text:
    No. 11,450
    Orleans
    WEBRE v. CAIRE & GRAUGNARD
    (May 27, 1929. Opinion and Decree.)
    Edrington and Carmouehe, of New Orleans, attorneys for plaintiff, appellant.
    Eraste Vidrine, of New Orleans, attorney for defendants, appellees.
   JANVIER, J.

Plaintiff was employed by defendants in their sugar mill in the Parish of St. John the Baptist. During the harvesting or grinding season the employees in the mill, including plaintiff, worked in six-hour shifts. Plaintiff’s brother was foreman of the gang in which plaintiff worked. Plaintiff lived at his home at some distance from the factory grounds, but, as part of his compensation, was furnished his meals at the factory boarding house. About six hours or so before the accident, while on his way to the mill, plaintiff was met by his brother, who advised him that there was no work for him to do and that he could go off and return for the next “watch,” six hours later. Thereupon, plaintiff and his brother left the premises entirely and went to a funeral. After the funeral plaintiff’s brother suggested to him that they go back to the factory. While on their way to the factory, but before they had reached the property of defendants, a sugar cane train, operated by the defendants, came along from their rear, going towards the factory.

Although the rules of the company prohibited others than train employees from riding the trains, and although plaintiff’s brother at that particular time instructed all those who were with him that they should not go on the train, plaintiff attempted to board it, and, in doing so, his foot slipped under one of the wheels and was cut off.

This suit for compensation is the result.

Defendants contend that the accident did not arise out of, nor in the course of plaintiff’s employment, and furthermore, that the accident resulted from plaintiff’s voluntarily turning aside from the safe course, and, against instructions, subjecting himself to a danger which was not incidental to his employment.

Plaintiff contends that he did not hear his brother instruct him not to board the train. The evidence is quite convincing, however, that the instruction was given and that it was heard by almost everyone else in the party. However, whether the instruction was heard or not, it is manifest that there was no reason whatever, so far as plaintiff’s employment was concerned, for him to board the train, and that to do so exposed him to a danger in no way incidental to or connected with his employment.

Jibb vs. Chadwick, 15 N. C. C. A. 248;

Schneider’s Workmen’s Compensation Law, Sec. 275.

In the case of Willie vs. Louisiana Long Leaf Lumber Co. et al., 8 La. App. 817, we find a situation very similar to that presented here. Willie was furnished transportation by his employer. While riding to work, the train stopped and Willie asked the foreman for permission to alight. This permission was refused, but, notwithstanding this, Willie descended from the train and walked along the track in the direction in which the train was to move. A short time later the train started and Willie attempted to board it while in motion. In doing so he slipped and fell under the cars. The Court of Appeal for the Second Circuit said:

“Where the evidence shows that the cause of the employee’s injury was his attempting to board a moving train in defiance of his employer’s rules, thereby unnecessarily exposing himself to danger, he cannot recover compensation.”

It seems to us that the doctrine announced is applicable here. The principle involved was approved by the Supreme Court of the State in the case of Pierre vs. Barringer, 149 La. 71, 88 So. 691.

Furthermore, we cannot see how it can be held that the injury arose out of the employment, or was in any way incidental thereto. The employer had no control whatever over plaintiff’s movements. Webre had voluntarily left the premises and gone off on business of his own. The employer had nothing whatever to do with his movements until his return to the premises.

In practically all of the cases in which compensation was allowed for injuries sustained while going to or returning from work, the transportation was furnished by the employer, or the injury was sustained so near to the work that it could be reasonably said that it resulted from a danger incidental to the' employment itself.

Here plaintiff’s employment was inside the mill. It had no connection whatever with the cane trains, which ran to distant parts of the plantation. It did not necessarily bring him near these trains. In fact, the route over which he was traveling did not require him to even cross the track on which the train was passing.

In Bass vs. Shreveport El Dorado Pipe Line Co., Inc. 4 La. App. 107, the employe was allowed to ride to his home on a truck owned by the employer. While attempting to jump off the truck, he was injured. The court held that the accident did not arise out of or in the course of his employment. In that case we find the following:

“A reading of the cases cited where the courts have held that an accident to an employee while riding to or from his work arises out of and during the course of his employment, will disclose that in such cases the transportation was furnished by the employer as an incident of the contract of employment or was a part of the consideration therefor. So far as we have been able to find, no court has held that an employee was entitled to compensation when injured on the way to or from his work unless he was being transported by the employer under circumstances above outlined.”

We therefore believe that the finding of the trial court, that plaintiff was not entitled to compensation, is correct for two reasons:

First, because the injury did not arise out of nor as an incident to the employment, and,

Second, because the cause of the injury was the voluntary assumption by the plaintiff of an unnecessary risk entirely apart from his employment.

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


source: Caselaw Access Project

author: WESTERFIELD, J.

license: Public Domain

text:
    No. 11,142
    Orleans
    GIANGROSSO v. SCHWEITZER ET AL.
    (April 29, 1929. Opinion and Decree.)
    Edward M. Robbert, of New Orleans, attorney for plaintiffs, appellees.
    Hopkins and Talbot, of New Orleans, attorneys for defendants, appellants.
   WESTERFIELD, J.

Mr. and Mrs. Rosario Giangrosso bring this suit against W. C. Bohanon as the owner, and Gasper Schweitzer as the driver, of a Ford truck which, it is alleged, because of its negligent operation, ran into and killed their seven-year-old minor child, Vincent Giangrosso. They ask for judgment for $10,000 in solido against both defendants.

Bohanon denies that he was the owner of the truck or that he is in any way responsible for the action of Gaspar Schweitzer. Schweitzer disclaims all fault and, without pleading contributory negligence, avers that “the accident was caused wholly by the negligence of the unfortunate child in running from behind the large truck directly in front of your respondent’s truck so suddenly that the accident, insofar as your respondent was concerned, was entirely unavoidable.”

There was judgment for plaintiffs and against both defendants in the sum of $2000. The defendants alone have appealed.

Bohanon was the .proprietor of a dyeing and cleaning business, which he operated under the name of Edesco Cleaners and Dyers. Two trucks were used in connection with this business, both of which bore the name “Edesco Cleaners and Dyers” painted on the side. One of these trucks, defendant admits, was owned and operated by him. The other truck, the one operated by Gaspar Schweitzer, he asserts, belonged exclusively to Schweitzer, who was working for him on a commission basis of thirty cents on the dollar of all cleaning business brought to Bohanon’s shop.

It is not easy to understand why one truck should have been owned and operated by Bohanon and the other by Schweitzer, since both were used in connection with Bohanon’s business and both carried his trade name; but when it is considered that the Schweitzer truck, which had been bought on the installment plan, was being paid for with checks of the Edesco Cleaners and Dyers, with checks signed “Edesco Cleaners and Dyers,” the difficulty increases, nor is the situation relieved by the statement of Bohanon to the effect that the money, with which these payments had been made, was handed him by Schweitzer in currency. Our conclusion is, on this point, that the Schweitzer truck was a part of Bohanon’s equipment to the same extent as the other truck, and that Schweitzer was his employee.

The accident occurred at the intersection of North Roman and Laipeyrouse Streets, a thickly populated neighborhood, at about 3:30 p. m. There are six or seven schools in the immediate vicinity, and, at the time of the accident, Vincent Giangrosso and many other children were returning from school. Schweitzer was quite familiar with the neighborhood and the conditions obtaining, which were such as to impose upon drivers of automobiles the necessity of unusual care. It is in evidence that the. Ford truck was being driven very rapidly and in excess of the speed limit as established by the traffic ordinance. Were the speed within the legal limit, it might well have been excessive considering the conditions. The child was seen by a companion of the driver, who was seated next to him, a distance of fifteen feet before he ■ was struck. Schweitzer should have been able to stop his truck within this distance if it had been under proper control. He claims that he did not see the boy until just before he was struck, because, he says, the boy ran out from behind a large brewery wagon which was parked near the sidewalk. He is evidently mistaken in this, because his friend saw the boy, as we have said, when fifteen feet distant, and the driver should have seen him also. It is evident to our minds that the accident was caused by the excessive speed of the truck.

Whether the seven-year-old . boy was or was not guilty of contributory negligence is unnecessary to determine, since that issue was not raised by the pleadings.

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


author: JANVIER, J.

text:
    No. 10,971
    Orleans
    RUMFOLA v. CIVILETTO
    (May 27, 1929. Opinion and Decree.)
    Louis L. Rosen, of New Orleans, attorney for plaintiff, appellant.
    Emile Pomes and Charles J. McCabe, of New Orleans, attorneys for defendant, appellee.
   JANVIER, J.

Plaintiff sues for $916.97, which he alleges he expended for repairs and improvements on real estate of which he believed himself to be owner, but of which his step-father, the defendant, was judicially determined to be the owner, and from which he, plaintiff, was ejected.

Plaintiff alleges that one Emile Dufant had bid in the property in question at a judicial partition sale and that he, plaintiff, purchased from Dufant his rights in and to the said adjudication.

He alleges that this purchase was made with funds furnished him by defendant, Civiletto, under an agreement that the property was to be placed in Civiletto’s name in order to secure the return to Civiletto of the amount advanced; that with the knowledge and consent of Civiletto, he, plaintiff, expended $2,416.97 in making the purchase and the alterations and repairs in question, and that, of this sum, $1,500 was paid to him by Civiletto, leaving a balance due him at this time of $916.97. Civiletto refuses to pay this sum, claiming that no expenditures over and above the $1,500 deposited by him were ever authorized, and that, if any alterations and repairs were made, they were made by plaintiff in his capacity as tenant.

Defendant reconvenes for $700, claiming $50 per month rent for fourteen months. The trial court, after hearing all of the evidence, dismissed plaintiff’s suit and also dismissed the reeonventional demand.

