text:
    No. 10,699
    Orleans
    MEINE v. MOSSLER AUTO EXCHANGE INC.
    (February 25, 1929. Opinion and Decree.)

      Nicholas G. Carbajal and Prank P. Krieger, of New Orleans, attorneys for plaintiff, appellee.
    Brian and Brian,. of New Orleans, attorneys for defendant, appellant.
   JANVIER, J.

This is a suit for the alleged value of a used car left with a second-hand automobile company for sale and stolen while in its possession.

Heretofore, in the matter entitled Emile L. Meine vs. Mossier Auto Exchange, Inc., 1 La. App. 545, this court passed upon a suit between these same parties, and involving the value of the same car. In that suit plaintiff alleged that he had sold his car to defendant and he sought to recover the ¡purchase price. The proof showed that there had been no sale, but that the car had been left with defendant to be “tried out” and that it was stolen after the trial, but before plaintiff was notified to come and take it away.

In this second suit defendant pleads res judicata, estoppel and the prescription of one year (which plea of prescription, however, has since been abandoned), and on the merits, contends that its only liability is that of a bailee. That it is not an insurer but can only be held for negligence.

The plea of res judicata and the plea of estoppel are based respectively on the decision and on the allegations in the first suit. A reading of the decision in that suit shows that this court did not pass upon the question of whether defendant was liable as bailee and based its refusal to hold defendant liable solely on the ground that a contract of sale was alleged but not proven. This court said:

“But .plaintiff’s counsel argues that the defendant is liable to him as a depository or broker because he failed to take' proper precaution's for the safety of his property. Without discussing the merits of this contention, we observe that it is a totally different cause of action from -that set out in plaintiff’s petition and inconsistent therewith. Plaintiff cannot be heard in argument against his pleadings. Louisiana Digest, Vol. VI, Verbo Pleadings, Par. 11. Having sued on a contract of sale the issue tendered is one of sale vel non and when the evidence showing a totally different situation is presented by way of defense, plaintiff may not shift his position in an effort to establish defendant’s liability upon a different cause of action consistent with the developments.”

Emile L. Meine vs. Mossier Auto Exchange, Inc., 1 La. App. 545.

It is plain, then, that since, in that case, the liability vel non of defendant as bailee was not considered, and since the question of whether or not there is liability as bailee is the only question presented here, the first suit does not constitute res judicata.

It is next urged that plaintiff, having alleged in the first suit that the car was sold to defendant, is now estopped to claim that it was left with defendant to be sold by it as agent. This is a more serious question and, at first glance, would seem to be an insurmountable obstacle in plaintiff’s path.

However, if this plea is good, a very strange and inequitable result might follow. For instance, let us assume that plaintiff left - his car with defendant, believing in good faith that defendant had agreed to buy it. Let us further assume that on failure to receive his money plaintiff brought suit and defendant, as it did here, was able to prove that there had in fact been no sale. Let us assume further that the car had not been stolen but was still actually in possession of defendant. Could defendant in the second suit be heard to say “you cannot sue me again because you guessed wrong the first time, and since you guessed wrong once, I can now keep your car.” We believe that no such result should be allowed and, yet, to sustain the plea of estoppel here would make such a result possible in any similar case.

We think the plea of estoppel should be overruled for two reasons:

First, because the allegations made in the first suit did no harm to defendant and did not lead it into a harmful or damaging attitude, and,

Second, because those allegations were unsuccessfully made.

While the jurisprudence of this State was for some time in an unsettled condition on the question of estoppel, it now seems to be well settled that, if the allegations in the first suit were unsuccessfully made, they do not constitute estoppel. A reading of the later cases, to-wit: Maddox vs. Robbert, 158 La. 394, 104 So. 183, and Farley vs. Frost-Johnson Lumber Co., 133 La. 497, 63 So. 122, indicates that the jurisprudence at the present time is to the effect that unsuccessful allegations do not constitute estoppel. As a matter of fact, we feel that the allegations in the first suit amounted rather to conclusions of law than statements of fact. Those allegations amounted to no more than if plaintiff had said: “I delivered my car to you under circumstances which I believed constituted the transaction a sale.” This court said that those circumstances and actions did not constitute a sale, but a bailment. Can we now say: “Plaintiff, having sued on an alleged sale which we declared to be not a sale, but a contract of bailment, and having lost that suit, we now refuse to let him sue on that contract of bailment”?

Since we are of the opinion that both the plea of res judicata and the plea of estoppel should be overruled, the sole remaining question is whether or not defendant gave to ¡plaintiff’s automobile such care as a prudent administrator would have given it. Was defendant negligent in leaving the car on the street?

It is argued that a great many garages in New Orleans place cars on the streets temporarily at various times during the day. This may be true, but it is equally true that a great many cars are stolen every week and, in fact, every day, and it is no excuse for one who is careless to say that his act does not constitute negligence because others do the same thing. The more prudent garage owners do not leave cars on the streets and those who do must bear the loss resulting from their carelessness.

It is argued that plaintiff can require of defendant no higher degree of care than he himself gave to his own property, and that if he himself was in the habit of leaving his car unlocked on the street, he cannot complain if someone else treats it the same way. This rule, if followed to its logical conclusion, would produce weird results. Under it a plaintiff in a damage suit could not recover if it appeared that he himself were customarily guilty of the same act of negligence with which he charged defendant. He might at the time of the accident be guilty of no negligence at all, but if it could be shown that it was his habit to do the very thing which he complained of, then this habit would prevent his recovery.

Our attention is called to the case of Crescent Forwarding & Trans. Co. vs. N. O. Box Mfg. Co., 6 Oris. App. 412, in which in the syllabus, the Court said:

“In contracts which are reciprocally beneficial to both parties, the same care is exacted of the bailee which every prudent man takes of his own goods. In the action for property thus delivered and not returned, the burden of proof as to the facts which excuse the failure to restore it, lies on the bailee.” ■

It will be noted that the measure of care required is not that which the owner would himself give to the property, but that which a “prudent” man would take of his own property.

We are unable to follow the argument of defendant that there is a distinction, so far as .the city ordinance referred to is concerned, between storing a car on the street and temporarily placing a car on the street, but regardless of the ordinance, we believe that the leaving of a car on the street, unlocked, is negligence, and that the person who leaves it there should be held responsible to the owner. As this court said in a similar case, Steinel vs. Fagot, 13 Oris. App. 201: “It is negligence to store an automobile in the street without any watchman to attend it.”

It appears from the evidence that the plaintiff was willing to sell the automobile for $450.00 and the judgment of the lower court was in his favor for this amount. There is no evidence that it was worth less than this.

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


source: Caselaw Access Project

author: JANVIER, J.

license: Public Domain

text:
    No. 11,653
    Orleans
    JACOBS v. GRASSHOFF
    (February 11, 1929. Opinion and Decree.)
    Arthur J. Ryan, of New Orleans, attorney for plaintiff, appellant.
    McLoughlin and West, of New Orleans, attorneys for defendant, appellee.
   JANVIER, J.

Plaintiff, a real estate agent, was employed to sell certain real estate.

He claims that he obtained a purchaser and this suit is for his commission. It is his contention that the sale was not consummated because his client’s title was not merchantable and that for that reason the purchaser refused to accept it and that as the defect in the title is not chargeable to him he, having fully performed his obligation under the contract, is entitled to his stipulated commission.

No suit for specific performance was filed. Had one been brought, the question of the validity of the title would have been determined in that suit. It cannot be decided by us now. Title examination is work to be done by attorneys and not by courts.

The truth is that a suit for specific performance was- not brought because none would lie under the contract which plaintiff obtained.

In that contract we find the following condition:

“Balance through Homestead Loan Guaranteed.”

It has been held repeatedly that a real estate contract Which contains the stipulation “balance through homestead” or any similar phrase is unenforceable because of the potestative condition. Titus vs. Jackson et al., Y La. App. 37:

“A contract to buy and sell real estate, under which the buyer agrees to buy subject to homestead loan enables the buyer to prevent or hinder the happening of the event upon which his obligation depends, and is therefore void as containing the potestative condition.”

Parks vs. Cillufa, 7 La. App. 749:

“A promissory note which has for its consideration the payment of a deposit to bind a sale made ‘for cash through homestead’ is null and cannot be enforced by the original holder, when the sale has failed.”

We are asked to distinguish this case on the theory that here the words “Loan guaranteed” removed the uncertainty which the words “balance through homestead” ordinarily import.

We do not see the distinction. If the purchaser intended to convey the fact that he had already arranged for a homestead loan, there was no necessity to insert any condition in the contract.

Surely his purpose in putting the condition in was to reserve to himself a way out if no loan could be obtained. What the words “loan guaranteed” meant in this case we cannot say, unless the purchaser intended to lead the vendor to believe that he need not worry about the other part of the condition. In other words, it seems that the purchaser intended to say: “I will buy your property if I can get a homestead loan and I feel sure that I can get such a loan because one has been offered me.”

If that was what he meant, the fact that he inserted the condition into the contract shows, as we have said, that he wanted a way out if necessary , and hence the contract was not unconditional, but depended on the will of others, and it was also within the power of the buyer to nullify the contract by not applying for Lhe loan.

That the purchaser’s intention was to save to himself a way of escape and that thus a contract like this is unenforceable was recognized by plaintiff himself when he testified, on page 4:

“I told her the purchaser has a right to go where he wants, it is beyond my control, that is the reason why a contract of this sort is invalid.”

We cannot escape the conclusion that the contract which plaintiff obtained was unenforceable and that therefore plaintiff is not entitled to his commission.

“A real estate broker does not earn his commission for procuring a sale of property by obtaining for the owner a mere executory agreement, not specifically enforceable.”

Haight vs. Marrero Land & Improvement Ass’n, 12 Orleans App. 369.

