, etc., voidable by the parties who have contracted under such influence, does not affect third persons, because such defects are of a latent character and persons who have acted in good faith by purchasing from the owner of record are entitled to be recognized as owner against one in possession, claiming that the deed was signed in error, or that he failed to read it, or to have it read to him.

The cited case is controlling and fully supports the judgment appealed from.

For the reasons assigned, the judgment appealed from is affirmed.

HIGGINS, J., takes no part.


author: REYNOLDS, J.

text:
    No. 3571
    Second Circuit
    CITIZENS HARDWARE & FURNITURE CO., INC., v. C. R. I. & P. RY. CO.
    (December 31, 1929. Opinion and Decree.)
    H. W. Ayres, of Jonesboro, attorney for plaintiff, appellant.
    Barksdale, Warren & McBride, of Ruston, attorneys for defendant, appellee.
   REYNOLDS, J.

Plaintiff sued defendant for $882, damage done to a store building and stock of merchandise by flooding from rainfall, the flooding being caused, plaintiff alleged, by the construction by defendant of a dump or roadbed for a spur track with culverts thereunder for the passage or drainage of rainwater insufficient i,n size and improperly located.

Defendant denied that the construction of the dump or roadbed had anything to do with the flooding of plaintiff’s store or the damaging of his goods, and denied that the culverts under the roadbed were improperly located or insufficient in size.

It alleged that the locality where plaintiff’s building stands is below the level of the surrounding territory, and that rainwater naturally gravitates to and stands there, and that plaintiff erected its building in that territory well knowing this fact and did not raise the level of the floor of the building- above that of the surrounding territory, and that i,n consequence surface water flowed into his store and damaged his property.

On these issues the case was tried and judgment was rendered rejecting plaintiff’s demands and dismissing its suit, and it appealed.

OPINION

There are more than 200 pages of evidence in the record, and we have carefully read all of it. The case was well tried, and every fact that might tend to show that the flooding was the fault of defendant seems to have been proved.

It does not appear from the evidence what was the proximate cause of the particular accumulation of water in plaintiff’s building. The burden was on plaintiff to establish this cause, and that negligence on the part of defendant was responsible for it. Civ. Code, art. 2232; Code Prac. art. 312; 12 Louisiana and Southern Dir gest, title Evidence, sub-title Burden of Proof, key number 90. .

The evidence does indicate that any one of several things, for none of which defendant was responsible, may have been the proximate cause of the flooding. One of these was the interruption of drainage by the closing of a culvert on the north side of Main street in front of plaintiff’s store. The culvert was under the supervision and control of the town authorities, and, according to the testimony of the mayor of the town, Mr. A. H. May, was closed by the town authorities.

“Q. That culvert has been stopped up?

“A. Yes, sir.

“Q. That stoppage is due to the town, is it not?

“A. It is under the supervision of the town.

“Q. The railroad company had nothing to do with that stoppage?

“A. No.

“Q. After these excessive rains, you say Mr. Parker went there and made an opening in the culvert just on the outside of the stop post?

“A. Yes, sir; he did. That whole drainage was opened at that time.”

We have not been able to find in the evidence proof of any fact tending to show that the flooding of plaintiff’s store was caused or contributed to by any negligent act or failure to act on the part of defendant.

Our learned brother of the district court rendered a written opinion wherein he reviewed all the evidence and the law applicable thereto, and we are unable to find that he overlooked or failed to give due weight to any material fact proved, or that he erred in his conclusions as to the law applicable to the facts.

The party alleging error must show it affirmatively on the record. 2 Louisiana and Southern Digest, title Appeal and Error, sub-title Burden of Showing Error, key number 901.

The issue between plaintiff and defendant was purely one of fact, and that issue was decided adversely to the plaintiff ,by the lower court.

It is the settled law that the judgment of the trial court on such an issue will not be disturbed on appeal in the absence of showing of manifest error. 2 Louisiana and Southern Digest, title Appeal and Error, sub-title Against Weight of Evidence, key number 1012.

