author: HIGGINS, J.

text:
    No. 11,981
    Orleans
    SCHAUMBURG v. NASH-MISSISSIPPI VALLEY MOTOR CO., INC., ET AL.
    (July 1, 1930. Opinion and Decree.)
    Guión & Upton, of New Orleans, attorneys for plaintiff, appellant.
    John May, of New Orleans, attorney for defendants, appellees.
   HIGGINS, J.

This is a suit for damages for personal injuries and loss of wages alleged to have been sustained as a result of a Nash automobile striking' the plaintiff at the intersection of Dumaine, North Peters and Decatur streets in this city on April 12, 1926, about 10:15 p. m. The action is brought against the Nash-Mississippi Valley Motor Company, Inc., on the ground that one of its agents and employees was negligently operating its automobile for its use and benefit within the scope of his duties, and against Charles L. Poche, the driver of the car, on the ground that he was operating the Nash .car at an excessive rate of speed at a dangerous street intersection and failed to keep a proper lookout. „

The defendant Nash Company interposed the following defenses:

First, that the defendant Poche at the time of the accident was not acting as the agent or employee of the Nash Company for its use and benefit and was not upon the company’s business, but upon a venture of his own; second, that Poche was not guilty of negligence, and, in the alternative, third, that the plaintiff was guilty of negligence directly contributing to the accident.

The defendant Poche resisted the plaintiff’s claim upon the second and third defenses above stated.

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

We shall take up the issues presented in the above order.

The record shows that Poche was employed by the Nash Company in the capacity of a trimmer and upholsterer. It was not a part of his duty to demonstrate automobiles or to use them in any way for the company’s account. Mr. E. R. Spiller, who was the superintendent of agencies of the Nash Company, bought a Nash car at Lafayette, La., with his own funds, and the Nash Company had no interest in the ownership of the car. Spiller, desiring to sell the car, left it at the Nash Company’s place of business and authorized the sales agents to sell it for his account, agreeing to ¡pay commission to the particular agent who sold it, but the Nash Company was to receive no part of the commission. On the day of the accident, Poche had completed his work about eight o’clock p. m., and, while still in overalls which had the name of the Nash Company sewed on them, borrowed Mr. Spiller’.s car from a salesman by the name of Greenblatt, who had the key to the car. The dealers’ license tag was attached to the automobile and Poche drove it from the company’s place of business on St. Charles street down to Canal street, and thence downtown on North Peters street to the vicinity of the French Market, where he went to get something to eat. Before leaving the company’s place of business Poche had punched his time card, ceasing his labors for the day.

After completing his meal he proceeded up North Peters street towards Canal street for the purpose of returning to the place of business of the Nash Company in order to change from his overalls to his street clothes, so that he might go home in the street car. While Poche claims that the automobile was parked in the triangular space customarily used for parking automobiles, the great preponderance of the evidence shows that he came from the direction of St. Philip street, one block below the French Market, just before the accident.

The accident happened where Dumaine street crosses Decatur and North Peters streets. A triangular section of the French Market extends from St. Philip street toward Dumaine street, bounded on one side by North Peters street and on the other side by Decatur street. The market proper, however, stops short of Dumaine street, but lines drawn parallel to the market’s sides would meet at a point approximately at Dumaine street. There is, thus, an imaginary triangular piece of ground where the market would be if extended, and which merges into Decatur street and North Peters street, these two streets coming together at Dumaine street. There do not seem to be any curbs or other indications of boundary of this triangular piece of ground, which, in fact, might appear to be a part of either Decatur or North Peters street. There seems to be a general recognition of the fact that such constitutes a sort of neutral ground, and in fact, it is used as a parking place for automobiles. On North Peters street there are two street car tracks, the one nearest the river being used by cars going downtown, the other by cars going uptown.

At the time of the accident there was a red light in the center of this intersection as an indication that it was a dangerous street crossing. On the night in question the plaintiff, who was a night yardmaster for the Southern Pacific Railroad, went to a restaurant on Dumaine street to get something to eat and was returning to work on the downtown sidewalk .of Dumaine street, going in the direction of the- river, near which the railroad yards are' located.