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


text:
    No. 10,484
    Orleans
    WUERTZ v. LIFE & CASUALTY INS. CO. OF TENNESSEE
    (January 21, 1929. Opinion and Decree.)
    A. J. O’Keefe, Jr., of New Orleans, attorney for plaintiff, appellee.
    Fred C. Querens, of New Orleans, attorney for defendant, appellant.
   JANVIER, J.

Plaintiff sues for the return of $517.80 paid to defendant through Victor G-. Pox, who, according to plaintiff, was an agent of defendant for the solicitation of insurance and for the receiving of premiums therefor. The policy for which the amount mentioned was paid was never issued. Defendant refuses to return the money, claiming that Fox was not its agent and had neither actual nor apparent authority to receive payments for it.

Defendant strenuously urges us to exclude the testimony of plaintiff’s wife, arguing that a wife is not a competent witness for or against her husband nor for or against the community. Many cases are cited, but we note that all to which our attention is directed were decided before the passage of Act 157 of 1916. Since that Act was passed there can be no doubt that the wife is a competent witness for or against her husband or for or against the community.

That Fox originally was fully authorized to receive (payments for defendant is conclusively shown by the fact that he was given printed application forms to which were attached printed forms of receipt. The receipt for the first payment was on one of these and was signed by Fox as agent for the Company.

Since the defendant put into Fox’s hands its printed receipts it cannot now be heard to say that Fox had no authority to issue those receipts. As between the Company and Fox, he may be liable to the Company for exceeding its actual authority but as between the Company and plaintiff the fact that it put into Fox’s hands documents which gave him apparent authority to receive payments for the Company is sufficient to render it liable for the return of such sums as -were wrongfully collected.

As to the two amounts paid in August, 1923, there can be no doubt as to the Company’s liability. It is argued, however, that as the last payment was made in May, 1924, about nine months after the policy was applied for, and, as no policy had issued, plaintiff should have made inquiry as to the authority of Fox to receive this last payment as agent for the Company.

Had the last payment been for a new policy or on a new transaction probably such dealing^, so far as the Company was concerned, would have been at (plaintiff’s risk, but, as we view the evidence, this last payment constitutes merely the completion of a deal which Fox had authority to commence, and, therefore, in the absence of knowledge in plaintiff to the contrary, to. complete.

It is claimed that a letter was mailed to plaintiff notifying him that Fox was not authorized to collect for the Company. Plaintiff denies receiving this letter and defendant’s proof in this regard is not convincing.

The Company contends that, as the application for the insurance was executed by the wife, and as the husband did not establish that he had authorized the wife to execute the application and to make the payments with his funds, he should not be allowed to maintain this action. Such a defense is not available to the Company which made no protest when the application reached it, but on the contrary by letter acknowledged receiving it and thanked the applicant for it. On the whole we believe that whether or not the Company actually received the premiums is of no importance now. The premiums were paid to one- apparently having authority to receive them, and as we have stated, it was the action of the Company which gave him this apparent authority.

It is therefore ordered that the judgment appealed from be affirmed at the cost of appellant.


text:
    No. 11,297
    Orleans
    HANDY v. N. O. PUBLIC SERVICE, INC.
    (February 11, 1929. Opinion and Decree.)
    (February 25, 1929. Rehearing Refused.)
    (March 26, 1929. Decree Supreme Court,. Writ of Certiorari and Review Refused.)
    Henry W. Robinson, of New Orleans, attorney for plaintiff, appellant.
    B. W. Kernan and Ivy G. Kittredge, of New Orleans, attorneys for defendant, appellee.
   JANVIER, J.

This suit results from an accident in which a street car of defendant knocked down plaintiff, an old gentleman in his eighty-fourth year. The accident occurred on September 16, 1926, a few minutes after 3:00 o’clock in the afternoon, on the river side street car track at the corner of Burdette Street and St. Charles Avenue.

Plaintiff’s injuries consisted of general contusions to the body, knees, elbow and face. There was a rather serious cut in his thigh, and, on account of his age, his injuries were considered quite serious by the physicians, who, for a time, were of the opinion that his ultimate recovery was doubtful. He did recover, however, although his nervousness continued, and his general mental condition was never again what it had been prior to the accident. The trial court rendered judgment for defendant and from this judgment plaintiff has appealed.

Since the trial below plaintiff has died and his widow, having succeeded to his rights in this suit, has, on proper motion, been made party plaintiff.

Plaintiff charges that defendant was negligent in three particulars:

First: That the street car was not equipped with a fender in accordance with Act 119 of 1912, which requires of street and interurban lines “to equip the front end of all motor cars with fenders for the protection of life and limb”;

Second: That the street car stopped just before crossing Burdette Street, which led plaintiff to believe that it was safe for him to cross, and that it then started again and ran him down before he had crossed;

Third: That, after the car started, it could have been stopped in time to avoid striking plaintiff, had the motorman been exercising due care, or had he been properly diligent.

Defendant contends that the fender with which the car was equipped was required by a city ordinance of 1920, and that it also complied with the requirements of Act 119 of 1912; that plaintiff had stopped just before reaching the track, and that, as the motorman was sounding his gong at the time, he, the motorman, was justified in assuming that plaintiff heard or saw the car coming. Defendant contends that at the last moment plaintiff stepped from his position of safety directly into the path of the oncoming' car.

Before entering upon a discussion of the question of the violation vel non of the fender statute and the legal consequences of such violation, if, in fact, there was one, let us see what other acts of the parties may haye contributed to or had some causal connection with the accident.

It seems quite evident that the motorman had been ringing his gong just prior to the accident. It is true that ‘ some of the witnesses do not remember having heard it. This is natural and usual. As was said in Bihm vs. N. O. Texas & Mexico Ry. Co., 6 La. App. 655:

“People not engaged in the operation of trains, but living near crossings over which fast trains daily pass, become so accustomed to the whistling, and the ringing of the bell, that ordinarily, unless purposely listening, they pay no attention to such things and do not consciously hear them.”

That a witness does not remember having heard a bell or . a whistle is rather negative than positive testimony, and its effect is easily overcome by direct, positive testimony of other- witnesses, who, for good reasons, may have had the sounds in question forcibly impressed upon their recollections. Such positive testimony is given by nearly all those witnesses who were passengers in the car, and who state that their attention was first directed to the imminence of an accident by the violent ringing of a gong.

It is, however, of no great importance to determine whether the gong was ringing, because the only purpose of the gong is to warn the absent-minded or careless person of the approach of a car, and plaintiff himself states positively that he saw the car and knew how near it was.

That the speed of the car was moderate is proven by the fact that it stopped only five or six feet after striking plaintiff. In fact, he was struck on the foot-path on the lower side of the crossing and the car stopped with its rear end blocking most of the 'street.

If, then, the car was coming slowly and with the gong sounding, and if, from plaintiff’s actions, the motorman could see that plaintiff was aware of the proximity cf the car, what more could the motorman have done? Plaintiff had been standing still in a safe place and had been lpoking at the approaching car. Why should the motorman expect him to cross immediately in front of it?

Plaintiff’s contention that the car had stopped so that he might cross ahead of it is not borne out by the testimony. No witness but plaintiff himself states that it stopped. The principal witness produced by him, Mrs. Davenport, testifies that the car did not stop, but that it slowed up.

It seems very clear that what actually happened was that this old gentleman was standing between the two tracks, looking at the approaching car, when Mrs. Davenport, who had been coming along behind, reached him. She and he chatted for a moment standing on the foot-path between the two car tracks. They both testify to this. She being younger and more active, and realizing that she could cross "in front of the car, “skipped” across. At this time he was standing still, looking at the approaching car, and induced apparently by her actions to believe that there was time to cross, attempted to follow her. It was then too late. Mrs. Davenport’s testimony leaves us convinced that the actual facts were as we have set them forth above. On page 16 she said:

“Q. While he was standing in this stop (spot), I suppose he must have stood there for some appreciable time?
“A. He stood there long enough for me to pass him and tell him good evening.
“Q. And he stood there from the time it took for you to walk approximately half way across the roadway across St. Charles Avenue to reach him?
“A. Yes, sir; that’s how long he stood there.
“Q. When you passed him, where was • the street car then?
“A. The street car had just started to come.
“Q. It had started across the roadway of Burdette Street?
“A. Yes, sir; it was not in the middle of the street.
“Q. But it was crossing Burdette Street?
“A. Yes, sir.
“Q. I suppose you hurried up a little bit?
“A. Yes sir; I almost ran across, to make it over.”

She had previously stated on page 12 of her testimony, in answer to the question as to whether she called plaintiff’s attention to the fact that the street car was coming:

“A. No, sir; I did not expect him to follow me. After him stopping before the street car, I did not think he would cross, so I ran on across.”

Plaintiff claims that he gave a signal to the motorman that he intended to take the car. The testimony on this point, however, if it has any bearing on the case, is conflicting, and it appears that what plaintiff did was to put his hand to his hat. All witnesses who saw him so testify. We do not see that such an action on his part could be calculated to warn the motorman that he intended to cross in front of the car. On the contrary, when a person stands near a moving train or street car and knows that the train or street car is going to pass him, he usually instinctively clutches his hat so that the wind created by the movement of the car may not blow it off his head. So that, if plaintiff’s action in this regard has any bearing on the matter, it seems to us that it rather tends to create an additional reason for justifying the motorman in his belief that plaintiff was going to remain stopped and allow the car to pass.

It appears also that plaintiff had lost the use of one eye and it is possible that this fact may to some extent have interfered with his properly judging the speed of the approaching car. Persons having such deformities are bound to exercise unusug.1 precautions in a dangerous situation because those operating automobiles, street cars, or other vehicles are justified in assuming that persons crossing tracks and streets are in the full possession of their faculties:

“The driver had a right to presume the person sound of hearing, and that she would exercise her senses so as to avoid an accident, by stopping in time to let the mule and car pass freely.”
Schulte vs. Railroad Co., 44 La. Ann. 509, 10 So. 811.