We find no error in the judgment appealed from, and accordingly it is affirmed.


text:
    No. 3664
    Second Circuit
    DESOTO SECURITIES CO., INC., v. RAYVILLE GAS CO., INC., ET AL.
    (December 31, 1929. Opinion and Decree.)
    Hodge & Barnett, of Rayville, attorneys for plaintiff, appellee.
    Smith & McGregor, of Rayville, attorneys for defendants, appellants.
   REYNOLDS, J.

This is a suit on a promissory note, signed by the defendant Ray-ville Gas Company, Inc., drawn payable to its own order and by it indorsed in blank, and also indorsed in blank by its co-defendant J. A. Hemler. Plaintiff alleged that it acquired the note before maturity, for value, and in due course of business.

The defendants admitted the execution and indorsement of the note, and allege that, after it was executed, it “was placed amongst the papers of defendant corporation; * * * that thereafter some person or persons took the note from amongst the papers of defendant corporation and negotiated the same without the knowledge or consent of defendants; * * * that the plaintiff herein did not acquire the said note in due course and in good faith but that it acquired the said note for a sum a great deal less than its real value, well knowing at the time that the said plaintiff had no authority to negotiate the said note. * *

On these issues the case was tried, and there was judgment in favor of the plaintiff and against the defendants, and the defendants appealed.

OPINION

W. A. Roach testified that he was the secretary-treasurer of the plaintiff company, and that the plaintiff had bought the note sued on and another note of like amount from the Richland Motor Company on December 15, 1928, and paid therefore $1,750, by check of the plaintiff in favor of the Richland Motor Company on the Bank of Commerce & Trust Company, and that the check was paid.

John McCarthy testified that he was secretary of the Rayville Gas Company, Inc., on December 5, 1928, and—

“Q. Did the Richland Motor Company or W. W. Gibbs sell these two notes, the one here in controversy and another one of a like amount, to the De Soto Securities Company, Inc., before the maturity of the note sued on?

“A. Yes, sir.

“Q. Who delivered those notes to the Richland Motor Company?

«A. I did.

“Q. Were you an officer of the Rayville Gas Company, Inc.?

“A. Its secretary.

‘‘Q. As a matter of fact, Mr. McCarthy, you negotiated the sale of these notes through the Richland Motor Company or W. W. Gibbs, did you not?

“A. Well, I wrote the letter to the De Soto Securities Company, Inc., on the letter head of the Richland Motor Company, and Mr. Gibbs signed the letter.

“Q. And you delivered the notes to Mr. Gibbs for delivery to the De Soto Securities Company, Inc.?

“A. Yes, sir.”

He further testified that the proceeds of the sale of the notes had been paid out to creditors of the Rayville Gas Company, Inc., in satisfaction of debts owing by it to them.

Plaintiff acquired the note sued on for value before maturity in good faith from one who had obtained possession of it for the purpose of sale from the maker. The judgment appealed from is correct, and accordingly it is affirmed. .


author: ODOM, J.

text:
    No. 3607
    Second Circuit
    I. BAER CO., LTD., v. BINION ET AL.
    (December 31, 1929. Opinion and Decree.)

      Hodge & Barnett, of Rayville, attoimeys for plaintiff, appellee.
    Warren Hunt, of Rayville, attorney for defendants, appellants.
   ODOM, J.

This is a suit on a promissory note for $1,000, dated September 25, 1927, made payable to plaintiff, one day after date, signed by F. M. Binion, and indorsed by sundry persons. The note is in the usual form, with the stipulation in its face that “the makers, sureties, endorsers, or guarantors severally waive presentment, protest and notice of protest and dishonor, and the said sureties, indorsers or guarantors further, all and singular, waive the plea of discussion and division.”

Defendánts in limine tendered an exception of no cause of action, which was overruled. Reserving their rights under the exception, they answered- denying that plaintiff was the holder of the note for a valuable consideration, and in paragraph 3 of their answer they allege:

“All of them, with the exception of F. M. Binion (the maker) signed the purported promissory note sued upon in order to secure I. Baer Company in selling on credit certain goods, wares and merchandise to the said F. M. Binion, he, the said F. M. Binion being about to establish a small dry-goods store; that your respondents signed without consideration and purely as an accommodation for the said F. M. Binion in order to help him establish such business.”

