author: ODOM, J.

text:
    No. 3536
    Second Circuit
    CHILDERS v. CITY OF MONROE ET AL.
    (May 18, 1929. Opinion and Decree.)
    Hudson, Potts, Bernstein and Sholars, of Monroe, attorneys for plaintiff, appellant.
    H. H. Russell, of Monroe, attorney for defendants, appellees.
   ODOM, J.

B. E. Buffaloe & Co. entered into a contract with the city of Monroe, to build for it a water and light plant, and, to secure the faithful performance of the contract, gave bond, with the United States Fidelity & Guaranty Company of Maryland, as surety; the contract being made and the bond written under Act 224 of 1918.

The contract involved the construction of a “clear water basin” and a “secondary settling basin,’’ the building of which necessitated considerable excavation. Buffaloe & Co., the principal contractor, sublet to J. H. Walker the work of excavating for these basins, the contract, which is in writing, stipulating that the “sub-contractor agrees to furnish all material and perform all work necessary to complete the excavation for the ‘clear water basin’ and ‘secondary settling basin’ and to make fills on the lot as shown on plans.” Buffaloe & Co. required no bond of Walker, the subcontractor. The subcontractor employed Childers, the plaintiff, to assist in making the excavations, the agreement between them being that Childers should use his teams and laborers to remove the dirt, his compensation being fixed at $7.50 per day for each team and driver, he to pay the drivers. Childers furnished teams and laborers for a considerable time, his total bill amounting to $2,657.38, on which Walker paid him $1,-844.78, leaving a balance due of $812.60, after which Walker defaulted.

Childdrs promptly filed his claim in the mortgage records of the parish, and gave notice to the city, the principal contractor, and the surety company, of Walker’s default. Failing to collect his claim by ami-' cable demand, he brought this suit against the city, Buffaloe & Co., and its surety, the United States Fidelity & Guaranty Company, and Walker, asking judgment against them in solido for the amount of his claim, together- with 10 per cent attorney’s fees, and asking that his lien be recognized against the water and light plant belonging to the city.

All parties, except Walker, answered, and issue as to Walker was joined by default. There was judgment for plaintiff against all parties in solido, with recognition of a lien and privilege in favor of plaintiff against the property of the city; the lien being referred to the bond.

This appeal is by plaintiff, his counsel assigning the following errors:

1. That plaintiff is not entitled to a lien upon the real estate of the city; and

2. That the lien should not have been referred to the bond.

The defendants, except Walker, answered the appeal and asked that the judgment appealed from be reversed, and assigned the following error;

“That the District Court erred in holding that the statutes of Louisiana governing contracts for public works extended to persons who rent mules to subcontractors engaged on public works the protection of the surety bond given to guarantee payment of those who furnish material for the construction, perform labor or do work, or furnish materials and supplies for use in machines used in the construction.”

OPINION.

Plaintiff in his petition alleged that he was entitled to a lien on the city’s property, and asked that the same be recognized, and judgment was granted him accordingly.

Now that plaintiff has abandoned his claim to the lien and asked that the judgment be so amended as to eliminate reference to a lien, and, as none of the appellees object, we shall so amend the judgment. It follows then that the part of the judgment which refers the lien to the bond should also be stricken out.

Appellee contends that the court erred in holding that Act 224 of 1918, governing contracts for public works, extends to and protects claims for rent of mules to subcontractors, the contention being that said act and bonds written thereunder, and according to its provisions, protect only those who furnish material for, perform labor and do work in connection with, the construction of such works.

The letter of the law is plain, section 1 of the act providing that, when public buildings, public roads, or public work of any character are to be constructed under a contract in excess of $500 at the expense of the state, parish, city, etc., it shall be the duty of the official representative thereof to reduce the contract to writing and to require bond of the contractor for the faithful performance of the contract, and “with an additional obligation for the payment by the contractor- and by all subcontractors for all work done, labor performed, or material furnished in the construction, erection,” etc., of such works or improvements.

There is no contention that the contract and the .bond in this case were not written in accordance with the provisions of this act; and it is not contended that said contract and bond did not protect those who furnished materials and work for the subcontractor. But counsel contends that bills for teams rented to the subcontractor are not covered by the statute.

The confusion in this case, we think, has arisen over a misconstruction or a misinterpretation of the contract between the plaintiff, Childers and the subcontractor, Walker. The pleadings and the testimony show that the contract between the two was that Childers should furnish teams and drivers to excavate for the basins. Childers to receive $7.50 per day for each team and a driver. In figuring the compensation which Childers was to receive, it seems that he figured his teams at $5 per day and his drivers at $2.50 per day each. The parties seem to have called this a contract for mule or team rent. But whatever they may have called it, it was in fact a contract to excavate, move dirt in connection with the building of the water and light plant. Childers, the plaintiff, hired his own drivers and put them in charge of his teams, and, with the teams and drivers, the work was done. In other words, Childers did the work and used the teams to accomplish it. Our construction of the contract is that it was no more nor less than a contract to do work and that plaintiff’s claim is fully protected by the contract and bond.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be so amended as to eliminate all reference to the lien and bond; and, as thus amended, it is affirmed, with costs.


source: Caselaw Access Project

author: ELLIOTT, J.

license: Public Domain

text:
    No. 393
    First Circuit
    WILLIS ET AL. v. ROAD DISTRICT No. 5 ET AL.
    (March 6, 1920. Opinion and Decree.)

      P. L. Ferguson, of Leesville, attorney for plaintiffs, appellants.
    Hardin, Hardin and Cavanaugh, of Lees-ville, attorneys for defendants, appellees.
   ELLIOTT, J.

James .Fenwick Willis, Charles Fosscett, To.m Quave, Joe Gunter, Henry Perkins, James B. Chamberlain, William R. Lard, S. West and J. H. Davis each brought suit against J. J. Bee-son and Road District No. 5 of the Parish of Vernon to recover of them in solido the amounts alleged in their respective petitions to be due them. The amount claimed by the parties is as follows:

James Fenwick Willis, $52; Charles Fosscett, $52; Tom Quave, $316; Joe Gunter, $62; Henry Perkins, $428; James B. Chamberlain, $736; William R. Lard, $624.40; S. West, $94, and J. H. Davis, $564.77. The claim of all the plaintiffs is based on work done by them in the construction of said road, except J. H. Davis. His claim is for feed and groceries, cash, etc., which he alleges that he furnished Henry Perkins and S. J. Smith, sub-contractors under J. J. Beeson, and by them used in the construction of said road. An itemized account of his alleged advances is annexed to and part of his petition.

The name of the plaintiff Fosscett appears in the judgment as Fawcett; and that ■ of the plaintiff Lard, as Laurent. This difference is not mentioned in the briefs. We assume that Fosscett and Fawcett is one and the same party and that Lard and Laurent is the same party.

The plaintiffs claim that the Board of Supervisors of said Road District did not advertise for bids, but let the contract for the construction of the road to J. J. Beeson, without requiring from him a bond, as provided for by Act 234 of 1918, Section 6, and that said Beeson, for whom they worked, and the said Road District are therefore liable to them in solido on said account.

They further allege that said Road District is indebted unto said Beeson in an amount sufficient to pay them. That there remains in the hands of the Board of Supervisors of said Road District, and in the hands of the Police Jury of the Parish of Vernon, a residue of the proceeds of the bonds voted for the purpose of constructing said road, sufficient to pay them. That an amount sufficient for the purpose has been set aside for the payment of any indebtedness that might be incurred in the construction of said road, and that the indebtedness sued on was incurred for the account of and inured to the benefit of said Road District.

That said work was performed under agreement and at the special request of said Beeson and the Supervisors of said Road District. That they have filed with the Police Jury, the governing body of said Road District, a sworn statement of indebtedness, set forth in their petitions.

The defendant Road District and the Parish of Vernon answered all the suits on March 29, 1923, setting up the same defenses in each case.

J. J. Beeson did not appear in the case until March 24, 1924. He then urged as a defense, that the petitions of the plaintiffs set forth no cause or right of action against him, for the same reason, to-wit:

“Because it has been judicially determined by the decision of this court, of date June 2, 1922, in the case J. Addison Heard vs. Supervisors of Road District No. 5, et al., No. 4837, on the docket of this court, that this Respondent was working for said Road District, as if said Road District was taking the work, the subject of this suit, into its own hands and performing said work under the authority of Section 7 of Act No. 30 of 1917, as will be seen by reference to said decision, so rendered; the entire record of said suit being hereto attached and made, part hereof.
“That therefore if any amount is due this plaintiff, by reason of work on said road, which respondent denies, such amount is due by said Road District and not by this Respondent.”

In the J. H. Davis case, No. 4991, he additionally alleged, that the petition set forth no right or cause of action against him for the further reason, to-wit:

“Because, according to the allegations of plaintiff’s petition, said alleged indebtedness was created by third parties, and there is no allegation that Respondent promised in writing to pay any debt of said third parties.
“Because the subject of said alleged indebtedness, according to said allegations, is feed, groceries and cash furnished by plaintiff to said third parties, for which items the law does not make either the owner or the contractor liable.
“Because in paragraph 15, plaintiff specifically alleges that said indebtedness was incurred for the account of and inured to the benefit of said Fifth Road District, and does not allege that Respondent was responsible therefor or had anything to do therewith.”

These pleas on the part of Beeson are not exceptions of the kind claimed, but informal answers whereby he put at issue the right of the plaintiffs to recover judgment against him on the law and facts of the case. They were so regarded and evidence was adduced in their support.

The defense was sustained and the demands of all the plaintiffs against Bee-son were rejected. The plaintiffs, referring to the ruling, say:

“That the Fifth Road District and the Parish of Yernon took no appeal, and as it was not a matter of interest to the plaintiffs, whether or not Beeson be retained in the suit, the plaintiff acquiesced in this judgment.”