We will first discuss the reconventional demand. The evidence leaves us well convinced that plaintiff understood that he was to tpay rent for the property. He and his brother, shortly after the occupancy by plaintiff commenced,’ discussed the rent, and several demands for the payment of rent were made during his occupancy. Furthermore, it seems incredible that he should be allowed to occupy the premises rent-free and at the same time collect rent from a sub-tenant for a portion of the property. We therefore believe that it was understood that he was to pay $50 per month rent. It appears that he occupied the premises for fourteen months, so there is due on the reconventional demand $700.

As to plaintiff’s cóntention that he is entitled to a refund of the amounts expended for the benefit of defendant, it seems quite plain that the defendant had knowledge of the fact and must have realized that plaintiff was spending considerably more money than he, defendant, had turned over to him. He knew that a bathroom was being installed and that many other extensive alterations and repairs were being undertaken. He must, then, be held to have tacitly authorized the expenditures made by plaintiff. Whether the full amount claimed was actually expended is doubtful. Several of the items seem rather questionable, but a careful reading of all the evidence leaves us convinced that at least $700 actually went into the property. These were repairs and alterations which the tenant deemed necessary and which were either indispensable, or were tacitly agreed to by defendant. They would therefore come within the category of repairs referred to in art. 2694 R. C. C., which reads as follows:

“If the lessor do not make the necessary repairs in the manner required in the preceding article, the lessee may call on him to make them. If he refuse or neglect to make them, the lessee may himself cause them to be made, and deduct the price from the rent due, on proving that the repairs were indispensable, and that the price which he has paid was just and reasonable.”

Therefore they were chargeable to defendant to the extent of the rent due. We do not believe, however, that plaintiff, as tenant, was authorized to undertake repairs which would cost more than the rent due, or to become due, and therefore, for such amount as the repairs might have exceeded the rent it must be held that the tenant himself must stand the expense.

The evidence, as we have said, is most conflicting, and it is very difficult to arrive at an exact determination as to just what items are due and what are not due. We therefore believe that the ends of justice would be best served by affirming the decision of the trial court, which dismissed plaintiff’s petition and also dismissed the reconventional demand.

As to the costs, it would appear proper that each party should stand his own.

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


author: JONES, J.

text:
    No. 11,414
    Orleans
    WHITE v. THOMAS EGAN’S SONS
    (May 29, 1929. Opinion and Decree.)

      W. A. Green and H. W. Robinson, of New Orleans, attorneys for plaintiff, appellant.
    Milner and Porteous and P. M. Milner, of New Orleans, attorneys for defendant, appellee.
   JONES, J.

Plaintiff sues for $21,116.50 damages, alleged to have been caused in an automobile accident at the intersection of Carondelet and Julia Streets on August 30, 1923, about 10:30 p. m. The petition recites that plaintiff’s 7-passenger Buick car, in which he was sitting on the right rear .seat, had almost crossed the downtown side of the intersection of Carondelet and Julia Streets, when a wagon, drawn by a double team of horses, owned by defendant and used as a mail wagon, empty and en route to the stable, driven by defendant’s employee, a negro named Henry Washington, ran its tongue into the rear of petitioner’s car, struck petitioner with terrific force on the right jaw, fractured his jaw and caused extensive minor injuries, some of which are of a permanent nature. The charge of negligence is that the mail wagon failed to stop or slow down at the intersection, in violation of the traffic ordinance, and that it was crossing the street too rapidly.

The answer denies all essential allegations and avers that an unknown automobile, driven at great speed, ran into the tongue of the mail wagon, striking it a side blow and continued on, without stopping.

Respondent denies that its driver was guilty of any negligence, but avers that if he was, then the driver of plaintiff’s automobile was guilty of gross negligence in driving at a high rate of speed in violation of the city ordinance and that he entered the crossing after he saw the heavy mail wagon was already there and recklessly tried to beat it across.

There was judgment for defendant, based on the verdict of a jury, and plaintiff has appealed.

The only question is one of fact.

Though there were many collateral issues raised on the trial of the case, and though the voluminous evidence on these issues, taken as a whole, tends to discredit plaintiff’s contentions, we prefer to decide the case squarely on the question of plaintiff’s negligence and to put a'side all collateral issues. As the issue is narrow and the case very close, we will analyze briefly the evidence as to how the collision occurred.

The record shows that the 7-passenger Buick owned by plaintiff was driven by A. Sternberger, who worked for petitioner as a real estate agent. On the driver’s right was seated William B. Miller, another real estate agent, who worked for plaintiff, and on the rear seat, behind the driver, was Mrs. Gouner, another employee of plaintiff, while plaintiff occupied, the right rear seat.

Sternberger, the driver, who should know more than anybody else about the distances and speeds just prior to the collision, testifies that he saw defendant’s mail wagon 100 to 150 feet down Julia Street when he reached the intersection; that he thought he had ample time to complete the crossing and therefore allowed his motor to roll slowly along; that the tongue of the mail wagon ran into the back of his car when its front end was already one-fourth past the downtown sidewalk of Julia Street.

If his automobile was traveling at a rate of ten miles per hour, which is certainly an unusually low rate for anyone to travel in that section of the city at that hour of the evening—or in fact, at any other time—it would have crossed Julia Street in about three seconds. A heavy mail wagon, weighing over 3,000 pounds, with two horses, each weighing over 1,200 pounds, even if they were trotting rapidly, could not have possibly been making over fifteen miles per hour, or twenty-two feet per second. Thus, during the three seconds consumed by the Buick in crossing Julia Street, the wagon, going at its fastest possible speed, could have only gone sixty-six feet, which would have placed it at least thirty-four feet from the intersection when the Buick finished the crossing.

It is thus seen that, even by slowing down the auto to the lowest speed, and speeding up the wagon to the fastest, the statement of plaintiff’s driver and chief witness is physically impossible. Plaintiff says that he did not see the wagon at all. Mrs. Gouner says that plaintiff’s auto was going not over fifteen miles an hour, while the horses were going very fast, but she did not see the wagon until the front of the car had passed it.

Miller says he did not see the wagon until the crash came, though he was on the side next to Mrs. Gouner. It seems strange that none of the occupants of the automobile except the driver should have seen a large mail wagon if it were in such close proximity to the slow-moving automobile, as there was a street light on the corner.

Mrs. Sanchez, a witness for plaintiff, who lives on the downtown river corner of Carondelet and Julia Streets, testifies that she was sitting on her side steps, about fifteen or twenty feet from the corner and that she saw the mail wagon, going pretty fast, enter Carondelet Street without stopping. She also saw the automobile, coming down Carondelet Street slowly—not over fifteen miles an hour—reach the intersection while the wagon on the downtown side of Julia Street was still out beyond her house towards the river; the automobile was on the right side of Carondelet Street and the wagon on the downtown side of Julia; that neither one stopped and the two vehicles collided just below the middle of the intersection; then the automobile slowed down, but did not stop and the driver pulled his horses back. On cross-examination she refused to say that the wagon was going faster than the automobile. This witness confirms Sternberger as to the auto entering the intersection while the wagon was still out on Julia Street, but she does not fix the exact distance of the wagon from Carondelet at the moment the auto entered the intersection. But as she says the automobile was going slowly— not more than fifteen miles an hour—and as the wagon could hardly have been going that fast, we are at a loss to understand how the auto could have slowed down much without stopping, and how the two vehicles could collide just below the center of Julia Street, unless the wagon was going faster than the auto, a statement this witness would not make.

Washington, the driver of the wagon, says that he was going out Julia Street toward the lake in a trot at his usual speed, about five miles per hour, until he reached the middle of the block, when he slowed down to about two miles an hour and entered Carondelet Street in a walk; that he did not hear any horn and did not see any auto until the Buick- was within twelve feet of him on his left, going at a fast speed, about forty-five miles per hour; that the auto, then swerved first to the left and then to the right; that he stopped his wagon when his horses were about at the first track on Carondelet Street and swung them towards Canal Street to the right, hut the right rear side of the auto ran into the end of the wagon’s pole, hitting it a sort of a side-swipe.

As the city traffic ordinance requires this wagon to come to a stop before entering Carondelet, the driver’s statement clearly shows that he was guilty of negligence. However, defendant’s negligence was not the proximate cause of the accident. Had Sternberger been driving his car at a legal speed, under proper control, and had he been looking ahead, as required by the city ordinance, he certainly would have seen the mail wagon in time to avoid the collision.

As we find no manifest error in the decision of the lower court, the judgment is affirmed.


text:
    No. 10,999
    Orleans
    SPINK v. AURIANNA
    (May 27, 1929. Opinion and Decree.)
    Morris P. LeCompte and Alfred M. Guilheau, of New Orleans, attorneys for plaintiff, appellee.
    Dart and Dart, Louis C. Guidry, of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

This is a suit by an architect for a balance due, $368.32, for services rendered in connection with the drafting of plans for the remodeling of a two-story dwelling on St. Charles Avenue and for supervision thereof.

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

The record abounds with testimony concerning the alleged derelictions of plaintiff involving considerable minutia, which we confess our inability to thoroughly understand.

However, we are impressed with the statement of Mr. de Armas, an experienced arehitect, testifying on behalf of defendant, who, when asked whether on the whole the building was a fair job, replied: “Taking everything into consideration I would consider it a fair job.”

We are in no position to determine from this record that Mr. de Armas was mistaken and the trial court manifestly wrong in its conclusion, consequently the judgment appealed from is affirmed.


text:
    No. 10,994
    Orleans
    SURPLUS LUMBER CO., INC., v. FERGUSON ET AL.
    (May 27, 1929. Opinion and Decree.)
    P. H. Stern, of New Orleans, attorney for Blythe Company, Inc.
    H. W. Robinson, and F. B. Freeland, of New Orleans, attorneys for defendants, appellants.
   WESTERFIELD, J.

