author: JONES, J.

text:
    No. 10,040
    Orleans
    SALVADOR CASTELLUCCIO FOR HIMSELF AND MINOR DAUGHTER, LUCIA CASTELLUCCIO v. CLOVERLAND DAIRY PRODUCTS CO., INC.
    (March 14, 1928. Opinion and Decree.)
    (April 11, 1928. Rehearing Refused.)

      (Syllabus by the Court)

    1. Louisiana Digest — Automobiles—Par. 4.
    A chauffeur of a large and high truck, familiar with the location where he is driving because he has driven up that street every day for years, the condition of the street and the sloping thereof, and seeing the conditions as they are ahead of him, who drives on said slope causing the truck to slip and knock down an iron post supporting the gallery of the building at said location, is guilty of negligence.
    2. Louisiana Digest — Damages—Par. 30, 56; Negligence — Par. 15, 16.
    Where a personal injury aggravates an existing ailment or disease, or develops a latent one, the person whose negligence caused the injury is liable to respond in damages for the aggravation of the disease as well as for' the original injury. In such case the injury is the prime cause which opens the way to and sets in motion the other cause, and the latter cannot be regarded as the independent cause of the injury or damage, nor can the wrongdoer be allowed to apportion the measure of responsibility to the initial cause.
    3. Louisiana Digest — Judgment—Par. 8; Parties — Par. 17„; Successions — Par. 10; Appeal — Par. 380.
    Under Civil Code, Art. 2315, as amended by Act No. 159 of 1918, when a husband who has secured judgment for damages for death of wife in trial court for himself and minor daughter, dies while the judgment from which suspensive appeal has been taken is pending in the appellate court, his right perishes with his death and his major children cannot be made plaintiffs in the cause.
    Appeal from Civil District Court, Divisio “C”. Hon. E. K. Skinner, Judge.
    Action by Salvador Castelluccio for himself and minor daughter, Lucia Castelluccio, against Cloverland Dairy Products Co., Inc.
    There was judgment for plaintiff and defendant appealed.
    Judgment amended and affirmed.
    Scott E. Beer, of New Orleans, attorney for plaintiff, appellee.

      J. C. Henriques and Frank T. Doyle, of New Orleans, attorneys for defendant, appellant.
   OPINION

JONES, J.

Plaintiff claims for himself and minor daughter, aged seventeen, for personal injuries resulting in the death of his wife, twenty-two thousand five hundred and twenty-eight dollars ($22,528.00) damages as follows:

(a) His loss of support-------------------$5,000.00

(b) His loss of affection and care 5,000.00

(c) His share for pain and suffering of the deceased_______________ 5,000.00

(d) Medicine and doctor’s bills____ 28.00

(e) Daughter’s loss of affection____ 2,500.00

(f) Daughter’s share for pain and suffering of deceased______________ 5,000.00

He alleges that his wife, aged sixty-one and in good health, while waiting on the sidewalk, near the uptown river corner of Saratoga and Gravier streets, was, on January 10, 1924, struck on the head by an iron post, which had been negligently and carelessly knocked down- by the driver of defendant’s truck; that the blow made her unconscious, fractured her skull and caused a wound three inches long on the side of her head; that she was carried at once to the Charity Hospital, where she remained suffering intensely until January 18, 1924, when she was taken home only to leave her bed when it was necessary to carry her back to the hospital for treatment which lasted until her death on February 6, 1924.

Defendant in his answer admits the accident, but denies negligence and avers that the truck was being driven up Sara-toga street, a one-way street, toward Howard Avenue at a speed of approximately eight or nine miles per hour about ten o’clock in the morning of the accident; that shortly after passing Gravier street the driver of the truck was compelled to turn to the left in order to pass a quantity of building material which extended from the lake side of the street to about the center of Saratoga street; that the surface of the street was wet and slippery because it had rained that morning; that Saratoga street is not a standard street, because asphalt had been placed over the cobble stones, and on the river side of the street just where the accident had happened, about four feet from the curb, the surface slopes at an angle of about forty degrees; that the street at this point is only twenty-two feet wide, and in attempting to pass the pile of building material which extended to the center of the street, the back wheel of the truck skidded toward the river sidewalk and caused the left rear part of the top of the truck to strike and knock down the iron post; that the driver of the truck was not guilty of negligence and that the accident was caused by the unusual slope in the street and the wet condition.

There was judgment for plaintiff individually for twenty-five hundred dollars ($2500.00) and as natural tutor for twenty-five hundred dollars ($2500.00).

Defendant has appealed suspensively and plaintiff has answered the appeal asking that the amount be increased.

While the case was pending in this court, the plaintiff died on December 28th, 1925, and on January 25th, 1926, an order was signed by the presiding judge of this court making the six major children of the deceased as his sole and only forced heirs parties plaintiff in their father’s stead and permitting the daughter, who had been meanwhile emancipated, to prosecute the suit for herself.

Defendant in his able argument and brief strenuously insists on the following defensive contentions:

(1) Due care and precaution on his driver’s part and entire freedom from fault.

(2) No causal connection between the injury and the death.

(3) That the action brought by Salvador Castelluccio individually perished when he died and the major children of Mrs. Castelluccio can not be made parties plaintiff.

We shall consider these points separately in the above order.

The evidence shows that the big covered truck, used for hauling milk, was in good order; that it was controlled by a governing apparatus which prevented it from going more than twelve miles an hour; that it was proceeding slowly up Saratoga street and stopped almost where the accident happened; that Saratoga street, which is a one-way uptown street has very heavy traffic at this point; that one day 8400 cars passed there between 7 a. m. and ,10 p. m.; that the street is twenty-two feet wide and the grade is not standard; that between a point four feet from the curb and the curb itself, there is a drop of 1-2.10 feet in four feet; that there is a safe roadway sixteen feet wide in the middle of the street, the severe slope only beginning four feet from each curb.

The colored driver of the truck, who was working in the feed room of defendant at the time of the trial, testifies on direct examination that he was going up Saratoga street at six miles per hour; that he turned to the left in order to pass the building material in the street and his rear wheel skidded into a post at the corner.

On cross-examination he testified that he had passed that point driving a truck every day for years both in dry and wet weather on the way to Union Station for milk and never had an accident; that he did not know the width or heighth of his truck, but it was a high truck and he did not think two machines like his could pass in a street twenty-two feet wide; that there was a pile of building material in the street about three or four feet high, but he could not say how far it projected in the street; that there was sufficient space between the pile of building material and the left side of the street for the truck to pass; that he knew exactly where he was driving and could have stopped if ¡he saw fit, but did not do so; that it seemed to him the top of the machine hit the post and the weight of the topi knocked the post over; that immediately after the accident the back wheels of the truck were up against the curb and the front wheels further away from the curb. The record contains an admission that the width of the truck from mud guard to mud guard was six feet nine inches.

Rosie Flamingo, an Italian witness, testified that she saw the truck slip into the gutter and hit the post;, that there was a pile of building material in the street 2% feet high, but she could not say how far it extended, but it did not occupy one-half of the street.

Emma Stanley, a colored seamstress, testified that the building material extended into the street for one-third of the width and many automobiles passed that morning both before and after the accident.

Filbin, the owner of the garage just across the street, who was having the work done, said that the traffic was heavy that day both before and after the accident, that the building material came out into the street possibly 2y2 feet, but there was still sufficient room for two trucks to pass without hitting the slope; that the contractor had covered the drain with a board so that they could dump the material half on the banquette and over the gutter into the street; that they were not then using much sand 'and bricks because the rear of the building was about completed.

Seiler, the foreman, who was building the addition to the garage, testifies that they did not have much material that morning as they were finishing up the work; that the material did not extend into the street more than eighteen inches.

A fireman, witness for defendant, testifies that he was on the left-hand side, because the traffic was so heavy, but he did not know anything about the slope.

Defendant argues that users of the public streets have the right to presume that the' city had constructed them properly and that plaintiff has failed to prove both charges of negligence, because the record shows that the driver was going slowly and not at a rapid rate as charged, and because the truck skidded into the post and was not driven against it as charged.

In support of his contention he cites the case of Jacobs vs. Jacobs, 141 La. 272, 74 So. 992, where the Supreme Court uses the following language:

“The rule is well established in the jurisprudence of this state that a person using a public highway, especially in an incorporated city, has a right to presume and act upon the presumption that the way is safe for ordinary travel even at night and that he is not required to be on the lookout for dangers or obstructions to which his attention had not been called.”

In that case the plaintiff, who was a guest in the automobile of defendant, sued for damages for personal injuries and the facts of the case upon which the above quoted rule was based, are summarized in paragraph 8 of the syllabus, prepared by the court, which reads as follows;

“The driver of an automobile is not answerable in damages for personal injuries inflicted upon his guest in the car as a result of an accident, where the facts are: The driver had inquired about the condition of the thoroughfare, before entering it, and was informed that it was all right; the car, while traveling at a moderate speed on a prominent street, in a city, ran into an open canal extending across the thoroughfare, without any guard rail, barrier, red light or other warning of danger; the glare of an electric light between the driver and the canal prevented his seeing the danger until it was too late to stop his car while going at an ordinary speed; the driver had never traveled over the route before and had no knowledge of the dangerous situation, the guest in the car had traveled over the route several times before and was acquainted with the situation, but did not warn the driver or complain of the speed.”

