text:
    No. 13,118
    Orleans
    PRITCHARD v. YAZOO & MISS. VALLEY R. R. CO.
    (April 7, 1930. Opinion and Decree.)
    Edward A. Parsons, of New Orleans, attorney for plaintiff, appellant.
    Lemle, Moreno & Lemle, of New Orleans, and Chas. N. Burch, H. D. Minor, of Memphis, Tenn., and Hunter C. Leake, of New Orleans, attorneys for defendant, appellee.
   HIGGINS, J.

This is a suit for personal injuries and property damage suffered by the plaintiff as a result of an intersectional collision between plaintiff’s automobile and a passenger train of defendant company at the crossing at Euphrosine street and South Claiborne avenue in the city of New Orleans on November 7, 1928, about 5:25 p. m. The charge of negligence against the defendant is that its flagman failed to give the plaintiff any signal, notice, or warning of the approach of the train. Defendant denied liability, and pleaded contributory negligence. The case was tried before a jury and resulted in a verdict for the defendant, and plaintiff has appealed.

The record shows that South Claiborne avenue is a wide street with a neutral ground in the center and paved roadways on each side, and runs from uptown to downtown. The roadway on the lake side is used by the traffic going uptown, and the roadway on the river side is used by traffic moving downtown. The right of way and tracks of the defendant are along Euphrosine street, which crosses South Claiborne avenue at a right angle, running from the direction of the river to the lake. The photographs introduced in evidence show four switch tracks and two main line tracks. The north or outbound main line track is on tlie Canal street side, and the south or inbound main line track is on the uptown side.

Plaintiff was on his way home, driving his Oldsmobile sedan uptown on Claiborne avenue. When he reached the crossing in question, seeing the outbound passenger train, he stopped his automobile. There was a flagman stationed at the crossing with a red lantern in his hand, and signaled the traffic to stop. Plaintiff stopped his car on the right-hand or lake side of the street, and another car stopped to the left of his car near the neutral ground. Two or three automobiles came up from the rear and stopped behind the first two cars. As soon as the outbound train passed the crossing, plaintiff and the car to the left, which composed the first line of cars waiting at the crossing, went forward. They, passed over the outbound track and plaintiff’s car was struck by the locomotive of a passenger train that was coming into the city on the south or inbound main line track, that was running about six miles per hour. His car was dragged towards the river and the rear part of it bumped into the front part of the automobile at his left, damaging it. Plaintiff’s automobile was dragged some one hundred feet and practically demolished when the train stopped. He was painfully and severely injured and was immediately taken to the Illinois Central Railroad Hospital for first aid treatment, and then to his residence, where he was confined to his bed and home under the care of a physician.

The ease, in its final analysis, turns upon purely a question of fact, i. e., whether or not the flagman, who had flagged the outbound train, -left his place in the roadway after flagging the outbound train, without flagging the inbound train, or whether he remained at the crossing in the proper place in order to warn traffic of the incoming train and the plaintiff overlooked his presence when he started across the tracks after the outbound train had passed.

Twelve witnesses testified to having seen the occurrence, five on behalf of plaintiff, including himself, and seven on behalf of defendant, including the flagman. All of the defendant’s witnesses were its employees, excepting one. All of the witnesses agree that the flagman properly flagged the outbound train with a red lantern, but plaintiff’s witnesses testified that they did not see the flagman at the crossing when the inbound train arrived. All of defendant’s witnesses testified that the flagman flagged the inbound train in the same manner as he did the outbound train, and that he was present the whole time. It appears that both of the trains were local passenger trains, and approached the crossing at about the same time. Plaintiff testified as follows:

“A. Just before I got to the crossing I looked to my left and I saw a train coming out Euphrosine Street to cross Claiborne, so I immediately brought my machine to a standstill and cut off my engine. I always do that when I see a train coming, that is what I do, I stop. I stopped before the man flagged the crossing, and, in my opinion, the man was a little late in flagging, because I stopped before he stopped the rest of the traffic. * * *
“Q. .But you were the first car to stop in the line of cars that did stop to permit the outgoing train to pass?
“A. Yes, sir. * * *
“Q. Why did you start to move off?
“A. Because there was no one to stop me and the road was clear.
“Q. What do you mean by ‘the road was clear’?
“A. There was nothing to obstruct me and nobody giving me any warning. There should have been a man to stop me when the other train was going out, but he was not there any more, and I naturally assumed when the train moved on it was all right for me to move on.
“Q. What train do you refer to when you say the train had gone on?
“A. The outgoing train.
“Q. After the outgoing train had gone on what did you do?
“A. Just as the end of it was coming I started my motor again, and when the end got by I started on. * * *
“Q. What happened the moment after you started to go across?
“A. When I got on the incoming track things happened very quickly. There was a train right there, and it' banged into me. I had only a second to make up my mind. It was pretty scarcely a second, and I tried to turn with it, and I believe the train banged my machine into the machine that was crossing with me. I am not very clear on that. I didn’t see it do it, but I hung to my steering wheel, and when I wound up, of course, I was probably across the neutral ground, possibly fifty or sixty feet from where I started.”

Evidently the presence of the flagman suggested to the plaintiff’s mind that he was there only for the purpose of flagging the outbound train, and for no other purpose. Having heeded the flagman’s signal in regard to the outbound train, plaintiff dismissed the flagman from his mind and paid no further attention to him. His own testimony shows that he gave no thought to the fact that a south or inbound train might be approaching the crossing, and that he did not even look in that direction.

Some of the plaintiff’s witnesses were not in position to see the flagman, because of the presence of a number of automobiles at the scene of the accident. The evidence also establishes the fact that, after flagging the outbound train, the flagman stepped in between the south or inbound and the north or outbound tracks, so that he could not be seen until after the north or outbound train had passed. This may account for the fact that a number of plaintiff’s witnesses, who were sitting in the automobiles waiting for the train to pass, did not see him. Plaintiff was in an automobile' which was in the front line and, consequently, in a position where he could have seen the flagman had he paid any attention to him.

The preponderance of the evidence is with the defendant that the flagman was present and properly flagged the inbound train. Plaintiff was solely at fault in not keeping a proper lookout. Smith vs. I. C. R. Co., 10 La. App. 342, 120 So. 405; Gibbens vs. N. O. Terminal Co., 1 La. App. 371, affirmed by Supreme Court, 159 La. 347, 105 So. 367.

For the reasons assigned, the judgment is affirmed.


source: Caselaw Access Project

author: WEBB, J.

license: Public Domain

text:
    No. 2803
    Second Circuit
    WESSELL PLUMBING CO., INC., v. WEBB ET AL.
    (April 10, 1930. Opinion and Decree.)

      Murff & Perkins, of Shreveport, attorneys for plaintiff, appellant.
    C. B. Prothro, of Shreveport attorney for defendants, appellees.
   WEBB, J.

Plaintiff, Wessell Plumbing Company, Inc., brought this action to recover judgment against F. L. Dyer and J. C. Webb in solido for $188.25, with recognition of a ¡privilege to secure the payment of the claim on the property of J. C. Webb, and plaintiff appeals from a judgment rejecting its demands against Dyer and awarding judgment against Webb in the sum of $15, but rejecting the demand for recognition of a privilege.

Plaintiff alleged that the amount was due for materials and labor, plumbing fixtures and cost of installation, furnished Dyer, who contracted with Webb to improve real estate belonging to the latter. Both defendants denied that they were indebted to plaintiff in any amount.

On trial of the cause, the evidence developed that Dyer was engaged in the business of building houses on property owned by him, and selling the property; that plaintiff, Wessell Plumbing Company, Inc., had contracted to furnish and install plumbing fixtures in one of the houses constructed by Dyer which had been sold by Dyer to his co-defendant, Webb, before or about the time the building was completed, and that Webb desired that some of the plumbing fixtures should be removed and others installed, which was done by plaintiff, and the present action is for the cost of removing the fixtures, and the difference between the value of the fixtures removed and those installed.

Appellant has not made any appearance in support of the appeal, but we have read the record, and find that plaintiff failed to establish that defendants were indebted to it further than the amount admitted by Webb.

The judgment is therefore affirmed.


author: DREW, J.

text:
    No. 2687
    Second Circuit
    DAVIS v. LOUISIANA RY. & NAV. CO.
    (April 10, 1930. Opinion and Decree.)

      Phanor Breazeale, of Natchitoches, attorney for plaintiff, appellee.
    Rusca & Cunningham, of Natchitoches, attorneys for defendant, appellant.
   DREW, J.

Plaintiff sued for the value of two mules killed by the train of defendant. One mule was killed on the 8th day of November, 1925, and is valued at $125. The other was killed on the 12th day of November, 1925, and is valued at $175.

Defendant admitted the killing, but alleged that it was unavoidable.

The judgment of the lower court was for plaintiff in the sum of $125, and from this judgment the defendant has appealed, and the plaintiff has answered the appeal, praying that the judgment of the lower court be increased to the amount of $275.

While the judgment of the lower court does not say that the demand for damages for the mule killed on November 12, 1925, was rejected, and that the judgment was for the mule killed on November 8, 1925, but, after reading the evidence, we feel sure the lower court so held.

The testimony shows that the mule killed on November 8, 1925, was seen by the engineer about four hundred feet down the track, and that it then ran down the track a distance of nearly two hundred yards before being struck, and that the train was traveling at a rate of speed of about twenty miles an hour when the engineer saw the mule.

The public policy of the state, as expressed in Act No. 70 of 1886, is that railroad companies shall pay for live stock killed or injured by the operation of their trains, unless they shall allege and prove that the killing or injuring was without negligence on their part. State vs. Foster, 106 La. 425, 31 So. 57.