The question presented by this appeal is the order of preference as between two claimants in the distribution of certain funds arising from the sale of real estate. The plaintiff, Surplus Lumber Company, Inc., contends that its claim of $430.55, for building material used in the construction of a building erected upon the property, should be ranked ahead of that of Blythe Company, Inc., for $1861.20, arising out of two conventional mortgages.

Under Act 139 of 1922, Section XI, the claim of material-men must be recorded as required by Section 2 of the Act, within thirty days after the completion of the building, in order to prime prior mortgages resting upon the property. Capital Building & Loan Association vs. Carter (Baton Rouge Sash & Door Works et al., intervenors), 164 La. 388, 113 So. 886; Central Lumber Company vs. Schroeder, 164 La. 759, 114 So. 644.

It is admitted that the plaintiff in this case, did not record its lien until April 5, 1929, or more than sixty days after the completion of the building, and about forty-seven days after the mortgage of Blythe Company, Inc., which plaintiff seeks to outrank, had been recorded in the mortgage office.

Plaintiff, having failed to record its claim within the time mentioned in the statute, is not entitled to outrank Blythe Company, Inc., whose mortgage had long been of record at the time plaintiff’s claim was inscribed. The trial court was of this opinion. We are convinced that its judgment was correct and it is therefore affirmed.


text:
    No. 10,945
    Orleans
    TOLMAS v. LOFASO
    (May 27, 1929. Opinion and Decree.)
    Julius Howard Wiener, Sidney G. Roos, of New Orleans, attorneys for plaintiff, appellee.
    Appellant unrepresented in this court.
   ON MOTION TO DISMISS.

WESTERFIELD, J.

Plaintiff and appellee moves to dismiss this appeal upon the ground that there has been an acquiescence in the judgment appealed from, by reason of the fact that the sum of $500 has been paid on account of the judgment by the defendant and appellant on the 15th day of August, 1928, citing Flowers vs. Hughes, 46 La. Ann. 436, 15 So. 14. No answer has been filed to the motion to dismiss.

The issue of fact presented by the motion must be determined by the administration of testimony in the proper tribunal before the motion to dismiss presented to this court may be disposed of. Raines et al. vs. Dunson et al., 143 La. 321, 78 So. 574.

It is therefore ordered that this case be remanded to the Civil District Court for the Parish of Orleans for the purpose of taking testimony in regard to the alleged acquiescence by defendant in the judgment appealed from. Consideration of the case is continued until such evidence is taken and filed.


text:
    No. 10,904
    Orleans
    BAUMAN v. HARE ET AL.
    (May 27, 1929. Opinion and Decree.)
    John J. Wingrave, of New Orleans, attorney for plaintiff, appellee.
    Fred G. Veith, of New Orleans, attorney for defendant, appellant.
   JANVIER, J.

Plaintiff and defendant are negroes who had been living together as man and wife, though never married. Defendant, the woman, tiring of plaintiff, left him and took by force certain household furniture, wearing apparel and livestock. Plaintiff brings this suit to recover these articles, claiming that they belong to him. Defendant, though represented by counsel, did not appear at the trial. The judge a quo rendered judgment ordering all the articles delivered to plaintiff.

It is argued before us that certain of the chickens belong to defendant and that a certain part of plaintiff’s testimony should be construed as an admission of this. We have read the testimony and believe that, in view of the fact that the trial judge came to the other conclusion, the judgment should not be interfered with, particularly as defendant herself, apparently, did not take sufficient interest in the case to appear.

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


text:
    No. 10,728
    Orleans
    SCHOLDER v. LAUNDRY & DRY CLEANING SERVICE, INC.
    (May 27, 1929. Opinion and Decree.)

      Lemle, Moreno and Lemle, of New Orleans, attorneys for plaintiff, appellant.
    J. C. Henriques and Frank T. Doyle, of New Orleans, attorneys for defendant, appellee.
   JANVIER, J.

Plaintiff sues for damages sustained by his automobile as a result of a collision with a laundry truck of defendant. The laundry truck, just before the accident, had been parked on the downtown side of Robert Street, facing towards the lake. Plaintiff’s automobile, driven by his chauffeur, was proceeding out Robert Street towards the lake. The driver of defendant's truck had made a call at a residence on Robert Street and, as Eis next call was to be made on St. Charles Avenue, which was in the opposite direction to that in which he was facing, it became necessary for him to turn around.

There was another automobile parked alongside the curb on the downtown side of Robert Street and some twenty odd feet ahead of the laundry truck.

The trial court rendered judgment dismissing plaintiff’s suit.

Plaintiff contends that defendant’s driver instead of going to the next corner to make the turn, as he says he intended to do, was in fact, attempting to turn in the middle of the block by driving into a runway on the opposite side and by then backing around in the other direction.

At any rate, whether the driver of the laundry truck intended to turn completely around in the middle of the block or was merely turning out into the street to pass the vehicle in front of him, his truck was struck violently by plaintiff’s automobile, which, as we have stated, was approaching from the rear.

Defendant’s driver claims that before he turned his truck away from the curb, he put out his hand and also looked to the rear, and that he saw plaintiff’s car approaching but gave it no serious consideration because it was more than one hundred feet away at the time.

Plaintiff’s chauffeur, on the other hand, maintains that defendant’s driver gave no warning of his intention, but, after starting the truck, suddenly turned it across the street almost at a right angle.

It is quite peculiar that it was the right rear portion of plaintiff’s car which struck the left rear portion of defendant’s truck. Plaintiff’s chauffeur explains this by saying that he could not stop in time to avoid striking the truck and, therefore, put on his brakes, turned to his left and ran partially into a driveway and that the side of this driveway stopped the forward motion of the right front wheel, with the effect that the rear portion of the car skidded into the truck.

In addition to the two drivers, there were two eye witnesses, but we agree with the judge, a quo, that their testimony is so manifestly erroneous that neither is entitled to belief. One of these witnesses, Patterson, was called as a witness by plaintiff. He stated that the truck was backing out into the street when it was struck. This is shown to be entirely at variance with the true facts. The other of these witnesses, a thirteen-year-old boy named Staub, placed on the stand by defendant, insisted that the truck was parked alongside the uptown curb. In this "he was manifestly in error. The fact that it was the right rear of plaintiff’s car which crashed into defendant’s truck, convinces us that plaintiff’s car must have been going at a very rapid rate because the street was dry and, under these circumstances, it would not be possible for a car to skid sideways with sufficient force to do the damage which was sustained in this case, unless prior to the application of the brakes it had been running at an excessive speed.

The judge, a quo, seems to have been of this opinion and, as he saw ana heard the witnesses, we feel that he was in a better position than are we to determine what were the true facts.

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


author: WEBB, J.

text:
    No. 3287
    Second Circuit
    HENRY v. CATLETT
    (December 19, 1929. Opinion and Decree.)
    (March 12, 1929. Rehearing Refused.)
    (April 22, 1929. Writ of Certiorari and Review Refused by Supreme Court.)
    Thomas W. Leigh, Theus, Grisham and Davis, of Monroe, attorneys for plaintiff, appellee.
    Dawkins and Dawkins, of Monroe, attorneys for defendant, appellant.
   WEBB, J.

Plaintiff, J. R. Henry, holder of a note drawn by defendant, Mrs. E. K. Catlett, wife of H. D. Catlett, on May 27, 1920, for fourteen ■ hundred dollars, bearing eight per cent per annum interest from date and stipulating for ten per cent attorney’s fees, payable to the drawer’s order one year after date and by her indorsed in blank, brought this action to recover judgment for the amount of the note, interest and attorney’s fees, and defendant appeals from a. judgment against her for the full amount claimed.

The defense set up by Mrs. Catlett was that the note was, to the knowledge of plaintiff, given for an indebtedness due by her husband, representing a part of the purchase price of property alleged to have been acquired by H. D. Catlett from plaintiff, J. R. Henry.

The evidence established that H. D. Catlett had conducted negotiations with J. R. Henry for the purchase of certain real estate; that the price agreed on for the property was sixty-five hundred dollars; and the plan agreed upon for the transfer of the property and payment of the price was that J. R. Henry should transfer the property to the Monroe Building & Loan Association for five thousand dollars, cash,' and that the building and loan association would transfer the property to Mrs. E. K. Catlett for five thousand dollars on terms of credit, represented by notes secured by mortgage on the property, and that J. R. Henry would be paid one hundred dollars and given a note drawn by Mrs. Catlett for fourteen hundred dollars secured by a second mortgage on the property transferred to her by the building and loan association, and in pursuance of the plan J. R. Henry transferred the property to the building and loan association, which, in turn, transferred it to Mrs. Catlett, who then presented a petition to the District Court to be authorized to borrow fifteen hundred dollars and secure same by a mortgage on the property acquired from the building and loan association, and under the authorization she executed the note here sued upon and which defendant now pleads was given for her- husband’s debt, incidentally attacking the authorization of the court on the ground that she was not examined separately and apart from her husband.

At the time of the negotiations for the transfer of the property and transactions in connection therewith, Mrs. Catlett was separate in property from her husband and owned considerable property, and she was not «incapacitated from contracting when authorized by -her husband (article 122, C. C.), and it appearing that her husband authorized her in the various transactions by which she acquired the property transferred by plaintiff, we do not deem it necessary to consider the attack made upon the authorization, in the light of the real transaction, as the authorization- of the husband was sufficient and the authorization of the court unnecessary (articles 122, 124, C. C.; Wilkinson vs. Stansborough, 1 La. Ann. 264; Saunders vs. Burns, 38 La. Ann. 367); and we pass to the consideration of the question as to whether or not the note was a debt of the husband, or of the wife, the drawer of the note.

