text:
    No. 11,865
    Orleans
    NEVILLE v. POSTAL TELEGRAPH CABLE CO.
    (March 10, 1930. Opinion and Decree.)
    William C. Pitts, of Birmingham, Ala., and Denegre, Leovy & Chaffe, of New Orleans, attorneys for defendant, appellant.
    Edward A. Parsons, of New Orleans, attorney for plaintiff, appellee.
   WESTERFIELD, J.

Mrs. Myra J. Ne-ville brings this suit against the Postal Telegraph Cable Company, for damages for personal injuries which she suffered by reason of an accident which occurred at the intersection of St. Charles avenue and Valence street in the city of New Orleans, on Sunday, March 20, 1927, at about 12:30 rp. m.

The case was tried by a jury and a verdict rendered in favor of plaintiff for the sum of $18,949.20, the full amount prayed for. Defendant has appealed.

Mrs. Neville, at the time of the accident, had reached the advanced age of seventy-three years, though she insists, that prior to that unfortunate occurrence, she still retained youthful vigor, sound health, and agility. At the time of the accident, she was crossing St. Charles avenue at the intersection of Valence street, having entered the street from the river curb with the intention of crossing to the neutral ground. Just before reaching her objective, when at a point three feet distant from the neutral ground, she was struck by a motorcycle driven by a young man named Yuratich, an employee of the defendant telegraph company, and seriously injured. She gives the following statement of the occurrence:

“When I reached Valence I walked to St. Charles Avenue, and when I got to St. Charles and Valence there were several cars passing, and I let those pass. Then I looked up the street, and there were several more coming, and I let those pass. I looked again up St. Charles, and there was only one car coming, and that was about at least three-quarters of a block away, perhaps more. I crossed the street to go to the neutral ground, and when I was about three feet, I suppose, from the neutral ground, something struck me. I lost consciousness right then, and the next thing I remember, I was being carried to a car- — -an automobile —and they took me to Touro Infirmary.”

The driver of the motorcycle is alleged to have been negligent in that he was operating his vehicle at an excessive rate of speed. One of the witnesses, a Mr. Wigley, who was driving an automobile in the vicinity of .the accident, testified that the motorcycle passed him when in the middle of the block between Bordeaux and Valence, a point about one hundred and fifty feet distant from the corner of St. Charles and Valence, where the accident occurred. He stated that the motorcycle was running about fifteen miles per hour faster than he w.as, and he gives his speed as twenty-five miles per hour, which would make the speed of the motorcycle forty miles per hour. He also testified that after passing him there was a clear view of the corner unobstructed by any other vehicle or, in other words, that for more than one hundred feet Mrs. Ne-ville was in plain view of Yuratich, the driver of the motorcycle.

Opposed to this evidence is the testimony of a Mrs. R. W. Conner, that of Yuratich, and of a party by the name of Plunkett, who was riding on the motorcycle with Yuratich, it being a two-passenger machine. These witnesses substantially agree in their statements to the effect that for more than a block before reaching the intersection of St. Charles avenue and Valence street, the motorcycle was being driven at the rate of not more than twenty-five miles per hour behind -a Ford coupe owned and operated by Mrs. Conner, and that as they reached the corner of Valence street and, when at a point about 15 feet distant from Mrs. Ne-ville, Mrs. Conner suddenly swerved to the right towards the river curb, and for the first time exposed Mrs. Neville to the view of the driver of the motorcycle.

Yuratich testified that at the time that Mrs. Conner moved over to the right, he had swerved his machine to the left with the intention of passing her on that side and that, therefore, he could not follow Mrs. Conner’s course to the right and could not run off of the street to the left because of the presence, immediately in front of him, of an oak tree on the neutral ground, and, that in that situation, he did that which he conceived to be the most advisable under the circumstances, which was to endeavor to squeeze in between Mrs. Neville and the neutral ground.

The four witnesses, whose testimony we have discussed, are the only eye witnesses, and the conflicting character of their statements is evident. Mr. Wigley and Mrs. Conner are both disinterested witnesses and both according to the record very reputable persons, but their statements cannot be reconciled. There is, however, a clear preponderance of the evidence favoring Mrs. Conner’s version of the accident and, under familiar principles of civil procedure, it must be accepted.

Yuratich gives the distance between his motorcycle and Mrs. Conner’s automobile as between ten and fifteen feet. This distance, he says, was maintained for more than a city block before the accident. His view was entirely obstructed by Mrs. Conner’s car. He gives no explanation as to why he should place himself in this position where, for a long distance, he was unable to observe traffic conditions ahead of him and to provide for the probable event which caused the accident, in this case, the sudden turning of Mrs. Conner to the right resulting in the equally sudden removal of this obstruction of his vision under circumstances which would not permit of his avoiding a collision with vehicles and/or pedestrians. We are by no means certain that in following Mrs. Conner so closely at the speed of twenty-five miles per hour in a cul de sac, such as Yuratich placed himself, was not in itself negligent. See section 17(a), Act No. 296 of 1928, also Youman et al. vs. McConnell & McConnell, Inc., 7 La. App. 315.

Assuming that Yuratich was negligent, the next question to be considered is whether Mrs. Neville was guilty of contributory negligence, for defendant has made this point. Mrs. Neville testified that just before leaving the curb of the sidewalk on St. Charles avenue, she permitted several automobiles to pass her, and that looking in the direction of traffic, she saw an automobile about three-fourths of a block away, entered the street, and started to cross; that after having left the curb, she did not again look in the direction of traffic. Mrs. Conner, who was undoubtedly the driver of the automobile which Mrs. Neville observed, testified that she was driving a Ford coupe down St. Charles avenue at a rate of twenty-five miles per hour; that as she approached Valence street she saw an old lady, who proved to be Mrs. Ne-ville, cross into the street without looking either to the right or left “so I realized that I must get over that way as quick as I could, towards the houses on the avenue.”

It is evident to our minds that Mrs. Ne-ville misjudged the distance of Mrs. Conner’s car, as well as the speed at which it was traveling. See Smith vs. Interurban Transfer Co., 5 La. App. 704, where it was said in reference to a similar act by the plaintiff in that case:

“If she did in fact look and see the bus coming and overestimated the distance, that was her misfortune and not the fault of the driver of the bus. If she did see the bus, she was unquestionably mistaken as to its distance from her; for if it had been as far from her as she says it was it would not have reached her before she crossed the road.”

But, her conduct in walking across the street after having seen an approaching car, without having again looked in the direction of the car, presents the serious question involving her negligence. Her counsel insists that as a pedestrian she had an equal right to use of the street; that she had a right to cross where she did, and, that in looking straight ahead of her, she was doing that which a prudent person should do, and that she was under no obligation to look again towards the approaching car, or, as he puts it, to walk in one direction, with her head and eyes pointed in another. He concludes that “if Mrs. Neville was negligent in crossing the street in the manner in which she did, then it is practicaly impossible for any pedestrian in this motor age to cross any thoroughfare in any modern city in the Western World.”

It cannot be denied that the way of the pedestrian is hard, and growing harder every day, his correlative right to the use of public streets is exercised with in? creasing peril, a fact Which we have heretofore recognized. As we said on that occasion, “We would not wittingly contribute to the further embarrassment of the pedestrian for he has, indeed, fallen upon evil days. Shorn of all prerogatives, he follows his ancient and honorable course through the streets of our great cities, tolerated but not respected, his every step fraught with imminent danger of death and disaster by external violent and accidental means. His precarious breath impregnated with noxious gases calculated to inflame his mucous membrane, he trods his weary, asphyxiated way, escaping, as best he may, the steam and electric juggernauts of the rail, with a sporting chance, as long as the hot blood of youth courses through his veins, of avoiding the more threatening firebreathing gasoline monster. But, when love’s young dream is over, when the agile step of youth begins to falter, he cannot reasonably hope to avoid violent, if not fatal contact with that greatest of all modern facilities, most dangerous and death-dealing instrument, the automobile.” Gonzales vs. Allen, 7 La. App. 551.

But a pedestrian must be expected to act with ordinary care and prudence, and, when stepping into a street and seeing an automobile, it is not sufficient to thereafter ignore its presence and depend upon the accuracy of one’s judgment in estimating its speed and distance, without assuming the risk involved. Mrs. Neville is at pains to insist that she was possessed of great vigor and vitality, and her counsel quick to impress this fact upon our attention. We cannot but regard her failure to take a second look at the automobile as negligent and imprudent, to say the least. If she was as vigorous as she claims to have been, her agility might have served to avoid the accident. If her physical condition has been exaggerated, and she was suffering from the usual infirmities of age, there was all the more reason for vigilance, after having committed herself to a dangerous crossing. It might have been different if her first look had failed to reveal the presence of any vehicle within her vision.

“After looking at the curb for approaching vehicles before crossing the street to take a street car, and seeing none, or believing it safe to cross, a prospective passenger is not required as a matter of law to look again - in the course of such crossing.” Blashfield’s, vol. 1, p. 688, citing Phillips vs. Taxi Service Co. (C. C. Mass.) 183 P. 869; Sommer vs. Martin, 55 Cal. App. 603, 204 P. 33; Lewis vs. Seattle Taxicab Co., 72 Wash. 320, 130 P. 341. But to have observed the oncoming vehicle and to have failed to look a second time was most imprudent.

In Roder vs. Legendre, 147 La. 295, 84 So. 787, 789, where the plaintiff on a rainy night, with an umbrella in her hand, attempting to cross Canal street after having seen automobiles a block and a half or two blocks away, and without having looked again when she was ready to cross the street was struck after having stepped into the roadway, the court saic!:

“The relative rights of pedestrians and drivers of automobiles have been frequently formulated and are frequently applied, and they have crystallized into the statement that their rights are equal and reciprocal, and that each must use such caution and prudence as the , situation demands. And, having seen the automobile approaching at a distance, it was the duty of plaintiff to look again as she left the sidewalk, as prudence and camion would have dictated to have been done by the ordinary person. The fact that plaintiff did not look and avoid the accident was the proximate cause of the accident to her.”