For the reasons we have given we are unable to hold defendant liable, unless such liability can be held to result from the alleged violation of Act 119 of 1912, and even if we felt that there was such a violation, which we do not, we could not hold defendant liable unless the violation was a contributing cause to the accident or increased the seriousness of the result.

It is argued that as the fender on this car was under the front end of the car, the statute was not complied with. The evidence shows conclusively that the type of fender in use was much safer and better in every way than the old type of basket fender which extended ahead of the car.

It is also argued that defendant cannot be allowed to violate a statute of this kind and escape liability on the plea that it has substituted for the device required some other device which, in its judgment, is better. This is true, and if we felt that the statute had been violated and that that violation had any causal connection with the accident, or with the seriousness of the result, we would find ourselves under the necessity of holding defendant liable because of 'the violation.

We feel, however, that the fender in use did not increase the seriousness of the injuries and in fact had no causal connection with the accident and, finally that, as a matter of fact, the fender as used complied in all respects with the statute of 1912.

The statute provides:

“Sec. 1.—Be it enacted by a general assembly of the State of Louisiana that it shall be the duty of every street railroad or interurban railroad or other firms or persons operating any line of street or interurban railroad in this State to equip the front end of all motor cars with fenders for the protection of life and limb, six months after the passage of this Act.”

It is argued that this statute requires that a fender project from the front of each car. In construing a statute of this kind, it is necessary to keep in mind the purpose intended by the Legislature to be served. Certainly it was not intended to prevent the body of the car from striking a pedestrian, but to prevent the wheels and running gear Irom doing so. The fender contended for by plaintiff was constructed on the front and rear and on its sides of a very heavy iron pipe, which, if it projected from the front of the car, would cause injuries as serious as would the body of the car itself. Therefore, we believe that the words “to equip the front end” mean to equip that part of the front end which is in front of the dangerous portion, against which protection is needed.

Plaintiff argues that the fender in question did not work and that but for ths mere chance that the car stopped in time, the body of plaintiff would have been ground to pieces under the wheels. We do not think that the evidence shows this, and we feel that the statements in this regard were made as a result of a misunderstanding of the operation of the fender. The true fact seems to be that when plaintiff was picked up he was lying under the trip or trigger part of the fender and that his having struck that was what caused the fender, which was between him and the wheel, to drop, and to protect his body from. the wheels.

In conclusion, it seems to us that the Railway Company did everything that was required of it by ordinance, by statute and by common prudence, and that the sole and only cause of the unfortunate accident was the mistake in judgment on the part of plaintiff himself.

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

WESTE’RFIELD, J., dissents.


author: JONES, J.

text:
    No. 10,683
    Orleans
    W. H. HODGES & CO., INC., v. RITTER
    (February 25, 1929. Opinion and Decree.)
    Prowell, McBride & Ray, Walton P. Mouton, of New Orleans, attorneys for plaintiff, appellant.
    John C. O’Connor, of New Orleans, attorney for defendant, appellee.
   JONES, J.

This is a suit for $775.00, with interest and attorney’s fees, on the following five promissory notes, all signed by the defendant and all endorsed by E. B. Avegno & Co., Inc. :■*

One note in the sum of $375.00, dated March 2, 1925, payable three months after date (June 2, 1925), to the order of E. B. Avegno & Co., Inc., with 8% interest from date until paid.
One note in the sum of $100.00, dated November 6, 1924, payable five months after date (April 6, 1925), to the order of E. B. Avegno & Co., Inc., with 8% interest from date until paid.
One note in the sum of $100.00, dated November 6, 1924, payable six months after date (May 6, 1925), to the order of E. B. Avegno & Co., Inc., with 8% interest from date until paid.
One note in the sum of $100.00, dated November- 6, 1924, payable seven months after dated (June 6, 1925), to the order of E. B. Avegno & Co., Inc., with 8% interest from date until paid.
One note in the sum of $100.00, dated November 6, 1924, payable eight months after date (July 6, 1925), to the order of E. B. Avegno & Co., Inc., with 8% interest from date until paid.

The petition makes the usual allegation that plaintiff is a holder in due course for valuable consideration, that all the notes are long past due and nothing has been paid thereon.

Defendant answered, admitting her signature to the notes and pleading payment.

The trial judge maintained the defense, dismissed the suit, and plaintiff has appealed to this court.

The record shows the following facts:

Defendant, who is engaged in the dairy business in this city, gave these notes to E. B. Avegno & Co., Inc., who operated a live stock commission business, in payment for cows which she had purchased from them; as she is ignorant of business matters, she leaves the greater part of the management of the finances of her business to George Beverung, who is so ignorant that he cannot read at all and can barely write his name. Defendant delivered the notes herein sued on to Clyde H. Hodges, (a brother of W. H. Hodges, president of plaintiff company) an officer of Avegno and Company who formerly acted as collector for his firm, but was charged on June 2, 1925, by E. B. Avegno, president of the company, with having forged a note on the 11th day of March, 1925, and subsequently became a fugitive from justice, with large defalcations charged to him; defendant and her manager, Beverung, both testify that they paid the notes in this case, and in proof of their allegations they offered in evidence the following receipts:

Date How Identified Amount

December 3, 1924____________D-l $ 90.00

February 2, 1925____________D-2 150.00

February 4, 1925________________D-3 132.51

February 5, 1925_______________D-3 17.50

March 17, 1925____________________D-4 85.00

January 13, 1925________________D-5 165.00

April 13, 1925____________________D-6 75.00

April 9, 1925______________________D-7 75.00

June 1, 1925________________________D-8 50.00

June 8, 1925 ..............._.A..D-9 50.00

The first four of these receipts were signed by Clyde H. Hodges, the next two by Brown, an employee of the Avegno Company, the following two by J. T. Hodges, assistant bookkeeper of plaintiff company and the last by W. H. Hodges, president of plaintiff company. They further testify that they trusted Clyde H. Hodges implicitly, and frequently paid sums on notes to him before the notes fell due, upon his promise to bring the notes later. Though she had only made a few payments herself, she testified that she was frequently present when payments were made by Beverung, and Beverung, who, in spite of his ignorance, seems to have been fairly clear-headed and to have had a good memory, testified that he paid Clyde H. Hodges on the notes in suit nearly $300.00 within one week, and at another time $165.00, about three o’clock in the morning when Clyde Hodges had come up, along with Brown, plaintiff company’s bookkeeper, to the dairy and begged him for money to meet an overdraft at the bank. These statements of Beverung are confirmed by the receipts. Defendant and Beverung also testify that they had had no connections whatever with the plaintiff in this case until some time in April, 1925, but they had dealt consistently up to that time with Clyde Hodges, the collector for E. B. Avegno and Company, who repeatedly promised to deliver these notes, but failed to do so in spite of many demands.

W. H. Hodges, the president of plaintiff company, testified that they had purchased the first note sued on from Avegno and Company on March 11, 1925, and the other notes, along with four similar notes, all dated November 6, 1925, payable one, two, three and four months after date to Avegno and Company, the series of eight notes having been given in payment for one lot of cattle; -that Avegno and Company, presumably through Clyde Hodges, their collector, collected some of the money due on the notes held by them and turned the amount in to them.

Plaintiff introduced in evidence carbon copy of a letter dated April 20, 1925, from plaintiff to defendant, in which the former advises defendant that it was holding the notes herein sued on, and request was made for prompt payment. The last sentence in this carbon copy reads as follows:

“In case you would prefer, we will have our collector to call and he will have a written order authorizing payment to him.”

Across the front of this copy of letter is written in lead pencil: “Miss M. Ritter.”

When questioned about this letter Beverung said that J. T. Hodges, the bookkeeper for plaintiff, and the defaulting collector, Clyde Hodges, had come up to the dairy late one night with this letter and told him that he must not pay any more money to Clyde and that they wished to get defendant to sign her name on this letter; that he accordingly, without knowing what the letter contained, had waked up Miss Ritter and had her sign her name in lead pencil across it. In this statement he is confirmed in every detail by Miss R'itter and partially by J. T. Hodges, who admits that he went up to the defendant’s place of business with Clyde Hodges on that date and had her sign the letter. When asked why the last sentence was put in the letter, he says that “they could not understand why we were collecting these notes.”

The evidence shows that the last two. receipts for $50.00 each were given in payment of a note which fell due March 6, 1924, and yet, strange to say, this note was not included in the list of notes due when this letter was written, April 20, 1925.

Lacrouts, a dairyman, who is a close neighbor of defendant and owned the building in which she was doing business, testified that he had bought some cows from Avegno and Company and given a note in payment; that shortly thereafter Clyde Hodges had begged him to pay the note and he had given him the money upon Clyde’s giving him a- receipt for the amount and promising to bring the note shortly thereafter; that Clyde had failed to bring the note during the next ten visits and only by the most persistent effort did he finally secure the note. Some time after he succeeded in getting the note, W. H. Hodges, the president of the company, had called at his place and demanded to receive the receipt and the note.

In the course of his able opinion the trial judge aptly uses the following language in referring to this instance:

“Lacrouts’ testimony, in my belief, is absolutely true, that he had a note made out to Avegno & Company, it is true, but so are all of these notes made out to Avegno & Company; that Clyde Hodges collected the amount and gave a receipt for it, promising to surrender the note, and only after long delays and repeated demands on the part of Lacronts, did Lacrouts get the note. He then testified that Mr. J. T. Hodges came to him, demanding to see the receipt and the note. Now, as Clyde Hodges had collected the nioney, if Hodges & Company had no interest in it, why was J. T. Hodges going to Lacrouts to find out about the transaction? When Lacrouts left the stand I expected that, instanter, J. T. Hodges would be called to- the stand to explain. The failure of the plaintiff to call him to the stand to explain Lacrouts’ testimony, in my opinion, is damning to the case.
“I am satisfied that Clyde Hodges did collect the amounts of those notes for the account and benefit of W. H. Hodges & Company, and with their full knowledge and consent, thereby creating him their agent. I would not have believed it had not it been for Lacrouts’ testimony, and the failure to have J. T. Hodges explain it. I consider the fact that J. T. Hodges was not put upon the stand to rebut Lacrouts’ testimony, either as being the truth, or to explain it away in rebuttal, as damning to the plaintiff’s case.”

