text:
    No. 2996
    Second Circuit
    TALLEY v. ALABAMA PET. CO.
    (June 28, 1927. Opinion and Decree.)
    (July 14, 1927. Application for Rehearing.)

      (Syllabus by the Court)
    I. Louisiana Digest — Appeal—Par. 625.— Master and Servant — Par. 1601.
    The finding of a trial judge that an accident to an employee happened after he had begun the performance of the day’s work in the service of his employer is a finding of fact and will not be disturbed unless manifestly erroneous.
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo. Hon. J. H. Stephens, Judge.
    Action by Arthur Talley against Alabama Petroleum Company, Inc.
    There was judgment for plaintiff and defendants appealed.
    Judgment affirmed.
    Long & McSween, of Shreveport, attorneys for plaintiff, appellee.
    Thatcher, Browne,' Porteous & Myers, of New Orleans, attorneys for defendants, appellants.
   REYNOLDS, J.

Plaintiff sued the defendants under the Employers’ Liability Law (Act 20 of 1914 and amendments) for $20.00 a week for three hundred weeks, beginning January 20, 1926, with legal interest on each installment from its maturity until paid, less certain credits.

He alleged that while working for defendant Alabama Petroleum Company, Inc., on January 13, 1926, in the capacity of foreman of roustabouting gang he undertook to crank and start a Ford automobile belonging to defendant Alabama Petroleum Company, Inc., and that the “crank became engaged and was thrown against petitioner’s right arm, breaking, mangling and bruising the bones, nerves * * * of the arm and wrist in such manner and to such an extent that petitioner has a limited use of the same.”

He further alleges that he was earning a weekly wage of $45.00 at the time of the accident and that his earning capacity had-been reduced by the injury to $5.00 a week.

He further alleged that by contract between defendant Alabama Petroleum Company, Inc., and defendant Maryland Casualty Company the latter “agreed to pay your petitioner any and all sums for which the said defendant, Alabama Pe'troleum Company, Inc., might be liable * * * and- to pay all such compensation as might be adjudged in favor of your petitioner.”

He further alleges that compensation had been paid him up to the date of filing the suit, namely, July 17, 1926, but that defendants had refused to make further payments.

Both defendants filed exceptions of no cause of action and qf vagueness. The exceptions of no cause of action were overruled and the exceptions of vagueness sustained and plaintiff permitted to file an amended petition.

Apparently an amended, petition was filed, for the record contains answers by both defendants to an amended petition but we do not find it in the record.

The. defense is that plaintiff was not injured in the performance of the duties of his employment; that instead of being injured at 7 o’clock in the morning he was injured about 6 o’clock in the morning; that instead of being injured on defendant Alabama' Petroleum Company, Inc.’s property he was injured at or near his own home several miles distant from defendant Alabama Petroleum Company, Inc.’s property; that the ear plaintiff was cranking did not belong either to defendant Alabama Petroleum Company, Inc., or defendant Maryland Casualty Company, but belonged to a friend of plaintiff with whom he was expecting to ride; that plaintiff’s duties were to commence at 7 o’clock in the morning and he was neither required nor expected to begin work prior to that time; that he was receiving a daily wage of $6.00 and that each day constituted a separate employment; that defendant Alabama Petroleum Company, Inc., had not agreed to furnish

and was not furnishing plaintiff with trans portation to or from his work; and that plaintiff was not at the time of the accident performing duties arising out of or in the course of his employment.

It is also alleged that when plaintiff received his injury he informed defendant Maryland Casualty Company that he was injured at 7 o’clock in the morning of January 6, 1926, in the course of his employment by defendant Alabama Petroleum Company, Inc., on its property known as the “Robbins lease,” and that on the faith of such representations defendant Maryland Casualty Company paid him compensation aggregating $520.00 and paid $81.90 for medical attention to plaintiff; that the representations were false and defendant Maryland Casualty Company entitled to recover said amounts from plaintiff.

And the Maryland Casualty Company prayed also for judgment in reconvention against plaintiff for $601.90 with legal interest thereon.

On these issues the case was tried and there was judgment in favor of plaintiff and against only defendant Alabama Petroleum Company, Inc., for $20.00 a week during his disability, not to exceed one hundred seventy-five weeks, the first payment being decreed due January 20, 1926, with legal interest on each installment from its maturity until paid, less compensation already paid up to July 16, 1926.

Apparently no judgment was rendered for or against defendant Maryland Casualty Company.

Both defendants appealed. In this court plaintiff moved to amend the judgment so as to allow him $20.00 a week during his disability not to exceed three hundred weeks.

OPINION

The record and briefs in this case present numerous interesting questions of fact and law, but in their arguments and briefs counsel only stress the issue as to whether plaintiff, at the time he was injured, had actually entered upon the performance of the day’s work under his employment .by defendant Alabama Petroleum Company, Inc., or not, and this issue and, that as to the amount of compensation plaintiff is entitled to, if any, are the only questions, we think, necessary to be decided by us.

Plaintiff was employed in the capacity of what is known as “gang-pusher,” his duties being to move from one of defendant Alabama Petroleum Company, Inc.’s properties to another and push production. His work, therefore, began as soon as he entered on any (piece of property under defendant Alabama Petroleum Company, Inc.’s dominion and continued as he went from one piece of property to another in the performance of his duties throughout the day.

He testified that on January 13, 1926, he was employed by defendant Alabama Petroleum Company, Inc., as a gang-pusher and-

“What were you doing on the 13th of June (January?) 1926?
“A. Well, I started to work that morning and got out by the Garner lease, stopped there, done something to that well, I forget just exactly what, and started on over to the Robinson lease; then is when I got my arm broke, the car stopped.
“Q. Who did that Garner lease belong to?
“A. Alabama Petroleum Company.
“Q. Was it one of the leases you were required to look after?
“A. Yes, sir.
“Q. Do you know what you did at that lease that morning?
“A. Well, I don’t know whether I got ¡part off that engine or not; don’t remember just exactly what I done that day; sometimes. take parts over to another lease; don’t know whether took part of that engine to fix up the Smith lease or not.
“Q. You know that you did make an inspection that morning?
“A. Yes, sir; stopped and done something; don’t know exactly what I did do.
“Q. Then what did you do?
“A. Started on over to the Robbins lease before changed clothes at the tool house over there.
“Q. What happened on the way there?
“A. The car stopped, I got out and it back-fired and broke my arm.
“Q. You say it broke your arm, that
same break Dr. Adair has described ?-
“A. Yes, sir.
“Q. Who did the Robbins lease belong to?
“A. Belonged to Alabama Petroleum Company.
* * *
“Q. Who was with you when you were injured?
“A. G. E. Williams.
“Q. Whose car where you in, or did you nave an automobile at the time you. were injured?
“a. 'inis car.
“Q. Whose?
“a. G. E. Williams’ car.
“Q. Now this was Mr.' Williams’ car— where was he, why were you cranking it instead of him?
“A. He was driving; naturally a man riding with another fellow gets out and cranks the car.
“Q. You got out to crank it?
“A. Yes, sir.
“Q. And he had not started to work that morning?
“A. He had not started, to work; we were going to work together.
“Q. You were going to work together?
“A. Yes, sir; we got paid for nine hours.
“Q. Paid for nine hours' — seven to five?
“A. Yes, sir; and an hour off at noon..
“Q. You and he were going together,, the car was out in front of the boarding house at Merrick City when this thing occurred?
“A. He came by and got me, you see.
“Q. And you were in the car going to, the Garner lease when this car stopped is that it?
“A. No, sir; going from the Garner lease to the Robinson lease.
* * *
“Q. You don’t remember what you did on the Garper lease that morning?
“A. No, don’t remember exactly what did.
“Q. You would not swear that you even got out the car?
“A. Yes, sir; I swear I got out the car.
“Q. You don’t remember anything else about what you did ?
“A. Well, no, I don’t remember what
done, but done something.”

Plaintiff is corroborated by S. E. Williams, who testified:

“Q. Do you know Arthur Talley?
“A. Yes, sir.
“Q. Were you with him on or about January 13th?
“A. Yes, sir.
“Q. What, if anything, happened to Mr. Talley on that day?
“A. I was working in the drilling department. Mr. Talley was in the production; and when the road would permit I would go back and forth in my car. On the morn'ing. of the 13th I was late, something like a quarter to seven before I ever got started out. After I had started Mr. Talley came along and I said, ‘Red, you ain’t gone yet?’ so- he got in the ■car and we started out:
■ “Q. Where did you start from?
“A. Merritt City.
“Q. Where were you going?
“A. I was going to work on the Robbins lease for the Alabama Petroleum Company.
“Q. And Mr. T'alley was working for the Alabama Petroleum Company, too?
“A. Yes, sir.
“Q. Just- state what you did.
“A. We went out, and he says: ‘Let me run by this well a minute and I will ■go out to Robbins with you.’ At that time I did not know whose well that was, because I had only been working a few days 'and wasn’t acquainted. Later I found it was one of the Alabama’s wells. Well, he came back and I had crossed the branch and the car had stopped and I started to crawl out and he said: ‘I’ll crank it.’ We went around to crank it and when he grabbed hold of the crank the motor made a kick and it whirled around and hit him. He said: T believe I have broken my arm.’ I got hold of his arm and felt it and told him it was broke all to pieces. I went back to the boarding house and went after the doctor. I tried to get Dr. Dennis and he was away at the time. I tried then another doctor, I can’t recall his name, and he was sick and said he couldn’t come. I went back to the drug store and Dr. Browning came in pretty soon and I got him to go out there.”

Plaintiff and G. E. Williams were the only witnesses to the accident and under their testimony as to the time and place and manner in which it took place it is clear that plaintiff had already entered upon the performance of his day’s work for defendant Alabama Petroleum Company and that at time and place he was performing services arising out of and in the course of his employer’s business within the contemplation of the Workmen’s Compensation Law.

Defendants contend with much earnestness that plaintiff and G. E. Williams are unworthy of belief, but they have not impeached either -of them nor even attempted to do so, except by rigid cross-examination of them; and we think that the witnesses, notwithstanding the acid test of skillful cross-examination, were as candid and positive as witnesses of their intelligence usually are.

The trial court heard the plaintiff testify and accepted his version of the time, place and manner of the accident.