Since the adoption of the statute, the onus of proof in such actions is shifted from the owner of the live stock to the defendant railroad company, which must sustain the material ground raised in the defense. Mire vs. Y. & M. Y. R. Co., 105 La. 462, 29 So. 935; Jackson vs. T. & P. Ry. Co., 166 La. 718, 117 So. 805; Hollingsworth vs. H., E. & W. T. Ry. Co., 7 La. App. 121.

The main ground of defense as to this mule is that the train could not be stopped after the mule was first seen. We think the engineer had a distance of nearly one thousand feet within which to stop the train, which was only making twenty miles an hour, and we think the defendant has failed to meet the burden of showing that it was free from negligence.

The main ground of defense as to the mule killed on the 12th day of November, 1925, is that, due to the prevalence of a dense fog, the engineer in charge of the train was unable to discover the position and peril of the mule until it was too late to stop the train and avoid the accident. We think the evidence bears out the defendant’s contention. The engineer did not see the mule until the train was within thirty feet of it. The train was traveling about thirty-five miles an hour, and it was impossible to stop it and avoid the accident. The engineer testified that there was a very dense fog at the time, and he is not contradicted by any witness.

It is urged by plaintiff that the fence along the right of way of defendant’s track was in a dilapidated condition, and the evidence bears this contention out. However, there was no obligation on the part of the defendant company to fence its right of way. Therefore its failure to keep its fence in repair is not negligence per se. The only penalty imposed on it for not doing so is that it assumes the burden of proving that the killing or injuring of live stock upon its tracks was not caused by its negligence. Act No. 70 of 1886; Sanders vs. Ill. Cent. R. Co., 127 La. 917, 54 So. 147; Jackson vs. T. & P. Ry. Co., cited supra; Bailey vs. T. & P. Ry. Co., 1 La. App. 233; Foster vs. T. & P. Ry. Co., 5 La. App. 601; Robertson & Son vs. N. O., T. & M. Ry. Co., 8 La. App. 738.

The lower court rendered judgment for plaintiff in the sum of $125, which is shown to be the value of the mule killed on the 8th day of November, 1925. We think the judgment is correct.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be affirmed.

Cost of the appeal to be paid by defendant.


text:
    No. 2876
    Second Circuit
    STEPHENSON & HAND v. SHREVEPORT NATATORIUM & AMUSEMENT CO.
    (April 10, 1930. Opinion and Decree.)

      T. H. McGregor, of Rayville, attorney for plaintiffs, appellants.
    Wilkinson, Lewis, Wilkinson & Burford, of Shreveport, attorneys for defendant, appellee.
   DREW, J.

This case was fixed regularly for trial in this court, and appellants have made no appearance. They have neither argued the case nor filed brief. There is no error patent on the face of the record, and appellants have pointed out no error in the judgment appealed from.

The judgment is presumed to be correct, and, in the absence of assistance from appellants, this court will not seek to detect errors therein not patent on the face of the record. Bynum vs. Lieber, 155 La. 760, 99 So. 590; Schwan vs. Peterman, 123 La. 732, 49 So. 486; Arkadelphia Milling Co. vs. Anders et al., 5 La. App. 193; Suc. of Suner, 5 La. App. 121; Blasdel vs. McElroy, 7 La. App. 109.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be affirmed, with costs.


author: ODOM, J.

text:
    No. 2852
    Second Circuit
    GRIFFIN v. MOTOR TRANSIT CO. and WALLER
    (April 10, 1930. Opinion and Decree.)

      , Boone & Boone, of Many, and Wm. C. Boone, of Homer, attorneys for plaintiff, appellant.
    McClendon & Seals, of Homer, attorneys for defendants, appellees.
   ODOM, J.

Plaintiff sued the Motor Transit Company and Dr. Lee Waller, alleged to be the sole owner thereof, for damages resulting from personal injuries caused by a collision between the automobile in which she was' riding and defendants’ motorbus. Defendants filed an exception of no cause of action, which was sustained, and plaintiff appealed.

Plaintiff alleged that defendants’ bus ran against the car in which she was riding, turned it over, and that she was injured. Paragraph 6 of her petition reads as follows: “That said injury and damage sustained by your petitioner was and is due solely to the carelessness, recklessness and negligence of said Motor Transit Company, and of driver of said motor bus of said Motor Transit Company, for whose negligence and recklessness .the said Motor Transit Company and its owner is liable.”

It is not alleged that the bus was in charge of or driven by Dr. Waller, the owner, but by “a driver * * * for whose negligence and recklessness the said Motor Transit Company and its owner is liable.” But it is not alleged that the driver of the bus was the agent, servant, or employee of defendants. Masters and employers are answerable for the damages caused by their servants and employees while acting within the scope and functions of their employment. Civ. Code, arts. 2317, 2320.

This rule applies to the relation between an owner of a motor vehicle and his chauffeur. Valley vs. Clay, 151 La. 710, 92 So. 308.; May vs. Yellow Cab Co., 164 La. 920, 114 So. 836, 838.

In this case, it is not alleged that the relationship of master and servant existed between the owner of the bus and the driver at the time of the accident. The owner of a motor vehicle can be held responsible for its negligent operation by another only when the relationship of principal and agent or master 'and servant existed between the owner and operator at the time of the accident, and not then unless the servant was acting in furtherance of his master’s business. For plaintiff to recover, it would necessarily have to be shown that the driver of the bus sustained such relationship to defendants as to make defendants answerable for his acts. Where no such relationship is alleged, testimony is not admissible to prove it.

In cases where it is necessary for a plaintiff to prove, in order to recover, that a certain condition or relationship exists, it is necessary to allege that such condition or relationship does in fact exist; otherwise no cause of action is shown by the pleading. It is settled that, “in an action for an injury or damage inflicted by an automobile, an allegation and proof showing the ownership of the automobile, and that it was being operated at the time by an employee of the owner, is sufficient to make out a prima facie case and to raise the presumption that the servant was acting within the scope of his employment, and that the burden is then thrown on the owner to show to the contrary.” May vs. Yellow Cab Co., supra; West vs. Kern, 88 Or. 247, 171 P. 413, 1050, L. R. A. 1918D, 924; notes 42 A. L. R. beginning on page 898.

In actions against owners of motor vehicles for damages occasioned by the negligent operation of them by persons other than the owners, mere proof of the ownership does not make out a prima facie ease of liability against the owners, and the burden is not thereby shifted to the owners to show that the relationship of master and servant did not exist between him and the driver. Tice vs. Crowder, 119 Kan. 494, 240 P. 964, 42 A. L. R. 893. See, also, authorities cited supra.

Plaintiff alleged that the defendants were responsible for the negligence of the driver. But that allegation is not accompanied by an allegation of such facts as enables the court to determine as a matter of law that the defendants were in fact responsible. Plaintiff’s allegations that defendants were responsible for the acts of the driver must therefore be considered as a conclusion of the pleader and not as an allegation of fact.

The judgment sustaining the exception of no cause of action is correct, and it is therefore affirmed, with costs.


text:
    No. 2832
    Second Circuit
    WHELESS AUTO SUPPLY CO., INC., v. STEINAU
    (April 10, 1930. Opinion and Decree.)
    Craig, Bolin & Magee, of Shreveport, attorneys for plaintiff, appellee.
    R. D. Fuller, of Shreveport, attorney for defendant, appellant.
   DREW, J.

This suit grew out of case No. 2802, 127 So. 451, between the same parties, wherein plaintiff recovered judgment against defendant and was attempting to execute same.

Judgment in case No. 2802 of this court, decided this day, was rendered and signed in the district court on July 2, 1925, from which judgment defendant asked for and was granted appeals, both suspensive and devolutive, to this court. Appeal bonds were not filed until July 28, 1925, which was too late to sustain a suspensive appeal.

, Plaintiff, discovering that a suspensive appeal bond had not been filed within ten days, proceeded to execute his judgment, by having issued a fieri facias and seizing certain property of defendant.

Defendant attempts to enjoin the execution. of the judgment, alleging that he has perfected an appeal from the judgment, both suspensive and devolutive, and has issued a rule on plaintiff to show cause why a preliminary injunction should not issue in the case enjoining him from executing the judgment until the ease is finally decided on appeal.

Plaintiff filed an exception of no cause of action, which was sustained by the court. The case is before us on devolutive appeal from the judgment sustaining the exception of no cause of action.

The record discloses that defendant only perfected a devolutive appeal from the judgment in case No. 2802, and a devolutive appeal does not suspend execution of a judgment.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be affirmed, with costs.

Defendant Steinau alleged that the property seized was of a. value far in excess of the amount of the judgment plaintiff was attempting to execute, but does not ask for any relief from the excessive seizure.


text:
    No. 2864
    Second Circuit
    JACOB COHEN & SON v. FRIEDMAN ESTATE
    (April 10, 1930. Opinion and Decree.)

      Rusca & Cunningham, of Natchitoches, attorneys for plaintiffs, appellants.
    Phanor Breazeale, of Natchitoches, attorney for defendant, appellee.
   ODOM, J.

This is a suit on open account for $129. Plaintiffs appealed from a judgment rejecting their demands. We think the judgment is correct. Plaintiffs failed to prove the sale relied upon. Mr. Friedman, a representative of the defendant company, was in the city of New York, and, while there, plaintiffs’ salesman called on him and solicited an order. Mr. Friedman says that he went to plaintiffs’ place of business and looked at some shirts and told Mr. Cohen, the head of the plaintiff firm, that he might be able to use some of them. He accordingly picked out some and got prices on them, which prices seemed to have been satisfactory. Mr. Friedman left plaintiffs’ establishment and went back to his hotel, and, on arriving there, he decided that he did not want the goods and immediately telephoned Mr. Cohen not to ship them. Mr. Cohen admits that Mr. Friedman telephoned him, but says that he understood that the shipment was to be held up because Friedman might want some additional goods. Mr. Friedman did not return to plaintiffs’ place of business, nor did he or any one else representing the defendant firm communicate with plaintiffs further with reference to the goods. Thirty days later,' plaintiffs shipped the goods, and, when they arrived at Natehes, La., defendant refused to accept them.

