text:
    No. 2623
    Second Circuit
    POWELL v. SPENCER BROTHERS
    (November 6, 1926. Opinion and Decree.)
    (December 11, 1926. Rehearing Refused.)

      (Syllabus by the Editor)
    1. Louisiana Digest — Master and Servant —Par. 156.
    One who is employed to haul gravel with a motor truck and is instructed as to the places of loading and unloading, and his employer could discharge him, is an employee and not an independent contractor under the Workmen’s Compensation! Act, No. 20 of 1914, and amendments
    2. Louisiana Digest — Master and Servant -7-Par. 157.
    The hauling of gravel by motor truck is a hazardous occupation, within the meaning of the Workmen’s Compensation Act, No. 20 of 1914, and amendments.
    3. Louisiana Digest — Master and Servant —Par. 160 (I).
    Where the injured employee suiDg under the 'Workmen’s Compensaiion Act, No. 20 of 1914, and amendments, is suffering from ' temporary, partial disability and the evidence does not show what • he is earning at the time of the accident, nor what he has, been able to earn since the accident, the case will be remanded to the lower court for evidence on these points.
    Appeal from the Tenth Judicial District Court of Louisiana, parish of Natchitoches. Hon. John F. Stephens, Judge.
    Action by Shelton Powell against Spencer Brothers.
    There was judgment for defendants and plaintiff appealed.
    Judgment reversed and case remanded to the District Court for further evidence.
    J. W. Jones, of Natchitoches, attorney for plaintiff, appellant.
    Phanor Breazeale, of Natchitoches, attorney for defendants, appellees.
   WEBB, J.

The plaintiff brings this action under the Employers’ Liability Act to obtain judgment for compensation for a period of one _ hundred weeks for total disability to do any work of a reasonable character, alleged to have resulted from injuries received by the plaintiff while in the employ of the defendants.

The defendants denied liability, and on trial judgment was .rendered rejecting plaintiff’s demands, and he appealed.

OPINION

Tlie defendants contracted with the Parish of Natchitoches to gravel one of the highways in that parish, and in carrying out their undertaking they contracted with various persons to haul the gravel in motor trucks from certain designated places to designated points on ■ the highway . being constructed, for which work the persons hauling the gravel were to be paid at a certain fixed rate per yard, varying with the length of haul.

Among the persons with whom the defendants contracted was the plaintiff, who was the owner of the truck used by him in the work. It does not appear that the plantiff was obligated to haul any certain number of yards of gravel or to work any fixed time’.

The defendants state that they had the right to discharge plaintiff should he fail to obey their instructions, which instructions, however, appear to have related to the place where the gravel was to be loaded and unloaded.

The defenses urged are:

1. That plaintiff was an independent contractor.

2. That plaintiff was not engaged in a hazardous occupation.

I.

It is contended that the evidence shows that defendants had no control over the plaintiff, in that it appears that plaintiff was not employed by the day, and that he was at liberty to work when he pleased, and that he furnished and maintained the truck with which he hauled the gravel.

We are of the opinion, however, that the plaintiff, having been employed to haul the gravel with a motor truck, and the defendants having instructed him as to the places 'of loading and unloading, shows that defendants did have control of the means and manner by which the work was to be accomplished, and that they did have control of the plaintiff during the time he was working and the right to discharge him; hence that plaintiff „was an employee rather than an independent contractor and the mere fact that he furnished and maintained the truck does not alter the situation,. (Dick vs. Gravel Logging Co., 152 La. 994, 95 South. 99; Burt vs. Davis-Wood Lumber Co., 157 La. 111, 102 South. 87; D. A. Alexander vs. Belton Latimer, 5 La. App. —; 13 Advance Reports 41.)

II.

The defendants contend that they were not engaged in- a hazardous business, in that the work which they had undertaken, laying gravel on the highway, is not covered by the statute, and thus the plaintiff, if their employee, could not have been engaged in a hazardous business within the meaning of the statute.

The plaintiff having been employed by the defendants to haul gravel in a motor truck, we are of the opinion that the nature of the employment, whether hazardous or non-hazardous, must be considered with relation to his employment rather than with relation to the work which defendants had undertaken, and thus considered, that plaintiff was engaged in a hazardous employment.

“One employed in driving a motor truck is engaged in the operation of an engine within the meaning of the Workmen’s Compensation Act providing compensation for persons injured in such employment.”

Haddad vs. Commercial Motor Truck Co., 146 La. 897, 84 South. 197.

The evidence shows that the injury which plaintiff sustained was a broken arm, and that the disability which he suffered as the result of the injury was, at the'time of the trial (which was about five weeks after the accident) an inability to use the arm in all kinds of work, and that he was temporarily partially disabled for doing work of a reasonable character.

Under the evidence he is entitled to recover under paragraph (c), Subsection 1 of Section 8 of the statute (Black vs. Louisiana Central Lumber Co., 161 La. —) and authorities cited.

The evidence does not, however,- enable us to determine with any degree of certainty the wages which the plaintiff was earning at the date of the accident, nor the wages that he is 'able to earn in his partially disabled condition, and we are of the opinion that the case should be remanded for further evidence on these questions.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled and reversed, and that the cause be remanded for the purpose of receiving evidence tending to show the wages which plaintiff was receiving at the date of the accident and the amount which he is able to earn subsequent thereto.


source: Caselaw Access Project

author: REYNOLDS, J.

license: Public Domain

text:
    No. 2530
    Second Circuit
    JOHNSON v. JONES, JR.
    (November 6, 1926. Opinion and Decree.)
    (December 11, 1926. Rehearing Refused.)

      (Syllabus by the Court)

    1. Louisiana Digest — Payment—Par. 19. The plea of payment admits the existence of debt sued for and throws upon the party making it the ‘ burden of proving payment.
    Smith vs. Turner, 3 La. App. 90.
    Appeal from the Tenth Judicial District Court of Louisiana, Parish of Natchitoches. Hon. John F. Stephens, Judge.
    Action by L. H. Johnson against J. W. Jones, Jr.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Rusca & Cunningham, of Natchitoches, attorneys for plaintiff, appellee.
    J. W. Jones, Jr., of Natchitoches, attorney for defendant, appellant.
   STATEMENT OP THE CASE

REYNOLDS, J.

Plaintiff sued defendant for $128.74, alleged to be a balance due upon an open account. Defendant pleaded payment.

On these issues the case was tried and judgment was rendered in favor of the plaintiff for the amount sued for, less a credit of $15.00, and defendant appealed.

OPINION

Defendant pleaded payment. He testified (Evidence page 7):

“I have paid every nickel that there is on there; I have overpaid what is on there, and Johnson owes me.”

The correctness of the account sued on being admitted, the only question that remains in the case is the correctness, vel non, of the credit claimed by defendant.

The only credits claimed by defendant that do not appear to have been allowed by the plaintiff are one for $15.00, one for $45.00, one for $35.00, ■ one for $5.00 and one for $4.00.

The one for $15.00 was allowed by the trial judge and is not now in dispute, but the four other credits claimed by defendant were disallowed by the trial court.

Under the well-established rule of evL dence that the plea of payment admits the existence of the debt and throws upon the party making the plea the burden of proving payment, the burden was. upon defendant to prove that he was entitled to the credits claimed by him.

Defendant offered in evidence four checks drawn by him on a bank, for $45.00, $35.00, $5.00 and $4.00, respectively, but the plaintiff swore positively that these checks were not received by him as payments on the account.

The mere fact that a debtor gives his creditor a check for some amount does not itself prove that he gave it in payment of any portion of any particular account and does not discharge the burden of making proof of payment resting on the debtor.

The defendant having alleged payment and having failed to prove by a preponderance of the evidence the payment claimed, the District Court was right in rendering judgment in favor of the plaintiff.

It would serve no useful purpose to discuss the probative value of the two checks for $45.00 and $35.00 respectively, because though offered they were never actually filed in evidence and are not to be found in the record and we cannot consider evidence not contained in the record. The oral evidence in the record regarding these checks did not convince the trial judge that they represented payments made on the account sued on and neither does it convince us. On the contrary, the evidence in the récord convinces us that none of the four checks mentioned was given to plaintiff as payment on defendant’s account.

As the evidence establishes and defendant’s plea of payment admits the correct ness of the account sued on and as defendant failed to prove by a preponderance of the evidence that he was entitled to the credits claimed and not allowed, the judgment appealed from must be affirmed.

It is therefore ordered, adjudged and decreed that the judgment appealed from be affirmed with costs.


text:
    No. 2141
    Second Circuit
    STANDARD PIPE LINE CO., INC., v. HUCKABAY
    (November. 6, 1926. Opinion and Decree.)
    (December 11, 1926. Rehearing Refused.)