The testimony of G. E. Williams is sought to be contradicted by evidence tending to show that he worked on January 13, 1926, the day of the accident to plaintiff, although he testified that he did not. This evidence consists of time-records signed by Mr. McBride, superintendent of defendant Alabama Petroleum Company, Inc., but Mr. McBride testified that he did not remember whether Williams worked on January 13, 1926, or not. And as the time-records were not positively proved to be correct by the testimony of the witness that made them, we think they were insufficient to overcome the positive testimony of Williams himself that he was at work on the day in question.

The District Judge accepted the testimony of Williams as true and we find nothing in the record that would justify us in disregarding it.

Defendant Maryland Casualty Company .paid plaintiff compensation to the amount of $520.00 and also paid $81.90 for medical attention to him and it alleges that it' was induced to make these payments by false representations on the part of plaintiff and asks for judgment in reconvention against him for the amounts.

But even if it was induced to make the payments by such representations (as to which we express no opinion) we would be powerless to grant it the judgment asked for because, as stated in the inception of this opinion, the District Court did not render any judgment either for or against defendant Maryland Casualty Company on plaintiff’s demand against it or for or against it on its reconventional demand against plaintiff and our jurisdiction is appellate only.

Mr. Vought, an adjuster for the Maryland Casualty Company, testified:.

“Q. I hand you, Mr. Vought, notice of accident made out in handwriting purporting to have been made by R. W. McBride, containing no signature, dated January 13, 1926, on form used by your company and purporting to show that Mr. Talley was injured on the Robbins lease, and ask you if you received that paper from the office of the Alabama Petroleum Company?
“A. Yes, sir; I received it on January 16, 1926.
“Q. State whether or not it was upon the strength of the information contained in that salement that you made the payment of compensation.
“A. Yes, sir; this, together with the doctor’s report.
“Q. Does the report say he was injured on the Robbins lease or while cranking a car?
“A. Just while cranking a car.”

We are therefore of the opinion that defendants have entirely failed to make out the plea that the compensation and medical bill were paid under false representations on the part of the plaintiff.

In our opinion it is immaterial whether the accident happened exactly at seven o’clock in the morning or a few minutes after or a few minutes before that time, for the reason that the evidence shows that at the time it happened plaintiff had already entered upon the performance of his day’s work; and the decisive question is not at what time the accident happened but had plaintiff begun his day’s work when it happened, and we are of the opinion that the evidence shows he had.

As to the amount of compensation plaintiff is entitled to.

Defendants contend that if entitled to compensation at all plaintiff should not exceed $20.00 a week for not exceeding 150 weeks, for the reason that, as they allege, the testimony shows his disability was only between 50 and 60 per cent; and plaintiff has asked that the award of the District Court be increased from one hundred seventy-five weeks to three hundred weeks.

On the record we are not prepared to say that the award was either excessive or too small; but if it is, either party has his remedy. Section 20 of the Workmen’s Compensation Law as amended by Act 85 of 1926.

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


source: Caselaw Access Project

author: CLAIBORNE, J.

license: Public Domain

text:
    No. 9635
    Orleans
    HOVARTH v. EPPLING
    (Jan. 31, 1927. Opinion and Decree.)
    (Feb. 28, 1927. Rehearing Refused.)
    (March 28, 1927. Writ of Certiorari and ' Review Granted by Supreme Court.)
    (July 27, 1927. Writ of Certiorari and Review Recalled by Supreme Court.)

      (Syllabus by the Court)
    1. Louisiana Digest — Taxation—Par. 276, 332, 358, 360.
    When the description in an advertisement for a tax sale is insufficient to identify the property intended to be sold nothing passes to a purchaser by virtue of the sale. Nor is such a sale protected by Article 233 of the Constitution of 1898.
    2. Louisiana Digest — Taxation—Par. 357, 360.
    Neither the sheriff nor subsequent purchasers can change the description of the property advertised so a? to give it a description sufficient to identify the property.
    Appeal from Civil District Court. Div. “F.” Hon. Percy Saint, Judge.
    Action by Steve Hovarth against Henry D. Eppling et al.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Josiah Gross, J. A. Morales, of New Orleans, attorneys for plaintiff, appellant.
    Percy S. Benedict, of New Orleans, attorney for defendant, appellee.
    Judge Westerfield takes no part.
   OPINION

CLAIBORNE, J.

This is a suit to establish a tax title.

Thq plaintiff alleged that he is the "owner and in possession of the following property:

A portion of ground situated in the Sixth District of this city, designated as Lot A of square 694, bounded by Derbigny, Claiborne, Napoleon Avenue and Berlin Streets, measuring 60 feet front on Derbigny Street by 137 feet 6 inches deep, according to a sketch annexed.

1st. That he acquired this property from the Galvez Realty Company by act of Josiah Gross, notary, dated July 14, 1923.

2nd. That the Galvez Realty Company acquired from the Tulane Investment Company by act of Josiah Gross, dated January 12, 1923.

3rd. -That the Tulane Investment Company acquired from J. A. Morales by act of Josiah Gross, dated August 5, 1920.

4th. That J. A. Morales acquired at a sale made by the tax collector for the City of New Orleans for the taxes of 1917 assessed in the name of Eureka Homestead Society by act of John Legier, notary, dated June 7, 1920, all according to copies of acts annexed.

5th. That the Eureka Homestead Society by act of Percy Benedict, notary, dated April 8, 1922, sold the same to Henry P. Eppling who never was in actual possession thereof.

That plaintiff and his authors have had undisputed possession of said properties for morq than three years, and that the tax title above mentioned has been quited and confirmed by the prescription of three years by Article 233 of the Constitution of 1898.

Plaintiff prayed for judgment confirming his title and recognizing him as the owner of the property described therein.

The defendant pleaded that the petition “sets forth no legal right or cause of action.”

The exception was maintained and the suit dismissed.

Plaintiff appealed.

The exception was based' upon the alleged erroneous and misleading description of the property as assessed and as advertised and sold for the city taxes of 1917 and not sufficient to identify the property.

“When the description in a tax deed is insufficient to identify the land sold, nothing passes by virtue of the sale.” Mouton vs. Southern Saw Mill Co., 138 La. 813 (823), 70 South. 813; Amrhein vs. Nylka Land Co., 137 La. 570, 68 South. 957; Brock vs. McIlhenny’s Son, 136 La. 903, 67 South. 951; Quaker Realty Co. vs. Guibilati, 136 La. 52, 66 South. 394; Gomez vs. Wilde, 135 La. 204, 65 South. 109; Levy vs. Gause, 112 La. 789, 36 South. 684.

In Quaker Realty Co. vs. Guihilati, 136 La. 52, 66 South. 394, the court said: “The lots assessed and sold are described as fronting on Elysian Fields Street, Delalondre owned no lots fronting on Elysian Fields Street.”

In Guillory vs. Elms, 126 La. 560, 52 South. 767, the court said on page 566:

“Of course an assessment without an identification of the property attempted to be assessed is no more possible than is the cooking of an uncaught hare, and where one piece of property is described in an assessment and advertised, it cannot be said that another piece is thereby identified, assessed and advertised, and that any authority is thereby conferred on the sheriff or tax collector to sell such other piece for taxes; and as we have said without authority he cannot make a sale for taxes within the meaning either of Article 233 of the Constitution or of any other provision of law.”

In the case of Gouatux vs. Beaulieu, 123 La. 684, 49 South. 285, a difference between a “misdescription” and an “uncertainty” was pointed out.

In Weber vs. Martinez, 125 La. 663, 51 South. 679, it was said on page 668:

“If the description had read ‘A certain lot and etc.,’ a different situation would be presented as Weber owned several lots, and it would be impossible to determine which of them was intended.”

In Shelby vs. Fredrichs, 117 La. 686, 42 South. 218, it was said:

“Although Article 233 of the Constitution of 1898 provides no exception for defective descriptions, wanting in all the elements of description, cannot be held as good at all if it has no feature of legal certainty. Decisions of this court sustamed the rule that ail assessment is fatally defective and void if it contains such a falsity in the description or designation as renders identification not reasonably possible,” quoting six authorities.

It has been held that:

“The Constitutional prescription of three years cannot give validity to a tax deed which is void fqr want of a .description by which the property can be identified.” Mouton vs. Southern Saw Mill Co., 138 La. 813, 70 South. 813; Amrhein vs. Nylka Land Co., 137 La. 570, 68 South. 957; Brock vs. Mcllhenny’s Son, 136 La. 903, 67 South. 951; Guillory vs. Elms, 126 La. 560 (566), 52 South. 767; New Orleans Land Co. vs. Nat'l Realty Co., 121 La. 200, 46 South. 208.

The tax deed for Eureka Homestead Society to J. A. Morales describes the property advertised and sold for taxes of 1917 as:

“A certain lot of ground and improvements thereon situated in the Sixth District of the City of New Orleans, designated as A lot in square No. 694 bounded by Derbigny, Napoleon Avenue, Claiborne and Berlin Streets and measures 55 feet front on S. Claiborne Street by 137 feet in depth.”

The lot claimed by plaintiff in this case is alleged to be in the above square but is described as “measuring sixty feet front on ‘Derbigny Street’ by 137 feet 6 inches deep.”

The two acts of sale by Morales to Tulane Investment Company, and by Tulane Investment Company to Galvez Realty Company continue the same description of 55 feet front on “S. Claiborne Street”.

But the last act of sale by the Galvez Realty Company to the plaintiff herein, Steve Hovarth, changes the description and makes the lot front 55 feet on Derbigny Street “instead of Claiborne Street” and further describes it as the same identical property which the vendor, the Galvez Realty Company acquired from the Tulane Investment Company.

Such a change of front, of course, was unjustified and illegal. It is attempted to be justified upon the ground that it “follows more accurately the survey of Bustis and Bres which described the lot as measuring 60 feet on Derbigny instead of 55 feet on Claiborne.”

The collector of taxes could sell only the property he had advertised, and the purchaser at tax sale and the subsequent purchasers from him could aqquire only what he had purchased and owned.

The change in the description was entirely unauthorized.

In the case of Guillory vs. Elms, 126 La. 560, 52 South. 767, the court said:

“Where property not susceptible of identification from the description on the assessment and advertisement purports to have been adjudicated lor taxes and the adjudicatee, preparing the act of sale inserts a description which identifies property of which he subsequently claims possession under such deed, he must be held to be a possessor in bad faith.”

