text:
    No. 13,916
    Orleans
    MEYERS ET UX. v. ACME HOMESTEAD ASSOCIATION
    (December 14, 1931. Opinion and Decree.)

      Legiere, McEnerny & Waguespack, Delvaille H. Theard, Sol Weiss, Arthur J. Peters, Azzo J. Plough, Percival Stern and Charles J. Rivet, of New Orleans, attorneys for plaintiffs, appellees.
    Puneky & Barrios and L. Walter Cock-field, of New Orleans, attorneys for defendant, appellant.
   JANVIER, J.

This litigation was initiated by Mr. and Mrs. Meyers, former shareholders in a building and loan association, to recover a balance claimed to be due, or, in the alternative, damages because of the fact that the association, in complying with the request, did not include the dividends which the former shareholders claim their stock should have earned between the time they made application for withdrawal and the time at which they received payment.

The association maintains that payment was made strictly in accordance with its by-laws, by which plaintiffs are bound, and also that, in accepting the checks for their .•holdings, plaintiffs indorsed thereon a stipulation that the amount received constituted full settlement of the account.

On the books of defendant homestead association there had stood for several years an account in the name of “Joseph C. or Mrs. Anna G. Meyers.” No certificates of stock were issued,' since Mr. and Mrs. Meyers preferred to employ the “running share” system, under which all amounts standing, to their credit were entered in a passbook issued by defendant association, and in which book all dividends earned were entered to the credit of the account.

On December 1, 1926, there stood in the said passbook to the credit of the said account $12,212.21. Between that day and December 2, 1930, earnings of the said stock were entered in the book, as well as three withdrawals of comparatively minor amounts, the result being that, on December 2, 1930, according to the book and according to the records of the association, there was a credit to the said account of exactly $12,900, and on that day, under circumstances which we shall hereafter narrate, the association issued two checks totaling that amount payable to “Joseph C. or Mrs. Anna G. Meyers,” and the said checks were accepted and used by the payees.-

Prior to that time, on October 22, 1929, there had been given to the association by Mr. and Mrs. Meyers a notice that they desired to withdraw such amount as stood on the association’s books to their credit. However, the withdrawal request had not, prior to December 2, 1930, been complied with because, according to the officials of the association, there was not before that time cash on hand sufficient for that purpose, since there were other withdrawal notices, prior to that of Mr. and Mrs. Meyers, which, under the charter and by-laws of the association and under the laws of the state, were entitled to prior consideration.

In paying to Mr. and Mrs. Meyers the sum of $12,900, the association issued two checks, one on the Hibernia Bank & Trust Company for $7,900, and one on the Poydras street branch of the Whitney Trust & Savings Bank for $5,000. That two checks were used instead of one has no bearing on the issues now involved, since that was done to avoid the depletion of one bank account at the expense of the other.

Between the day on which the withdrawal notice was given by Mr. and Mrs. Meyers (October 22, 1929) and the day on which the checks for $12,900 were given' to, and accepted by, them (December 2, 1930), certain dividends, were declared and paid by the association, but no part thereof was credited to the Meyers’ account; the association availing itself of the provisions of section 2 of article 4 of its by-laws to .the effect that “All written notices of withdrawal shall be recorded by the secretary in the order in which they are received and all dividends, not already credited, shall cease upon filing of notice of withdrawal, and withdrawing shareholders shall be paid in rotation as registered, out of the first unappropriated money in the treasury.”

Hereafter we shall refer only .to Mr. Meyers as the plaintiff because, as the result of preliminary exceptions, the necessary amendments, were filed to remove Mrs. Meyers as one of the plaintiffs, since it appears that the amount in question represents community property in connection with which the husband is the only necessary party.

When Meyers learned, on October 20, 1929, that no dividends would be paid on accounts for the withdrawal of which applications had been filed, he protested against what he considered the unfairness of being deprived of the right to obtain his money at once, and, at the same time, being refused the privilege of participating in earnings of the association; and it was not until two days later that he gave the notice of withdrawal, and even then, according to his testimony, he did so under protest.

According to the testimony of Mr. Ries, secretary-treasurer of defendant association, Meyers made no protest against being deprived of the right to share in the earnings, but was concerned only over the fact that he could not obtain his money at once.

It is not necessary to determine whether Meyers protested against not being permitted to participate in the dividends., because his rights are governed by the laws of .the state and the charter and by-laws of the association, and were fixed by his withdrawal notice, and not by anything he may have said in connection therewith.

Each of the two cheeks issued by the association bore on the reverse the following:

“Full settlement of account detailed below BK 3649.”

When these checks were indorsed by Mr. and Mrs. Meyers below the above-quoted stipulation, one of them, presumably Meyers, wrote in ink above their indorsement, “all rights reserved.”

In one of the checks the word “all,” apparently in the same handwriting as that in which is written the words “all rights reserved,” is also written higher up, but it is evident that the party who wrote the word “all” did so because he had first intended to write “all rights reserved” in that space and then decided to write the words lower down; so we find that no significance can be attached to the lone word “all” on one of the checks.

Thereafter this suit was filed. It has for its. object the recovery of a sum of money equivalent to the dividends which would have been earned by the “running shares,” or money on deposit between the date of the withdrawal notice and the date of the actual withdrawal, had the homestead association allowed to stock, for the withdrawal of which application had been made, dividends equivalent to those paid to other shareholders. The amount claimed is $1,059132. As an alternative claim, in the event it be held that the stock in question is not entitled to dividends, during that period, then it is averred .that the association violated the law of Louisiana (section 7 of Act 280 of 1916) in not setting aside for the payment of withdrawal applications the proportion of receipts required by law, and it is contended that, had the association set aside for such withdrawals one-half of its. receipts, then the withdrawal in question would have been consummated some nine months earlier, in which event the proceeds would have been invested and would have earned, at six per cent, $530.50, and this amount is claimed in the alternative as damages, which plaintiff alleges have been sustained as the result of the alleged violation by defendant of the pertinent section of the statute to which we have referred.

Defendant has not answered to the merits of the controversy, but has interposed a plea of estoppel, and on the trial, and in support thereof, has introduced evidence establishing the facts which we have recited.

Defendant, in the plea of estoppel, maintains, first, that as a member of the association plaintiff is bound by the charter and by-laws thereof, and is • estopped to claim more than is permitted by those documents; second, that by accepting from defendant checks for $12,900 bearing the indorsements showing that these checks constituted payment in full of the entire account, plaintiff is now estopped to claim that from the said account more is due him.

In answer to the first contention, plaintiff maintains .that he has alleged and should be permitted to prove that defendant itself has violated its own rules and regulations, as well as the state law, with reference to the payment of withdrawal applications, and thus cannot be permitted to shield itself behind those regulations.

In answer to the second contention, plaintiff counters with the charge that no estoppel to claim more can result from the acceptance of a sum admittedly due, and that he is not estopped to contest the finality of the settlement of the account by reason of the indorsement on the checks because he rendered that indorsement null and ineffective by writing thereafter the reservation “all rights reserved.”

We will consider, first, the counter charge of plaintiff to the effect that, by writing the words “all rights reserved,” he maintained in himself the right to contest the finality of the settlement.

We find it necessary to devote little time to this contention, because the law appears to be well settled that one, to whom a check is tendered containing such a stipulation, must either accept or reject the stipulation, as written, and may not obtain the benefit of the check and, at the same time, avoid the obligation resulting from the stipulation by adding other stipulations intended to nullify the first. In Beck Electric Construction Co. v. National Contracting Co. et al., 143 Minn. 190, 173 N. W. 413, the check tendered contained the stipulation that it was “in full for painting,” etc. The payee drew a pen line through the words “in full” and indorsed and cashed the check. The court held that the erasure of the words “in full” had no effect.

In Boosin v. Bird Dress Co., 119 Misc. Rep. 701, 197 N. Y. S. 254, the payee of a check marked “in full settlement” indorsed on the cheek “received this check on account.” The court held that the indorsement had no effect whatever.

The rule is stated in Corpus Juris, vol. 1, p. 564, as follows:

“The erasure or alteration of the condition expressed in a check by the creditor without notice to and assent by the debtor will not prevent its acceptance from constituting an accord and satisfaction, since, if the creditor were allowed to accept it for a different purpose than that allowed, it would be to allow him to make a contract with defendants without their knowledge and consent.”

Thus we find that the attempt by plaintiff to qualify his acceptance of the checks was ineffective, and that the respective rights of the parties remained just as they were, regardless of the insertion by Meyers of the words quoted.

What, then, were those rights? Meyers says that, since the homestead at all times admitted an indebtedness to him of $12,900, it was bound to pay him that amount at all events, and that it had no right to make payment of an admitted debt conditional upon the waiver by the payee of his right to claim an additional sum.