“The sale is considered to be perfect between the parties, and the property is of right acquired to the purchaser with regard to the seller, as soon as there exists an agreement for the object and for the price thereof, although the object has not yet been delivered nor the price paid.” Civ. Code, art. 2456.

There is no contract of sale unless both parties intend the same thing. Pittsburg & Southern Coal Co. vs. Charles B. Slack, 42 La. Ann. 107, 7 So. 230.

According to Mr. Friedman’s testimony, there was no completed sale, because he did not agree to buy the goods, and went no further than to state to Mr. Cohen that he might be able to use them. After reflecting over the matter, he decided that he did not want the goods — at least, at that time — and telephoned plaintiffs not to ship them until he came back to see about them. It is very probable that plaintiffs understood that Friedman was buying the goods when he picked out the articles, but it is certain, we think, that Friedman did not assent to the sale of the goods while in plaintiffs’ place of business. Mr. Friedman says that, when he telephoned Mr. Cohen not to ship the goods, Mr. Cohen said he would not do so, but would await Friedman’s retjurn. The fact that plaintiffs held up the shipment for thirty days shows that they were not certain that Friedman intended to have the goods shipped.

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


text:
    No. 2868
    Second Circuit
    THE FIRST NATL. BANK OF ARCADIA v. WHITE ET AL.
    (April 10, 1930. Opinion and Decree.)
    Goff & Barnette, of Arcadia, attorneys for plaintiff, appellee.
    R. L. Williams, of Arcadia, attorney for defendants, appellants.
   DREW, J.

On September 13, 1922, A. P. White executed to the First National Bank of Arcadia three notes for the sum of $500 each and made payable January 1, 1925, July 1, 1924, and January 1, 1924, respectively. On that same date J. P. White executed to the said bank the following document:

“First National Éank of Arcadia, Louisiana.
Arcadia, Louisiana.
“Dear Sirs: I hereby guarantee the payment of that certain notes of A. P. White, dated September 13, 1922, and due January 1, 1925, July 1, 1924, for five hundred dollars each and one-half the note same date and due January 1, 1924 said note being for five hundred dollars and the full amount I am guaranteeing herein is twelve hundred and fifty dollars to be paid on the dates above mentioned.
“Yours truly, J. P. White.
“Attest:
“R. L. Williams
“J. Rush Wimberly.”

No part of the said notes having been paid on January 28, 1925, the First National Bank instituted this suit against A. P. White and • J. P. White. Service was never made on A. P. White, and he is therefore eliminated from the suit.

Plaintiff sued for $1,250, with 8 per cent per annum interest thereon from September 13, 1922, until paid, and 10 per cent on both principal and interest, as attorney’s fees. It attaches to its suit two of the original notes for $500 each, signed by A. P. White, and another note for the sum of $1,236, dated July 25, 1924, signed by A. P. White, alleging that the $1,236 note is a renewal of certain other notes of A. P. White and representing an extension of time granted to him on a note for $500, dated September 13, 1922, and due January 1, 1924, which note was renewed and extended several times and finally included in the $1,236 note. It alleges that it is only suing for $250 of the $1,236 note, together with interest and attorney’s fees thereon, praying for its rights to be reserved to bring suit for the remainder of said note against A. P. White.

Defendant J. P. White filed an exception of no right or cause of action, based on the fact that plaintiff had not first secured a judgment against A. P. White and exhausted his property.

This exception was tried and overruled by the lower court, and defendant J. P. White answered admitting that he signed the document of guaranty as alleged, and averred that plaintiff cannot proceed against him until it has exhausted the property of A. P. White, that the renewal of the note due January 1, 1924, by plaintiff and including same in a larger note, extinguished the debt so far as same applied to defendant, and that he owes no part of said $1,236.00 note, pleading ex-tinguishment by novation or payment and confusion. He further alleges that the other two notes attached to plaintiff’s petition he is willing to pay after the plaintiff has complied with the law and exhausted the property of A. P. White, which, he alleges, must be done before he can be proceeded against.

The judgment of the lower court was in favor of plaintiff and against defendant J. P. White in the full sum of $1,250, with 8 per cent per annum interest thereon from September 13, 1922, until paid, and 10 per cent on both principal and interest, as attorney’s fees, reserving to the plaintiff the right to proceed further in this suit or another suit against the said A. P. White.

Prom this judgment the defendant J. P. White' has appealed to this court.

When J. P. White executed his letter of guaranty to the plaintiff, there was then an existing debt of A. P. White to the plaintiff, a certain specific part of which he guaranteed. He therefore became a surety for that debt. His guaranty was absolute, and he became bound for the part of the debt he guaranteed when it became due and was not paid by A. P. White. Gasquet et al. vs. Thorn, 14 La. 506.

“Suretyship is an accessory promise by which a person binds himself for another already bound, and agrees with the creditor to satisfy the obligation, if the debtor does not.” R. C. C. art. 3035.

After the notes became due and were not paid by A. P. White, then the plaintiff had the right to proceed against either or both of the defendants, and we think the exception of no right or cause of action was properly overruled.

The following rule is laid down in 21 Ruling Case Law, p. 949:

“That when the sponsors for another assume a primary and direct liability, whether conditional or not in the sense of being immediate or postponed till some subsequent occurrence, to the creditor, they are sureties; but when this responsibility is secondary and collateral to 'that of the principal, they are guarantors.”

The distinction between the two is shadowy, and most courts and nearly all text-writers treat them as the same.

Defendant admits in his answer that he is willing to pay the two original notes sued on for the sum of $500 each after A. P. White’s property has been exhausted and after judgment has been rendered in favor of plaintiff against A. P. White. However, it is admitted in the record that A. P. White has no property within the state.

Under our finding it is useless to further discuss the liability of defendant for the two notes of $500 each executed on September 13, 1922, and due January 1, 1925, and July 1, 1924. He is liable for that amount.

The other note for $500, dated September 13, 1922, and due January 1, 1924, defendant was surety for one-half of it, or $250. It is urged by defendant that he has been relieved from liability under his suretyship by extinguishment of said note, by renewing of same and including it in another note of much larger amount without his knowledge or consent. We think his contention is sound. Defendant specifically guaranteed the payment of one-half of this note, to be paid on the date it became due, and carefully described it. The plaintiff did not proceed against him at the due date of the note; neither did it proceed against the maker; but, without defendant’s knowledge or consent, renewed the note several times and finally took a new note from A. P. White for an entirely different amount and made nearly two years later. -What became of the first note is not shown. Possibly it was returned to the maker or destroyed. It clearly extinguished the note on which defendant was surety.

R. C. C. art. 3063:

“The prolongation of the terms granted to the principal debtor without the consent of the surety, operates a discharge of the latter.” Alter vs. Zunts, 27 La. Ann. 317; N. O. Butchers Co-Op. Abb. vs. St. Bernard & Fertilizing Co., 160 La. 574, 107 So. 432.

The obligation of a surety is stricti juris and must be rigidly construed. And the surrender of one of several guaranteed notes and the taking of other notes therefor will release the guarantor or surety to the amount of the surrendered note. Joyce Defense to Commercial Paper, p. 1372.

One who pays the note of another as surety has the right to expect the note to be given to him in order that he might proceed against the maker. This has been made impossible by the plaintiff, as it has included the amount of the guaranteed note in a larger note amounting to $1,236 and reserving in this suit the right to proceed against the maker for the remainder of the note.

Defendant guaranteed the payment of two notes of $500 each and $250 of another $500 note. The last note has been extinguished and he released from his guaranty to that extent. He did not guarantee any interest or attorney’s fees, and the obligation must be rigidly construed. Therefore interest and attorney’s fees cannot be recovered. His written guaranty specifically states what he is bound for, and it cannot be said he is bound for more than he intended to bind himself for. Continental Supply Co. vs. Tucker-Rose Oil Co., 146 La. 675, 83 So. 892.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be amended by reducing the amount of the judgment in favor of the plaintiff and against the defendant from $1,250, with 8 per cent per annum interest thereon from September 13, 1922, until paid, and 10 per cent upon both principal and interest, as attorney’s fees, to $1,000, without interest and attorney’s fees, and, as so amended, that the judgment of the lower court be affirmed; plaintiff and appellee to pay the cost of the appeal.


author: JANVIER, J.

text:
    No. 13,123
    Orleans
    JOHNSON v. BISSO FERRY CO., INC. ET AL.
    (April 7, 1930. Opinion and Decree.)
    Woodville & Woodville, of New Orleans, attorneys for plaintiff, appellant.
    Lemle, Moreno & Lemle, of New Orleans, attorneys for defendants, appellees.
   JANVIER, J.

Plaintiff was a passenger on a ferryboat owned and operated on the Mississippi river by defendant Bisso Ferry Company, Inc.

She was seated on- the main deck of the boat on a seat, provided by defendant corporation for passengers, and, while so seated, was injured by being struck by a large wooden box which was knocked against her by an automobile owned and driven by the other defendant, J. S. Costello. The box was a part of the equipment of the ferryboat, and at the time it was struck by the automobile was in its proper place, alongside the engine room, and was not in any sense in the path of the automobile.

The main deck was used by both foot passeng'ers and automobiles, and it is contended by plaintiff that the ferry operators should have provided rails in front of the seats, or should have placed the seats on platforms elevated above the level of the deck itself, so that automobiles, even if carelessly driven, might not come into contact with passengers seated in the place provided for them.

Defendant corporation contends that the boat was constructed with seating arrangements similar to practically all ferries operated on the Mississippi river at New Orleans and in most of the other places in the United States in which ferries are required.

There seems to be no doubt that the boat in question was so constructed as to afford automobiles ample room to drive completely around the deck without coming dangerously near the seated passengers. In fact, the evidence shows that two cars may stand abreast between the outer rail of the deck and the seats in question without endangering or unduly crowding passengers in those seats.