In Ramos Lumber Co. vs. Labarre, 116 La. 559, 40 South. 898, the syllabus reads:

“The tax title which plaintiff sets up to this particular tract of land did not cover and extend to it. No part of it was included within the boundaries given either in the assessment, the advertisement, the adjudication, or the sheriff’s deed of sale. Subsequent purchasers were without power or authority by giving, as between themselves, additional boundaries to the land adjudicated at tax sale and effect which the sale itself did not have, and make it serve as the basis for prescription. The tax proceedings had to stand or fall as made. They could not be reformed after they had been closed by either the tax collector or subsequent purchasers, without the consent of the owner. The prescription of three years under the Constitution of 1898, Article 233, is held for reasons assigned to have no application.” In the body of the opinion on pages 579, 580 and 581 we read: “Had it taken any other land than the land advertised, offered for sale, and adjudicated, it would have been guilty of a tort and tahen the property of its citizens without due process of law. Had the State officers intended, as they did not, they could have changed the thing sold from that which was advertised and offered for sale and adjudicated to some other lands.
“If there has been error, the error is fatal and cannot be corrected by ex parte consent proceedings to which the owner has not consented to and been privy.”

The assessment roll for the year 1917 shows that the Eureka Homestead Society was , assessed for a number of lots on Napoleon Avenue, Derbigny, and S. Claiborne Streets bearing Nos. 2 to 11.

We conclude therefore the plaintiff’s authors having a title only to a lot on Claiborne Street could confer upon plaintiff no title to a lot on Derbigny Street, and that if the intention of the tax collector was to sell a lot on Derbigny Street that his advertisement and adjudication were not only uncertain in description but misleading and could confer no title upon a purchaser and that the title of the purchaser at the sale was therefore not protected by Article 233 of the Constitution of 1898.


author: JONES, J.

text:
    No. 9715
    Orleans
    MALONE v. NASH MISSISSIPPI VALLEY MOTOR CO.
    (April 25, 1927. Opinion and Decree.).
    (May 23, 1927. Rehearing Refused.)

      (Syllabus by the Court)

    1. Louisiana Digest — Appeal—Par. 625.
    Where only questions of fact are involved and the evidence sustains, the finding of the trial judge the judgment will be affirmed.
    Appeal from Civil District Court. Div. “D.” Hon. Porter Parker, Judge.
    Action by J. Puller Malone against Nash Mississippi Valley Motor Company, Inc.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Lemle, Moreno & Lemle, of New Orleans, attorneys for defendant, appellee.
    Monroe & Lemann, J.. W. Hopkins, of New Orleans, attorneys for plaintiff, appellant.
   JONES, J.

This is a suit for seven hundred fifty ($750) dollars, with interest, for damages arising out of a fraud alleged to have been practiced by the defendant against the plaintiff in the sale of an automobile. There was a judgment in favor of plaintiff for four hundred ($400.00) dollars, together with interest and cost," and the defendant has taken- this appeal therefrom.

Petitioner alleged that on September 1, 1922, the wife of petitioner, as his agent, purchased from defendant, a Nash coupe for thirteen hundred ($1300.00) dollars, and in part payment thereof gave a Jeffrey automobile of the value of three hundred fifty ($350.00) dollars, and for the balance, namely nine hundred fifty ($950.00) dollars, he paid defendant cash.

Petitioner further alleged that the agent of the defendant represented to Mrs. Malone that the automobile which defendant was selling had been used as a demonstrator, which had not been operated for more than 250 miles, and that the entire car and its equipment, including tires, was practically new, but because of its use, though very limited, the defendant could not sell the automobile as a new car. It Was further alleged that after the automobile had been operated for a short while petitioner learned that defendant had practiced a fraud upon him and that the qar, instead of being a new car which had been driven only 250 miles, was a reconstructed automobile which had been in use in Memphis, Tennessee, had been operated for more than 2,500 miles, had subsequently been sent to the factory of the Nash Motor Car Company and a new engine put therein, and made to look like a new car.

Petitioner further alleged that although it had been represented to him that the car was the latest model on the market during September, 1922, he has since found that the car was .of a model two years older, and that the representations made to him were wholly untrue and constituted a fraud.

Petitioner further set out that the defendant corporation, although it has promised to make petitioner whole, has since refused to do so, and that it is unable to do so because it had already sold the automobile which was traded in to it by petitioner, and that the car sold to him was of the value of seven hundred fifty ($750.00) dollars less than the value of the car which defendant represented that it was selling, and petitioner has, therefore, been injured to the extent of seven hundred fifty ($750.00) dollars.

The answer of the defendant admitted the sale of the. car to the petitioner, but denied that it had. acted fraudulently, but, on the contrary, had given to petitioner and his wife a full history of the car prior to its purchase by them, and had informed them that the car had been in the possession of a Nash distributor in Memphis, Tennessee, and had there been used, and subsequently returned to the factory, where a new engine was installed. It denied that it had represented to plaintiff that the automobile had gone- only 250 miles and averred that representation had only been made with reference to the motor in the automobile.

The case involves only questions of fact.

The judge of the lower court, who had the opportunity of seeing and hearing the witnesses decided the question in favor of plaintiff. His conclusion is sustained by an analysis of the testimony of the witnesses and by the collateral facts.

The plaintiff was willing to buy a car that had run 250 miles, but was sold a car with a body that had run possibly 2,500 miles, and with a motor that had gone only 250 miles. The purchase price of the car now was qne thousand, five hundred ninety-five ($1,595.00) dollars.

The testimony of Brand (Tr. 53), who is engaged in putting a value upon such cars, is that the car was worth not more than eight hundred ($800.00) dollars.

Woodward, who had had long experience in (pricing cars, • testified that the car was worth only one thousand ($1,000.00) dollars, or a difference of three hundred fifty ($350.00) dollars. •

The court, after hearing all of the testimony, concluded that a judgment of four hundred ($400.00) dollars would do justice between the parties, and accordingly rendered judgment for that amount. We believe that an affirmance of the judgment would do substantial justice to the parties.

Por the above reasons the judgment is affirmed.


text:
    No. 10,222
    Orleans
    PURSER v. HYAMS COAL CO.
    (Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Pleading—Par. 125.
    Evidence unobjected to enlarges the pleadings to that extent.
    2. Louisiana Digest — Appeal—Par. . 625.
    Where the reasons for judgment of the lower court state both the facts and the law clearly and concisely, they will be adopted by this court and the judgment will be affirmed.
    Aippeal from Civil District Court, Div.
    “A.” Hon. Hugh C. Cage,,. Judge.
    Action by Brittain B. Purser against R. P. Hyams Coal Company.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    H. W. Robinson, of New Orleans, attorney for plaintiff, appellant.
    G. B. Harrison, Jr.; E. D. Saunders, of New Orleans, attorneys for defendant, appellee.
   JONES, J.

Plaintiff sues individually for one hundred twenty ($120.00) dollars and as tutor of his minor daughter, Mary Purser, for two thousand ($2,000.00) dollars, for personal injuries to her on February 16, 1925, on Rampart Street in front of Union Station in this city, by a truck of defendant company.

Defendant is charged with negligence on two grpunds, viz:

I. That truck was being driven at an excessive speed.

2. That when the ' truck was opposite Miss Purser, the driver turned the front wheels and caused the rear end to skid into Miss Purs.er, and throw her back against the street car and then on the pavement, thereby inflicting many bruises, a dislocation of the hip, etc.

Defendant first filed exceptions of vagueness on ground that petition did not show the following essentials:

1. Exact place on Rampart Street where the accident happened.

2. The speed at which truck was going.

3. How the skidding of the truck was due to negligence of chauffeur.

Plaintiff then filed an amended petition stating that the accident happened on South Rampart between Howard Avenue and Calliope on the river side on downtown street- car track betwen twenty-five and thirty-five feet from Howard Avenue.

Defendant then filed an answer admitting the accident, but denying the negligence, specially averring as follows:

1. That an automobile had suddenly come out of Union Station from behind a street car going uptown, immediately in front of this truck, which was going downtown on the right hand side of Rampart Street at a reasonable, legal rate of speed.

2. That the driver immediately put on his brakes and as his truck was going very slowly, stopped in time to prevent striking the automobile.

3. That when the brakes were applied the rear end of the truck skidded slightly to the left and struck Miss Purser, who was standing in the middle of the street, between the car tracks.

4. That Miss Purser at the time was crossing South Rampart Street in violation of the traffic ordinance. No. 7490 C. C. S. and the accident was caused by the carelessness of the young lady and particularly because of the violation of the traffic ordinance, as defendant’s driver was without fault.

It is thus seen that the answer, which was sworn to by the attorney on information and belief, admitted the skidding of the truck, but on the trial of the case the driver testified, without objection, that the truck did not skid, but was struck by the tail of his truck. His testimony on direct examination is as follows:

“Q. You are the driver of a truck for the R. P. Hyams Coal Company, Limited?
“A. Yes, sir.
“Q. You were the driver of that truck on February 16, 1925, when it struck and hurt Miss Mary Purser?
“A. Yes, sir.
“Q. Please tell the court exactly how the accident happened?
“A. Miss Mary and another lady came out of the depot about the middle of the block. I was headed downtown and both of them stopped and the other lady went across and Miss Mary stood still and at that time the car behind, her was ringing its bell and as the car go in front of my truck she started to cross and ran into the tail part of my truck and I stopped and by the time I got down Miss Mary had got up and picked up her ipocketbook and a policeman came up and took my license number and my name.
“Q. How fast were you going?
“A. Very slow, about five miles an hour, because during train hours there are lots of people around there.
“Q. There is no doubt about it that you were not going faster than five miles an hour ?
“A. No, sir; no faster than that,
“Q. How far did you go after this accident happened?
“A. I stopped in less than five feet, because when she got in between the car and the truck I would have stopped then, but I knew if I stopped, the truck would slide and knock her against the street car and when the back part of the truck hit the lady I stopped right away. The truck never did slide before she was down or got up.
“Q. Is the back part of your truck wider than the front of it?
“A. Yes, sir, the back part has a wide wing on it.
“Q. Were you driving in the car tracks?
“A. Yes, sir, but the inside wheels on that side was not in the track next to the car track as it did not fit into the track account of being wider and the wheels that were not in the track were those next to the car track that the car was on.
“Q. Then your left wheels were not in the track?
“A. No, it was outside the track and the right wheel was inside the track.
“Q. In other words, your truck is wider than the street car track?
“A. Yes, sir.
“Q. How far was this from the intersection. of Howard 'Avenue and Rampart Street?
“Á. Twenty-five or thirty feet after I stopped. I had stopped before I got to the intersection. She came out the depot right where the stone platform is and crossed over.
”Q. She crossed over the street right opposite that same platform?
“A. Yes, sir.”