They further allege that Binion, the maker of the note, represented to them that he would order goods from I. Baer Company not to exceed $250 in value, and that this note should be held by the company, to secure that order, and that no additional order would be made by Binion until the first order was paid, and that this understanding was communicated to the company.

There was judgment for plaintiff, and defendants appeal.

OPINION

The exception of no cause of action was properly overruled. The petition sets out that plaintiff is the holder and owner of the note for value, that the Same is due and unpaid, and the note itself is attached to and made part of the petition. The instrument is an unconditional promise to pay a sum certain in money on a day fixed, and the parties to the instrument are clearly indicated.

As to the defense, defendants allege, and it was proved, that the note was made to be used by the maker, F. M. Binion, as collateral for a debt for merchandise to be sold and shipped to the maker of the note. Binion, the maker, purchased goods amounting to $995.91, which were shipped and delivered. The indorsers pleaded that they signed, as indorsers, without consideration, “and purely as an accommodation for the said F. M. Binion in order to help him establish such business.” In other words, that they were accommodation indorsers. That does not relieve them of liability.

Section 29, Act No. 64 of 1904, p. 147, reads as follows:

“An accommodation party is one who has signed the instrument as maker, drawer, acceptor, or indorser, without receiving value therefor, and for the purpose of lending his name to some other person. Such a person is liable on the instrument to a holder for value, notwithstanding .such holder at the time of taking the instrument knew him to be only an accommodation party.’’

These indorsers lent their names to Bin-ion i,n order that he might secure credit. The maker of the note makes no pretense that he did not secure the credit. He does not deny that he owes the debt, nor do the indorsers. No consideration moving to the accommodating party is necessary to uphold accommodation paper. The parties do not charge fraud or bad faith on the part of the holder of the note, nor do they plead failure of consideration. Aside from this, the indorsers themselves voluntarily paid $250 on the note more than six months after its maturity.

The indorsers allege that the note was not to be used for a credit of more than $250. The question naturally arises, if they intended to lend their names for a credit of only $250, why did they sign a note for $1,000? Mr. Leopold Baer, the witness called for plaintiff, emphatically denied that th.ere was any understanding that the maker of the note should be extended credit for only $250. Neither the maker of .the note nor any of the indorsers took the stand to deny Baer’s testimony.

The judgment appealed from is correct, and is accordingly affirmed, with all costs in both courts.


text:
    No. 3442
    Second Circuit
    BRYSON v. BRYSON
    (November 18, 1929. Opinion and Decree.)
    (December 31, 1929. Rehearing Refused.)
    Thatcher, Browne, Porteous & Myers, of Shreveport, attorneys for plaintiff, appellee.
    Hugh C. Fisher, of Shreveport, attorney for defendant, appellant.
   ODOM, J.

The plaintiff, Ed. Y. Bryson, owned two tracts of land in the parish of Caddo, which he had purchased from his father, J. H. Bryson, as per the deeds filed in record, said land being near Waskom, Tex.; and just over the line in Louisiana.

In the year 1924, and for some years prior thereto, plaintiff lived in San Antonio, and the defendant, who is his brother, resided in Waskom, near the land. The land had been cultivated by tenants for a number of years; said tenants paying their rent to J. H. Bryson, the father of both plaintiff and defendant. When plaintiff purchased the land from his father— one tract in 1924, and the other in January, 1925 — he made out two rent notes, one for the sum of $200, to he executed by the tenant, Cy Green, and one for $150, to be signed by another tenant, Ed. Jenks Hunter, for the rent of 1925; each of these notes being made payable to Ed. V. Bryson, the plaintiff. -Plaintiff alleges that he sent both of these notes to the defendant, Jim Bryson, with the request that they be presented to the tenants for their signatures, and, when signed, returned to him; and that said notes were duly executed by the tenants, delivered to the defendant, who retained and collected them. He alleges and contends that the defendant, after collecting the amount. of said notes, now refuses to remit the proceeds.