At the time of the accident, there was only one line of automobiles on the boat, and there was no reason for any one connected with the operation of the vessel to 'anticipate that an automobile would run into plaintiff or into any of the equipment or paraphernalia on the boat.

For many years this ferry corporation had operated innumerable boats similar in all respects to the one involved here, and the record shows that no similar accident had occurred. This fact and the further proof that nearly all ferries used for like purposes are similarly constructed is rather convincing evidence of the fact that defendant corporation furnished as safe a place for plaintiff as is customarily furnished by prudent carriers engaged in like enterprises. This is all they were required to do. They are not insurers of the safety of their passengers. Corpus Juris, “Carriers,” vol. 10, p. 863, sec. 1302; Miles vs. N. O. Public Service, Inc., 3 La. App. 496; Cusimano vs. N. O. Public Service, Inc., 170 La. —, 127 So. 376. They are liable only if they fail to exercise the highest degree of care usually exercised by prudent persons engaged in the same or similar enterprises.

In the planning and construction of their ferryboats they may adopt methods which have been in general use and have been found to be safe and efficient.

In Frobisher vs. Fifth Ave. Transp. Co., Ltd., 151 N. Y. 431, 45 N. E. 839, 840, it was sought to hold the defendant liable because on one of its busses the open back step was used. The court said:

“It is quite apparent, from the testimony given, that both kinds of steps are in general use, and that each may have its advantage and disadvantage. * * * We think, therefore, • that the defendant was not chargeable with negligence by reason of its use of the open step, and that its use did not render the omnibus defective.”

In Crocheron vs. North Shore Staten Island Ferry Co., 56 N. Y. 656, we find the following:

“The stairs were finished in the same manner as upon the best river boats and upon American seagoing steamers. The boat had been in use a year and had carried, on an average, a thousand passengers a day; no injury of the kind had before occurred. Several experienced men testified that this mode of covering stairs was the best in use. Held, that the evidence failed to show negligence, and that a refusal to nonsuit plaintiff was error.”

In Loftus vs. Union Ferry Co. of Brooklyn, 84 N. Y. 455, 38 Am. Rep. 533, we find the doctrine which is involved here so well stated that we deem it advisable, rather than to use words of our own, to quote at length from that decision:

“The defendant was bound to provide suitable and safe accommodations for the landing of passengers. The rule of the strictest diligence in this respect is the only one consistent with a due regard to the value of human life and with the relation which the defendant assumes to the public. But the rule does not impose upon the defendant the.duty of so providing for the safety of passengers, that they shall encounter no possible danger, and meet with no casualty, in the use of the appliances provided by it. It was possible for the defendant so to have constructed the guard, that such an accident as this could not have happened; and this, so far as appears, could have been done without unreasonable expense or trouble. If the defendant ought to have foreseen that such an accident might happen, of (or) if such an accident could reasonably have been anticipated, • the omission to provide against it would be actionable negligence. But the facts rebut any inference of negligence on this ground. The company had the experience of years, certifying to the sufficiency of the guard. That it was possible for a child or even a man to get through the opening was apparent enough. But that this was likely to occur was negatived by the fact that multitudes of persons had passed over the bridge without the occurrence of such a casualty. If the structure was intrinsically insecure, the fact that it had been used without injury before this would not exempt the company from responsibility, when an accident did happen from its defective condition. The guard was concededly sufficient for grown people. A small child might more easily get through the opening than a man, but small children are usually in charge of parents or guardians; and this is entitled to some weight in determining the question of the company’s negligence. We think the exemption of the defendant in this case rests upon the fact which we think clearly appears as an inference from the other facts, that the company had no reason to apprehend an accident like this, and that the arrangements made were such as experience had, up to that time, shown to be safe and suitable, and sufficient to meet the requirements of its duty.”

It is true that the mere fact that the facilities used are in common use is not always enough, and that such appliances or methods of construction are usual does not relieve the carrier of negligence, if the appliance or method of construction' is inherently dangerous. Here, however, we are unable to find that the method of construction of this particular vessel is inherently dangerous, in view of the fact that the passageway for automobiles was unusually wide.

The record shows that this vessel, as well as all other vessels in. the harbor of New Orleans, are regularly inspected by United States marine inspectors, and that, in this inspection, the safety and convenience of passengers is given consideration. If there had been anything inherently dangerous about the locating of seats alongside the engine room, it is reasonable to presume that the federal inspectors, well versed in such matters, would have required the removal of those seats. Of course, there may be vessels in which the location of seats on the main deck might of itself constitute negligence, but on the boat involved here we cannot see that such is the case.

We now consider the other defendant, Costello. We cannot agree with our brother of the district court that the record fails to show his negligence. He admits that he was driving at a speed of about ten miles an hour. We consider this speed excessive, in view of the locality in which the automobile was being operated. It is true that the only evidence as to the sudden swerve of his car is his own statement that another passenger unexpectedly stepped in front of him. But, even in the absence of other evidence, we think that his admission of this speed and the further fact that he could not stop his car instantly are sufficient to convict him of negligence.

Fortunately, the injured woman was not seriously hurt. She was required to go to the hospital for one day, and, for the succeeding two months was, more or less, under the observation of a physician. „ Such bruises and contusions as she received were temporary in the extreme, and we believe that $300 will fully compensate her for her sufferings and losses.

It is therefore ordered, adjudged, and decreed that the judgment appealed from, in ■ so far as it dismisses the suit against the Bisso Ferry Company, Inc., be and it is affirmed, and that, in so far1 as it dismisses the suit against J. S. Costello, be and it is annulled, avoided, and reversed, and that there now be judgment in favor of plaintiff and against J. S. Costello in the full sum of $300, with legal interest from judicial demand and for all costs.


author: HIGGINS, J. PER CURIAM.

text:
    No. 11,516
    Orleans
    KING v. F. B. GREVEMBERG & SON, INC., ET AL. LAIGHT v. F. B. GREVEMBERG & SON, INC., ET AL.
    No. 11,517
    Orleans
    (January 13, 1930. Opinion and Decree.)
    (March 24, 1930. Rehearing Refused. Original Decree Amended as to Quantum.)
    (May 5, 1930. Writ of Certiorari and Review Refused by Supreme Court.)

      Henry & Cooper and A. M. Suthon, of New Orleans, attorneys for ¡plaintiffs, appellees.
    Lemle, Moreno & Lemle, of New Orleans, attorneys for defendant, appellant, Federal Surety Co.
   HIGGINS, J.

These two cases present the same issue and were consolidated for the purpose of decision.

Plaintiffs, Laight and King, entered suits against the defendants, in solido, for the sum of $1,400.25 and the sum of $552.25, respectively, representing the balance of deposits which were made by plaintiffs with the defendant, F. B. Grevemberg & Son, Inc., for the purchase of real estate. The suits are against a real estate broker and the surety which signed the real estate broker’s bond.

There was judgment in favor of plaintiffs for the amounts claimed, and only the surety company has appealed.

The record shows that, on March 8 and 9, 1926, plaintiffs made three deposits with F. B. Grevemberg & Son, Inc., a real estate brokerage company doing business in the city of New Orleans, aggregating the sum of $3,500. These deposits were not made on account of any particular purchase of property, but for the purpose of having the real estate brokerage company invest the money in real estate. The receipts are substantially alike, and one of them reads as follows:

“Received of Captain P. C. Laight the sum of $1,000.00 (One Thousand Dollars) to be invested in Real Estate by the firm of F. B. Grevemberg & Son, Inc., and said purchases to be made for the account of Roswell B. King under Power of Attorney of Roswell B. King held by F. B. Grevemberg, Jr.
“F. B. Grevemberg & Son, Inc.,
“By (Signed) F. B. Grevemberg, Jr.
“Vice-Pres. & Mgr.”

Both plaintiffs had by authentic act appointed F. B. Grevemberg, Jr., as their agent and attorney in fact to make purchases of real estate for their account.

It is admitted by all parties that, at the time the deposits were made, the plaintiffs did not have the purchase of any particular real estate in view, but simply left it to the discretion of F. B. Grevemberg, Jr., their agent and attorney in fact, to purchase such property for their account as he might see fit, or none at all, at his discretion. Prior to making the deposits involved in this litigation, plaintiffs had speculated in real estate through F. B. Grevemberg, Jr., who made some money for them as a result of their real estate investments. These transactions took place during the boom in real estate in the city of New Orleans.

The record shows that F. B. Grevemberg & Son, Inc., was to receive a commission of 4 per cent, on the price of any real estate which might be purchased through it by F. B. Grevemberg, Jr., as agent for the account of plaintiffs.

In October, 1925, F. B. Grevemberg & Son, Inc., had agreed to buy the interest of Young & Harris and Felix Kuntz in two bonds for deed in which these parties had agreed to purchase certain lots located in the district known as “Lakeview” in New Orleans, through the New Orleans Land Company. In June, 1926, F. B. Grevemberg & Son, Inc., with the consent of F. B. Grevemberg, Jr., assigned these same bonds for deed to the plaintiffs and used a portion of the money which plaintiffs had deposited with the defendant real estate brokerage company to pay the purchase price for the interest of the vendors in the bonds for deed. The amount of funds deposited by plaintiffs with the real estate brokerage company was sufficient to pay for the five lots, but the defendant real estate brokerage company failed to even keep up the payments which should have been made in accordance with the provisions of the bonds for deed for the five lots of ground covered by them. When the payments due under the bonds for deed became in arrears, the New Orleans Land Company sued Laight, one of the plaintiffs, and through this means plaintiffs learned for the first time that the real estate brokerage company had not used the money for the purpose for which it had been deposited with it. Plaintiffs, then, with their own funds, paid the New Orleans Land Company in order to bring their payments up to date, and then filed these suits against the defendants.