      (Syllabus by the Court)
    1. Louisiana Digest — Quasi-Contracts—Par. 16.
    One who borrows pipe from its owner, without the owner’s consent, and later decides to keep it, will be required to pay the owner the reasonable value of the pipe so taken, and cannot himself dictate the price.
    2. Louisiana Digest — Sequestration—Par. 25, 29.
    On a rule to hold the sheriff responsible, as for having accepted insufficient security on a bond releasing to a defendant property sequestered as provided by Article 279 of. the Code of "Practice, plaintiff cannot recover until he has shown that the security taken was insufficient.
    C. P. 279. .
    Appeal from the Eleventh Judicial Dis■trict Court of Louisiana, Parish of Red River. Hon. J. W. Jones, Jr., Judge.
    Action by Standard Pipe Line Co., Inc., against Dr. L. S. Huckabay.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    T. M. Milling, F. L. Hargrove, of Shreveport, attorneys for plaintiff, appellant.
    S. M. Cagle, of Coushatta, attorney for defendant, appellee.
   STATEMENT OF THE CASE

REYNOLDS, J.

This is a suit to recover $589.87, as the value of 150 joints or 3288 feet of 2-inch pipe and for sequestration of the pipe.

The defendant bonded the sequestration and answered on the merits denying liability on the ground that he had only borrowed the pipe. He asks that the sequestration be dissolved and for judgment in reconvention against plaintiff .for $150.00 as damages for the wrongful issuance of the writ.

Plaintiff filed a rule on the sheriff, W. H. Elliott, to show cause why A. F. Masingill, the surety on the release bond, should not be held insufficient and he, the sheriff, held as surety in his stead.

On these issues the case was tried.

The rule to hold the sheriff as surety on the release bond instead of the surety, A. F. Masingill, was denied and the rule discharged, and, on the merits, judgment was rendered in favor of the plaintiff and against the defendant for $218.60, sustaining and perpetuating the writ of sequestration and rejecting the defendant’s re-conventional demand.

Plaintiff appealed. Defendant did not appeal.

OPINION

In paragraph 2 of his answer defendant admits getting 150 joints or 3288 feet of 2-inch pipe from plaintiff, and document filed in evidence as plaintiff’s exhibit 1 clearly establishes that defendant elected to keep and pay for the pipe.

The 'only question left for decision is the value of the pipe taken.

D. W. Spurlock testified, page 21:

“Q. What is your occupation?

“A. I am purchasing agent.

“Q. What was the value of standard two-inch (2") line on or about April 3rd, 1923?

“A. The value of pipe where it is 'bought direct from the mill in carload lots would be about twenty and a half cents (20%c), direct from the mill. The válue of this pipe if bought from a local supply company in carload lots would be about twenty-two and a half cents (22%c).

Page 73

“Q. Would eighteen cents (18c) per foot have .been an exorbitant price for that pipe?

“A. I don’t think so.

“Q. Would it be reasonable?

“A. I think it is very reasonable.

L. C. Judy testified, page 59:

“Q. I will ask you, Mr. Judy, what was two-inch (2") pipe worth in April of this year?

“A. ' Well, I cannot be just exact, but twenty-one cents or twenty-two cents.

Page '64

“Q. Now, how much was National Tube selling for wholesale in February, 1923— two-inch (2") pipe?

“A. I don’t remember; I think about twenty-one cents (21c) or twenty-two cents (22c), retail.”

.W. B. Nelson testified, page 74:

“Q. Mr. Nelson, what was the condition of this pipe in April at the time it was taken?

“A. First-class second-hand pipe.

Si sj« sfc %

“Q. Was it pitted any?

“A. No, sir.

“Q. How were the threads in the couplings?

“A. All right; could not be otherwise; never been laid but once.

“Q. As good' a condition as when the pipe was first received?

“A. Yes, sir; I would just as soon have it as new pipe.

“Q. The pipe was as good as new pipe?

“A. I say I would just as soon have it.

“Q. Just as serviceable as new pipe?

“A. Yes, sir.”

This evidence satisfies us that the price plaintiff demands for its pipe, slightly less than eighteen cents per foot, is a reasonable one. Besides this, the defendant having appropriated the pipe for his own use without the owner’s consent, • he is in no position to haggle over what he should be made to pay for it. He will be required to pay the reasonable value of the pipe at the time and place he got it. Under all the evidence we think the price sued for a fair one.

On plaintiff’s rule to hold the sheriff as surety on the release bond in place of the surety, A. F. Masingill, the surety, A. F. Masingill, testified, pages 1, 2 and 3:

“Q. Mr. Masingill, you signed the bond executed by L. S. Huckaby as principal and yourself as surety in this case?

“A. Yes, sir.

“Q. What property do you own that is subject to seizure?

“A. I don’t know that I own any subject to seizure.

“Q. Mr. Frank, your-home is worth how much?

“A. About forty-five-hundred ($4500.00) dollars.

“Q. You mean that it would sell for forty-five hundred ($4500.00) on execution?

“A. I don’t know, sir; I gave forty-five hundred dollars for it. 1 would not take that for it.

“Q. What is the total amount of your debts?

“A. O, I could not — I would be afraid to tell you all about that. I owe too much.

“Q. Do you owe as much as three thousand dollars?

“A. No, sir.

“Q. Two thousand dollars?

“A. No, sir.”

This is the only evidence as to whether or not Mr. Masingill was solvent and a legal surety on the bond for $600.00 signed by him. It shows that at the time he signed the bond he owned property worth more than $600.00, over and above his debts. The property is shown to be worth $4500.00 and his debts were less than $2000.00, leaving a- margin of $2000.00 of assets over liabilities. It is not shown that he was entitled to a homestead exemption;, and the burden was on plaintiff to show that he was not a good and solvent surety on the bond before it can hold the sheriff as surety thereon in his stead. As the plaintiff did not discharge this burden, the rule on the sheriff was properly dismissed.

For the reasons assigned, it is therefore ordered, adjudged and decreed that the judgment appealed from be amended by increasing the amount awarded Standard Pipe Line Company, Inc., from $218.60 to $589.87, with legal interest thereon from May 8, 1923, and all costs of suit, and that in all other respects the judgment appealed from be affirmed.


text:
    No. 2799
    Second Circuit
    UPSHAW v. TRIANGLE DRILLING CO.
    (November 6, 1926. Opinion and Decree.)
    (December 11, 1926. Rehearing Refused.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Master and Servant —Par. 159.
    Under the Workmen’s Compensation Act, 20 of 1914, prior to the amendment of the year 1926, where the injury to the plaintiff was slight and he sustained no appreciable disfigurement or impairment of a physical function and at the time of the trial, twelve weeks after the accident, the plaintiff was practically recovered and the undisputed testimony of reputable physicians was to the effect that he would be entirely recovered in from two to six weeks thereafter, the court should fix a definite length of time during which compensation shall be payable.
    Rogers vs. Thermatomic Carbon Co., 157 La. 193, 102 South. 304.
    Appeal from the First' Judicial District Court of Louisiana, parish of Caddo. Hon. E. P. Mills', Judge.
    Action by Gerald A. Upshaw against Triangle Drilling Co.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Long & McSween, of Shreveport, attorneys for plaintiff, appellant.'
    J. Fair Hardin, of Shreveport, attorney for defendant, appellee.
   STATEMENT OF THE CASE.

REYNOLDS, J.

This is a suit to recover compensation under the Employers’ Liability Act as it existed prior to the amendment of the year 1926, for an alleged injury to plaintiff’s left shoulder, head, eye, back, teeth and jaws by being struck in the “small of the back” by a pair of “break up tongs”.

Defendant denied liability, except as for a slight injury.

On these issues the case was tried and there was judgment in favor of the plaintiff for the sum of $20.00 per week during a period of twenty weeks and he has appealed.

OPINION.

Plaintiff seeks to establish the existence of the alleged injuries by his own testimony alone.

His testimony is in direct conflict with that of the only other witnesses in the case, three reputable and eminent surgeons of Shreveport, Louisiana, Doctors A. P. Crain, Thomas Ragan and J. C. Willis, Jr.

Doctor J. C. Willis, Jr., testified, (evidence, pages 7, 9, 12, 14).

“Q. State the extent of his injuries, to his arm and other injuries?

“A. He had a fracture of the left clavical, also had an incision over the left eye, about an inch long, and wa,s bruised along the left side of the face, and complained of his back for a while.

“Q. What did you do with him?

“A. We gave him an anaesthetic and bandaged up the fractured clavical and sutured up the injury over the left eye.

“Q. Doctor, the clavica.1 is the shoulder bone in ordinary persons?