It will be noted that the driver had never traveled over the route before and had no knowledge of the dangerous situation, but in the instant case the driver says that he had been over the street every day for years both in wet and dry weather; that he knew exactly where he was driving and could have stopped if he saw fit.

A careful reading of the citations and other decisions quoted by defendant will show that the drivers had no knowledge either active or constructive of the existing defects, but here the defendant either knew or ought to have known the dangerous condition and the mere fact that his truck skidded is not sufficient in law to excuse him from the charge of negligence, if he knowingly drove his truck into a possibly dangerous place.

Defendant relies on the case of Williams vs. Holbrook, 103 N. E. 632, where the Supreme Court of Massachusetts held: “That the mere skidding of the car was not an occurrence of such uncommon or unusual character that, explained, the jury could say it furnished evidence of defendant’s negligence.”

In this case a hoy standing on the sidewalk had been killed by an automobile, which suddenly skidded from a wet car track and the court, after holding that whether defendant was negligent or not was a question for the jury, maintained defendant’s exceptions to a verdict for plaintiff.

In the course of the opinion the court uses the following words:

“The defendant’s negligence, as we have said, depends upon the view the jury took of his acts in operating the car within instead of outside of the groove and then attempting to turn from the track by increasing rather than by lessening the rate of speed.”

Thus the court holds that the acts of the driver prior to the skidding must be considered in determining whether the driver of the car was negligent and we concur in that ruling.

We think that the law about skidding being evidence of negligence is well stated in the case of Leftus vs. Pelletier, 111 N. E. 712, where the Supreme Court of Massachusetts said in a later case:

“It is true the mere fact of skidding is not evidence of negligence (Williams vs. Holbrook, 103 N. E. 633) but under all circumstances it was a question for the jury whether the skidding was caused by defendant’s negligence.”

Here the defendant who had been over the road two or three times a week was held negligent by the court.

The law on the presumption as to the safety of streets is well stated in a quotation in defendant’s brief reading as follows:

“Abbotts’ Municipal Corporations, page 2348, Section 1047, reads as follows:
“PRESUMPTION OP CARE. The principle is well established that the traveler using a highway for a proper purpose in the absence of knowledge of the defect may lawfully presume that the public corporation has exercised, in respect to the condition of the highway he is using, that degree of care which the law imposed upon it. He is not bound, therefore, to be constantly on guard against defects which may cause him an injury. This presumption applies to all travelers using the highways, and at all times when they can be lawfully used, including both night and day. The assumption does not, however, operate to relieve him from the performance of his duties to use ordinary care and the traveler further can rely upon the principle only in the absence of knowledge on his part of the defect and when the danger is not an obvious and notorious one. Robertson vs. City of Wilmington, 32 Atl. 347; City of Dubuque vs. Burhyte, 173 Ill. 553; Atchison vs. Plumiett, 55 Pac. 677; Parette vs. Kansas City, 62 S. W. 448.”

On the first point we agree with the judge of the lower court that the driver knew or should have known of the slope in the street and was therefore negligent when he drove sufficiently near the curb to cause his rear wheels to skid, although he had sufficient clear space to pass the building material safely. The defendant is, therefore, liable as a tort feasor, even if the city of New Orleans may also be liable for faulty construction of a street, a point which we do not decide, as the city is not a party to this suit.

We now take up the second point, the causal connection between the death and the injury.

The evidence shows that the deceased was sixty-one years old, weighed 180 lbs. and made a living for herself and husband by peddling vegetables; that she had been in good health prior to the accident nad had not been confined to her home for years; that the blow caused a wound on her scalp two or three inches long; that she was carried to the Charity Hospital in a dazed condition and kept there eight days and then taken home, where she remained in the house, generally in bed; except when she was taken to the hospital for treatment; that she died on February 6th, the death certificate showing “cerebral hemorrhage” as cause of death.

The hospital report shows that the tentative diagnosis was probable fracture of the skull and the final diagnosis “fracture of inner table of skull vault,” but the original X-ray pictures could not be found and the card signed by Dr. Granger, the man in charge, purporting to be a true copy of Mrs. Castelluccio X-ray report reads; “Fracture of the inner table of the skull.”

Dr. Granger testified that he did not take the pictures and did not recall the case, but had every reason to believe the report correct.

Dr. Fortier testified that his X-ray picture taken February 1, 1924, showed no fracture. On cross-examination he stated that he would not declare the report of Dr. Granger untrue, although he could hardly believe it possible.

Dr. Gilbert, the family physician of deceased, testified that he had treated her for hardening of the arteries (Arterio Sclerosis) and high blood pressure; that he had treated her at home in bed some two weeks after the accident for nervousness and had dressed the wound and that, in his opinion, the injury contributed to the cerebral hemorrhage, because the shock had lowered her condition and probably her resistance; that death need not be immediate, but a blow of the kind would affect her adversely.

Dr. C. S. Holbrook, a specialist in nervous and mental diseases, who had never seen the patient, but had examined the X-ray plate and had read the hospital report, testified that he could not fix positively the cause of death, because there was no autopsy, but that in his opinion the blow was a contributing factor and that a woman of the age of the deceased would be more prone to a cerebral attack after such a blow than before and that very few old people get back to their former good health after a severe injury and that many months or years might elapse before the evil results of the blow, whether it caused a fracture or not, would become evident; that any latent or dormant disease would be aggravated by the blow, which is more serious with the old than with the young, and that the injury would probably be a most serious factor in the case.

Dr. Hountha testified that he had found the deceased at her home two or three weeks after the accident, lying across the bed in her street clothes; that he saw no evidence of paralysis; that the wound was only inflamed at the ear; that, in his opinion, the blow had no effect so far as the cerebral hemorrhage was concerned.

Dr. Carroll Allen, a distinguished surgeon of this city, who had not treated the patient, testified after carefully reading and analyzing the hospital report, that, in his opinion, the blow had not been a contributing cause of the death; that she would have died as she did, whether ‘she had been struck or not-; that she suffered some bad effects from the blow, that the case was a trivial one.

It is thus seen that two experts testify that the blow was a contributing factor to the death and two testify that it was not and there is no preponderance of evidence on this point.

Although the question is very close and the matter by no means free from doubt, we think sounder and more logical the conclusion of the family physician t'o the effeet that the shock caused hy such a blow on a toman of sixty-one would necessarily lower her power of resistance and therefore be a contributing cause to her death, which occurred twenty-seven days later.

In the leading case of Lapleine vs. M. L. & T. R. R. Co., 40 La. 661, 4 So. 875, the Supreme Court uses the following words:

“The duty of care and abstaining from the unlawful- injury of another applies to the sick, the weak, the infirm as fully as to the strong and healthy, and when that duty is violated, the measure of damages is the injury done, even though such injury might not have resulted hut for the peculiar physical condition of the person injured or may have been aggravated thereby.”

On this point see also Roth vs. Russell, 141 La. 581, 75 So. 418; Poncet vs. So. New Orleans Light & Traction Co., 3 La. App. 64.

In Ruling Case Law, vol. 8, p. 436, the rule is stated as follows:

“The defendant is responsible for a cancer where the injury caused by his neg ligence superinduced and contributed to its production or development or for death resulting from a disease where the injury rendered the system of the injured party susceptible to such disease and liable to be attacked thereby as a natural consequence.”

We agree with the lower judge that the blow contributed to some extent in accelerating plaintiffs’ death and although it is impossible to fix the relative importance of the contributing factors we affirm his finding to the effect that there was a causal connection between the accidental injury and the death.

In the case of Kerner et als. vs. Trans-Miss.-Terminal, 158 La. 853, 104 So. 740, which was a suit for damages for personal injuries to plaintiffs’ brother resulting in his death, the Supreme Court, through Chief Justice O’Neill, in a learned opinion, discusses thoroughly the third point raised by defendant’s counsel. In that case both Kerner and his wife were killed in a railroad accident, she dying instantly and he a few hours later. They had no children. His father was dead but his mother and the plaintiffs in the above suit, his brother and five sisters, survived him. His mother, who alone had the right of action for damages under Article 2315, C. C., as amended by Act 159 of 19K5, brought suit hut died before it was tried. Within a year after the accident the brother and sisters brought above suit for damages. In the course of his able opinion, the Chief Justice uses the following language:

“If one of the survivors who had thus acquired the right of action dies after-wards, his death does not affect the right of action of any other survivor, or confer a right of action upon any other survivor, for the right of action is not transmissible from one survivor to another survivor of the injured person, either by the general law of inheritance, or by virtue of the statute on the subject. The surviving relations of more remote degree, in whose favor the statute says the right of action shall survive in case of the death of the person injured, namely the major child or children in default of a surviving widow or widower or minor child, the surviving parent or parents in default of a surviving widow or widower or minor or major child, and the brothers and sisters in default of a surviving widow or widower or child or parent do not transmit the right of action from one to another to them, hy the death of one of them, by the law of inheritance, or by virtue of the statute.”

Plaintiff’s able attorney admits that under decision in this case the major children of the deceased husband, Salvador Castelluccio, could not be made parties plaintiff in this court, as forced heirs of their father, unless there had been a judgment in the trial court. In other words, plaintiffs claim that the judgment of the trial court in favor of Salvador Castelluccio vested property in him, and that his major children inherited this property when he died, although the suspensive appeal which had been taken from the trial court was still pending in the appellate 'court.