While the question may, in its last analysis, involve the title to real estate, which is ordinarily conclusively determined by the act of transfer as against all parties who have not the written acknowledgment of the apparent vendee to the contrary (Barrow vs. Grant’s Estate, 116 La. 954, 41 So. 220 and authorities cited), yet conceding the rule would not prevent the wife, although separate in property from her husband, from showing, by parol evidence, that the title taken in her name was for the benefit of her husband, and that a note given by her for the purchase price was for the debt of the husband, we are of the opinion her right to do so should be restricted to instances in which her consent had been extorted from her by coercion, and where the property had been sold for a debt due by the wife long after the transaction, of which she complains, as in the present instance, that the vendor had knowledge of the coercion of the husband by which her consent was extorted.

The plaintiff in contracting with the defendant was bound to look to her capacity to contract, and could not hold her Where her consent had been obtained through the coercion of her husband. However, the evidence showing that defendant was separate in property from and that she was authorized by her husband, her capacity to contract is established, and the only question to be further considered is whether or not her consent was extorted by the coercion of her husband.

There is not any proof of any act of the husband which could be said to show coercion, much less that plaintiff had any knowledge or reason to even suspect that defendant’s consent to contract was not freely given, and while the defendant and her husband state that the purchase of the property was for the benefit of the husband, and he states that plaintiff had knowledge of such fact, which is denied by plaintiff, there is not any evidence that plaintiff was in any manner a party to any understanding or agreement between the husband and wife that the property would be purchased by the wife for the benefit of the husband, and whatever may have been the agreements between the husband and wife, whether legal or illegal, or enforceable or unenforceable, as to the relations which they would sustain, as between themselves, relative to property purchased by the wife, could not affect the vendor, or plaintiff here, as to his right to proceed against the wife who was capable of contracting, and did contract, and whose consent is not shown to have been extorted through any coercion by her husband.

The judgment appealed from is therefore affirmed.


text:
    No. 11,817
    Orleans
    RABALAIS v. ORLEANS-KENNER TRACTION CO., INC., ET AL.
    (April 29, 1929. Opinion and Decree.)

      E. L. Bordelon, of New Orleans, attorney for plaintiffs, appellees.
    Milling, Godchaux, Saal and Milling, and C. A. Buchler, of New Orleans, attorneys for defendants, appellants.
   JANVIER, J.

Plaintiff was injured while a passenger in one of the electric cars of defendant, Orleans-Kenner Traction Co., Inc. The car was struck by a train of the Louisiana Railway & Navigation Company on the crossing of the tracks of the two companies in the Parish of Jefferson, just above the corporate limits of the city of New Orleans. A few minutes before the accident the car in which plaintiff was a passenger had been brought to a stop some twenty or thirty feet before crossing the track of the Louisiana Railway & Navigation Company, because there was on that track, and extending over the crossing, a train composed of a locomotive and tender and eighteen freight cars. This train was standing still at the time the street car was brought to a stop, and all but the last three cars had already passed over the tracks of the traction company.

The electric car was forced to wait for about eight minutes, during which time the locomotive of the train switched certain freight cars to and from the industrial tracks of an industry located nearby.

After completing the switching, the locomotive was again attached to the remaining freight cars—fifteen in number—and then, at a very slow speed, pulled the train forward so that the three cars which had theretofore blocked the crossing of the street car track, passed across the tracks of the traction company and cleared the way for the street car. Thereupon the motorman put on his power and proceeded on his way to cross the railroad track. When the car had reached a point at which its middle section was about on the crossing the train, which in the meantime had stopped only a few feet after clearing the crossing, rolled slowly backwards and the rear car, an oil tank car, crushed into the side of the electric car just behind its middle section. The impact caused that side of the street car to be lifted slightly from the rails, though, fortunately, it did not turn it over, and plaintiff was injured either by being thrown to the other side of the car or by rushing over there in her fright.

Suit was brought against both companies and it is sought to hold them solidarily liable for the injuries and losses sustained. Judgment against the Louisiana Railway & Navigation Company was rendered for $1,500, but the Orleans-Kenner Traction Company, Inc., was held not liable and Judgment dismissing the suit as to it was rendered.

The railroad company, contending that it should not be held liable, claims that the accident was unavoidable, and resulted from events over which it had no control. Its explanation of the accident is that, after its train had proceeded to a point at which the last car had cleared the crossing by a few feet, the train, which was nearly six hundred feet in length, was stopped suddenly because, about six hundred twenty feet beyond the crossing there was a safety derail, which was set against the train. It is contended that, as a result of this stop, the air brakes on the train not being connected, the slack in the various draw bars of the cars was compressed and this allowed the last car to clear the crossing, but that, after the stop was made, the slack in the draw bars released itself, with the result that the length of the train was extended about eight feet and that, as a result, the last car rolled slowly backwards to the track which it had just crossed and thus crushed into the side of the standing street car.

Plaintiff stoutly maintains that the whole train was backed deliberately by the engineer. It is claimed that the train had gone a few feet farther than was intended, with the result that the engine and tender, when brought to a stop, were standing over the mechanism which operates the derail and that, when the engineer realized that this would prevent the derail from operating he backed up so as to clear this derail so that it might be 'allowed to operate, and his train permitted to proceed.

It will thus be seen that there is no doubt that the unfortunate accident resulted from the backward movement of the last car of the train, whether the backward movement was caused deliberately and intentionally by the engineer, or whether it was the inescapable result of stopping the train suddenly when its rear end yet remained so near to the crossing. It seems to us that, whichever is the case, the result is chargeable to those in charge of the train unless it can be shown that the stopping of the train was caused by something beyond their control, and of which they had no prior knowledge.

The evidence shows that the distance from the crossing to the derail was just sufficient to permit of the train being stopped between these two points and it also shows that there is in the draw bar on each end of each car, a large, powerful spring, which allows for a play of about three or four inches. It thus appears that in a train of that length there is a total play, or “take-up” in the draw bars of about eight feet. If all the draw bars are compressed, the total length of the train is about eight feet shorter than if they are all extended.

The derail to which we have referred is a small piece of iron, possibly two feet long, about six inches wide and three or four inches high, which is so arranged that it can be raised and placed upon the rail or removed therefrom by a switchman located in the tower-house some distance away. Its purpose is to prevent collisions between the trains of the defendant railroad company and those of the Illinois Central Railroad Company, the tracks of which companies cross each other only a short distance beyond the scene of the accident with which we are now concerned.

At the time of the commencement of the forward movement of the train this derail was set against it, and the signal board so indicated, so that the engineer knew that he could not cross over it without derailing his train and that, unless it were removed before his locomotive reached it, he would have to again bring his train to a stop. It appears to us that the engineer, realizing that his train had already blocked the crossing longer than was justified, determined to clear the crossing if possible. He must have known the approximate length of his train and he must have realized that it would occupy practically all of the available track between the crossing and the derail, because, if he had not realized this, it is certain that he would not have pulled his train so near to the derail as to. prevent its operation.

Knowing these facts, and being charged with knowledge of the fact that his train would, on being stopped, extend itself as a result of the draw bar extension to which we have already referred and would thus come dangerously near to the street car, which must nesessarily cross behind its train, it would appear that this engineer and those in charge of the train were negligent in not making certain that there was suffiicent room to allow for the stopping of the train and for the additional length thereof which would result from the draw bar extension.

We find a most enlightening decision'in Bell J. Augustus vs. Chicago, Rock Island & Pacific Ry. Co. et al., 153 Mo. App. 572, 134 S. W. 22. The facts in that case are remarkably similar to those here, and on the point which we are now discussing the court said:

“The trainmen should have realized that persons using the street might be misled by the movement of the train away from the crossing into the supposition that it was being pulled away by the engine and would not return immediately. The fact that the movement was caused by the taking up of slack was peculiarly within the knowledge of the trainmen, and, in the exercise of reasonable care, they should not have stopped at a place where the train would ‘kick’ back and strike an unwary traveler who might be in its path.”

We can well understand that it would not constitute negligence to stop a train so soon after going over a crossing if the stop were made necessary by an unforeseen emergency, or by some condition of which the engineer had no prior , knowledge. Here, however, he knew quite well that the derail was set against him and that, unless it were removed within the few moments or seconds required for him to go only about 125 or 150 feet, he would have to bring his train to a sudden stop. In fact, it might reasonably be said that he knew when he started his train, almost to a certainty, that he would have to stop immediately after clearing the track.

It would thus appear that, even conceding that the back movement was not made deliberately or intentionally, and that the engine itself did not move backwards at all, still, what happened, should have been within the knowledge of an experienced railroad crew, and they should have foreseen that just such a thing would occur. Having this knowledge, the accident is chargeable to their- negligence.

Of course, if the movement was made deliberately there can be no doubt that the defendant railroad company should be held responsible therefor.

Some attempt was made to show that when the crossing was clear the motorman of the street car was warned not to go across the track, but we are of the opinion that the evidence falls far short of showing 'that a warning, such as the danger- of the situation required, was actually given.

We are told, in argument, that it is not negligence to operate a train in a switching movement without a substantial number of the cars having their air brakes connected. We realize that the federal authorities do not require that trains operated in switching movements must have air lines connected, but we believe that where trains are operated in this fashion, even within railroad yards and in switching operations, the operators are bound to take unusual precautions and that, while such acts as failure to connect air lines may not constitute negligence per se, if, as a result of such failure, accidents happen which would not otherwise have occurred, the railroad companies should be held responsible. Here it is certain that if the air brakes had been working, the train would not have rolled backwards as it did. That the brakes were not connected was well known to the crew of the train, but not to the crew of the street car. When the crew of the street car saw the train clear its track, they were justified in assuming that it would not immediately return either intentionally or otherwise.