“A. Yes, sir.

“Q. The cut over the eye, was that' a superficial or a deep cut?

“A. Superficial, through the skin surface only.

“Q. Was there any indications of any serious nerve injury resulting from that cut?

“A. No, sir.

* * *

“Q. Did you find any evidence of permanent injury?

“A. I don’t think he has any permanent injury.

“Q. Have you had an x-ray made, have you seen one?

“A. Yes, I saw it in the beginning, when first taken.

“Q. What part of the back did he complain?

“A. He complained of the small of his back.

“Q. What seemed to be the trouble there, doctor?

“A. I couldn’t find any.

“Q. It was probably a strain of temporary nature ?

“A. Yes, we had to take his word for it, we couldn’t see anything on examination.

“Q. If you didn’t find anything there, it doesn’t mean that it was not there at all?

“A. No, it don’t absolutely show that it was not.

“Q. You believe that in two weeks’ time he will recover?

“A. Yes, sir.”

Doctor A. P. Crain testified (evidence, pages 15, 16):

“Q. Have you examined the plaintiff, Mr. Upshaw? .

“A. Yes, sir.

“Q. When?

“A. Yesterday afternoon.

“Q. State what you found, doctor?

“A. I found a cut over the eye, small scar; I found a fracture of the clavicle middle up nerve, firm union, fair position.

“Q. Do you see any evidence of the present disability or permanent disability of the man, or what is his condition at the .present time?

“Á. I think the bone is in just about as good condition as is practical to get a collar bone unless you cut into it; it has fair union and the callous is thrown out as with all the bones there is very good union but some tenderness; it shows about what it was before, the motion of the arm is pretty good, got it' straightened out without any trouble that is some tenderness and present disability, but not permanently so.

* * # #

“Q. In your opinion, how long do you think it will be before he has complete recovery?

“A. That is an opinion; I differ with Doctor Willis; a little bit on. I think two weeks a little time short for him; I think it will be all right in six weeks.

“Q. Did you find any other injury?

“A. I found a, little scar, a little scratch there over the eye.

“Q. Is there any injury from this?

“A. No, sir.

‘Q. You found no other evidence of an injury except a broken collar bone and the scratch?

“A. No, sir.

“Q. Did you find a nerve injury where you found the scar or scratch?

“A. None.

Dr. Thomas Ragan testified (evidence, page 17);

“Q. Doctor, have you examined the plaintiff, Mr. Upshaw?

“A. Yes, sir.

“Q. Examined him yesterday?

“A. Yes, sir.

“Q. State your findings?

“A. Doctor Crain and I examined him together and made the report together and it is about as he stated; there was’ a fracture on the middle upper bone of the collar bone with a certain amount of overlapping and a little callous in the formation and fair union.

“Q. When do you think he will fully recover from the effects of that? •

“A. The use of the arm, he would probably restore it' in a few weeks, from four to six weeks, he ought to get the arm so that he would have the full use of the function.”

There is no testimony whatever in the record in conflict with that of these three eminent surgeons, and agreeably to their testimony the only injury that plaintiff was entitled to recover compensation for under the Employers’ Liability Act at the time of the trial was the broken collar bone and that was practically healed and would under light work become entirely normal in from two to six weeks.

The judgment of the lower ’court was entirely in accord with the true intent of the Workmen’s Compensation Act in giving plaintiff compensation at $20.00 per week for a period of twenty weeks.

Counsel for plaintiff contend with great ability and earnestness that that judgment is in conflict with the holding of this court in the case of O’Donnell vs. Fortuna Oil Co., 2 La. App. 462. We do not think so. We said in that case (page 465):

“There may arise cases in which the court would be warranted in fixing a definite period of disability. That could be done in any case where the period could be fixed definitely under the testimony. It frequently happens that laborers are disabled, totally or partially for a few weeks and recover and are able to return to work as sound and whole as ever before the day of trial; in which event it would be possible, of course, for the court to determine definitely the period of disability. In a case like that the court should fix the number of weeks during which compensation shall be paid.”

In the Rogers case, cited in the syllabus, the Supreme Court said:

“Counsel for the Thermatomic Carbon Company also contend that the Court of Appeal held, in effect, that a judgment could not be rendered under the Employers’ Liability Act for less than the period during which the modification of the judgment is prohibited, and that the court erred in so holding. Counsel also contend that', if the statute may be construed as held by the Court of Appeal, it violates the Fourteenth Amendment to the Constitution of the United States. We may say that we do not' understand that the Court of Appeal held as contended by counsel, and we may add, that we, ourselves, are clearly of the opinion that the act authorizes the rendition of a judgment, in a case such as the present one, for a period less than the year mentioned. * * *”

Under all the evidence and these authorities we are convinced that the judgment of the lower court is correct, and, accordingly it is hereby affirmed.


author: ODOM, J.

text:
    No. 2140
    Second Circuit
    HARTFORD FIRE INSURANCE CO. v. DOLL
    (November 6, 1926. Opinion and Decree.)
    (December 11, 1926. Rehearing Refused.)

      (Syllabus by the Editor.)
    1. Louisiana Digest — Warehousemen and Warehouse Receipts — Par. 6, 8.
    A bailee for hire is not an insurer of the chattel left in his hands. But he is required to use due all ordinary care in the protection of the article and is bound to restore it when the bailment is at an end.
    2. Louisiana Digest — Evidence—Par. 58, 59.
    The burden of proof is on the party who rents parking space for automobiles to show that the stealing of an automobile. while on his ground was due to no negligence on his part.
    Appeal from the First Judicial District Court of Louisiana, parish of Caddo. Hon. E. P. Mills, Judge.
    Action by Hartford Fire Insurance Company against J. M. Doll.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    S. M. Atkinson, Alex F. Smith, of Shreveport, attorneys for plaintiff, appellee.
    L. C. Butler, of Shreveport, attorney for defendant, appellant.
   ODOM, J.

Plaintiff brought this suit to recover the sum of $541.15, the value of an automobile which is alleged to have been stored by A. C. Hanson on a plot of which the defendant was the lessee and which was stolen while so stored.

Plaintiff, the insurer of Hanson, having paid the loss procured an assignment of the claim from Hanson against the defendant.

There was judgment in the District Court against the defendant for the amount claimed and defendant has appealed.

OPINION.

The facts in the case are not disputed and are as follows:

The defendant. leased from the owners two vacant squares of ground near the baseball park in the city of Shreveport to be used as parking space for automobiles of those who attended baseball games, or, as defendant says, “for the convenience of ball fans”.

Defendant erected at the entrance to the leased property a sign reading: “Automobile Parking Ground”.

A great many people went to the ball game in automobiles and there was not room on the street fqr all of them to park their cars near the entrance of the ball park. Prior to the date on which defendant leased and took possession of the vacant' property above mentioned, it was used as parking space without objection on the part of the owner and without compensation or fee. But when defendant took over the property under his lease, he charged a fee of 25 cents for each car parked on the leased premises. .Defendant kept a man stationed at the entrance to said plot of ground, and when the owner of a car wished to park there he paid the fee, whereurpon the man in charge attached to the steering wheel of the car a card bearing a number and delivered to the owner of the car a stub or ticket' bearing a corresponding number on which was printed these words:

“COUPON

“Automobile PARK

“At Base Ball

“Check No.-

“We. will endeavor to protect your car from all trespassing while parked with us.

“This coupon and check will be taken up as you drive out.”

The owner of the car then drove it upon the premises and was shown where to park it by an employee of the defendant. The cars were so arranged under the direction of defendant’s employee as to enable the owners to remove them from the premises without delay.

A. C. Hanson, who desired to park his car with defendant during the progress of a hall game, paid the fee, whereupon defendant’s employee tied a card on the steering wheel, giving Hanson the coupon, which he kept. Hanson then drove his car intq the parking ground and placed it where he was directed by an employee of the defendant. Hanson then entered the ball park and witnessed the game. When he came out he presented the coupon or check in order to get his car. Upon investigation it was found that the car had been stolen. The car was never recovered, and the plaintiff having insured Hanson’s oar against theft paid the loss and had Hanson to assign to it his claim with subrogation.

Plaintiff’s contention is that defendant was a bailee for hire; 'that the car was allowed to be stolen on account of the gross fault and negligence of defendant, and that he is therefore liable.

Defendant contends that he merely leased Hanson space on which to park his car; that he did not take charge of the car; that he was not an insurer or custodian of the car, and that he did not assume any responsibility whatever for its safe keeping, “either from fire, theft, accident by collision, or otherwise,” and that the charge of 25 cents was for use of the space that he rented.