Plaintiff’s able attorney in this court argues strenuously that the testimony of defendant and Beverung should not be believed because the last two receipts, dated June 1st and June 8th, 1925, are shown to have represented payments on a note which fell due March 6th, and it is hardly probable that they would have made payments as shown by the receipts on notes not yet due, when they owed this note already past due. However, the record convinces us, as it did the trial judge, that both defendant and Beverung were so ignorant about business transactions that they were just as likely to have paid on a note not yet due as on one already matured, for they seem to have had implicit confidence in Clyde Hodges, and to have fully believed him when he promised to deliver the notes.

Miss Ritter freely admits that she knew vsry little about the different notes and in fact did not know or understand how many paid notes she had in her possession.

This seems to us preeminently a case for the application of the well known rule that the decision of the trial court will not be reversed on a question of fact unless there is manifest error in its conclusion.

As we have studied the record thoroughly, and find no error, the judgment is, therefore, affirmed.


text:
    No. 10,682
    Orleans
    OPPENHEIMER v. BOBB
    (February 25, 1929. Opinion and Decree.)

      Milling, Godchaux, Saal & Milling, Leon H. Rittenberg, of New Orleans, attorneys for plaintiff, appellant.
    Bond, Curtis, 'Hall and Foster, of New Orleans, attorneys for defendant, appellee.
   JONES, J.

Plaintiff sued defendant on December 1, 1925, for $570.00 alleged to be due under a contract, the pertinent parts of which read as follows:

“The following ‘Agreement’ or ‘Contract’ is made between Fred Oppenheimer of New York City, party of the first part, and Julian S. Winehill, M. A. Sherick, W. F. Williams and Wm. P. Bobb, all of the city of New Orleans, La., parties of the' second part.
“Clause No. 1: Fred Oppenheimer, party of the first part, agrees to sell, assign, transfer and deliver to Julian S. Winehill, M. A. Sherick, W. F. Williams and Wm. P. Bobb, parties of the second part, the formula now known as Polly Klean together with all information and data necessary for its manufacture, for and in consideration of One Thousand Dollars of Preferred (7%) ' Stock in the Standard Manufacturing Co., Inc., of New Orleans, La.
“Clause No. 2: Julian S. Winehill, M. A. Sherick, W. F. Williams and Wm. P. Bobb, parties of the second part agree to guarantee for a period of Ten (10) years to Fred Oppenheimer party of the first part, seven per cent (7%) annually on the One Thousand Dollars of Preferred Stock in the said Standard Manufacturing Co., Inc., in lieu of no dividend being declared on said Preferred Stock in the name of Fred Oppenheimer party of the first part.
“Clause No. 3: Fred Oppenheimer, party of the first part', further agrees to accept and the parties of the second part agree to pay at the expiration of Ten (10) years from date of this agreement, or such time before that, that the said Julian S. Wine-hill, M. A. Sherick, W. F. Williams and Wm. P. Bobb, parties of the second part may offer, a cash payment of Two Thousand Dollars for which Fred Oppenheimer, party of the first part, agrees to surrender the One Thousand Dollars of Preferred Stock in the Standard Manufacturing Co., Inc., of New Orleans, La., together with all rights, and claims that the said Fred Oppenheimer may have in the said Standard Manufacturing Co., Inc., and the said formula known as Polly Klean.”

After alleging delivery of the formula, plaintiff states that no preferred stock in the Standard Manufacturing Company had ever been delivered to him, and that said stock was worthless as the company had been liquidated. Of the amount demanded, $500.00 is claimed as one-fourth of the principal sum which the four obligors had promised, and $70.00 is claimed as interest due from December 9, 1920, up to December 9, 1924, the interest up to the former date having been paid, according to allegations, under a judgment between the same parties in suit No. 136,971 of the Civil District Court, Parish of Orleans. To this petition defendant filed the following exceptions:

“And now into Court through his undersigned counsel comes William P. Bobb, and excepts to plaintiff’s petition on the ground that same discloses the same parties, the same cause of action and the same thing demanded as were involved in the proceeding entitled Fred Oppenheimer versus William P. Bobb, No. 157330 of the docket of the Honorable Court; that in said proceedings there was a judgment in favor of defendant, exceptor herein, dismissing plaintiff’s suit; that said judgment was rendered on May 11, 1925, and has never been appealed from, and respondent pleads same as res adjudicata of the issues involved herein.
“In the alternative, respondent excepts on the ground that plaintiff’s petition discloses no cause or right of action.
“Wherefore, respondent prays that these exceptions be maintained and plaintiff’s suit be dismissed at his cost.”

The trial judge, without passing on the former, maintained the latter exception and dismissed the suit. Plaintiff has appealed and defendant has answered the appeal asking that the exception of res adjudicata be maintained in this court.

Attached to the record in this case is the record in suit No. 157,330 of the docket of the Civil District Court between the same parties referred to in the exception. Objection is made to our consideration of this record because it was not offered in the court below.

This objection is answered by the statement that such offer was unnecessary, as each division of the Civil District • Court takes judicial notice of all the records filed in the other divisions, all being branches of one court. Plowever, we do not find it necessary to' pass upon this point, as the decision of the trial judge on the exception of no • cause of action is sustained by the record.

.plaintiff states that the guarantee of dividends is to take effect from the date of issuance of the preferred stock, and, as no stock was ever issued, or issuance thereof demanded by Oppenheimer, the guarantee never came into being. If Bobb had ever done any act which prevented the issuance of this stock, or if Oppenheimer had ever demanded it, ■ the situation would have been different, but there is no such allegation here. This petition was very carefully drawn and presumably contained every possible allegation on account of dismissal of the former suit by Judge Parker, who maintained a like exception.

Furthermore, if Bobb breached his contract by failing to deliver the stock, his breach was passive only, and the allegation of a putting in default was absolutely necessary:

Revised Civil Code, Articles Nos. 1906, 1910, 1912, 2122, 2126.

Pratt, vs. Craft, 19 La. Ann. 130.

Hart vs. Adler, 19 La. Ann. 302.

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

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

Darragh vs. Vicknair, 126 La. 171, 52 So. 264.

Blodgett Const. Co. vs. Board of Commissioners, 153 La. 623, 96 So. 281.

The obligation of Bobb and his associates was to pay 7% on the stock if no dividends were declared on it, but there is nothing in the petition to show whether or not dividends have ever been declared. The only allegation is that the stock was worthless (some eleven years later, when petition was filed). In order for plaintiff’s claim for the repurchase price to be valid, he must allege willingness on his part to deliver the stock, or show some just reason for his failure to do so.

Clearly, this is not a case arising from insufficiency of allegation, and it would serve no. useful purpose to remand the suit, as the same claim has already been before the court in two different suits.

In argument, plaintiff’s attorney admitted plaintiff had stated all that he could possibly state to set out his cause of action, and it would serve no useful purpose to remand the case for further amendment.

For above reasons the judgment is affirmed.


text:
    No. 10,562
    Orleans
    McGILL v. URBAN
    (February 11, 1929. Opinion and Decree.)
    Stafford and Robinson and D. Wendling, of New Orleans, attorneys for plaintiff, appellee.
    D. H. Theard, of New Orleans, attorney for defendant, appellant.
   JONES, J.

This is a suit for $500.00 damages for slander of title to two lots on Barrett Street in this city.

After alleging that he had acquired the property by duly recorded authentic act on May 17, 1924, from Mrs. Mary Ann Fleming, then wife of Michael Wall, plaintiff averred that he had been in continuous possession since his purchase, but defendant was slandering, and had slandered, his title by registering in the conveyance office of this city, an affidavit claiming partial ownership- of the said property as a forced heir of Michael Wall.

The defendant answered, denying the damage, possession, etc., but averring that she was one of the four children of the deceased Michael Wall and was entitled to one-fourth of this property as a portion of his estate.

The trial court dismissed the claim of defendant and ordered the cancellation of the inscription in the conveyance office, but gave no damages, as none were proved.

The evidence in the case shows that on December 13, 1903, during the marriage of. Michael Wall and Mary Ann Fleming, the property here in controversy was purchased in the name of Mrs. Wall, that defendant is one of Michael Wall’s four children by a previous marriage, that Michael Wall died on March 22, 1918, leaving a notarial will which had never been probated, and that plaintiff purchased the property from Mrs. Wall, as set forth in his petition, for $1,000.00 cash, and had been collecting rents therefrom at the rate of $15.00 per month since his purchase; that in the notarial act of purchase by Mrs. Wall which is signed by the husband, the following words were used:

“That the funds representing the purchase price herein are her separate and paraphernal funds entirely under her control, and she therefore claims the above described property as her separate and paraphernal property.”

Michael Wall had been a pressman at the Daily States in his earlier years and later on had been a watchman, but nothing is shown as to the amount of his salary in either capacity.

There is no evidence whatever tending to show that Mrs. Wall ever had any paraphernal funds except as shown in the will referred to below.

On the trial of the case plaintiff offered in evidence a certified copy of a nuncupative will by public act of Michael Wall. This document was objected to on the ground that it had never been probated or proved, and therefore had no effect as a will, but this objection was apparently overruled, as the will has been brought up with the record.