Whether, under such circumstances, there has been an accord and satisfaction, or, as it is known in our Code, a transaction and compromise, depends largely upon whether the claim which one of the parties maintains against the other is liquidated, or unliquidated, and upon whether there is a real dispute as to the amount due.

If a claim is not liquidated, even though it appears that something is admitted to be due, the payment of the amount admittedly due, coupled with a stipulation that the payment constitutes a full settlement, is. accepted in most jurisdictions as an accord and satisfaction, provided there was a bona fide dispute over the balance of the claim.

There are, it is true, some decisions to the effect that, if one party admits owing to the other a certain sum, he cannot refuse to pay that sum, except upon exacting from the other party a receipt in full for all differences between them. In these cases, no consideration for the accord and satisfaction is found. But, even in those cases, it seems that the transaction out of which the admitted indebtedness arose had no relationship whatever to that out of which arose the controversy over the other portion of the claim.

In Ruling Case Law, vol. 1, p. 198, we find that the majority rule seems, to be:

“A demand, however, is not liquidated, or undisputed, even if it appears that something is due, unless it appears how much is due; and when it is admitted that one of two different sums is due, but there is a genuine dispute as to which is. the proper amount, the demand is unliquidated within the meaning of that term as applied to accord and satisfaction.”

Similarly, in Corpus Juris, vol. 1, p. 555, is found, illustrative of the preferred rule, the following:

“* * * Where an aggregate amount is in dispute, the payment of a specified sum conceded to be due, that is, by including certain items but excluding disputed items, on condition that the sum so paid shall be received in full satisfaction, will be sustained as an extinguishment of the whole.”

To the same effect is the decision in Nassoiy v. Tomlinson, 148 N. Y. 326, 42 N. E. 715, 51 Am. St. Rep. 695, in which a defendant admitted owing a specific fixed amount. Plaintiff claimed another specific fixed larger amount. One of the two amounts was due; either the smaller or the larger. There was no middle ground. Defendant paid the smaller, which he admitted he owed. Plaintiff accepted the smaller, and then sued for the difference between that and the larger. The court held that there had been an accord and satisfaction. As stated in a note on page 556 of Corpus Juris, vol. 1, the facts and holding in that case were as follows:

“Plaintiff claimed a commission of five per cent for selling defendant’s farm. Defendant did not dispute the employment or the rendition of the services, but controverted the rate of commissions; he conceding his liability for one per cent. Defendant inclosed a check for three hundred dollars to plaintiff, that being the amount of the commissions figured at the rate of one per cent, with a blank receipt reciting that it was in full, which he requested plaintiff to sign and return. Plaintiff used the check and did not sign or return the receipt. The court held that this was an unliquidated demand within the rule, and that it did not become a liquidated demand, even as to the amount for which defendant conceded his liability; and, although defendant received no benefit, having paid only the amount which he did not dispute, yet it was held that constituted an accord and satisfaction.”

It is difficult to ascertain what is the consideration given in such case for the accord and satisfaction, and since in Louisiana a real consideration is required to form the basis of a contract, our ingenuity would have been taxed to discover the consideration for the accord and satisfaction, which defendant contends for here, were it not for the fact that the Supreme Court of our -state has followed the majority rule, as is evidenced by the decision of that court in Berger v. Quintero, 170 La. 38, 127 So. 356, 357. There the dispute was between attorney and client. It must be conceded that the duty owed by an attorney to his client is more sacred than that exacted by the courts from a homestead association to its members. Nevertheless, it was held that a full accord and satisfaction had resulted from the acceptance by the client of a check sent by the attorney for an amount admittedly due, and which check was sent in connection with an account showing that the check was intended to represent a full settlement between the parties. It was. contended that, since .the attorney admitted that he owed the amount represented by the check, it was his duty to pay that sum unconditionally, and that he had no right to make the payment of that admitted amount conditional upon the release of all other claims. The court said:

“The plea of estoppel, in our view, is well-founded. The claim was a disputed one. If plaintiff was not satisfied with the settlement tendered, he should not have retained the check, and caused it to be certified by the Bank upon which it was drawn, but should have returned it, in the absence of a waiver of the condition attached to the remittance.”

In Sentell v. Wilcox, 3 Orl. App. 507, this court followed the majority rule. We quote from Judge Dufour as follows:

“The principle is thus stated in 1 Cyc. of Law and Procedure, p. 333:
“ Where, however, a sum of money is tendered in satisfaction of the claim, and the tender is. accompanied with such acts and declarations as amount to a condition that if the money is accepted it is accepted in satisfaction, and such that the party to whom it is offered is bound to understand therefrom that if he takes it he takes it subject to such, condition, an acceptance of the money offered constitutes an accord and satisfaction. This is true, although the creditor protests at the time that the amount paid is not all that is due, or that he does not protest at the time that the amount paid is not all that is due, or that he does not accept it in full satisfaction of his claim. Where the tender or offer is thus made, the party to whom it is made has no alternative but to refuse it or accept it upon such condition. If he accepts it, he accepts the condition also, notwithstanding any protest he may make to the contrary.’
“And in Id. note 72, p. 333, it is said that ‘according to the weight of authority, where a claim is in dispute and the debtor sends or gives the creditor a check for a less sum, which he declares to be in full payment of all demands, the retention thereof by the creditor constitutes an accord and satisfaction.’
“In this case the giving of the checks was made on condition that they would be received in settlement and not in part payment of the disputed account; with full knowledge of that condition, Sentell kept the checks and practically converted them into money by having them certified and thus placing the amount exclusively within his control.
“It was his privilege either to return the checks and sue for the whole amount, or to keep them and accept the condition; he made his choice and must abide by it.”

It seems, then, that no matter how well established and no matter how irrevocably admitted the smaller sum may be, if, growing out of the same or a clearly related transaction, there is a real dispute as to whether a larger sum is due, the debtor may, in paying the admitted sum, demand a full release from any other claim growing out of the same or a clearly related transaction, and that, if such release is given, it constitutes accord and satisfaction. Here we find that there was 'only one account between the parties. This account had been running for a very long time, and the dispute was really one over the question of the correctness of the account.

Following the majority rule and the rule laid down by our Supreme Court, and also followed by this court, we find that there was a full accord and satisfaction, and that the consideration therefor was the satisfaction which came from the putting an end to litigation and from the termination of the dispute.

Much is made over the alleged want of equity in the situation which results from the enforcement by defendant of its bylaw provision, to the effect that stock subject to withdrawal shall not share in dividends; but it should be borne in mind "that homestead associations are co-operative and that stockholders therein are members thereof. For their own benefit they have sought outlets for investment, and they should remember that no returns can be made on their investments unless, the cash which they have invested in homestead stock be in turn invested by the homestead association in long-term loans to borrowers. Where those who have invested in homestead stock demand the return of their money, it is manifest that the homestead association must be accorded time to accumulate cash for that purpose. If the association retained the cash in its coffers, no earnings for stockholders could result: Likewise, when the stockholder demands the return of his investment and the homestead association commences to accumulate cash to comply with the demand, it can earn no return on the cash being accumulated and, necessarily, can pay no return to the stockholders for whose benefit and on whose request the cash is being accumulated.

Whether the homestead, in this particular case, can take advantage of the estoppel which results from the enforcement of its by-laws, we find it unnecessary to determine, and we need do no more than say that, as a general rule, there can be no doubt that one who joins such an association is bound by the laws with reference thereto and by the charter and by-laws thereof.

It is not necessary, however, to decide the case on that question, because here we find that a complete estoppel resulted from the acceptance of the checks bearing the indorsement to the effect that they were paid in full settlement of the account.

The judgment appealed from is affirmed, thé plea of estoppel is maintained, and plaintiff’s suit is dismissed at his cost.


source: Caselaw Access Project

author: HIGGINS, J.

license: Public Domain

text:
    No. 13929
    Orleans
    VINCENT v. NEW ORLEANS PUBLIC SERVICE, INC.
    (November 30, 1931. Opinion and Decree.)
    (January 11, 1932. Rehearing Refused.)
    (February 29, 1932. Writs of Certiorari and Review Refused by Supreme Court.)
    Dresner & Dresner, of New Orleans-, attorneys for plaintiff, appellant.
    Ivy G. Kittredge, of New Orleans, attorney for defendant, appellee.
   HIGGINS, J.