The deposit of the car by Hanson on defendant’s premises under the circumstances above detailed was a bailment of the car and the reiation of' the parties to each other was that of bailor and bailee, the defendant being a bailee for hire.

It is not disputed that there was no express agreement between the parties at the time the car was deposited as to the responsibility assumed by the defendant

other than what was printed on the ticket or coupon given by defendant to plaintiff which is as follows:

“We will endeavor to protect. your car from all trespassing while parked with us.”

By that express agreement -defendant bound himself to use due diligence to see that the car was not removed from .the premises by theft. Defendant, therefore, did more than merely lease space for parking cars. He specifically obligated himself to use due care in protecting them.

A bailee for hire is not an insurer of the chattel left in his hands. But he is required to use due and ordinary care in the protection of the article and is bound to restore it when the bailment is at an end.

It is contended by defendant that he assumed no special obligation to protect and restore this car, but we think he did. The -printed receipt or coupon evidences that' fact. But even if he did not, he is still liable under the general law of bailment in which there is an implied obligation on the part of the bailee to keep and return the property; and unless it is shown that the property was lost without negligence on his part, he is liable for its value.

As to the bailee’s liability in case of theft under the general law of bailment, the rule is stated as follows in a case note found in 26 A. L. R., page 224:

“The rule is of course well settled that in the absence of special contract an ordinary bailee for hire is not an insurer against theft and cannot be held liable for the loss of the property by this means without negligence on his part.”

Many authorities are cited in support of this rule. Our own Supreme Court has many times held that in cases where the property was lost or destroyed while in the hands of a bailee he is not responsible unless guilty of negligence, but, on the contrary, is liable where negligence is shown.

McCullough vs. Porter, 17 La. Ann. 89.

Thomas vs. Darden, 22 La. Ann. 413.

Levy vs. Bergeron, 20 La. Ann. 290.

Brittain vs. Aymar & Bryant, 23 La. Ann. 63.

James vs. Greenwood, 20 La. Ann. 207.

Yale vs. Oliver, 21 La. Ann. 454.

Scott vs. Sample, 148 La. 627, 87 South. 478, and cases therein cited.

The defendant received Hanson’s car to be kept and returned to him. He did not return the car, and the burden of proof was upon him as bailee for hire—

“* * * to establish the facts which might excuse such failure or to show that he exercised at least' the care that a prudent man takes of his own.”

See Scott vs. Sample, 148 La. 627, 87 South. 478, and authorities therein cited.

Defendant made no such proof; in fact he does not defend the suit on the ground that he used due care but upon the ground that no responsibility rested upon him. to protect the car. His contention is somewhat' remarkable considering the fact that he delivered a ticket or coupon for the car on which was written the words “we will endeavor to protect your car from all trespassing while parked with us”.

There is no testimony in the record that he made any effort whatever to protect the ear.

The burden being upon him to- establish the facts necessary to show that he was without fault, and he having failed to do so it necessarily' follows that he is bound.

The amount of the claim, is not contested.

For the reasons assigned, the judgment is affirmed with costs.


text:
    No. 2794
    Second Circuit
    M. KAPLAN & SON v. LOUISIANA PULP AND PAPER COMPANY
    (December 11, 1926. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Appeal—Par. 625.
    Findings of the trial court on the questions of fact, unless manifestly erroneous, are affirmed.
    2. Louisiana Digest — Bills and Notes— Par. 223, 226.
    The indorsement on a check and voucher, attached “Payee by endorsement acknowledges receipt in full of account as shown within. If not correct, return without alteration,” does not preclude the admission of parol evidence to vary or contradict it,
    Appeal from the Fourth Judicial District Court of Louisiana, parish of Morehouse. Hon. Percy Sandel, Judge.
    Action by M.. Kaplan & Son against Louisiana Pulp and Paper Company.

      There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Hudson, Potts, Bernstein & Sholars, of Monroe, attorneys for plaintiff, appellee.
    Madison & Madison, of Bastrop, attorneys for defendant, appellant.
   ODOM, J.

Plaintiff sued defendant to recover $657.00, balance due on a car of scrap iron, and $72.27, freight charges on the car.

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

OPINION.

Only questions of fact are involved in this suit.

Plaintiff is a junk dealer in the city of Monroe and handles scrap iron.

T'he defendant, at the time of the transaction out of which this suit arises, was erecting a pulp and paper mill at Bastrop and needed a lot of iron to reinforce concrete footing and foundations of its structures.

The defendant, through its general agent and officer, called the plaintiff over the telephone and inquired if they had on hand iron suitable for reinforcing purposes and was told that they did, whereupon defendant ordered, over the telephone, one carload of such iron at an agreed price of 2 cents per pound.

This ’phone order was later confirmed by defendant by written statement on a printed form used by it reading in full as follows:

“LOUISIANA PULP AND PAPER CO.

No. 30

“PURCHASE ORDER

“Bastrop, La., 4/30/24. ‘To M. Kaplan & Son:

“Address Monroe, La.

“Please enter order for the following material, and ship by M. O. P. Freight.

QUANTITY MATERIAL

1 Minimum Car Scrap Iron @ .02c Confirming order given you over the telephone by Mr. Cullen.

Note: Render all invoices in duplicate.

Acknowledge and advise when shipment will be made.

Please show our Order No. on your invoice.

LOUISIANA PULP & PAPER CO.

By W. H. Hinton.”

Following the receipt of this letter of confirmation of the order, plaintiff shipped to defendant 65,700 pounds of iron.

After the receipt of the car of iron, the defendant remitted to plaintiff by voucher check the sum of $657.00, this being 1 cent per pound for the iron instead of 2 cents as had been agreed .upon, but deducted the amount of $72.27 for freight paid.

It is not disputed that the original agreement was that defendant should pay 2 cents per pound for the iron.

But defendant contends that upon receipt of the car the iron was inspected and found unsatisfactory in that it was warped, twisted and bent, was junk and pitted with rust, and that immediately plaintiff was called over the telephone and informed that .the iron was not as represented and was refused.

Whereupon, defendant contends, David Kaplan, representing the. plaintiff firm, instructed defendant to use the iron and pay what it was worth.

Mr. Cúlleii, general manager of the defendant corporation, testified that he figured the iron was worth only 1 cent per pound and that' remittance was made accordingly. The remittance covered not only this shipment but an amount due for other purchases made by defendant from plaintiff.

The check was accepted by plaintiff, but immediately they wrote defendant calling its attention to what Mr. Kaplan says he supposed was a clerical error of the bookkeeper in calculating the price of the iron at 1 cent per pound when it should have been 2 cents.

This whole controversy has arisen over a dispute between Mr. Cullen, manager of the defendant company, and David Kaplan, representing the plaintiff, as to what was said and agreed upon in the conversation over tbe telephone which took" place after the iron reached Bastrop and was inspected.

Cullen says that Kaplan agreed that the defendant keep and use the iron and pay what it was worth.

Kaplan says that he made no such agreement, and that the only complaint that Cullen made to him was that more iron had been shipped than he expected; that he had ordered only a minimum car and that a full car or heavy carload had been shipped; and Kaplan says that he told Cullen that if more iron had been shipped than could be used plaintiff would give defendant credit for the overplus.

Wé have no reason" .to challenge. the. veracity of either Mr. Cullen or Mr. Kaplan, and as the testimony was taken out of court we have not the benefit of the lower court’s conclusion as to the weight of the evidence.

In reaching our conclusion, therefore, we are guided by what we think is the reasonable view of what was probably said and understood between the parties.

We have no idea that Mr. Cullen would intentionally misrepresent any fact before the court, but, considering all the circumstances, we think he is mistaken.

He is a man of large affairs. At the time, he was building an enormous manufacturing plant and was supervising, the expenditure of millions of dollars; He personally purchased all the material for the. construction of that plant, and it does not-seem to us probable that he could recall the minute details of each and every purchase of material.

He does not recall that anything was said in the telephone conversation about the weight of the car of iron, but in view of Kaplan’s testimony that Cullen did mention that and the fact that the letter continuing the order specified “minimum” car, we think it very likely that Mr. Cullen is mistaken.

We note also that Mr. Cullen testified that he figured that the iron was actually worth only 89 cents per 100 pounds. Yet he paid for it at $1.00 per 100 pounds. If Kaplan had agreed that defendant should-use the iron and pay for it what it was' worth and had agreed that Mr. Cullen should be the judge as to its value, as Cullen says he did, it' is not likely that Cullen would have paid more than -89 cents per 100 pounds. >

Again, there is no doubt but that defendant was to pay the freight; that was conceded on the trial of the ease, and yet when the. remittance was made the freight charge was deducted.

All this indicates that Mr. Cullen in some way got confused over the transaction.