After this case was filed in this court, it was set for trial and all parties notified, but there has been no appearance here by any one representing the defendant, either to argue the case or by the submitting of briefs, and we are therefore without any suggestion as to what defense defendant relies upon.

Defendant’s answer is a general denial, but in paragraph VIII thereof it is alleged “that whatever rents he collected on said premises he paid to the owner of the property, J. H. Bryson, until the date of his death and then to the administrator of the latter’s succession, namely, John S. Bryson, and that plaintiff is entitled to r no judgment whatsoever against defendant.”

As already stated, the documentary evidence filed shows that plaintiff purchased the land cultivated by the tenants in 1925 from his father, J. H. Bryson, one tract in the latter part of 1924 and the other in the early part of January, 1925. J. H. Bryson died in September, 1925. It is perfectly clear, therefore, that the plaintiff, Ed. V. Bryson, was entitled to the rents for the year 1925. The testimony shows beyond question that the plaintiff sent sai,d notes to defendant, and that defendant had them executed by the tenants and retained them until the fall of 1925. It seems from the drift of the testimony that defendant conceived the idea that these rents belonged to his father, and, for that reason, he erased the name of the payee, Ed. V. Bryson, in the Cy Green note, and instead inserted the name, J. H. Bryson, or “Jim Bryson.” The name of the payee in the Hunter note was not changed.

When these notes were paid in the fall of 1925 by the tenants, the defendant turned the money over to John S. Bryson, who, on November 5, 1925, was appointed administrator of the succession of J. H. Bryson, in the county of Harrison, state of Texas, but who failed to qualify under the laws of Louisiana. The money was collected and turned over to John S. Bryson some time before he was appointed administrator in Texas.

As already stated, .it is perfectly clear from the record that plaintiff was entitled to the rents on this property for the year 1925, and the defendant, having collected this money for plaintiff, is responsible for it, and must account for i,t under-the obligation which he assumed as agent for plaintiff. Defendant, as a witness, stated that he should not be made to account for the proceeds of the note, for the reason that he had turned one of the notes over to John S. Bryson for collection, and had turned over to him the proceeds of the other one. But that does' not relieve him of his obligation to the plaintiff. Under the facts as disclosed by the record, the judgment of the lower court condemning him to pay to plaintiff ■ the amount of these notes, together with interest, is correct.

The plaintiff also demands $200 for the rent of a certain tract of land which seems to have been occupied and used by the defendant himself during the year 1925. This demand was rejected by the district ■court, and counsel for plaintiff asks that the- judgment be so amended as to. allow this amount also. The testimony adduced did not satisfy the. district- judge . that plaintiff should recover on this item, nor does it satisfy us. It -is therefore- ordered, ■adjudged) -and decreed that the judgment appealed from be affirmed, with costs in •both courts.


text:
    No. 3721
    Second Circuit
    WILLIAMS ET AL. v. INTERNATIONAL PAPER CO.
    (December 31, 1929. Opinion and Decree.)
    Todd & Todd, of Bastrop, attorneys for plaintiffs, appellants.
    Madison & Madison, of Bastrop, attorneys for defendant, appellee.
   ODOM, J.

Pete Young was employed by the defendant company as a laborer at its pulp and paper mill in Bastrop, and on the morning of February .19, 1929, was found dead at his post of duty. These plaintiffs, claiming that they were dependent upon deceased for support, bring this suit for compensation under Act No. 20 of 1914 and its amendments, alleging that the deceased was accidentally killed in the course of his employment.

The defense is that deceased was not accidentally killed, but that his death was due solely to natural causes. In the alternative, defendant pleads that plaintiffs were not in fact dependent upon deceased for. support.

Plaintiffs’ demands were rejected by the lower court, and they have appealed.