In supprt of this claim he cites Article 548 of the Code of Practice and Vincent vs. Sharp, 9 La. Ann. 463, and Chivers vs. Roger, 50 La. Ann. 57, 23 So. 100.

Article 548, C. P., reads as follows:

“A judgment, when once rendered, becomes the property of him in whose favor it has been given; and the judge can not alter the same, except in the mode provided by law.”

This article was fully discussed in the case of Cassard vs. Tracy, 52 La. Ann. 836, 27 So. 368, where the facts were as follows:

“While the Constitution of 1879 was still in force plaintiff had obtained judgment in the trial court for less than five hundred dollars ($500.00) and defendant had taken a suspensive appeal to the Court of Appeal. While the appeal was pending the Constitution of 1898, which changed the law as regards hearing of such cases, in the appellate court, went into effect. Under the former constitution appeals from judgments for less than five hundred dollars ($500.00) were upon questions of law alone and the evidence given in the trial court was not taken down in writing. As the Constitution of 1898 provided that all cases on appeal to the Court of Appeal should be tried on the original record pleadings and evidence, appellant moved that the case be remanded to the District Court with instructions that the case be tried anew.
“The Court of Appeal denied the motion to remand, decided the case on the law alone and affirmed the judgment. On a writ of review to the Supreme Court, Justice Monroe in the original opinion held that the judgment was ‘property’ within the meaning of the Fourteenth Amendment to the U. S. Constitution and affirmed the judgment of the Court of Appeal.
“On rehearing the former judgment was reversed and the case was remanded to the lower court for new trial.
“In the course of his opinion on rehearing Justice Blanchard uses the following language:
“ ‘The judgments which plaintiffs had recovered in the trial courts were not final judgments, no vested rights had yet accrued, no indefeasible title in anything had passed.’
“A suspensive appeal was pending.”

Later the case of Bloomfield vs. Thompson, 134 La. 946, 64 So. 853, Justice Monroe in commenting on the above decision used the following words.

“The Chief Justice and the writer of this opinion dissented upon the grounds that the judgment appealed from had become so far as to become the property of plaintiff.”

As this ruling has not been modified by any subsequent decision, we must hold that a judgment from a trial court, suspensively appealed from, has not become so far final as to become the property of plaintiff and therefore transmissible by inheritance.

In the case of Vincent vs. Sharp, 9 La. Ann. 463, plaintiff obtained a judgment for one hundred dollars ($100.00) for assault and battery. Defendant appealed and during the pendency of the appeal plaintiff died and the curator of his estate was made party plaintiff. The court in a few lines held a personal action for damages did not expire with the person who instituted it, but made no reference whatever to the fact that judgment had been given in plaintiff’s favor below.

The articles of the Code of Practice and the Civil Code cited in the opinion all refer to actions and do not refer to judgments. Furthermore this case was decided in 1854 and since that time Article 2315 has been amended three times and the question of heritability of actions for’ personal injuries (where there has been no judgment in the trial court) under that article has been definitely settled by the recent decision in the Kerner case quoted above.

In Chivers vs. Roger, 50 La. Ann. 57, 23 So. 100, plaintiff sued for damages for the death of his son, and after the case was tried and argued but before judgment plaintiff died and his heirs were made parties plaintiff. The trial judge then dismissed the suit on the ground that the action abated with the death of the father. The Supreme Court in affirming the judgment quotes approvingly from the Succession of Tugwell, 43 La. Ann. 879, 9 So. 499, as follows:

“A judgment obtained by the widow (for her homestead of 1000) is not any more heritable than the claim itself prior to the possession.”

In the course of the opinion although the point ,was uot material to the issue, Judge Watkins uses the following language:

“In Beaird vs. Russ, 34 La. Ann. 315, our predecessors said that ‘It is clear that an appeal is a mere incident to an action and not at all the same thing. The judgment is the result or the consequence of the action and the appeal is the mode of seeking to have the judgment of the inferior court corrected.’ ”

He then goes on to say:

“A judgment is the property of him in whose favor it is rendered. Therefore, it may well be stated that a judgment would pass at the death of one in whose favor it was rendered to his heirs, when an action pending would not, because the right of action had lapsed on account of the demise.”

He does say that the judgment would (pass and in so saying apparently contradicts . the very language quoted above from the Succession of Tugwell.

We consider that this statement is purely obiter, but if it be considered material, it has been overruled by the decision of Justice Blanchard in the case of Cassard vs. Tracy quoted above.

The analogy between this case and the widow’s homestead case referred to above is certainly strong, for the evidence shows that Salvador Castelluccio was so infirm and decrepit that he was entirely dependent upon his wife for support, and we infer that the trial judge, though he did not allocate any part of his judgment to the specific claim of loss of support, must have been largely influenced by that consideration in making his award.

Although this identical point is “res nova” in our jurisprudence', we have, after careful consideration, concluded that .the basic reason underlying the amendments to Article 2315, C. C., as shown by the history of those amendments and by thorough analysis of all prior decisions on the subject, sustains defendant’s contention’ and we therefore hold that the action of plaintiff perished with his death and his major children could not be made plain tiffs in this cause.

As the minor daughter was seventeen years old when accident happened, and as the evidence shows that she was then earning $9.90 a week and was helping to support her father and mother, we think that an award to her of twenty-five hundred dollars ($2500.00) will be substantial justice.

For above reasons the judgment of the trial court is now amended and it is now ordered, adjudged and decreed that there be judgment in favor of Lucia Castelluecio against the Cloverland Dairy Products Co., Inc., in the sum of twenty-five hundred dollars ($2500.00) with legal interest from judicial demand.


source: Caselaw Access Project

author: JONES, J. WESTERFIELD, J.

license: Public Domain

text:
    No. 10,702
    Orleans
    SIMKIN v. FERRO CONCRETE CONSTRUCTION CO. AND EUGENE POWELL, IN SOLIDO
    (January 16, 1928. Opinion and Decree.)
    (February 13, 1928. Rehearing Refused.)
    (March 14, 1928. Writ of Certiorari and Review Denied by Supreme Court.)

      (Syllabus by the Court)

    1. Louisiana Digest — Damages — Par. 41, 59.
    A judgment dismissing a husband’s claim for damages for the loss of affection and companionship of his wife and for mental suffering at her death will be dismissed where the evidence shows that he had been living apart from her almost all the time since the marriage, had contributed nothing to her support and had neglected her continuously.
    Appeal from Civil District Court, Division “A”. Hon. Hugh C. Cage, Judge.
    Action by Louis Simkin against Ferro Concrete Construction Co. and Eugene Powell, in solido.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Leon Levitan, of New Orleans, attorney for plaintiff, appellant.
    Chas. Rosen and P. E. Edrington, Jr., of New Orleans, attorneys for Samuel Fein, Tutor for Minor Irving Simkin.
    Edward Rightor and Eugene Powell, of New Orleans, attorneys for defendant, appellee.
    WESTERFIELD, J., dissents.
   JONES, J.

This is a -suit by Louis Simkin for damages against the Ferro Concrete Construction Company and one of its colored employees, Eugene Powell, in solido, in the sum of twenty-five thousand and sixty-four dollars and fifty cents ($25,064.50) for the death of his wife, Mrs. Fannie Fein Simkin, who was killed at about 1:50 P. M. on Tuesday, April 13th, 1926, when she was struck by an iron pinch bar, which fell from the sixteenth floor of the Pere Marquette Building, then under construction by the Ferro Concrete Construction Company.

At the time of Mrs. Simkin’s death she was separated but not by judgment from her husband, the plaintiff herein. The sole issue of the marriage between the plaintiff and the deceased was a little boy, Irving Simkin, who was about four years old at the time of his mother’s death. On the date set for trial of Mr. Simkin’s case, Samuel Fein, the maternal grandfather, who had been appointed tutor of the minor (after a prolonged bitter contest with plaintiff herein) by Judge Parker of Division “D” of the Civil District Court, intervened in the suit and claimed fifty thousand dollars ($50,000.00) damages for the use of the child.

Having found defendants guilty of negligence, the learned trial judge gave judgment in favor of the tutor for the use and benefit of the little boy, Irving Simkin, in the sum of six thousand dollars ($6000.00) and in favor of the plaintiff, Louis Simkin, for the sum of sixty-four dollars and fifty cents ($64.50) to cover the funeral charges which he had paid, but rejected plaintiff’s claim for damages for the death of his wife. Prom this judgment the present appeal was prosecuted by Simkin, but defendant did not appeal from the judgment in favor of the child, nor did the tutor appeal from said judgment. The defendant company has paid to the tutor of the child the amount awarded it under said judgment and has not answered this appeal.

The sole issue before us is the correctness of the judgment below in refusing damages to a husband, who had been separated from his wife for more than a year at the time of her death, for loss of her companionship and affection. As the wife died in a few minutes after the accident without regaining consciousness, plaintiff can recover nothing for her suffering.