Counsel for the railroad company contends that the reasoning in the opinion of Augustus vs. Chicago, Rock Island & Pac, Ry., supra, in which the street railway was likewise held negligent, is so logical that it is unanswerable. We quite agree with him. But we find in that case one important fact which, in our minds, distinguishes it from the case at bar, and that fact is, as found by the court: “The flagman signalled the motorman to stop and remain where he was when his car was in a place of safety and the motorman disobeyed that signal in proceeding to cross.”

If we felt that a proper warning had been given to the crew of the car and that that warning had been carelessly or deliberately disregarded, we would of course be unable to hold the railroad company liable and would certainly fasten responsibility on the traction company, but, as we have already stated, we do not believe that such warning was given.

So far as the Orleans-Kenner Traction Company is concerned, it seems to us that their employes were justified in proceeding across the track as soon as the train had cleared it a sufficient distance to lead them to believe it was safe to cross. They ■had not the knowledge, which was in the possession of the engineer of the train, that the derail was set against the train, and that it must therefore come to a sudden stop, nor did they know that the train brakes were not connected and that, therefore, if it did come to a sudden stop, the spring expansion in the draw bars would force the rear end of it to roll back upon them.

Por these reasons we are of the opinion that the findings of the lower court, to the effect that the railroad company should be held liable and that the suit as against the traction company should be dismissed, was correct.

The trial court allowed plaintiff $1,500. Plaintiff’s injuries consisted principally of bruises and external injuries to her chest and legs. They do not seem to be permanent. She was confined to her bed for three weeks and for about six months could not follow her usual occupation, that of dress-making and sewing. Her physician testified that, as a result of her injuries, she was for a time subjected to spells of nausea, but we do not gather from his evidence that he believes her injuries caused her more than temporary suffering and inconvenience. We believe that the amount allowed by the trial court is out of line with previous awards of this and the Supreme Court and should be reduced to $1,000.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be and it is amended by reducing the amount thereof to one thousand dollars '($1,000) and, as thus amended, affirmed.


text:
    No. 11,727
    Orleans
    CAVILL v. THE WELFARE LOAN SOCIETY OF NEW ORLEANS
    (May 27, 1929. Opinion and Decree.)
    Dart and Dart, and Leo. L. Dubourg, of New Orleans, attorneys for plaintiff, appellant.
    Sol Weiss, of New Orleans, attorney for defendant, appellee.
   WESTERFIELD, J.

Plaintiff alleges that he purchased stock in the defendant corporation of the par value of $185; that bogus certificates were issued to him which the company subsequently refused to recognize. He sues for the return of the $185, paid the defendant corporation.

An exception of no cause of action was filed by defendant and maintained by the court, a qua. Plaintiff has appealed.

The argument in support of the exception of no cause of action is that plaintiff’s remedy is by mandamus and that there is no allegation in the petition to the effect that tender of the alleged worthless stock was made to the defendant corporation.

The relation between plaintiff and defendant is contractual. Plaintiff bought and defendant sold, a certain number of shares of its capital stock. -The delivery of bogus stock was not a compliance with defendant’s obligation.

Mandamus was not the proper remedy. State vs. Railroad Company, 37 La. Ann. 591; State vs. Public Service, Inc., 163 La. 80, 111 So. 503.

The allegation of the petition is that the stock as delivered to plaintiff was bogus and worthless and for the purpose of our present consideration we must take this allegation to be true. We do not agree with counsel in his contention that an allegation that a thing is worthless is a conclusion of law. A purchaser of stock need not tender worthless certificates as a condition precedent to an action to rescind or for the return of the purchase price. Fletcher on Corporations, vol. 6, section 3880, p. 6555; King vs. Livingston Manufacturing Company, 192 Ala. 269, 68 So. 897.

If, upon the trial of the case, it develops that the alleged worthless certificate of stock has been transferred, to the prejudice of defendant, and in compliance with section 8 of Act 180 of 1910 (Uniform Stock Transfer Act), so as to entitle the transferee to bona fide shares to the number-called for by the certificate, full effect may be given to the situation and plaintiff’s interests protected by the trial court. •

We are of the opinion that the petition sets forth a cause of action, consequently, for the reasons assigned, the judgment appealed from is reversed, the exception of no cause of action overruled, and this case remanded to the First City Court of the City of New Orleans for further proceedings according to law and consistent with the views herein expressed.


author: ELLIOTT, J.

text:
    No. 448
    First Circuit
    FIDELITY UNION CASUALTY CO. v. ROMERO
    (May 7, 1929. Opinion and Decree.)
    C. Arthur Provost, of New Iberia, attorney for plaintiff, appellee.

      Lessley and Rouly, of Lafayette, attorneys for defendant, appellant.
   ELLIOTT, J.

Fidelity Union Casualty Company, assignee of Earl W. Hall, and subrogee of his rights, claims of Lastie Romero $105.75 as the amount of damage done to an automobile belonging to said Hall, by said Romero.

The defendant excepted to plaintiff’s demand on the ground that its petition failed to disclose a cause or right of action. The exception was overruled. The defendant then answered under reserve of his rights to the exception. He objected to evidence in support of plaintiff’s demand, on the ground that the petition set forth no cause of action. This objection was also overruled, the evidence received and judgment rendered in favor of the plaintiff, based thereon.

The defendant urges that the ruling was erroneous; that the exception should have been sustained and the suit dismissed.

Plaintiff alleges that on January 28, 1928, in New Iberia, La., Hall’s automobile was run into and damaged by that of defendant, which was being driven in an unlawful .reckless, careless and negligent manner under the authority, direction and order of said Romero, who was in the automobile at the time. That the damage aforesaid was caused by said recklessness, gross negligence, want of skill and reckless disregard of petitioner’s rights, on the part of said Romero, and that petitioner did in no way contribute to the said occurrence.

The plaintiff alleges that the occurrence took place in New Iberia and we take cognizance of the fact that New Iberia is a city, but we cannot take cognizance of an ordinance of the city, in ruling on the exception of no cause of action, because it is not alleged that defendant violated a city ordinance. Valenti vs. Oster Bros. Carriage & Wagon Mfg. Co., 154 La. 991, 98 So. 553.

It is not alleged that Hall’s automobile was on a city street at the time, nor that he was driving too fast. No particular act is alleged from which it could be inferred that his driving was illegal, reckless, careless or negligent. The statement that his acts were unlawful, careless, reckless or negligent, and that the damage aforesaid was caused by said recklessness, gross negligence, want of skill and reckless disregard of petitioner’s rights, and that the said Hall did in no way contribute thereto, amounts to nothing further than a legal conclusion. The ultimate facts from which such things can be the proper result, should have been alleged.

The Code of Practice, art. 172, No. 4 provides:

“That the petition must contain a clear and concise statement * * * of the cause of action on which it is founded.”

The Supreme Court has held in a line of decisions that allegations for supporting the petition must be of facts and not conclusions of law. State vs. Hackley, Hume & Joyce, 124 La. 854, 50 So. 772; Levy vs. Desposito, 133 La. 128, 62 So. 599; Hills vs. City of New Orleans, 139 La. 537, 71 So. 797; Arent vs. Liquidating Commissioners of Bank of Monroe, 133 La. 134, 62 So. 602.

The exception of no cause of action should have been sustained.

For these reasons the judgment appealed from is annulled, avoided and set aside.

The exception of no cause of action is sustained and the suit dismissed, without prejudice to plaintiff’s right to bring another suit based on proper allegations. The plaintiff and appellee to pay the cost in both courts.


author: O'DOM, J.

text:
    No. 3086
    Second Circuit
    HAMILTON v. RIGBY
    (March 14, 1928. Opinion and Decree.)
    (April 26, 1928. Rehearing Refused.)
    (July 6, 1928. Writ of Certiorari and Review Refused by Supreme Court.)
    Dimiclc and Hamilton, of Shreveport, attorneys for plaintiff, appellant.
    R. D. Puller and Crow & Coleman, of Shreveport, attorneys for defendant, appellee.
   O'DOM, J.

Plaintiff is the holder and owner of three promissory notes, each for the sum of $55, dated October 1, 1925, and due, respectively ten, eleven and twelve months after date, made payable to Mrs. Grover Weaver, signed by J. H. Elliot, and endorsed by the defendant, O. C. Rigby.

Pie brings this suit against said O. C. Rigby to recover the amount of said notes, together with 8 per cent interest from their maturity until paid and 10 per cent attorney’s fees.

The defendant, in answer, admitted that he signed the notes sued on as endorser, but set up the defense that he endorsed the notes with the understanding that he was to be released from said endorsement under certain conditions, which will be detailed in this opinion.

Plaintiff’s demands were rejected by the lower court and he has appealed.

OPINION

In the month of December, 1925, the plaintiff purchased from Mrs. Grover Weaver an apartment house in the city of Shreveport. On or about October 1st, previous to the sale, Mrs. Weaver leased one of the apartments in the house to J. H. Elliott for a period of twelve months at $55 per month and took his notes for the monthly rentals covering the entire period. As was her custom, she placed all twelve of the notes in a bank in Shreveport for collection. Elliott, it seems, paid three of the notes to the bank for Mrs. Weaver’s account, and when she sold the property to the plaintiff, Hamilton, she turned over to him the other nine notes.

About the last of January or the first of February, 1926, Elliott, the lessee of the apartment and the maker of the notes sued on, desired to move out, and went to Hamilton, who then owned the house, to get released from his contract. Hamilton informed him that he would release him only on condition that he would get some responsible person to endorse the rent notes and thereby become bound for the monthly rentals. Elliott suggested O. C. Rigby, the defendant, as an endorser. Hamilton made some investigation as to Rigby’s financial standing and agreed to accept him, whereupon Rigby endorsed the notes. All the notes except three were paid. Hamilton now seeks to hold Rigby as endorser on the notes. Hence this suit.