OPINION

Pete Young was a colored man, and employed by defendant to work in its pulp and paper mill. In that portion of the place where he worked, there is what is called the “disc,” which was described by Mr. Ross as a “rectangular tunnel with power driven discs inside.” From the testimony as a whole, we understand that what is referred to as the disc is a tank with inside dimensions approximately 10x5 feet, which, during the operation of the mill, is filled with a liquor containing chemicals used in the process of converting wood into pulp. This tank, or “disc,” as it is called, as well as the liquor which it contains, is heated to a very high degree during the operation of the mill. Due to evaporation, there accumulates in the bottom of the tank a sediment which it i,s necessary to remove at intervals, in order to keep it from clogging the discs. The sediment, or accumulation, can be removed and the disc cleaned only when the mill, or that part of it, is closed down and the disc allowed to cool. It is dark on the inside of the disc, and, in order to see how to do their work, the laborers have to carry with them an electric light attached to an extension cord.

On the morning of February 19th, at about 7:30 o’clock Pete Young and another colored man, named Brown, were ordered to clean the disc. Brown went in first, and, according to his testimony, stayed five minutes, although there is testimony that he stayed longer, and came out. When Brown came out, Pete Young went in and presumably began to work. Brown stayed out for about five minutes and went back, looked into the tank, and found Young sitting on the bottom of it, dead. Young’s body was immediately removed to a sanitarium where physicians and others resorted to artificial means of respiration to restore him, but without avail.

It is plaintiffs’ contention that Young was killed by accident, and i,n support of their contention they advance several theories. One is that death resulted from an electric shock received from the electric light wire or bulb' which Young carried into the tank with him. When Young’s body was found in the tank, the electric light was still burning, and the cord was lying across his right arm or hand, and there was a burn or blister on one, or possibly two, of his fingers. Physicians say, however, that this was not an electric burn, and, as corroborating their theory that it was not such, it was shown that the wire was well insulated, and nowhere exposed, that there had been no short circuit, as evidenced by the fact that the light was burning when the body was found and continued to burn for several hours thereafter; and, further, that, shortly after the body was found, several persons, including a physician, handled the light bulb and pulled the wire through their hands and felt no shock and received no burn. There is no suggestion that the wiring was defective, and, in the absence of any testimony or suggestion- that it was, and in view of the fact that others tested the wire and .the bulb by handling them without ill effects, there is no room for the assumption that death was due to an electric shock. There is some testimony, however, that laborers had on other occasions been shocked while working in or about the “disc,” but there is no testimony showing, or tending to show, that, when such shocks were received, the wiring was in perfect condition as it was shown to be in the present case.

Another theory advanced by. plaintiffs is that Young died as a result of becoming overheated. There is some testimony to the effect that the disc was very hot at the time Young went in that morning. The colored man, Brown, who first went in, said it was so hot that he could not remain inside more than five minutes. But his testimony to that effect is discounted, if not overthrown, by that of Ross, Hammons, the foreman, Mr. McDonald, the safety superintendent for the mill, and of others. Mr. Hammons and Mr. McDonald testified that they went into the disc immediately following the death of Young, and Mr. Hammons stated that the place was perfectly cool, and Mr. McDonald stated that, while it was warmer inside the disc than out, yet it was not hot. The testimony shows that the disc became entirely cool and comfortable within eight hours after the mill was shut down. The colored man Brown himself testified that the disc would cool within eight hours. It is shown that the mill was shut down at 10 o’clock on the night before, so that, according to the testimony, the place was not uncomfortably hot at the time Young entered it. Mr. Ross and others testified that the disc would cool sufficiently wi.thin two hours after the furnace was shut off for laborers to work within it, and that, after a shutdown of eight or ten hours, it was perfectly comfortable> Physicians testified that in their opinion death was not caused by overheating, and assigned scientific reasons for their conclusions.

The third and last theory advanced is that there was or may have been within the tank poisonous gases given off ’ by the chemicals in the liquor.