Although this document has no value as a will, because it has never been probated, it has 'some evidentiary value, because it shows the declaration by authentic act of the husband with reference to this property. It contains the following paragraphs:

“To my third wife, Mary Ann Fleming, I was married under the regime of the community of acquets and gains, and I have no property other than the residence in which I live, on Barrett Street.
“The lots on which said residence was erected were bought with three hundred dollars donated to my wife, Mary Ann Fleming, before her marriage, and the community is therefore indebted unto her for that amount.”

As the husband here distinctly declares that the property is community property, and as the wife has made no proof whatever of the paraphernality of the funds, the claim of defendant should have been recognized.

In the case of Commercial Trust & Savings Bank vs. Widow Emile Thorengen et al., No. 8097 (unreported) of this Court, it was said:

"The defendant argues very correctly that notwithstanding the fact that the title to the property was taken in the name of Odelle Borda, wife of Emile Thorengen, the burden of proof was upon 'her and her heirs to establish dehors the act that the property was hers for having been purchased with her own separate and paraphernal funds under her separate administration.” Citing:

Civil Code, Arts. 2399-2402.

Bachino vs. Coste, 35 La. Ann. 570.

Duruty vs. Musacchia, 42 La. Ann. 357, 7 So. 555.

Succession of Coste, 43 La. Ann. 144, 9 So. 62.

Widow of Chas. Rouyer vs. Chas. Carroll, 47 La. Ann. 768, 17 So. 292.

Pior, tutor, vs. Giddens et al., 50 La. Ann. 216, 23 So. 337.

Succession of Rogge, 50 La. Ann. 1220, 23 So. 933.

Knight et al. vs. Kaufman & Meyer et al., 105 La. 35, 29 So. 711.

Succession of Burke, 107 La. 82, 31 So. 391.

Fortier vs. Barry, 111 La. 776, 35 So. 900.

Succession of Graf, 125 La. 204, 51 So. 115.

Clarke vs. Lassus, 128 La. 919, 55 So. 576.

Latour vs. Guillory, 130 La. 571, 58 So. 341.

See, also:

Knoblock vs. Posey, 126 La. 610, 52 So. 847.

Rousse vs. Wheeler, 4 Rob. 114.

Smalley vs. Lawrence, 9 Rob. 210.

Dominguez vs. Lee, 17 La. 300.

Barber vs. Thomas, 4 La. App. 631.

Hanna Motor Co. vs. Williams, 6 La. App. 181.

Fortson vs. Moseke, 7 La. App. 131.

We might quote numerous other authorities on this point, but we think that the principle therein cited is so deeply imbedded in our jurisprudence as to need no further citations.

In his brief, attorney for plaintiff quotes the cases of Gonsoulin vs. Sparrow, 150 La. 103, 90 So. 528, and McDuffie vs. Walker, 125 La. 152, 51 So. 100, which hold that innocent third parties who deal on the faith of public records are protected thereby.

It has been repeatedly held by the appellate courts of this state that tlie acquisition of property by a married woman during the marriage, where the act recites that she purchases with her separate and paraphernal funds, is an exception to the above rule.

As plaintiff has entirely failed to prove in this case the paraphernality of the funds, and as the document offered by plaintiff himself tends to show that the property was community property, the judgment must be reversed.

In this court plaintiff has filed a plea of ten and twenty years’ prescription on the theory that he and his ancestor in title, Mrs. Wall, had been in undisputed possession of the property for more than twenty years prior to the filing of this suit, under a title as owner legal and sufficient to transfer property.

This plea cannot avail because plaintiff can only claim for himself from May 17, 1924, and this suit was filed on December 4, 1924. Mrs. Wall, during her marriage, could not prescribe against the community, as the title in this case, although in her name, was under the law a community title and the property was presumed to belong to the community.

For above reasons the judgment appealed from is reversed, and it is now ordered, adjudged and decreed that there be judgment in favor of Mrs. O. Urban, recognizing her as the owner of one-twelfth of the property on Barrett Street, described as follows:

“Two certain lots of ground, with improvements thereon, and all the rights, ways, privileges, servitudes and advantages thereunto belonging or in any wise appertaining, situated in the Sixth District of this city, in Square No. 710 (formerly Square No. 114 of Avart) bounded by Barrett, Peters, Robert Streets and the line of separation between the Faubourg Avart and Rickerville, designated as Lots Nos. 17 and 18; said lots adjoin each other and measure as follows, to-wit: Lot No. 17 measures thirty feet front on Barrett Street, by a depth and front on the line of separation between the Faubourg Avart and Rickerville of one hundred and fifty-one feet between equal and parallel lines. Lot No. 18 measures thirty feet, nine inches and seven and 3/8ths lines front on Barret Street, twenty-eight feet, four and l/3rd lines in width in the rear, by a depth on the side line dividing it from lot No. 17 of one hundred and fifty-one feet and a depth on the opposite side line and dividing it from lot No. 19 of one hundred and fifty feet, ten inches; as the whole will appear by a sketch annexed to the sale made to Niles A. Schomback from Geo. W. Henry, per act “before Ernest Commagere, Notary, on September 14, 1896.”


text:
    No. 10,440
    Orleans
    VIOLA v. CONVERY
    (November 26, 1928. Opinion and Decree.)
    (February 4, 1929. Rehearing Refused.)
    (January 26, 1929. Decree Supreme Court, Writ of Certiorari and Review Denied.)
    Geo. Piazza, of New Orleans, attorney for plaintiff, appellee.
    McCloskey and Benedict, of New Orleans, attorneys for defendant, appellant.
   JONES, J.

In this proceeding plaintiff sues her husband’s landlord for personal injuries in the sum of $10,160.00, alleged to have been caused on January 31, 1920, at 1122 Tchoupitoulas Street, by a 15-foot fall from the back gallery of the tenement to the brick pavement below.

She alleges that the rail enclosing the gallery broke and precipitated her to the pavement, while she was hanging up the family washing, and as a result of the accident, she was kept in the Charity Hospital three days and remained in the Hotel Dieu about two and a half months; that she still limped badly and feared permanent injury. She itemizes her damages as follows:

“Doctor’s bill, Fifty Dollars....... $ 50.00
. “Hotel Dieu fees, One Hundred Ten Dollars __________________________________ 110.00
“Physical suffering and mental anguish, Five Thousand Dollars '5,000.00
“For future suffering and pain, and impairment of the physical functions of the parts injured, as well as inability to perform her household duties, the fact of being a cripple for the rest of her life; loss' of full movement of her limb, and future mental anguish and fear by reason of same, the sum of Five Thousand Dollars ---------------------------------- 5,000.00
“Total, Ten Thousand One Hundred and Sixty Dollars .......................................$10,160.00’’

Defendants ‘ answered, admitting the accident, but pleading contributory negligence, evidenced by the alleged fact that plaintiff’s husband had agreed to repair the gallery for the sum of $5.00, to be deducted from his rent. The case was tried by a jury and resulted in a verdict of $660.00, itemized as follows:

“It is ordered, adjudged and decreed, that there be judgment herein in favor of plaintiff, Mrs. Carmela Viola, wife of John Salsiccia, and against the defendant, Sarah F. Convery for two hundred and twenty dollars, against the defendant, John T. Convery for two hundred and twenty dollars and against the defendant, Charles F. Convery for' two hundred and twenty dollars with legal interest from judicial demand, against each of the three said defendants, and for the costs of this proceeding, one-third to each of the said defendants.’’

From this decision, defendants have appealed to this Court and plaintiff has answered the appeal, asking that the judgment be increased.

The sole issue before us is contributory negligence. The record shows, (1) That the plaintiff’s husband, a laborer, orally leased from defendants a small, cheap, second-story tenement, consisting of two rooms. and a kitchen, which opened on a small, narrow back gallery. This gallery, which was about ten feet long and one and one-half feet wide, was protected by a banister about four feet high, consisting of solid rails on the top and bottom, with upright rungs a few inches apart, in between the two rails; (2) Plaintiff, who had a baby about 14 months old, which was just beginning to crawl around, was naturally anxious to protect it from all dangerous openings; (3) she was hanging up clothes on the back gallery when the top rail of the banister broke and threw her to the pavement.

Mrs. Convery, one of the defendants, testified that, when plaintiff and her husband were inspecting the premises, just before the lease, the husband stated that the railing was weak and he could not move in unless it was fixed; whereupon she said: “I cannot get anyone with such short notice to repair it,” and he said: “I will do it.”

She further testified that two or three of the rungs were missing then; that he also complained that certain panes of glass were broken and would have to be repaired and that she authorized him to make the repairs and deduct the cost from rent. (Notes. She does not testify, as averred in the answer, that he had agreed to repair railing for $5.00).

J. S. Convery, son of defendant, admitted that a deduction was made from the rent for the panes of glass, but no deduction was ever made for any railing.

Both Mr. and Mrs. Convery testified that plaintiff erected a barrier at the rear end of the gallery, consisting of three boards nailed across the gallery about four feet high, and that they had seen this barrier repeatedly, both before and immediately after the accident, and that the husband had admitted that he was satisfied with that protection.

Plaintiff testified that she heard the discussion about repairing the window panes, but she denied hearing any discussion with reference to repairing the banister, and she further denied that any barrier was ever placed across the gallery.

The husband admits that he spoke to Mrs. Convery with reference to the railing, but he says he referred only to the missing rungs, as he feared that his baby would fall through. He positively denied that he ever agreed to repair the banister or to deduct the bill from the rent. In this he is confirmed by the fact that no deduction was ever made for repairs to railing, although one was made for repairs to window glasses.

Mrs. Charles Streehler, a neighbor, whose back gallery almost join's that of plaintiff, and who testified that she saw plaintiff walk on the gallery to hang up the clothes, touch the rail, and fall, swears that no barrier was ever built across plaintiff’s back gallery, but that a wooden tomato-can box had been placed there to prevent the baby from going on the gallery. She is positive that she saw the box repeatedly both before and after the accident.