The only dispute between Hamilton and Rigby is this: Rigby contends that Hamilton agreed at the time the notes were endorsed by him that in case the apartment leased by Elliott could be sub-let to a tenant satisfactory to Hamilton, he, Rigby, would be released from his obligation as endorser on the notes, and he says that the apartment was sub-let to a tenant who was approved by Hamilton, and he, Rigby, pleads release.

• Hamilton, on the other hand, while admitting that said apartment was sublet to a tenant satisfactory to him, denied that he agreed to release Rigby. Hamilton admits that he did approve the subtenant, but he says it was understood between him, on the one side, and Elliott and Rigby on the other, that Elliott should not sub-let the apartment to any one not approved by him, but that his approval related to the desirability of the new tenant as an agreeable and acceptable neighbor to other tenants in the house and had no reference to financial responsibility or a release of Rigby.

The testimony shows beyond question that it was never intended that Rigby should be released from his endorsement on the notes and that he was not in fact released. Hamilton swore that he did not agree to release and did not release Rig-by. Rigby, in portions of his testimony, swore that Hamilton did agree to release him if a satisfactory sub-tenant could be secured. But his testimony, as a whole, is rather conflicting on this point. He was asked to state the conditions under which he endorsed the notes, and he said he asked Hamilton the direct question as to the release, and that Hamilton said, “We can arrange that,” whereupon, he said, they went to Hamilton’s office and that Hamliton wrote Elliott a letter “giving Mr. Elliott authority to sublet his house.” The letter which Hamilton wrote to Elliott is in the record, and reads as follows:

“We do hereby give our consent to your subletting the apartment now occupied by you at 620 Prospect avenue, same being apartment No. 4. It is understood that we reserve the right to approve any tenant to whom you wish to make the sublease.”

There is nothing in the letter that suggests that Hamilton was willing to release Rigby. It is in keeping with Hamilton’s testimony that he was willing and agreed that the apartment might be sub-let to a satisfactory tenant.

Rigby says he approached Hamilton on one occasion and asked about the release and Hamilton (who was examining Rigby in court) asked :

“What did I say?”

and Rigby answered:

“You said I, I, I will see about it, about all I ever got out of you.”

The apartment was sub-let to a man named Sandlin, who kept it until June, and paid his rent. Rigby testified:

“Sandlin paid me, and I paid the bank, and the bank paid ypu (Hamilton) I think.”

Rigby was asked:

“Then the rent notes were paid by you to the bank?”

And he answered:

“They were.”
“Q. And delivered by the bank to you?
“A. They were.”

This continued down to June, about five months after Rigby says he was released. The fact that Rigby accepted rent from Sandlin and paid the notes at the bank and that they were delivered to him, shows conclusively, we think, . that he recognized his obligation to see that the notes were paid. Sandlin moved out in June, and the three notes sued on were left in the bank unpaid. When plaintiff called on Rigby to pay these notes he repudiated his obligation and refused to pay, on the ground that he had been released.

In addition to this, a man named Fish-ell at one time wanted to lease the apartment. He said he learned that Rigby had it in charge after Elliott left. He went to Rigby and leased it from him and paid Rigby one month’s rent in advance.

S. B. Simon, a realtor, testified that he wanted the apartment for a client and went to Hamilton. Hamilton told him that the apartment was leased and that Rigby had charge of it. He saw Rigby and leased it from him and went back to Hamilton and got his approval of the tenant, Sandlin.

Another realtor testified that he went to Hamilton about the apartment and was referred to Rigby.

The Judge of the lower court mainfestly erred in holding that Rigby was released from his obligation as endorser.

Another defense made by defendant is:

“That the plaintiff and appellant had released a prior endorser, namely, Mrs. Grover Weaver, and that he was therefore discharged from any liability on the notes.”

This defense is not good. The notes were made payable to Mrs. Weaver as lessor. When she sold the property to Hamilton she delivered the rent notes to him and as they were payable to her she endorsed them solely for the purpose of transferring and delivering them.

Counsel argue that she was a surety on the notes and that plaintiff did release her. There is no evidence that plaintiff did release her. But suppose it be conceded that she was a surety and was released, that did not release defendant. A release granted to one of the sureties does not release the other.

Civil Code, art. 2205.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from be reversed, and it is now ordered, adjudged and decreed that there be judgment in favor of plaintiff, W. B. Hamilton, and against O. C. Rigby, defendant, for the full sum of $165 together with 8 per cent per annum interest on. $55 of said amount from August 1, 1926, until paid, and on $55 of said amount from September 1, 1926, until paid, and on $55 of said amount from October 1, 1926, until paid, together with 10 rper cent attorney’s fees, and all costs.


author: MOUTON, J.

text:
    No. 382
    First Circuit
    BANK OF BALDWIN v. BROUSSARD (BANTA, Garnishee)
    For original opinion, see 10 La. App. 404.
    Brumby & Bauer, of Franklin, attorneys for defendant, appellant.
    Borah, Himel, Bloch & Borah, of Franklin, attorneys for plaintiff, appellee.
   ON APPLICATION FOR REHEARING.

MOUTON, J.

Counsel for applicant does not complain of that part of our opinion wherein we held that plaintiff bank was not compelled to resort to a separate proceeding under the revocatory action. We therefore assume that the errors complained of refer exclusively to our judgment on the- merits of the case.

In support of their contention that Broussard, was solvent at the time of the transfer, counsel for Banta rely to a large extent on the testimony of Lebourgois, who gave Broussard an extension for the bank of 30 days on the note.

It is true Lezourgois said Broussard had an automobile, but then says: “I suppose it was his.” He said also that Broussard had enough to pay his note, over and above his rice, but proceeds immediately to say: “Yes, I thought I could get my note.” Finally, testifying along these lines, he says: “I granted him an extension on the statement that he made to me about having the rice to pay the note. That was what I based my extension on. He told me, he had the rice to pay the note, but he would have to sacrifice it to take the note up then.” It is clear from these statements that Lebourgois had his eye on the rice for the payment of the note, and al-lowed the extension believing that Broussard, would pay the amount on what he would realize on his rice, but in which he was to be sadly disappointed.

Four letters were written by Broussard to Himel, Lebourgois, and the plaintiff bank in which he made the declaration that he could not pay his debts, and which indicated that he was in a state of insolvency. Counsel say that such declarations were the “rankest sort of hearsay testimony in so far as Banta is concerned.”

In this suit the transaction is attacked as a simulation, and in the alternative as a fraudulent transfer.

In the case of Gaidry vs. Lyons, 29 La. Ann. 4, where similar issues were involved, and where such declarations were characterized as hearsay, the court quoted from Davis vs. Stern, 15 La. Ann. 177, as follows:

“Conversations or admissions of the parties implicated in tie fraud or simulation may be offered by creditors, the objection to such evidence going to the effect or weight of it when the declarations are .not made in the presence of the other party.”

In the 29 La. Ann. case, the court not only approved the ruling in the case quoted from, but added the following:

“In such cases a large latitude in the admission of evidence is not merely permitted, but enjoined.”

It is extremely difficult to prove simulation or to ferret out fraud, and but in rare instances is it susceptible of positive and direct proof; and this is the reason for the relaxation of the rule of law in such cases, says the court in Davis vs. Stern, 15 La. Ann. 177.

The same reasoning is found in Pass vs. •Rice Bros & Co., 30 La. Ann. 1278, a much later decision. The following are a few of the many decisions of our courts from our earliest adjudications which have uniformly recognized that doctrine: Martin vs. Reeves, 3 Mart. (N. S.) p. 22, 15 Am. Dec. 154; Cannon vs. White, 16 La. Ann. 85; Montgomery vs. Chaney, 13 La. Ann. 207; Boissy vs. Lacou, 10 La. Ann. 29.

As .it was shown, for the reasons given in our original opinion, that Banta had participated in the fraud and was clearly implicated therein, the declarations of Broussard in the letters were admissible against him, the objection thereto going to their weight or effect, under the rulings in the decisions above cited.

Counsel say that in the opinion rendered by us we erroneously stated that Banta had obtained the extension on the note for Broussard. In that respect counsel is correct. On this question we will say, however, that Banta was a nephew of Broussard by marriage, that he had been associated with him in "business for two or three years, had represented him in his business while Broussard was sick in New Orleans, had sold his rice crop, had sought to obtain a reduction of his rent note with the plaintiff bank, in fact, had intimate confidential business relations with Broussard, all of which irresistibly lead to the conclusion that Banta knew that this note had been extended by the bank. To conclude otherwise would do violence to the whole trend of the evidence in this record, and, though it be true that Banta did not obtain the extension on the note, he nevertheless knew the extension expired about the time he claims to have acquired the rice under the transfer.

Counsel say further that this court held the transaction either simulated or fraudulent, and in that respect reversed the trial court.

In its opinion the lower court referred to the transaction as a simulation, but refrained from decreeing that it was a simulation, and then proceeded to render its judgment decreeing its annulment as a “fraudulent transfer.” In commenting on the evidence in the course of our opinion, we made a similar reference to the transaction, but nowhere indicated that we held it to be a simulation. We said that Banta had obtained a preference from Broussard who was known to him as being an insolvent and which laid the contract for the transfer open to annulment, and then proceeded to affirm the judgment which rested on the declaration that the transaction was “a fraudulent transfer,” and was for that reason annulled.

A simulation is a sham, a myth, and the decree of annulment rendered below and affirmed by this court had no possible reference to a simulation which could have no existence, and could not be either set aside or annulled.

Por the foregoing reasons and those expressed in our original opinion, the rehearing is refused.


text:
    No. 10620
    Orleans
    NEE v. N. O. PUBLIC SERVICE, INC.
    (April 29, 1929. Opinion and Decree.)
    (May 27, 1929. Rehearing Refused.)