Prom Kaplan’s standpoint it does not seem reasonable that he would have agreed that defendant keep and use the iron and fix its own value thereon, thereby placing the (plaintiff entirely in the hands of the defendant.

If the iron had been rejected outright, Kaplan no doubt would have gone to Bastrop, which is only a short distance from Monroe, to settle the controversy, or he could have had the car returned to Monroe, as he did on another occasion when a dispute between the same parties arose.

Prom all the testimony and the circumstances we cannot say that the original agreement was abrogated and a new contract made.

Counsel for defendant argue in brief (the case was not argued orally) that the iron was not up to specifications, and that if the court should hold that the original contract was not set aside and a new one made, the defendant is entitled to a reduction in price under plaintiff’s warranty.

The testimony is conflicting as to the condition of the iron. It was not worth as much as new iron, of course, which could have been purchased at $2.60 per 100 pounds. But defendant did not expect and had no right to expect iron as -good as new. Plaintiff is a junk dealer, and defendant knew it. The letter confirming the order specifies “1 minimum car scrap iron @ .02c”. Some of the iron shipped was bent and rusty. That was to be expected. “Scrap iron” is waste or refuse iron which has been in actual use.

See volume 7, Words and Phrases, 1st ed. page 6358.

While the iron was not, of course, as good as new, the testimony convinces us that it was as good as the defendant had a right to expect.

The check sent plaintiff has attached to it a voucher on which is printed the following:

“Payee by endorsement acknowledges receipt in full of account as shown within. If not correct, return without alteration.”

“The mere fact that a receipt expresses on. its face that it is in full of all demands or of certain demands, does not make the instrument of such contractural nature as to preclude the admission of parol evidence to vary its effect.”

17 Cyc. 634.

Gray vs. Lonsdale, 10 La. Ann. 749.

Porter vs. Brown, 21 La. Ann. 532.

Succession of Croizet, 12 La. Ann. 401.

Bass vs. Balph, 5 La. Ann. 235.

Bringier vs. Gordon, 14 La. Ann. 274.

Beatty vs. Tete, 9 La. Ann. 129.

Kaplan testified that he did not by this endorsement intend to release defendant from further payment, and this is shown by the fact that he immediately wrote defendant demanding the balance which he claimed was due.

We cannot say that' the judge of the lower court manifestly erred in his judgment.


text:
    No. 2100
    Second Circuit
    ARKADELPHIA MILLING CO. v. WALKER-HOWE GROCER CO., INC.
    (December 11, 1926. Opinion and Decree.)

      (Syllabus by the Editor.)
    1. Louisiana Digest — Payment—Par. 17, 20; Pleading — Par. 115.
    Testimony as to payment of the account sued upon is inadmissible where the defense is merely a general denial, and the plea of payment is not especially made.
    Appeal from the Second Judicial District Court of Louisiana, parish of Webster. Hon. Robert Roberts, Jr., Judge.
    Action by Arkadelphia Milling Co. against S. T. Anders and Walker-Howe Grocer Co., Inc.
    There was judgment for the defendant and plaintiff appealed.
    Judgment affirmed.
    L. W. Watkins, of Minden, attorney for plaintiff, appellee.
    Stewart & Stewart, of Minden, George Wesley Smith, of Rayville, attorneys for defendant, appellant.
   ODOM, J.

This is a suit to recover a” balance on an open account. The defense is a general denial. There was judgment for plaintiff and defendant appealed. Judgment amended and as amended affirmed.

OPINION.

Plaintiff brought this suit for $707.66, alleged to be the balance due it by the defendant on an open account. The defendant answer, pleading the general issue. Plaintiff attached to and made a part of its petition a sworn itemized statement of its account against defendant, showing all debits and credits, with the balance brought down. It also attached invoices of the various sales. Plaintiff offered said itemized account, sworn to, in evidence and made proof of its correctness. Defendant, as stated, filed answer denying generally and specially all the allegations of plaintiff’s petition, but interposed no special plea. Defendant, on trial, attempted to prove that the- account had been paid in full. Counsel for plaintiff objected to any evidence going to show payment, for the reason that defendant had not interposed that special plea in answer. The court, at first, overruled the objection and admitted the testimony subject to the objection. It later sustained the objection.

Testimony as to the payment of the account was inadmissible. A general denial puts at issue only such facts as are necessary for plaintiff’s recovery.

Heirs of Wood vs. Nicholls, 33 La. Ann. 745.

Lallande vs. Ingram, 19 La. 366.

Petit vs. Laville, 5 Rob. 117.

Ducros vs. Jacobs, 10 Rob. 453.

Ballew vs. Robb, 13 La. Ann. 375.

Proof of payment should not be admitted without a plea to that effect.

D’Arensbourg vs. Chauvin, 6 La. Ann. 778.

Gleises vs. Faurie, 6 La. 456.

McKown vs. Nathes, 19 La. 543.

Code of Practice, Article 327.

However, even if we consider the evidence of payment found in the record, we must hold that defendant failed to make satisfactory proof that the balance of the account has been paid.

Owing to what appears to be a clerical error, judgment was awarded for $767.66 when it should have been for $707.66.

For ' the reasons assigned, it is ordered that the judgment appealed from be amended accordingly and as amended that it be affirmed with costs.


author: ELLIOTT, J. MOUTON, J.

text:
    No. 1002
    First Circuit
    TOBIAS (GOTTLIEB, Substituted) v. SCHLOSS
    (October 7, 1926. Opinion and Decree.)

      {Syllabus by the Editor.)

    1. Louisiana Digest — Courts—Par. 128.
    In view of revised statute,' Section 2156, where the pleadings of the case show that the suit is for an $1800.00 balance due on rent notes, the Court of Appeal clearly has jurisdiction.
    2. Louisiana Digest — Pleading—Par. 62.
    A petition which states that the defendant lessor agreed to operate a filling sta-. tion which he has closed, and asks for the balance of the lease money and damages, states a cause of action and an exception no cause of action will be overruled.
    Appeal from the Nineteenth Judicial District Court of Louisiana. Hon. W. Carruth Jones, Judge.
    Action by Mrs. Fjauline M. Tobias (Lewis Gottlieb, substituted), against Edward Schloss.
    There was an exception no cause of action and answer filed by the defendant. The Case was tried and the exception no cause of action was sustained.
    Plaintiff appealed.
    Judgment reversed, and case remanded to be tried on the merits.
    Cross & Moyse, of Baton Rouge, attorneys for plaintiff, appellant.
    Benton & Benton; Taylor, Porter, Loret & Brooks, of Baton Rouge, attorneys for defendant, appellee.
   ELLIOTT, J.

Defendant and appellee moves" to dismiss this appeal on the ground that the amount in dispute exclusive of interest exceeds two thousand dollars. That therefore this court has no jurisdiction.

The record shows that plaintiff brought suit to have defendant ejected from leased premises. The . contract of lease is annexed to and made part of plaintiff’s petition. The contract states that—

“The consideration of the lease, in addition to the obligations hereinafter set forth, .is the sum of six thousand dollars, divided into sixty installments of $100.00 each, represented by sixty notes,: one- for each month.”

The lease thereinafter states that—

“In addition to the obligations above set forth, lessee binds and obligates himself to erect on said premises a gasoline filling station, which with stationary and permanent fixed improvements and equipment, shall cost not less than $3000.00; said station to be erected within a year after September 1, 1922 — -and to become the property of the lessor at the termination of the lease.”

The contract further provides that if the lessee violates the lease, the lessor may retake possession of the leased premises and improvements without compensation to the lessee. The erection of a filling station costing not less than $3000.00 was therefore as much a .consideration of the lease, as was the payment of the $6000.00 in monthly installments. The filling station was erected by defendant, incorporated with plaintiff’s premises and destined to the permanent service and improvement of the same within the first year of the lease. This consideration was received by the plaintiff before the suit, leaving nothing due the plaintiff at the time of the suit, except the monthly rental of $100.00 per month for eighteen months; a total of $1800.00.

The statement of the lease that the buildings and improvments are to become the property of the lessor at the termination of the lease, really means nothing more and can have no other effect, than that the lessee has the right to use the filling station, without further rent, than the payment of the monthly installments mentioned and complying with the other conditions o.f the lease.

In an ejectment suit the value of the property has no bearing on the' question of jurisdiction. Walker vs. Van Winkle, 8 N. S. 560; D’Armond vs. Pullen, 13 La. Ann. 137; Dreyfous vs. Process Oil & Fuel Co., 140 La. 50, 72 South. 805.