In Berry on Automobiles (6th Ed.), vol. 1, p. 361, we read:

“Where a pedestrian, before going into a street at a crossing, saw and heard an automobile approaching about 130 feet distant, and then continued in the street without again looking for the machine, and was struck by it „at a point about 35 feet from where he was when he saw it, it was held that he was contributorily negligent and could not recover” — citing McCormick vs. Hesser, 77 N. J. Law, 173, 71 A. 55. See, also, Laughlin vs. Seattle Taxicab & T. R. Co., 84 Wash. 342, 144 P. 847; Myers vs. Cassity, 209 Ky. 315, 272 S.W. 718.

We find the following text in Blashfield’s Cyc. Auto. Law, vol. 2, pp. 1042, 1043:

“As a pedestrian cannot be charged with negligence as a matter of law because he does not look for approaching vehicles while crossing the street, so it is also true that a pedestrian does not as a matter of law discharge his obligation to exercise ordinary care in crossing the street by merely looking before stepping off” — citing Livingstone vs. Dole, 184 Iowa 1340, 167 N.W. 639; Rolfs vs. Mullins, 179 Iowa 1223, 162 N.W. 783.
“However, in crossing between intersections, the exercise of ordinary care by a pedestrian is not fully performed by merely looking to the left or right as he steps upon the street, but the observance of that degree of care is imperative upon him during all the time that he is crossing.” See Sheldon vs. James, 175 Cal. 474, 166 P. 8, 2 A.L.R. 1493.

But, it is said, that the doctrine of last clear chance applies. We doubt its application, for as w;as said in Harrison vs. Louisiana Western Railroad Co., 132 La. 761, 61 So. 782, 784:

“ ‘This so-called exception to the rule of contributory negligence (i. e., the doctrine of “last clear chance”) will not be extended to cases where the plaintiff’s own negligence extended up to and actually contributed to the injury. To warrant its application there must have been some new breach of duty on the part of the defendant subsequent to the plaintiff’s negligence.’ A. & E. E. of L. Suppl. vol. 2, p. 64, notes 4 and 5.”

But, in any event,1 the driver of the motorcycle had no opportunity to prevent the unfortunate accident after he discovered the danger of Mrs. Neville’s position. The same situation is presented here as was considered by the court in Roder vs. Legendre, supra, where in discussing a similar case the court said:

“Plaintiff argues that she should recover damages under the doctrine of the last clear chance. But there is no place for the application of that doctrine here. There is no evidence whatever going to show defendant was guilty of a willful act of negligence, or that he was wanton in his disregard of the life and safety of plaintiff. And there is no evidence going to show that defendant had it in his power, or should have had it in his power, to have prevented the accident to Mrs. Germann, after he discovered the danger of her position.”

It follows from what has been said, that the judgment appealed from must be reversed.

Por the reasons assigned, it is therefore ordered, adjudged, and decreed that the judgment appealed from he, and it is, annulled, avoided, and reversed, and it is now ordered that there he judgment in favor of the defendant, Postal Telegraph Cable Company of Louisiana, Inc., . and against the plaintiff, Mrs. Myra J. Neville, dismissing her suit at plaintiff’s cost.


source: Caselaw Access Project

author: DREW, J.

license: Public Domain

text:
    No. 3799
    Second Circuit
    ESTO REAL ESTATE CORP. v. LOUISIANA TAX COMMISSION ET AL.
    (March 24, 1930. Opinion and Decree.)
    Ben. E. Coleman, of Shreveport, attorney for plaintiff, appellant.
    B. P. Roberts, and Robt. J. O’Neal, of Shreveport, attorneys for defendants, appellees.
   DREW, J.

Plaintiff brings this suit against the Louisiana tax commission, the police jury of Caddo parish, La., Thomas R. Hughes, sheriff and tax collector in and for Caddo parish, La., John W. Jeter, assessor in and for Caddo parish, La., and the city of Shreveport, La., praying for judgment annulling and avoiding the assessment of $36,000 made against the partially constructed brick apartment house located on certain lots owned by plaintiff, and ordering the erasure and cancellation thereof from the tax rolls of Caddo parish, La., and enjoining the said parties from collecting the said tax based on said as- ■ sessment amounting to $1,052.95.

It alleges that the assessment of the partially constructed brick apartment house as improvements and the taxation thereof is illegal, null, and void for the following reasons, to-wit:

“1. That on or about October 1st, 1928, a contract was let to build and construct a three-story brick apartment house on the above described lots, and that on January 1, 1929, the said brick apartment house was in the process of construction and erection and was only about twenty-five (25) per cent completed, and that said building is still in the process of construction and erection and is only about sixty (60) per cent completed at this time, the entire project costing approximately Ninety Thousand and no /100 Dollars..
“2. That on January 1, 1929, the time when property should be assessed for taxable purposes, the basement of this building was finished and some of the frame work and brick work on the building had been done, and that on this date such partially constructed building was not an improvement either in iaw or fact, within the meaning of taxable property.
“3. That this form and class of property does not constitute an improvement until the project is completed, ready for occupancy and revenue producing, and the law does not tax or contemplate taxing such property as improvements or otherwise.
“4. That this partially constructed building was not taxable on January 1, 1929, for the reason that buildings and- constructions are not assessable or taxable during the year which they are made.
“5. That the assessment and taxation of this partially constructed building is violative and in contravention of the laws of Louisiana, and of Article 10, Sec. 1, of the Constitution of Louisiana, and the Fourteenth Amendment to the Constitution of the United States.”

Defendants filed exceptions of no cause and no right of action and pleaded the prescription of thirty days, alleging that the tax rolls for the year 1929 were filed with the clerk of court on November 21, 1929, and that this suit was not filed until December 23, 1929.

The lower court rendered judgment overruling the exceptions of no cause and right of action and sustained the plea of prescription of thirty days and dismissed plaintiff’s suit. From that judgment, plaintiff has appealed to this court, the case being submitted on briefs without argument with a request that it be passed upon at the earliest possible time.

In the case of Gillis vs. Clayton, Assessor, 33 La. Ann. 286, the court said:

“The constitutionality of a tax is in contestation:
“1. When it is claimed that the law, under authority of which the tax is imposed or assessed, violates some provision or provisions either of the State or Federal constitutions, or of both.
“2. When it is asserted that the property, upon which the tax is imposed, is exempt from taxation under some constitutional provision.
“The legality of a tax is in contestation:
“1. When it is denied that there is any law in existence authorizing such tax.
“2. Where, admitting the existence of such a law, it is asserted that the law is invalid, owing to a want of promulgation or other irregularity; and
“3. Where it is claimed that the tax was originally imposed or assessed in violation of some provision of the law, or by one without legal authority to make such assessment.”

This is not a dispute about the quantum of assessment. The claim is that the property is not subject to assessment or taxation in any amount.

This clearly involves a contestation as to the legality of the tax which the Supreme Court only has jurisdiction of, regardless of the amount involved. McGuire vs. Vogh, 36 La. Ann. 812; Meyer & Co. vs. Pleasant, Sheriff, 41 La. Ann. 646, 6 So. 258.

“Where a city tax is resisted on the ground that the property against which it is assessed is exempt under the Constitution of the State, the question of the constitutionality of the tax is involved, and this Court has jurisdiction, though the tax is less than $1,000.” City of New Orleans vs. Arthurs, 36 La. Ann. 98.
“A demand that such property, when assessed, be declared exempt from taxation, implies a prayer that the taxes which would thereupon be claimed as due thereby be adjudged to be illegal. It involves the constitutionality of a tax.” State ex rel. City of New Orleans vs. Voorhies, 41 La. Ann. 540, 6 So. 821.

In Monongahela River Consol. Coal & Coke Co. vs. Board of Assessors, 115 La. 564, 39 So. 601, 2 L. R. A. (N. S.) 637, 112 Am. St. Rep. 275, on motion to dismiss appeal, the court said:

“Plaintiff’s petition sets up that it has property within the city’s limits, but that it is not subject to taxation. This is denied by the defendants. They urge that plaintiff owes taxes under statutes of 1890 and 1898. A question of construction presents itself.”

The legality of a tax is involved, and the judicial interpretation of a statute was necessary. The motion to dismiss was overruled.

In State vs. Rosenstream, 52 La. Ann. 2127, 28 So. 294, the court said:

“Where judicial interpretation of a tax statute is necessary to determine whether or not the tax, as demanded, is imposed by law, the question of legality vel non of the tax is raised, and the appeal taken may be to this court only.”
“Where the amount of a license tax depends on the construction to be placed on the revenue statute, the legality of the tax is in contestation, and an appeal lies from the court of the first instance directly to the Supreme Court.” State vs. Orfila, 116 La. 972, 41 So. 227; Downs, Tax Collector, vs. Dunn, 162 La. 747, 111 So. 82; Gibbs vs. Atkins, 110 La. 197, 34 So. 411; City of Ruston vs. Fountain, 118 La. 53, 42 So. 644; City of Shreveport vs. Mackie, 140 La. 724, 73 So. 842; City of N. O. vs. Vinci, 153 La. 528, 96 So. 110, 28 A. L. R. 1382.

It is clear from the above authorities that this court is without jurisdiction to pass upon the issues of this case, and that the appeal should have been to the Supreme Court of this state. Therefore, it is ordered, adjudged, and decreed that this case be transferred to the Supreme Court of the state of Louisiana, and that appellant have thirty days from rendition of this judgment to lodge the case there; costs of appeal to this court to be paid by appellant.


author: HIGGINS, J.

text:
    No. 13,342
    Orleans
    GARDINER v. DE SALLES
    (March 10, 1930. Opinion and Decree.)
    (April 7, 1930. Rehearing Refused.)