The great preponderance of the evidence shows that the plaintiff crossed Decatur street within the paved triangular portion and was proceeding across North Peters street and was just past the center of the street towards the river side of North Peters street when the Nash car driven by Poche, who was alone, at a rate of speed estimated at thirty, or thirty-five miles an hour, came from the direction of St. Philip street proceeding on North Peters street in the direction of Canal street. The automobile was on ’ the left-hand side 'of the street in the direction in which it was going and then pulled over towards the right-hand, or woods side of the street and plaintiff attempted to get out of the way of the on-coming automobile when he was struck by the right front fender of *the machine. The blow knocked him to the ground unconscious and injured his left leg. The machine then stopped some distance away, estimated about one hundred feet from where it struck the plaintiff, and Poche backed the machine to the scene of the accident, placed the plaintiff in the car and took him to the Charity Hospital, where his injuries were treated. He returned home that night, and the next day was placed in Touro Infirmary, where he remained fourteen days and was treated by Dr. Denegre Martin.

There were four witnesses to the accident, including the plaintiff, who testified in his behalf. The only witness to the accident for the defendants was Poche.

The evidence of the officers of the Nash Company that Poche was without authority to use the automobile and that he used it for his own purposes, that the company did not own the automobile, but that it was owned by Spiller, who likewise testified to the same fact, is uncontradicted.

The fact that Poche was wearing overalls with the Nash Company’s name on them at the time of the accident and was using the Nash Company’s dealer’s license tag does not, in our opinion, overcome the clear preponderance of the evidence that Poche was- acting without the scope of his employment on a venture of his own and was not authorized by the company to use its license tag or the automobile which had been left with it to be sold. It is shown that Greenblatt, a mere .salesman who had the car in charge for demonstration purposes, was without au thority to loan it to Poche for his personal use. Where a servant has abandoned and turned aside entirely from the master’s business and engages in some purpose wholly his own, the master» ceases to be liable for .his acts. Cusimano vs. Spiess Sales Co., 153 La. 551, 96 So. 11S.

We have, therefore, reached the conclusion that the Nash Company is not liable.

We are of the opinion that Poche was guilty of negligence in operating the automobile at an excessive rate of speed at a dangerous street intersection where he should have anticipated that pedestrians might cross, and in failing to keep a proper lookout while approaching a dangerous crossing. At street intersections in large cities, where the traffic is heavy and congested, drivers of automobiles are required to use the greatest care and caution so as to prevent and avoid accidents. When approaching such places automobiles should be placed under control, as to speed and movement, and a proper lookout should be maintained. In the case of Da Ponte vs. Uzzo, 5 La. App. 105, this court said:

“Upon approaching the intersection of two much frequented streets within the limits of this city, it . is the duty of a chauffeur to check up his speed and to use more than ordinary care to avoid injury to persons or property.”

In Berry on Automobiles (4th Ed.) p. 298, sec. 312, it is stated:

“Pedestrians and' automobile drivers have, aside from statute or ordinance changing the rule, equal rights in the use of highways. Each must use the highways with deference to the rights of the other, and in the exercise of reasonable care to avoid injuring the other and for his own safety'.
“The person having the management of the automobile and the traveler on foot are both required to use. such reasonable care as the circumstances of the case demand, and exercise of greater care on the part of each being required where there is an increase of danger.
“The right of the plaintiff as a pedestrian to free and unobstructed passage also has not been abridged by modern conditions of travel. There is no law or principle of law, or of reason, which confines foot-passengers to particular crossings. Such a restriction would be very inconvenient and annoying. The street should be kept in such condition that foot-passengers may be able to cross, with a reasonable degree of safety, using proper care themselves at any and all places.”

In section 313, p. 301 thereof we find:

“* * * The pedestrian, like the driver of an automobile in the exercise of ordinary care for his own safety and for the safety of others, is required to anticipate the presence of persons and vehicles upon the highway; but it cannot be said that the duty which is upon the pedestrian is as urgent as that devolving upon the driver of an automobile, for the foot-passenger’s action or inaction in 'the premises is far less important to the other users of the highway. ‘The impact of the body of a pedestrian, absorbed in his own meditations, upon a passerby, might be measurably uncomfortable, but it would seldom be hazardous to either life or limb, whereas the impact of an automobile in motion while the driver is asleep might cause as certain death as if the injured person had been wilfully pursued and wantonly crushed.’ ”

Poche testified that he was parked within forty feet of where the accident occurred, had not shifted from second gear, and was running at about fifteen miles an hour at the time he struck plaintiff; that there was another automobile on his right side, proceeding on North Peters street in the direction of Canal street, the same way he was going, and that the plaintiff ran directly in front of the other automobile, and, apparently unable to see the car he (Poche) was driving, ran into the front part of the car- near the right front side of the hood, and that he immediately stopped at the scene of the accident.