On cross examination as to variance between his testimony and the answer of the company, he stated that he made a written report of the accident to defendant and some time later had made a statement to the attorney, but that he had never stated to anyone that the truck had skidded or that any automobile, had passed behind the car. Counsel for defendant then stated that the answer had been prepared from statement furnished by employees of the company, who were said to have gotten them from the driver.

The Judge of the lower court gave judgment for defendant and plaintiff has appealed.

His reasons, for judgment are as follows:

The evidence shows that Miss Purser, a young lady, I understand nineteen years old, arrived in New Orleans on an Illinois Central train at nine o'clock in the morning on February 16, 1925.

She was met at the depot by a cousin, a lady apparently between forty and forty-five years of age. The two came through the Union Station and came out on the South Rampart Street side, about forty feet from the corner. The elder cousin walked ahead and the young lady, whose name is Miss Mary Purser, evidently got slightly behind her by stopping to give her bag to the negro • red cap.

The cousin stated that she saw a street car approaching going uptown and she saw a large truck of the defendant coming downtown. She said she did not gauge the distance of the two vehicles, but stated that she thought she had time to cross the street in safety and proceeded to do so. She has no recollection of the truck being close enough to her to endanger her and that she had gotten entirely across the street on the banquette opposite, when she turned and saw Miss Purser on the ground.

Miss Purser testified that she crossed in front of the street car, which must have been extremely close to her, for as she crossed the. first track nearest to the station, the truck .was so close to her ■ that had she proceeded she would have been run down by the front of the truck and she states that she stepped back one step towards the street car, which had come up behind her, when she suddenly saw that the back portion of the truck was going to strike her and she threw her arm or her hand in front of her eyes, just as she saw she was going to be struck and the blow came.

The petition alleges that the front of the truck had successfully passed her and she would not havq been struck, except that the driver of the truck turned his truck .to the right and the result thereof was to cause the rear to skid to the left, thereby occasioning the contact between the truck and Miss Purser..

There is no evidence whatsoever of the truck having skidded. The driver swears that' he saw Miss Purser between him and the car and after he passed her on the left, or the driver’s side and. after she was struck, he applied his brakes, but positively denies any attempt to swerve his truck to the right'. ■

My conception of the cause of the accident is that there was, as shown by the evidence, a projection at the extreme rear of the truck, about six inches outstanding from the body of the truck, and my opinion is, that Miss Purser, after the front of the truck body had passed her, thought that she was in safety.

She is undecided how close she was to the truck, but she made the statement that she could have easily reached out her hand and have touched the truck. My opinion i?, that this projection came close to her, too close to escape by jumping back and she instinctively put her hand in front of her eyes and it was this projection that struck her.

The question then is, what fault was attributable to the truck driver. The impression made on me by the evidence is he was going very slowly- He says, not exceeding five miles an hour. He was driving where he had a right to drive. What then occasioned the accident? .

It is true that the evidence shows that it is the custom of passengers arriving at the Union Station to cross the street directly opposite the station, at anywhere from forty to sixty or seventy-five feet above the intersection of South Rampart and Howard Avenue, but the traffic ordinance offered in evidence shows that pedestrians are forbidden to cross the streets,, except at the intersections and then only in a direct line.

It is perfectly plain, had. Miss Purser gone to the intersection, as the law requires her to do, and undertake to cross there, the accident would not have happened. The fact that pedestrians are in in the habit of violating the traffic ordinance does not render the violation any less a violation, or, does it condone the violation.

We have, therefore, presented a direct violation conduced and contributed to the accident and without which there would have been no accident.

I am, therefore, of the opinion that the defense of contributory negligence pleaded by the defendant is well founded and there will be judgment dismissing the plaintiff’s suit at his cost.

Plaintiff’s able attorney in his argument and brief cites us to many decisions on the authority of judicial admissions, which we have examined carefully.

However, the principle that evidence, unobjeeted to, takes the place of pleading is deeply imbedded in 'our >law, and we do not find that either the cases cited or the facts shown in this case justify us in departing from this well-established doctrine, although we are impressed with the straightforward and frank way in which Miss Purser testified.

There is absolutely no proof that the truck was going at an illegal speed. The driver swears that he was going only five miles per hour and the only pretense at contradiction of his statement is that of the aunt, who says he was going “pretty fast,” a statement too vague for any probative value.

As to the truck skidding, there is no preponderance of evidence.

Miss Purser says on direct examination that the truck went on by her and then swerved to one side. On cross examination, when asked if the truck swerved from one end to the other, or if it skidded, she answered, “I thought it did both. It might have skidded that much.”

The driver swears positively that the truck did not skid, that he stopped within five feet and jumped down to help the young lady.

After a careful study of the entire record we have concluded that the trial judge has stated both the facts and the law clearly and concisely in his reasons for judgment and we he.reby adopt these reasons as our own. On this point—

See Friedman vs. N. O. Ry. & Light Co., 153 La. 951, 96 South. 821.

Young vs. La. Western Railroad Co., 153 La. 129, 95 South. 511.

Tucker vs. I. C. R. R. Co., 141 La. 1096, 76 South. 212.

Herrin vs. Cicardo, 1 La. App. 587.

Gibbons vs. N. O. Terminal Co., 1 La. App. 371.

Morin vs. I. C. R. R. Co., 1 La. App. 727.

For above reasons, the judgment is affirmed.


text:
    No. 10,967
    Orleans
    ROSS v. ALKER, Appellant
    (July 14, 1927. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Builders and Buildings — ;Par. 8.
    When a contractor proposes to furnish and install a certain heating system- with designated radiators in specified rooms he cannot he held to a guarantee that the system will give any particular degree of heat.
    Appeal from First City Court. Hon. W. Y. Seeber, Judge.
    Action by Charles W. Ross, Jr., against Clarence H. Alker.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    A. A. Colongne, of New Orleans, attorney for plaintiff, appellee.
    Wm. H. McClendon, Jr., of New Orleans, attorney for defendant, appellant.
   CLAIBORNE, J.

This is a suit on a plumbing hill.

The plaintiff alleged that on July 24, 1925, he made two written contracts, copies of which are in the hands of the defendant, to do certain plumbing and heating work on the defendant’s premises 1214-16 Peniston Street, for the price of $1,955 on account of which $1,800 have been paid, leaving a, balance'due of $155; that plaintiff has done the work according to a contract and the defendant has accepted it, hut refuses to pay the balance.

Defendant admitted the written contracts which spoke fo.r themselves, and the payment of $1,800, hut denied all the other allegations of the petition.

And assuming the character of plaintiff in reconvention defendant, in . ten solid paragraphs, alleged that the plaintiff was indebted to him in 'the sum of $300 for this:

That the contract has not been completed in a workmanlike manner by the plaintiff in the following particulars:

1st. That there was á leak in the pipe in the walls which ran under the hardwood floor and caused it to buckle which it would cost $25 to repair.

2nd. That the vents attached to the water heater were faultily installed by the plaintiff and caused the house to catch fire; that the plaintiff changed the installation, but in so doing placed ■ said vents out- in the weather where they will rust, instead of inside of the walls, which it will cost ¡plaintiff $31 to do.

3rd. That the amount of radiation in the building was less than the minimum requirements of the cubical contents of said building with the result that it is impossible to heat the building to the proper temperature of 70 degrees as stipulated in the specifications and general knowledge, and that it will cost $356 to have additional radiators added.

4th. That the plaintiff failed to paint the radiators which would cost $25.

5th. That the pipes under the house are improperly installed in that the water will not run out when the drain cocks are opened to prevent freezing which will cost $10 to repair.

6th. That it has been necessary for him to employ an attorney at a cost of $50.

Making a total of $491; after crediting said amount by $155, balance of the contract price, left a balance of $336; of which the plaintiff temporarily foregoes $36 for the purpose of remaining within the jurisdiction of this court.

In a supplemental answer the defendant admitted that he had “in his possession tw'q written offers appearing to be written by the plaintiff to the defendant which set out certain conditions and prices” which the defendant would produce at the trial.

There was judgment for plaintiff for $114 dismissing the reconventional demand.

The defendant alone has appealed.

1st. Pipe in wall leaked. The judgment allowed a reduction of $25 for that item.

2nd. Vents faultily placed set fire to house. The damage was repaired for $5 which the judgment allowed.

3rd. Insufficient radiation. The testimony upon this point is verbal. Defendant produced certain specifications upon which he says plaintiff bid. Plaintiff denies this. He says he saw no specifications for the heating, only for the plumbing; at any rate he can be held only for what his offer or promise contained.

His offer reads as follows:

7-24-25
Mr. Clarence Alker,
Dear Sir:
I propose to furnish all labor and material necessary to install in Duplex apartment which is to be built by you an Areola Hot Water Heating system for the sum of Nine Hundred and ninety dollars $990.00. The following rooms in each apartment to be. heated: Living rooms, bed rooms, and dining rooms. App radiators ,under windows to be 3 Col 26 Peerless radiators. All other radiators 3 Col 38 Peerless etc.
Respectfully
(signed) Charles W. Ross, Jr.

It seems, however, .that the defendant had specifications prepared for the heating system, and that these specifications contained the following clause:

Guarantee: “Contractor shall furnish guarantee that Heater will heat building for 9 temperature to 70 degrees.”

Plaintiff denies that he saw the specifications for the heating. But if he did it does not appear that he bid in accordance with them. He is bound only by the bid which he made and which we have copied above. In State ex rel Ringe vs. Madison Lumber Co., No. 10,235, we said:

“When a contractor submits to lumber dealers a list of lumber wanted specifying quality and grades, and a lumber dealer makes a bid differing in some respect from the contractor’s list and his bid is accepted, the rights of the parties are governed by the bid.” — C. C. 1805-1807.

The plaintiff said: “Mr. Alker met me on the street and he told me to proceed with the work.”

The defendant had no contractor, but built the house himself; he is in the export business.

Plaintiff’s bid does not refer to any specifications, and he swears he saw none for the heating. We see the case as the trial judge did, that is, that the plaintiff offered to install an Areola Hot Water Heating apparatus with certain radiators in certain rooms, and no more.

4th. The plaintiff painted the radiators. But the defendant wanted them painted inside, W. J. Quinlan, defendant’s expert, testified that radiators are not painted inside.

5th. The drain pipes under the house were repaired by Quinlan and the amount was allowed in the judgment.