      Johnston Armstrong, of New Orleans, attorney for plaintiff, appellee.
    R. A. Tichenor, of New Orleans, attorney for defendant, appellant.
   HIGGINS, J.

This is a suit by plaintiff, a roomer, against defendant Galiano, as landlord and defendant De Salles, as owner, in solido, to recover damages for personal injuries alleged to have been sustained by the plaintiff on September 26, 1927, when a section of the bannister of the gallery on the second floor gave way and precipitated plaintiff to the sidewalk. Defendants, separately, filed exceptions of no cause of action, which were overruled. Each defendant then filed an answer denying liability, and specially pleading contributory negligence on the ground that plaintiff put an unusual strain on the balustrade by unreasonably and unduly leaning over it. The defendant, De Salles, owner of the building, further specially pleaded:

That the building had been rented to Galiano under a written lease dated December 22, 1926, for a period of twelve months, and that the lease contained the following provisions:

“That no sub-lease could be made without the written consent of the lessor. * * *
“Lessor will not be responsible for damages caused by leaks in the roof, by bursting of pipes, by freezing or otherwise, or by any vices or defects of the leased property, or the consequences thereof, except in the case of positive neglect or failure to take action towards the remedying of such defects within reasonable time after having written notice from lessee of such defects and the damage caused thereby. Should lessee fail to promptly notify lessor in writing, of any such defects, lessee will become responsible for any damage resulting to lessor or any other parties.
“The premises herein leased are to be used for the following purposes: Soft drink stand.”

That plaintiff was not lawfully on the premises, and that defendant did not owe plaintiff any duty of keeping the building in a proper state of repair.

There was judgment in favor of plaintiff against defendants, in solido, in the sum of $750. Only De Salles has appealed.

The record shows that the plaintiff rented a room from Galiano, in a building situated in the rear of the soft drink stand upon which Galiano had a lease. On September 26, 1927, plaintiff was standing On the front gallery, which overhung the sidewalk and located on the second floor of the building, with her arms resting on the balustrade. Plaintiff playfully drew back her arm as if to throw something at a friend passing on the sidewalk, and suddenly the balustrade on which she was leaning, as well as a whole section of the bannisters between two posts on the gallery, gave way, and plaintiff, together with the section of the bannisters, fell to the ground, a distance of twelve to fourteen feet. She was immediately taken into the building and from there to the Charity Hospital, where she was treated for her injuries. The preponderance of the evidence shows that the section of the bannisters either gave way as a result of its decayed condition, or because it was insecurely fastened.

We fail to find that plaintiff was guilty of contributory negligence. She is a woman weighing about 140 pounds, and we do not find that she placed any unusual strain upon the balustrade in leaning upon it. The case is squarely covered by Boutte vs. N. O. Terminal Co., 139 La. 945, 72 So. 513, 516. In that case, the mother of the plaintiff was killed by the collapse of a part of the balcony of the house which she occupied as lessee of the defendant. The court held that the defendant was liable under the provisions of articles 670, 2322, and 2695 of the Civil Code, for damages resulting from neglect to keep the building in a proper state of repairs. The court further held that the burden of proving contributory negligence was on the defendant, and then said:

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

It is doubtful if the written lease covers the premises, 410 North Derbigny Street, from the gallery of which plaintiff fell, as the property leased is described jn the lease as “1733 Conti St., corner of North Derbigny Street.” But let us assume that the lease does cover the premises, 410 North Derbigny Street, a view most favorable to the defendant, nevertheless the special defenses will not relieve the defendant of liability.

The questions raised by the special pleas, that Galiano, as lessee, could not make any sub-lease without the written consent of the lessor, and that the lease contained a provision that the owner, as lessor, would not be responsible for damages caused by any vice or defects unless in case of positive failure to remedy same after written notice, and that lessee, Galiano, was responsible for the damages which plaintiff might have suffered are fully covered by the case of Klein vs. Young, 163 La. 59, 111 So. 495, 496. In that case the court held that the plaintiff, who was injured while a “roomer or .a lodger” in the premises, where the lessee was prohibited from making any sub-lease without the consent of the landlord, was lawfully in the premises, because she was a roomer or lodger and not a sub-tenant, and, therefore, there was no violation of the provision, in the lease prohibiting subleasing by the landlord or lessor. The court further held (syllabus):

“Owner of building cannot, by contract with lessee, escape responsibility for obligations arising ex delicto to one renting a room from lessee, and injured when stairs gave way, under Civ. Code, arts. 670, 2315, and 2322, creating liability in damages .for injuries to others, resulting from owner’s neglect to keep building in repair; articles 2693-2695 being inapplicable.”

This brings us to the last special defense that, under the written lease, the building was to be used as a soft drink stand and therefore the (plaintiff was unlawfully in the building. The written lease only restricts the premises “1733 Conti Street, corner of North Derbigny Street” to the use of a soft drink stand, but does not limit or restrict the premises 410 North Derbigny Street for that purpose. It further appears that the defendant, De Salles, knew that Galiano was renting rooms in the premises, 410 North Derbigny Street, to roomers or lodgers and did not object thereto. We are of the opinion, therefore, that this defense is without merit.

As to the quantum, the doctor who treated plaintiff testified as follows:

“Q. What injuries do those plates show?
“A. Two views of the left forearm show a comminuted fracture at the base of the radius, a fracture of the styloid process of the ulnar, with position of the fracture perfect. The other plate shows a fracture at the surgical neck of the right humerus, with totation of the head of the bone outward.”

The record further shows that plaintiff was confined to bed in the hospital for three weeks with severe pain, and went to the outdoor clinic for about three months; that she suffered stiffness in her arm for a considerable period after the injury. She was thirty years of age at the time of her injury and earned about $10 a week as a cook in a restaurant. The judge, a quo, allowed the sum of $750 for both the injuries and loss of earnings, and under the circumstances, we believe this amount to be reasonable-

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


text:
    No. 3727
    Second Circuit
    JOHNSON v. JIM BROWNLEE, INC.
    (March 24, 1930. Opinion and Decree.)

      Craig, Bolin & Magee, of Shreveport, attorneys for plaintiff, appellee.
    Chris Barnette, of Shreveport, attorney for defendant, appellant.
   DREW, J.

Plaintiff sued to recover damage to his automobile caused by collision with a car of defendant’s on or about the 24th of December, 1926. It is alleged that plaintiff’s car was struck by a car owned by defendant and being operated by Roy Collins, a negro demonstrator, within the course of his employment.

It is admitted by defendant that it owned the car that collided with plaintiff’s ear, but it is denied that Roy Collins was in any way employed by defendant.

Defendant offered no evidence on the trial of the case, and the question of negligence and quantum of damage is not raised. The defendant relies solely on the allegation of its answer that Roy Collins, the driver of its car, was not in the employ of defendant and was not acting in the scope of his employment.

We think the evidence in the record, uncontradicted, is sufficient to show that Roy Collins was in the employ of defendant at the time of the accident, and it is admitted that the car he was driving was the property of defendant, thereby shifting the burden to defendant to prove that he was not at that time on a mission of his master.

Roy Collins, immediately after the accident, said that he was demonstrating for the defendant company, and one other employee of defendant testified that Roy Collins was in the employ of defendant as a demonstrator. This is the only testimony offered on this point, but is sufficient where it is not contradicted. It is sometimes very difficult to prove employment, for the reason that it is a matter peculiarly within the knowledge of the defendant and its employees.

The courts of a great many of the states of the Union have held that proof that an automobile is owned by the defendant is prima facie evidence of his responsibility for the manner in which it was driven. Potts vs. Pardee, 220 N. Y. 431, 116 N. E. 78, 8 A. L. R. 787; Kellogg vs. Church Charity Foundation of Long Island, 203 N. Y. 191, 96 N. E. 406, 38 L. R. A. (N. S.) 481, Ann. Cas. 1913A, 883.

The jurisprudence of this state is that an allegation and proof showing the ownership of the automobile, and that it was being operated at the time by an employee of the owner, is sufficient to make out a prima facie case and to raise the presumption that the servant was acting within the scope of his employment, and that the burden is then thrown on the owner to show the contrary. May vs. Yellow Cab Co., 164 La. 920, 114 So. 836; Swedman vs. Standard Oil Co. of La., (La. App.) 125 So. 481.

Plaintiff made out a prima facie case, and the defendant did not offer any testimony in the ease. The lower court found for plaintiff, awarding him damages to the amount of the cost of repairing his car. We think the judgment is correct.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be affirmed. Cost of appeal to be paid by defendant, appellant.


text:
    No. 11,619
    Orleans
    SCHIRO v. MACALUSO
    (February 17, 1930. Opinion and Decree.)
    (March 10, 1930. Rehearing Refused.)
    (May 5, 1930. Writ of Certiorari and Review Refused by Supreme Court.)
    Michel Provosty, of New Orleans, attorney for plaintiff, appellee.
    Geo. J. Untereiner, of New Orleans, attorney for defendant, appellant.
   HIGGINS, J.

Plaintiff sues defendant for the return of $600 cash, which he alleges that he deposited with defendant, an attorney at law, on April 12, 1927, for the purpose of compromising an internal revenue claim which the United States government asserted against him. The petition alleges that, after making the deposit with the defendant, plaintiff, through a friend, tentatively compromised the claim with the government for the sum of $125 on April 16, 1927; that the compromise was finally approved by the Treasury Department at Washington, D. C., on October 28, 1927; and that, upon reguesting the return of the $600, defendant refused to do so, notwithstanding amicable demand.

Defendant denied liability, alleging that he is a duly licensed and practicing attorney of the state of Louisiana, and averring that the $600 was hot deposited with him for the pui’pose of being paid to the government in compromising or settling the internal revenue tax claim, but was paid to him as a fee for “services to be rendered" in behalf of the plaintiff in reference to the claim of the government for internal revenue tax against the plaintiff; that the employment was in writing, as evidenced by a letter dated April 12, 1927; that it was agreed and understood that plaintiff was to pay the defendant $600 in advance for his services; and that a few days alter the employment the plaintiff called upon defendant and requested that he refrain from doing anything in the matter until he would hear further from him; and that, as plaintiff prevented defendant from performing his services, plaintiff had earned the fee of $600.