The evidence shows as follows: Plaintiff was married to deceased on May 30th, 1921, and they lived together at various times for short periods, mostly at her father’s; they parted in January, 1925, and never lived together again; the wife, who continued to live with her father at his residence, supported the child unaided by the husband, on her meagre earnings first as a soda water dispenser at ten ($10.00) dollars per week and then as a student, telephone operator at a weekly wage of twelve and 50-100 ($12.50) dollars; he was ordered repeatedly by the Juvenile Court to pay alimony in the sum of five ($5.00) dollars per week for nonsupport of his wife and child, but had frequently failed to do so and was delinquent in a large amount when the judge of the local Juvenile Court on April 24th, 1925, suspended his order of alimony payment, because plaintiff, who had enlisted in the army in 1921 and had been injured, was, in January, 1924, allowed one hundred ($100.00) dollars pe'r month for vocational training and his wife and child thereby became entitled to forty-five ($45.00) dollars per month upon proof of marriage and birth of child; deceased drew this forty-five ($45.00) dollars as long as her husband was allowed his stipend for vocational training and when he was put on the basis of a partially disabled soldier and allowed thirty ($30.00) dollars per month permanently, some months before her death, the child was then given six ($6.00) dollars of this amount every month and Will continue to draw this amount as long as plaintiff’s status of a disabled soldier continues.

Plaintiff testifies that he could not help crying (in fact nobody could) when' he saw the mutilated body of his wife at. the hospital a few minutes after the accident, that he paid the funeral bill and arranged other details; that his father-in-law had poisoned the mind of his wife against him and that his marital troubles were largely if not entirely due to his ill-will and enmity; the father-in-law testifies that plaintiff was “no good”, that he had caused his daughter continuous humiliation and sorrow and had in the end practically killed her by his cruelty.

The Supreme Court in 164 La. Pamphlet 113, No. 10, page 825, Succession of Simkin, found that plaintiff was unworthy of the tutorship of his minor child and affirmed the decision of Judge Parker appointing the grandfather to that position.

"We concur in the conclusion of the trial judge, who concludes his able opinion as follows:

“The evidence convinces me that his relations withi her were such that her mere death created in him neither grief nor anguish, that he has lost no comrpanionship, no support, no assistance, and he comes not, in my opinion, within the purview of the law.
“He paid $64.50 towards the funeral. He sues for this amount. He will be denied any judgment for any loss or damage occasioned by the death of his wife, as the court’s opinion is that he suffered none, but judgment will be given in his favor for $64.50 which he contributed to the funeral expenses.”

Counsel for appellant relies on decisions of the Supreme Court holding the provisions of the law that the surviving spouse in necessitous circumstances is. entitled to a fixed alimony of one thousand dollars ($1000.00), in preference to others, must be construed as written, but those decisions are not applicable here.

Article 2315 of the Civil Code reads differently. Under that article the burden was on the plaintiff to prove damages and this burden he has not borne.

Article 110, Rev. Civil Code, states that a husband owes to his wife fidelity, support and assistance, and this article should be considered along with Article 2315 when a husband claims damage for the grief and anguish caused by the death of his wife and for his loss of her affection and companionship.

Plaintiff relies on the decision of the Supreme Court in Andrus et ais. vs. La. Western Railroad Co., 142 La. 318, 76 So. 727, where the sum of fifteen hundred ($1500.00) dollars was allowed surviving widow for the death of her husband, with whom she had lived only about three and one-half months and from whom she had received no support whatsoever.

In that case the court found that the deceased husband had been conscious for a little while and had suffered both mentally and physically, as he realized that he had been mortally injured. This amount of fifteen hundred ($1500.00) dollars may have been allowed' the wife in satisfaction for her inherited claim of damage for his suffering. Moreover, the court emphasizes the fact that under our Civil Code the husband and father is civilly liable for the maintenance of his family and the wife testified that she was not at fault for the separation, still loved him and hoped for a reconciliation, as she did not know why he had left her.

Here the evidence shows a different state of facts and we do not think the decision controlling.

For above reasons the judgment is affirmed.

DISSENTING OPINION

WESTERFIELD, J.

An interruption of the marital relation is not always nor necessarily permanent. The negligent killing of the wife is a final destruction of the status, which may never be resumed. An estranged husband may suffer less injury to his feelings by the killing of his wife than would one more felicitously situated, but that he is damaged, to an appreciable extent, by the obliteration of all hope of reunion, and of the final attainment of that measureless benediction, connubial bliss, is, it appears to me, beyond controversy. “As long' as the lamp holds out to burn, the humblest sinner may return.”

I respectfully dissent.


author: CLAIBORNE, J.

text:
    No. 9951
    Orleans
    BROWN v. KING
    (January 16, 1928. Opinion and Decree.)
    (February 13, 1928. Rehearing Refused.)

      (Syllabus Toy the Court)

    1. Louisiana Digest — Pleading — Par. 43, 110.
    Admissions in the answer are sufficient to dispense the plaintiff with proving his demand.
    2. Louisiana Digest — Payment — Par. 19, 21; Evidence — Par. 58, 59.
    He who pleads payment admits the debt; and the burden is upon him to establish his defense.
    3. Louisiana Digest — Witnesses, Par. 148.
    It is well settled that the testimony of a female witness cannot be impeached by an attach upon her chastity.
    Appeal from Civil District Court. Hon. Hugh C. Cage, Judge.
    Action by Ruth H. Brown against Fred C. King, appellant.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    C. L. Johnson, of . New Orleans, attorney for plaintiff, appellee.
    Paul L. Fourchy, of New Orleans, attorney for defendant, appellant.
   CLAIBORNE, J.

Plaintiff claims of defendant $560.

She alleged:

1st. That on January 23rd, 1922, she loaned the defendant certain rings to permit him to pledge them to raise money for his own benefit; that he pledged them to the Hart Loan Office; that o'n April 28th, 1922, she advanced the defendant $105 to redeem said rings;

2nd. That on May 31st, 1922, she again loaned the defendant certain rings to enable the defendant to pledge the same to the Hart Loan Office for the purpose of raising money for his own benefit; that on July 12th, 1922, she paid the said loan office $110 to redeem said rings;

3rd. That on August 18th, 1922, she, for the third time, loaned the defendant certain rings to enable him to pledge the same loan for his own benefit to the same loan office; that on September 11th, 1924, she paid the said loan office $170 to redeem said rings;

4th. That on August 30th, 1922, she, for the fourth time, loaned the defendant certain rings to pledge the same to the same loan office for his own benefit; that on September 3rd, 1924, she paid the same loan office $175 to redeem said rings; making a total amount so paid by her for the benefit of the defendant of $560, for which she prays judgment with interest from judicial demand.

The defendant pleaded a general denial and answered that he gave the plaintiff certain jewelry at various times, and that she asked him to pledge the same for a loan for her account; that he pledged said jewelry and obtained thereon an amount of money which he turned over to the plaintiff; that at no time did he receive any benefit from the money obtained from said pledges and loans; that he paid the interest on said loans, and that he has advanced at various times certain amounts of money to pay the gas and telephone bills, and the rent of the plaintiff, and also loaned the plaintiff sums of money since the filing of judicial proceedings.

He prayed that plaintiff’s suit be dismissed reserving to him the right to proceed against her for money loaned to her.

There was judgment in favor of plaintiff as prayed for, and defendant has appealed.

The plaintiff testified in part that the defendant asked her for those rings in order to raise money on them for himself; that he pledged them to the Hart Jewelry Company, but that she did not get a cent of the money obtained by the pledge of them; that when the pledge notes became due she paid them to redeem her jewerly; she was employed at the Foundation Company at a salary of $130 per month.

The defendant testified that the plaintiff entrusted him with certain diamond rings to borrow money on them for her account; he pawned the rings and turned over the money he obtained on them to the plaintiff, and he paid the interest on the loan; he had given her the jewelry; he did not redeem the pledges because he “did not feel that he should have gotten it out as she had gotten the benefit of it”; since they had a falling out she threatened to sue him on the note”, and said she would get the jewelry out and make him pay the whole thing; the plaintiff knew where Hart’s Jewelry Co. was; she knew the place; after he obtained the money from the loan he turned it over to her the same day with which she went out and bought a lot of clothes; they used to meet every night.

In presence of the flat contradiction of the plaintiff by the defendant, we cannot do better than to adopt the reasons of the learned district judge as the law of the case. He said in part:

“Now the answer is that the truth is that the defendant took the plaintiff’s jewelry to Hart’s pawn shop and did pledge it and in the sums recited by the plaintiff; but he says that, in doing so, he was acting simply as her agent, and that the moneys derived from the various pledges were by him turned over to his principal. We have then the spectacle presented, at the very best, of the agent’s admission of receiving moneys for his principal, and the claim on the part of the agent that he settled in full with his principal by turning over to his principal all the money he received for h.er account. Again that presents a case actively of a plea of payment, and what the Common Law state lawyers would call ‘a plea of confession and avoidance,’ and when such a plea is made the rule is universal that a ‘plea of confession and avoidance’ carries with it the burden of proof. It is plain, the agent in making these loans at the pawn shop, the money he received from the pawnbroker was not his money, but the money of his principal, and he, in his fiduciary capacity, is required to make full and complete settlement. We have, therefore, the spectacle of the defendant swearing he paid the money over to his principal. Supported with nothing but his uncorroborated word of its truth. On the other hand, we have the absolute denial of the plaintiff that the money was -so paid to her and as, in the case which I have just decided, the defendant carries the burden and he must, by a preponderance of evidence, make his case certain to the satisfaction of the court.
“But where there is an assertion on one side, a denial on the other, and 'no corroboration of either, the situation is the same as in a parliamentary body where a motion is made for an affirmative action and results in a tie; under all parliamentary law the motion is lost by failing to get a majority. Likewise, in matters of evidence. Where there is a complete tie, like in this case, and no corroboration on either side in which the court can resort to for assistance in bearing down one of the balances of the scale against the other, the one who carries the burden is lost. As to the moral standing of the two parties, they seem to be equally guilty so far as sexual morality is concerned, and as to their financial responsibility, I have no evidence, but they seem to be on an equal footing.”