The action of the court on these so-called exceptions amounted to a final disposition of all the suits against Beeson, yet it was never reduced to writing. None has been read by the judge in open court, as required by Code of Practice, art. 543, nor signed as required by art. 546. If it was not for the fact that plaintiffs have acquiesced in the disposition of their demands against Beeson, the action of the lower court might not be regarded as final. See State ex rel. Ikerd vs. Judge, 35 La. Ann. 212; Nieholls vs. Maddox, 52 La. Ann. 497, 26 So. 994; James vs. St. Charles Hotel Co., 145 La. 1004, 83 So. 22; River & Rails Terminal Co. vs. La. Railway & Navigation Co., 160 La. 931, 107 So. 700. But in view of plaintiff's assent, we leave the situation as we find it.

The note of testimony shows that the cases were subsequently consolidated as between the plaintiff and the Fifth Road District and the Parish of Vernon.

There having been no concursus, and as the claims of James Fenwick Willis, Charles Fosscett, Joe Gunter and S. West are each for an amount less than that of which we have jurisdiction, Constitution 1921, art. 7, Sections 29 and 35, their demands are not appealable and are not before us on appeal.

As for Tom Quave, Henry Perkins, Raines B. Chamberlin and William R. Lard, the record does not show an appeal granted them from the judgment in favor of the Fifth Road District rejecting their demand against it. It has not been moved that their appeals be dismissed, but we will ex officio dismiss them.

Ganeaux vs. Desonier, 104 La. 648, 29 So. 282; Sammons vs. N. O. Railway & Light Co., 143 La. 731, 79 So. 320; Louisiana Digest, Vol. I, Subject: “Appeals,” pp. 395, Sec. 266.

The record shows that J. H. Davis was granted an appeal, but we do not find in the record any answer to his demand on the part of the Road District and Parish of Yernon. The Court minutes do not show on his part any default entered against the Road District. The judgment is in the form of one rendered after answer filed. Davis took the stand and testified in support of his demand and was then cross-examined by counsel for the Road District on the subject. A blank space left in the certificate of the Clerk of Court to the transcript, leaves it uncertain whether his case was answered by the Road District or not. We have sought through the Clerk of Court to ascertain if an answer to his demand was filed by the Road District, and if so, to have it sent up so as to enable us to review the record, and if none was filed, to have the fact properly shown. But our efforts have so far proved unavailing. If there was an answer it must be before us to enable us to act on the case.

For the reasons stated the appeal of Tom Quave, Henry Perkins, James B. Chamberlin and William R. Lard are hereby dismissed.

As for that of J. H. Davis, acting under the authority of -the Code of Practice, arts. 899 and 906, the transcript herein, insofar only as concerns the appeal by him, is ordered returned to the Clerk of Court of the Parish of Vernon for certification, so that we may know whether his demand against Road District No. 5 was answered by the Road District or not. If none was filed, the transcript is to be ■returned to the Clerk of Court at Baton Rouge, La., without delay. If an answer was filed, it is to be placed in the record and the record returned to the Clerk of this Court at Baton Rouge, La., without delay. If an answer was filed, and the original has been lost or destroyed, but was recorded as provided for by Revised Statutes, Section 474 (amending Act No. 17 of 1878) a copy of the registry is to be placed in the record in lieu of the original. If it was lost or destroyed without having been recorded, and Davis and the Road District cannot agree on a reproduction of the original, it may be then reproduced under the provisions of Act 57 of 1886, and as reproduced, placed in the record and the record then returned to the Clerk bf this Court at Baton Rouge, La. J. H. Davis and Road District No. 5 are each to be given notice of this order and return of transcript in time for them to be present by their counsel before any action is taken hereon.

The submission of this appeal made at Baton Rouge as to J. H. Davis is to stand, but further consideration of the same will be postponed until the order herein given has been complied with, subject to our right to enter any further order that we may find necessary in the case.

The cost occasioned by this return is to be paid by J. H. Davis.


text:
    No. 3540
    Second Circuit
    WEST ET AL. v. GREEN
    (May 8, 1929. Opinion and Decree.)
    C. J. Ellis, of Rayville, attorney for plaintiffs, appellees.
    Smith and McGregor, of Rayville, attorneys for defendant, appellant.
   ON MOTION TO DISMISS APPEAL AND FOR NEW TRIAL.

ODOM, J.

On June 2, 1928, Mrs. M. E. West, surviving widow in community of J. B. West, and Mrs. Brent,' Mrs. Morris, and Mrs. Barham, sole heirs of J. B. West, deceased, brought this suit against William M. Green, alleging that they were the owners of certain real estate in the parish of Richland and that defendant was in possession thereof without title, and prayed that they be decreed, the owners of the property and entitled to possession thereof.

The case was put at issue by answer filed by Green on June 18th, following, and was tried on January 31, 1929, and judgment was rendered for plaintiffs. On the same, day, defendant asked for and was granted an appeal to this court made returnable on March 11, 1929, which appeal was perfected.

Before the return day, however, counsel for appellant moved, that the judgment be set aside and a new trial be granted for the reason that Mrs. M. E. West, one of the appellees, was then dead. We quote the following from the minutes of. the court of date February 21, 1929:

“On opposition of the Plaintiff to allow the motion after due consideration of the law, the Court is of the opinion that if in the event Mrs. West is dead, it is nothing more or elss than an exception of nonjoinder as to one of the parties plaintiff, and inasmuch as the appeal has been granted and bond made to the Court of Appeals, this Court is without jurisdiction and the motion for new trial was made after the expiration of the three days, and for the above reasons the motion is not considered, and for the further reason that the Plaintiff said he would make applica: tion to the Court of Appeals in event the death of Mrs. West, one of the Plaintiffs, occurred prior to the rendition of the judgment, to have her heirs made a party plaintiff in the Court of Appeals.”

The record was promptly lodged in this court, and, when the case came on to be heard at Monroe, counsel for appellant insisted that the appeal be dismissed and a new trial ordered.

It is undisputed that Mrs. West, one of the plaintiffs, is dead and that her heirs have not been made parties. Whether she died before the case was tried in the district court, during the trial, or after the appeal was granted, no one seems to know. -As we understand it, neither counsel for plaintiffs nor for defendant knew that she was dead until several days after the case was finally disposed of in the district court and the appeal perfected.

Mrs. West being dead and her heirs not having been made parties, any judgment which this court might render would be an absolute nullity in so far as her interest is concerned., because no valid judgment can be rendered either for or against a dead person. So far as this court is informed, Mrs. West may have died before or during the trial in the lower court, or after trial and before the appeal. It is evident, however, that she died previous to the date on which the case was lodged in this court. She did not, therefore, die pending the appeal.

The moment Mrs. West died, the suit as to her lapsed and all proceedings taken thereafter were null and void. If she died after the case was tried and decided and before appeal, the order granting the appeal was null, the judge being powerless to grant the order, all the parties not being before the court or properly represented.

The judge refused, when informed that Mrs. West was dead, to grant a new trial for two reasons: First, because the appeal had already been perfected and he had no further jurisdiction; and, second, because counsel for appellees suggested that he would have her heirs or legal representatives made parties in this court.

It is true that when an order of appeal has been granted and the appeal perfected, the lower court loses jurisdiction of the case, except to inquire into the validity and sufficiency of the appeal bond. But, if Mrs. West died before the order of appeal was granted, the order was an absolute nullity—in fact, there was no appeal—• and the case stood in the district court precisely where it was when she died. On the second point, if she died, previous to the date on which the case was lodged in this court, then her heirs cannot be made parties here for the reason that it is only in eases where parties die pending the appeal that this court can entertain an application to make heirs or representatives parties.

Under the circumstances disclose'd, it is not proper that this court either dismiss the appeal or order a new trial, as suggested by counsel. The proceedings in the district court were valid up to the moment Mrs. West died, and there is no reason for this court to enter an order setting them aside. But, as to such proceedings as were had after her death, they are null. It is necessary, therefore, that the case be sent back to the district court and reinstated on the docket thereof in the precise situation that it was on the date of Mrs. West’s death, and that it be proceeded with from that point, provided, of course, that her heirs or legal representatives be made parties. The effect, of course, will be that in case she died previous to the trial, the case will have to be retried. The following decisions are in point: Bates et ux. vs. Weathersby et al., 2 La. Ann. 484; Edwards vs. Whited, 29 La. Ann. 647; Succession of Pickett et al. vs. Pickett et al., 41 La. Ann. 882, 6 So. 655; Cambon Bros. vs. Suthon et al., 148 La. 669, 87 So. 512.

It is therefore ordered that the judgment appealed from be set aside, and that the ease be remanded to the district court and reinstated on the docket thereof, and proceeded with according to the views herein expressed; costs of appeal to be paid by appellees; all other costs to await final results.


author: JONES, J.

text:
    No. 8642
    Orleans
    FEDERAL SIGN SYSTEM v. LEOPOLD ET AL.
    (March 4, 1929. Opinion and Decree.)
    (April 1, 1929. Rehearing Refused.)
    (May 21, 1929. Writ of Certiorari and Review Refused by Supreme Court.)
    Sol Weiss and L. H. Yarrut, of New Orleans, attorneys for plaintiff, appellee.
    E. A. Parsons and McCaleb and McCaleb, of New Orleans, attorneys for defendants, appellants.
   JONES, J.

Plaintiff sued Arthur B. Leopold, as principal and Arnold Falk, as surety for breach of a written contract whereby the plaintiff agreed to install an electric sign reading “Pantages Vaudeville” in front of a theatre, 320 Dauphine Street, for a term of thirty-six (36) months from the date of installation; the sign was to burn from dark until 11 p. m., for seven days a week; the consideration of said contract was $27.15 per week, payable in advance, and the further sum of $14.00 per month in case of the breach of the agreement.