Plaintiff claims damages for personal injuries, etc., alleging that on October 14, 1929, at 2:30 o’clock p. m., she was a passenger on one of the defendant’s street cars, which was proceeding in the direction of the lake on Broadway street; that she safely alighted from the car at the intersection of Benjamin street, and, while walking across from the lower to the upper side of Broadway street, the neutral ground of which was paved with Belgian blocks, she caught her right foot in a hole six inches long, four inches wide, and two inches deep, the hole being adjacent to the uptown rail, causing her to fall forward into the upper roadway of Broadway street, and, as a result thereof, she sprained her right ankle, suffered contusions and bruises, and ruined her clothing; that said injuries and damage were caused by the negligence of the defendant in not properly maintaining its roadbed in accordance with its franchise obligations.

In its answer, -the defendant denies negligence, and avers that the Belgian blocks between the tracks were in good condition, and, in the alternative, charges the plaintiff with contributory negligence in failing to exercise ordinary care and caution.

The trial judge dismissed the plain-tiff’s suit, holding that the proof showed that at most one of the Belgian blocks had sunk not to exceed 1% inches, a condition common on all streets of the city similarly paved, and therefore not a situation of apparent danger and not a breach of duty on the part of defendant for failing to repair it, and that such conditions are of such a slight nature as to fall under the rule “de minimus non curat lex.” Plaintiff has appealed.

The plaintiff -testified that she was a passenger on the defendant’s, street ear, which was proceeding out Broadway street in the direction of the lake; that, upon reaching the intersection of Benjamin street, she got off the car, descending -to the street safely, glanced out Broadway street to see if any automobiles or vehicles were approaehing, and then proceeded from the lower side of Broadway street across the neutral ground and the double car tracks located therein; that, upon reaching the upper rail, her right heel was caught in a hole caused by the fact that one of the Belgian blocks adjacent to the rail had sunk; that she fell forward, spraining her right ankle and causing bruises and contusions to her knees and other parts of her body and ruining her clothing; that she was assisted to her feet by a Mr. Faulkenstein, who conveyed her to the home of one of her friends in the neighborhood, where first-aid treatment was administered.

Mr. Faulkenstein, as a witness for the plaintiff, testified that he was driving toward the river on Broadway street, and was about a half block from the plaintiff, when he noticed her fall from the upper side of the neutral ground into the gravel roadway adjacent to it; that there was a hole in the pavement such as plaintiff describes; that he picked her up and put her in his car and brought her to the home of one of her friends.

Mrs. Saxon and her daughter, to whose home plaintiff had been taken after her injury, corroborated her statement that she showed evidence of having received a very severe fall and that her clothing was damaged and soiled.

Plaintiff also offered two photographs of the locus in quo showing that one of the Belgian blocks adjacent to the upper rail had sunk, causing a depression there.

Plaintiff’s brother, a civil engineer, testified that he examined and measured the hole and found it to be four inches by six inches and two inches deep.

The medical testimony corroborates plaintiff as to her injuries.

To prove its defense, the defendant offered the testimony of five of its employees, three of them from the claim department, one, a commercial photographer, and, the fifth, maintenance superintendent of tracks. They testified, in substance, that about a week after the accident they received a notice from the plaintiff of the alleged injury; that on October 21, 24 and 29, 1929, they repaired to the scene of the accident, examined the pavement on the neutral ground, and found a depression estimated from an inch to an inch and a half in depth by three inches long, caused by one of the Belgian blocks next to the upper rail sinking; that one of them attempted to put the toe of his shoe under the edge of the rail, but was unable to do so because the opening was not large enough; that the depression was slight, and that they did not deem it dangerous, or that it was necessary to make any repairs; that their two photographs represented the scene of the accident as of October 21, 24 and 29; that the condition found is common to paving with Belgian blocks because rain causes the filling in between the blocks to wash away, causing negligible crevices and in some instances slight depressions.

The trial judge found for the defendant on the ground that it was free from fault, but, conceding the contention of plaintiff that she still enjoyed the status of a passenger at the time she fell because she was, on the company’s right of way and that the hole into which she stepped was four inches by six inches and two inches deep, and that the defendant was guilty of negligence in permitting this condition to remain at a point where passengers are received and discharged by it as a carrier, the most favorable view we could take of the case as far as. the plaintiff is concerned, but, without deciding thosf issues, concerning which we express no opinion, we pass to a consideration of the plea of contributory negligence.

The plaintiff’s evidence shows that it was a clear day and that the accident happened in broad daylight; that there was-nothing to intercept the plaintiff’s view of the hole; that it was obvious to one who would have looked in its direction; that there was no traffic in the vicinity at the time; that the plaintiff admits that she merely glanced towards the right to see if any automobiles were approaching on the uptown roadway of Broadway street; and that, while plaintiff testified that she was always careful to look where she was walking, on cross-examination finally admitted that she merely glanced at the path that she intended to travel, but did not notice the hole.

In the early case of Butterfield v. Forester (11 East. 60, Court of King’s Bench [Eng.] decided in 1809), as quoted by Beach on Contributory Negligence (3d Ed.) paragraph 9, page 9, Lord Ellenborough gives the general statement of the law as follows:

“A party is not to cast himself upon an obstruction which has been made by the fault of another and avail himself of it, if he do not himself use common and ordinary caution to be in the right. One person being in fault, will not dispense with another’s using ordinary care for himself. Two things must concur to support this action, an obstruction in the road, by the fault of the defendant, and no want of ordinary care to avoid it on the part of the plaintiff.”

In commenting on the Butterfield case, Beach, in the same work, paragraphs 8, 9, and 246, uses this language:

“The doctrine of this case, then, plainly is, that although defendant may have been guilty of a want of ordinary care, tending to produce the injury complained of, still the plaintiff will not be entitled to recover damages if he could, by the exercise of ordinary care, have avoided the consequences of defendant’s negligence, or, what is the same thing, that he cannot recover when his own negligence proximately contributed to produce the injury of which he complained. This rule not only commends itself to our instinctive sense of justice * * * that a man must take ordinary care of himself or suffer the consequences, but it is also in harmony with the spirit of the law in other respects. * * * It is a principle of law so consonant with justice and right reason, that it can never be overthrown.”

In the Commentaries on the Law of Negligence by Thompson, volume 5, paragraphs 6241 and 6242, we find the following language :

“Generally speaking, unless the attention of the traveler is abstracted by some sufficient cause, his failure to look ahead of him and discover obvious dangers and defects will be imputed to him as negligence.
“The law will not excuse a traveler in failing to make such use of his faculties as will enable him to discover plain and obvious dangers in the highway or sidewalk in front of him.”

In McQuillan on Municipal Corporations (2d Ed.) vol. 7, pp. 268 and 269, the law is stated as follows:

“One traveling along a street may presume it is safe. He need not keep his eyes fastened on the ground nor make an active search for defects. At the same time defects may be so obvious that a traveler must see them if he is paying attention to where he is going, and in such a case, the failure to observe the defect is generally held to be contributory negligence on the theory that it is not the act of an ordinarily prudent person.”

See, also, Abbott on Municipal Corporations, volume 3, paragraph 1048; White on Negligence of Municipal Corporations, paragraph 576; Corpus Juris, volume 43, page 1014.

In the case of Antoine v. Saxton Hardware Company, 10 La. App. 427, 121 So. 371, this court held (syllabus):

“In action to recover for injuries sustained in stumbling over weighing machine placed on sidewalk, walking over machine in broad daylight would constitute contributory negligence and bar recovery, even if placing of machine on sidewalk was. negligence.”

See, also, Burke v. Tricalli, 124 La. 774, 50 So. 710.

In Peetz v. St. Charles Street Ry. Co., 42 La. Ann. 541, 7 So. 688, 689, a lady at night tripped on a plank two inches above the level of a bridge. The court said:

“It is not possible justly to charge to the defendant that to which plaintiff’s own sad fate contributed, at least in part.
“To hold for plaintiff would be, in effect, to decide that whenever an accident occurs on uneven sidewalks, or in crossing bridges not level, without regard to the lack of care, damages can be recovered. * * *
“However desirable it may be that all the streets he level, it is not a possibility.
“The regrettable accident is not one for which the defendant can be held in damages.”

In the case of Carroll v. New Orleans Railway & Light Company et al., 132 La. 683, 61 So. 752, 753, where a passenger was discharged from a street car at night, six or eight feet from a hole six feet by two feet and four or five inches in depth in the street adjacent to its tracks, the court, in denying recovery, said:

“Plaintiff, we think, did not exercise ordinary care and prudence on the occasion in question. She was in a hurry to catch, the next car on the Napoleon avenue line, and took the lead of her husband, and sister, and other passengers, and walked rapidly in the dark over an unpaved street, in which ruts, holes, and depressions might he expected in the winter season.
“The depression in question, seems to have been noticed only by a few persons prior to the accident, and its dimensions were not of a nature to attract public attention. It does not appear that any complaint of the existence of this hole was ever made to the City authorities, or that any officer of the City had any notice of its existence. It is a matter of common knowledge that similar holes exist in all the dirt streets of the City of New Orleans.
“On the facts of the case as disclosed by the record, the plaintiff was more to blame than the Railway Company, and the City had no notice, actual or constructive, of the alleged dangerous defect in Prytania street.”