In an ejectment, suit, the. amount of the monthly or yearly rent, determines the jurisdiction qf the courts, R. S. Sec. 2156; Godchaux vs. Bauman,. 44 La. Ann. 253, 10 South. 674; Lauger vs. Baradat, 127 La. 542, 53 South. 856; Dreyfous vs. Process 011 & Fuel Co., 140 La. 50, 72 South. 805.

The lease further provides—

“That should the lessor desire to sell the property leased during the duration of the lease, she shall have the right to terminate the agreement'; that should the lease be so terminated, then the lessor shall reimburse the lessee at the rate of fifty dollars per month, for each month of the unexpired portion of the lease.”

Plaintiff alleges an agreement' on her part to sell the leased premises, but that the purchaser was obligated to recognize defendant’s lease. It is shown that plaintiff, after the rendition - of the judgment dismissing her suit, sold the property to Lewis Gottlieb; which sale the court recognized and granted Gottlieb an appeal from the judgment rendered. Defendant argues because of this sale that fifty dollars per month, for eighteen months, must be added to the said monthly rental of $100.00 per month for eighteen months, making the amount in dispute $2700.00. This contention does not appear to be applicable to the situation. Plaintiff’s suit is not for the termination of the lease in order to effectuate - a sale; but' to eject defendant on the ground that he had breached and violated the lease, by closing down the filling, station.

There is no question of reimbursement under the above stipulation in the contract, raised by plaintiff’s demand and defendant’s exception thereto. The only question is, whether on the face of plaintiff’s petition and the contract thereto annexed, it was a breach and violation of the contract on part of defendant, to close down the filling station and keep it closed, until the expiration of the lease, withholding from plaintiff at the same time the premises and improvements 'leased, upon paying the monthly installments involving a total of $1800.00. That is all that can be said to be in dispute. This court therefore has jurisdiction. The motion to dis'miss is overruled.

Defendant filed an exception of no cause of action and an answer to the merits at the same time. The exception was submitted to the court without argument and taken under advisement. The trial of the case was then proceeded with on the merits and more than one hundred pages of testimony taken. The case was then argued and submitted on the merits; upon which the exception was sustained and the suit dismissed.

From this judgment Lewis Gottlieb has appealed. The exception should have been acted on in limine litis. If a petition sets forth no cause of action and is excepted to on that account, it is as a rule best to act on the exception before taking up the merits because if the exception is well pleaded, there is no occasion for taking testimony.

In this case the plaintiff alleges that the premises were leased for the purpose of opening and conducting a filling station at the place. That the specific purpose of the lease was to have a filling station erected and conducted at the said corner and there was a specific understanding express and implied that said station was to be conducted there.

That on Sunday, February 28, 1926,. the said defendant placed a large sign on the station as follows: “Notice — On and after March 1st, this station will be closed permanent. All business will be handled by the East end service station. Ed Schloss, Prop.” That one of defendant’s motives in closing the station and of advertising it as abandoned was to make' it impossible to secure a permit from the city to reopen it; another was to attract the business from said corner to another place of business owned and operated by defendant. That said closing and abandonment of said property as a filling station, was without the consent of petitioner and in-violation of the contract. That the abandonment and closing will damage petitioner in that it will make the filling station less desirable by reason of the fact that its business will have been attracted elsewhere and its rental value depreciated. That petitioner will be further damaged in that the property is most valuable as a filling station, the buildings thereon being fit only for such use. That after said station has been closed for eighteen-months the -city of Baton Rouge will in all probability - treat it as abandoned and refuse to permit it to be re-opened.

It is not expressly stated in the contract, that the filling station is to be kept open and conducted at said corner for the entire period of the lease and that fact is urged by defendant as justifying the closing and abandonment complained of by the plaintiff and as the reason why plaintiff’s petition discloses no cause of action. It is contended by the plaintiff that the intention of the parties that a filling station was to be kept open and conducted at said corner for the entire term of the lease is fairly and reasonably apparent from the terms of the contract. The intention of the parties as to whether the filling station provided for in the contract was kept open and conducted at said corner for tbe entire term of tbe lease, is to be sought' for in their contract, interpreted as provided for by law, C. C., Art. 1945, etc.

The contract can not be interpreted, against the allegations of the plaintiff; for the punpose of ruling on the exception of no cause of action, when the intention contended for by the defendant is not plainly and clearly apparent from the contract. For the purpose of ruling on the exception of no cause of action, it must be held that the intention of the parties was as alleged by the plaintiff, save when the contrary clearly and plainly appears from the contract, and such is not the case here.

The law provides that the lessee must enjoy the thing leased as a good administrator, according to * the use for which it was intended by the lease. If the lessee makes another use of the thing than that for which it was intended, the lessor may obtain the dissolution of the lease. The defendant may of course allege in his answer, his understanding of the contract, in which event the -interpretation will be a question for the merits of the controversy.

The. parties to this appeal have cited us authorities from the French Commentators on the Civil Code, bearing on the interpretation of contracts of the kind, but these authorities can not be applied, in ruling on the question before us because they have reference to tlffe rights of the parties and to the merits of the controversy.

The appellant contends that' the trial court ruled erroneously in regard to the admissibility of certain evidence, but the rulings were on the trial of the merits.

The judgment appealed from does not deal with, the merits. Therefore the authorities cited and the rulings complained of, can n,ot be inquired into, in disposing of the exception of no cause of action, because we are not dealing with the-merits of the case. The petition of the plaintiff sets forth a cause of action. The' exception of no pause of action . should have been overruled.

The judgment appealed from is therefore annulled, avoided and set aside. The exception of no cause of action is overruled and the case remanded to the lower court to be further proceeded with as the law provides. The cost of the exception and of this appeal is to be paid by the appellee. The other cost is to abide the final judgment, which may be rendered herein.

MOUTON, J.

Concurring in Jurisdiction.

In the contract of lease from plaintiff to defendant it is stated that “The consideration in addition to the obligations hereinafter set forth, is the sum of $6000.00 divided into sixty installment of one hundred dollars each, represented by sixty notes, etc.” Thereafter the lease says: “In addition to the obligations above set forth, lessee binds himself to erect a gasoline filling station on the property leased”, the date of the lease being August 23, 1922. It is stipulated in the lease that the filling station and equipments should not cost less than $3000.00 and which were to become the property of the lessor at the termination of the lease.

In my opinion the obligation which was imposed on defendant, lessee, to erect this filling station constituted a part of the consideration for the lease. The contract would have been the same, if, instead of defendant obligating himself to erect the station, he would have bound himself to pay the lessor the sum of $3000.00, in addition to his rental of $6000.00, which was divided in 30-day [payments. According to the allegations of plaintiff in her petition which must be taken as true under the exception of no cause of action filed by defendant, it is clear that as he was required under the lease, defendant did erect the station on the premises as was stipulated and that he had discharged this part of his obligation when this suit was filed.

As defendant had complied with this part of his contract, he had therefore paid the sum of $3000.00 to plaintiff on the lease, leaving a balance of whatever was due on the $6000.00 rental, the other portion of the consideration for the lease. The pleadings of the plaintiff show that this suit is for a balance of $1800.00 on the original rental notes of $6000.00. As this is the only amount 'in contest this Court has jurisdiction.


author: ELLIOTT, 'J.

text:
    No. 1108
    First Circuit
    VARNADO v. CITY OF BATON ROUGE ET AL.
    (Decembeer 7, 1926. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Municipalities—Par. 267; Pleading — Par. 62.
    Petition for damages against the city for a fall on a sidewalk which does not allege that the sidewalk was not reasonably safe' for a person walking with care and prudence’, does not state a cause of action and an exception no cause of action will be sustained.
    2. Louisiana Digest — .Municipalities—Par. 256.
    Under the Civil Code Articles Nos. 454, 458 and 482, a sidewalk is a public thing and therefore, one suing for damages caused by a faulty sidewalk, has no right to action against the abutting property owner, even though Act No. 169 of 1898, amended by Act No. 31 of 1904 empowers the city to require the owner to repair the sidewalk.
    ' Appeal from the Nineteenth Judicial District Court of Louisiana, parish of East Baton Rouge. Hon. W. Carruth Jones, Judge.
    Action by Mrs. Mary Yarnado against city of Baton Rouge, and the abutting proprietor of a sidewalk on account of personal injuries received by a fall, alleged to have been due to a projecting brick and a hole in the sidewalk.
    There was judgment for defendant sustaining an exception no cause of action, and dismissing the suit. Plaintiff appealed.
    Judgment affirmed.
    Herbert W. Kaiser, of New Orleans, and W. G. Randolph, of Baton Rouge, attorneys for plaintiff, appellant.
    H. Payne Breazeale and C. C. Bird, of Baton Rouge, attorneys for city of Baton Rouge, defendant, appellee.
    Laycock, Baron and Laycock, of Baton Rouge, attorneys for Triad Company, defendant, appellee.
   ELLIOTT, 'J.