The issue presented for decision here is whether or not a surety company, which has executed a real estate broker’s bond in compliance with the terms and provisions of Act 236 of the General Assembly of the state of Louisiana for the year of 1920, is liable for the failure of the broker to properly account for funds deposited for investment in real estate, which is to be selected by the agent or attorney in fact for the investor or depositor, where no particular real estate has been selected at the time the deposit is made.

Plaintiffs contend that the bond furnished by the real estate broker under the provisions of Act 236 of 1920 protects plaintiffs from injury, damage, or loss that they may sustain as the result of any fraud, dishonesty, misrepresentation, or wrongful act by the agent or broker; that, as the defendant real estate company has failed to account for the moneys plaintiffs deposited with it in a real estate transaction or investment, and wrongfully failed to pay the purchase price on the real estate which was actually purchased, the injury, damage, or loss caused plaintiffs was done by the defendant real estate brokerage company in furtherance of its business, and that plaintiffs are entitled to recover from the surety company.

The defendants admit that F. B. Grevemberg & Son, Inc., was engaged in business as a real estate broker, as defined by Act 236 of 1920. It is contended, however, that it is not properly the function of a real estate broker to accept general deposits of money from its clients for future investment or speculation in real estate, and that, when F. B. Grevemberg & Son, Inc., undertook to handle such deposits as in the present case, it was acting outside the scope of its business, and therefore the surety company is not liable on its bond, if the broker defaulted in its obligation to account. The relevant portion of the bond reads as follows:

“Therefore, if said F. B. Grevemberg & Son, Inc., shall well and truly carry out the objects and purposes for which said agency, office or business shail have been established and shall honestly conduct said business and shall pay all damages which may result from the actions of said P. B. Grevemberg & Son, Inc., as such Real Estate Broker or Agent, then this obligation shall be null and void, or, otherwise, said obligation shall remain in full effect to be enforced by any court of competen!, jurisdiction at the suit of any person or persons who may have been injured or damaged, all as provided by said Act No. 236 of the General Assembly of the State of Louisiana.”

The title of Act 236 of 1920 reads in part as follows:

"To regulate the mode and manner of conducting the affairs and business of Real Estate; * * * to require a bond for the conduct of the business of Real Estate * *

Section (2) of this act defines a real estate broker as follows:

“That a real estate broker within the meaning of this Act is any person, firm, partnership, association, co-partnership or corporation, who for a compensation or valuable consideration sells or offers for sale, buys or offers to buy, or negotiate the purchase or sale or exchange of real estate. * * *”

Section (16) reads in part as follows:

“That before any person * * * shall be permitted to open, engage in, * * * or conduct any real estate agency, or office or deal in real estate, or rent collecting, as agent or broker, either in an office or otherwise, in the state of Louisiana, such person, * * * shall furnish bond with good and solvent surety in favor of the Governor of the State of Louisiana in the full sum and amount of one hundred dollars for every thousand population or fraction thereof of the Parish in which the applicant proposes to do business as shown by the last available TJ. S. Census. * * *”

Section (17) provides that the Louisiana real estate board, authorized by the act, shall have the power to investigate complaints made by any person against a real estate broker, and shall have, under subsection (f), the power to suspend or revoke any license at any time where the licensee has failed to account for any moneys coming into his hands which belonged to others, and, under subsection (g), for any conduct, whether specified therein or not, which constitutes dishonest dealings.

Thus it will be seen that the act defines in general terms what shall constitute a real estate broker, but does not in detail state what are the proper functions and duties of such a broker. Whether or not an act of a real estate broker comes within the duties and functions of such broker as contemplated by the statute depends upon the interpretation to be placed upon the provisions of Act 236 of 1920.

As we analyze the facts of this case, it appears that the plaintiffs who were engaged in an occupation which carried them out of town, desired to invest certain money in real estate in the city of New Orleans. In their absence, one of the practical ways in which such a transaction could be handled would be to designate by authentic act an agent and attorney in fact to select the real estate to be purchased by them, and to accept title at the proper time. This was accomplished by appointing F. B. Grevemberg, Jr., as such agent and attorney in fact by proper power of attorney. The plaintiffs then deposited with F. B. Grevemberg & Son, Inc., engaged in business as a real estate broker, the necessary mone'y with which to effect the purchase of the property to be selected by plaintiffs’ agent and attorney in fact, P. B. Grevemberg, Jr. The real estate brokerage company was to receive the regular commission for its services to be rendered in negotiating the purchase of the property which was selected by P. B. Grevemberg, Jr., for the account of plaintiffs. The agent and attorney in fact appears to have selected certain lots in “Lakeview,” which were covered by bonds for deed, whereby the New Orleans Land Company had sold the property to Young & Harris and Felix Kuntz. At the time of the transfer of these bonds for deed to plaintiffs, P. B. Grevemberg & Son, Inc., was the assignee of them from Young & Harris and Felix Kuntz. Instead of P. B. Grevemberg & Son, Inc., then using the money deposited by plaintiffs for the purpose of paying the purchase price of the real estate purchased, and having title to the lots taken in plaintiffs’ names through P. B. Grevemberg, Jr., acting as agent and attorney in fact for plaintiffs, Grevemberg & Son, Inc., wrongfully and illegally failed to use the money for the purpose for which it was deposited with them, and also failed to return the money to plaintiffs. The irregularity of the proceeding was made possible by the fact that P. B. Grevemberg, Jr., was an officer in the corporation. It thus appears that the transactions involved solely and only negotiations for the purchase of real estate which was actually purchased. The fact that (plaintiffs acted through an agent or attorney in fact, in our opinion, is of no moment, and the transaction is just the same as if plaintiffs had selected the real estate and left a deposit with the defendant real estate brokerage company for the purpose of binding the sale, or to be paid as a part or the whole of the purchase price at the time the sale was passed.

It is to be noted that this is not a suit for damages for the negligent or incompetent act or judgment, or deliberate act or judgment of the real estate broker investing unwisely in certain property, but a suit for the return of the balance of the deposits which the broker never paid or expended for the purpose for which the deposit was made, i. e., to pay the purchase price of real estate purchased for plaintiffs’ account.

In Zerlin vs. Louisiana Real Estate Board, 158 La. 111, 103 So. 528, 531, the Supreme Court held:

“The object and purpose of the act under consideration was to regulate the business of real estate brokers, and, in order to protect the general public interest and welfare, to permit no one to engage in such a business except those who may bo found after due and proper investigation to be honest, truthful, and of good reputation.”

The case of Brodtmann vs. Cooper et al., 11 La. App. 101, 120 So. 727, 729, appears to be decisive of the issues presented here. In that case the plaintiff sued solidarity the real estate broker and the surety on his bond under Act 236 of 1920, for $2',000, of which $1,500 was alleged to be the unreturned cash deposit on the purchase price of a lot of ground in the city of New Orleans for which title was never passed to -plaintiff.

The real estate broker admitted receipt of the deposit, but contended that the money had been paid on account of a contract for the erection of a residence on the lot in question, and that he had carried out his part of the agreement, but that plaintiff had defaulted.

The surety company denied liability and contended that the company could only be held liable for the real estate broker’s failure to perform his real estate contract, and that to extend the surety’s liability to cover a breach of a building contract would be extending the provisions of Act 236 of 1920 and the real estate agent’s bond beyond their terms and provisions.

This court said:

“It will be noted that the title of Act 236 of 1920 provides for the business of real estate, and that a broker is defined as one who ‘offers to * * * negotiate the purchase or * * * exchange of real estate,’ and that the bond is required from all those ‘who deal in the business of real estate.’ The plain purpose o.f the act, therefore, seems to be to extend the business of real estate agents, to widen the scope of their duties and to promote the confidence of the public by requiring financial responsibility of all persons engaged in this occupation.
“Unquestionably the contract in this case involved the purchase of real estate, and it also involved putting a building on that real estate, and it seems to us that the two purposes are so closely allied that they are properly and justly covered by the bond of a real estate broker’s surety under this act. That it is public policy today to extend the scope and responsibility of the business of real estate agents is clearly shown by the above extracts from the decision of the Supreme Court in the Zerlin Case. To limit the surety’s liability on its bond to the extent argued by the able attorney of the surety company would be inconsistent with the spirit and 'purpose of the act, and within the modern trend of legislation on the subject. In 1928 the Legislature of this state passed Act 269, requiring all real estate firms or corporations to file a certified copy of their bond with the clerk of court 'or every parish in which they did business.
“Real estate agents, in their effort to secure purchasers, often agree to embellish property so as to make it more attractive to the (prospective buyer, and they frequently erect houses as an additional method of promoting sales. The record shows in this case that Cooper and Palmisano had had many transactions, a number of which were presumably similar to this, and these two purposes in this contract are so closely bound together as to make the agreement, taken as a whole, come under the bond of the surety.’’

In the case of The Texas Co. vs. Mattison et al., 12 La. App. 186, 125 So. 147, 148, this court held that the surety on a real estate agent or broker’s bond, in accordance with Act 236 of 1920, was liable for the return of a deposit which had been made by the plaintiff as a prospective purchaser of certain real estate in the city of New Orleans, where the real estate agent or broker was to negotiate with the owner for the purchase of the property which the (plaintiff desired. The real estate agent and broker failed to use the money for the purpose for which it was deposited, and was financially unable to return the deposit.

The surety company contended that the real estate agent or broker, in his individual capacity had attempted to negotiate the sale for his own account and in turn sell the property to the plaintiff, and therefore the transaction was not within the terms of the bond and the provisions of Act 236 of 1920.

The court held that, since the real estate agent and broker was employed by the plaintiff to negotiate the purchase for it and in its name, the desired property, that the surety on the bond was responsible for the broker’s or agent’s wrongful act in failing to return or use the deposit for the purpose for which it was made.