In the light of the foregoing authorities, and in view of the plaintiff’s testimony that she only glanced at the portion of the neutral ground over which she was walking, but that, if she had looked, she could have easily seen .the hole into which she stepped, we conclude that she was guilty of contributory negligence, particularly since there was nothing to obstruct her view and since, if she had been exercising ordinary care and caution, she would have seen the hole and have avoided it and thereby prevented the unfortunate accident.

Counsel for plaintiff mainly rely upon the case of Mahnke v. N. O. City & Lake R. Co., 104 La. 411, 29 So. 52, where a lady passenger, after being discharged from the street car, stepped into a hole between the tracks and broke her ankle. In that case the court allowed recovery because the accident happened at night, finding that the street lamps were dimly lighted and that the hole in the track was obscured by a shadow from a post, and hence that the plaintiff was not guilty of contributory negligence. Obviously that case is not applicable.

For the reasons assigned, the judgment is affirmed.


author: JANVIER, J.

text:
    No. 13,919
    Orleans
    MILLANNOS ET AL. v. FATTER
    (January 11, 1932. Opinion and Decree.)
    (January 25, 1932. Rehearing Refused.)
    (February 29, 1932. Writs of Certiorari and Review Refused by Supreme Court.)
    Jas. G. Schillin, of New Orleans, attorney for plaintiffs, appellants.
    Daly & Hamlin and Edward Rightor, of New Orleans, attorneys for defendant, appellee.
   JANVIER, J.

Mr. and Mrs. Michael Millannos appeal from a judgment rejecting their demand for reimbursement for damages sustained by them in the loss of their six year old daughter, Hazel, whose death, which they allege was the result of the accident, occurred about one month after she was struck and knocked down by an automobile owned by Mervin Fatter and operated by his son, who, though in possession of an automobile driver’s license issued to him by the city authorities, was below the minimum age at which drivers are, by -the traffic ordinances of tbe city of New Orleans, permitted to lawfully obtain licenses.

Defendant denies that his son was negligent, and contends that the violation by his son of the ordinance prohibiting driving of automobiles by persons under sixteen years of age was not the proximate cause of the accident and, in fact, had no causal connection therewith.

The automobile operated by young Patter was proceeding down Bourbon street. The child was struck at a point slightly to the right, or river side, of the middle of Bourbon street, and at from fifteen to twenty feet on the downtown, or lower side, of the intersection of that street with St. Philip street.

The speed of the car was about ten or twelve miles an hour. The accident occurred at about four o’clock in the afternoon.

The mother of .the child, one of the appellants, had, just prior to the accident, walked on the lake side of Bourbon street, from the upper to the lower side of St. Philip street, and had then turned to her right and crossed Bourbon street. She then turned left, and proceeded about one-quarter or one-half a block down the river side of Bourbon street and was approaching the residence of her sister, when the accident occurred behind her, at the intersection she had shortly before negotiated.

She was not aware of the fact that she was being followed, at a distance of approximately one hundred feet or so, by her young daughter, who, having taken the route set by her mother, was struck while crossing Bourbon street.

The age of the child and its mental condition rendered her incapable, in legal contemplation, of being guilty of contributory negligence, and therefore the sole defense available to defendant is absence of negligence on the part of his son.

That there was negligence in several particulars is asserted by plaintiffs, who charge that the driver of the car was under the age permitted by the ordinances of the city and that this constituted negligence per se, and who further contend that the driver was guilty of actual negligence, in that he did not maintain a proper lookout and in that, after the unfortunate child had entered the street and was manifestly in imminent danger, the driver could still have stopped the car and avoided the accident, had he been competent and experienced.

The ordinance prohibiting persons under sixteen years of age from operating automobiles is founded on the knowledge that caution and regard for the rights of others, if they, in this modern age, exist at all, are so seldom found in very young persons as to render it advisable that instrumentalities potentially so dangerous be not permitted to be placed in their care, and it follows that, to violate such a law, is, in itself, negligence. ' However, as our Supreme Court said in a case, the legal principles of which are identical with those now under discussion:

“* * * The mere violation of á citordinance by one citizen does not afford another a ground of action in damages, unless some direct relation of cause and effect between the violation and the damages can be traced with reasonable certainty.” — Elmendorf v. Clark, 143 La. 971, 976, 79 So. 557, 558, L. R. A. 1918F, 802.

It is, then, not sufficient for recovery to show that there has been a technical violation of law, but it must also appear that, as a natural result of the violation, the accident occurred; that there was causal connection between the two. In Elmendorf v. Clark, supra, is found a case in which recovery was sought for the death of a young boy, who was killed when struck by an automobile truck driven by a minor under the age limit permitted by the city, ordinance of Monroe, La.

On first hearing the Supreme Court, in discussing the legal effect of the violation of the ordinance, said that the violation alone would not have rendered defendant liable, but that there was actual negligence on the part of the driver. On rehearing the court reconsidered the evidence in regard to the facts of the accident, and, having reached the conclusion that there was no fault in the actual operation of the truck, said that the mere violation of the ordinance did not create liability, and added:

«* * * If it were shown that the injury here complained of would have been sustained, even though defendant’s car had been operated by a lawful chauffeur, at a lawful rate of speed, and that the chauffeur had been guilty of no negligence, defendant would be entitled to judgment in his favor, notwithstanding that, in fact, the car was. operated by an unlawful chauffeur, at an unlawful rate of speed.”

In other words, that the violation of the ordinance does not render liability absolute. No matter how young the driver may be, if the facts show that he operated the automobile carefully and with all due regard to the rights of others, there is no liability. On the other hand, no matter what the age of the driver, no matter how much experience he may have had, if the facts show that he operated the automobile carelessly and that accident resulted, there is liability, no matter how many licenses or certificates, of efficiency he may have.

Such is the rule followed, almost without exception, elsewhere, and, as typical examples of pertinent pronouncements by courts of other states, we quote the following:

“* * * Tjjg question of proximate cause must be submitted to the jury. If they should find that death of the plaintiff’s intestate was an unavoidable accident, which a prudent chauffeur, authorized by law to run a machine, could not by the exercise of reasonable care have avoided, then the defendants were not liable; but if they should find from all the evidence that the proximate cause of the intestate’s death was the fast driving and lack of attention and due care upon the part of the 13 year old boy, driving the machine in violation of law, then he would be liable.” Taylor v. Stewart et al., 175 N. C. 199, 95 S. E. 167, 168.
“In an action for damages, where it is alleged by the plaintiff that he has been damaged by collision with an automobile, driven by the minor son of the defendant, under the age limit required by a city ordinance for drivers of automobiles, and an instruction is given by the court to the jury that such violation of the city ordinance was negligence per se, and at the request of the defendant the court refused to give the further charge to the jury that such violation of the ordinance alone would not authorize a verdict against the defendant, unless the jury further found that the violation of the municipal ordinance was the proximate cause of the injury and was not directly contributed to by want of due care on part of the plaintiff, was error and the court should have further charged the jury that the violation of said ordinance must be the proximate cause of the injury and that they must find that said violation had some causal connection with said injury.” Freeborn v. Holt, 100 Okl. 109, 227 P. 136 (syllabus).

See, also, Daily v. Maxwell, 152 Mo. App. 415, 133 S. W. 351; Taylor v. Stewart, 172 N. C. 203, 90 S. E. 134; Laubach v. Colley, 283 Pa. 366, 129 A. 88; Elliott v. Harding, 107 Ohio St. 501, 140 N. E. 338, 36 A. L. R. 1128; Buckingham v. Gilbert, 29 Ohio App. 216, 163 N. E. 306.

Our conclusion being that, by the mere violation of the ordinance, defendant is not rendered liable, we must investigate the facts, as disclosed by the evidence, to ascertain whether the young son of defendant was guilty of actual carelessness in the operation of the car.

As to whether the daughter of plaintiffs was crossing Bourbon street at the place customarily used by pedestrians, or, as charged by defendant, some fifteen or eighteen feet below the line of the sidewalks of St. Philip street, we find the evidence to be as follows:

McVille, a witness placed on the stand by plaintiffs, says that, after the accident, the little girl was picked up between fifteen and twenty feet below the property line of the lower side of St. Philip street. She could not have been knocked to that spot, because the automobile stopped practically where it struck her.