6th. There is no law for granting attorney’s fees for prosecuting or defending suits, except for setting aside conservatory writs.

The judgment has reduced the plaintiff’s claim by allowing the cost of making certain repairs and alterations. Upon the whole we see no error in the judgment, which is therefore affirmed.


author: REYNOLDS, J.

text:
    No. 2850
    Second Circuit
    EDWARDS v. GRAND UNITED ORDER OF WISE SONS AND DAUGHTERS OF AMERICA
    (June 28, 1927. Opinion and Decree.)
    (July 14, 1927. Application for Rehearing.)

      (Syllabus ~by the Court.)

    1. Louisiana Digest — Mandate—Par. 52.
    Payment to a duly authorized agent of an amount he is authorized to receive is fequivalent .to payment to his principal. Civil Code, Art. 2999.
    2. Louisiana Digest — Mandate—Par. 63.— Associations — Par. 14.
    Where a subordinate lodge Qf a fraternal organization is required to perform certain duties for the grand lodge the latter cannot avoid responsibility for the actg of the former by providing in its constitution or by-laws that such grand lodge shall not be responsible to the members of a subordinate lodge by the neglect of the officers of the subordinate lodge to perform its duties to the grand lodge. In such case the subordinate lodge is the agent of the grand lodge and not of the members of such subordinate lodge.
    Thompson vs. Supreme Tent, etc., 189 N. Y. 294.
    3. Louisiana Digest — Associations—Par. 21. —Laws—Par. 97.
    The beneficiary of a benefit certificate issued by a fraternal organization is not entitled to recover double the amount he agreed to be paid thereunder in case of the death of the insured or attorney’s fees under Act No. 310 of 1910. That being a penal statute it must be strictly construed.
    Brown vs. Continental Casualty Co., 161 La. 229, 108 South. 464; Canal-Commercial T. & S. Bk. vs. Employers’ Liability Ass. Corp. 155 .La. 720, 99 South. 542.
    Appeal from the Ninth Judicial District Court of Louisiana, Parish of Rapides. Hon. R. C. Culpepper, Judge.
    Action by Tillie Edwards against Grand United Order of Wise Sons and Daughters of America.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed,.
    Isaac Wahlder, of Alexandria, attorney for plaintiff, appellant.
    Lamar Polk, of Alexandria, attorney for defendant, appellee.
   STATEMENT' OP THE CASE

REYNOLDS, J.

This is a suit by Tillie Edwards against the Grand United Order of Wise Sons and Daughters of America, a fraternal organization organized under the laws of the State of Louisiana and consisting of a grand lodge and subordinate lodges, upon a benefit certificate issued by the organization to Mrs. Lula Crocket, a member of Robinson Castle No. 14, a subordinate lodge, naming her, Tillie Edwards, as beneficiary thereof in the event of the death of the insured while in good standing.

The benefit certificate is dated September' 9, 1923, and provides for the payment to the beneficiary of' a certain sum of money on .the death of the insured while in good standing with the lodge, the amount being graded and depending on the length of time that had elapsed between the date of the certificate and the death of the insured, the maximum amount being $300.00.

The petition alleges that the insured, Lula Crockett, died on March 1, 1925, and that at her death she. had duly paid all dues and .assessments required of her and was in good standing as a member of the lodge, and that she was entitled to judgment against the defendant for the amount agreed to be paid under the certificate, namely, $300.00 with legal interest thereon frqm March 1, 1925.

She further alleged that defendant had refused to admit liability to her under the certificate, thus compelling her to institute this action against it, and that therefore she was entitled to recover judgment against it for double the amount owing under the policy, or $600.00, and also $150.00 attorney’s fees.

She prayed for judgment against defendant for the sum of $750.00 with legal interest on $300.00 thereof from March 1, 1925.

The defendant filed an exception to the sufficiency of the citation; and, reserving its right thereunder, should it be overruled, he filed an exception of no right and no cause of action; and, reserving its rights under both exceptions, should both of them be overruled, it filed an answer denying liability and denying that the deceased was in good standing as a member of the order at the time of her death and specifically alleging that—

“under Part 4 (4), Article (5), Section (1) of the Constitution and Regulations governing subordinate Castles and the general laws of the Grand United Order of Wise Sons and Daughters of America, every member of the Castles (these Castles being subdivisions of defendant corporation) was obligated to pay the sum of sixty-five cents ($0.65) as monthly dues; thirty-five cents ($0.35) to be paid by thé Scribe- to the Grand Secretary on their endowment certificate, the balance to remain in the treasury of the subordinate lodge.”

and that—

“under section (1) of the rules and regulations and the general laws governing the burial department of defendant corporation, each member thereof was obligated to pay one and 50-100 ($1.50) dollars per year as burial tax, which amount should be ¡paid annually to the Burial Department on or by the 20th of January of each year, and which moneys should be forwarded by the Secretary of each Castle on or by the 20th of January of each year to the Treasurer of the Burial Department of the Grand Council and Castle, being the governing body of defendant corporation.”

That by resolution of the Grand Lodge of defendant—

“if any Castle should become one month and a half or two months in arrears with the endowment department, that any member of such Castle dying at the time said Castle was in arrears would have no claim on the endowment department or burial department of defendant corporation.”

That under the terms of the certificate sued on and the general laws of the order—

“the beneficiary was to 'have no right or claim under said endowment certificate or policy unless the insured were a member in good standing at the time of his or her death and unless at that time all endowment and burial assessments, taxes, etc., had been paid in full and in accord with the terms of said order.”
“that said Lula Crockett * * * did not pay endowment dues or assessments due by her to the local Castle or your respondent corporation *. * * for the months of January and February, A. D., 1925, and at the time of her death, was, therefore, not in good financial standing * * * with said Castle of which she was a member or with the defendant corporation or its endowment department.”
“that the' said Robinson Castle, No. 14, had not paid or remitted * * * to your respondent corporation the endowment assessments of its members and especially Of said Lula Crockett for the months of January and February, 1925, and that ,said Castle was also in arrears with respondent ^corporation and its endowment department for said months of January and February, 1925.

fihat the deceased, Mrs. Lula Crockett, did not pay to the Castle, of which she was a member, the burial tax due by her to the order and which was payable on or before January 20, 1925; and that Robinson Castle, No. 14, of which the deceased was a member,, did not pay the burial tax of its members, which was due and payable on or before January 20, 1925.

On these issues the case was tried and there was judgment rejecting plaintiff’s demand and dismissing her suit and she has appealed.

OPINION

Defendant does not, in its brief, contend that the exceptions filed by it should be sustained, but rests its defense on the grounds that it ,is not liable because the deceased was not in good standing in the subordinate lodge of which she was a member at the time of her death and that Robinson Castle, No. 14, the local lodge of which she was a member, had not remitted to defendant within the time fixed by its constitution and by-laws and before the death of Mrs. Lula Crockett the endowment assessments of its members.

The question for decision therefore is. whether or not Lula Crockett had duly paid her dues and assessments as a member of the order for the months of January and February, 1927, and the buriaL tax as required by the charter and bylaws of the defendant.

Plaintiff introduced in evidence a document marked Plaintiff-A, signed by Vina Robinson, Demonstrator, dated February 12, 1925, purporting to be a receipt for lodge dues paid by the decedent for the months of January and February, 1925, and her burial tax for the month of January, 1925.

This document is not entirely clear, but Vina Robinson, Demonstrator of Robinson Castle, No. 14, a subordinate lodge of the defendant, who issued the receipt in question, testified as follows:

(Pages 20, 21.)

“Q. Now, Viney, you have already stated that Lula Crockett had paid all her endowment dues for the year 1924?
“Á. Yes, sir.
“Q. Did she pay her. endowment dues for the months of January and February, 1925, that is, the two months before she died?
“A. She paid it to one of the members, yes, sir, she paid it.
“Q. Then is this the receipt which you gave — it shows 75c paid for January, and 75c paid for February.
“A. (Witness examined document.) Yes, sir.
“Q. Is that a true receipt?
“A. Yes, sir; and I turned it over in the hall, in the room.
“Q. To whom was that money paid for January and February, 1925?
“A. It was paid to the secretary in the lodge room.
'“Q. Wasn’t it paid to you?
“A. They paid this to me.
“Q. And then • you paid it to the secretary of the lodge room?
“A. Yes, sir.
“Q. Then, Viney, did Lula pay you or was the money paid to one of the members ?
“A. She paid me for January and February.
“Q. And did you give her this receipt? • (Indicating.)
“A. Yes, sir; and I carried it into the lodge room and turned it over to the secretary of the lo.dge room.
“Q. Why didn’t Lula take it to the lodge room ?
“A. She was sick in bed.
“Q. Did you go to her home and collect it?
“A. She gave it to me at her home.
“Q. Is that also a receipt for $1.50 foi; the burial, signed by you?
“A. Yes, sir.”

This evidence established that Lula Crockett had paid all of her dues to and was a member in good standing of Robinson Castle, No. 14, of the Grand United Order of Wise Sons and Daughters of America at the time of her death.

But defendant contends that it was not bound unless Robinson Castle, No. 14, had remitted to the Grand Lodge its proportion of the monthly dues paid by members pursuant to Section 1 of Article V of the constitution and by-laws of defendant which provides—

“Well, every daughter who is a member of the Castle shall pay the sum of 65 cents monthly dues. Well, 35 cents of the 65 cents shall be sent up by the Wise Scribe of the Castle to the G. Sc. on their Endowment Certificate, and the other 30 cents shall remain in their Castle treasury, for weekly benefits, for sick members, and other incidental expenses of the Castle * * * ” and Sections 35 and 36 of Article I of Part VI which provide — •
“The Endowment Fund of the Grand Council and Castle shall not recognize or be held responsible to individual members of either division of the order, for neglect or failure of any council, castle, juvenile or uniform drill company, to send into the office of the G. S. of endowment, the names and money of its members, under the requirements of these laws or rules, but will, by all means protect said members in their benefits aforesaid, providing when any prompt notification or application is made out properly by him or her, to the office of the Sir G. Sc. of endowment department. “Be i.t known that any case of that kind or condition that may arise under the operation of the Grand Council and castle endowment department, is hereby understood and de.elared that the council, castle or juvenile is the agency of each and every member who are insured, and not of the grand council and castle department.” and Section 1 of the Burial Department which provides—
“ * * * A member pays only $1.50 per year to the burial department of the order and if 50 or more members die from that Council or Castle the members of either Council or Castle have no more burial assessments to pay, then who would not appreciate such an order as this, by simply paying that $1.50 each (per member) once a year, and at the death of a member of either Council or Castle would get from $25 to a $50 burial, then you see that a member only paying $1.50 per year burial tax would for instance hereafter remain a member of the order 30 years or more to pay into the burial department, the amount back, that the order pays for the burial of,a member.” “Be it known tha,t this is the law of the order, that each and every member of either Councils or Castles of the Grand United Order of Wise Sons and Daughters of America, must and shall pay $1.50 each, that is, each member must and shall pay his or her $1.50 annually to this burial department on or by the 20th of each January of each year, and the said monies for said burial tax shall and must be forwarded by the secretaries of either Councils or Castles on or by the 20th of each January of each year to the- Grand Secretary and Treasurer of the Burial Department of the Grand Council and Castle of the Grand United Order qf Wise Sons and Daughters of America

By official proclamation of the governing authorities of defendant the time for paying and remitting these dues was extended to March 1st of each year.