The above reasons are convincing.

The law is that:

“He who pleads payment admits the existence of the debt, and must prove payment, or the plaintiff will have judgment. Admissions in the answer are sufficient to dispense the plaintiff with proving his demand, and the onus probandi lies on the defendant to establish his defense.” 5 La. Dig. Vo. Payment, p. 890, S. 21.

In the case of State vs. Hobgood, 46 La. Ann. 855, 15 So. 406, the court said:

“It is inadmissible, in order to attack veracity, to prove the character of a female witness for chastity, or to show that she is a prostitute.”

And in State vs. Romero, 117 La. 1003, 42 So. 482, the court said:

“It is well settled that a female witness cannot be impeached by an attack upon her chastity.”

It is therefore ordered that the judgment be affirmed.


text:
    No. 11,189
    Orleans
    KAISER v. UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA
    (February 27, 1928. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Trade Unions — Par. 2, 3.'
    The procedure for settling a controversy between the widow of a deceased member and a national labor brotherhood, as prescribed by the charter, must be followed, unless it be shown that such requirements are unreasonable or that further effort to apply prescribed remedy would be useless.
    Appeal from First City Court. Hon. Wm, V. Seeber, Judge.
    Action by Mrs. Elizabeth Kaiser, widow of William Layrisson, against United Brotherhood of Carpenters and Joiners of America.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed.
    Elias Bowsky, of New Orleans, attorney for plaintiff, appellee.
    E. M. Stafford and Daniel Wendling, of New Orleans, attorneys for defendant, appellant.
   JONES, J.

This is a suit by Mrs. William Layrisson (widow) to collect a funeral donation of three hundred ($300.00) dollars from defendant, United Brotherhood of Carpenters and Joiners of America, under Sec. 48 of its Constitution and By-Laws, which reads as follows:

“On the death of a member in good standing, his wife or legal heirs as 'named on his application, shall be entitled to the member’s funeral donation as prescribed in the Constitution and By-Laws of the United Brotherhood.”

After alleging the death, membership of her deceased husband in the Piledrivers Union here, which entitled him to beneficiary membership in defendant brotherhood, plaintiff avers that in making application for membership in said Piledrivers Union, he designated your petitioner, his wife, as the person entitled to the Members’ Funeral Donation, etc.

The answer denied that she was designated to receive the funeral donation sued for and alleged that it was paid by defendant to the rightful claimants, to-wit: the minor children of deceased, Lucille and Michael Layrisson, through their tutor, Joseph Layrisson, who qualified as such, in proceedings No. 151,408 qf the docket of the Civil District Court, In Re Tutorship Proceedings Lucille and Michael Layrisson.

Further answering defendant avers as follows: If plaintiff was designated as the person entitled to funeral donation under the constitution and by-laws of appellant, it is provided that:

“All death claims must be filed with the General Treasurer within six months from the date of death.”

And that:

“If the claim is disapproved by the General Treasurer, the party or parties shall have the right to appeal to the General Executive Board any time within six months from the date of disapproval, and, if still dissatisfied, shall have the right to appeal any time within two years from the date of decision by the G. E. B., to the next General Convention.”

That plaintiff failed to comply with these by-laws, rules and regulations, and therefore her claim is barred; because plaintiff in joining said organization agreed to be bound by said Constitution and By-Laws.

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

The evidence shows Layrisson met his death on February 26th, 1924; this suit was filed by Mrs. Layrisson June 13th, 1927, (more than three years after his death) as beneficiary; at the time he was killed, and for more than two years before she had left her husband and had been sued by him for a divorce on statutory charges; that no death claim had been filed by her with general treasurer and no steps had been taken to collect this donation from the general fund; she had only spoken to Wm. Ruth, financial secretary (local representative of defendant, the parent organization), and Pat McGill, president of the local Piledrivers Union, and both of these men had said, “everything would come out alright”, referring to a ■ local funeral benefit; that the fund herein sued for had been paid to the two children of the deceased by his first wife through their tutor, as alleged in the answer.

In Brade vs. Louis, 148 La. 923, 88 So. 117, our Supreme Court said:

“It would seem from the statute thus quoted, and the constitution and by-laws adopted pursuant thereto, that the power of the Grand Lodge over subordinate lodges and the individuals who compose them is supreme, and it follows, logically, that anyone who becomes a member f the craft voluntarily subjects himself to the jurisdiction and processes therein provided, for the determination of his fraternal rights, and is bound thereby, if the methods which the order has provided are followed, without discrimination, after proper and timely hearing. In other words, the parties themselves have agreed, in advance, upon a tribunal for the adjudication of all disputes, and it is to that source that they must first look for relief.
“Hence the action of that officer in the present case was bound to come before the Grand Lodge at its next regular meeting, and until the Lodge had acted the remedies within the order had not been exhausted, and the plaintiff had not put himself in a position to appeal to the courts. Local Union 76, etc., vs. United Carpenters and Joiners of America et al., 143 La. 901, 79 So. 532; 25 R. C. L. 16; Independent Order of Sons and Daughters of Jacob of America vs. Wilkes, 98 Miss. 179, 53 So. 493, 52 L. R. A. (N. S.) 817.”

It was incumbent on plaintiff to show that she had exhausted the remedy given by the said Constitution and By-Laws, but the evidence shows that she did not so exhaust her remedy.

To refute this conclusion, which is a ratification of the well-recognized rule, adopted and applied by all the courts of this country, that the remedial procedure of the specially constituted authority must first be followed by members, before the aid of another tribunal may be sought, plaintiff quotes the decision of this court in Morrison vs. Grand Lodge, Tessier Digest, Orleans Appeal 78.

In this case the prescribed procedure was held unreasonable, because the final authority (to which appeal -was allowed, was a migratory body, meeting only at long intervals in distant places) had already passed on that issue and further effort to exhaust the constitutional remedies was considered useless.

This decision is not applicable here, because the Supreme Court in Local Union 76 et als. vs. United Carpenters and Joiners of America et als., 143 La. 901, 79 So. 532, where the same defendant and the same charter were involved, has maintained its requirements.

It is true that the plaintiff in this case was a local union and the article of the charter involved was not the same as the article involved here, but these differences do not suffice to change the principle applied.

For above reasons the judgment is reversed and it is now ordered that this suit be dismissed at plaintiff’s cost.


author: WESTERFIELD, J.

text:
    No. 10,585
    Orleans
    GONZALES v. MR. AND MRS. J. W. ALLEN
    (February 27, 1928. Opinion and Decree.)

      (Syllabus by the Court)
    1. Louisiana Digest — Negligence—Par. 11; Automobiles — Par. 7.
    Whenever the public interest requires the temporary interruption of normal facilities for pedestrian traffic by barricading the sidewalk on one side of the street in front of a large hotel then under construction, it is unreasonable to expect the walking public to cross to the other side of the street, and permit the riding public to enjoy normal facilities and exclusive use of the roadway. Under such circumstances it is not negligent for foot passengers to use a part of the roadway to pass the barricaded section of the sidewalk.
    Appeal from Civil District Court. Hon. Hugh C. Cage, Judge.
    Action by Bertha Gonzales against Mr. and Mrs. J. W. Allen.
    There was judgment for plaintiff and defendant appealed.
    Judgment amended and affirmed.
    George Piazza, of New Orleans, attorney for plaintiff, appellee.
    Milner & Porteous, of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

This is a suit by a young negress for damage for personal injuries resulting from an accident in which she was knocked down by an automobile driven by defendant.

From a judgment against her in the sum of $690.00 defendant appeals.

The accident happened in Baronne street in front of the Roosevelt Hotel, which was then under construction. The sidewalk in front of the hotel was barricaded and piles of sand, gravel, brick and lumber in the street. Plaintiff was walking down Baronne street toward Canal in company with two other colored women. When they reached the hotel they entered the street and continued on their way walking in the street. When abreast of the entrance of the hotel, plaintiff was struck by defendant’s automobile, which was moving in the opposite direction.

There seems to be no serious denial of defendant’s negligence. In any event, we are convinced of her fault. The contention is that plaintiff was guilty of contributory negligence. In other words, it is argued, that she should not have walked in the street and should have crossed to the other side.

To require pedestrians to cross the street under the circumstances of this case appears to us as unreasonable.

Whenever the public interest demands the temporary interruption of the normal facilities for pedestrian traffic in a locality, such as is involved here, where there is much congestion in foot and vehicular movement, we see no reason why those who walk should suffer all the incidental inconvenience, and those who ride none. We would not wittingly contribute to the further embarrassment of the pedestrian for he has, indeed, fallen upon evil days. Shorn of all prerogatives, he follows his ancient and honorable course through the streets of our great cities, tolerated but not respected, his every step fraught with imminent danger of death and disaster by external violent and accidental means. His precarious breath impregnated with noxious gases calculated to inflame his mucous membrane, he trods his weary asphyxiated way, escaping, as- best he may, the steam and electric juggernauts of the rail, with a sporting chance, as long as the hot blood of youth courses through his veins, of avoiding the more threatening fire-breathing gasoline monster. But, when love’s young dream is over, when the agile step of youth begins to falter, he can not reasonably hope to avoid violent, if not fatal, contact with that greatest of all modern facilities, most dangerous and death-dealing instrument, the automobile.