Gary, another witness produced by plaintiffs, when asked: “How many feet down Bourbon Street was this child when you first ran out and saw it?” answered: “She was fully an average of eighteen to twenty feet.”

Breaux, a witness for defendant, was sitting on the gallery over the spot at which the child left the Bourbon street sidewalk. Looking down, he saw her just before she was struck. When asked: “How far down Bourbon Street from the corner of St. Philip Street the child had been struck?” he said: “Well, about twelve to fifteen feet.”

Young Fatter states that, as his car reached about the continuation of the property line of the lower side of St. Philip street, the child darted out from behind a gallery post about ten feet down Bourbon street from the property line.

We conclude that the child was not crossing at the usual place provided for pedestrians, but ten to twenty feet nearer the center of the block.

Plaintiffs charge that the child entered the street sufficiently far ahead of the automobile to have given an opportunity to Fatter to stop his car. Defendant counters with the assertion that the child ran suddenly from the sidewalk, and that there was. no time to stop.

The evidence leaves no room to doubt that the child did not walk, as she left the sidewalk, but ran into the street.

McVille says that she was “just running along, as a child would. She was not running fast, because she was not a very large child.”

Breaux states, that when he first saw the little girl “she was running across the street.”

Defendant’s son, the driver of the car, says: “This little child darted out and ran in front of the car.”

The fact that the mother was on the other side of the street, some half square away, and that the child was following her and was crying and was, * apparently, attempting to overtake her, leads us to the belief that the child was hurrying and was following the most direct route.

Bourbon street is quite narrow. The point of contact was just beyond' the center. Testimony of witnesses and the width of the street show that, when she was struck, the little girl had run not more than ten or twelve feet after leaving the sidewalk. We find in the record no denial of young Fatter’s statement that she emerged from behind a gallery post. As young Fatter approached St. Philip street, he was operating his car at a speed of ten or twelve miles per hour. ' He states that he looked both ways for vehicles or persons on the intersecting street. Having seen none, he was justified in assuming that he might proceed. Suddenly the little girl ran from behind the post and entered the street at an unexpected and unusual point. Patter stopped his car so quickly that it went only two or three feet after striking her. We do not believe that, under these circumstances, it can be said that he was negligent. It is true that modern automobiles, operated at’ moderate speeds, may be stopped within incredibly short distances, but what is possible when a test is being made cannot always be accomplished when attempted in an emergency. This was recognized by our Supreme Court in Elmendorf v. Clark, supra, in which that court said:

“The experts, admit that, when it comes to stopping an automobile within a given number of feet, it makes quite a difference whether the stop is being made by way of testing the possibilities in that regard, or is being made in an unexpected emergency.” Page 981 of 143 La., 79 So. 557, 560.

Plaintiffs rely largely on the doctrine announced in Fontaine v. Dorsey, 15 La. App. 282, 131 So. 506, the facts of which in certain particulars, resemble those disclosed by the record here, in which we said :

“When children are seen in pathway of motorist, extraordinary precaution should be observed to avoid injuring them.’'

But there the little boy who was struck had been walking, not running, across the street, and the court found that, after the danger became apparent to the driver of the automobile, there was time to stop and avert an accident. Here we feel that the contrary was true, and that the facts are more clearly analogous to those found in Fernandez v. Montz, 151 La. 299, 91 So. 742, 743, in which the accident occurred in the following way:

“The little girl ran from the sidewalk to the side of the street car, hesitated, then attempted to pass behind the street car, ahead of the automobile, and when defendant first saw her it was too late to avoid the accident.”

That the accident did not occur at a street corner is to be taken into consideration, for, while at all times automobile drivers must exercise caution commensurate with the surrounding conditions, it is very apparent that there is. and should be less danger between intersections than at them. As the Supreme Court said in Fernandez v. Montz, supra:

“Ordinary care and prudence require that a person driving an automobile should exercise the greatest caution when passing street crossings used by pedestrians at street intersections. Pedestrians are bound to use these crossings, and they are of right as much entitled to the use of the street at such crossings as those who drive vehicles. But after the driver of a vehicle has passed the crossings, he is not called upon to exercise the same degree of caution, because, sidewalks being reserved exclusively for the use of pedestrians, he has no reason to expect pedestrians to use the street as a sidewalk. Of course if defendant had seen plaintiffs’ little girl in time to avoid the accident, even though she was in a portion of the street not intended for pedestrians, he would be liable under the doctrine of the last clear chance, but the facts appearing in this record do not justify the application of that doctrine.”

That children may be expected to do the unexpected, and that therefore persons operating automobiles in close proximity to points at which children walk or congregate or play must exercise more care than would be necessary where only adults are found, is true; and in Burvant et ux. v. Wolfe, 126 La. 787, 52 So. 1025, 29 L. R. A. (N. S.) 677, an automobile driver was. held liable because he did not anticipate that a boy, whom he should have seen on the sidewalk, might run into the path of his car; and, in Jacoby v. Gallaher, 12 La. App. 477, 126 So. 86, we held an automobile driver liable because he did not give to a young boy, walking alongside the road ahead of him, such warning as would have prevented the child from carelessly crossing the road in front of the approaching automobile. But in those and other similar cases, the children involved were, or should have been seen by the respective automobile drivers, whereas here, not only was the child not seen, but her presence was obscured by an obstruction. Therefore the rule applicable here is that there is no liability for injury, even to an immature child, where the child, at an unusual or unexpected place, suddenly runs into danger, when the automobile driver no longer has an opportunity to stop or to avert an accident.

In Miller v. St. Charles St. R. Co., 114 La. 409, 38 So. 401, the Supreme Court said:

“We do not think a motorman is. obliged to check the speed of his car whenever there are persons on the sidewalk or at the corner, and if a child comes suddenly and unexpectedly from behind, or from among, such persons, and runs upon the track right in front of the car, so that it is impossible to stop the car in time to save it, we do not think the railway company is responsible.”

The syllabus written by the court in Valcour v. Simon Hubig Co., Inc., 4 La. App. 521, reads as follows:

“Where the evidence shows that an eight-year-old boy, in charge of his eleven-year-old sister, suddenly left his sister and darted across the roadway and in front of a motor truck, which ran over and injured him, the accident will be attributed to the reckless conduct of the hoy and there can be no recovery of damages against the owner of the motor truck.”

In the syllabus of Powers v. Simmons, 7 La. App. 523, we find:

“Where a child' walking on the right hand side of the road suddenly turns and runs in front of an automobile, making an accident unavoidable, although, the auto was being driven at a moderate rate of speed, the driver not being negligent, there can be no recovery of damages for the death of the child.”

In a case rather similar to this, in which a very young boy was killed by a street car, we held that, since the boy had run from the sidewalk, it required only a very short time to cross the intervening space between the sidewalk and the street car. That case was Pyaette v. N. O. Public Service, Inc., 10 La. App. 300, 120 So. 483, 484. We said:

“We believe that plaintiff’s case on this, theory hangs on too fine a thread. If the boy was running, as we feel sure he was, his speed must have been seven or eight miles an hour. Assuming that it was only seven miles an hour, he was. moving a little more than ten feet a second. Plaintiff’s argument, then, requires us to hold that the motorman, in being about seven-eighths of a second too slow in seeing the boy, was negligent. To so hold would be to require a. motorman to act with the mechanical precision and with the instantaneous reaction which is not possible of attainment by human beings.”

And, in discussing a similar situation, the Supreme Court, in Litolff v. N. O. Ry. & Light Co., 124 La. 278, 50 So. 105, 107, used this language:

“If he traversed the narrow space between the sidewalk and the track at a run, the time it took him to do it must have been so very brief as to have been approximately instantaneous, and certainly not sufficient to allow of the stopping of the car.”

We feel that young Fatter did everything that was humanly possible to avoid the accident, and was not at fault in any particular.

The judgment appealed from is affirmed.


text:
    No. 13,925
    Orleans
    WHITE v. EQUITABLE REAL ESTATE CO., LTD.
    (January 11, 1932. Opinion and Decree.)
    (January 25, 1932. Rehearing Refused.)
    (February 29, 1932. Writs of Certiorari and Review Refused by Supreme Court.)
    Normann, McMahon & Breckwoldt, of New Orleans, attorneys for plaintiff, appellant.
    Milner & Porteous and P. M. Milner, of New Orleans, attorneys for defendant, appellee.
   JANVIER, J.

This is a suit for compensation brought under the Workmen’s Compensation Law of Louisiana (Act No. 20 of 1914, as amended by Act No. 38 of 1918 and by Act No. 85 of 1926).

Plaintiff is the mother.of a young man who was killed while making repairs to the roof of a structure owned by defendant.