The court said:

“What is an agent? Webster says that an agent is ‘one who acts for, or in the place of, another.’ If an agent is one who acts for another, his duties are to do what the other might do if acting for himself, and the limit within which he may act is tlie authority given him by the principal, and his bondsman is liable, provided the act which he is authorized to do is such an act as is ordinarily done in the conduct of that particular kind of agency. The act does state that a real estate agent or broker is one who buys or sells, or negotiates for the purchase or sale of real estate for another. Surely, if that other were acting for himself, he could receive a deposit or earnest money or a payment on account of the purchase price. If that other, the principal, instead of acting for himself employs a real estate agent to act for him, he thus authorizes the real estate agent to do any and all things necessary and customary to carry out the purposes for which he was employed. It is very evident, then, since the owner could himself have received the payment on account of the purchase price, it would not be contrary to custom, nor without the range of the contemplation of the surety, that the owner should authorize the agent to receive it for him. It appears quite evident that Mattison was employed by the Texas Company to negotiate for it and in its name for the purchase of the desired property. His authority was fixed and limited in the contract.”

There was considerable testimony in the record by real estate experts as to what functions or duties properly fall within the business of a real estate agent or broker. Some of the experts felt that depositing money with brokers for future investment was outside of the customary duties of the real estate business as conducted in the city of New Orleans. But others felt that, while it was properly within the scope of the business, real estate agents and brokers did not customarily accept many transactions of this nature because of the unusual responsibility resulting from accepting such transactions. However, as the above-quoted provisions of Act 236 of 1920 convince us that the manner in which the transaction in the instant case was handled comes within the provisions of the act and the bond, we do not feel that it is necessary to consider the evidence as to custom in our interpretation of the act.

Counsel for appellant have referred us to a portion of section 2' of Act 236 of 1920, which reads as follows:

“The provisions of this Act shall not apply to any person, firm, * * * or corporation, who, as owner or lessor, shall either individually or through an employee or representative not otherwise engaged in the real estate business perform any of the acts aforesaid with reference to property owned by them, nor shall the provisions of this Act apply to persons holding a duly executed power of attorney from the owner for the sale, leasing or rental of real estate.”

They draw from this the conclusion that, as F. B. Grevemberg, Jr., was acting under a power of attorney, the act would have no application in this case. This language simply means that the section of the act in question shall not apply in such a way as to cover, as a real estate broker or salesman, the following persons: (1) Any person in a legal sense who individually, or through an employee who is not himself in the real estate business, buys or leases or sells, etc., property for his own account; (2) any person “holding a duly executed power of attorney from the owner for the sale, leasing or rental of real estate”; (3) an attorney at law or other judicially appointed representatives such as receiver, executor, etc.

The Legislature placed this section in the statute in order that attorneys at law, and representatives appointed by the .court as executors and receivers, and the owners of real 'estate, “not otherwise engaged in the real estate business,” would not have to take out a real estate agent’s or broker’s license in order to negotiate the sale or lease of real estate.

Since the filing of this suit, the plaintiff, Percy Charles Laight, died on the '4th of April, 1928, and his succession was opened in the Civil District Court for the parish of Orleans under the docket No. 181,601. In the succession proceedings Mrs. Sarah Ellen EVans, wife of William George Jackson, was recognized and placed in possession of the entire estate of the deceased, all of which fully appears by motion filed in this court on behalf of the said Mrs. Sarah Ellen Evans, wife of William George Jackson, asking that she be made a party plaintiff and appellee in the place and stead of Percy Charles Laight, deceased.

For the reasons assigned it is ordered, adjudged, and decreed that the judgments of the district court in these cases be, and they are hereby, affirmed; and it is further ordered, in the matter of Percy Charles Laight vs. Grevemberg & Son, Inc., et al., that Mrs. Sarah Ellen Evans, wife of William George Jackson, be substituted as party plaintiff in the place of Percy Charles Laight, deceased.

JANVIER, J., dissents.

ON APPLICATION FOR REHEARING

PER CURIAM.

Our attention has been directed to errors in calculation committed by the judge of the lower court and followed by us in affirming his judgment. In order to correct the errors complained of, the judgments appealed from are amended so as to allow a credit in the Laight case of $106.80 and in the King case of $47.01.

The judgments appealed from will, therefore, be amended so as to award judgment of $505.24 to the plaintiff, Roswell E. King and to award judgment of $1,298.45 to the plaintiff Percy C. Laight, and, as thus amended, they are affirmed.

Application for rehearing refused.


text:
    No. 3331
    Second Circuit
    VIVIAN STATE BANK v. HOLCOMB ET AL.
    (April 10, 1930. Opinion and Decree.)
    J. Fair Hardin, of Shreveport, attorney for plaintiff, appellant.

      Pugh, G-rimmett & Boatner and Elmer A. Mottet, of Shreveport, attorneys for defendants, appellees.
   WEBB, J.

This cause is presented on a motion to dismiss the appeal on the ground that appellant failed to give an appeal bond and perfect the appeal.

The record shows that an exception of no cause of action filed in the district court was sustained on October 5, 1927, and a formal decree dismissing plaintiff’s suit signed on May 5, 1928, at which time plaintiff obtained an order for a devolutive appeal, in which the amount of the appeal bond was fixed at $75, and the motion to dismiss the appeal is based on the fact that the record does not show that any bond was filed after the date on which the order of appeal was signed.

However, the record shows that on April 5, 1928, there was an appeal bond filed with the clerk of the district court, and that on April 7, 1928, an order for a devolutive appeal was granted in which the appeal bond was fixed at $50, the amount of the bond filed on April 5. The motion to dismiss the appeal is opposed on the ground that the bond filed on April -5, 1928, should be considered in connection with the order of appeal of date May 5, 1928.

It must be conceded that the order of appeal granted on April 7, 1928, was without effect (Mitchell vs. Shreveport Creosoting Co., 123 La. 957, 49 So. 655; Hotard vs. Dupont, 1 La. App. 646; Consolidated Ass’n vs. Mason, 24 La. Ann. 518; Succession of Ibos, 144 La. 814, 81 So. 326), and that the clerk was without authority to take or file the bond in the absence of a legal order granting the appeal (Sears vs. Boyd Bearsh, 7 La. Ann. 539), and we do not think the bond filed on April 5, can be considered as having perfected the appeal granted on May 5.

The motion to dismiss the appeal is therefore sustained, and the appeal dismissed.


text:
    No. 2684
    Second Circuit
    PRINCE v. MARTIN (W. W. FULLER, Intervener)
    (April 10, 1930. Opinion and Decree.)

      Rusca & Cunningham, of Natchitoches, attorneys for plaintiff, appellee.
    J. W. Jones, Jr., of Natchitoches, attorney for intervener, appellant.
   WEBB, J.

Plaintiff, J. W. Prince, a judgment creditor of Edward Martin, issued execution on his judgment, under which the sheriff seized two mules and had advertised same for sale when W. W. Puller intervened, claiming a superior privilege on the property over the seizing creditor, and obtained an order directing the sheriff to hold the proceeds of the sale in abeyance to the further orders of the court and to the judgment to be rendered on the intervention.

Plaintiff, Prince, answered denying intervener’s allegations, and defendant, Edward Martin, appeared and asserted, as against intervener, that the property and proceeds thereof were exempt from seizure, etc.

On trial, judgment was rendered, recognizing the privilege resulting from the seizure as superior to the privilege asserted by intervener, who appeals.

In presenting the cause here, counsel lor appellant suggested that the judgment should be affirmed, but for some reason he did not see fit to dismiss the appeal.

In so far as the record shows, there was not any evidence introduced in support of the intervention, and, as there was not any motion to remand to correct the transcript, we presume that there was not any evidence offered in support of the opposition, or that the evidence introduced warranted the judgment. La. Digest, “Appeal,” No. 598. It is therefore affirmed. .


author: LECHE, J.

text:
    No. 480
    First Circuit
    ABNEY v. LEVY
    (December 3, 1929. Opinion and Decree.)
    (March 5, 1930. Rehearing Refused.)
    (May 5, 1930. Writs of Certiorari and Review Refused by Supreme Court.)

      L. V. Cooley, Jr., of Slidell, attorney for plaintiff, appellant.
    S. W. Provensal, of Slidell, attorney for defendant, appellee.
   LECHE, J.

Plaintiff sues to have declared as null and void a sale to himself, by defendant, of certain property situated near Abita Springs in the parish of St. Tammany, and to recover $212.41, for damages and for the price which he paid for the property. The alleged ground of nullity is that defendant had no title to the property at the time of sale, and has not acquired any title thereto since the sale.

Defendant first excepted to plaintiff’s demand on the ground that the petition disclosed no cause of action, and that, exception having been overruled by the trial court, he answered by denying each of the articled allegations of the petition, admitting only that be was the sole heir of his father, Jacob Levy.

The case was submitted to this court on briefs, and the sole defenses argued therein are (1) that plaintiff’s petition shows no cause of .action; and (2) that defendant never promised to reimburse plaintiff the expenses which were incurred as a result of the sale.

Being in doubt as to whether a vendee in .possession could sue for the return of the purchase price of property on the ground that his vendor had no title, without alleging disturbance of his possession, the issue raised by defendant’s exception of no cause of action, that question was certified by us to the Supreme Court for instructions.

The decree of that court was “that a vendee in the undisturbed possession of property has the right to sue his vendor for the restitution of the purchase price thereof, whenever he is in position to show, and so shows, that a perfect title to the property exists in some third person, whereby it is rendered legally certain that his vendor had no title.’’

. It is therefore obvious that, in obedience to the quoted ruling of the Supreme Court, defendant’s exception must be overruled.

Defendant in his brief does not pretend to have had any title to the property at the time that he sold to plaintiff, nor does he allege any subsequent acquisition which would inure to the benefit of plaintiff. Plaintiff, on the other hand, shows that defendant’s father, Jacob Levy, did'acquire the property in 1895, but that the same was subsequently sold at a judicial sale made in 1902 to one Alex Mutti. It is not alleged or shown that Mutti’s title is defective or void. Mutti is not a party to this suit and it does not appear whether he claims to own the property.