Section 5 of the proclamation provides that—

“Yes, you have from January 1st until March 1st to pay your burial tax and the same is to be forwarded by the presiding officer of either the Council, Castle or Juvenile to Dt. Mary E. Duncan, S. T. B. D. Box 186, Monroe, La.
And Section 9 of the proclamation provides that—
“Well, let all C. Y. A.’s of Councils, D. S.’s of Castles and P. S.’s of Juveniles read or have read this in each lodge meeting. Force this law, and collect the burial_ tax for the safety of the members and the good of the jurisdiction and all concerned. Forward all burial tax moneys to Dt. Mary E. Duncan, Box 186, Monroe, La., and get your receipt. She is under a heavy bond for the safety of your money. ' We will notify you of our annual visits to all lodges, etc.”

Under these rules of the defendant the question is to be decided whether or not the Grand Lodge can constitute the subordinate lodges its agents for the purpose of collecting and remitting the endowment and burial dues of the members and at the same time make the subordinate lodges the agents of their members and nqt agents of the Grand Lodge for the purpose of collecting and remitting such dues.

In our opinion a principal cannot authorize an agent to collect money for him and at the same, time make his representative the agent of his debtor for the purpose of transmitting the money to the principal.

When money is paid to an agent duly authorized to receive it, it at once becomes the property of the principal and the debtor making the payment is fully discharged.

Would the Grand United Order of Wise Sons and Daughters of America “have its pie and eat it too?”

In Thompson vs. Supreme Tent, etc., 189 N. Y. 294, the co.urt held that where a subordinate lodge discharges certain functions solely in the interest of the superior body, the latter cannot escape responsibility for the acts of the former under a provision of its by-laws declaring that the beneficiary named in her endow-be deemed the agent of its member and not of the superior body.

In Supreme Tribe of Ben Hur vs. Hall, 24 Ind. App. 316, the court said:

“A local officer of a mutual benefit association required by its by-laws to collect dues for members is the agent of the association and a member discharges his obligation to the association when he pays his dues to such agent.”

Under all of the evidence we are convinced that Lula Crockett, at the time of her death, was a member in good standing of the Grand United Order of Wise Sons and Daughters of America and that the beneficiary named in her endowment certificate, Tillie Edwards, is entitled to recover the benefits provided for in the certificate.

Defendant contends that at the time of the death of Lula Crockett, Robinson Castle, No. 14, was in arrears with the Grand Lodge and for this reason plaintiff cannot recover.

To escape liability on this ground Robinson Castle, No. 14, must have been suspended, for Section 34 of Article I of Part VI provides that—

‘Should a Council, Castle or Juvenile lose a member during the period of its suspension, the beneficiary of such member shall not be entitled to the benefits of the endowment fund of the Grand Council and Castle.”

William Kelso, Grand Scribe, testified, on cross examination:

(Page 64.)

“Q. After you received this money from Robinson Castle, did you have these minutes of January and February; did you continue to receive money from Robinson Castle?
“A. Yes, sir.
“Q. Are you now receiving money from Robinson Castle?
“A. Yes, sir.
“Q. Has Robinson Castle ever been suspended?
“A. Not at this ©articular time.
“Q. At that time?
“A. No, sir, ‘ it was not at that time.
“Q. At the time Lula Crockett died it was not?
“A. No, sir, it was not.”

Prom this evidence it is clear that at the time of Lula Crockett’s death Robinson Castle, No. 14, was in position to receive for the Grand Lodge and did receive for the Grand Lodge moneys paid by members for endowment and burial dues.

Therefore the contention that Robinson Castle, No. 14, was not authorized to receive or remit endowment or burial dues is not sustained by the evidence.

In an able brief defendant’s counsel cites numerous authorities, but we do not consider any of them as holding that a fraternal organization may escape liability to members by inserting in its constitution or by-laws an impossible condition, making subordinate lodges the agent of their members for the purpose of collecting and remitting dues to the superior lodge and at the same time absolving the superior lodge from responsibility for the acts of the subordinate lodges.

The authorities cited by defendant that a member of a fraternal organization becoming in bad standing financially with the local lodge of which he is a member thereby forfeits the benefits that would otherwise accrue under a benefit certificate issued by the organization fully sustain his contention; but having found as a fact that Lula Crockett, at the time of her death, was a member in good standing of Robinson Castle, No. 14, the authorities cited by defendant on this point have no application.

Plaintiff asks for judgment for double the amount payable by the terms of the certificate sued on and for $150.00 additional as attorney’s fees under Act No. 310 of 1910 because of defendant’s refusal to pay.

Under the authority of—

Canal-Commercial T. & S. Bank vs. Employers’ Liability Ass. Corp, 155 La. 720, 99 South. 542; and

Brown vs. Continental Casualty Co., 161 La. 229, 108 South. 464, she is not entitled to the penalty prayed for.

For the reasons assigned, it is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and it is now ordered, adjudged and decreed that there be judgment in favor of Tillie Edwards and against the Grand United Order of Wise. Sops and Daughters of America for three hundred dollars with legal interest thereon from March 1, 1925, and all costs.


text:
    No. 9804
    Orleans
    WINSBERG v. LASSEIGNE
    (Opinion and Decree.)
    (June 20, 1927. Rehearing Refused.)

      (Syllabus by the Court)

    1. Louisiana Digest — Obligations—Par. 158. In a suit for damages for breach of contract to sell real estate, plaintiff must allege and. prove “putting in default.”
    Appeal from Civil District Court, Div. “A.” Hon. Hugh C. Cage, Judge.
    Action by Herman Winsberg against Miss Armance Lasseigne.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    E. E‘. Talbot, J. L. Toler, of New Orleans, attorneys for plaintiff, appellant.
    Jos. D. McGovern; J. A. Morales, of New Orleans, attorneys for defendant, appellee.
   JONES, J.

This is a suit for five hundred ($500.00) dollars damages for breach of contract to sell certain real estate for four thousand ($4,000) dollars.

Petitioner alleges that the offer was made on February 16, 1924, was accepted on February 18, 1924; that the deed to the property was then delivered by defendant to plaintiff’s agent for examination of title, which proved satisfactory; that within the time given for performance plaintiff both personally and through her agent requested defendant to call at the office of the notary to sign the deed but defendant delayed and finally refused performance and through her attorney on May 3rd attempted to nullify the contract; that many written formal demands were made on defendant to carry out contract, which had been promptly recorded in the Mortgage Office and finally on May 31, 1924, plaintiff, with notary and witnesses,- made formal tender; that in the meanwhile plaintiff had made a contract to sell the property for forty-five hundred ($4500.00) dollars and therefore he had lost five hundred ($500.00) dollars.

Defendant filed exceptions of vagueness and no cause of action which were overruled and then an answer admitting the agreement to purchase, but averring that plaintiff had failed to perform within the seventy-five days allowed and that the tender and demand were made after she had on May 3, 1924, the last day for performance, demanded the return or her deed.

The Judge of the lower court decided that there never had been any putting in default, which was a condition precedent to the recovery of damages and appeal was taken.

The record shows that the offer to sell, which was made on February 16th and accepted on February 18th, contained the following clause:

“Act of sale to be passed before purchaser’s notary within seventy-five days at the expense of the purchaser.”

That plaintiff’s agent wrote defendant at her residence (1) on February 23rd, telling her she must comply with her contract and asking her to discuss the matter; (2) on May 3rd, telling her that the act of sale would be passed, at his notary’s on May 6th; (3) On April 29th, requesting her to go to notary’s office and clear up a tax sale; (4) On May 7th plaintiff himself wrote demanding that she appear at the office of his notary and sign the deed under penalty of suit for specific performance, if she failed to do so. In this letter plaintiff asked that she let him know her decision by May 12th.

Meanwhile, on May 3rd, defendant, thinking the time qxpired that day, through her attorney had written plaintiff’s agent demanding return of his deed, because plaintiff had failed to carry out the contract.

Plaintiff’s agent, Van Horn, contends that he called upon defendant at her office on May 3rd with his associate; Leaman, to have her straighten out the' matter, but she declined to go further, but plaintiff herself says that this interview did not take place until May 5th, because she did not get plaintiff’s letter of May 3rd until that night when she reached home; that the next day was Sunday and she did not see the two agents until Monday, May 5th.

We think that defendant’s remembrance of the date more probable because the record (quoted above) shows that Lea-man one of the agents, wrote defendant at her home on May 3rd that the act would be passed on May 6th and he would hardly have called on her the same day to make a different demand.

Furthermore, we think that the receipt of defendant’s attorney’s letter, which was written on May 3rd, and probably received on May 5th, expedited the matter.

At any rate, there never was any putting in default within seventy-five days, whether it be calculated from February 16th or February 18th.

Plaintiff’s attorney argues that the time for performance of the contract was intended for the protection of the purchaser and that the seller cannot rely upon it. We consider that it was a stipulation for the benefit of both parties and that defendant had a right to refuse performance after the .time had expired. (See Civil Code, Art. 2038.)

On support of his view plaintiff cites the decision of the Supreme Court in Gayden vs. L. & N. Ry. Co., 39 La. Ann. 269, 1 South. 792.

In that case plaintiff sold a right of way to defendant on the condition that the right of way should be null and void if the railroad was not built in eighteen months. The road was not completed in the specified time and plaintiff sued for the value of the land taken and for damages. There was no averment of default. The evidence showed tha,t plaintiff was frequently present during the completion of the work and made no protest and that the suit was not brought until fifteen months after the road was in running order.