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

The record shows that the sum of $600 was paid to the defendant as a fee for services as attorney at law to represent the plaintiff, and not a deposit to be paid in. compromise of the internal revenue claim. The contract of employment is as follows:

“New Orleans, April 12th, 1927. “Mr. Charles Y. Macaluso, City.
“Dear Sir:—
“I have this day handed you a check for the sum of Six Hundred ($600.00) Dollars, drawn by the Italian Homestead Ass’n, to my order, which check is given to you 'in payment for services to be rendered by you in the matter of the claim of United States Government vs. myself for tax.
“(Signed) George Schiro.”

Defendant admits that three or four days after the employment plaintiff requested him not to do anything in the matter, as he expected to compromise the matter himself, or ¡through a friend; that thereafter he did not do anything and refused to return the money, notwithstanding repeated amicable demand.

Plaintiff testifies that, after effecting the tentative compromise on April 16, 1927, he requested the return of his money, as he did not need defendant’s services any further in the matter, but defendant refused to return the money.

Plaintiff contends that a contract for services of a member of the legal profession is a mandate which may be revoked at any time by the client, and that the attorney’s only remedy is a 'claim on a quantum meruit for the services actually rendered.

Defendant contends that a contract whereby one employs another for a single enterprise at a fixed compensation conforms to the requirements of articles 2669 and 2746 of the Revised Civil Code, and constitutes a valid and enforceable contract of letting and hiring; that the contract is considered performed when the obligee stops the obligor from performing his obligation under the contract; and that, when the obligee prevents the obligor from performing his obligations under the contract, the obligor is entitled to the full compensation stipulated in the contract.

We are convinced that plaintiff duly notified defendant that his services were no longer required when the compromise agreement was effected on April 16, 1927. Defendant admits that plaintiff told him he had effected the compromise through a friend, and, the matter having been settled, there would be no necessity for defendant to render any services in behalf of plaintiff in connection with the matter.

In the case of Gurley vs. City of New Orleans, 41 La. Ann. 75, 5 So. 659, the Supreme Court said:

“A contract for the services of members of the legal profession is not a hiring of labor, but a mandate.
.“A principal has the right to revoke powers of agency. given by him for an indefinite period. * * * Such power to revoke, and such contingent forfeiture, are implied in such a case.”

This principle of law was invoked by this court in the case of Crane vs. Sladovich, No. 7680 of the docket, unreported (See Louisiana and Southern Digest), the syllabus of which reads:

“A contract for the services of members of the legal profession is a mandate which may be revoked at any time.”

In the case of Louque vs. Dejan, 8 Orleans App. 430, the plaintiff' sued the defendant for services rendered as an attorney at law upon a written agreement, whereby the defendant was to pay the plaintiff 25 per cent of any amount collected on certain warrants placed in his hands for collection. The court held that a contract with an attorney at law, for an indefinite period and without any provisions for absolute compensation, is not a hiring of labor under Civil Code, art. 2749 (2720), but a mandate governed by article 3028 of the Revised Civil Code, and revocable at the will of the principal. This decision was affirmed by the Supreme Court in the case of Louque vs. Dejan, 129 La. 519, 56 So. 427, 428, 38 L. R. A. (N. S.) 389, in which the Supreme Court reviewed the jurisprudence on this subject, and said:

“We will not review each decision cited by the defense.
“As relates to the mandate: It is sufficient to state that tney sustain the proposition that an attorney’s mandate is governed by article 3028 of the Code, and not by article 2749.”

The court further said:

“Certainly, if the client had the right to dismiss the suit altogether, causing the destruction of the eventual res, he certainly had the lesser right to contract the res by employing another attorney, leaving to the first the right to recover for his services actually performed.”

The court pointed out that this action for services would be on a quantum meruit.

In the case of Gosserand vs. Crespo, No. 7829 of the docket of this court, unreported (see Louisiana and Southern Digest), the plaintiff, an attorney, sued on a written contract, where he was “jointly employed to represent all and each of us in bringing about this partition, and agree that his fee shall be paid out of the mass.” The attorney was dismissed without cause, and the court, following the above decisions, held (syllabus):

“A contract with an attorney-at-law for an indefinite period and without any stipulation as to compensation is not a hiring of labor under Article 2749 (2720) of the Civil Code, but is a mandate governed by Article 3028 (2997) of the Civil Code revocable at the will of the principal, on payment of the value of the services rendered up to the date of discharge.”

In the case of Higgins & Middleton vs. Uchello et al., No. 8378 of the docket of this court, unreported (see Louisiana and Southern Digest), plaintiffs, as attorneys at law, sued defendants upon a verbal agreement whereby defendants agreed to pay plaintiffs a fee of $1,500 for their services to be rendered in a criminal case. After rendering valuable services in the case for one day and night, defendants, without cause, dismissed plaintiffs. The court held:

“This Court has frequently held that a contract of employment with an attorney is in the nature of a mandate, revocable at the will of the principal upon the payment of the value of the services rendered up to the date of the discharge.”

The court affirmed a judgment of $500.

However, here the defendant admits he rendered no services and does not claim any fee for services rendered.

These cases are controlling in the present situation, unless it can be said that the instant case is to be distinguished on the ground that the contract specifically provided a definite amount as attorney’s fees, i. e., $600. However, it is to be noted that the contract of employment is for an indefinite period. In order for the defendant to bring his case within the decision cited by him, and to take his case out of the decisions cited supra, the defendant’s contract of employment must specify a definite fee to be paid for services to be rendered for a definite period of employment. In the case of Orphan Asylum vs. Mississippi Marine Insurance Co., 8 La. 181, the court said (syllabus):

“Where a corporation, by a vote of its directors, appoints an attorney at law to manage its legal business for a year, with a stated annual salary, and he accepts the office, the contract is binding on both parties for the period of one year, when there is no provision authorizing either party to retract at will.”

As there was no definite period within which the services were to be rendered by the defendant in the case at bar, it cannot be said to fall within the above decision.

Counsel for defendant has also referred us to Hennen vs. Bourgeat, 12 Rob. 522. We distinguish that case from the instant case, in that the court found there:

“* * * That the apparent inactivity of the plaintiff may have been attended with close and deep study of his case; and have been the result of his opinion, that it would lead to a compromise more advantageous than, and certainly equally so, as any judgment he could obtain.”

In the instant' case the defendant attorney admits that he did not render any services.

We have also been referred to Unteriner vs. Ernest, 2 La. App. 163, and Rivet vs. Battistella et al., 167 La. 766, 120 So. 289, in both of which cases the plaintiff, as attorney at law, was designated by the testator in his will as the attorney at law to settle his estate. We do not think that these cases are apposite here, because such a provision in the will was equivalent to an onerous legacy, and the heirs of the deceased were powerless to revoke such a provision in the will. The Supreme Court held that such a provision in a will was not against public policy, or in violation of any law, and was binding upon the heirs.

We are of the opinion that a contract with an attorney at law for an indefinite period, where there is a stipulation for an agreed compensation or a definite amount, is not a hiring of labor under article 2749 of the Civil Code, but a mandate governed by article 3028 of the Civil Code, revocable at the will of the principal on the payment of the value of services rendered up to the date of discharge.

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


author: JANVIER, J.

text:
    No. 11,856
    Orleans
    CONNORS v. TURNEY
    (February 17, 1930. Opinion and Decree.)
    (March 10, 1930. Rehearing Refused.)
    (May 5, 1930. Writ of Certiorari and Review Refused by Supreme Court.)

      Wm. J. Hennessey and Wm. J. Hooper, of New Orleans, attorneys for plaintiff, appellant.
    William A. Wench and James L. Landry, of New Orleans, attorneys for defendant, appellee.
   JANVIER, J.

This suit involves the question of whether or not the provisions of section 4 of Act 136 of 1880, with reference to the dismissal of suits for failure to file security for costs within the time limit fixed in the order therefor, are self-operative.

The petition was filed on August 29, 1928. On October 16, 1928, defendant sought and obtained from the district judge an order requiring plaintiff to furnish within 10 days security for costs in the sum of $25. . This security for costs was filed on September 13, 1928, or nearly 30 days after the order requiring it was served.

On December 17, 1928, on motion of plaintiff a preliminary default was entered. Two days later, on December 19th, on motion of defendant, an ex parte order was signed by the district judge setting aside the default and dismissing the suit “as of non-suit.” From this judgment of dismissal plaintiff appeals.

The judgment in question was rendered on the theory that the failure of plaintiff to file the security for costs within the time limit set forth in the order of October 16th ipso facto effected a dismissal of the suit.

The pertinent portion of section 4 of the act in question reads as follows:

“That the court shall fix the delay within which such bond or security for costs shall be furnished, and the failure to furnish the same, within such delay, shall operate a dismissal of the proceedings as in case of non-suit.”

The notice to furnish security for costs is in the following language:

“Please to take notice, that you are required by the Defendant and the Court to furnish security for costs in the above entitled cause in the sum of $25.00 Dollars within ten days from the service hereof, or in default of which said cause will be dismissed as in case of non-suit, in accordance with Section 4, of Act 136 of 1."

Plaintiff, however, contends that the Supreme Court has interpreted that provision of the statute as giving merely a right to ask for an order of dismissal, but not as having that effect automatically and without further action.

Plaintiff also maintains: that, if the section in question is construed as contended for by defendant, then the statute is unconstitutional, in that its provisions embody subject-matter not contained in the title, since the title refers only to the method of providing for the fixing of fees and for costs of court, whereas, the provision in question refers to dismissal of suits.