Defendant argues that plaintiff was guilty of contributory negligence because she walked on the gallery knowing it was rotten. As this is an important point, we quote plaintiff’s entire testimony thereon:

Mr. Benedict to plaintiff on cross-examination:

“Q. And you went out on this gallery that you knew was rotten?
“A. No, sir; if I knew it was rotten I never go there.”

Redirect examination:

Mr. Teissier:

“Q. Was the floor of that back gallery rotten?
‘¡A. Sir?
“Q. Was the flooring on that back gallery rotten?
“A. Yes, it was rotten.
“Q. What did you or your husband complain to Mrs. Convery about that gallery before you went in the house; what did you see was the matter with the gallery, do you remember?
“A. I don’t remember exactly.
“Q. Was it the gallery that fell down or the balustrade?

Mr. Benedict:

Object to leading the witness.

Mr. Teissier, (Continuing):
“Q. I will change the form of the question. What fell down?
“A. The banisters.
“Q. Did the gallery fall down?
"A. No, sir.
“Q. Were there any boards at the bottom of this railing?
“A. No boards.”

While these statements appear conflicting when taken by themselves, they are clarified to some extent when considered along with the entire testimony of plaintiff, who did not seem to understand English thoroughly, and frequently asked over simple questions, and once, on direct examination, asked her lawyer, who had inquired about her use of the yard below, ‘‘What do you mean, ‘yard’?”

As the sole charge of negligence is based on the breaking of the rail, and as there is no evidence that the gallery floor ever did break, we do not think that defendant’s argument is sound, even if her statement as to the rotten condition of the gallery floor stood alone, but as she makes confusing statements on this point, we must interpret that statement so that it will harmonize with her entire testimony, namely, that it was the railing which was rotten.

A careful consideration of the entire record convinces us that plaintiff’s contention is not only sustained by a preponderance of the evidence, but it is the more probable of the two. 'Plaintiff’s husband would hardly have restricted her narrow quarters by building a permanent barrier across the gallery free of charge, when he could have been paid for his labor and material if he had done the same amount of work on repairing the missing rungs.

Defendant, while admitting that the trend of prior decision was against his contention, insists that the facts here are exactly similar to those in the case of Parker vs. Kleber, 153 La. 191, 95 So. 601, and that the decision in that case should control.

In the Parker case the lower rail of the banister was hanging loose at one end and at least half of the rungs were missing. On the morning of the accident, defendant’s carpenter had come into the yard below to repair the railing and plaintiff leaned over or against the top rail of the banister to talk to the carpenter. While so doing, the top rail broke and she was thrown to the ground. The Supreme Court decided in favor of defendant because plaintiff leaned over or against the railing, though she knew it was defective. . v

There are essential differences between that case and the present. Here the banister was not in such a bad condition, as neither top nor bottom rail was broken and only two or three rungs were missing.Here plaintiff did not knowingly lean over or against the top rail, but accidentally fell against it while hanging up the clothes. She did not know that the railing was rotten.

The facts in this case are analogous to those in Boutte vs. N. O. Terminal Co., 139 La. 945, 72 So. 513, where the court, in the course of its reasons for judgment, 'uses the following language:

“To assume that the lessee, in this case, knew that the balcony was So rotten that it could not withstand her weight would be to assume that she committed suicide. All that could be assumed in that respect would be that she knew or ought to have known that the balcony was unsafe. The evidence, however, does not justify our concluding that the danger was so apparent as to do away with the provisions of Article 2695 of the Civil Code, whereby the lessor was bound to guarantee the lessee against all vices and defects in the leased premises and to indemnify her for any loss resulting therefrom.”

On this point, see also the following decisions:

Lasyone vs. Zenoria Lumber Co., 163 La. 185, 111 So. 670.

Breen vs. Walters, 150 La. 578, 91 So. 50.

Schoppel vs. Daly, 112 La. 201, 38 So. 322.

Ciaccia vs. Carbajal, 142 La. 125, 76 So. 583.

Klein vs. Young, 163 La. 59, 111 So. 495.

Wise vs. Lavigne, 138 La. 218, 70 So. 103.

For above reasons the judgment is affirmed as to the liability of defendants.

As to quantum, we think the amount allowed too low. Plaintiff suffered a serious and painful injury. Plaintiff, who was a strong woman of twenty-seven, had done all her house work prior to the accident. The head of the thigh-bone was driven into the acetabulum, or cavity in which it fits, causing great pain for three weeks. She remained in Charity Hospital three days and in Hotel Dieu for two and one-half months. She also suffered one year with one leg shorter than the other. She had to stay in bed for some time after she left the hospital and continued to suffer. She had to pay the doctor’s bill of $100.00 and the hospital bill of $60.00. We think the amount allowed for pain and suffering should be increased by $500.00.

While the case was pending in this Court, John T. Convery, one of the defendants, died, leaving the following four heirs:

Miss Sarah F. Convery,

Reverend Charles F. Convery,

Mrs. Mary A. Convery,

Miss Maria Convery Buckley.

Therefore the judgment against John T. Convery must be divided into four parts.

It is therefore ordered adjuged and decreed that there now be judgment herein in favor of plaintiff, Mrs. Carmela Viola, wife of John Salsiccia, and against the defendant, Miss Sarah F. Convery, for Four Hundred Eighty-three and 33/100 Dollars ($483.33); against the defendant, Reverend Charles F. Convery, for Four Hundred Eighty-three and 33/100 Dollars ($483.33); against the defendant, Mrs. Mary A. Con-very, for Ninety-six and 67/100 Dollars ($96.67), with legal interest from judicial demand, against each of the four said defendants, and for the costs of this proceeding, one-fourth to each of the said defendants.


text:
    No. 11,700
    Orleans
    SHEMPER v. IRVING HERSKOVITS FUR CO., INC.
    (February 11, 1929. Opinion and Decree.)
    (February 25, 1929. Rehearing Refused.)
    Gerald Netter, of New Orleans, attorney for plaintiff, appellee.
    Max M. Schaumburger, of New Orleans, attorney for defendant, appellant.
   JANVIER, J.

Plaintiff was employed by defendant as a purchaser of furs. His contract required him to buy the furs according to their respective grades and, whenever he was required by the vendors to pay cash, to give drafts on defendant for the purchase price.

He was a fur grader of experience and was given a price list and was instructed to pay only the prices shown in this list.

He was to receive a commission of 5% on the amounts paid out by him and he was required to pay his own expenses.

At Lumberton, Mississippi, he located a certain lot of furs, and, after inspecting them, and reporting by phone to the office, purchased them for $4450.00. He also made a purchase amounting to $21.80 and another for $100.00.

This suit is for the commission at 5% on the total amount of the three purchases and for the $21.80 cash which he expended out of his own funds in making the purchase for that sum. The total amount claimed is' $250.39.

Defendant admits the contract and the purchases and the fact that plaintiff paid the $21.80 out of his own funds but denies liability on the ground that, in making the large purchase, plaintiff was so careless in grading the furs that he paid for them more than $1,000.00 more than they were actually worth.

This is, of course, a special defense, and the burden of proving it is on defendant.

The verbal evidence is conflicting and if we had to decide the issue of fact on the verbal testimony alone, we would find ourselves unable to hold that defendant had successfully borne the burden placed upon it by the filing of the special defense.

We find in the record, however, one very significant fact and that is, that plaintiff admits having destroyed a document which defendant claims was an agreement of compromise which had been voluntarily executed by plaintiff.

According to both parties, when plaintiff was charged with having paid something over one thousand dollars more for the large purchase than it was worth, a discussion of the matter ensued. Plaintiff contends that at no time was the question of his making good any part of the loss discussed. Defendant claims, through several witnesses that as soon as it was suggested that plaintiff should stand a part of the loss, he voluntarily agreed to pay $500.00 to settle the matter. Defendant argues that plaintiff was willing to do this because he wanted to retain his position and also because he was afraid that his carelessness had made him liable for defendant’s loss.

At any rate a document was prepared and, according to defendant’s witnesses, was signed by plaintiff. Plaintiff denies having signed it but we believe his memory as to this has served him poorly. He admits that later on he called for the document and having obtained it back under a subterfuge, destroyed it. He says that what he destroyed was a* document with reference to a bond defendant required and that he was incensed at being required to give bond and that was his reason for destroying it. If he had not signed the document we are. unable to see why he should have been so intent on destroying it and are forced by his actions to the conclusion that the document was what defendant says it was.

The document, having been destroyed, is, of course, not in the record but defendant has introduced a carbon copy of it, and this copy reads as follows:

“November 21st, 1927.
“I, the undersigned; I. Shemper, hereby agree to refund to W. Irving Herskovits Pur Co., Inc., ten percent (10%) of all commissions that become due me on purchases made for. and delivered to said W. Irving Herskovits Fur Co., Inc., until the sum of Five Hundred ($500.00) Dollars has been paid.
“This Five Hundred Dollars is a compromise amount agreed upon between W. Irving Herskovits Fur Co., Inc., and myself and represents one-half the loss estimated by yourselves on a parcel of furs bought by me from C. F. Namie of Lumberton, Miss.
“Witness________________________________________________
“Witness.................................................”

Since we are of the opinion that plaintiff, whatever his rights may have been prior to tlie signing of the document, did, in fact execute it, his rights now are to be' determined, not by the original contract but by the compromise agreement which he made and for which we believe he received full consideration.

Defendant has reconvened and asked, not only that plaintiff’s suit he dismissed hut that judgment in reconvention be rendered in favor of defendant for the amount set forth in the compromise agreement.

There is no escape for plaintiff. He made his own bed and will have to lie in it as comfortably as he can. We are unable to add to his comfort.