But considering that defendant does not allege or show that he had any title to the property when he sold it to plaintiff, except perhaps as sole heir of his father, Jacob Levy, considering further that plaintiff has made out a prima facie case and that he has shown that the title of Jacob Levy, father of defendant, was divested by a judicial sale in 1902, and considering further that defendant does not question the validity of that sale, we must perforce conclude that defendant sold to plaintiff property which he did not own.

As a result of the sale, it is shown that plaintiff, in order to preserve the title which he had thus acquired in good faith, was compelled to pay taxes amounting to $47.41. The claim for attorney’s fees must be refused, as there is no law to sanction its allowance. The cost of the fence, even if it were recoverable, is not proved.

We believe that plaintiff is entitled to recover the amount of the purchase price, $100 which he paid to defendant, and also the sum of $47.41 which he paid for taxes.

For these reasons the judgment appealed from is avoided and reversed, and it is now ordered that the sale from defendant to plaintiff, dated July 25, 1925, of “lots 7, 8 and 9 in square 66 fractional 74, comprising lots 1, 2, 3 and 4 in that part of Abita Springs Parish of St. Tammany, known as Bossier City,” be declared an absolute nullity, and that plaintiff recover from defendant the sum of $147.41, together with all costs -of this suit.


text:
    No. 2816
    Second Circuit
    STATE EX REL. YOUNG v. HICKMAN, MAYOR, ET AL.
    (April 10, 1930. Opinion and Decree.)
    L. B. Duke, of Benton, attorney for plaintiff, appellant.
    John B. Files and W. A. Mabry, of Shrevepott, attorneys for defendants, appellees.
   ODOM, J.

This is a mandamus proceeding against the mayor and the board of aldermen of the town of Bossier to compel them to rescind an ordinance and to mark certain streets and to remove certain obstructions therefrom. Respondents filed an exception of no cause of action, which was sustained, and plaintiff appealed.

Plaintiff alleges that he owns lot 74 and parts of other lots in Helperin addition to the town of Bossier, which addition or subdivision has been subdivided into blocks and lots with streets designated and dedicated pn a plat duly recorded; that during the early part of 1926, one A. E. Green was permitted by the mayor and board of aldermen to enter the said addition or subdivision and remove said markings and to plow and cultivate the land, including the streets and plaintiff’s lots in said subdivision and to exercise private dominion over the same, all over petitioner’s protest, and in paragraph 8 of his petition, he alleges:

“That at a special session of the Town Council of the town of Bossier, held on the - day of June, 1926, said council adopted a purported ordinance, being ordinance No. 133, in which they attempt to have vacated and abandoned to public use certain designated streets and all alleys, which as a matter of fact includes all streets and alleys in said subdivision.”

He prays that a writ of mandamus issue directed to the mayor and the board of aldermen “commanding them to rescind said ordinance No. 133 and to cause to be removed all obstructions and to mark and open to the public for the use and benefit of any citizen said streets and alleys in the Helperin Addition to the Town of Bossier.”

Counsel for appellant did not appear in this court to argue the case and has not filed a brief suggesting any reason why the judgment sustaining • the exception of no cause of action should be reversed.

Plaintiff asks that the mayor and board of aldermen of the town be compelled by mandamus proceeding to repeal or rescind ordinance No. 133 of that municipality. A copy of that • ordinance was not attached to the petition and has not been otherwise exhibited, but we understand from plaintiff’s allegations that by said ordinance the defendant municipality revoked and set aside the dedication of certain streets and alleys in the Helperin addition or subdivision within the corporate limits of the town. Under section 1, Act 151 of 1910, municipal corporations “have full power and authority, in their discretion, to revoke and set aside the dedication of all roads, streets, and alleyways, heretofore laid out and dedicated to public use, within their respective limits when such roads, streets and alleyways have been abandoned, and are no longer needed for public purposes.”

We must assume that the municipal officers set aside the dedication of the streets and alleys because they were considered abandoned and no longer needed for public purposes. This they were authorized and impowered to do under the above act and under Act 136 of 1898, sec. 15, subd. 20, and amendments.

Municipalities are not compelled under the law to open streets or to set aside the dedication of them when abandoned or no longer necessary. Whether they do either is left wholly to the discretion of the gov-erning authorities.. If the streets abandoned by the defendant municipality by its ordinance No. 133 were no longer necessary for the use of the public, and we assume that such was the reason of the municipality in abandoning them, as there is no allegation to the contrary, the officers did not exercise their discretion arbitrarily. Municipal officers cannot be compelled by mandamus proceeding to adopt or rescind an ordinance in cases where the adoption or rescission of the same is left wholly to their discretion. State vs. Board of Liquidation, 42 La. Ann. 647, 7 So. 706, 8 So. 577; State vs. Police Jury, 154 La. 389, 97 So. 584; State vs. Chauvin, 147 La. 703, 85 So. 645; State ex rel. McMahon vs. New Orleans, 107 La. 632, 32 So. 22; State ex rel. Maes vs. New Orleans Police Board, 6 La. App. 48; Cross vs. City of Baton Rouge, 7 La. App. 212.

The judgment is affirmed, with all costs.


author: ELLIOTT, J.

text:
    No. 526
    First Circuit
    GIVENS v. JOSEPH
    (December 3, 1929. Opinion and Decree.)
    (March 5, 1930. Rehearing Refused.)
    (May 5, 1930. Writs of Certiorari and Review Refused by Supreme Court.)
    Bouanchaud, Kearney & Bouanchaud, of Baton Rouge, attorneys for plaintiff; appellee.
    Taylor & Parker, of Baton Rouge, attorneys for defendant, appellant.
   ELLIOTT, J.

Earl C. Givens and H. S. Joseph each claim against the other the ownership and the right to possess a certain promissory note for $1,200, executed by Henry D. Kuhlman, at Harlingen, Tex., dated February 28, 1928, payable to the order of E. C. Givens, at Harlingen, Tex., five years after date. The note was executed in part payment of certain lands situated in Cameron, Tex., purchased by Kuhlman from E. C. Givens, through E. A. Givens and H. S. Joseph.

E. C. Givens alleges that the note was stolen from him at Shreveport, La., some time during the year 1928, and that it was not indorsed by him, therefore not negotiable; that the indorsement which purports to be his is a forgery.

The plaintiff alleges that the defendant, Joseph, has possession of the note, and, fearing that he might send same out of the jurisdiction of the court, he caused it to be sequestered.

Defendant moved to dissolve the sequestration, on the ground that the affidavit was false and untrue. But the minutes show that subsequently the motion, at his own request, plaintiff consenting, was referred to the merits. Defendant then answered, denying that plaintiff was the owner of the note, that it had been stolen, and that plaintiff’s indorsement had been forged. He further alleged that the note belonged to him; that he had become the owner of it for valuable consideration before maturity, from E. A. Givens, acting as agent for plaintiff and himself. He admits that plaintiff has repeatedly demanded that it be delivered to him, and that he had refused, and denied that his possession was illegal. He alleged alternatively that, if the note was decreed to belong to plaintiff, then the plaintiff owed him $1,060, with interest, and prayed, in case the note was held to belong to plaintiff, that he then have judgment in reconvention against plaintiff for $1,'050, with interest. A supplemental answer was filed praying that plaintiff be condemned to pay additional sums as attorney’s fees, etc.

The court rendered judgment maintaining the sequestration, recognizing plaintiff as the owner of the note and rejecting defendant’s demand in reconvention.

A large amount of parol testimony was taken on the trial. Almost every possible light was brought to bear on the question, whether the note had been, in fact, stolen from plaintiff, and also whether the signature which it purports to bear as an indorsement, had been in fact, forged. And finally whether plaintiff was, in fact, indebted to defendant, as alleged in defendant’s answer.

Defendant urges that his motion to dissolve the sequestration should prevail, and that it should be taken up and acted on in advance of the merits. But the motion to dissolve cannot serve such a purpose now.

At the request of the defendant, the plaintiff consenting, it was referred to the merits. It was urged with the merits on the question of ownership. We cannot change the situation thus created; we can only consider it now, and the averments contained in it in connection with his original and supplemental answer and as a defensive plea to the merits.

It would serve no useful purpose to relate and set forth the acrimonious charges and counter charges which we find in the record, between E. O. Givens and E. A. Givens. The controversy is largely between them. It is sufficient to state that plaintiff’s testimony setting forth where he kept this note, with others, where it was when he last saw it before it got out of his hands and into those of the defendant, is supported indirectly by disinterested testimony and by facts and circumstances.

Our conclusion, therefore, is that it was stolen, but defendant, Joseph, had nothing to do with taking it.

As for the alleged forgery, the plaintiff positively asserts that the indorsement which it bears, and which purports to be his own, as a result of which the note was in form made negotiable and got out of his hands, is a forgery.

There is testimony from which it could be inferred that plaintiff’s indorsement was not forged, but plaintiff is supported in his testimony on this subject indirectly by witnesses without interest in the result and by various facts and circumstances, and also by a preponderance of the opinion testimony, from all of which we conclude that the purported indorsement is a forgery, with which, however, defendant had nothing to do. Nevertheless the result is that he did not become the owner of the note when it was placed in his hands, but it justly and legally belonged to the plaintiff.

The lower court rendered the proper judgment on the question of ownership.

Defendant contends that the note was given to him in payment of a debt due him by the plaintiff.

We do not deem it proper to go into details recapitulating the dealings between the plaintiff and others engaged in selling his lands in Cameron county, Tex., on a commission basis. It is enough to say that defendant was never employed' by the plaintiff; that the plaintiff never dealt with him, but he approved of a contract which had been entered into between him and E. A. Givens in regard to the sale of land on a commission.