Defendant is a corporation which owns certain improved real estate in New Orleans. Defendant resists payment on several grounds, only one of which need be considered. That defense is that a real estate owning company is not engaged in a trade, business, or occupation hazardous in itself, and that such business is not contemplated under the provisions of the, statute referred to. Prom a judgment dismissing her suit, plaintiff has appealed.

The evidence shows that defendant owns one or more buildings or structures in New Orleans; that it leases these buildings to others for profit; that, in the course of maintaining one of the structures, it became necessary to have repairs made to the roof thereof; that it employed Melvin Bing, brother of the decedent, who agreed to make or to have the repairs made, for the sum of $40.50; that in making the said repairs the said Melvin Bing made an agreement with his brother, George Bing, decedent, under -which George Bing was to perform the actual labor — whether on a wage basis or on a division of profit basis we find it unnecessary to determine. While making the said repairs, the said George Bing received injuries, from which he died.

Plaintiff contends that defendant is engaged in an occupation within the contemplation of the Employers’ Liability Act, and that, thus, under section 6 thereof, defendant is liable in compensation for the death of George Bing, because in that section it is provided that:

“Where any person * * * undertakes to execute any work, which is a part of his trade, business or occupation or which he has contracted to perform, and contracts with any other person * * * for the execution by or under the contractor of the whole or any part of the_ work undertaken by the principal, the principal shall be liable to pay to any workman employed in the execution of the work any compensation under this act which he would have been liable to pay if that workman had been immediately employed by him.”

It is thus argued that, though the said George Bing was an employee of the independent contractor, nevertheless defendant, in contracting with Melvin Bing for the making of the repairs, could not divest itself of its responsibility for any injuries which might be sustained by the said George Bing. It is quite true that one who is engaged in one of the occupations contemplated by the Employers’ Liability Act of this state may not contract with another to perform any part of the work contemplated by that trade, business, or occupation, and thereby relieve himself of responsibility tq employees of the contractor. In Clementine v. Ritchie, 1 La. App. 296, we said:

“One whose business, trade or occupation consists of the building and selling of houses is a principal within the meaning of Section 6 of the Compensation Law and is liable' for compensation due any employee engaged in the construction of the houses whether such employee be directly engaged by him or not,” and it is argued here that one who owns and rents to another improved real estate is under the legal obligation of maintaining that property in usable, proper condition, and since, under the statute, the making of repairs to real estate is a hazardous trade, business or occupation, a real estate owner is necessarily engaged in such hazardous business.

The argument is interesting and ingenious, and would have been quite convincing but for our realization of the fact that it could not have been within the contemplation of the framers of the compensation laws that a real estate owner, who leases out his property, cannot employ independent contractors to make repairs to his buildings without rendering himself liable in compensation to all employees of such independent contractors.

A conviction that the lawmakers did not so intend and a belief that to so hold; would be unreasonable led us to give deep consideration to the case of Clementine v. Ritchie, supra, in an effort to distinguish between that case and this.

We feel that the distinction lies in the fact that in that case the trade, business or occupation of defendant — building houses —is hazardous, and is specifically referred to in the compensation laws, whereas here the business of defendant was owning and renting of improved realty, which is neither hazardous, nor within the contemplation of the statutes. True enough, incidental to the owning and renting of improved realty is the making of repairs, and true it is, also, that one who makes those repairs is engaged in a hazardous occupation, but it is not enough that the employee be engaged in such employment. It is also necessary that the trade, business or occupation of the employer himself be hazardous. In a case the facts of which, in legal principle involved, much resemble those which now confront us, our Supreme Court said:

“* * * It is not enough that the work done should be hazardous if it-be not also incident to or in the course of the trade, business or occupation of the employer which is within itself hazardous under the statute.” Shipp v. Bordelon, 152 La. 796, 800, 94 So. 399, 400.

The decisions of this court in Labostrie v. Weber, 15 La. App. 241, 130 So. 885, and of the Supreme Court in Byas v. Hotel Bentley, 157 La. 1030, 103 So. 303, are not antagonistic to this view, since, in each of those cases, the defendant was engaged in a business hazardous and within the coverage of the compensation law's.

In Labostrie v. Weber the business of defendant was hauling by motortruck, and it had been previously held that employment to operate or work on a motor-driven vehicle is protected by the compensation laws. Beebe v. McKeithen Construction Co., 5 La. App. 179; Plick et al. v. Toye Bros. Auto & Taxicab Co., 13 La. App. 525, 127 So. 59.

In Byas v. Hotel Bentley, defendant was engaged in a hazardous business, since it operated and maintained, “in connection with its hotel business, and under the same roof, a power plant, waterworks, lighting system, and power-driven freight and passenger elevators.”

We are therefore of the opinion that the business of defendant was not hazardous, and that section 6 of the Workmen’s Compensation Law of Louisiana has no application to one who, engaged in a non-hazardous occupation, employs an independent contractor, even though the employees of the independent contractor may, in performing their duties, undertake work which is within the coverage of the compensation laws of the state.

The judgment appealed from is affirmed, at the cost of appellant.


author: WESTERFIELD, J.

text:
    No. 13,908
    Orleans
    McCALL v. BLOUIN ET AL.
    (December 14, 1931. Opinion and Decree.)
    (January 11, 1932. Rehearing Refused.)
    (February 29, 1932. Writs of Certiorari and Review Refused by Supreme Court.)
    Fred G. Yeith, of New Orleans, attorney for plaintiff, appellant.
    Michel Provosty, Francis P. Burns and George D. Lehy, qf New Orleans, attorneys for City of New Orleans, defendant, appellee.
    Ben Washastrom, of New Orleans, curator ad hoc, for other defendants, appellees.
   WESTERFIELD, J.

This is a suit to confirm a tax title to three pieces of property of which the plaintiff, Wm. J. McCall, claims to be the owner. The several items are described in article 1 of plaintiff’s petition. Subsequent to the institution of the suit, by agreements embodied in judgments, two of the three items were removed from this controversy, leaving only the property described in subparagraph (a) of the petition, consisting of two lots of ground in the Third district, numbered 12 and 24 in square 34, bounded by Prosper, Louisa, Solidelle and Piety streets.

Plaintiff claims to be the owner of these two lots by virtue of an act, under private signature, dated December 9, 1929, whereby the property was conveyed to him by the Third District Land Company. The Third District Land Company acquired the property by purchase, at a tax sale, by the city of New Orleans for taxes for the year 1924, the property being assessed in the name of F. J. Kiermey, and the notarial act evidencing said sale dated April 5, 1926, and registered in C. O. B. Book No. 412, folio 188.

The suit was originally brought against a number of former owners, including some unknown, represented in this proceeding by a curator ad hoc, and subsequently, by supplemental petition, the city of New Orleans was joined as party defendant, plaintiff alleging that the ¡property had been adjudicated to the city on April 15, 1915, for delinquent taxes for the year 1912, and assessed in the name of F. J. Kiermey, and registered in C. O. B. Book No. 271, folio 450. The city answered claiming title to the property under the adjudication of April 15, 1915.

There was judgment below in favor of each defendant rejecting plaintiff’s demand. Plaintiff has appealed.

The first point to be considered is the effect of the tax sale of April 5, 1926, under which plaintiff claims title in view of the adjudication to the city of New Orleans of April 15, 1915. In other words, did the action of the city of New Orleans in assessing and selling the property for the taxes of 1924 operate as an estoppel against it and preclude it from claiming under the adjudication to it in 1915?

The provisions- of the Constitution, with reference to the collection of state taxes and tax sales, apply to municipal taxes. Article 243 of the Constitution of 1898 and section 14 of article 10 of the Constitution of 1921.

Section 53 of Act No. 170 of 1898, as amended by Act No.. 235 of 1928, among other things, provides:

“The tax collector is hereby authorized to bid in said property for the State and shall not readvertise for sale said property or properties so adjudicated to the State, unless the same has been redeemed.”

Section 61 of Act No. 170 of 1898, as amended by Act No. 315 of 1910 provides:

“That after property has been adjudicated to the State in default of a bidder, as provided in section 53, the same shall be continued to be assessed in the name of the person to whom it belonged at the date of the sale until the lapse of one year from date of recording the Act of Sale to the State, but the Tax Collector shall not sell the same under the assessment and no tax shall be collected or received thereon by the Tax Collector of or from the former owner while said property remains in a condition of forfeiture to the State and said continued assessment or any erroneous assessment to the former owner thereafter made and no error of the - tax collector in receiving taxes under said continuous assessment or other erroneous assessment and non-continued possession of said property by said former owner shall ever be considered or construed by any court of this State as an estoppel of the State from claiming said property or as affecting in any way the title of the State to said property or its rights to possession thereof.”