It claims $27.15 per week from date of last payment, May 28, 192‡, until the sign was taken down on November 30, 1921, $718.54, and so-called liquidated damages at $14.00 per month for 115% weeks, the unexpired term of the contract or $371.00 making a total of $1,087.54.

Leopold, after admitting the contract alleges as follows: That it was changed (without the consent of Arnold Falk, guarantor) on July 28, 1920, by addition of the following written words:

“If the lessee (meaning your respondent) is unable to renew his contract with Alexander Pantages, which expires August 15, 1922, Lessor (Plaintiff) agrees to cancel this contract at no further expense to the lessee (respondent).”

He was unable to renew his contract with Alexander Pantages and owing to depression in theatrical line, had to close the theatre on May 28, 1921, when Pantages’ contract with him was cancelled.

During the time said theatre was closed, no sign was used and no electric power; subsequently it was orally agreed, without notice to Falk, that no charge would be exacted while the theatre was closed.

That he paid all amounts due from September 26, 1920, the date service commenced, until May 28, 1921, when the theatre was closed.

On October 23, 1921, the policy of the theatre changed from Pantages Vaudeville to Dramatic Stock, and it became necessary to change the electric sign. With plaintiff’s approval respondent caused the said “Pantages Vaudeville” sign to be removed and taken down, and substituted therefor an electric sign reading “Louisiana Theatre,” which burned one hour from 7:45 p. m., to 8:45 p. m., nightly until November 30, 1921, when it was removed by plaintiff for nonpayment of rent.

Falk, the surety, avers that his contract of guarantee was breached by two changes made without his consent, the first change being made by the addition of the written words, July 28, 1921, above q,uoted, and the second by oral agreement.

There was judgment below in favor of plaintiff and against the defendants in so-lido for $716.54, the amount due from the date of the last payment, to-wit: On May 28, 1921, to November 30, 1921, the date when the sign reading “Louisiana Theatre” was taken down, and for liquidated damages at $14.00 per month, from November 20 to August 15, 1922. Leopold has appealed devolutively and Falk has appealed suspensively.

On the trial of the case plaintiff admitted that the clause quoted above from Leopold’s answer had been added to the contract but through error it had been left off the copy sent counsel.

Defendant contends that the contract was changed a second time but in this he is not sustained by the evidence. Burrell, the local manager of plaintiff, testified that various changes were discussed after theatre was closed but agreement could never be reached and his statement is confirmed by an unsigned and undated typewritten document which both parties agree was an attempt to embody their various oral suggestions in a written contract. On the sides of the document are various notes in pencil made by Leopold demanding that price and date be fixed.

Leopold testified that no price had ever been fixed for the changed sign and certainly all must admit that the price to be paid for the article is usually one of the most important elements in a lease contract. If a new oral agreement was ever consummated the record does not show it.

The fact that defendant may not have used his sign for a few months is of no legal consequence. Burrell and Leopold both testified the lighting of the sign was under the control of Leopold. If he failed to take the benefits of the service and the rights he had under the contract that does not lessen his responsibility.

The “liquidated damages” paragraph of the contract reads as follows:

“Upon a breach of this agreement by the Lessee, the Company may remove the sign, wiring and all its other property, and cut off the supply of electricity, in which event the Lessee will pay the Company a sum equivalent to $14.00 Dollars for each unexpired month of the term of the contract, which sum is agreed to be the actual loss suffered by the Company by reason of such breach. Non-payment by the Lessee for rental due under this contract to the company may be considered a breach of this contract.”

Defendant contends that liquidated damages, though definitely specified in above paragraph, cannot be recovered, but only actual proven damages are legally obtainable under articles 1934 and 2127 Rev. Civ. Code.

Defendant was to pay at the rate of $27.15 per week four and one-half weeks ■to the month, a total monthly of $122.00, more or less. If he defaulted, he paid damages at the rate of $14.00 per month, or about 12 per cent of the former rate, a fairly reasonable profit considering the expense of installation.

The greater the duration of use of sign, the less liquidated damages would be due.

The case of Godwin vs. Davidson et al., 163 La. Ann. 804, 112 So. 728, cited by appellant is not in point. There the bond provided a penalty of $5,000.00 for its breach. The contract was almost completely performed. The damages were assessed or fixed in a lump sum, not so much for each day, week or month, or year. Since the contract was partially performed the Court properly held that plaintiff was not entitled to the entire $5,000.00 but would have to prove his damages.

Here the amount defendant had to pay was commensurate with the period of his default and it is certainly reasonable.

Although defendants have proved no change in the contract except the written words limiting Leopold’s liability to August 22, 1922, rather than the full 36 months, they claim that the surety was released by this change which they admit was beneficial to the surety, but Leopold saved thereby $140.00 in damages, and the guarantor’s liability was reduced.

In Provan vs. Percy, 11 La. Ann. 179, the Supreme Court held that the discharge of the surety under art. 3030 C. C., only took place to the extent that the acts of the creditor have prejudiced recourse to the surety for reimbursement of what he may have to pay.

In Barrow vs. Shields, 13 La. Ann. 63, the Supreme Court said a partial release of the mortgage and privilege by the creditor releases the surety only pro tanto.

The following holdings are affirmed:

Hill & Co. vs. Bourcier, 29 La. Ann. 844;

Stewart vs. Lacoume, 30 La. Ann. 159;

Segari vs. Mazzei, 116 La. 1026, 41 So. 245;

Putnam vs. Live Oak Merc. Co., 122 La. 507, 47 So. 846.

Defendant cites:

Jefferson Railway Co. vs. International Construction Co., 113 La. 413, 37 So. 10;

Insurance Company vs. Randall, 42 La. 260, 7 So. 679;

McGuire vs. Woolridge, 6 Robinson 47.

An examination of these decisions show that the change of the contract in each case caused the surety substantial harm and wé do not think that any of «them are controlling here, although they contain obiter dicta to the effect that a creditor “cannot make any change, though beneficial to the surety, under the penalty of releasing him.”

As Civil Code provides in arts. 3061, 3062 and 3083 only certain specific instances in which the surety is released, this defense is not sound on the principle “inclusio unius exclusio alterius.”

For above reason the judgment is affirmed.


author: JANVIER, J.

text:
    No. 10,367
    Orleans
    RINGEL-WOODY BOX CO., INC., v. LIUZZA ET AL.
    (March 4, 1929. Opinion and Decree.)
    (April 15, 1929. Rehearing Refused.)
    (May 21, 1929. Writ of Certiorari and Review Refused by Supreme Court.)
    Chas. Rosen, of New Orleans, attorney for plaintiff, appellant.
    P. M. Milner, of New Orleans, attorney for defendants, appellees.
   JANVIER, J.

Liuzza was the owner of certain property on Tulane Avenue, in New Orleans. On it there was a partially constructed building. Plaintiffs were engaged in the manufacture of paste-board boxes and agreed to purchase the property mentioned for $25,000.00, provided Liuzza would complete the construction of the building. He -agreed to this. It was understood that the fiz-st floor of the building was to be constructed of brick and the second floor of wood, weather-boarded on the outside. Subsequently to the original agreement—possibly at the suggestion of Liuzza, but more probably at the request of plaintiffs—it was decided to use hollow tile construction on the second floor instead of wood. The building was thus completed by defendant, Liuzza, and, as plaintiffs were anxious to get into it as soon as possible, an agreement was entered into under which they were to take possession of the property prior to the execution of the act of sale. During the few weeks in which they occupied the property, prior to the passage of the act of sale, a number of heavy rains occurred and, on each such occasion, a great deal of water got into the second floor of the building. For this reason, when the time arrived for the passage of the act of sale, the purchasers refused to take title unless the seller, Liuzza, would furnish them a bond for $3,000.00, guaranteeing the following:

“The surety bond herein given of $3,-000.00 is also given to insure and hold free and harmless from expense to purchaser, with reference to the following: It is admitted by the parties hereto for the purpose of this transaction that the building or improvements- which have been erected on the property by the vendor herein and which were on the property as is herein described and as is herewith being transferred to purchaser is defective in the sense that either the roof of the building contains a number of leaks which causes water to enter the building profusely during heavy rains. Vendor recognizes this defect in the property which he is herewith delivering to purchaser. Vendor also recognizes his liability to completely repair said defects to the satisfaction of purchaser. Vendor herein binds and obligates himself to repair these defects so as to effectually stop any and all such leaks at once, said work to commence within five days of the date of the passing of this act and to be completed within the thirty days of the passing of this act. In the event vendor does not so commence and complete the repair of said defects herein mentioned and referred to within the time herein specified, purchaser shall have the right to do so at the expense of vendor, these repairs to be at the expense of vendor and in the event purchaser is required to make these repairs in lieu of vendor and in accordance with the agreements herein made, then and in that event the bond of $3,000.00 which is herein given by vendor to purchaser is to protect and hold purchaser free and harmless from any and all expenses, damages, etc., in connection therewith.”

It appears that Liuzza then sent a contractor to the plaintiffs with instructions to obtain from them a list of things that they required done. This contractor, according to defendants’ contention, did everything that was required, but, according to plaintiffs, the water continued to come into the building in large quantities. Thereupon plaintiffs themselves undertook to correct the defects, and for this purpose expended the sum herein sued for. This amount was paid to the contractor employed by the plaintiffs for the stuccoing of the entire outside of the second story of the building.