The defendant was employed by E. A. Givens, who was to pay him 2% out of a 7% per cent commission, which he was to receive from the plaintiff.

It is our conclusion that plaintiff is not indebted to the defendant, and that the lower court properly rejected defendant’s demand in reconvention.

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


author: LeBLANC, J.

text:
    No. 535
    First Circuit
    PUTNAM’S, INC., v. MOODY
    (March 5, 1930. Opinion and Decree.)
    (April 14, 1930. Rehearing Refused.)
    George L. Fontenot, of Ville Platte, attorney for plaintiff, appellee.
    Pugh, Grimmet & Boatner, of Shreveport, and Fred Simon, of Shreveport, attorneys for intervener-defendant, appellants.
   LeBLANC, J.

J. A. Moody, the defendant, was engaged in the business of manufacturing cross-ties in the parish of Evangeline. During the early part of 1928, while he was operating his business, he purchased supplies from the plaintiff, Putnam’s, Incorporated. The account was evidently running before January 4th of that year, as, on that date, the statement in the record shows an amount brought forward of $93.71, and it lasted until March 18th, on which day the defendant owed a balance of $168.28.

He had a contract with the Geo. W. Signor Tie Company, Limited, under which they bought the cross-ties from him, advancing him the sum of 50 cents per tie, ¡ and the balance became payable after inspection by the Railroad Company to which the Signor Tie Company sold them.

On July 26, 1928, after futile efforts to collect the balance due on their account, the plaintiff obtained an order of provisional seizure under which the sheriff seized a lot of cross-ties, some loaded in cars and others along the railroad track at Ville Platte Station in the parish of Evangeline.

The defendant apparently does not dispute the correctness of the account, having simply made an appearance to deny that plaintiff had a privilege on the cross-ties that were seized as the greater portion of its claim arose prior to the manufacture of those particular ties.

The Geo. W. Signor Tie Company, Limited, intervened, claiming the ownership of the ties and that they were in possession of same, and denied plaintiff’s privilege on the same ground the defendant had denied it.

Plaintiff’s privilege, if it has any, arises under Act No. 195 of 1912, which provides, under section 3 that “any person or persons furnishing supplies, provisions, or money, in deadening, felling, cutting, hauling, banking, driving, running, rafting or booming any log or timber, for the purpose of manufacturing telephone, telegraph poles, and cross ties, or any of them, or in manufacturing telephone, telegraph poles, or cross-ties, shall have a lien and privilege on same.”

It will be noted that this law favors the furnisher of supplies with a lien and privilege throughout the whole extent of the operation of making the cross-ties, from the time the timber is deadened to that when it is a manufactured article.

Intervener’s contention is that, if the plaintiff has any privilege at all, it is the one conferred by Act No. 23 of 1912, which has no effect against bona fide purchasers of the material on which it exists, without previous notice. That act, however, makes no reference whatever to furnishers of supplies, nor to cross-ties, and it can have no application to the present controversy.

The contention of the defendant and the intervener that there is no privilege because all the ties seized, with the exception of one hundred, had been manufactured in the months of March and April and most of- the supplies had been furnished prior thereto, is not sound. In the first place, to force the claimant of the privilege to point out each cross-tie in the manufacture of which his supplies were used would place too narrow a construction on the act which grants him a privilege throughout the whole process of deadening, felling, rafting, etc., as well as through the process of manufacture. In the second place, -an examination of the account filed in the record in this case shows that there was actually advanced during the months of March and April supplies to the amount of more than the balance which is here claimed.

Intervener’s other contention, that the privilege, if any there was, had been lost because the ties on which it may have attached had become so mingled with other ties as to have lost their identity, is equally unsound. All the ties seized had been manufactured by tbe defendant. There were no ties belonging to any one else with which they might have become so mixed as to make identification impossible. The authority cited, H. & C. Newman vs. Cannon, 43 La. Ann. 712, 9 So. 439, 440, is not in point. In that case, the unsuccessful creditors who claimed the vendor’s privilege, were “jobbers in dry goods, dealing in goods not manufactured by themselves or dealt in exclusively by them.” The merchandise of each had been unpacked and so mixed with that of others that they could not be identified with reasonable certainty. It will be observed, then, that the privilege claimed was not the same, and the state of facts is entirely different from that in this case.

The last contention is that the privilege had been lost because the ownership had passed from the defendant and the ties now belonged to the intervener. That question is one the determination of which must rest on the facts in the case. It is shown that the cross-ties were sold subject to inspection by and approval of the railroad company. A certain percentage was retained by the Signor Tie Company until inspection had been made. The evidence on this point is not satisfactory. Surely it is not as certain as was that in the case of Francis vs. Noble, American Creosote Works, Intervener, 8 La. App. 697, so confidently relied on by the intervener here, wherein the court held there had been a final inspection. The evidence on this point in the case before us was not sufficient to convince the trial judge, and, as it is a question of fact in which we find no manifest error in his finding, it will be sustained.

The judgment appealed from is affirmed.

LECHE, L, not participating.


text:
    No. 543
    First Circuit
    BASS ET AL. v. WEBER KING MFG. CO.
    (December 30, 1929. Opinion and Decree.)
    (March 5, 1930. Rehearing Refused.)
    (May 5, 1930. Writ of Certiorari and Review Refused by Supreme Court.)
    A. B. Cavanaugh, of Leesville, attorney for plaintiff, appellee.
    Thompson & Ferguson, of Leesville, attorneys for defendant, appellant.
   LECHE, J.

This case was dismissed by us on an exception of no cause of action on January 9, 1929. 11 La. App. 117, 119 So. 774. Plaintiff and appellee obtained from the Supreme Court a writ of review under which, after hearing, that court reversed our finding, and remanded the case to this court for final determination. 168 La. 651, 123 So. 112.

Mose Bass died on September 26, 1927, while traveling in the caboose of a logging train on his return home after his day’s work. He had left in the morning, riding on a trailer attached to a train, to get to the woods, where he pursued the occupation of log scaler in the employ of the defendant. The trailer was partially wrecked on the journey to the forest. It collided, while backing, with a log protruding on the track, and the rear truck over the wheels was displaced and shoved forward, and, though the trailer did not capsize, its platform was tilted to an inclined position over the track. There were several laborers on the trailer, including Mose Bass, all of whom jumped off when they saw that the collision was inevitable, except Mose Bass and another. No one was hurt or suffered any physical injury, though there was some excitement and the natural emotion resulting from the apprehension of imminent danger. Bass did not complain of any injury. He was asked by several of his co-laborers whether he was hurt, and to each of his inquirers he answered that he was not hurt, except that he had jarred his left wrist in averting the shock from the collision. Bass then proceeded to the performance of his duties, worked as usual, and in the afternoon, after completing his day’s labor, he climbed into a caboose behind the train to return home. On the way home while riding the caboose, he lay down on a wooden bench, from which he rolled down to the floor. He was picked up by his companions, who saw and realized that he was in the throes of death, which ensued soon afterward.

The cause of Bass’ death is shown conclusively to have been an acute attack of angina pectoris. The disputed question in the case is whether the angina pectoris was brought on by injury in the wreck of the trailer, which had occurred in the morning, and whether the effect of the wreck contributed at all to his death.

Bass had been suffering from angina pectoris for some time, and had been treated for this insidious affection of the heart, which generally manifests itself by great pain in the chest around the region of the heart. He had often complained of these pains, and all through the day of his death reiterated this complaint to several persons. He smoked cigarettes incessantly, and often indulged in the excessive use of alcoholic beverages, a habit most harmful to a (person in his condition. On the Saturday, or two days preceding his death, he drank shinny, which we understand to mean moonshine, or illicitly manufactured whisky, to such an extent that he was much inebriated. On Saturday night, in answer to a question, he stated that he did not want to go home, and that it was the last place to which he would go. He stayed out all night, and only returned home on Sunday morning. To several persons he appeared to be in an intoxicated condition all day Sunday. It was on the following day, Monday, that he proceeded to his regular duty as an employee of defendant, and that the events first related herein took place.

Such are the facts and circumstances as we gather them, after reading a mass of testimony taken down during the trial of the case.

There were seven physicians or experts who testified. They almost all agree as to the cause of death, hut their opinions differ as to whether the wreck of the trailer had contributed thereto. Dr. Mecom was of the opinion that, if the shock caused by the derailment of the trailer had contributed to the death, Bass would have died immediately at the time of the shock. Dr. Younger thought that the fact that Bass went to work after the wreck, and complained of no injury as a result thereof, eliminates the shock that might have taken place from the wreck, as a contributing cause to the death of Bass. Dr. Brown Word believed that Bass died too long after the wreck for the wreck to have caused death, without there having been some internal injury. Dr. Reiser testified that Mrs. Bass had told him that she expected her husband to die suddenly in one of the heart attacks to which he was subjected, when he was acting as he was at present. Dr. Reiser did not know what Mrs. Bass referred to in using the words, “when he was acting as he was at present.” The only inference is that she meant that he was drinking to excess. Dr. Reiser also was of the opinion that the fear or apprehension of danger, the only shock to which Bass was subjected in the morning, had nothing to do with his death in the afternoon. He thought that death was accelerated by the debauch in which Bass had indulged during the several days preceding death. The other physicians thought that the mental shock might have contributed to the death of Bass. It was also testified by some of the physicians that the fall from the bench in the caboose resulted from the acute attack of angina pectoris, and that death would have come, even if Bass would not have been riding the caboose.

Our conclusion from all of the testimony is that Bass did not die as the result of any injury by accident arising out of and in the course of his employment, hut that he died from a natural cause, or from angina pectoris, which in no manner was produced, brought into action or aggravated as a result' of his employment.

For these reasons, the judgment of the district court is avoided and reversed, and plaintiffs’ demand rejected, at their cost.