Judge Bermudez held that plaintiff had waited too long; that the event dissolving the contract was dependent upon the will of the defendant and in such cases the contract Was not dissolved of right but suit was necessary.

That decision does not apply here, for defendant asserted her position frankly and demanded return of her deed on May 3rd.

We agree with the lower Judge that proof of putting in default was an essential requisite to recovery of damages.

On this point see C. C., Art. 1913, 1914, 1933, and the following decisions:

Defel vs. Covington, 37 La. Ann. 661.

Livingston vs. Scully, 38 La. Ann. 781.

Darragh vs. Vignes, 126 La. 171, 52 South. 264.

Godchaux vs. Hyde, 126 La. 187, 52 South. 269.


text:
    No. 10,858
    Orleans
    SCHARFENSTEIN MOTORS CO. Appellant v. BETZ
    (May 9, 1927. Opinion and Decree.)
    (May 23, 1927. Rehearing Refused.)

      (Syllabus by the Oourt)

    1, Louisiana Digest — Sales—Par. 217, 218, 219.
    When an automobile is sold for a price payable partly in notes and the balance in a used car, there is no warranty that the used car is in a perfect state of repair unless it is so stipulated.
    Appeal from First City Court. Hon. W. V. Seeber, Judge.
    Action by Scharfenstein Motors Company, Inc., against Charles Betz.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Prowell & McBride & Ray, of New Orleans, attorneys for plaintiff, appellant.
    A. PI. Re tier, of New Orleans, attorney for defendant, appellee.
   CLAIBORNE, J.

This is a suit for specific performance.

Plaintiff alleged that on May 6, 1926, it made a written contract with defendant whereby he, the plaintiff, sold to defendant a used Reo automobile truck for the price of $750 which was to be paid as follows: The defendant Betz was to furnish his fifteen notes of $30 each and to give plaintiff a certain Reo automobile ■ valued at $300; that defendant furnished his fifteen notes but failed to deliver to plaintiff the automobile. Wherefore plaintiff . claims $300.

The defendant excepted that the petition was not properly verified, that it was vague and indefinite, that it disclosed no right or cause of action, and that the demand was premature.

These exceptions were overruled.

For answer the defendant admitted the sale and the price, but denied that he had failed to deliver the automobile as part of the price of sale, and asserted on the contrary that’ “he was ready and willing, at all times to make delivery to plaintiff of said automobile.”

Further answering defendant averred that during the negotiations plaintiff was informed that the automtobile defendant was to give as part of the price •was then undergoing repairs in Langhauser’s garage; that plaintiff inspected the automobile and agreed to take it in the condition it was, but that after the agreement of sale Langhauser refused to deliver the car until his bill of $60 for repairs had been paid; that defendant then informed plaintiff that he would pay Langhauser and notified him that the auto would be delivered to him if he would send for it, which the plaintiff failed to do; that since the filing of this suit defendant tendered the auto to plaintiff by bringing it to its domicile which plaintiff refused to accept, whereupon defendant deposited said auto in his garage, No. 8416 Oak Street subject to his orders of which he was duly notified.

There was judgment for defendant and the plaintiff has appealed.

The contract of sale was in writing and is in evidence. It is admitted by both parties. The point upon which they differ is the payment of cost of repairs already made by Langhauser on the. date of the sale, May 6th. Nothing was said about repairs at the time of the sale, and both parties appear to have been ignorant of them. It was only after eight or ten days that the claim was put forward by Langhauser who refused to deliver the car unless his repairs were paid. Betz testified that he had not ordered any repairs, that he had only requested of Langhauser an estimate of costs for repairs. As Betz considered the amount claimed by Langhauser, $70, as excessive, he asked Scharfenstein to .examine the car and to report upon the charge made by Langhauser. Betz swears to. this. Conditions remained the same until September 15, 1926, when plaintiff’s attorney made a demand upon the defendant for $300 for failure to deliver the truck. In the meantime it does not appear that plaintiff made any demand for the truck or for the $300.

On October 1st, next, the defendant paid the repair bill and accompanied by two witnesses, proceeded to plaintiff’s domicile and there tendered it the truck. Without assigning any reason the plaintiff refused to accept it. In his testimony, F. W. Scharfenstein says that on that date, five months after the sale, the truck was very much depreciated in value by time and non-usage and the motor block was removed; he added: “The rest of the truck we cannot say there was any difference except possibly in the bearings which would naturally depreciate.”

Betz testified that the truck was taken in part payment in the condition it was on May 6th and that on that date the the engine was taken down and that it was in the same condition on October 1st; it was not in running condition on May 6th nor on October 1st. There is nothing stated in the agreement of sale about repairs. The only statements are these; “Allowance on used car, $300. If my ear is taken as part payment I warrantee same to be free from mortgage liens or other incumbrances.” We fail to see that defendant had obligated himself to reipair the truck or to put it in running order.

The defendant performed his obligation in tendering the truck in the condition it was on May 6th and the' plaintiff was at fault in not accepting it.

The Judge below was right in rejecting plaintiff’s demand for $300 and his judgment is therefore affirmed.


text:
    No. 2967
    Second Circuit
    ROBERTS v. EASON
    (May 13, 1927. Opinion and Decree.)
    (June 28, 1927. Rehearing Refused.)
    (July 13, 1927. Writ of Certiorari and Review Applied for.)

      (Syllabus by the Court)
    1.Louisiana Digest — Constitutional Law— Par, 26.
    The right of appeal is a constitutional and a valuable one which should always be entertained with favor whenever it exists.
    Magendie vs. Constable of First City Court, 4 La. App. 718.
    2. Louisiana Digest — Appeal—Par. 625.
    Where the issue is one of fact, the appellate court will give much weight to the finding of the trial court and will not disturb it unless manifestly erroneous.
    Cunningham vs. Middleton, 4 La. App. 643.
    3. Louisiana Digest — Automobiles—Par. 7 —Negligence—Par. 15, 25.
    One who is injured through his own negligence or whose own negligence is either the sole proximate cause or a contributing cause of his injury has no just cause of complaint against another therefor.
    Conrad vs. McClintic Marshall Const. Co., 131 La. 562, 59 South. 983; Bardwell vs. Reid, 2 La. App. 309; Borell vs-Cum. Tel. & Tel. Co., 133 La. 630, 63 South. 247.
    4. Louisiana Digest — Automobiles—Par. 6.
    Though it be the general rule of law that the negligence of the driver of an automobile cannot be attributed to one travelling with him, neither occupant of the vehicle can recover, when it is shown that the (proximate cause of the accident was the failure of both to have seen what each of them could have seen and avoided.
    Toups vs. M. L. & T. R. R. & S. S. Co., 4 La. App. 136.
    5. Louisiana Digest — Automobiles—Par. 4a.
    It is the duty of one driving an automobile behind another automobile to so regulate the speed of his car and the distance between it and the car ahead of it as not to collide with a truck parked in the public street in front of him in case the car that he is trailing turns sharply to avoid striking the truck.
    Henican vs. Woodman & Baldwin, 1 La. App. 281.
    6. Louisiana Digest — Automobiles—Par. 6, 7 — Negligence—Par. 25.
    For the driver of an automobile at night to trail another automobile within a car’s length and at such rate of speed as to prevent such driver from seeing and avoiding a truck parked on the side of the street is such negligence as to bar recovery by the driver of the car or his wife who was riding on the seat with him in case of a collision with the truck.
    7. Louisiana Digest — Courts—Par. 60 — Automobiles — Par. 4d.
    It is the duty of courts to see that ordinances enacted for the safety of the public are rigidly enforced in aid of the remedy for the mischief sought to be guarded against.
    Dill vs. Colley, 3 La. App. 305; Broderick vs. Lane Cotton Mills, 1 La. App. 155; Elswirth vs. Eaton, 2 La. A©p. 363.
    8. Louisiana Digest — Automobiles—Par. 4b, 4d.
    Ordinances regulating the parking of vehicles in the public streets must be observed and if an injury results from their violation to one • not at fault he may recover . damages from the owner of a truck parked in the public street in violation of a city ordinance.
    Ibid. Hudson vs. Jackson Brewing Co., 4 La. App. 549.
    9. Louisiana Digest — Automobiles—Par. 4d.
    It is gross negligence for the owner of a truck to allow it to remain parked in the public street of a city in violation of an ordinance of the city for a day and part of two nights without warning lights; and where a collision occurs at night between a passing car and such unlighted truck, one injured in such collision, who is not himself at fault, may recover damages from the owner of the truck. Ibid.
    10. Louisiana Digest — Automobiles—Par. 4, 4d — Negligence—Par. 15.
    Leaving a truck standing in the (public highway in the path of passing cars after dark, without warning lights, on a rainy, stormy night, is the proxi- ■ mate cause of an injury received by one in a collision by one driving an automobile at 12 miles an hour and who only could see twenty feet ahead of him and was unable to stop his car or turn it aside after discovering the obstruction in time to avoid a collision with it.
    A. L. R. vol. 37, p. 582; Razycki vs. Yauntic & Green Products Co., 121 Atl. 717.
    11.Louisiana Digest — Automobiles—Par. 4, 4d, 7, 8.
    Although one who causes an injury to another in operating an. automobile in violation of a statute is negligent per se, he is not necessarily guilty of gross negligence which will make unavailing the defense of contributory negligence.
    A. L. R. vol. 38, p. 1417; Vinton vs. Brown, 203. N. E. 380.
    Appeal from the Fourth Judicial District Court of Louisiana, Parish of Ouachita. Hon. John T. Shell, Judge.
    Action by Mrs. Barbara Roberts against Frank C. Bason.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Theus, Grisham & Davis, of Monroe, attorneys for plaintiff, a¡ppellant.
    Hudson, Potts, Bernstein & Sholars, of Monroe, attorneys for defendant, appellees.
   STATEMENT OF THE CASE

REYNOLDS, J.

These two suits were consolidated for thé purpose of trial and only one judgment, which, however, disposed of all the issues presented in both cases, was signed.

In suit No. 2968 L. S. Roberts claimed damages for himself in the sum of $850.75 and for the use and benefit of his minor son, Maurice Roberts, damages in the sum of $1500.00.

In suit No. 2967 Mrs. Barbara Roberts, the wife of L. £. Roberts, claimed damages in the sum of $7500.00

The damages claimed were for injuries alleged to have been received by Mr. Roberts and by Mrs. Roberts and by. their minor son, Maurice Roberts, in a collision between an automobile in which they were riding and which was being driven by L. S. Roberts and a truck belonging to. Frank C. Eason that was parked in one of the public streets of the city of Monroe, Louisiana, near what is known as “Lovers Lane.”