This suit is brought against John Liuzza, the vendor of the property, and against the American Surety Company of New York, the surety on the bond above referred to. The defense is that the trouble of which plaintiffs complained resulted from the nature of the construction of the building, and not from construction defects; in other words, that a hollow tile building of the character stipulated for by the plaintiffs could not be made waterproof and that, therefore, plaintiffs, as a matter of fact, had obtained exactly what they contracted for. Defendants contend that the water which got into the building did not leak in through holes, but seeped in as a result of the porousness of the hollow tiles.

The question which we are called upon to determine is whether or not plaintiff’s troubles resuited from defective construction and defective repairing of the building, or from the inherent inability of unprotected tile to keep out water. At the outset, we notice that in spite of the claim in the petition “that the building and roof leaked profusely during heavy rains,” Mr. Ringel, principal witness for the plaintiff, admitted that there were no leaks in the roof: “ * * * it developed it was the side wall and not the roof.”

We are of the opinion that it was plaintiff themselves who initiated the change in the upper floor of the building from wood to hollow tile, or, at any rate, that they readily accepted the suggestion if, in fact, they did not initiate it. That they readily accepted it, and that they themselves selected the method of construction, is testified to by Mr. Swiler, the contractor, who, in referring to his conversation with the plaintiffs and the defendant, Liuzza, on this point said:

“They said they wanted a cheap building * * *. First, I had a contract with them to erect a first story brick wall on the outside, backed up with tile. Then a discussion came up; they asked me about a tile wall and I said I thought it would be more economical to put the tile wall, but it would not be a frame wall. They got me to give them a figure on the tile wall, and I brought them a bid down there * « They accepted my estimate to take and construct that tile wall—because I had went to their office three or four times to see if their man came in from New York, their president,—and I just put in lime cement mortar, what we call bastard mortar, used in all construction work —one barrel of lime, four barrels sand and a barrel of cement; that is the mortar we use on all buildings.”

If, then, plaintiffs themselves either selected or approved the material and method of construction, they cannot complain if the trouble results from the kind of material or from the method of construction. It appears to us from a careful reading of the testimony that, after the repair work was done by Liuzza, the real trouble resulted entirely from the inherent inability of unprotected hollow tile to prevent seepage of water. Our opinion in this regard is based largely on the testimony of plaintiff’s contractor, Mr. Woodward, a man of large experience in building in this city, who testified as follows:

“It has been my experience that no tile wall,' unless it is an inter-locking tile wall, is impervious to water.”

It was suggested that possibly the joints between the tiles had not been properly cemented or pointed, but Mr. Woodward negatived the idea that this trouble might result from improper cementing or pointing, and said:

“Q. Now, getting rid of the absorption problem—which seems to be ridiculous, to me,—the answer to Mr. Ringel’s complaint must have been that a certain number of joints on the outside of this wall had opened, and the water beating up against the perpendicular wall went into the joints and seeped through into the interior of the building?
“A. That is my opinion, yes, sir.
“Q. Now, your experience has been that that is common, in this character of construction?
“A. Yes, sir.
“Q. As a matter of fact, it could be corrected by going over these joints and pointing them up, wherever it was apparent that the joints had opened?
“A. To repeat my opinion, to the effect that in a wall- other than an interlocking tile wall, pointing would not be a remedy.
“Q. Not even if pointed with a waterproof mixture of mortar?
“A. No,—I wouldn’t guarantee it.”

It is true that certain minor cracks were pointed out to Mr. Woodward, and he was asked if these cracks could have allowed the water to seep through. His testimony on this point follows:

“Q. In those places would it be possible for rain to beat through?
“A. I hardly think.
“Q. Not even where you could see the daylight?
“A. I hardly think so.”

The question of whether or not the method of construction selected in this case was usual, or could be relied on to give satisfaction, was discussed by Mr. Woodward, having been raised by the trial judge. The testimony is intei’esting and we quote from it at length:

“Q. Are any buildings, constructed with hollow tile, simply constructed with the hollow tile without stucco or waterproof paint or cement?
“A. Very rarely.
“Q. Are there some buildings of that construction in this city?
“A. You probably have seen some with hollow' tile block appearance from the exterior, but with the interlocking device on the interior. I built some myself on those lines, one at Thalia and the river front, for the Fruit Dispatch.
“Q. So that any tile constructed building that is not of interlocking tiles needs waterproof paint or cement or something else?
“A. That is my opinion,—regardless of whether the joints are struck or not.”

Mr. Woodward’s opinion as to the unsatisfactory results usually following the use of unprotected or uncovered, hollow tile is fully concurred in by Mr. De Buys, an architect of large experience.

We are therefore quite well convinced that the real trouble here was not that the defendant, Liuzza, did not comply with his contract as far as it was possible to do so, but that it was to all intents impossible to obtain, by the use of the material and the method of construction selected, what plaintiffs wanted, that is, an absolutely dry, water-proof building.

The only question left for determination, then, is whether or not defendants are bound to comply with the stipulation in the contract and in the bond, “To completely repair said defects to the satisfaction of purchaser.” We realize that the duty of an obligor, under such a contract as this, “to give satisfaction,” does not terminate merely because it is difficult for him to comply, but we do not believe that the contract itself intended that the obligor should eliminate seepage. Immediately following the stipulation to which we have referred appears what seems to be an explanation or limitation of that stipulation, in these words:

“Vendor herein binds and obligates himself to repair these defects so as to effectually stop any and all leaks at once.”

It seems, then, that it was only the leaks which the obligor had in mind, and not the seepage, and in view of the fact that it was not only impracticable, but, to all intent, impossible, to prevent seepage in a building of that character, we cannot hold that the obligation of Liuzza was to do an impossible thing, particularly when that thing was not contemplated by the contract.

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


text:
    No. 11,545
    Orleans
    LEHON v. N. O. PUB. SERVICE, INC.
    (April 29, 1929. Opinion and Decree.)

      Weiss, Yarrut & Stich, Lois H. Yarrut and H. W. Robinson, of New Orleans, attorneys for- plaintiff, appellant.
    Ivy G. Kittredge, of New Orleans, attorney for defendant, appellee.
   JANVIER, J.

Plaintiff received severe injuries as a result of a collision between his automobile and a street car of defendant company, in the late afternoon of March 8, 1926.

The automobile, operated by the chauffeur of plaintiff, with plaintiff himself seated on the front seat alongside the chauffeur, was proceeding out Metairie Road towards the 17th Street Canal Bridge. For a distance of several hundred yards that road is bordered on one side by a canal and hedge alongside Metairie Cemetery and on the other side by the golf course,'border fence and hedge of tlm Now Orleans Country Club. There is a single track street car line of defendant company on the country club side of the roadway, This track parallels the roadway for a distance of some four or five hundred yards and then crosses it at an angle and enters a private right-of-way on the other side. From this point to the 17th Street Canal several hundred yards away the road and street ear track again run parallel but there is between them an intervening space of some 30 or 40 feet. The inbound and the outbound street cars use the track alternately.

The street car which collided with plaintiff’s automobile was on its way towards the new basin canal. It, and the automobile, were thus proceeding in opposite directions. They met in almost a head on collision.

Plaintiff charges that the street car was being operated at too fast^ a speed, that no warning signals were given by it, and that the motorman was not looking to the front. Plaintiff also contends that the failure of defendant to erect warning boards or lights at that unusually dangerous traffic intersection, in itself constitutes negligence.

Defendant denies all negligence on its part and charges that the proximate cause of the accident was the excessive speed of the automobile and the fact that the chauffeur, though familiar with the locality, failed to stop or to look or to listen for an approaching car.

It is claimed by plaintiff that the hedge, which borders the roadway, and a large tree and other shrubbery alongside the roadway obstructed the view of himself, his chauffeur and all those in his automobile and interfered with their sight of the approaching car.

According to plaintiff, there are some features which differentiate this case from the usual cases of collisions between street cars and automobiles at street crossings and interséctions, and which, so plaintiff’s counsel argues, prevent the application of the well recognized principle that, although defendant’s employees may have been at fault, nevertheless the injured party cannot recover if, by the exercise of the senses of sight and hearing on his part or on the part of his chauffeur the accident could have been avoided. Plaintiff argues, for instance, that this was not a crossing because the street car tracks did not completely cross the roadway but turned into it and then extended along one side of it.

As authority in support of this contention, our attention is directed to certain decisions to the effect that streets which do not extend across other streets but which connect from only one side do not cross them. We do not think that this reasoning has any application here as it is perfectly plain that the route of plaintiff’s automobile would necessarily take it across the car track and it was therefore the duty of the driver to look and to listen to determine whether a car was approaching.

It is quite true that if, as a result of obstructions or of the particular angle at which the track intersected the roadway, an' unusually hazardous situation was created, it was defendant’s duty to see that extraordinary precautions were taken by those operating its cars. Schwartz vs. Railway Co., 110 La. 543, 34 So. 667.

In Elliot on Roads and Streets (2d Ed.) Par. 891, p. 856, we find the following:

“If a railroad company, in the management of its traffic, causes unusual peril to travelers, it should meet such peril by Corresponding precautions. So, where the crossing is especially dangerous to travelers on account of its locality or mode of construction, or because the track is curved, or the view obstructed, it is the duty of the company to exercise such care and take such precautions as the dangerous nature of the crossing requires.”

But where plaintiff is familiar with the situation is he not bound likewise to take unusual care? That plaintiff and his chauffeur, Bell, were familiar with this crossing and had crossed it on many occasions is admitted by both of them. In the record we find the following admission of plaintiff:

“Q. He had frequently been over that road with you, had he not?
“A. Yes, sir.”

The “he” referred to in the above question was plaintiff’s chauffeur, Bell. Bell, himself, in this connection testified:

“Q. You had driven by there lots of times?
“A. Well, pretty regular, yes, sir, off and on.”