However persuasive the argument that the act in question is repugnant to the State Constitution may at one time have appeared, we cannot now be swayed by it, because that matter was disposed of by the Supreme Court in Grinage vs. Publishing Company, 107 La. 122, 31 So. 682, 683, in which the court said:

“Regulating the collection of costs is a term broad and comprehensive enough to cover the requirement of security for costs, and as defendant may incur obligation for costs and pay out money for costs in the preparation of its defense, it is not without the pale of the title of the act when the body thereof authorizes the exaction from plaintiffs of a bond for the costs it may expend.
“The bond, even though exacted at the ipstance of defendant, inures, at last, to the benefit of the clerk and sheriff, and is, therefore, pertinent and germane to the subject with which the act deals, to wit: the costs of those officials. See Hope vs. City of New Orleans, 106 La. 345, 30 So. 842.”

The remaining question is whether or not the provision contained in section 4 of the act that: “* * * the failure to furnish the same, within such delay, shall operate a dismissal of the proceedings as in case of non-suit,” is self-operative.

Under it, does failure to file, a bond within the time limit set forth in the order ipso facto and without any action whatever on the part of the court terminate the proceedings? The words of the section might so indicate if it were not for the interpretation apparently placed thereon by the Supreme Court in certain cases to which we will now refer.

In Aiken vs. Robinson et als., 52 La. Ann. 925, 27 So. 134, the Supreme Court, in referring to the proceedings in the district court said:

“* * * xt was ordered by the court that Mrs. Robinson give security for costs in the. sum of $250, within 10 days from date of the order, and that, in default of her so doing, her action be dismissed.
“On rule taken by Mrs. Robinson to have this order set aside, the court ordered that the amount of the bond to be given be reduced to $75, but that the order as so amended should stand.
“No action seems to have been taken under this order.”

It will be noted that the order in the Aiken case was issued under section 4 of Act 136 of 1880, and contained language indicating that the failure to comply therewith, within the time limit, would automatically effect the dismissal of the suit. Nevertheless, when the Supreme Court was asked “to dismiss the appeal on the ground that by order of the district court Mrs. Robinson had been required to give bond for costs in the sum of $75 within 10 days from the date of the order; that the delays had expired, and the bond had not been furnished,” that court said:

“The motion cannot be granted.
“The order in question was an interlocutory order, granted in the district court, which that court was called on to take action upon.
“It did not do so.”

The words, “which that court was called on to take action upon,” are significant. If the expiration of the time limit automatically dismissed the suit, no action was required of the district court.

We think that the discussion in the case of Glain vs. Sparandeo, 119 La. 339, 44 So. 120, 121, also throws light on the subject. There an order to furnish security for costs was not complied with within the time limit fixed in the order, but was complied with thereafter. On motion to dismiss the suit on this ground, it is true that the court said that the order had not been served on plaintiff himself but instead on his attorney, but it did not rest the refusal to dismiss the suit solely on that ground, but, as an additional reason for its refusal, said:

"* * * In view of the fact that the second bond was furnished before the day fixed for the hearing of the rule to dismiss, we are of opinion that the rule was properly discharged.”

Often orders to furnish security for costs are not complied with until after the time limit set forth therein, that many such cases have gone to final judgment on the merits. If defendant is correct, all such judgments are absolute nullities because, immediately upon the expiration of the time limit fixed in each order, each respective suit was automatically dismissed, and manifestly could no longer be prosecuted.

If, as is contended, the mere failure to file the bond within the time limit, without further action, dismisses the suit, how could the filing of the bond after dismissal revive the litigation? We áre of opinion that an order requiring that security for costs be filed within a' fixed time, and providing that failure to comply therewith shall “operate a dismissal of the proceeding as in case of non-suit,” is not self-operative, and that an additional order dismissing the suit is necessary, and that the security for costs may be filed at any time prior to the order of dismissal.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be, and it is, annulled, avoided, and reversed, and that this matter be remanded to the district court for further proceedings not inconsistent with this opinion.


author: WESTERFIELD, J.

text:
    No. 11,681
    Orleans
    GIACOMA v. YOCHIM ET AL.
    (January 27, 1930. Opinion and Decree.)
    (March 10, 1930. Rehearing Refused.)
    (May 5, 1930. Writ of Certiorari and Review Refused by Supreme Court.)

      Theodore Cotonio, of New Orleans, attorney for plaintiff, appellant.
    Dart & Dart and H. Grady Price, of New Orleans, attorneys for defendants, appellees.
   WESTERFIELD, J.

This is a suit by a prospective purchaser against a real estate agent and the owner of the property plaintiff intended to purchase, for the return of a deposit in the sum of $950 or 10 per cent of the purchase price.

The defendants filed separate answers. Yochim, the real estate agent, admitted having received the deposit. Mrs. Bussey, the owner of the property, avers her willingness to convey to plaintiff, and by way of reeonvention asks for judgment against plaintiff . decreeing specific performance of the agreement to purchase the property.

There was judgment below dismissing plaintiff’s demand as to hath defendants and in favor of Mrs. Bussey, plaintiff in reconvention, ordering specific performance of the contract and condemning plaintiff to pay to defendant the sum of $9,500, the purchase price mentioned in the agreement of sale, less the amount of the deposit.

Plaintiff justified his refusal to accept title to the property on a number of grounds: First, that Mrs. Bussey at the time he agreed to buy the property was not the owner thereof; second, that the title to the property was incumbered with certain building restrictions unknown to him at the time he signed the agreement of sale; and, third, that the property is owned by the Milne Asylum for Destitute Orphan Boys which acquired it about 100 years ago under the will of Alexander Milne, and its title has never been legally divested by plaintiff’s, authors in title.

As to the first reason advanced by plaintiff for refusing to accept title it is based upon the fact that when the plaintiff signed the agreement Mrs. Bussey was represented by Yochim as her agent, and Mrs. Bussey had not yet taken title to the property, she having only recently agreed to its purchase through Yochim. In other words, Yochim induced her to purchase the property and induced plaintiff to buy it at a small advance before Mrs. Bussey got possession of it. However, Mrs. Bussey was the owner of the property long before any dispute arose over the title. This objection is without merit. The sale of the property of another is null under the familiar provision of our Code (Vickers vs. Block, 31 La. Ann. 672), but there is a difference between a promise of sale and a sale. See Codifer vs. Holdsworth, 7 La. App. 395.

The second objection is more serious. In the act of sale by which Mrs. Bussey acquired the property, of date July 25, 1925, passed before W. Morgan Curley, notary public, there appears the following:

“The party of the second' part further agrees that there shall not be erected on this property any residence to cost less than Three Thousand ($3,000.00) Dollars; nor any saloon, noxious or offensive establishment whatsoever; that no house shall be built or set nearer to the front property line of the lots than fifteen feet; that no lots are to be sold to negroes or colored people.”

The evidence is to the effect that plaintiff was unaware of these restrictions in the title at the time of his agreement to purchase the property and his deposit of 10 per cent of the purchase price. Defendant, however, insists that these restrictions in Mrs. Bussey’s title may be ignored by any purchaser for the reason that they are absolute nullities. . Her counsel argues that, since there is no time limit mentioned in tl^e restrictions referred to, they must be regarded as purporting to have effect in perpetuity, an illegal restriction upon the alienability of property which will not be tolerated by our law. In support of this contention we are referred to Female Orphan Soc. vs. Young Men’s Christian Association, 119 La. 278, 44 So. 15, 16, 12 Ann. Cas. 811, where the court, in speaking of similar restrictions, said:

“It is clear, then, that, under our law, an ownership, without the potestas alienandi being vested in some one, is an impossibility — finds no place in our Code’s scheme of the tenure of property — and is therefore impliedly forbidden. Hence the conclusion is inevitable that a condition of inalienability contravenes the provisions of our Code regulating the tenure of property, and is therefore ‘contrary to law,’ and must be reputed not written.’’

In Queensborough Land Co. vs. Cazeaux, 136 La. 724, 67 So. 641, 645, L. R. A. 1916B, 1201, Ann. Cas. 1915D, 1248, it was held that a condition in an act of sale for the benefit of the vendor and its other vendees, that the' vendee should not sell the property to a negro during a period of 25 years from the date of the act. of sale, was not contrary to public policy and was, therefore enforceable, because “no one has ever doubted the validity of such a condition, if merely temporary.”

In the case at bar there is no stipulation which, if given effect, would render the property wholly inalienable, and on the other hand there is no limitation of the partial inalienability which the stipulation imposes. In the cited case, supra, we find the following:

“The right to alienate is but one of the constituent elements of the right to dispose of; in the same way that the ownership may be subdivided, and the usus, and the fructus and the abusus may be subdivided, so may this right to alienate, a subdivision of the abusus, be, in turn, subdivided. And that is what the said stipulation m question in this case amounts to in effect, By it the right to alienate is subdivided and only a part of it is transferred to Cazeaux. There is withheld from him that part of the right to alienate by which, if he had acquired the full right to alienate, he would, have been enabled to sell to a negro. This right thus withheld from him is part of the ownership; a ,dismemberment of it; just as the usus is, or a dismemberment of it would be; or the usufruct is, or a dismemberment of it would be; or the abusus is, or any other dismemberment of it would be.”

Article 2515 of the Civil Code reads as follows:

“If the servitudes be of such importance that there is cause to presume that the buyer would not have contracted, if he had been aware of the incumbrance, he may claim the canceling of the contract, should he not prefer to have an indemnification.”