Mr. Nessines and Mr. Ross, both chemists, testified that, while the mill was in operation and the liquor heated to a high temperature, small amounts of both carbon dioxide and carbon monoxide gases were given off, due to evaporation, but that these gases did not remain after the heat was cut off and the tank was opened; that these gases were taken out by the current of air which passed through the disc. They testified, as did a physician, that carbon dioxide gas in as small percentage as that given off during these operations is harmless, but that carbon monoxide is very poisonous. Conceiving that there was a possibility that deceased may have been poisoned by these gases, the three physicians who made a post mortem examination removed the lungs and sent them to a laboratory to be examined. They were examined, and the report as to gas poisoning was negative.

When the body was found, there were no external signs to indicate the cause of death. The body was carried to a clinic operated by Dr. Garnier, who handles and treats patients for the defendant. He and Dr. Jones examined it and could not determine the cause of death, and summoned Dr. Leavel, the coroner. Dr. Leavel says that he considered it his duty as an officer to ascertain the cause of death, and the testimony shows that the three physicians, Dr. Garnier, Dr. Jones, and Dr. Leavel, proceeded with unusual zeal in their efforts towards that end. They removed the heart, the lungs, the stomach, and parts of the brain, and sent the lungs to the laboratory for examination, as already stated. They found nothing wrong with the lungs or the brain, but found the stomach literally “stuffed,” as they say, with uncooked and undigested food, which condition may have caused a serious disturbance of the heart, but they did not think that death was due to what is sometimes referred to as “acute indigestion.”

The opinion of these physicians was that death was due to heart failure. They found that deceased had ' a badly diseased heart, a condition called “aortitis,” brought on by syphilis. An examination showed that there were growths resembling warts on the valves of the heart, and scars indicating that some had been broken off and had possibly gone into the blood stream. They all agreed that these growths interfered materially with the heart action, and 'gave it as their opinion that one so afflicted is likely to drop dead at any moment, under most favorable conditions. They said, however, as did Dr. Rodgers, that even with such a heart one might live for twenty or twenty-five years. Dr. Rodgers,' who examined the heart, says he noticed “ulcers down in the chambers of the heart and some thickening of the valves,” which he later said was the aortic valve. He said, as did the other physicians, that one in such condition was liable to pass out at any moment.

The testimony, having established that deceased was afflicted with a diseased heart which might cause death at any moment, but that he ’might have lived for a number of years under ordinary conditions, counsel for plaintiffs, in oral argument and in a most able and exhaustive brief filed, stress the proposition that, if the labor performed or the conditions under which the work was done aggravated the condition • or hastened the inevitable collapse, there was accidental injury and death, under the Compensation Acts. Their argument on this point is supported by the settled jurisprudence of this and other states. In the case of Becton vs. Deas Paving Co., 3 La. App. 683, decided by this court in 1926, we discussed the ' question quite at length, and cited many cases from our own Supreme Court and courts of last resort of other states.

But in the Becton ease, and in those cited, it was held that there could be no recovery unless there was shown to be a causal connection between the labor performed and the collapse, and that the injury or death was hastened or resulted from the employment as a proximate inducing cause. In the Becton case and others cited by counsel, there was found to be a direct connection between the labor performed and the injury or death.

The case at bar falls for lack of such - proof. The two physicians who made the autopsy and who investigated the conditions under which deceased worked, gave it as their professional opinion that death resulted from natural causes, and that the labor- performed by Young and the conditions under which he worked had nothing whatsoever to do with his death. In cases of this kind, courts must necessarily rely upon the opinions of those learned in the medical profession. The most that could be said is that plaintiffs have made out a suspicious case, but the evidence fails to produce conviction. In compensation cases, where it is alleged that injury or death was due to accidental causes, plaintiffs must do more than show that the death was probably due to an accident or as the result of employment. They must prove that fact with at least some degree of legal certainty. Wilson vs. Harris, 3 La. App. 195; Stevens vs. Ohio Oil Co., 3 La. App. 81; Dennis vs. Fortuna Oil Co., 5 La. App. 709.

The judgment appealed from is correct, and is therefore affirmed.