Conceding then that the crossing, unguarded and built, as it was, at an angle, was more than usually hazardous, the effect of this extraordinary hazard as the proximate cause of the accident is lost when it appears that plaintiff and his driver were well acquainted with the unusual peril and yet not only took no unusual precaution but, in fact, took none at all.

That the approaching street car was plainly visible is shown by the fact that Schillinger and Neilsen, who were in an automobile just ahead of plaintiff’s car, stopped about forty or fifty feet from the track to allow the street car to pass. Schillinger testified:

“Q. Did you see any reason for your automobile to stop?
“A. For my automobile to stop?
"Q. Yes?
“A. Well, we were really running slow, and, seeing the car approaching, yes, the electric car.
“Q. You stopped then because you saw a car approaching?
“A. Yes, sir.”

While Scliillinger and Neilsen were stopped waiting for the street car to cross the roadway in front of them, plaintiff’s car, which had, up to that time, been following them, passed them on their left and, continuing at a speed of about twenty or twenty-five miles an hour, ran headlong into the approaching street car. Neilsen’s testimony with regard to the speed and careless operation of plaintiff’s car is quite illuminating.

‘‘A. As we were making the stop, when we slowed down to make the stop, somebody had blowed their horn—they blew their horn, I believe, twice, in the back of us, and they pulled around us, and, as we came to a stop, they approached out and that’s when the street car—when we stopped, the street car was at the gutter curb, and by that time the other automobile was in the center of the road, and that’s when the same time the street car reached that they hit into each other.
“Q. So you were making the stop, then, and this automobile which had blown for you to get out of the way, passed you, did it?
“A. Yes, sir.
“Q. At what speed was it running, could you say?
“A. Oh, twenty or twenty-five miles an hour or so.
‘‘Q. Did that automobile slow up before it reached the track?
“A. It was too late for it to slow up.”

That Schillinger and Neilsen saw the car is proof positive that had plaintiff’s chauffeur looked he too, could have seen it.

That plaintiff, himself, saw the car when it was still some distance away is shown by his testimony that he shouted to the motorman several times to call his attention to the danger. It is a well known fact that an automobile can be stopped in a much shorter distance than can a street car and if, after he saw the street ear, plaintiff had time to shout several times to the motorman and if, as plaintiff would have us believe, the motorman, had he heeded those shouts, would have had time to stop, we cannot understand why plaintiff’s chauffeur could not have stopped in that same time unless he was going too fast or was not looking.

The chauffeur attempts to lay the blame for his not seeing the car on a large oak tree which was located between the roadway and the track, and on the hedge alongside of the roadway. The hedge was shown positively to have been only about three feet high, and, as the street car was ten or twelve feet high, it is manifest that the obstruction to the view created by the hedge, was of no importance. The oak tree was one hundred feet from the point of the collision. In other words, the street car had passed the tree and had proceeded one hundred feet beyond it when the accident occurred so that this tree was. in no sense a contributing factor to the result.

The speed of plaintiff’s machine was at least twenty or twenty-five miles per hour. In all probability it was greater than this. Such a speed, while perfectly safe in the open country, is grossly excessive in a dangerous locality such as that was. The charge that there was a continuous stream of traffic going both ways on that roadway is not borne out by the evidence and we are convinced that at the time of the accident there were only a few automobiles in that immediate vicinity.

Since we are of the opinion that the proximate cause of the accident was the negligence of the driver of plaintiff’s car, it will serve no good purpose to discuss the question of whether or not there was negligence on the part of the defendant, as the law is well settled that where an accident is caused by the contributing negligence of a person injured, he cannot recover notwithstanding the fact that the other party may also have been at fault.

Gibbons vs. New Orleans Terminal Co., 159 La. 347, 105 So. 367.

Townsend vs. Missouri Pacific R. R. Co., 6 La. App. 303.

Eyma Brown vs. Railroad, 42 La. Ann. 350, 7 So. 682.

The trial judge set aside a verdict for plaintiff, so certain was he that plaintiff and his chauffeur was guilty of contributory negligence. We find in his reasons for judgment a statement that he visited the scene of the accident to convince himself that the opinion which he had gained-from the evidence was correct. He then rendered judgment in favor of defendant. Under such circumstances we feel that his opinion should be given extraordinary weight and our study of the evidence convinces us that his judgment was entirely correct.

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


text:
    No. 3541
    Second Circuit
    ROSS ET AL. v. COCHRAN & FRANKLIN CO., INC.
    (May 8, 1929. Opinion and Decree.)

      Munholland and Munholland, of Monroe, attorneys for plaintiffs, appellees.
    Smith and McGregor, of Rayville, attorneys, for defendant, appellant.
   ODOM, J.

Alfred Ross, colored, a minor 16 years, 8 months and 19 days old, was employed by the defendant company to do work in and about a stave mill, the employment being admittedly hazardous. On the tenth day after he was employed and while engaged in work at the mill, he received an accidental injury resulting in the loss of three-fifths of his left foot. The father and mother of the minor brought this suit for damages, for the use and benefit of the son, under Article 2315 of the Civil Code, alleging that the injury was due wholly to the fault and negligence of defendant; but in the alternative asked that in case the Court should •find and hold that the employment came under and was governed by the Workmen’s Compensation Acts, then that the minor be awarded such compensation as those acts warrant.

Answering the suit for damages, the defendant company plead contributory negligence on the part of the employee in bar of recovery, setting up that the accident and resulting injury were due solely to the fault and negligence of the employee; and as to plaintiffs’ alternative demand for compensation under the Workmen’s Compensation Acts, defendant plead estoppel, setting up that inasmuch as plaintiffs had brought this suit for damages under Article 2315 of the Code, they have no other remedy.

The District Judge rejected plaintiffs’ demand for damages, but awarded compensation at 65 per cent of the employee’s wages for 100 weeks, giving credit for the amounts paid. Defendant ‘appealed. Plaintiffs answered the appeal asking that -the judgment be so amended as to allow damages, as prayed for, and, in the alternative, should the Court hold that plaintiffs are entitled to recover under the compensation acts, then, that the judgment he affirmed.

OPINION

The District Judge gave consideration to plaintiffs’ demand for damages and for reasons assigned in a written opinion, for which we are indebted to him, held that plaintiffs could not recover under Article 2315 of the Civil Code, and we fully concur in his views. Considering the action for damages on its merits, the testimony shows that the accident and resulting injury were due to no fault of the defendant company, but solely to the fault and negligence of plaintiffs’ son, the employee.

There is another reason why plaintiffs can not recover damages and that is that the contract of employment falls under and is governed by the compensation acts. Such being the case, plaintiffs have no remedy except that which is prescribed' by those acts. See Section 34, Act 20 of 1914, as amended by Act 38 of 1918.

Phillips vs. Guy Drilling Co., 143 La. 951, 79 So. 549.

Whittington vs. Louisiana Saw Mill Co., 142 La. 322, 76 So. 764.

Defendant’s plea of estoppel cannot be sustained. Plaintiffs brought this suit for damages under Article 2315 of the Civil Code, and, in the alternative, asked that in case the Court should hold that the contract of employment was governed by the Workmen’s Compensation Acts, that they should be awarded compensation as provided therein. The identical question here raised was considered and settled in the case of Phillips vs Guy Drilling Co., supra.

There is some suggestion that the contract of hiring in this case did not fall under the compensation acts, hut we think it does.

While the boy stated to Jones, who employed him, and to a physician, who treated him after the injury, that he was 19 years old, the testimony of the father, mother and of others shows that he was only 16 years, 8 months and 19 days old when injured. But the compensation law applies to minor employees, unless they be under the minimum age provided by law for the employment of minors in hazardous occupations, which age is 14 years, as fixed in Section 1, Act 301 of 1908. See Paragraph 4, Section 3, Act 20 of 1914, as finally amended by Act 85 of 1926, Paragraph 6, Section 3.

The boy was employed without the knowledge or consent of his parents, both of whom were living. He was injured on the tenth day after having been employed, but there was no election by agreement between him and his employer previous to the injury that the contract should be subject to the provisions of the Workmen’s Compensation Acts, and it is now suggested that inasmuch as there was no such election by agreement between the parties, the acts do not apply. The injury, as stated, was sustained on the tenth day after the contract of employment was entered into and we do not think that it was necessai’y that such agreement be made because in the original act and each of its amendments, including Act 85 of 1926, it is specifically provided that the parties shall be .presumed to have elected by the contract of employment to be subject to the provisions of that law. In the case of Phillips vs. Guy Drilling Co., supra, the Court held that where there was no notice between the parties that the act should not apply, an accident occurring within 30 days after the act of employment was not excluded, overruling the case of Woodruff vs. Producers Oil Co., 142 La. 368, 76 So. 803, to the contrary.

However, if such an election by agreement was necessary between the parties as a condition precedent to the application of the act, and, if it be conceded, as argued by counsel, that the minor, being without capacity to contract, could not for that reason make such election, we hold that such election was made for him by his parents.

The compensation act, as finally amended, provides that if the employee be 18 years of age and upward, he shall make the election for himself, but if under 18, such right of election shall be made by his father, mother or tutor, and, if neither of these can be readily gotten to act, then by the Court. This applies, of course, only to cases where an election to come under the Act or not he bound thereby was necessary.