Section 62- of Act No. 170 of 1898, as amended by Act No. 315 of 1910, sec. 6, and Act No. 41 of 1912 and Act No. 72 of 1928, provides:

“That if the owner or any person interested personally or as heir, legatee, creditor or otherwise, in any lots or lands bid in for and adjudicated to the State, as long as the title thereto is in the State or in any of its political subdivisions, or if not heretofore contracted to be sold by such subdivisions, shall pay to the Treasurer of the State, the taxes, interests and costs and twenty (20) per cent, thereon, the Register of the State Land Office, upon production of the Treasurer’s receipt, shall execute and deliver to such persons a certificate of the same under the seal of his office, which, when duly' recorded in the Conveyance Office of the Parish wherein said property is situated, shall he held and taken as evidence of the redemption of such land or lands with the name of the ¡person redeeming the same. The amount paid shall be entered upon the records of lands by said Register and he shall immediately and in writing notify the assessor of the Parish wherein said redeemed lot or lands are situated of said redemption, provided, no certificate of redemption shall he issued until all taxes, State, Parochial, district and municipal, due up to the day of redemption; have been paid on said property. But all certificates issued under this section shall be in the name of the original owner to enure to the benefit of all persons holding rights under said owner.”

It thus appears that following the adjudication of property to the city the law requires it to be assessed in the name of the person to whom it belonged at the date of adjudication for a period of one year, following which the property is to remain in the possession’ of the city until it shall have been redeemed in the manner pointed out. The fact that the property is continued upon the rolls in the name of the former owner, and taxes under the continued assessment collected, cannot operate as an estoppel against the city in claiming title to property which has not been redeemed, and a sale made under such erroneous assessment is null. See Neal et al. v. Pitre et al., 142 La. 737, 77 So. 582, 584, where it was said:

“The sale of April 28, 1908, was based upon an assessment made in the name of ‘unknown owners,’ although at that time the title to the property was in the state. The state’s property could not be sold in any such manner. * * *
“Being of the opinion then that the tax sale of April 28, 1908, was a nullity, it could vest no title or interest in the property in Lyons or Pitre.”

See, also, Ebert v. Woodville, 143 La. 874, 79 So. 521.

In Winn Parish Bank v. White Sulphur Lumber Company, 133 La. 282, 62 So. 907, 909, where the validity of tax titles, under similar circumstances, was considered, the court held:

“The tax sale of 1886 to the state precluded the assessment of the property for taxes for the year 1898.”

In Bradley v. City of New Orleans, 153 La. 281, 95 So. 718, a case in which a plaintiff sought to annul a tax adjudication to the city of New Orleans upon the ground that the property was sold to the city in the name of one not the owner, and without notice, the court held that the facts relied upon had been established, but the city interposed a plea of prescription of three years. In discussing the question of prescription, the court said that though in Crillen v. N. O. Terminal Co., 117 La. 349, 41 So. 645, decided in 1906, it had been held that the constitutional prescription of three years for the curing of tax titles did not apply where the state had continued to assess the property to the former owner and received from him the taxes so assessed, that in view of Act No. 315 of 1910 forbidding tax assessors and tax collectors, after one year from a sale to the state, to assess the former owner or collect taxes from him, and decreeing that the failure of said officers to obey the law in this respect did not estop the state from claiming said property, that the holding in Crillen v. N. O. Terminal Co., supra, was obsolete, citing a number of authorities.

The fee of Ben Washastrom, curator ad hoc, fixed by the judge a quo at $40, it is said, should be reduced to $10, in accordance with the provisions of Act No. 101 of 1898, as interpreted in Re Quaker Realty Co., 122 La. 43, 47 So. 369. It appears that Washastrom represented four defendants, Frederick Jaufroid, Theodore Jaufroid, James F. Kierney, and James F. Keeney, and, as we understand it, under the decision relied on, he is entitled to $10 for each defendant that he represents.

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


text:
    No. 13,904
    Orleans
    DREYER v. MARTIN
    (November 30, 1931. Opinion and Decree.)
    (January 11, 1932. Rehearing Refused.)
    (February 29, 1932. Writs of Certiorari and Review Refused by Supreme Court.)
    Claude J. de Baroncelli and E. J. McShane, of New Orleans, attorneys for plaintiff, appellant.
    John May, of New Orleans, attorney for defendant, appellee.
   HIGGINS, J.

This is a suit to recover damages fcr personal injuries and loss of earnings alleged to have resulted from an intersectional automobile collision at the corner of South Carrollton avenue and Willow street, this city, at about 1:30 p. m. on May 1, 1930.

There was judgment in favor of defendant dismissing plaintiff’s suit, and he has appealed.

Plaintiff was a passenger in a Ford coupe automobile which was being driven down Willow street, a paved thoroughfare running from uptown to downtown. Defendant was driving his Whippet coupe car from the river towards the lake on South Carrollton avenue, which is a boulevard with a neutral ground in the center upon which are located double street car tracks, and paved thoroughfares on each side. These streets intersect at right angles. The automobiles collided in the downtown lake side of the intersection; the Ford coupe being turned over on the neutral ground pinning plaintiff’s arm and fracturing it, and the other automobile coming to rest several feet past the intersection towards the lake. Both drivers were aware of the approach of each other’s car when about 75 feet away from the intersection, and each was of the opinion that he had the right of way. Both drivers realized that the other one was not coming to a stop when about twenty feet apart, and then it was too late for either driver to do anything which would have avoided the accident.

Plaintiff contends that defendant was operating his car at an excessive and unlawful rate of speed and failed to obey tbe provisions of the traffic ordinance in not according to tbe car, in wbicb plaintiff was riding as a guest tbe right of way, since it stopped on the neutral ground and blew its born.

Defendant contends that be was operating bis, car at a moderate rate of speed on a right of way street, Carrollton avenue, and that tbe driver of tbe car, in wbicb plaintiff was riding, neither stopped nor blew bis horn but continued on across the intersection directly into the path of his car.

Both plaintiff and tbe driver of tbe Ford ear, in which plaintiff was riding, testified that they crossed tbe intersection very slowly and almost came to a stop. Defendant states that tbe Ford car came directly across the intersection without stopping. Therefore the evidence is clear that tbe Ford car did not come to a full stop on tbe neutral ground in compliance with article 1, section 7, subsection d, Traffic Ordinance 7490, C. C. S., wbicb provides:

“On streets and avenues having neutral grounds and carrying, street car lines, vehicles crossing such neutral grounds shall have right of way to complete tbe crossing of tbe roadway of such street or avenue under tbe following conditions:
“Provided tbe vehicle shall come to a full stop when about to leave tbe neutral ground and enter tbe roadway, shall signal with born, and give opportunity for approaching vehicles in tbe roadway to come to a stop; it being tbe intention of this provision to require vehicles in said roadway to stop upon receiving reasonable warning in order that vehicles standing on tbe neutral ground shall be permitted to complete tbe crossing of or turning into tbe roadway.”

We believe that the case of Bannon v. Picou, 15 La. App. 511, 132 So. 390, is directly in point and decisive of tbe issue presented here. In that case there was a collision between a Ford car of plaintiff and tbe Buick car of defendant. Plaintiff was driving her car on Canal street towards tbe river, and defendant was proceeding in bis car uptown on Broad street. Tbe cars collided in the river side intersection of Canal street. We held:

“As we have so often said, a motorist who is crossing a street like Canal street should when he is on tbe neutral ground, bring bis car to a stop, sound bis born, and afford to vehicles approaching on the driveway he intends to enter an opportunity to stop. See Williams v. Lenfant [page 515, herein], 15 La. App. 515, 131 So. 857, decided January 19, 1931. See, also, Dunbar v. Kaul, 12 La. App. 605, 126 So. 705; Breaux v. Cangelosi, 10 La. App. 765, 123 So. 151.
“We are well convinced that the Buick did not stop before entering tbe upper roadway of Canal street, and there can be no doubt that tbe Buick crashed headlong into tbe Ford and not tbe Ford into tbe Buick. Tbe verbal testimony clearly preponderates toward this view, and tbe photographs make any other conclusion impossible.
“It is also very evident that, bad tbe Buick stopped even momentarily while it was on tbe Canal street neutral ground, the Ford would have passed safely ahead of it, and no accident would have resulted
“Since, under the ordinance referred to, it was tbe duty of Bannon to stop on tbe neutral ground, Miss Picou was Justified in assuming that be would do so, and she was, thus, not negligent in proceeding, since she realized that, if Bannon did stop, she could pass before be could again start bis car.”

See, also, Sontheimer v. Littlejohn, 137 So. 219, decided by this court October 19, 1931.

We are of the opinion that tbe sole and proximate cause of tbe accident was the failure of the driver of the Ford car, in which plaintiff was riding, to come to a full stop on tbe neutral ground in obedience to tbe traffic ordinance.