It is therefore ordered, adjudged and decreed that the judgment appealed from • be annulled, avoided and reversed and that there now be judgment in defendant’s favor dismissing plaintiff’s suit and that there be judgment in reconvention in favor of plaintiff and against defendant in reconvention for the sum of $500.00 with legal interest from judicial demand and for all costs.


text:
    No. 10,978
    Orleans
    LAROSE v. N. O. PUB. SERVICE, INC.
    (January 21, 1929. Opinion and Decree.)
    (February 11, 1929. Rehearing Refused.)
    (March 26, 1929. Decree Supreme Court, Writ of Certiorari Refused.)
    Harry McEnerny, Jr., and Chas. Danna, of New Orleans, attorneys for plaintiff, appellee.
    Ivy G. Kittredge, of New Orleans, attorney for defendant, appellant.
   JANVIER, J.

Plaintiff, while a passenger in one of defendant’s cars was injured as a result of what may be termed a “side swipe collision” with some part of a two-mule lumber wagon. She claims rather extensive injuries.

Defendant appealed from a judgment against it, and, plaintiff, dissatisfied with the verdict and judgment for $2,000.00 in her favor has answered the appeal.

The street car was on its way up Magazine Street. The wagon was parked between the car track and the lake side curb of the street. It was facing uptown, that is in the same direction in which the car was going, and, as it was an open lumber wagon all the witnesses had a clear view of the driver’s seat and all agree that there was no one on it; that the team was entirely unattended.

Plaintiff was seated some distance from the front of the car, in fact, as she expresses it, “It was not quite in the middle ■—a little bit back, you know.”

There can be no doubt that as plaintiff was a passenger for hire there is a presumption that the carrier was negligent. “An injury to a passenger creates a presumption of negligence on the part of the carrier.” Poster vs. N. O. Public Service, Inc., 3 La. App. 514. The burden is therefore on the carrier to disprove this negligence.

Had the front end of the car been struck by the tongue of the wagon or the harness of the mules or whatever it was that came into contact with the car, defendant would have been in a very difficult situation, and it is doubtful if it could have successfully disproved its negligence. But there are two facts which to us negative plaintiff’s contention that the motorman was at fault in misjudging the distance between the mule team and his street car. One of these facts is that the part of the car which first came into contact with the wagon was in the rear of the middle. The other fact is that Mobley, an entirely disinterested witness, was standing on the right front steps of the car and was not struck by the mule team. It is quite evident then that at the time the front end of the car reached a point alongside the mule team, there was ample room for it to pass in safety. This situation was certainly not later altered by the street car as it was proceeding along fixed rails and in a straight line. Unless then we are prepared to hold that the motorman should have foreseen that the mules were going to move, we are unable to see how we can find defendant guilty of negligence.

Let us see what the motorman actually did. According to all witnesses he reduced the speed of the car when he noticed that the proximity of the wagon to the car track raised a doubt as to whether there was enough room to pass. He either leaned towards the side of the car or stepped to the vestibule door and sighted to see if he could pass. That his judgment that there was room to pass was good, is evidenced by the circumstances which we have referred to, that is to say, that the front end of the car and more than one-half of it passed in safety.

In spite of the statements of some of plaintiff’s witnesses that the street car’s speed was excessive, we feel that the physical facts entirely disprove this. The car was crowded and yet there was time before the car proceeded more than about half a block beyond the point of the accident for one of the passengers to make his way through the crowd to the rear platform and to warn the conductor to give an emergency stop signal, which he did, and, for the motorman, to bring the car to a complete stop. That all of this could have been done in a distance of approximately one-half of a square is ample proof that the speed of the car was moderate. It appears to us that the motorman exercised due caution both in looking out and in regard to the speed of the car.

It is a very ordinary occurrence for Street cars to pass close to unattended horse or mule-drawn vehicles and unless the animal or animals show signs of restiveness the motorman need do no more than to see that there is a safe margin between his car and the vehicle and then proceed at a reasonably slow speed. As the Supreme Court of Louisiana said in Trenchard vs. Railway Co., 123 La. 36, 48 So. 575:

“The negligence imputed to the railway company is in the failure of the motorman to have brought his car to a full stop as soon as he saw the wagon was without a driver * * *. We find no negligence on the part of the railway company. The horse was moving along the straight road tamely at a trot. Simply because there was no driver was no reason why the motorman should bring his car to a full stop in the middle of a block.”

To the same effect this Court said in Scariana vs. New Orleans Railway & Light Company, 14 Orl. App. 18:

“As the motorman had an undoubted right to proceed as soon as the track ahead of him was clear, and his duties called upon him to keep a watch forward, it is clear that what occurred twenty feet behind him cannot be attributable to any negligence on his part.”

The slight discrepancies in testimony as to whether the motorman put his head out the vestibule door or only leaned in that direction and as to whether the car stopped just before or just after crossing the next street and the argument that certain of the witnesses should not be believed because they testified that they did not hear the emergency stop signal, are of no importance and in fact, rather tend to prove the truthfulness of their testimony on more important matters.

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


author: JANVIER, J. WESTERFIELD, X,

text:
    No. 11,053
    Orleans
    SCHUTTE v. L. R. & N. CO.
    (February 11, 1929. Opinion and Decree.)
    (February 25, 1929. Rehearing Refused.) (March 26, 1929. Decree Supreme Court, Writ of Certiorari and Review Refused.)

      R. A. Dowling and John E. Jackson, of New Orleans, attorneys for plaintiff, appellee.
    E. M. Rightor, of New Orleans, attorney for intervener.
    R. E. Milling and R. E. Milling, Jr., of New Orleans, attorneys for defendant, appellant.
   JANVIER, J.

Jules E. Zebal was killed on July 16, 1925, as a result of a crossing accident in which the automobile which he was driving was struck and demolished by a backing train of the defendant company at the corner of Galvez and Lafayette Streets.

Suit is brought by his widow on her own behalf and as tutrix of her two minor children.

Zebal, just before the accident, had apparently turned from the roadway along the new basin canal, had crossed the canal and had headed into Galvez Street in the direction of Canal Street.

Galvez Street is a neutral ground street and the bridge which Zebal crossed was narrow and was so placed as to be on a continuation in a direct line of the river side of Galvez Street. In other words, had Zebal, after crossing the bridge, continued in a straight line, he would have been on the right side of the roadway of Galvez Street. The evidence shows that that side of the street was impassable and that he therefore turned slightly to his left and crossed over to the other driveway and then proceeded along it to.wards the crossing from Zebal’s left. He, of course, was sitting on the left side of the car and, therefore, on the side from which the train was coming.

The day was misty and damp and it was either raining at the moment of the accident or had been raining a short time prior to it.

The train was backing with the caboose leading the way. Next came the tank car, then the tender, then the locomotive.

The charges of negligence are numerous. In fact, we find it difficult to find any act of defendant’s, employee, which, according to plaintiff’s counsel, was properly done.

It is said that the defendant was negligent in that the train was proceeding backwards; in that it was running too fast, in that the whistle was not blown and the bell was not rung, in that the weeds at and near the crossing obstructed the view, in that no flagman was sent ahead of the train, in that the crew had been drinking gin, in that the crew was composed almost entirely of negroes and in other respects too numerous to recount here.

So far as the alleged speed is concerned the evidence leaves us convinced that It did not exceed nine or ten miles per hour. Experts testify that under the weather conditions existing at the time a stop of within 80 to 100 feet at 8 to 10 miles per hour was a good stop i and it is shown that the train in question stopped in 102 feet. As to the fact that there was no flagman at _ the crossing we find that none was required either by law or by custom and the condition of the street is conclusive proof of the fact that there was not sufficient traffic on the crossing to require one.

It was conclusively shown that such weeds as there were near the crossing were in the neutral ground and that there were none between the automobile and the train.

In fact we do not find in any of plaintiff’s charges anything sufficiently founded on fact to warrant discussion unless it be the evidence as to the warning signals.

Four witnesses testified positively that the whistle was not blown and the bell was not rung.

Of these four, one Laurent is obviously entirely unworthy of belief. It is not often, fortunately, that one comes across a witness so violently prejudiced ■ and so totally untruthful.

The character of this man’s testimony is well illustrated by the following excerpts from the record.

Tr. page 50:

“Kids get killed almost every other day or so. The crossing is only used for that.”

Tr. Page 49:

“Every time we hear a train coming, we run out there to look, expecting to see them hit something.”

There is not a word of evidence as to any such accidents at that crossing or anywhere else in that vicinity and the statements are evidently false from beginning to end. They were apparently prompted by his violent hatred of the negro employees of the defendant as is shown by the following statement by Laurent.

. “Q. And you very much resent the fact that there is a negro brakeman and a negro fireman on this train, don’t you?”
“A. Yes, sir.”

Two of the witnesses for plaintiff who say no signals were given were more than a block away. One of them says they were sitting inside a restaurant eating lunch. The other says that they had not yet gotten out of the automobile at the restaurant, but no matter which is correct they were some distance away and there was nothing unusual to call to their attention and to fix in their recollections a train signal. It should be remembered that several tracks were in that immediate vicinity and trains were passing to and fro with great frequency.

The fourth witness was inside a warehouse, alongside the track on which the train had passed and about 200 feet from the crossing.

We are unable to understand why he did not hear the signals, unless his failure to recollect was the result of a familiarity with whistles and signals to such an extent that they could make no lasting impression on him.

As against these four witnesses we have the positive testimony of all the train crew and we have the admission that two or three negroes were on the head-end of the caboose and there is no gainsaying the fact that the “monkey-tail whistle” was there. Why shouldn’t they have blown 't? It required no effort and not only instinct but the well-known nature of negroes to enjoy harsh sounds and noises would have prompted them to blow it.