The conduct of the parents of the minor in this case shows conclusively, we think, that they intended not only to ratify the contract of employment, but that it should be governed by the compensation act. The boy was employed to work at a mill within five miles of where his parents lived; and, while they had no knowledge of his employment originally, the testimony shows that they were informed two days before the accident that he was so employed, and they made no protest, although, as stated, they lived only about five miles from the place where their son was at work, which place was easily reached over a graveled highway, and the parents owned an automobile. Furthermore, after the minor was injured, the employer, under the assumption that the contract of

employment wa's governed by the act, took charge of the injured employee, furnished at his own expense medical and surgical aid, paid his board and lodging, and in addition thereto, paid him compensation under the act for 11 weeks—all with the full knowledge, and approval of the parents. As to the amount of compensation, we think the lower court correctly held that he was entitled to 65 per cent of his weekly wages for 100 weeks. His left foot was cut in two, across the instep or arch, by a saw. The front part of his foot, almost back to the ankle, is gone. He has almost, but not quite, lost the use of his foot. The lower court holding that the usefulness of the foot, a physical function, was seriously and permanently impaired, awarded compensation for 100 weeks, under Paragraph 16, Section 8, Act 85 of 1926.

Counsel for the defendant company contend that compensation should be granted for only 62% weeks, their theory being that, if the employee had lost his foot, he would be entitled to compensation for 125 weeks, and, as only one-half of it was cut off, he should be given only 62% weeks, under Paragraph 15, Section 8, of the act which provides that in all cases “involving the permanent, partial loss of the use of function of a member, mentioned hereinabove, compensation shall bear such proportion to the amounts named herein for the total loss of such member as the disability to such member bears to the total loss of the member.”

It is true, as argued by counsel, that if the employee has lost one-half the use of the foot, he should be given only 62% weeks’ compensation. But, while he lost, physically, only about one-half, or, as the doctor said, about three-fifths of his foot, the loss of that part has practically destroyed the use of the foot. It is impossible to state from the evidence just what proportion of the use of the foot the employee has lost. However, if it be necessary to decide that point, we should hold that he has lost a great deal more than one-half the use of his foot.' We think the compensation was correctly based upon that section of the statute which provides compensation for the permanent impairment of a physical function.

The employee was receiving $2.25 per day, or $13.50 per week, and is entitled to five per cent of that amount for 100 weeks, less the amounts already paid. In stating the amounts already paid, the judgment shows a slight error of one payment—there have been eleven instead of ten payments made. The judgment is clear that the Court intended to allow weekly compensation for 100 weeks, less the payments which are shown by the receipts. For this reason, no amendment of the judgment is necessary.

For the reasons assigned, the judgment appealed from is affirmed, with costs in both courts.


author: WESTERFIELD, J.

text:
    No. 11,643
    Orleans
    LANDRY v. CHECKER CAB CO., INC.
    (April 29, 1929. Opinion and Decree.)
    (May 27, 1929. Rehearing Refused.)
    Elias Bowsky, of New Orleans, attorney for plaintiffs, appellees.
    P. L. Fourchy, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

Mrs. Alexander Landry, one of the plaintiffs in this case, was injured as a result of being knocked down by a Checker Cab owned by defendant company. She sues for $10,050.00. She is joined by her husband, Alexander Landry, who sues for $340.80, the expense incurred by • him as a result of the injury to his wife. There was judgment below in favor of the husband as prayed for, and in favor of the wife,'in the sum of $1,550.00. Defendant has appealed.

The accident occurred about 5:00 p. m., January 18, 1928, at the corner of Broad and Bayou Road. The plaintiff, who was accompanied by two small children, was standing on the sidewalk at the intersection awaiting an opportunity to cross the street, which was very much congested with a double line of automobiles at the time. While traffic was momentarily stopped, Mrs. Landry and her two children proceeded across the roadway, having been invited .to do so by the driver of an automobile, whose car was in the lead of the line of cars. Before she could clear the roadway, defendant’s taxicab, which had darted from behind the leading automobile, ran into her and knocked her down, causing the injuries she complains of. The children succeeded in crossing in safety, having been pushed -to one side by Mrs. Landry as she fell.

The taxicab driver, disclaiming all responsibility for the accident, testified that he was driving very slowly in very heavy traffic, the point of the accident being adjacent to the Pair Grounds Race Track, and the .races being just over, the road was congested with vehicles, conveying patrons of the race track to their homes. He claims the accident to have been unavoidable and due to the fact that Mrs. Landry suddenly darted across his path in pursuit of the two children, who had broken away from her. He admits, however, that he first saw her about eight or ten feet in front of him.

The trial judge was of opinion that the testimony of the taxicab driver was sufficient in itself to establish his responsibility for the accident. In his reasons for judgment the judge, a guo, points out that, accepting the chauffeur’s statement as to his speed and as to the time when he first saw Mrs. Landry, there was no good excuse for his failure to stop his taxicab without striking her, since, at a speed of eight miles an hour, he should have been able to bring his cab to a stop within the distance of eight feet.

We entertain the same opinion. We also .agree with the judge below in his appreciation of the credit to be given the driver’s testimony, which he considered unreliable. At the time of the accident his cab was occupied by six persons, three of whom testify that just previous to his running into Mrs. Landry he had collided with another taxicab, and that he had been twice 'warned by his passengers about his reckless driving, all of which he denied. His rushing ahead of the ear in front of this line was inexcusable in view of the traffic conditions and his conduct in this regard consistent with the previous recklessness, with which he is charged. We are convinced that the cab was being operated. in a careless manner and that the defendant’s liability has been established.

As to the expenses claimed by Mr. Landry as head of the community, they have been proven and are not disputed.

Mrs. Landry’s principal injury consisted in the loss of three front teeth. She also suffered a laceration of her nose, which left a scar. She was bruised about the body and experienced a certain amount of shock and suffered considerably. The amount awarded by the judgment does not to us appear excessive.

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


author: JANVIER, J. JANVIER, J.

text:
    No. 10,722
    Orleans
    DECKER v. RENAUDIN
    (May 18, 1929. Opinion and Decree.)
    (May 21, 1929. Writ of Certiorari and Review Refused by Supreme Court.)
    Weiss, Yarrut and Stitch, of New Orleans, attorneys for plaintiff, appellant.
    Leon Levitan, of New Orleans, attorney for defendant, appellee.
   JANVIER, J.

Plaintiff sues for the return of $694, deposited by him with Miss Renaudin’s real estate agent as 10 per cent of the purchase price of certain real estate owned by Miss Renaudin, and which Decker agreed to purchase. Plaintiff bases his claim for the return of his money and the cancellation of the agreement of sale on two grounds.

He first charges that he was the victim of misrepresentation, in that he was told that one-half of the property was rented for $35 per month, whereas, in fact, it was rented for only $30 per month. A careful review of the evidence convinces us, as it did the trial judge, that there was no misrepresentation employed, and that plaintiff’s error was the result of a misunderstanding, and that defendant and her mother acted in the best of faith throughout the transaction.

Plaintiff’s second contention is directed at the contract itself. He claims that it Contains a potestative condition, and is thus unenforceable. The agreement of sale which we find in the record contains these words: “Subject to Homestead loan—gotten thru Conservative Homestead or any obtained by E. P. Smith Co.”

Defendant argues that this contention cannot be raised before this court because it was not argued below, and in support of this argument cites Northwestern Bottle Co. vs. Rosen et al., 8 La. App. 284, in which this court cited numerous cases holding that:

“Pleas and issues not raised in the lower court cannot be raised on appeal.”

It appears, however, that this contention was raised below, although we assume from defendant’s argument, and from the fact that it was not discussed by the trial judge in his reasons for judgment, that it was not stressed. Nevertheless, we find in plaintiff’s petition article 15, which reads as follows:

“Now Petitioner furthermore alleges and avers that the said alleged contract between himself and said Miss Renaudin is null, void and of no effect, or in the alternative is voidable, and not binding upon petitioner for want of mutuality and is nudum pactum, for the reason that the terms recited are ‘One Thousand Dollars Cash, balance of $5,940.00 on Homestead Loan obtained by purchaser or E. Palmer Smith’ (as recited in one copy of the contract delivered to Petitioner) or (as recited in another copy supposedly of the same contract delivered to Petitioner) ‘One thousand Dollars cash, balance of $5,940.00 subject to Homestead loan, gotten through Conservative Homestead or any gotten by E. Palmer Smith & Company.’ ” „

We can think of no words which would more clearly set forth the identical contention made in oral argument and on brief here than those employed by plaintiff in this article of his petition.

It is further contended by defendant that the fact that a patricular homestead is named in the contract brings this case within the doctrine announced in Morrison vs. Mioton et al., 163 La. 1065, 113 So. 456, in which the court said:

“Whatever may be the nature of the obligation imposed by the contract upon plaintiff (the purchaser), it is clearly not potestative, since its execution does not depend solely upon his will. Civ. Code, art. 2024. * * * Plaintiff’s inescapable duty under the plain terms of the contract was to apply to the Orleans Homestead Association for a loan in order to obtain the money required for the purchase of the property. Favorable action by the association on such application would have fixed absolutely upon plaintiff the obligation to take the property and pay the price.”

But the evidence shows beyond the shadow of a doubt that the very homestead named in the contract in the case at bar refused to make the loan, and it also shows that neither defendant nor her agents made any effort to produce any other homestead ready, willing, and able to make the loan.

Plaintiff’s offer contained two alternative conditions. In effect he said:

“I will buy your property if the Conservative Homestead will lend me the money, or if your agent Smith can arrange for some other loan for me.”

The homestead refused to lend the money, and Smith did not arrange for any other loan. Under C. C. art. 2021, these conditions appear to us to have been suspensive, as plaintiff’s obligation to purchase did not come into existence until the happening of one of the events on which the offer was conditioned. As neither of the events has happened, plaintiff’s obligation has not come into existence, and he is at liberty to withdraw and to require that his deposit be returned to him.

There is some dispute as to which of the agreements is the one actually executed by the parties. The one which seems to us genuine is the one to which we have referred, and the conditions of which we have quoted.

However, if the other is the genuine agreement, it also contains the following conditions which prevent its enforcement:

“Subject to Homestead loan obtained by purchaser or E. Palmer Smith.”