Our conclusions are that defendant is liable.

Plaintiff’s injuries are described by her physician as “general contusions' of the body, echymotic arears on the right arm and left side, brush burns on the right and left elbows, a lacerated wound over the left ankle, with secondary infection and a sprain injury to the left ankle”. Quite a catalogue of ills, according to this way of putting it, but, with due respect to our medical friends, the plaintiff seems to us to have suffered a sprained ankle, some scratches and bruises. However, we are satisfied that she lost some weeks of earnings, which we appraise, together with her expenses for medicine and doctor, at $99.00, as found by the court, a qua. The additional sum of six hundred dollars allowed her under the judgment appealed from we regard as too high and we will reduce it to $400.00.

It is therefore ordered that the judgment appealed from be reduced from $699.00 to $499.00, and, as thus amended, affirmed.


text:
    No. 11,075
    Orleans
    VILA v. WESTFELDT
    (February 27, 1928. Opinion and Decree.)

      (Syllabus by the Court)
    1. Louisiana Digest — Appeal — Par. 625; Negligence — Par. 42.
    Judgment on questions of fact as to defendant’s negligence will be affirmed, where no error is manifest, but amount will be reduced where there is no proof that the necessity for items included on the repair bill resulted from this negligence.
    Appeal from First City Court. Hon. W. Alexander Bahns, Judge.
    Action by Delfín Vila against George G. Westfeldt.
    There was judgment for plaintiff and defendant appealed.
    Judgment amended and affirmed.
    Gordon Boswell and Milo Williams, of New Orleans, attorneys for plaintiff, appellee.
    Eugene D. Saunders and G. B. Harrison, of New Orleans, attorneys for defendant, appellant.
   JONES, J.

Plaintiff alleges his Peerless sedan was struck by defendant’s automobile and damaged in the sum of two hundred seventy-six and 55-100 ($276.55) dollars, while it was stopped at the intersection of Prytania street and Louisiana Avenue, on the afternoon of November 1st, 1924, about 2:30 P. M.

The specific allegations of negligence are as follows:

That defendant drove into the intersection via Louisiana Avenue, at a fast speed, in a reckless manner, was not maintaining a proper lookout ahead and ran into plaintiff’s car, which was in plain view.

Defendant's answer denies these allegations and avers that while defendant was crossing plaintiff entered the intersection at a fast speed and caused the collision.

There was judgment for plaintiff in the sum sued for ($276.55) and defendant appeals suspensively therefrom.

Defendant argues that none of the specific charges of negligence are proved and that, if it be shown by the record as a whole that the accident was caused by defendant’s careless driving, the evidence tending to show such delinquency should not be considered, because no basic charges thereof have been alleged. This argument is untenable.

Plaintiff and his three witnesses, all occupants of the damaged car, swear that defendant was not looking ahead when he entered the intersection, and this contention defendant practically admits when he says that he “may have continued to look back at his daughter as he drove off”.

It would be useless to analyze all the testimony as we agree with lower judge that plaintiff has proved his allegations as to liability.

As to quantum the proof is not satisfactory. The evidence shows that the Peerless ear of plaintiff was at least nine years old at the time of the accident and that" it had never been repainted. To prove his damage plaintiff offered itemized bills for various parts, for painting body and chassis and for labor, which he had paid since the collision, but no proof that all of these parts and all of this repair work was made necessary by the impact.

To offset this evidence, defendant introduced, over plaintiff’s objection, carbon copy of an estimate made by Oster Bros., automobile repairers of this city, of the damage to plaintiff’s car. This estimate was admissible, as plaintiff had first raised this issue by questioning defendant as to exact amounts shown thereon.

Oster differs with plaintiff's repair man in two particulars, as follows:

(1) Wooden sill on left side was rotten and new sill was not made necessary by defendant.

(2) Plaintiff should pay one-half of cost of painting body, because car was old and badly in need of paint.

Furthermore, Oster mentions neither repainting the chassis, scraping and refinishing wheels and baking running board shield, the items charged in plaintiff Exhibit No. 1 at sixty ($60.00) dollars, no.r the item, 2 rubber straps charged at six ($6.00) dollars.

In Bianchi vs. Mussacchi, 1 La. Appeals 294, this court held:

“The law makes no provision for deduction of old for new. The defendant’s obligation is to replace all the parts of the car he had damaged.”

The painting of the entire woodwork was made necessary by the putting of a new fender, new running board shield, etc., as plaintiff’s car would otherwise have been like Joseph’s coat of old “of many colors”. The wooden sill, even if it was rotten, was giving satisfaction to plaintiff and defendant should pay the cost of a new one, because the impact on that side would naturally impair the usefulness of an old rotten- sill, which otherwise would have satisfied plaintiff for some time.

Plaintiff has entirely failed to prove that the painting of the Ghassis and the other damages in Exhibit 1 was caused by the collision and the same may be said of the rubber straps.

The judgment will, therefore, be reduced sixty-six ($66.00) dollars and affirmed.

It is ordered, adjudged and decreed that there be judgment in favor of plaintiff, Delfín Vila, and against defendant, George G. Westfeldt, in the sum of two hundred ten and 55-100 ($210.55) dollars, with legal interest thereon from judicial demand until paid.

Costs of this appeal to be pellee.


text:
    No. 11,157
    Orleans
    JONES v. RIVERSIDE IRON & METAL CO., INC.
    (February 27, 1928. Opinion and Decree.)

      (Sflllahus Tyy the Court)

    1. Louisiana Digest — Obligations—Par. 153, 157.
    If a contract stipulates delivery of a truck at a certain time and place and if vendor is unable to make delivery when the vendee makes verbal demand in the presence of two witnesses, no further putting in default is necessary.
    Appeal from Division “B”, First City Court. Hon. Val J. Stentz, Judge.
    Action by George Jones against Riverside Iron & Metal Co., Inc.
    There was judgment for plaintiff and defendant appealed.

      Judgment affirmed.
    Edward Lazier, of New Orleans, attorney for plaintiff, appellee.
    Peitel & Peitel, of New Orleans, attorneys for defendant, appellant.
   JONES, J.

Plaintiff sues defendant for seventy-five ($75.00) dollars, cash, deposit on a truck, and two hundred ($200.00) dollars, damages for failure to deliver the truck on stipulated date, July 1st, 1926. Plaintiff alleges that he purchased the truck on June 14th, 1926, for one hundred seventy-five ($175.00) dollars by written contract, depositing seventy-five ($75.00) dollars in cash and agreeing to pay balance in monthly installments of fifteen ($15.00) dollars; that said truck was to be put in good running order and delivered on July 1st, 1926; that he called twice and demanded the truck, but it has never been repaired and has never been delivered to him and he lost twenty-six days’ hauling, which would have paid him eight ($8.00) dollars per day, on account of plaintiff’s breach of his contract.

Defendant answered, admitting the sale and the cash deposit, but denying failure to repair and damages.

The trial judge gave judgment for plaintiff for .seventy-five($75.00) dollars and defendant has appealed. As plaintiff has not answered the appeal, the sole question before this court is the validity of the judgment below.

On the trial of the cause defendant urged orally an exception of no cause of action because plaintiff had not alleged a putting in default. This' exception was referred to the merits and later was correctly overruled, because the evidence shows demand was made by plaintiff in presence of two witnesses. See C. C., Art. 1911.

The record convinces us that the evidence amply sustains the decision of the trial judge. Plaintiff and three other witnesses testify positively that they called for the truck twice, once on July 2nd and once on July 5th, only to find on both occasions that the truck was still without lights, proper brakes or usable tires.

One of these witnesses was defendant’s mechanic, who contradicted defendant by swearing that he had never done any repair work on the truck and that it was in bad condition on July 5th and remained so for a long time.

To offset this positive testimony defendant and two of his employees testify vaguely that some repairs were made to the truck, but none of them is able to swear that the truck was in good running order on July 1st, the date of delivery.

Under these circumstances plaintiff was plainly in default himself for it was his contractual duty to have tendered the truck in good running order on the date specified. Defendant’s failure to return the deposit was an active violation of his contract.

For above reasons the judgment is affirmed.


text:
    No. 10,111
    Orleans
    GUARISCO v. MOLONY
    (February 27, 1928. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Evidence—Par. 341, 352.
    Where the sole question is identification of a Ford car, alleged to have been stolen, intervenor, who has proved that it bears the secret mark which was placed on the chassis by his vendor, will be declared owner, as against plaintiff, who has failed to prove a clear title.
    Appeal from Civil District Court, Division “D”. Hon. Porter Parker, Judge.
    Action by Jake Guarisco against Guy R. Molony, Superintendent of Police.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed.
    Richard A. Dowling, of New Orleans, attorney for plaintiff, appellee.
    Michel Provosty, of New Orleans, attorney for defendant, Guy R. Molony.
    S. Parkerson, of New Orleans, attorney for intervenor, defendant, appellant.
   JONES, J.