In the case of Shea & McGuire vs. Evans, where a similar restriction in a deed was under consideration, the Court of Appeal of Maryland, in a well-considered case, reported in 72 A. 600, 601 (109 Md. 229), said:

“In Gill vs. Wells, 59 Md. 492, Judge Miller said: ‘It is a principle, obviously just, in the law relating to the specific performance of contracts that the vendee is entitled to have that for which he contracts, before he can be compelled to part with the consideration he agreed to pay. He is not bound to take an estate fettered with incumbrances, by which he may be subjected to litigation to procure his title; and, in a contract such as is sought to be enforced in this case, the vendee is not bound to accept anything short of an unincumbered legal estate in fee, the title to which is free from reasonable doubt.’ Or as said in Dobbs vs. Norcross, 24 N. J. Eq. 327, and quoted with approval in Gill v. Wells: ‘He shall have a title which shall enable him, not only to hold his land, but to hold it in peace; and if he wishes to sell it, to be reasonably sure that no flaw or doubt will come up to disturb its marketable value.’ That restrictions such as these would prevent a court of equity from decreeing the specific performance of a contract for sale of lands subject to them is shown by the decisions in Halle v. Newbold, 69 Md. 265, 14 A. 662; Newbold v. Peabody Heights Co., 70 Md. 493, 17 A. 372, 3 L. R. A. 579; Peabody Heights Co. v. Willsch, 82 Md. 186, 32 A. 386, 1077, 36 L. R. A. 393, and others that might be cited.”

We do not find it necessary in this case to determine whether the partial restriction upon the alienability of the property is valid or otherwise. It is sufficient to observe that the title tendered plaintiff is obviously suggestive of litigation, and plaintiff cannot be compelled to accept a litigious title. Couret vs. Hopkins, 13 Orleans App. 161; Heffern vs. McWilliams, 13 Orleans App. 489.

The view we take of this objection to the title makes it unnecessary to discuss the other objections.

For the reasons assigned the judgment appealed from is annulled, avoided, and reversed, and it is now ordered that there be judgment in favor of plaintiff, Carrado Giacoma, and against the defendants, J. C. Yochim and Mrs. Marie Straub, wife of William Bussey, in solido, in the full sum of $950, with legal interest thereon from November 3, 1925, and all costs of this suit.


text:
    No. 11,848
    Orleans
    WHEELER v. RODRIGUEZ
    (March 10, 1930. Opinion and Decree.)
    (April 7, 1930. Rehearing Refused.)

      M. C. Scharff and M. E. Kranz, of New Orleans, attorneys for plaintiff, appellant.
    Normann, Breckwoldt & Schwartz, of New Orleans, attorneys for defendant, appellee.
   HIGGINS, J.

This is a suit for damages filed by Margaret Wheeler against F. J. Rodriguez, under the following allegations, to-wit: “The petition of Margaret Wheeler, for and in behalf of her natural min- or son, Arthur Williams. * * *”

The petition then alleges that on January 6, 1927, Arthur Williams, aged nine years, natural son of Margaret Wheeler, was seriously injured at the street intersection of Carrollton avenue and Fontainebleau drive by an automobile owned and operated by defendant. The petition charges that defendant was solely at fault in causing the injury to the child.

On December 27, 1927, defendant filed an exception of no cause or right of action, and on January 13, 1928, an exception of want of right or capacity on the part of plaintiff to represent the said minor, and to stand in judgment herein. Defendant further pleaded, in answer of January 13th, the prescription of one year. The judge, a quo, sustained the exception of no right or cause of action, dismissing the suit, and plaintiff has appealed.

Article 256 of the Revised Civil Code reads as follows:

“The mother is of right the tutrix of her natural child not acknowledged by the father, or acknowledged by him alone without her concurrence.
“After the death of the mother, the father is of right the tutor of his natural child acknowledged by him alone.
“The natural child, acknowledged by both, has for tutor, first the father, in default of him, the mother.’’

Article 261 of the Revised Civil Code reads as follows:

. “The father or mother who is entitled to the tutorship of the natural child, according to the provisions of article 256 can choose a tutor for him, whose appointment, to be valid, must be approved by the judge.”

It would therefore appear that, if Arthur Williams is the natural child of Margaret Wheeler, and that the father of the child has not acknowledged the child, or acknowledged him without the concurrence of the mother, that plaintiff, Margaret Wheeler, would be entitled to qualify as tutrix of her minor son.

Article 108 of the Code of Practice provides :

“Minors, persons interdicted or absent, can not sue, except through the intervention or with the assistance of their tutors or curators.”

In the case of Succession of Haley, 49 La. Ann. 709, 22 So. 251, 252, Mrs. Haley had adopted Charles M. Taite, natural child of Miss Jeannette Prescott. Mrs. Haley appointed Anatole Ker as testamentary tutor of the minor. Miss Prescott qualified as tutrix of her natural minor son in an ex parte proceeding, and Ker, in his capacity as an applicant for appointment as testamentary tutor of the minor, applied for and obtained an appeal from the order or judgment appointing Miss Prescott tutrix of her minor son. Miss Prescott moved the court to dismiss the appeal on the grounds: First, “That appellant was without any appealable interest; that appellee, being the mother of said minor, has been, and alone was, entitled to be recogaized, confirmed and appointed natural tutrix, to the exclusion of every other person”; second, “That notwithstanding the nomination of Anatole Ker as testamentary tutor by Mrs. Haley by her last will, said nomination was absolutely null and void, and did not and could not deprive appellee of her right to he appointed and confirmed by the court as natural tutrix of her minor child.” The Supreme Court held: “It is true that the natural mother, as a general rule, is declared in article 256 of the Revised Civil Code to be entitled, under the circumstances therein stated, to be ‘of right’ the tutrix of her child; but, though she be entitled to that ‘of right,’ she is not necessarily to be appointed as ‘of course.’ Even the legitimate child is not necessarily to be placed under the tutorship of its father or its mother. The facts of a special case would make it sometimes improper that it should be so placed.”

In the case of Koepping et al. vs. Monteleone, 143 La. 354, 78 So. 590, the Supreme Court said:

“A surviving parent, who is not the qualified tutor or tutrix of his or her minor child, cannot sue on behalf of his or her minor child.”

In the case of Mayes vs. Smith, 11 Rob. 503, the defendant filed an exception in limine to the plaintiff’s capacity to. represent his minor children, as he had not qualified and been recognized as natural tutor. The court said:

“We are of opinion that the exceptions were well taken, and ought to have been sustained, and the suit dismissed.
“Minors can only sue by their tutor duly qualified to act as such. Even the natural tutor is required to take an oath before he can do any act as such. Civil Code, art. 328 (334). A judgment pronounced against minors would not be res judicata as to them, without its appearing that the person assuming to represent them in a judicial proceeding, had been duly qualified. This defect is not cured by suing in the name of the minors themselves, assisted by their father. They cannot sue in their own names; it is their tutor alone who can sue in his (own) name. * * »”

From the foregoing authorities, it will be seen that plaintiff should have qualified as tutrix of her natural child before entering suit against defendant.

The next question presented is whether the suit should be dismissed or remanded to the district court to give the plaintiff an opportunity to qualify as tutrix of her natural minor child, if she is able to do so.

Our courts have made a distinction between an exception of no right of action, and an exception of no cause of action. Where the petition sets forth a cause of action, but the plaintiff is without right to institute suit and stand in judgment, it is subject to an exception of no right of action. Where the allegations of the petition do not state a cause of action because the law does not provide or grant a cause of action, admitting all the allegations in the petition to be true, the petition is subject to an exception of no cause of action. The courts have been liberal in permitting amendments, where an exception of no cause of action is based upon the ground of insufficiency of allegations in the plaintiff’s petition. Courts have sustained exceptions of no cause of action under such circumstances, with leave to amend. Cazeaux vs. N. O. Public Service Inc., 124 So. 685, 687. In that case this court said:

“Furthermore the whole trend of modern procedure is to do away with technicalities and to permit amendments where no cause of action is based upon the insufficiency of the allegations of the petition. Francis v. Barbazon, 10 La. App. 55, 120 So. 427; Blake v. Jefferson-St. Charles Transfer Co., 8 La. App. 310.”

The federal courts have been liberal in permitting the plaintiff to amend a petition to state a cause of action in order to prevent a miscarriage of justice. In the ease of Quaker City Cab Co. vs. Fixter (C. C. A.) 4 F. (2d) 327, 328, it appears that the plaintiff, claiming damages for the death of her husband, filed suit as administratrix of his succession, and not personally as surviving widow. During the argument for a new trial, the attention of the court was called to the fact that the plaintiff had no right of action as administratrix of her husband's succession, but only individually as widow. The court thereupon allowed her to amend, and allege that she was prosecuting the suit as widow, and not as administratrix. On this point the court said:

“The cause was removed to the United States District Court for the Eastern District of Pennsylvania. It was not dis-' covered hy anyone — at least attention was not called to it — that she had wrongfully entitled her cause of action until May, 1924, when a motion for a new trial was argued. It was then raised for the first time hy counsel for defendant. More than one year had elapsed since the deceased died, and the statute of limitations prevented a new action from being instituted.
“The trial Judge permitted plaintiff to amend by striking out, etc. Defendant contends that this in substance constituted a new action and was error. * * * We think that the amendment was one of form, and not of substance, and in such case an amendment may be made under Secs. 948 and 954 of the Revised Statutes of the United States, Compiled Statutes, Secs. 1580-1591. Federal Courts are very liberal in allowing amendments to prevent a miscarriage of justice. McDonald v. State of Nebraska, 101 Fed. 171, 41 C. C. A. 278. Murphy v. Stewart, 43 U. S. (2 How.), 263-281, 11 L. Ed. 261; Reardon v. Copper Co., (C. C. A.), 193 FCed. 189.
“The facts in the case of Van Doran v. Penn. R. R. Co., 93 Fed. 260 (35 C. C. A. 282) were practically identical with those in the case at bar. Suit was there brought as administratrix and not as widow. Plaintiff sought to amend by substituting ‘widow’ for ‘administratrix.’ This court with reference to the allowance of the amendment said: ‘Substantial justice requires that such an amendment should be allowed as a second suit for damages for the death of Henry Van Doran would be barred by the one-year limitation in the Pennsylvania statute.’ ”

In the case of Creagh vs. N. O. Railway & Light Co., 128 La. 305, 54 So. 828, which was a suit brought by the mother, who had married a second time, for personal injuries to her minor son of a former marriage. Mrs. Creagh entered suit as natural tutrix of her son. An exception to her capacity to sue was filed in the answer, but not in limine. The court held that, under the general rule of law that any person, natural or artificial, may sue, a widow is not precluded from suing for the injuries to her minor son, because she did not qualify as tutrix at the time the suit was brought. The Creagh case was commented upon in Koepping vs. Monteleone, cited supra, in which the Supreme Court distinguished the two cases on the ground that the exception should be filed in limine. The court said:

“An exception to the capacity of the plaintiff to sue and stand in judgment must be filed in limine.”