Mrs. Mary Varnado alleges that while walking in a careful, prudent manner on the brick sidewalk,' in the rear of the Triad Building in the city of Baton Rouge, on April 3, 1925, at about 9 o’clock a. m., she stumbled on a projecting brick in tbe sidewalk on tbe north side of Florida street and in a quick effort to catch herself and prevent. a fall, one of her feet went into a hole, causing her to be thrown to the sidewalk with considerable force and violence, sustaining serious and permanent injury.

That she in no way contributed to her fall and injury by any act of negligence. That it was the duty of the city of Baton Rouge and of the Triad Company, Inc., owner of the Triad Building to keep said sidewalk in a proper and safe condition for use by pedestrians. That the unsafe and dangerous condition of the sidewalk and the negligent acts and omissions of the city of Baton Rouge and of the Triad Company, Inc., were the sole reason for her injury. That said sidewalk, by reason of loose, ragged and projecting bricks therein, was in a delapidated, unsafe and dangerous condition, filled with low places and holes and appeared to have been in that condition for some time prior to .the date of her injury. That she was not warned and there were no warning signs to pedestrians not to use the sidewalk. That prior to her injury she did not know and had no means of knowing that said sidewalk was unsafe and dangerous. That defendants were or should have been informed as to the unsafe and dangerous condition of the same.

She claims of the city of Baton Rouge and the Triad Company, Inc., in solido, $15,000.00 damages on account of her injuries. The- defendants excepted to her demand on the ground that her petition disclosed no cause of action, which was sustained and her suit dismissed. The plaintiff appealed.

The Charter of the city of Baton Rouge is Act 169 of 1898, Section 10 (amd. Act 156 of ,1906), provides that the Administrator of Improvements, shall have general superintendence over the repair and improvement of streets and sidewalks.

Section 20 (amd. Act 17 of 1924) invests the power to improve sidewalks and to .regulate the manner of repairing same * * * in the City Council. The City Council is also given po,wer and authority to compel owners and tenants of abutting property to keep their sidewalks * * * between their property line, and the curb, clean and in proper repair.

Section 39 (amd. Act 31 of 1904) provides that all paved and unpaved banquettes shall be kept in repair by the owners of real property fronting thereon. Section 42 (amd. Act 31 of 1904) invests the City Council with power and authority to- improve- sidewalks and to levy the expense of the-improvement on the abutting proprietors; the work to be let out to the lowest bidder, etc. These various provisions .of the city charter places the primary power and , duty of improving and repairing sidewalks in the City Council. The City Council can by ordinance compel owners of abutting property to repair their sidewalks, or the city can do it or have it done as the council may deem best.

Plaintiff’s petition does not allege the height of the projection over which she stumbled, nor that it was concealed and not open to view. Neither does she allege the depth of the hole into which one of her feet went, nor that it was concealed from view. It is common knowledge, that bricks in a brick sidewalk get loose and out of place; that one or more are frequently a little higher • or a little lower than the others. The ordinary brick is about 8 inches long, 4 inches wide and 2 y2 inches thick. .

We are not informed by tbe petition whether a brick was stuck up end ways or was flat in the walk but slightly superimposed above the others; nor whether the hole into which her foot went was made by a brick out of place, or was deeper than that, but it is evident that an ordinary projection like a brick superimposed half its thickness above another and a hole such as would be made by a brick out of its place, should have been observed as things, not unusual in brick sidewalks by a person walking along the sidewalk at 9 o’clock a. m. A person walking prudently does not ordinarily stumble and fall on account of uneveness in brick sidewalks; such as exists when there is nothing more than one brick slightly higher than another, or a brick out of place.

A sidewalk, reasonably, safe for persons walking with ordinary care and prudence is all that is required.

Plaintiff’s petition does not indicate that this sidewalk was not reasonably safe for a [person walking with ordinary care and prudence in the use of the walk; but rather indicates that her stumble and fall was the result of an accident, due to want of ordinary care and prudence on her part as she walked. Goodwin vs. City of Shreveport, 134 La. 820, 64 South. 762; and Wiltz vs. City of New Orleans, 2 La. App. 444, were decided on the merits, but have bearing on the exception of no cause of action because the facts acted on by the courts are similar to plaintiff’s allegations. The eases are correct expositions of the law on the subject of the liability of a city on account of injuries due to defective sidewalks. It therefore follows that if the condition of the sidewalk in question should be proved to have been as alleged by the plaintiff, she would not then have established her demand.

We are satisfied that no good or useful purpose would be subserved by remanding the case in order that plaintiff may have an opportunity to prove what she has alleged. The city is of course liable for injuries caused by unseen obstructions and holes in sidewalks of such character as to be dangerous and not open to view and avoidance by (persons walking prudently and using ordinary care.

The responsibility of the Triad Company, Inc., is claimed in the petition because it is the abutting owner at the place where the injury occurred and of the provisions contained in Section 39 (amd. Act 31 of 1904) of 169 of 1898. This section is to be construed and understood in connection with the other sections of the same act. The Act 169 of 1898, as amended, empowers the City Council by ordinance to require an abutting owner to repair his sidewalk, but the primary governing and responsible authority for failure to repair, if injury is caused on that account, is the city of Baton Rouge. It is not alleged in the petition that the city, by ordinance, required the Triad Company, Inc., to repair the sidewalk in front of its building. An abutting owner is of course liable to a party injured on the sidewalk, by a dangerous obstruction placed on it by him, or a hole made in it by him and left open of such depth that a person walking prudently and with ordinary care, stumbles and falls over the unseen obstruction or gets crippled in the hole of which he was unaware.

An illustration on this subject in Dillon on Municipal Corporations, 4th Ed., vol. 2, sections 1032 'and 1033, pp. 1308 and 1309, correctly states the law. But even had it been by a municipal ordinance made the duty of the Triad Company, Inc., to repair this sidewalk, if we have correctly held that plaintiff has not alleged a cause of action against the city, then certainly the same acts of omission and commission can not amount to a cause of action against a private citizen or corporation. Not' only the above but a further reason exists why a cause of action is not alleged against this defendant.

A sidewalk is a public thing, Civil Code, Arts. 454, 458, 482. And under plaintiff’s allegations the duty of keeping this sidewalk in proper condition, can not be otherwise than a public duty on the part of the city of Baton Rouge.

Betz vs. Limingi, 46 La. Ann. 1113, 15 South. 385; and Burke vs. Tricalli, 124 La. 774, 50 South. 710, cited by defendant are similar cases decided on the merits. As correct expositions of the law on the subject of private liability on account of injuries received by a fall on a sidewalk; they have bearing on plaintiff’s allegations against this defendant and as to whether she alleges a cause of action against it.

Even had a cause of action been alleged against the city of Baton Rouge, as it is not alleged that the city required this defendant by ordinance to repair the sidewalk; no duty public or otherwise exists under the. law, whereby this defendant can be held responsible for the condition of the sidewalk in question. We are satisfied that no good or useful purpose would be accomplished by the remand of this case in order that plaintiff may offer proof in support of her allegations.

Judgment affirmed. Plaintiff and appellant to pay the cost in both courts.


author: WEBB, J.

text:
    No. 2666
    Second Circuit
    FULLER vs. ROBINSON CONSTRUCTION COMPANY
    (June 30, 1926. Opinion and Decree.)
    (January 31, 1927. On rehearing, judgment by consent in favor of plaintiff for $60.00 and plaintiff to pay the cost of suit.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Master and Servant —Par. 159, 160 (a).
    Where an injured employee is able to work with small tools after the accident as well as he did before the accident, actually received wages in excess of that received at the time of the accident, there is no disability and no compensation will be paid under the Workmen’s Compensation Act No. 20 of 1914.
    2. Louisiana Digest — Master and Servant —Par. 159, 160 (a).
    A small scar on the inner surface of the last phalange of his finger is not a serious permanent impairment of the finger in the meaning of Section 8, Subsection 1 (e),' of the Workmen’s Compensation Act No. 20 of 1914, as amended by Act 216 of 1924.
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo. Hon. E. P. Mills, Judge.
    Action by Liner Fuller against Robinson Construction Company.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Yernis Morgan, of Shreveport, attorney for plaintiff, appellant.
    Pugh & Boatner, of Shreveport, attorneys for defendant, appellee.
   WEBB, J.

In this action the plaintiff, Liner Fuller, seeks to recover judgment against the defendant, Robinson Construction Company, for compensation under the Employers’ Liability Act for total permanent disability to do any work of a reasonable character, alleged to have resulted from injuries received by plaintiff when in the discharge of his duties in working around a steam dredging machine being operated by defendant.