This suit, filed on June 9th, 1924, involves' the identity, and consequently the ownership, of a Ford four-door sedan. The car was seized by the police as stolen property while in the possession of the plaintiff, Jake' Guarisco, who thereupon filed suit against the Superintendent of Police, and secured a writ of sequestration under which the car was seized by the Civil Sheriff.

Later, the Mechanics and Traders Insurance Company intervened in the proceedings, claiming- car on the ground that it had been stolen from one 'William J. Tucker, on February 13th, 1924, whom they had paid under a theft policy, thereby acquiring his rights.

The Superintendent of Police filed a formal answer to the petition of plaintiff, denying all material facts alleged therein because of lack of information, but filed no answer to the petition of intervention.

The trial court rendered a judgment “maintaining plaintiff’s rights upon the Ford sedan (four-door model), Motor No. 8791804, sequestered herein,” and intervenor has appealed.

The case involves solely one question of fact: Is the car that was seized by the police while in the possession of plaintiff the car that was stolen from William J. Tucker?

Plaintiff testified as follows:

He bought Ford sedan, Motor No. 8791804, on March 25th, 1924, from J. C. Pell, by notarial act, for six hundred ($600.00) dollars, twenty-five ($25.00) dollars having been paid in cash and five hundred seventy-five ($575.00) dollars by check of his nephew.

This cheek was identified in the lower court and was offered in evidence along with the notarial act, but neither document is found in the record, though they were important documents for plaintiff.

A man named Lavelle and J. C. Pell had brought this Ford sedan to plaintiff’s place, 3127 Esplanade Avenue, and he had bought the car from Pell; he had known Lavelle before when he was working for Fabaeher’s garage on Rampart street, but he had never known Pell; the car was in good condition, looked like a new car .and was represented as having been in use about a month; after car was taken from him by police, Pell had stated that he sold the car for a Mr. Delhom, although he had seen J. C. Pell and his two brothers working for the Menefee Company, he did not know where Pell lived and had not summoned him as a witness.

Avenius, service superintendent of the Eaton McDiarmid Motor Co., testified that his company had sold a Ford sedan No. 8737810, on November 22nd, 1923, to Wm. J. Tucker and had placed on the left-hánd side of the frame right over the starting motor a secret No. “EM-150”.

Morton, a clerk at the Ford assembling plant in this city, testified that his company kept blank cards with names of all 'types of Ford cars thereon and blank spaces to be filled in or checked showing motor number, style of car, rims, etc., and when a car was assembled, the motor number was printed on and the type of car and other details were checked. Later a copy of such card was filed in evidence, showing Ford car bearing No. 8791804 which was assembled at Detroit was received here on December 1st, 1923, and was shipped on December 4th, 1923, to Bush at Gretna, La., and was checked as a “touring car” with starter and demountable rims.

Becker, for three years physical instructor and stolen car manager of police department, formerly a boiler maker, then a- mechanic, then foreman of the N. O. Machine Works, testified that the lower part of original motor block in this car where Ford Co. stencil their serial numbers had been removed and he had found on the left-hand side of the chassis the secret No. EM-150, which had been sent the Chief of Police by Eaton-McDiarmid Motor Company.

His conclusion as to cylinder block being new was based on the fact that there was no dirt on the threads of the bolts and on the cotterpins and the metal looked unused; Ford 7’s and 4’s always had tails as follows 7 and 4, whereas these digits on this motor block had no tails and were made straight as follows, 7 and 4, that there were over 11,0000,000 Fords in existence and in the course of his work he had examined “close onto five or six thousand” and he had not seen straight 7’s and 4’s on any Ford car.

Wm. J. Tucker testified he had bought the Ford sedan, motor No. 8737810 on November 23rd, 1923, for eight hundred thirteen and 88-100 ($813.88) dollars and it had been stolen on February 13th, 1924, in front of his drug store at Canal and Broad streets; that he had been paid by intervenor “five hundred and odd dollars”, that he had not seen the car which was taken from plaintiff, as Becker was too busy to show it when he went to police station to see it. at Becker’s request; that he had never seen the motor number himself and the only identification he knew of was a little dent on the right-hand side near the handle of back door made by yellow piece of wood when his son had run into a truck and been knocked over to the sidewalk, which indentation should still be there.

Here attorney for plaintiff asked the judge to examine the car, which was parked nearby, and the court, counsel and witnesses adjourned to the corner of St. Louis and Chartres streets. Here the witness, when questioned by the judge, stated that he did not see the mark on the car.

Plaintiff, when called as a witness under cross-examination, stated that he had made an affidavit aginst Delhom for getting money under false pretenses under advice from Beckler and later Beckler stated that he had also made an affidavit against Delhom for having stolen property in his possession and that Rene' Delhom had been convicted in Judge Humphrey’s court.

Fred Oster, a rebuttal witness for plaintiff, testified that his company had been keeping the car for the insurance company since they took it from sheriff on bond, but they had done “no paint work on it”.

The proof that the secret No. EM-150 placed on the car by original vendor was found by police inspector would suffice to establish intervenor’s claim, even if there were no corroborative evidence.

Evidently the failure to find any sign of the indentation or paint mark when the car was examined must have heen the controlling cause of the decision of the trial judge, but a thief would naturally remove such identifying marks at once.

The failure of plaintiff to attempt to produce Bush from Gretna, the consignee of the touring car -with Motor No. 8791804 (according to the Ford filing card) and the failure to put J. C. Pell on the witness stand are further indications of the weakness of plaintiff’s claim.

While the testimony of Beckler as to the new cylinder block and as to the Ford figures is corroborative, we think the fact that the Ford record showed the car bearing Motor No. 8791804 as a touring car, while Guarisco’s car with this number was a sedan, is of persuasive force in showing defect in plaintiff’s title.

For above reasons the judgment is reversed.

It is np(W ordered, adjudged and decreed that plaintiff’s suit be dismissed at his cost.

It is further ordered, adjudged and decreed that intervenor, The Mechanics & Traders Insurance Company, is the owner of the Ford four-door sedan, motor No. 8737810, and entitled to possession thereof,

It is further ordered that the writ of sequestration herein issued he dissolved and the forthcoming bond executed by intervenor herein be cancelled.


text:
    No. 10,021
    Orleans
    STATE OF LOUISIANA v. AMERICAN BREWING CO.
    (Jan. 16, 1928. Opinion and Decree.)

      (Syllabus by the Court)
    1. Louisiana Digest — Licenses—Par. 6, 10, 16.
    Under Section 11 of Act 171 of 1898, as amended by Act 265 of 1914, providing for license of brewing companies, the “gross annual receipts” do 'not include amounts temporarily paid on bottles and subsequently refunded to the purchasers where the evidence shows that the company was legally obligated to refund the amount when bottles were returned.
    Appeal from Civil District Court, Div. “C”. Hon. E. K. Skinner, Judge.
    Action by State of Louisiana against American Brewing Co.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed.
    E. M. Heath, of New Orleans, attorney for plaintiff, appellee.
    Lemle, Moreno & Lemle, of New Orleans, attorneys for defendant, appellant.
   JONES, J.

In this proceeding, the State seeks to recover from the American Brewing Company the sum of Eight Hundred Seventy-five Dollars ($875.00) additional license (it having ipaid $375.00) for the manufacture and sale of beer for the year 1919, with 2% per month interest thereon from March 1st, 1919, 10% attorney’s fees and costs. Judgment was rendered in favor of the State for two hundred and forty dollars ($240.00) with 2% interest thereon from March 1st, 1919, 10% attorney’s fees and costs. From this judgment defendant appeals. No amendment' of the judgment has been asked for by the appellee.

The controlling Act 265 of 1914 amending Section 11 of Act 171 of 1898 reads, in part, as follows:

“Section 11. Be it further enacted, etc., that for carrying on each business of * * * and rectifying alcohol or malt liquor, brewing ale, beer, porter, or other malt liquors * * * the license shall be based on the gross annual receipts, * * * as follows:
«* * * Twelfth Class: When said annual receipts are one hundred and fifty thousand ($150,000.00) Dollars or more and less than two hundred thousand ($200,000.00) Dollars, the license shall be three hundred and seventy-five ($375.00) dollars.”

The gross sales of plaintiff for 1919 were $604,673.98, of which $286,694.45 were export business, thus leaving a balance of $317,979.53.

The Judge a quo held that a license tax was due on the balance of sales, or $317,979.53, and that, therefore, a license should have been paid under the Tenth Class of Act 265 of 1914, or $625.00, and that after deducting the amount paid, $375.00, there was a balance due of $240,00 (should be $250.00), for which he rendered judgment. The defendant claims that in order to reach the actual gross receipts, upon which, under Act 265 of 1914, the payment of licenses is based, the following items should have been deducted, viz:

First. Bottles returned _______________$121,142.39

Second. Commissions paid on sales of beer ____________________________ 9,155.99

Third. Rebate allowed customers 5,289.00

Fourth. Sales of beverages______ 51,141.30

Total________________________________$186,728.68

Mr. Boulet', Secretary and Treasurer of the American Brewing Company, on page three of his evidence, testified as follows:

“We do not sell the bottles. The price of a case of beer is $1.50 for two dozen bottles but we require the party to pay 25c per dozen bottles at the time of delivery (to insure the return of the bottles) •and when they return the bottles we give them the money or give them credit for the amount, as the case may be.”
“Q. The price of a case of beer is only $1.50?
“A. That is the net price of the beer.
“Q. What you actually received?
“A. Yes, sir.
“Q. Each dozen bottles is charged at the time to the party purchasing the beer and when they return the bottles they are given the money back or a credit for the empty bottles.
“A. Yes, sir.”