In the Monteleone case, supra, the exception was filed in limine and sustained.

In the case of Knox vs. Allen, 4 La. App. 223, the court held, in the syllabus:

“The capacity of one who appears in court as representative of another must be alleged, but where the parent appears claiming damages for injuries sustained by her minor child, the capacity of the mother to recover in her representative capacity for the child is sufficiently stated by the words ‘as tutrix of the minor’.”

The laws of this state, and particularly the articles of the Civil Code on the subject of minors, jealously guard and protect the rights of minors. District judges are vested with great discretion to protect the interest of minors, when they are threatened with loss, and have no legally qualified representative to guard their rights. Gates vs. Bank of Patterson, 116 La. 539, 40 So. 891. If the exception is maintained and the suit dismissed, the claim may be prescribed. As the ground of the exception is one of form and not substance, it certainly would be in the interest of justice to allow the mother to-qualify as tutrix and amend.

In the case of Succession of Haley, cited supra, the court annulled the appointment of the mother as tutrix of her natural son, but remanded the case to the lower court for further proceedings according to law, reserving the rights of both parties.

In view of the foregoing authorities, and the trend of modern jurisprudence of liberally allowing amendments to prevent miscarriages of justice, we deem it advisable to remand the case for the purpose of giving plaintiff an opportunity of qualifying as tutrix of her natural minor son within such reasonable time as the district judge may deem proper, and to amend the petition accordingly.

For the reasons assigned it is ordered, adjudged, and decreed that the judgment dismissing plaintiff’s suit be reversed, and it is now ordered that this cause be remanded to the district court, with instructions to afford plaintiff an opportunity to qualify within a reasonable delay, if she can, as tutrix of her minor son, and to permit her to amend her pleadings accordingly.


text:
    No. 11,890
    Orleans
    FINNEY v. BANNER CLEANERS & DYERS, INC., ET AL.
    (March 10, 1930. Opinion and Decree.)
    (April 7, 1930. Rehearing Refused.)
    (May 5, 1930. Writ of Certiorari and Review Refused by Supreme Court.)

      John C. Hollingsworth, of New Orleans, attorney for defendants, appellees.
    Eraste Yidrine, of New Orleans, attorney for plaintiff, appellant.
   HIGGINS, J.

This is an action to recover damages for personal injuries which plaintiff alleges he sustained on March 23, 1927, at 8:30 a. m., when he was suddenly, violently, and without warning struck from the rear by a heavy door or gate which one of defendant’s . employees opened, causing him to fall in front of an auto-truck which ran over his left foot fracturing three of the metatarsus bones. The suit is against the owner of the truck and the owner of the property, which - — - the employer of the party who opened the door, in solido.

The respondent owner of the truck was dismissed from the suit on an exception of no cause of action, on the ground that the allegations in the petition showed that the driver of the truck was free from fault or negligence. Plaintiff .did not appeal from this judgment.

The other defendant, which was the owner of the property where the gates or doors were located and the employer of the party who opened the gates or doors, filed an exception of no cause of action which was overruled. It then answered denying liability and pleaded contributory negligence on the ground that the plaintiff was negligent in failing to observe the doors or gates and in standing too close to them; and further pleaded assumption of risk on the ground that a building of the defendant was being repaired by third persons who used the alley and that plaintiff assumed the risk incidental thereto.

On the trial of the case on the merits there was judgment in favor of defendant dismissing the suit, and plaintiff has appealed.

The record shows that there is a ¡paved alley 11 feet 7 inches in width running from Camp to St. Charles street between Julia and St. Joseph streets, this city. The rear of defendant’s property abuts the alley. Four years before the accident double solid doors or gates were constructed which opened into the alley. At the time of the accident, defendant was having its building repaired and remodeled, and plaintiff, a negro 64 years of age, was engaged as the foreman by the subcontractor who had a contract for repairing the roof on the building. It appears that the alley is a common one for the use of the owners of property abutting it, and that it is used both by vehicles and pedestrians. The plaintiff was engaged in preparing tar and necessary tools for the crew that was to go on the roof of the building and had taken these tools and buckets from a building on the downtown side of the alley, and observing that there was a truck coming into the alley from Camp street, he, stepped across the alley to which he considered a place of safety. He placed the buckets on the ground and his back was towards the double solid gates or doors located on defendant’s property. When the truck was in close proximity to him and while in a stooping position, the double doors or gates were suddenly, forcefully, and without warning opened, striking the plaintiff from the rear, causing him to fall in front of the truck, which ran over his left foot fracturing three bones. He was taken to the Flint Goodridge Hospital, where he was treated for his injuries.

Plaintiff is the only one who testified as to how the accident occurred. The party in the employment of the defendant who opened the doors or gates was not produced as a witness.

Plaintiff contends that as the employee of the defendant who opened the doors or gates knew that they opened outwardly and that the alley was a common one traversed by pedestrians and vehicles, he was guilty of negligence and carelessness in suddenly, without warning, and with force opening the door, through which he could not see, in disregard of the rights of those who might be using the alley, and therefore defendant is liable.

Defendant contends that it was not negligence on the part of its employee to open the doors or gates, as he could not foresee that anyone would be standing by them and that he did not owe the plaintiff any duty of anticipating his presence or that of the truck; that the plaintiff saw or should have seen the double doors or gates and realized that they might be used at any moment, and having assumed a position of danger, he was guilty of contributory negligence which bars his recovery; and that plaintiff assumed the risk incidental to the use of the alley.

If the doors or gates swung outward over the sidewalk and defendant’s employee had suddenly without warning and with force opened them and injured a pedestrian, it is obvious that it would be a case of liability. It is equally plain that if the doors or gates had been opened in a similar manner and had struck someone who was riding on a vehicle passing at the time through the alley, the defendant would be liable. Can it be said that because the plaintiff was on foot the defendant did not owe him any duty to use precaution and care in opening the doors? We believe not. The plaintiff was lawfully in the alley. The defendant’s employee knew that workmen were engaged in the repair and remodeling of the building and were frequently using the alley where they were preparing the material for their work. He also knew that the doors or gates swung outward into a narrow alley. Defendant’s employee was therefore at fault in opening the doors suddenly with force and without warning when he was unable to see if there was anyone passing or standing in front of the doors at the time. He failed to use such care and precaution as an ordinary prudent person should have exercised under the circumstances. Civ. Code, art. 2315; Civ. Code, art. 177; 45 C. J. 861.

Plaintiff testifies that he did not notice the doors, but even if he did notice the doors he would not be guilty of contributory negligence in failing to observe that the doors opened outwardly, or in assuming that if the doors were opened that the party opening them would give some warning and use precaution and care. He had a right to assume that the doors would not be suddenly, forcefully, and without warning, opened so as to knock him down. The plea of contributory negligence is not well founded.

We do not believe that there is any merit in the special plea of assumption of risk, as the party who opened the doors was in the defendant’s dyeing and cleaning business and not employed in the repair and remodeling of the building. The risk was not incidental to the nature of the work that plaintiff was doing.

Defendant further contended that a reasonably prudent person could not have foreseen that a truck would be passing at the time that the doors were opened and that the plaintiff would be knocked into the path of the on-coming truck. It is immaterial that defendant’s employee may not have foreseen or been able to foresee the particular consequences which followed his negligent act. “That the particular injurious consequence was ‘improbable’ or ‘not to be reasonably expected’ is no defense.” Payne vs. Georgetown Lumber Company, 117 La. 983, 42 So. 475, 477.

“The fact that the accident that happened in this case was an- extraordinary one does not relieve the defendant from liability. In Payne v. Georgetown Lbr. Co., 117 La. 983, 42 So. 475, where the negligent act of a servant of the defendant caused injury to the plaintiff, it was said to be no defense that the particular injurious consequence was unforeseen, improbable, and not to have been reasonably expected, so long as it was the natural consequence of the negligence of the defendant’s servant. Quoting Wharton’s Law of Negligence (2d Ed.) par. 77, it was observed that the consequences of negligence are almost invariably surprises; that a man may be negligent in a particular matter a thousand times without mischief; yet, though the chance of mischief be only one in a thousand, if the mischief or injury does occur, the person to whose negligence it is imputable is liable in damages.” Atkins vs. Bush, 141 La. 180, 74 So. 897, 899, L.R.A. 1917E, 809.
“That accident resulting in death was exceptional, unnatural and unforeseen, does not relieve one, whose negligence caused it, from liability.” Lasyone vs. Zenoria Lumber Co., 163 La. 185, 111 So. 670.

As to the quantum the doctor who treated plaintiff testified that an examination and x-ray picture showed that plaintiff suffered a fracture of the second, third, and fifth metatarsus bones of the left foot and he treated him for a period of ten months. The doctors also testified that the plaintiff was suffering from hyp erar thritic neuritis of both legs which prolonged his condition of disability, but that he was unable to say that the neuritis was in any way attributable to the accident. The amount of damages, therefore, for the personal injuries will be limited to the actual injuries sustained as a result of the truck passing over plaintiff’s foot. Defendant was earning $27 per week and worked regularly.

We believe that the sum of $1,250 would be reasonable to cover the injury, pain and suffering, and loss of earnings. Plaintiff also claims the sum of $100 for doctor’s bill, $3.50 for hospital fee, and $10 for x-ray picture. These amounts are uncontested and appear to be reasonable, and will therefore be allowed.