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


text:
    No. 13,850
    Orleans
    SCHMIDT & ZIEGLER, LTD., v. NEW ORLEANS PUBLIC SERVICE, INC.
    (November 30, 1931. Opinion and Decree.)
    (January 11, 1932. Rehearing Refused.)
    (February 29, 1932. Writs of Certiorari and Review Refused by Supreme Court.)
    Milner & Porteous and William A. Porteous, Jr., of New Orleans, attorneys for plaintiff, appellee.
    Ivy G. Kittredge, of New Orleans, attorney for defendant, appellant.
   HIGGINS, J.

Plaintiff seeks to be recompensed for damages to its truck alleged to have resulted from a collision with the defendant’s street car at the intersection of St. Claude avenue and Poland street, this city, on September 24, 1929, about 1 o’clock p. m. The petition alleges that the truck had stopped on the street car tracks in the intersection for about one minute in plain and full view of the motorman; that the car struck the truck on its left side, causing considerable damage due to the gross negligence of the motorman in not seeing the truck on the tracks and, in the alternative, that the motorman had the last clear chance of avoiding the accident.

Respondent denies that the motorman was guilty of any negligence and avers that the car was being operated carefully and at a moderate rate of speed and that the truck was driven suddenly, and without warning, across the tracks at a time when the street car was so near that it was impossible for the motorman to stop or avoid the collision, although he made every effort to do so.

There was judgment in favor of plaintiff for $515.50, disallowing its claim of $50 for loss of the use of its truck. Defendant has appealed and plaintiff has not answered the appeal.

The record shows that St. Claude avenue is a paved boulevard with a neutral ground in the center on which are located double street car tracks, with paved roadways on each side and runs from Esplanade avenue towards the Industrial Canal. Poland street also has a neutral ground in the center with paved thoroughfares on each side. These two streets intersect at approximately right angles.

The plaintiff’s chauffeur was driving its three-ton White truck on the lower roadway of Poland street in the direction of the lake. He was en route to deliver groceries to the New Orleans Public Service, Inc., at the Poland street barn, which is located on the upper side of Poland. street and on the river side of St. Claude avenue. Upon reaching St. Claude avenue he crossed the river side roadway, the neutral ground and street car tracks, turned to his left towards Canal street on St. Claude avenue for a distance of 44 feet, in order to come around the end of the neutral ground and then again turned to his left for the purpose of crossing the neutral ground and the river side roadway of St. Claude avenue so as to go in the direction of the river on the upper side of Poland street in qrder to reach his destination. The street car, which was of a late type, and in good mechanical order, was going towards Canal street on St. Claude avenue on the street car tracks located towards the lake side of the neutral ground. The Industrial canal, over which there is a bridge which is opened and closed to allow boats to pass, is about two and one-half blocks from Poland street and the approach to the bridge is on an incline that starts at the intersection of Poland street. The front of the street car struck the left side of the truck just back of the place where the driver’s seat is located, shoved it some distance and caused considerable damage to the truck and also to the front vestibule of the street car.

The sole issue in the case is one of fact, namely, was the truck on the street car tracks for a sufficiently long period of time so that the motorman could have seen it or should have seen it in time to have stopped the street car, or did the truck turn to its left so suddenly and without warning that the motorman had no opportunity of stopping the car before reaching the truck?

Plaintiff, to prove its theory of the collision, produced three eye-witnesses to the accident, the truck driver and two disinterested witnesses, one of whom was standing on the neutral ground 10 or 15 feet from where the accident occurred and the other was standing on the river sidewalk of St. Claude avenue about 60 or 70 feet from the point of collision. Their testimony is to the effect that the truck crossed the lower side of the intersection and, when attempting to cross the other side of the neutral ground, was forced to come to a stop on the lake side car tracks on St. Claude avenue because of traffic and an automobile in front of the truck; that the truck had been stopped on the tracks for 10 or 15 seconds and there was nothing to intercept the motorman’s view as he approached; that at the time the truck stopped on the tracks the street car was fully one-half block away from the intersection; that the street car came down the incline, which forms the approach to the bridge, at a fast rate of speed, without sounding its gong or-slowing its speed and ran into the truck; that just before the collision the motorman left his post of duty and ran into the street car and that from the force of the impact the truck was pushed or knocked some 12 or 15 feet.

Defendant, to -prove its defense, offered nine eye-witnesses, all of whom were employed by the railway company, except two, one a passenger on the street car and the other a city policeman who was on duty at the Poland street barn. The motorman and conductor were at their respective posts in the street car, the passenger was in the street car, the policeman was over in the direction of the barn and the other five witnesses were standing on a paved portion of the neutral ground where passengers board and alight from the street cars going towards Canal street on St. Claude avenue. Their version of the accident is substantially that when the street car proceeded down the incline it slackened its speed before crossing the lower side of Poland street, and also for the purpose of stopping where the passengers are received and discharged at Poland street, and where another motorman and conductor were waiting to relieve the crew on the car; that as the street car . i neared the truck, which, at that time, was headed towards Canal street on St. Claude avenue, the truck driver, without slowing up or holding out his hand or giving any signal, suddenly turned to his left in the direction of the river; that the motorman began to rapidly sound the gong and put on the brakes, but before the car could be stopped it collided with the truck, striking it on the left side near the driver’s seat, pushing it some four or five feet; that the front vestibule of the car was badly crushed and that the truck was also damaged.

While the witnesses for plaintiff state that the street car was coming down the incline at a rapid rate of speed, they are in accord with defendant’s witnesses that the street car was being operated between 10 and 15 miles per hour as it crossed the lower side of Poland street. The point on which the testimony of the witnesses is sharply in conflict and hopelessly irreconcilable is whether the truck had stopped on the track for 10 or 15 seconds just before it was struck, or whether it suddenly turned, without warning, from the street to the left on the tracks, so that the motorman did not have an opportunity to stop before striking it. If the version of the witnesses of plaintiff be accepted, then the plaintiff has made out a clear case, because it convicts the motorman, not only of ordinary negligence and carelessness but also of the most culpable and criminal kind of negligence and a wanton disregard of life, limb and property and a gross disregard for the safety of himself and others, including the passengers in the car. But, if we accept the testimony qf defendant’s witnesses as true, a complete defense has been established.

It would appear to us that the preponderance of the evidence is in favor of defendant’s theory of how the accident occurred, both by virtue of the greater number of witnesses and also because of the reasonable, conservative and plausible story that they told. Their narration of how the accident happened is in keeping with ordinary human experience with reference to such occurrences. On the other hand, the story told by plaintiff’s witnesses is most extraordinary and not convincing. It is very difficult for us to believe that a motorman who has charge of a street car with the attending responsibility for the safety of passengers for whom the carrier is held to a high degree of care, would so recklessly operate his car so as to not look at all while crossing a dangerous street intersection, failing to see a large three-ton truck directly in his path, neglect to sound his gong as warning of the approach of the car, and not even attempt to slacken the speed of the car, and before the collision, completely abandon his post and permit the street car to crash head-on into the truck.

In the case of Tourmillion v. N. O. Public Service, Inc., 3 La. App. 297, the court said:

“The reluctance of an appellate court to disturb the finding of fact by a trial court must yield to the necessity of reversing such findings when they appear to be clearly erroneous. One who attempts to drive an automobile across a street railway track in front of an approaching street car, when the latter- could have been easily seen and heard is guilty of negligence and is not entitled to damages to the ear arising from the collision.”

We conclude that the sole and ¡proximate cause of the accident was negligence of the truck driver in suddenly driving the truck in front of the street car.

Counsel for plaintiff strenuously argues that all of the witnesses for defendant, except the passenger on the car, were interested parties, being employees of the railway company or having relatives working for it and that this should be taken into consideration in weighing their testimony. This is true, but we find that their statements are conservative and reasonable, whereas the testimony of plaintiff’s witnesses as to how the accident happened is most improbable and unreasonable.

As to the question of the motorman having the last clear chance of avoiding the accident we are convinced that at the time the truck turned off of the lake side roadway of St. Claude avenue onto the street car tracks, that the street car was some 12 or 15 feet from it and running at the rate of 10 to 15 miles per hour, which did not give the motorman a sufficient opportunity to stop, since the driver of the truck did not give any signal or warning of his intention to turn, to his left.

We have reached the conclusion that the judgment of the trial court is manifestly erroneous and for the reasons assigned it is annulled, avoided, and reversed, and it is now ordered that there be judgment in favor of defendant, New Orleans Public Service, Inc., and against plaintiff, Schmidt & Ziegler, Ltd., dismissing the suit at its cost.