      J. C. Henriques and Frank T. Doyle, of New Orleans, attorneys for plaintiff, appellee.
    Ivy G. Kittredge, of New Orleans, attorney for defendant, appellant.
   JANVIER, J.

On a rainy morning in May, 1922, Mrs. Dwyer, who will be hereafter referred to as plaintiff, accompanied by her young son, at the corner of Third and Freret Streets, boarded a car bound uptown, operated by employees of the Receiver of New Orleans Railway and Light Company.

Plaintiff paid the fares for herself and her son and, after receiving her change and the transfers which she had asked for, entered the body of the car in order to obtain a seat.

As she reached a point a few feet within the body of the car, she fell backwards and, in falling, broke her right arm in two places and sustained severe bruises to her back and a general nervous shock.

Defendant corporation was organized for the purpose of buying and taking over the properties formerly owned by New Orleans Railway & Light Company, and operated at the time of the accident by the Receiver appointed by the United States District Court.

Defendant corporation at receivership sale bought and took over the properties which had been operated by the Receiver. At the sale one of the conditions imposed by the court was the assumption by the purchaser of such responsibility for accidents as was by law imposed upon the Receiver.

In the petition it was alleged that petitioner’s fall was occasioned by the fact that while she was seeking a seat the car suddenly decreased its speed, which threw her off her balance, and then as suddenly increased it, with the result that she was thrown backwards. She alleges that as she was falling backwards she attempted to regain her balance, but that one of the trap doors in the floor of the car was raised above its normal position and that she tripped over this and was thrown violently backwards to the floor. Quite peculiarly, in her testimony she denies that the car gave a lurch forward* and stoutly maintains that it was the slowing down of the car which caused her to lose her balance.

As plaintiff was a passenger, and since there is no gainsaying the fact that she received injuries, the burden, under the jurisprudence of this State, is placed upon defendant to show that the injuries were not the result of its negligence. It must explain how the accident happened and must show that the cause thereof cannot be attributed to its fault.

Haynes vs. L. R. & N. Co., 140 La. 1019, 74 So. 538.

Hopkins vs. N. O. Ry. & L. Co., 150 La. 61, 90 So. 512.

Cn the other hand, a carrier is not made liable to a passenger merely by reason of the happening of an accident, and if it can show that the cause of the accident was something beyond its control, or was the negligence of the passenger injured, no liability results. It is not an insurer of the safety of passengers.

Massicot vs. N. O. Ry. & L. Co., 141 La. 622, 75 So. 490.

Aiken vs. Sou. Pac. Co., 104 La. 157, 29 So. 1.

Gilliam vs. T. & P. R. R. Co., 114 La. 272, 38 So. 166.

Defendant’s contention is that 'as plaintiff entered the body of the ear with her parasol in her left hand, the car was just starting to move forward and that the parasol caught either in a crack or hole in the floor or hooked on one of the seats, with the result that the forward movement of plaintiff was arrested and that this, added to the fact that the forward movement of the car would have had a tendency to throw plaintiff backwards anyway, caused her to lose her balance and to fall to her back.

We are much impressed at the outset with the vehement denial of plaintiff that it was the sudden starting forward of the car that threw her off her balance. She insists that it was the slowing down which was responsible. It cannot be denied that, when a vehicle is in motion and it is suddenly stopped or slowed down, all persons in it are, by the momentum which they have acquired, thrown forward, not backward. Therefore, if plaintiff was thrown off her balance by the sudden stopping or slowing up, of the car, she would have been thrown on her face and not on her back. If, on the other hand, her forward movement as she walked up the aisle was first arrested by her parasol catching on some part of the car, it is quite easy to understand how she was thrown off her balance in a backward direction, particularly when it is borne in mind that the car just at that moment was undoubtedly gaining momentum.

It is true that plaintiff denied on the witness stand that her parasol had caught on any part of the car. However, her statement made as a witness is so directly at variance with many statements made by her just after the happening of the accident, when there had not yet come into her mind the idea of a damage suit, that we find it difficult to believe that her statement made on the stand was not prompted by the desire to further the interests of her suit.

We find it conclusively shown that immediately after the happening of the accident she stated to at least five persons that her fall was the result of her catching her umbrella on the floor of the car. In addition to those to whom she made the statement, we find two others who saw her umbrella hook on some portion of the car. Plaintiff’s counsel argues that the many statements she made, to the effect that her parasol caught in the floor of the car, should be disregarded, because at the time she made these statements she was suffering great pain and was not responsible for what she said.

It is true that when one is out of one’s head as a result of pain, and in such condition makes irrational or foolish remarks, these remarks mean nothing, but here the statements made. were in all respects rational and all the other facts mentioned in the statements were shown to be reasonable, logical and truthful. Why, then, should we disregard her statement in this one particular merely because it does not happen to coincide with the necessities of her lawsuit.

That it was her parasol that was the cause of the fall was told by her to Parr, to Renaud, to Dr. Thibaut, to Bourgeois and to Sheppard. That she also told her husband the same thing seems quite certain. Mr. Dwyer’s denial at first that she told him anything about how the accident happened, and his reluctant admission later that she did tell him, indicates to our mind that he was not testifying with absolute frankness.

It is argued that Gremillon, the conductor of the car, contradicts the statements made by plaintiff that she caught her parasol in the floor, because he stated that he saw her catch her parasol on the seat of the car. As a matter of fact, Mrs. Dwyer probably did not know just where her parasol had caught, but was certain that it had hooked or caught on something and therefore her statements and the statement of Gremillon differ only in such inconsequential details as to prove that the .statements of both were made in good faith, and represent what each believed to be the truth.

Even Madison, one of plaintiff’s witnesses, says that he saw the parasol catch in the door of the car as plaintiff was entering the body of the car, but he claims that she released it, and that the fall did not take place until some time later. We think it quite significant that he did notice the parasol catch on some part of the car, and it seems quite improbable that, if so long a time as he would have us believe elapsed between the catching of the parasol and the fall of plaintiff, he would have remembered it so well.

As to the alleged unevenness of the floor of the car, we find that all of the positive evidence, except the testimony of Madison and that of Bergeron, contradicts plaintiff’s statement that there was such unevenness. The car had been in operation for a long time that morning. It had carried heavy loads of passengers and if the trap door had been raised above the rest of the floor three-quarters of an inch, it is practically certain that many of these passengers would have tripped over it. Furthermore, an examination of the floor made by several people immediately after the accident did not show any defect or unevenness. Most significant of all we find the testimony of plaintiff’s two witnesses, Madison and Berger-on, to the effect that the elevation was at the rear end of the. trap door and not at the front end. If this elevation were in fact at the rear end it could not have caused or in any way contributed to plaintiff’s fall, because she could only have stumbled over it while moving forward, not while moving backward.

The evidence as to the sudden stopping or starting of the car is not convincing and shows that there was nothing unusual about its operation at that time. Cars must be stopped and must be started, and if these operations are conducted without unusual jolt or jar, no liability results merely by reason of the fact that some person is thrown off balance.

Sharp vs. N. O. City Rd. Co., 111 La. 395, 35 So. 614.

Veith vs. N. O. Ry. & L. Co., 152 La. 47, 92 So. 730.

Philip vs. St. Charles St. R. R. Co., 106 La. 592, 31 So. 135.

Vincent vs. N. O. Ry. & L. Co., 134 La. 634, 64 So. 654.

An examination of the floor showed no unusual hole or defect, or crack, and it is a well-known fact thaC vehicles such as street cars, railroad cars, steamboats, etc., must necessarily be so constructed that there are small cracks and holes here and there, but if those cracks and holes are only such as are usually found in such vehicles, accidents, though to some extent traceable thereto, are not chargeable to the negligence of the operators or owners.

Perkins vs. Bay State Ry. Co., 223 Mass. 235, 111 N. E. 717.

A careful review of the evidence convinces us that the cause of the happening of this accident was the carelessness of plaintiff in catching her parasol upon some part of the car and in attempting to walk up the aisle of the car without bracing herself by holding on, as is usually done, particularly by women passengers.

The verdict of the jury was in favor of Mrs. Dwyer for $3,750 and in favor of Mr. Dwyer for $517.50, which, apparently, was the amount expended by him for doctor’s bills, etc.

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


author: JANVÍER, J.

text:
    No. 10,962
    Orleans
    MATHES v. SCHWING ET AL.
    (April 29, 1929. Opinion and Decree.)

      Milling, Godchaux, Saal and Milling, of New Orleans, attorneys for plaintiff, appellee.
    J. C. Henriques and Prank T. Doyle, of New Orleans, attorneys for defendants, appellants.
   ON REHEARING.

JANVÍER, J.

The facts of this case are fully stated in the original opinion and it is unnecessary to repeat them here.

The rehearing was granted because we desired a fuller discussion of the question of the protection afforded by the traffic ordinance (to-wit, No. 7490 Commission Council Series) to a person not on the usual crossing, but emerging from behind a street car, and at a point forty or fifty feet nearer the center of the square than the usual pedestrian walk-way across the street.

In the original opinion it was held that portion of the ordinance (subsection (e) of article 1 of Section 1) which prohibits • vehicles from passing street cars, when stopped or about to stop to take on or let off passengers, has no application and affords no protection to a pedestrian elsewhere than at the usual alighting place, or on the usual pedestrian walk-way.

Plaintiff now urges us to hold that the subsection to which we have just referred, instead of affording, protection only to such pedestrians as are at the points mentioned by us, creates a danger zone which extends a reasonable distance beyond both ends of the car, and that all persons within this zone may assume that no car will enter and that such persons may rely on this assumption and need take no precautions whatever for their own safety.