And, again, on page 2:

“Q. How many bottles were returned that were included in your gross sales?
“A. $121,142.39.”

Under the circumstances, we think the $121,142.39 should not be included in annual receipts. The amounts temporarily deposited for bottles were only left with defendant pending return of bottles and the defendant was legally obligated to return the deposit whenever bottles were returned. These monies were, therefore, temporary deposits and the narrow, literal interpretation of the statute as claimed by the state would impose an unfair burden on a legitimate business.

Suppose the beer had been billed at $1.50 per case of two dozen bottles, instead of $2.00 per case, and a separate memorandum kept of the bottles which were to be returned, it is certain the bottles returned would not be taken into consideration in ascertaining the gross receipts for 1919. Their return would merely have been noted on the memorandum and this would have been the last of it. The fact that the value of the bottles was agreed upon, which was to be paid in the event the bottles were not returned, and to be cancelled if returned, cannot possibly by any process of reasoning convert the mere charges made to insure the return of the bottles into receipts. This view is supported by the decision of the Supreme Court in the case of Hughes vs. Commercial Securities Co., 163 La. 43, where the court held that “gross annual receipts” in the case of finance and loan companies meant gross annual earnings.

If the $121,142.39 of bottles returned is deducted from the balance, $317,979.53, as found by the Court the remainder would be $196,837.14, which would bring the American Brewing Company within the class provided for by Section 12 of Act 265 of 1914, which requires a payment of $375.00, which amount it had actually paid and it is unnecessary to discuss the other deductions.

For above reasons the judgment is reversed and it is now ordered, adjudged and decreed that the suit be dismissed.


text:
    No. 11,068
    Orleans
    LOUBAT GLASSWARE & CORK CO., LTD. v. EDMOND VICTOR
    (Jan. 30, 1928. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Sheriffs and Constables — Par. 27, 34.
    The constable of the First City Court may seize property without a break in order.
    Appeal from First City Court, City of New Orleans, Div. “A”. Hon. W. Alexander Bahns, Judge.
    Action by Loubat Glasware & Cork Co., Ltd., against Edmond Victor.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Prowell & McBride, of New Orleans, attorneys for plaintiff, appellee.
    Paul W. Maloney, of New Orleans, attorneys for defendant, appellant.
   JONES, J.

Since this appeal was'taken, the Supreme Court, in Truxillo Tire Service Company, Inc. vs. W. F. Owen, has decided adversely to appellant on the only question at is sup herein, namely, whether the constable for the First City Court of New Orleans could seize property without a break in order.

The judgment is therefore affirmed.


text:
    No. 10,660
    Orleans
    MOELLER v. MORGAN'S LA. & TEX. R. R. & S. S. CO.
    (February 27, 1928. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Damages—Par. 103, 104, 105.
    A judgment of One Thousand Dollars will be affirmed where the record shows that plaintiff, who lost Three Hundred Dollars in salary, suffered for six weeks from a slight separation of the sacro-iliac joint and was still wearing at the time of the trial nine months later a seven-inch canvas belt with steel ribs and straps under the legs.
    Appeal from Civil District Court, Div. “C”. Hon. E. K. Skinner, Judge.

      Action by George H. Moeller against Morgan’s Louisiana & Texas Railroad and Steamship Company.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    M. C. Scharff, of New Orleans, attorney for plaintiff, appellee.
    Denegre, Leovy & Chaffe, of New Orleans, attorneys for defendant, appellant.
   JONES, J.

Plaintiff, a railway mail clerk, sues for damages for personal injuries sustained on March 22nd, 1925, alleging as follows:

Collision occurred between the train on which he was riding and train No. 12, both being operated by defendant; he was violently thrown to the rear of the car, suffering contusions and painful injuries to the muscles and ligaments in the region of the lumbar sacral joints; he was incapacitated until May 5th, 1925, when he returned to work, but he still suffered sometimes from his injuries.

He itemizes his damages as follows:

(A) Four Hundred and Sixteen and 18/100 ($416.18) Dollars for loss of salary; (B) Two Thousand Five Hundred ($2500.00) Dollars for pain and ■ suffering; Two Thousand Five Hundred ($2500.00) Dollars for future pain and suffering and for the permanent injuries and loss of salary.

Defendant admitted liability, but resisted suit on the question of amount.

The Judge a quo rendered judgment in favor of plaintiff for One Thousand ($1000.00) Dollars, from which judgment the defendant has appealed. Plaintiff has answered the appeal praying for an increase.

The sole question before us is the amount.

Plaintiff testified as follows:

Immediately after the, accident he was placed under the care of Dr. O’Hara, who treated him until he returned to work, strapping his back and ordering him to take a complete rest; just prior to May 5th, 1925, he was compelled to wear a seven-inch canvas belt with steel ribs and straps under the legs and up to the day of the trial he had worn out two belts and was still wearing one; he still suffered at intervals and was unable to do any heavy work.

His testimony is corroborated by the testimony of Dr. O’Hara, who testified that he had a “very painful back in the lower end of the spine known as the sacro-iliac region” and that it was difficult for him to say just how long Mr. Moeller would suffer from the injury; that there was a possibility of a recurrence of the injuries by any slight twist or turn; that he prescribed rest for thirty days and about two days later after an open sore had healed he strengthened the joint by strapping the back with adhesive plaster.

Dr. Parham (a witness for defendant) testified that he examined plaintiff and spoke to Dr. O’Hara on March 5th, 1925, about the injuries and again on April 23rd, and that Dr. O’Hara informed him at that time that Mr. Moeller was still disabled, but that he thought he would be able to work about the first of May.

Dr. Parham also testified that on May 11th, 1925, he had an X-ray picture taken of Mr. Moeller, which showed that Moeller was suffering with slight separation of sacro-iliac joint; he prescribed a 7-inch canvas belt; a physician has to rely on the patient’s statement in such cases almost entirely; the slight separation shown by the X-ray was of very little consequence.

C. R. Field, General Claim Agent' of the defendant company, testified that he first called on, Moeller at his home on March 24th, 1925, and that Moeller who was up and about the house, told him that “he was feeling pretty good, that he had a bruise on his shoulder and a few brush burns on his body and a few slight bruises, but that he would be all right in a few days and would be back to work. He said he was being treated by Dr. O’Hara, who had examined him, and hadn’t found anything beyond the few bruises, and there was some injury to his back that the doctor hadn’t fully diagnosed, he hadn’t X-rayed it, but the way he felt, he thought he would be able to return to work in a few days’ time and he expected to.”

He next saw plaintiff on April 25th, 1925, at his office, and plaintiff “said that Dr. O’Hara had told him that he could return to work at any time he felt like doing so”. He added that he would return to work on May 1st. '

Under cross-examination the witness testified that plaintiff on this last visit appeared to be magnifying his injuries, and fully explained the basis of this opinion.

Above digest shows that ¡plaintiff was absent from work about six and one-half weeks, from March 22nd, to May 5th, that he was under Dr. 0'’Hara’s care for about three weeks and consulted Dr. Parham as late as May 11th, after he returned to work.

Defendant’s able attorney argues that' the award of the trial judge is entirely too high, as the record does not bear out the statement of plaintiff that he had suffered severely and that his injuries were largely subjective and his proof too vague to support so large a judgment.

As plaintiff lost six weeks’ salary amounting to Two Hundred Ninety ($290.00) Dollars and as the record shows that‘he had already bought two belts for Four ($4.00) Dollars, the amount actually allotted to him for his suffering is only Seven Hundred ($700.00) Dollars. This amount does not strike us as excessive under the circumstances, particularly as Dr. O’Hara says that he had a very painful back and having had a sacro-iliac sprain would make him more susceptible to pain in that region, and that he would not expect a man with such an injury to be as well as before for sixty days. The fact that defendant was still wearing the seven-inch canvas belt nine months after the accident tends to show that his injury was not greatly exaggerated.

. Both doctors testify that a sacro-iliac sprain is generally painful and the treatment in this case was such as is usually applied, a plaster cast being applied only when there is a fracture.'

These physicians, both widely experienced in treatment of such troubles, could have seen through plaintiff’s pretenses, if he had been, faking his pain.

Furthermore, -we .find nothing in plaintiff’s ■ conduct to justify the conclusions that he was a malingerer. Had he wished to play such a part, he would hardly have seen defendant’s claim agent two days after the accident when he called at his home -and he would certainly not have described his ailment with such frank detail.

Although the different surrounding circumstances and conditions in personal injury claims always make it' difficult to fix the amount, it is peculiarly hard to do so where there are no objective signs of the injury.

In the case of Yarbrough vs. Swift & Co., 119 La. 344, 44 South. 121, where no bones were broken, and there was no discoloration and no extenal signs of violence, but the doctor said that plaintiff was bruised in the back and thigh and •injured about the lower spine, a case closely analogous to the present the Supreme Court affirmed the lower judge who allowed One Thousand ($1000.00) Dollars.

For above reasons the judgment is affirmed.