We have repeatedly held that such conditions as “subject to homestead loan” are potestative, and, deprive the document of binding effect. Titus vs. Cunningham, 7 La. App. 37; Parks vs. Cilluffa, 7 La. App. 749; Matthews Bros. vs. Schoenberger, No. 11099, Ct. of App., Par. of Orleans, decided October, 1928, 122 So. —.

It matters not, then, which contract is the genuine one. The conditions contained in one are potestative and the document is therefore a “nudum pactum,” and the conditions contained in the other have never been complied with, and plaintiff is therefore not bound.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be annulled, avoided, and reversed, and that plaintiff do now have and recover judgment against defendant in the sum of $694, with interest from December 13, 1925, until paid. All costs to be paid by defendant.

ON REHEARING

JANVIER, J.

On application for rehearing, plaintiff and appellant calls attention to our failure to render judgment against the co-defendant, E. Palmer Smith.

This omission was due to the fact that in the original petition, judgment was asked against only one defendant, Miss Renaudin.

The decree and judgment should have been against both defendants, and it is now, therefore, ordered that the rehearing applied for by plaintiff and appellant be and it is refused and that the decree heretofore rendered by us be amended so as to read as follows:

It is ordered, adjudged, and decreed that the judgment appealed from be annulled, avoided and reversed and that plaintiff, Emile J. Decker, do now have and recover judgment against. Miss Ruth F. Renaudin, and E. Palmer Smith, jointly, severally and in solido, in the sum of Six Hundred and Ninty-Four Dollars ($694.00), with legal interest from December 13, 1925, until paid.

All costs to be paid by defendants.


text:
    No. 11,080
    Orleans
    STEWART v. CLAY
    (May 27, 1929. Opinion and Decree.)

      Louis E. Jung, of New Orleans, attorney for plaintiff, appellant.
    Soloman S. Goldman, of New Orleans, attorney for defendant, appellee.
   JANVIER, J.

Plaintiff is engaged in this city, as a retailer of electrical and gas appliances, plumbing fixtures, stoves, heaters, etc. During August, 1925, he entered into a written contract with defendant under which he agreed to lease to defendant and to install in a residence, which was then under construction, a Heatrola, which is a patented home heater.

Under the contract it was agreed that defendant should pay monthly rentals until a total sum of $175 had been paid, at which time, he should have the right, upon the payment of $1, to purchase the heater.

Both parties now concede that this contract, under the law and jurisprudence of this state, was in reality a contract of sale.

Defendant had made payments totalling $80, when, during December, cold weather having set in, he decided that the heater was unsatisfactory and would not produce the results required of it. He thereupon refused to continue the monthly payments.

Plaintiff sued for the balance stipulated in the contract and defendant, by reconventional demand, asked for the return of the amount paid.

Defendant contends that before he purchased the Heatrola, plaintiff and plaintiff’s salesman represented to him that it was capable of heating his home to a uniformly satisfactory temperature, with a variation among the various rooms of not more than from three to five degrees. There was in the contract no stipulation whatever as to the capacity of the heater nor as to its ability to heat to a uniform temperature the building in which it was to be installed, and plaintiff contends that no evidence as to any such representation should be admitted or considered as the contract was in writing and such evidence would tend to vary or contradict it, in violation of the well-known rule against variation or contradiction by parol of written documents.

We cannot agree that the testimony with reference to the warranties as to the capabilities of the heater would tend to vary or contradict the provisions of the written contract because that contract was completely silent with regard thereto. Had it contained any reference to the ability of the heater to heat a certain number of rooms, or to its inability to heat more than a certain number of rooms, it might well be said the testimony as to other warranties would tend to contradict or to vary the terms of the written contract, but, since it was absolutely silent in this regard, it is evident that the contract did not contain the entire agreement between the parties. In fact, plaintiff’s attorney, in his brief, makes the following statement:

“The contract in this case is written; there is nothing in said contract as to any guarantee or special warranty; the contract is absolutely silent on the subject.”

It has often been held that testimony on a point on which the contract is silent does not tend to vary or contradict the contract. In Davies vs. Bierce, 114 La. 633, 38 So. 488, our Supreme Court said:

“The test of admissibility in such case is whether the evidence offered tends to alter, vary or contradict the written contract, or only to prove an independent, collateral fact about which the written contract is silent. ' In the former case the testimony is inadmissible; in the latter it is competent and proper.”

The testimony as to the warranties and representations conyinces us that defendant was led to believe by plaintiff and his salesman and by the various circulars and advertisements, which were given him, that the Heatrola would heat his home to a uniform temperature and satisfactorily to him.

It is not disputed that plaintiff is considered a heating expert, nor is it denied that he recommended the particular heater in question for plaintiff’s house. It is also shown that it was installed by him and that he selected the place of its location.

It is manifest that it failed dismally to heat the house to anything resembling a uniform temperature. Tests were made by plaintiff’s employees and they show a variation between the various rooms of 24 degrees, one room showed a temperature of 61 degrees, which is certainly much too cold, while another room at the same time, showed a temperature of 85 degrees, which is manifestly much too hot.

Plaintiff further contends that he is not responsible if the heater failed to perform satisfactorily, because he was merely acting as a retail seller of a well-known article of trade, and that his only obligation was to furnish the article properly constructed, with proper material and without inherent defects. This contention might be good had defendant merely called at plaintiff’s place of business and ordered a Heatrola, but instead of doing this, he actually left the whole matter to plaintiff, as an expert, and plaintiff selected the heater of the size and type, which he thought proper, and, as we have already said, installed it himself. Since it did not comply with his warranties and representations, he cannot recover the balance of the price and in fact, must return what has been paid to him.

The trial judge came to this conclusion and we think that he was correct.

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


text:
    No. 10,857
    Orleans
    SMITH v. STANDARD INDUSTRIAL LIFE INS. CO. OF LOUISIANA, INC.
    (April 15, 1929. Opinion and Decree.)

      H. Kenner, of New Orleans, attorney for plaintiff, appellee.
    Roger Meunier, of New Orleans, attorney for defendant, appellant.
   JONES, J.

Plaintiff, alleging a written contract of- employment and discharge without just cause, sues for $1,400.00, his salary for the unexpired term. He attaches to his petition the following document:

“Standard Industrial Life Insurance Co., Inc.,
“New Orleans, La., “September 27th, 1924.
“This is to certify that the Standard Industrial Life Insurance Company of Louisiana, doth agree to pay to J. H. Smith, the sum of ($25.00) Twenty Five Dollars per week for the period of Thirty-six Months (36) as General Agent and S. Special Writer for the Above said Company.
“Standard Industrial Insurance Co.
“Per S. Sazón, “Vice-President.”

After its exception of no cause of action had been overruled, defendant answered, urging the following defenses:

The document relied upon by plaintiff as evidencing a contract does not in law show the existence of a contract.

If the document does evidence a contract, then the vice-president of the company who signed it had no authority to make such a contract for the company.

If the court finds that a contract did exist, then the company, in the' words of the Code, had “serious ground of complaint” against the plaintiff when it discharged him. I

The district judge decided in favor of plaintiff for the amount claimed. Defendant has appealed to this court.

The evidence shows that plaintiff, who stood well with the general manager, had been successfully employed for some time by the Liberty Industrial Life Insurance Company, and that he went to work for defendant under the document above quoted, shortly after defendant was organized, and that he worked continuously for it, with apparent satisfaction to all parties, until July 26, 1926, when he was discharged; the contract of employment was made by the vice-president and general manager, Sazón, who also employed the other agents; the existence of this contract was called to the attention of the board of directors and officers at least twice during the twenty-two months of plaintiff’s employment, but they took no steps to repudiate the contract.

On this last point we adopt the language of the trial judge, who said:

“The proof is, the General Manager made the contract and the General Manager employed everybody that was employed by the corporation.
“The corporation took, advantage of that employment from the day of its organization to this day, and it is, therefore, plain,under the authorities, where a corporation holds out one of its officers, or a general manager, to have the power and cause him to exercise those powers, and it takes the benefit and advantages of this exercise of power, it is estopped to deny the authority of its officers and that is the case here.”

See the following authorities: Corpus Juris (Corporations), Vol. 14, Sec. 2228; Sun Printing & Pub. Assn. vs. Moore, 183 U. S. 642, 22 S. Ct. 240, 46 L. Ed. 366; Pace & Company vs. Alexandria Electric Rys. Co., 138 La. 879, 70 So. 867; Savage vs. Wyatt Lumber Co., 134 La. 627, 64 So. 491; Penick & Ford vs. C. Lagarde Co., 146 La. 511, 83 So. 787; Dupont de Nemours & Co. vs. Capital City Oil Co., 146 La. 720, 84 So. 31; Clark vs. Opelousas, 147 La. 1, 84 So. 433; Kraemer vs. Dixie Laundry Co., 8 Orleans App. 284; Gosserand vs. City of Gretna, No. 11,655 of the Court of Appeal, Par. of Orleans (not yet officially reported) 121 So. 208.

As the general manager testified that plaintiff, who had up to that time been courteous and respectful, could have continued with defendant, if he had not threatened him with bodily harm on July 24th, the validity of the third defense hinges upon the proof of that charge.

All the witnesses agree that the general manager and plaintiff had an altercation at a meeting of the superintendents on July 24th, and that plaintiff left the meeting, saying substantially, to the general manager: “You won’t repeat those words to me on the outside.”

The general manager says that plaintiff had a revolver in his lower vest pocket which looked like an automatic, and he threateningly put his hand on the weapon as he left the room.

Agents Stewart and Robinson, who were present, confirmed general manager Sazón as to the revolver, but they differ as to the words used and other minor details. They "also stated that plaintiff had once before spoken of threatening another man with a revolver.