The defendant answered, denying the allegations of plaintiff’s petition, and on trial judgment was rendered rejecting plaintiff’s demands, from which judgment plaintiff appeals.

OPINION

The plaintiff while in the employ of defendant on December 15, 1924, at a daily wage of three dollars, was placing grease on the cogs of a dredging machine and in some manner the middle and third finger of his left hand came in contact with the machinery, causing injuries from which he was laid off for a short time, after which he returned to his employment, where he worked for about two weeks, receiving the same wages as before the accident. After quitting his employment he went to the oil fields, where he drove a team for some months, receiving wages of $3.50 per day, and after this employment he returned to his home and had been engaged in getting out crossties for his own account for about five months prior to the date of the trial.

This action was filed on November 17, 1925, and trial was had on February 9, 1926, at which time there was a scar on the inner surface of the last phalange of the middle finger of plaintiff’s right hand, which he claimed was sensitive to such an extent that he could not handle small objects or grasp tools, such as the handle of shovels, without pain, and that this necessitated his holding his finger away from the object grasped, and this would cause pain in the back of his hand.

The physician called by plaintiff was of the opinion that, considering the place of the scar, the pain of which plaintiff complained was reasonable, and that he would be disabled to a certain extent in grasping small objects, while the physician called by defendant was of the opinion that the scar did not affect his ability to use the hand.

The plaintiff was at the time of the injury doing manual labor which required the use of small tools or implements, which it was necessary for him to grasp, and after the injury was received he took up the same work and has been since continuously engaged in employment which required the use of like or similar tools, or instruments, receiving for his services wages in excess of that received at the time of the accident, and under such circumstances we do not think it can be said that plaintiff was disabled from doing work of any reasonable character under either of Subsections (a), (b) or (c) of the statute; and we are also of the opinion that the evidence fails to show that the scar on the inner surface of the last phalange of the finger is not such as could be considered as having produced serious permanent impairment of the finger within the meaning of Subsection (e) of the statute. (Fred Bell vs. Merchants Cotton Oil Co., 2 La. App. 564.)

The judgment is affirmed.


text:
    No. 2726½
    Second Circuit
    DILLON v. BURGIN
    (December 11, 1926. Opinion and Decree.)

      (Syllabus hy the Editor.)
    1. Louisiana Digest — Sequestration—Par. 1.
    The sequestration of movable property under Article 163 of the Code of Practice is a personal action in which the sequestration is merely an incident.
    2. Louisiana Digest — Prescription—Par. 89; Sequestration — Par. 22, 34.
    The privilege provided by Act No. 5 of • 1924 amending Act No. 82 of 1916 in favor of garage and automobile repair men prescribes three months from the date of making repairs. Therefore a sequestration after three months is wrongfully issued.
    3. Louisiana Digest — Sequestration—Par. 30.
    A writ of sequestration is merely ancillary to the demand for judgment and the dissolution of the writ does not affect the principal demand.
    . Appeal from the Seventh Judicial District Court of Louisiana. Parish of Concordia. Hon. R. M. Taliaferro, Judge.
    ' Action by George L.- Dillon against John P. Burgin.. A writ of sequestration was issued. There was- judgment -dissolving the writ of sequestration and plaintiff appealed.
    Judgment affirmed.
    , C. P. Bullís, of Yidalia, attorney for plaintiff, appellant.
    Dale & Dale, of Vidalia, attorney for defendant, appellee.
   WEBB, J.

The plaintiff, George L. Dillon, a mechanic' residing at Natchez, Mississippi, owning and operating a machine shop at Perriday, Concordia parish, Louisiana, instituted this action in the Seventh Judicial District Court for the ■parish qf Concordia, Louisiana, against John P. Burgin, a resident of the parish of East Baton - Rouge, Louisiana, in which- he seeks tq obtain judgment for a balance alleged to be due by defendant to plaintiff as shown by itemized account attached to the petition.

Plaintiff alleges that the amount due is for labor and repairs performed and made by him on an oil engine, centrifugal pump and air compressor which at the time were situated on a plantation in the parish of Concordia belonging to the defendant where the machinery remained until a short time prior to the suit when it was removed to Gibson Landing on the Mississippi river; that he has a privilege on the machinery for his labor and repairs and that he fears the defendant will conceal, part with or dispose of the machinery during the pendeAcy of the suit, it being within the power qf the defendant' so to do, and that it is necessary that the machinery be sequestered in order to protect plaintiff's • rights.

He prays for the issuance of a writ' of sequestration and the seizure of the machinery, for process on Burgin and for judgment against him in the amount alleged to be due, with interest and costs, and that plaintiff’s privilege on the machinery be recognized and the machinery be sold and the ’proceeds applied to the payment of plaintiff’s claim.

■ The writ was issued' and the machinery described in the petition' was seized in the parish of Concordia by the sheriff of that parish and process was issued and together with notice of seizure was served on the defendant John P. Burgin in the parish of East Baton Rouge by the sheriff of that parish.

The defendant appeared by counsel and pleaded the prescription of three months under Act No. 5 of 1924, and subsequently he moved to dissolve the writ of sequestration on the grounds that the affidavit upon which the writ was issued was false and untrue; that defendant was not indebted to plaintiff in any amount; that the claim was for. the. work and repairs done for the account of John P. Burgin, Inc.; that the work done on the machinery was for less than two hundred dollars and had been paid by John P. Burgin & Son, Inc.; and that the account attached to the petition shews on its face that' the claim was not for labor and repairs on the machinery sequestered.

Appearer alleged that he was the owner of the machinery seized, and that he had been forced to employ attorneys to dissolve the writ, and reconvened for judgment' against plaintiff.

The defendant subsequently bonded the property seized.

John P. Burgin & Son, Inc., filed a petition of intervention in which the allegations of plaintiff were denied, and they alleged that any indebtedness due plaintiff was due by the intervenor, but' that no amount was due, same having been paid.

The plaintiff filed a rule against defendant to show cause why the motion to dissolve should not be considered as an answer, which motion does not appear to have been acted on; the minutes of the court show, however; that the' motion to dissolve was, fixed for trial and that on trial evidence was introduced and judgment rendered sustaining the plea of prescription and dismissing plaintiff’s suit; from which judgment' plaintiff appeals.

The record contains the note of evidence and the certificate of the clerk of court attached to the record is regular in form.

The defendant has answered the appeal, praying that the judgment be amended so as to award him judgment' on his reconventional demand.

OPINION.

Counsel for defendant apparently contends that the action is in rem and authorized under Article 163 C. P. However, we are of the opinion that it is a personal action in which the issuance of ,the writ and sequestration of defendant’s property was merely an incident. The suit, it is true, was instituted before a court which did • not have jurisdiction rationae personae, but the defendant appeared and submitted himself to the jurisdiction, and clearly he had the right so to do.

The plaintiff urges that the judgment should be reversed and the cause remanded for trial on the motion to dissolve, and in due course on the merits, contending that the plea of prescription filed by defendant was improperly considered and wrongfully sustained.

The attention of the court was not directed to the error (if such it was) of its having considered the plea of prescription on the trial of the motion to dissolve, and this being the case it may be presumed that the plea was submitted at the same time and on the evidence introduced on the motion to dissolve.

The plea of prescription ordinarily goes to the merits, but such was nqt the case here, as the plea filed in the present instance merely relates to the prescription of the privilege and not the debt, and although it was not incorporated in the motion to dissolve, we are of the opinion that it could have been so. incorporated, and certainly the plea not going to the merits it could be taken up and considered prior to the trial on the merits, and assuming in view of the. fact that the record does not show plaintiff made any objection or suggested to the court the alleged error, we are of the. opinion that we should also consider the ¡plea at this time in connection with the evidence introduced.

We find that the evidence establishes facts from which the privilege provided by Act No. 5 of 1924 amending Act No. 82 of 1916 attached to the property sequestered, and also that the facts established show that the privilege had prescribed.

From this it follows that plaintiff’s plea of prescription was properly sustained and that the writ of sequestration falls; but considering that the defendant has not urged the allowance of attorney’s fees in event the dissolution of the writ is based upon the plea of prescription wherein attorney’s fees were not claimed, we shall in this respect follow the decree of the lower court.

The plaintiff, as stated, submitted himself to the jurisdiction of the court, the sequestration was merely ancillary to the demand for judgment, and the dissolution of the writ does not affect the principal demand.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, and it is further ordered, adjudged and decreed that the plea of prescription filed by defendant be sustained and the writ of sequestration dissolved, and that the cause be remanded for further proceedings as herein indicated and according to law.