Such a construction would be reasonable if the ordinance contained only those provisions relating to the other vehicles which are prohibited from entering such a'clanger zone, but it will not do to consider only those portions of the ordinance which are favorable to plaintiff, nor can we look at the ordinance section by section, or piecemeal. It must be interpreted as a whole and we cannot give to one section a meaning which would nullify another. To interpret that section as is contended for by plaintiff would render meaningless paragraph (e) of Section 7, which provides:

“When alighting from street cars, pedestrians should be sure the way is clear before crossing behind the car.’’

Plaintiff contends that the use of the word “should” in paragraph (e) of Section 7 deprives this paragraph of any mandatory effect and makes out of it a mere declaration of a rule of safe conduct. Conceding that there is a distinction between the use of the word “shall” and the use of the word “should” — and it seems to us that some distinction was intended — the fact that such a provision is included in the ordinance evidences an intention of the framers thereof that, even with the inclusion in the ordinance of the prohibition against vehicles entering the danger zone, pedestrians should not be relieved from all duty to exercise care.

It is quite evident that whether paragarph (c) of Section 7 is mandatory, or is merely declaratory of a rule of safe conduct, it was grossly violated by young Mathes who, without an instant’s hesitation, or even a glance into the direction from which danger was approaching, as was said in the original opinion, “suddenly emerged from behind the car and stepped into the side of the automobile.” This court might have said “jumped” into the side of the automobile, because that is what young Mathes testifies he did.

Plaintiff argues that Jones vs. N. O. Ry. & Light Co., 123 La. 1060, 49 So. 706, is directly in point here and that under the principles announced ’therein we would be justified in awarding a judgment to plaintiff.

We do not think so, as we do not think that the Jones case is controlling here, because the ordinance which was invoked in that case did not contain a provision similar to that in the ordinance in question here and which provision requires persons passing around the back of street ears to look out for their own safety. In other words, if the ordinance in question here had merely contained the provision first referred to, to the effect that vehicles should not pass standing street ears, on this feature the Jones case might have been in point, but in the case now ‘before us the ordinance contains not. only that provision, but also the further provision that persons passing behind street cars should exercise care.

We think that the case of Shelly vs. Waguespack, 156 La. 258, 100 So. 417, is much more nearly in joint. In the Shelley case no ordinance was referred to as governing the actions either of the driver of the automobile or of the person crossing the street, and the court held that Mrs. Shelly was negligent in emerging from behind the street car without looking out for her own safety and in going into the path of the approaching automobile. As the court in that case said:

“While a person driving an automobile is required to exercise the greatest caution and prudence when passing street crossr ings used by pedestrians, a like duty devolves upon a pedestrian.”

It seems to us that, although the purpose of the framers of the present traffic ordinance was to require that the automobile driver should not pass a standing street car, yet they did not intend to entirely relieve the pedestrian of the duty of exercising care. It seems, then, that although the defendants were negligent in entering the danger zone — and in passing let us say that we adhere to our former opinion and do not believe that they were operating the car at an excessive rate of speed — such negligence would not authorize us to award damages if young Mathes himself violated either the mandatory or directory provisions of the ordinance, and if this violation contributed proximately to the unfortunate • result. It is quite evident that, had young Mathes followed the provisions of the ordinance to which we have referred, he would have seen the automobile approaching and would not have stepped out from his position of safety.

A most interesting case, involving facts indentical with those presented here, is found in Day vs. Cunningham, 133 Atl. 855. The only difference as to facts be: tween that case and the'case before us is that there there was no statute or ordinance applicable, whereas here the duties of each of the parties were specifically prescribed by ordinance. In that case the court held defendant liable, but said:

“Nor is the defense of contributory negligence established. A pedestrian about to cross a road, or, as in the present case, to walk from a street car to the sidewalk, is not as a matter of law bound to look and listen. Shaw vs. Bolton, 122 Me. 234, 119 A. 801.”

With us the contrary is true, for even without the ordinance it is held to be negligence to go into a place of known or obvious danger without looking, although the .danger results only from the fact that the other party has violated its obligation to the public. Gibbons vs. N. O. Terminal Co., 1 La. App. 371.

It is contended that young Mathes should not be held to the same high degree of care which should be required of a full-grown person, and as authority for this contention plaintiff’s attorney cites Shally vs. N. O. Public Service, Inc., et al., 1 La. App. 770. The evidence convinces us that young Mathes was a bright, energetic young fellow in the full possession of his faculties, and that it was negligence for him to do what he did do in this case, and that his age and experience were such that his actions can be held to constitute contributory negligence.

Counsel for plaintiff argues most ingeniously that Section 4 of the ordinance referred to has no application here because that section prohibits pedestrians from crossing streets except at street intersections, or diagonally, whereas, argues counsel, young Mathes was not crossing the street but was merely going from a point in the street to the sidewalk.

Whether, strictly speaking, Mathes was crossing the street or not is of little importance, because it was plainly the intention of the framers of the ordinance to prohibit pedestrians from being in the street elsewhere than at street intersections, 'and it seems to us to be splitting hairs to say that a person is not engaged in crossing a street merely because he has not traversed the entire street from curb to curb. Suppose he had alighted from an automobile instead of from a street car. Could it be argued that he was not in the street in violation of Section 4 of the ordinance? We think not.

Furthermore, sub-paragraph (c) of Section 7 of the ordinance applies the word “cross” to the very thing young Mathes was doing. This sub-paragraph provides:

“When alighting from street cars, pedestrians should be sure the way is clear before crossing behind the car.”

We are therefore of the opinion that, although pedestrians who cross behind street ears at points other than the usual pedestrian walk-way are within the zone protected by the ordinance, they are not, under such circumstances, relieved from the duty of taking ordinary precautions for their own safety.

We realize that the question presented is by no means free from doubt, but we believe that the decisions in Gibbons vs. N. 0. Terminal Co. (supra), and in Shelley vs. Waguespack, (supra), are authority for the view that, even under the circumstances presented here, persons must exercise some small degree of care.

Were we authorized, under the jurisprudence of Louisiana, to weigh the negligence of the defendants against that of young Mathes, and to award a judgment in accordance with the result shown by the scales, we would have no hesitation in saying that the defendants would suffer as a result of that test, because, in our opinion, their negligence would greatly outweigh that of the young man. However-, in this state, in spite of the provision of paragraph 13 of article 3556, Civil Code, the doctrine of comparative negligence is not recognized. Rice vs. Crescent City R. Co., 51 La. Ann. 108, 24 So. 791; Belle Alliance Co. vs. Texas, etc., R. Co., 125 La. 777, 51 So. 846.

In several cases, notably Legendre vs. Consumers Seltzer and Mineral Water Mfg. Co., 147 La. 122, 84 So. 517, the Supreme Court, in discussing situations very similar to that presented here, has held that the negligence of the injured party in stepping into the street in the path of approaching danger, was of sufficient gravity to prevent recovery. Such negligence, then, must have fallen either within the first or the second class set forth in the codal paragraph above referred to. If it fell in the first class and was gross, it would of course prevent recovery. Even if it fell in the second class and could be graded as “slight,” it would still prevent recovery, and it is only if it could be placed in the third class and graded as very slight that it would, in the language of the code, be excusable and would incur no responsibility.

Being of the view that the negligence of young Mathes, although not so great as that of the defendants, cannot be placed in the third class and graded as very slight, we are forced to the conclusion that it was of sufficient gravity to constitute contributory negligence and thus to prevent recovery.

It is therefore ordered, adjudged, and decreed that the decree originally rendered by this court be and it is reinstated, and accordingly it is now ordered that the judgment of the district court be annulled, avoided and reversed, and that plaintiff’s suit be dismissed at his cost in both courts.


text:
    No. 435
    First Circuit
    HENDERSON v. LAMBERT
    (May 7, 1929. Opinion and Decree.)

      A. B. Cavanaugh, of Leesville, attorney for plaintiff, appellee.
    D. D. Newman, of Leesville, attorney for defendant, appellant.
   ELLIOTT, J.

Joe Henderson as owner, sues to have a tax sale of the S. V> of N. E. V4, and S. % of N. W. Vi of N. E. Vi, Section 19 T. 2 S., R. 11 W. situated in the Parish of Vernon, this state, made to E. D. Boone, decreed to be null and void on several grounds alleged in the petition. The sale was based on an assessment against Joe Henderson, as owner, for the year 1925.

The plaintiff alleges his ownership and occupation of the land. One of the alleged grounds of nullity is, that he offered to re-pay to said Boone the taxes, interest and cost. That said Boone refused his tender and subsequently executed a quitclaim title to said land in favor of Leroy Lambert, who now claims said land under said quitclaim.

The defendant, Leroy Lambert, denies the nullities and tender alleged by the plaintiff; but does not allege ownership nor possession in himself. The tax title to Boone is not alleged to have been recorded in the conveyance book. Defendant prays, however, that plaintiff take nothing by the suit, that the suit be dismissed, and for general relief in the premises.

The note of testimony contains' the following admission:

“It is admitted that the plaintiff has tendered the amount of taxes, interest, penalties and cost for the year 1925 due on his property, which tender was rejected.”

It was shown on the trial that the tender was made to said Boone in person previous to the execution of said quitclaim in favor of Dr. Lambert. The evidence does not indicate that the tax title to Boone has ever been recorded in the conveyance book, as the law requires.' We therefore agree with the lower court that, under the showing made, the tender was not only timely made, but operated to set aside the tax sale. Gonzales v. Soux, 119 La. 662, 44 So. 332; State ex rel. Curtis vs. Ross et al., 144 La. 898, 81 So. 386. The tax sale, as the result of said tender, was redeemed and had ceased to have effect previous to the execution of said quitclaim. The plaintiff is entitled to judgment against the defendant as prayed for on that account.

It is not necessary to consider the other grounds on which the tax title is attacked, and as to which we express no opinion.

Judgment was properly rendered in favor of the plaintiff.

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