It is therefore ordered, adjudged and decreed that the judgment appealed from be and it is annulled, avoided, and reversed, and it is now ordered that there be judgment in favor of plaintiff, Charles Finney, and against the defendant Banner Cleaners & Dyers, Inc., in the full sum of $1,363.50 with legal interest from judicial demand until paid. Appellee to pay all costs.


author: WEBB, J.

text:
    No. 3765
    Second Circuit
    ANGELO v. JOHNS
    (March 24, 1930. Opinion and Decree.)
    Cook & Cook, and C. D. Egan, of Shreveport, attorneys for plaintiff, appellant.
    Frank A. Blanchard, of Shreveport, attorney for defendant, appellee.
   WEBB, J.

This action for damages arises out of a collision between motor vehicles. An automobile driven by plaintiff and an automobile owned by defendant and driven by one of his employees collided at the intersection of Marshall and .uake streets in the city of Shreveport. The cars entered the intersection on Marshall street, the automobile from the south and the motortruck from the north, plaintiff driving the automobile intending to cross the intersection, and the driver of the motor-truck intending to turn to the left into Lake street.

Plaintiff alleged that the driver of the truck had made a short turn, or. “cut the corner,” passing north of the center of the intersection in violation of the traffic law, and that his negligence was the sole cause of the collision, which was denied by defendant, and plaintiff appeals from a judgment rejecting his demands.

There were three witnesses called by the parties who claimed to know something of the accident, plaintiff appearing in his own behalf, and the driver of the truck and a young man who was near the scene of the accident, on behalf of defendant, and their testimony is conflicting.

Plaintiff said that he was driving at a speed of from fifteen to eighteen miles per hour and that he did not see the truck until the moment of the collision, and, relative to the place on the intersection where the collision occurred, he said, at one time, that his car had almost reached a point north of the signal light, which is suspended over the center of the intersection, and, at another, that his car was near the northeast corner of the intersection; while the driver of the truck first stated that the collision occurred at a point on the intersection northeast of the signal light, and at another time that it occurred under the traffic light; and the evidence of the young man as to the place was to the same effect; however, both of the witnesses for defendant stated that the truck had not made a short turn, and that it had proceeded beyond the center of the intersection and that the driver of the truck had given the statutory signal before making the turn.

It is evident that the parties did not know exactly where the collision occurred and that their testimony was based upon impressions made after the accident occurred, and while the evidence shows that the collision occurred near the center of the intersection, we do not think it establishes that the collision occurred north of the center of the intersection; and although the evidence, considered as a whole, indicates that both of the drivers of the vehicles were inattentive, or their attention was directed to the signal light and not the traffic on or approaching the intersection, and that both may have been guilty of negligence in that respect, we do not think the evidence established that the driver of the truck made a short turn, or that the accident was due to his fault.

The judgment is therefore affirmed.


author: ODOM, J.

text:
    No. 2696
    Second Circuit
    KANSAS CITY SOUTHERN RY. v. BAKER GASOLINE CO.
    (April 10, 1930. Opinion and Decree.)

      Wilkinson, Lewis, Wilkinson & Burford, of Shreveport, attorneys for plaintiff, appellee.
    Harry V. Booth, of Shreveport, attorney for defendant, appellant.
   ODOM, J.

The plaintiff, a common carrier, hauled for and delivered to the defendant company a number of cars in the years 1923 and 1924, on which, it is alleged, defendant is due certain demurrage or storage charges amounting to $766. This suit is to' recover that amount. Defendant in answer denied any indebtedness whatever and set up the following defenses:

1. That the cars on which plaintiff claims demurrage or storage charges are leased cars of the Solar Refining Company and subleased to defendant, and that plaintiff has no interest in or control over said cars;

2. Thát plaintiff at no time, either in writing or verbally, notified defendant of the arrival of said cars on the switch track for the purpose of being unloaded;

3. That plaintiff in making said charges discriminated against it, “in that plaintiff corporation has on various instances remitted charges of this nature to other consignees receiving shipments under similar circumstances.”

Counsel in his brief filed in this court concedes that the demurrage or storage charges as shown on plaintiff’s itemized statement are correct. But he insists that for the reasons specially urged in the answer, as above noted, defendant owes plaintiff nothing. We dispose of the defenses in the order named.

1. A reading of counsel’s brief discloses that he did not stress the defense urged in his answer that plaintiff was not the owner of the cars on which the demurrage was charged, and the point is not mentioned in his assignment of errors. However, we do not think this defense is good.

The “National Car and Demurrage Rules,” approved by the Interstate Commerce Commission and filed in evidence provide:

Rule 1, section. A: “Cars of either railroad or private ownership, held for or by consignors or consignees for loading, unloading, forwarding directions or for any other purpose (including cars held for loading company material unless the loading is done by the railroad for which the material is intended and on its tracks) are subject to these demurrage rules, except as provided in Section B.”

Section B of the same rule reads, in part, as follows:

“The following cars are not subject to these demurrage rules:
“4. (a) Private cars on private, tracks when the ownership of the car and track is the same.”

In a note under the above-quoted rules, a private car is “a car having other than railroad ownership. A lease of a car is equivalent to ownership.”

These were private cars, not being owned or leased by the plaintiff railroad company. They were owned at one time, it seems, by the “Car Trust Company,” leased to the Solar Refining Company, and subleased to the defendant company, which, it appears finally acquired ownership of them. If the owner of the cars had owned the track also, no demurrage would be due under the above-quoted rules, but the track was not owned by the owner of the cars. The track was owned by the plaintiff company. It was built under a contract between the plaintiff railway company and the Arkansas Fuel Oil Company, of West Virginia, which contract is dated April 17, 1924, and provides in specific terms that the railway company is to be and remain the owner of it. Under the heading “Ownership,” it is stipulated:

“The title and ownership of said sidetrack shall be vested as follows:
“That all rails, switch fixtures, fastenings, etc., and all other material used in the construction of said track which is located on the right of way and lands of the Railway Company, shall during the existence of such agreement and at all times hereafter be the property of the Railway Company, and that the second party shall have no right, title or ownership in such rails or other material with which said track is laid, and the first party may take up and remove the property so owned by it whenever such track is abandoned or taken up. The second party shall not acquire or claim any right of interest in the right of way or lands of the Railway Company occupied by the tracks herein provided for, or used in connection therewith. * * •”

It is therefore perfectly clear that the cars were subject to demurrage charges.

2. Defendant’s second ground of complaint is that the plaintiff company gave no notice either verbally or in writing, of the arrival of cars to be unloaded. This defense is not good for two reasons: First, under the National Car Demurrage Rules, under the heading “Notification” (section C, Rule 4), it is provided:

“Delivery of cars upon other-than-public-delivery tracks or upon industrial' interchange tracks, or written notice sent or given to consignee or party entitled to receive same, of readiness to so deliver, will constitute notification to consignee.”

These cars were not delivered on a public delivery track or an industrial interchange track. The track on which they were delivered was a private industrial track. Under the rules, the mere delivery of the cars upon such track constituted notice to the defendant consignee. Counsel for appellant contends that this track was not an industrial track, and in his assignment of errors ne states: “The court erred in holding the spur track in question an industrial track.”

We fully concur with the district judge in his holding that the spur track on which these cars were delivered is an “industrial track.” We do not find in the law books or elsewhere a definition of the term “industrial track,” and we are referred to none. An “industrial track,” as the term is generally used, is one which is built and maintained to serve some private individual or industry under an agreement between the railroad company and such individual or industry as to rates and special service. In some cases they were used by more than one individual or industry. Unlike what are usually referred to as “public tracks” or “team tracks” or “house tracks,” they are not used by the general public. The latter are built and maintained by the railroad company for the use and convenience of its patrons in loading and unloading freight. That this track was intended to be and is an industrial track, as that term is understood by railroad men and the heads of industrial enterprises, is conclusively shown by the contract itself. The contract is written under the heading “Industry Track Agreement.” The Arkansas Fuel Oil Company is referred to all through as an “industry,” as shown by the following quotation from the preamble, or introduction:

“Whereas, the Industry desires track facilities, hereinafter called sidetrack, for the economical and convenient conduct of the business of the Industry, at or near Cedar Grove. * * *”

The testimony shows that this track was used by industries other than defendant, and it is contended that for that reason it was a “public track.” The railroad company, in the contract under which it was built, reserved the right to permit other industries to use the track. It was never used by the public generally, but only by those who had special permits. Such use did not make it a public track.

The cars, having been delivered on a track other than a “public delivery” track or an industrial interchange track, the defendant consignee had notice, as required by the rules filed in evidence, which, admittedly, are binding on both parties.

In the second place, there is nothing in the testimony to show or even suggest that defendant did not have actual notice of the arrival of the cars or that it was prejudiced by the lack of actual notice if it had none. Mr. Rowe, who seems to have been at the head of the defendant corporation, testified that as soon as he received invoices for the cars, he told his employee, Mr. Bloxon, who attended to the unloading of the cars, to be on the lookout for their arrival. Mr. Bloxon testified that he personally went upon and watched the track every day for cars, and further that all cars set out for defendant were prominently and plainly marked. There is nothing to show, and in fact it is not contended, that defendant did not in all cases know of the arrival of the cars immediately after they were placed.

3. The defense — if such it may be called —that plaintiff by charging it demurrage discriminated against it in favor of others, seems to have been abandoned, as it is not mentioned in defendant’s brief, and for that reason we shall not discuss it.

Defendant sought to introduce testimony showing that plaintiff did not place the cars on the tracks at places convenient for unloading. Counsel for plaintiff objected to such testimony on the ground that no such defense was set up in the answer and the objection was sustained by the court. Counsel for defendant complains of this ruling. We think it was correct.

For the reasons assigned, it is ordered and decreed that the judgment appealed from be affirmed, with costs in both courts.