Washington and Netterville, who were present, say they saw no revolver and that they never knew plaintiff to carry one in the ten years they had known him. Jones, secretary of the company, a witness for defendant, who was not present at the meeting, says that he never knew Smith to carry a pistol and had never heard him speak of so doing.

Jenkins, with whom the plaintiff had lived for years, and Dr. Spears, the physician for the life insurance company, with whom plaintiff had worked for some time, also say they had never known plaintiff to carry a pistol, and had never known him to threaten any one.

It seems highly improbable that plaintiff would have carried a revolver in his vest pocket, as such pockets are usually too small for that purpose, and it is certain that a large part of the revolver would have been visible if it had been so carried, and that anyone who had a clear view of the plaintiff at the meeting could have seen it.

Plaintiff, who had a good position for fourteen months more, would hardly have been so foolish as to enter a meeting of his fellow agents carrying a revolver in his vest pocket.

The judge of the trial court found in favor of plaintiff on this issue and a careful analysis of the evidence reveals no error.

For above reasons the judgment is affirmed.


text:
    No. 10,860
    Orleans
    TUSA REALTY CO., INC., v. STATE REALTY CO., INC.
    (April 15, 1929. Opinion and Decree.)
    Michel Provosty, of New Orleans, attorney for plaintiff, appellee.
    Yan Burén Harris, of New Orleans, attorney for defendants, appellants.
   WESTERFIELD, J.

This is a suit for the return of a deposit in the sum of $750 made by plaintiff with one of the defendants, State Realty Company, Inc., on account of the purchase price of certain property.

The State Realty Co., Inc., operates a real estate agency and in the course of business obtained the authority of Mr. ■Capdebosque to sell a certain piece of property belonging to him. A purchaser was found in the person of Jules M. Wogan, who agreed to pay $15,000 and to deposit 10 per cent of the purchase price upon the acceptance of his offer. The offer was duly accepted, but no deposit made. Subsequently Tusa Brothers agreed to join Mr. Wogan in his purchase and affixed their signatures to the contract below that of Mr. Wogan and at the same time handed their check for $750 to the State Realty Co., Inc., as their share of the deposit. Wogan was unable, or unwilling —in any event he failed to put up his half of the deposit, whereupon an agreement was entered into whereby the Tusa Realty Co., Inc., which had acquired the interest of the Tusa Brothers in the transaction, and Jno. T. Gough agreed to buy the property from Jules M. Wogan. This agreement also contained the stipulation that 10 per cent deposit was to be made on account of the purchase price, but no deposit was made. Mr. Capdebosque was willing to convey the property for the original offer of $15,000, to anybody who would pay the price and the Tusa Realty Co., Inc., was willing to pay for half of the property, but neither Mr. Gough nor Mr. Wogan was willing to buy the other half, consequently, the entire transaction failed of consummation.

The plaintiff sued the State Realty Co., Inc., and its surety, the Massachusetts Bonding and Insurance Company, and made all other parties to the transaction co-defendants. The only defendant opposing plaintiff’s demand in this court is the State Realty Co., Inc., and its surety, Massachusetts Bonding and Insurance Company. The objection raised by this defendant is not clear to us, but it is apparent that since the owner does not claim the deposit, his agent has no right to it, particularly, in view of the fact that no commission is demanded. Indeed no commission is due the agent for, it has failed to earn any, by consummating the sale of the property, or procuring a purchaser able and willing to purchase it.

We believe, as did the trial judge, that “the common sense and right thing to do in such a situation is to restore the respective parties to the positions which they occupied at the beginning. * * * The State Realty Co., Inc., makes no claim in this suit for a commission, therefore, I could not in this suit give it a judgment. If its claim to a commission could be said to offer some impediment to the return of the deposit, it must be said that the commission is not earned.”

The lower court awarded plaintiff judgment for the amount claimed, $750, against the State Realty Co., Inc., and its surety, the Massachusetts Bonding and Insurance Company, in solido, ordering the return of the deposit, and declaring null and void the various contracts confected in the effort to sell this property.

We are of opinion that the case has been correctly determined below and for the reasons assigned the judgment appealed from is affirmed.


text:
    No. 11,674
    Orleans
    McADD v. SHEA
    (April 29, 1929. Opinion and Decree.)
    (May 29, 1929. Rehearing Refused.)
    William R. Kinsella, of New Orleans, attorney for plaintiff, appellant.
    Lemle, Moreno and Lemle, of New Orleans, attorneys for defendant, appellee.
   WESTERFIELD, J.

Plaintiff was a guest in the automobile of defendant and was injured when the car left the road and overturned in a ditch on the side of the road. He sues for damages.

It appears from the evidence that Mrs. Rose Shea, the defendant in this case, was requested by a Mrs. Richard Dowling to drive her from New Orleans to Mandeville, La., for the purpose of conveying Mrs. Dowling’s sister, who was ill in Mande ville, to New Orleans in order that an operation for appendicitis might be performed upon her. The plaintiff, a negro chauffeur employed by an undertaking firm, T. J. McMahon- & Sons, was invited to make the trip in order that there might be, as Mrs. Shea puts it, a man in the car.

Mrs. Shea, who was driving the car, kept increasing its speed, and, at the time of the accident which occurred about six miles out of Ponchatoula, she was going at the rate of 55 miles per hour and crossing a small bridge when a cow suddenly appeared directly in her path. She endeavored to avoid hitting the cow, lost control of the automobile, and ran off the road and injured plaintiff, as well as the other occupants of the car.

Defendant’s negligence is frankly admitted, but, it is contended, that plaintiff was guilty of contributory negligence which bars his recovery. It is freely conceded that the negligence of the driver of an automobile may not be imputed to a guest or passenger, but it is insisted that the passenger, himself, may be guilty of contributory negligence by failing to take proper precautions for his safety under dangerous conditions. Toups vs. Morgan’s La. & Tex. R. R. & S. S. Co., 4 La. App. 136; Roberts vs. Eason, 6 La. App. 703. In other words, it is argued that the plaintiff in this case should have protested against the dangerous speed at which the car was running, and, in the event his protest was unheeded, to cause the automobile to be stopped and get out of the car. Huddy on Automobiles, 8th Ed. Sec. 830; Blashfield Cyclopedia of Automobile Law, p. 1087; Sharp et ux vs. Sproat, 208 Pac. 613 (Kansas); Hill vs. P. R. T. Co., 114 Atl. 643 (Penn.).

Without discussing the force in Louisiana of the rule which seems to have been recognized in a number of other jurisdictions, we observe that in this case, the plaintiff, a negro chauffeur, had, at least 'on two occasions during the trip, commented upon the excessive speed to the effect that it was “pretty fast for a new car.” It is true that he made no effort to stop the car by forcefully taking possession of the driving wheel and that he did not cry out or cause the automobile to be stopped on the road, nor did he get out of the automobile. However, we are of the opinion that whatever may be the situation under different circumstances, and, assuming that plaintiff should have objected to the speed of the car, he made sufficient protest, mild as his language was, to relieve him of the charge of contributory negligence. In fact any comment at all upon. Mrs. Shea’s driving by the negro chauffeur,, who was an invitee, was, in our opinion, quite remarkable. To expect more forceful protest would be absurd.

Plaintiff’s injuries were very slight. A few. cuts and bruises and a thorough shaking up, involving the loss of about two weeks’ pay at $25 per week, about expresses the damages. Under the circumstances we believe an award of $100 to be sufficient.

For the reasons assigned, it is therefore ordered, adjudged and decreed that the judgment be reversed and that there now be judgment in favor of the plaintiff, Claude McAdd, and against the defendant, Mrs. Shea, in the full sum of $100, with legal interest thereon from judicial demand until paid and all costs.


author: WESTERPIELD, J.

text:
    No. 11,689
    Orleans
    NEWELL v. ORLEANS DREDGING CO., INC.
    (April 29, 1929. Opinion and Decree.)
    (May 27, 1929. Rehearing Refused.)
    R. O. Yorbusch, of New Orleans, attorney for plaintiff, appellant.
    J. C. Henriques and Prank T. Doyle, of New Orleans, attorneys for defendant, appellee.
   WESTERPIELD, J.

Plaintiff, employed as a fireman on a dredge-boat, brings this suit against his employers under the compensation law, alleging that on June 7, 1927, he was severely injured by falling against a cross-beam supporting the superstructure of the dredge-boat “Hercules,” “striking himself on various parts of the body, but with greater force and more particularly the center of his back and spinal column and in the immediate vicinity of his shoulder blades on either side thereof.”

Defendant admits that the plaintiff was injured in the manner alleged in his petition, but claims his disability due to the injury did not exceed two weeks, for which he has been paid compensation and that, consequently, no further compensation is due.

Plaintiff was twice admitted to the Marine Hospital. The records of that institution show that, when first admitted on October 20, 1927, he was suffering from a “contusion of back cause trauma, dental caries and salivary calculus of teeth.” He was discharged on November 23, 1927, and re-admitted on March 17, 1928. At the time of his re-admission he was troubled with “neuritis, multiple, left leg, left foot, left hand, cause and variety undetermined.” He was discharged the second time on May 15, 1928.

It is the contention of plaintiff’s counsel that the neuritis, with which plaintiff was affected upon the occasion of his second entry into the hospital, was attributable to the original injury to his back. This contention finds no support in the record. The evidence is to the contrary. Three physicians testify that neuritis, which is an inflammation of the nerve, is not caused by trauma.

The trial judge was of the opinion that plaintiff had been sufficiently compensated for his injury and, accordingly, rendered judgment for defendant, dismissing plaintiff’s suit.

We believe this judgment to be correct and it is therefore affirmed.