Plaintiffs alleged that the truck remained parked in the public street in violation of a city ordinance for a day and part of two nights and that there were no lights on it at night to warn passing vehicles of its presence. They also allego that they wore ignorant of the presence of the truck in the street.

Defendant denied liability and alleged that he had placed a lighted lantern on the truck and that collision was caused by negligent driving on the part of the person who was driving the car in which plaintiffs were riding. He also alleged that he had vainly tried to move the truck out of the street by its own motive power before the accident.

On these issues the case was tried and there was judgment rejecting the demands of L. S. Roberts on his own behalf and rejecting the demands of Mrs. Roberts and awarding judgment in favor of L. g. Roberts for the use and benefit of his minor son, Maurice Roberts, in the sum of $750.00 with legal interest thereon from judicial demand. The costs of the consolidated cases were adjudged one-half against L. S. Roberts and Mrs. Barbara Roberts and one-half against the defendant.

Both plaintiffs and defendant appealed.

' Plaintiff L. S. Roberts, for 'the use and benefit of his minor son, Maurice, answered the appeal and asked that the judgment in favor of his minor son, Mauri'ce Roberts, be increased from $750.00 to $1500.00.

The defendant filed in this court a motion to dismiss the plaintiffs’ appeals on the ground that the rendering and signing of one judgment for both cases by the trial court was illegal and also because the trial court had refused, on his application, to render and sign a separate judgment in each case.

ON MOTION TO DISMISS

Defendant asks that the appeals of L. S. Roberts and Mrs. Barbara Roberts be dismissed for the reasons that only one judgment covering both cases was rendered and signed and because the District Judge refused • to render and sign a separate judgment in each case.

The two cases were consolidated for purposes of trial and the trial judge, in his discretion, rendered and signed only one judgment in which he disposed of all .the . issues involved in both cases.

The demands of Mrs. Barbara Roberts having been rejected and the demands of L. S. Roberts in his own behalf having been rejected also they are clearly entitled to appeal. The Constitution favors the right of appeal.

The demands of the plaintiffs having been regularly adjudicated by a court of competent jurisdiction and a judgment rendered and signed they have a right of appeal therefrom and their only remedy is by appeal.

The motion to dismiss is overruled.

ON THE MERITS

The facts of these cases are simple and practically all agreed, to by both plaintiffs and defendant; the only question in dispute being whether at the time of the collision there was a lighted lantern or other light on defendant’s truck, on which point the evidence is conflicting. The trial judge who heard the witnesses testify and observed their manner on the witness stand held that there was no light on the truck at the time of the accident. After carefully reading all of the evidence we are convinced that his finding oh this point is correct. And it therefore follows from all of the evidence detailing the facts and circumstances connected with the collision that the defendant is responsible for the injuries sustained by the occupants of plaintiff’s car that were not guilty of contributory negligence.

Plaintiffs’ son, Maurice Roberts, was of tender age, apparently not over four or five years old, and it is not contended by defendant that he was guilty of con'tributory negligence. Therefore the judgment of the lower court awarding him $750.00 damages is correct.

The evidence shows that he received painful injuries..

Doctor J. Q. Graves testified:

(Testimony, page 6.)

“Q. Now what were the character of the wounds and suffering of the child Maurice Roberts, the son of Mr. and Mrs. Roberts?
“A. Maurice, the little boy, you have reference to?
“Q. Yes.
“A. Had two wounds on his head along the margin of the hair line, just to the right of the center, one of the wounds. One was about where the midline, or to the left of the .midline, about an inch and a half in length, continued down to and including the periosteum. The other was along the margin of the hair line in the right temple. And then he had smaller wounds of lesser importance caused by flying glass in his face and chest; and also a contusion or depression of tire nose. For the nose I called Dr. Perot. I didn’t take charge of that on account of the fact—
“Q. Doctor Perot specialized in the nose?
“A. Eye, ear, nose and throat, yes, and I referred the nose to Doctor Perot.” (Testimony, page 7.)
“Q. Doctor, this little boy — these scars • — they are not permanent in their nature, are they?
“A. Well, yes; they will always remain there.
■ “Q. Isn’t it true that in a very youthful person, such as this little boy, whom I judge to be about five or six years old, a scar of this nature will heal over and gradually disappear?
“A. They will grow smaller; have a eontractural power; but never disappear entirely.
“Q. The scars on this boy’s, head are under the hair?
“A. On the left of the midline it is, but the other is just below the margin of the hair.
“Q. It is true eventually these scars will go away ?
“A. Not altogether; they will grow smaller; they will not disappear entirely.”

Doctor P. L. Perot testified.

(Testimony, page 13.)

“Q. State to the court, Doctor, what, if anything, was the matter with this child’s nose? What trouble you found, if any?
“A. He had a fracture of the left nasal bone, being depressed or sunken; and an elevation of the right nasal bone, projecting upward and outward about an eighth or quarter of an inch. The air passage of the left side of the nose was practically obstructed.
“Q. Did he entirely recover from that injury?
“A. Yes; there may be a little sinking of the nose; I couldn’t state; it might have been that way before. But his nose has recovered as far as the use of the nose is concerned. There may be a little depression in his nose. I didn’t see him before this and I couldn’t recall whether there was some depression at that time. I don’t recall the natural contour of the nose before he had this accident.”

This testimony as to the injuries suffered by Maurice Roberts convinces us that the amount allowed him by the trial judge was not excessive; neither do we think it insufficient.

At the time of the accident the plaintiff, L. S. Roberts, was driving his own car and was trailing another car which had a “trailer” linked to it. It was a rainy night and he was moving at a speed of from twelve to fifteen miles an hour. In our opinion these factors strongly contributed to cause the collision.

The car with the “trailer” linked to it that plaintiffs were trailing when it reached defendant’s truck swerved to the left and passed the truck wihout difficulty; plaintiffs’ car following, collided with the truck.

P. K. Vaughan, called by the plaintiffs, testified:

(Testimony, page 26.)

“Q. State to the court, in your own language, what you saw and what experience you had with that truck parked down there on Lovers Lane.
“A. Well, I don’t recall the exact hour. Sometime after supper. My wife and I were going down to Boseo and we came upon that truck on Lovers Lane. I got pretty close to it before I saw it, and I saw it, and I went on and also saw it when I was coming back. The reason I particularly noted it, we heard of the accident the next morning and I recalled having come upon that truck the night before.
“Q. What lights, if any, were on that truck?
“A. I don’t recall seeing any.
“Q. What, if anything, attracted your attention to that truck?
“A. Because I drove (pretty close to it before I saw it, is what particularly-called my attention to it.
“Q. About how far did you get from it before you saw it?
“A. I don’t know; thirty or forty feet. Pretty close to it.
“Q. That was down on Lovers Lane, South Grand Street?
“A. Yes, sir; Lovers Lane.
“Q. State to the court just how near you came to having an accident.
“A. Well, I would not say I had a near accident. I drove up as I saw approximately thirty or forty feet before I saw something ahead of me. Naturally I slowed up and drove around it.”

Plaintiff L. S. Roberts testified:

(Testimony, page 80.)

“Q. About what rate of speed were you travelling?
“A. I was trailing other cars; I imagine between twelve and fifteen miles an hour.
“Q. Trailing another car?
“A. Yes.
“Q. Plow far ahead of you was that car?
“A. I imagine about the length of a car.
“Q. What was the first knowledge you had of this truck being parked there?
“A. Just a slight flash when the car ahead of me got out of my sight, turned out, made a sharp turn, and I got a flash, not enough to recognize anything.
“Q. About how close were you to this truck before you saw it?
“A. About a length and a half of the car; perhaps two lengths of the car.”

Prom this evidence it is clear to us that plaintiffs would have been able to see the truck in time to avoid collision between it and their own car had their view of the truck not been obstructed by the car that they were trailing.

Mrs. Barbara Roberts testified:

(Testimony, page 96.)

“Q. Were you awake or asleep when that happened?
“A. Awake.
“Q. Were you looking ahead?
“A. Indeed; I always do.
“Q. What was the first knowledge' you had oí this truck being parked on the roadside?
“A. Well, we were, trailing a car. It was a light car, and this car turned out and Mr. Roberts went to turn out and I just saw something come in front of me, and I don’t remember any more.
(Testimony, page 98.)
“Q. Mrs. Roberts, when you are out driving with your husband, sitting on the front seat, you say you always keep looking ahead, watching the road?
“A. I certainly do.
“Q. Why do you do that?
“A. Because I always- — I feel I have to look, and with my children I am always on the front seat looking. I always think —it is a mother’s fear I suppose.
(Testimony, page 99.)
“Q. You were looking ahead on this occasion?
“A. Trailing this car.
“Q. About how far back?
“A. Prom here to Judge Theus, trailing back of the car. Maybe a little closer.
* * *
“Q. About six feet is it?
“A. Five or six feet. And other times we got closer or further as the cars drove.
“Q. Five or six feet?
“A. Nearer the car, not further back.
“Q. Nearer to the car all the time?
‘‘A. Yes.
“Q. If anything, less than five or six feet?
“A. Maybe it was.”

The evidence clearly shows that this close proximity between plaintiffs’ car and the car they were trailing continued while the two cars travelled quite a long distance.

The evidence shows that Mrs. Roberts had opportunity to know of the danger she was in. It is not contended that she protested or otherwise sought to prevent her husband from trailing so closely behind the car ahead of them and her failure to do so contributed to his negligence and the accident.

In the case of Toups vs. M. L. & T. R. R. & S. S. Co., 4 La. App. 136, the court said:

“Though it be the general rule of law that the negligence of the driver of an automobile cannot be attributed to one travelling with him, neither occupant of the vehicle can recover when it is shown that the proximate cause of the accident was the failure of both to have seen what each of them should have seen.”

It is contended on behalf of the. plaintiff, Mrs. Barbara Roberts, that the negligence of her husband, L. S. Roberts, in operating the car cannot be imputed to her as an occupant of the vehicle.

But considering the record admissions of both Mr. and Mrs. Roberts by their own testimony herein quoted, we are constrained to conclude that each of them was recklessly disregardful of their own safety in travelling so rapidly and trailing the car ahead of them so closely and not maintaining a better look-out and that their negligence in these respects precludes recovery by" either of them.

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