But whether it was blown or not and whether the bell was rung or not, we see no escape from the established jurisprudence of this State requiring the use of the senses of sight and hearing.

It is absolutely certain that after the train reached a point within 200 feet from the crossing and the automobile reached a point about 200 feet or more from the crossing each remained in full view of the other until they both reached the crossing. The testimony is clear on this and the pictures show it conclusively.

One ■ of the witnesses claims to have shouted a warning to Zebal when there was yet time for him to stop his automobile but states that it was not heeded. That someone shouted just before the accident is corroborated by one of plaintiff’s witnesses who states that the shout was one of the things that called his attention to the impending collision.

As was said by the Supreme Court of Louisiana in Eyma Brown vs. Railroad Co., 42 La. 355, 7 So. 684, 21 Am. St. Rep. 374:

"When on.e approaches a point upon the highway, where a railroad track is crossed upon the same level, it is his plain duty to proceed with caution, and if he attempts to cross the track, either on foot or in a vehicle of any description, he must exercise, in so doing, what the law regards as ordinary care under the circumstances. He must assume that there is danger, and act with ordinary prudence and circumspection upon that assumption.
“In attempting to cross, the traveler must listen for signals, notice signs put up as warnings, and look attentively up and down the track.
“Statutes and municipal ordinances in every jurisdiction prescribe specifically the duty of railway corporations in respect to railways crossings; but no failure on the part of the railroad company to do its duty will excuse any one from using the senses of sight and hearing upon approaching a railway crossing, and whenever the due use of either would have enabled the injured person to escape the danger, the injury is conclusive evidence of negligence, without any reference to the railroad’s failure to perform its duty.”

The measure of the duty of the traveler on the highway when he attempts to cross a railroad track has been definitely fixed by the U. S. Supreme Court in the matter of B. & O. R. R. vs. Goodman, 275 U. S. p. 66, 48 S. Ct. 24, 72 L. Ed. 167, 56 A. L. R. 645; in which the Court said:

“Goodman was driving an automobile truck in an easterly direction and was killed by a train running southwesterly across the road at a rate of not less than sixty miles an hour. The line was straight, but it is said by the respondent that Goodman ‘had no practical view’ beyond a section house two hundred forty-three feet north of the crossing, until he was about twenty feet from the first rail, or, as the respondent argues, twelve feet from danger, and that then the engine was still obscured by the section house. He had been driving at the rate of ten or twelve miles an hour, but had cut down his rate to five or six miles at about forty feet from the crossing. It is thought that there was an emergency in which, so far as appears, Goodman did all that he could.
“We do not go into further details as to Goodman’s precise situation beyond mentioning that it was daylight and that he was familiar with the crossing, for it appears to us plain that nothing is suggested by the evidence to relieve Goodman from responsibility for his own death. When a man goes upon a railroad track he knows that he goes to a place where he will be killed if a train comes upon him before he is clear of the track. He knows that he must stop for the train, not the train stop for him. In such 'circumstances it seems to us that if a driver cannot be sure otherwise whether a train is dangerously near he must stop and get out of his vehicle, although obviously he will not often be required to do more than to stop and look. It seems to us that if he relies upon not hearing the train or any signal and takes no further precaution he does so at his own risk. If at the last moment Goodman found himself in an emergency, it was his own fault that he did not reduce his speed earlier, or come to a stop.”

Of what use to cite innumerable other cases. They are all to the same effect. All require the traveler on the highway to look and to listen and all hold that failure to do so will prevent recovery un-. less, on account of some unusual obstruction, looking or listening would not have prevented the collision, or unless, the railroad has, by the erection of gates or the placing of a flagman, lulled the traveler into a false sense of security.

Such was not the case here. Zebal was familiar with the locality. He had travelled that neighborhood for years and the slightest care on his part would have prevented the accident. Either he did not look at all or if he did look he tried to beat the train. In either case it was his negligence that was the proximate cause of the accident.

It is therefore ordered, adjudged and decreed that the judgment appealed from be and it is annulled, avoided and reversed and that there now be judgment dismissing this suit at the cost of appellant.

WESTERFIELD, X,

dissenting. I believe the case of Draiss vs. Payne, 158 La. 652, 104 So. 487, applicable, and controlling here. I therefore respectfully dissent.


text:
    No. 11,564
    Orleans
    SIMMONS v. MORGAN’S L. & T. R. R. & S. S. CO. AND METROPOLITAN LIFE INS. CO. OF N. Y.
    (February 25, 1929. Opinion and Decree.)
    Chas. J. Mundy, of New Orleans, attorney for plaintiffs, appellants.
    Denegre, Leovy and Chaffe and Spencer, Gidiere, Phelps and Dunbar, of New Orleans, attorneys for defendants, appellees.
   JANVIER, J.

Plaintiffs, alleging themselves to be the widow and the daughter of Nathan Williams, bring this suit against defendants jointly and solidarily for $1,500.00.

They allege that Williams had, for some time prior to his death, been employed by defendant railroad company and that, during the course of that employment the railroad company had, ón each pay-day, deducted from Williams’ pay a small sum, supposedly to be paid to the other defendant as a premium on Williams interest in a group life insurance policy.

Plaintiffs’ petition is not at all certain or definite in its averments, most of which fall far short of containing any statement of actual fact.

Plaintiffs’ petition fails utterly to show any right in themselves to maintain this action and also fails to show by any affirmative allegation that a cause of action exists in any one.

The fact that no cause of action is shown may be the result of defective pleading and, if the petition disclosed that plaintiffs were the owners of a cause of action, however inartistically and imperfectly stated that cause of action might appear in the pleadings, we would be inclined to remand the case to allow plaintiffs to amend. But we are of the opinion that no good purpose could be served by remanding the case, because we can see no possibility of the existence of a right of action in plaintiffs as the widow and the child of decedent.

The right of action, if there is one, can only exist in favor of the beneficiary or beneficiaries named in the supposed policy or certificate of insurance. The fact that they are widow and child would not entitle them to recover, even if they had alleged positively and affirmatively that there was a policy of insurance, unless they could couple with that allegation the further one that they are the beneficiaries named in the policy. In other words, they must not sue as widow and child, but as beneficiaries. Even if they could allege that the policy was made payable to the estate this would not benefit them, because as widow and child they could not recover on a policy payable to the estate of the decedent. A suit for this purpose would have to be filed by the representative of the estate; that is to say, the administrator.

It appears to us, then, that the petition does not contain sufficient allegations to set forth a cause of action in anyone, but it does contain sufficient allegations to show that there is- no. right of action in plaintiffs.

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


text:
    No. 10,913
    Orleans
    THIEMANN v. NAT’L REFRIGERATOR & FIXTURE CO., INC.
    (October 29, 1928. Opinion and Decree.)
    F. S. Norman, of New Orleans, attorney for plaintiff, appellee.
    Dufour, Goldberg and Kammer, of New Orleans, attorneys for defendant, appellant.
   JANVIER, J.

Frederick Thiemann, a young apprentice, working for the defendant company was injured as a result of being struck in the eye by a large knife belonging to the defendant company.

Thiemann’s duties were to assist other workmen, principally cabinet makers and to bring them tools and materials when required to do so. On the afternoon on which the accident happened. Thiemann was assisting a cabinet maker, named Frechou. Thiemann states that he understood Frechou to tell him to go get the shellac pot and knife. The shellac pot was being used by another workman named Kallenberg and the knife was sticking upright in a workbench alongside the route which Thiemann had to travel in going for the shellac pot. As he reached the workbench in which the knife was sticking he grabbed for it apparently in too violent a manner with the result that the knife was knocked from its upright position to the bench from which it bounced up and hit Thiemann in the eye, resulting ultimately in the removal of the eye.

The defense is that Thiemann had not been told to get the knife, had never been allowed to use the knife, and that his grabbing for the knife constituted a wilful departure from his line of duty and that the resulting accident, therefore, did not arise out of his employment. The case of Pierre vs. Barringer, 149 La. 71, 88 So. 691, is relied upon by the defendant and is authority for the proposition that an employee, who voluntarily undertakes to do something he is not bound to do, and which his duties do not require, and who in so doing, comes in contact with dangerous machinery or a dangerous implement which he is not allowed to use, is not injured in the course of his employment. We do not find it, however, necessary to determine whether or not the legal principle invoked by defendant is applicable to this case, because we believe that there is in the record sufficient evidence to justify us in finding that young Thiemann acted as he believed he was instructed to act. Defendant readily admits that if Thiemann was instructed to get the knife or if he believed he was instructed to get the knife, even though he was not actually so instructed, he would be entitled to recover in compensation for injuries resulting from his attempt to get it although in doing so, he may have acted carelessly or playfully. The testimony of the boy, while it may be characterized as hesitating and slightly contradictory in unimportant details,- nevertheless, is to the effect that he believed he was instructed to pick up the knife. It is true that Frechou states that he did not instruct him to get the knife but there is no dispute that there was' a great deal of noise which might have prevented Thiemann from hearing perfectly what was said and furthermore it is very plain from the record that Frechou was either tongue-tied or talked in such low tones as could be barely understood. In fact, the trial judge oh two or more occasions had to caution him to speak louder as he could not be heard.

An attempt was made to show that no one in the employ of the company, except a man named Coates, had ever used the knife in question and that the knife was always kept in Mr. Coates’ office. In our opinion, the evidence does not conclusively show this, but on the contrary, it appears that Frechou, himself, had used the knife on previous occasions, infrequent though they were, and it is beyond dispute, that, at the time of the accident, the knife was not in the office of Mr. Coates but was on the bench right alongside of the place where the plaintiff had to pass.

For those reasons it does not appear to us that the defendant has shown conclusively that the plaintiff was not acting within the scope of his employment at the time of the accident, or at least, that he was not doing what he thought his duties required.

For these reasons the judgment appealed from is affirmed, at the cost of appellant.