Poche, however, is .contradicted by the plaintiff and three other witnesses, one of whom saw him coming at a great rate of speed from the direction of St. Philip street, a block below the market. He was also contradicted by a special officer, as well as other members of the train crew, who were at the crossing on Dumaine street, the scene of the accident. They corroborated the plaintiff’s version that Poche was driving the car at an excessive rate of speed,' and that plaintiff had crossed the street to within about twelve or fourteen feet of the river curbing of North Peters street at the time he was struck. Plaintiff testified that he saw the Nash car coming some one hundred and fifty feet down the street, and that it had room to pass him either on the river or lake side of the street; that if the car had continued on its course it would have passed the plaintiff in safety, but that Poche suddenly swerved the car towards the right and ran into plaintiff. We are of the' opinion that the clear preponderance of the evidence shows that the accident was caused by the fault of Poche, and that the plaintiff was not guilty of negligence.

Counsel for plaintiff, in seeking to hold the Nash Company, has referred us to section 269 of Berry on Automobiles (4th Ed.) in which the author states that it was held in Massachusetts that, where license number plates were loaned by the dealer to the owner of an automobile, the dealer would be held liable for damages on the theory that he intentionally assisted and participated in creating a nuisance in violation of the rights of travelers upon the highway in permitting another to use the license number plates in violation of a statute of the state. The author’s authority was McDonald vs. Dundon, 242 Mass. 229, 136 N. E. 264, 26 A. L. R. 1243 (1922). Counsel also cites the case of Gould vs. Elder, 219 Mass. 396, 107 N. E. 59, to the same effect.

We might say that it would be with great reluctance that this court would follow the above doctrine, but we do not believe those cases are pertinent here, because the evidence shows that the Nash Company did not intentionally, through any authorized agent acting through the scope of his employment, lend the license plates to the defendant Poche; further, there is no statute in this state that makes it a nuisance for a man to be upon the public highway without the proper registration of his automobile, as appears to be. the case in Massachusetts. Lastly, we might add that we see no causal connection between the accident and the lending of the license plates, even if their use had been properly authorized.

As to the quantum, Dr. Denegre Martin, who is the surgeon for the Southern Pacific Railroad, by which plaintiff was employed as yardmaster, and who treated plaintiff, says that he had a contusion of the left knee, evidently a laceration of the ligaments, “with some ecchymosis and a contusion of the left arm which was minor, and the principal injury was to his left knee” that "it was simply a question of rest and the application of heat — that ?s all; no operation”; that - he aspirated the left knee, as plaintiff had some diffusion in that knee; that the drainage of the left knee was not a serious matter, but was done for relief; that these injuries to the knee are always painful; that he thought plaintiff was on the road to recovery or would not have discharged him; that you cannot tell if these knee injuries are permanent or not, as that is something which depends upon the patient.

Plaintiff also testified that he suffered severe pains; that he was rendered unconscious for two minutes as a result of being thrown to the ground by the car; that he had to have two stitches in his side, and his left leg was bruised from his hip to his toes. It further appears that ¡plaintiff was taken to Charity Hospital, where he was treated for his injury on the night of the accident; and the next day he went to the Touro Infirmary, where he remained fourteen days. He lost two months from his work and was earning $270 a month. The Southern Pacific Railroad paid all the medical expenses. We shall therefore allow for the loss of earnings for two months at $270 a month, or $540. For pain and suffering and for the injuries above described we have concluded to allow him the sum of $750.

For the reasons assigned the judgment appealed from, insofar as it dismisses plaintiff’s suit against Charles L. Poche, is reversed, and it is now ordered that there be judgment in favor of Walter C. Schaumburg, plaintiff, against Charles L. Poche, defendant, in the full sum of $1,290, with legal interest from judicial demand until paid, defendant Charles L. Poche to pay the costs of court in both courts; and in all other respects the judgment appealed from is affirmed. <■


source: Caselaw Access Project

license: Public Domain

text:
    No. 13,403
    Orleans
    BUSSEY v. BARILLEAUX ET AL.
    (June 2, 1930. Opinion and Decree.)
    (July 1, 1930. Rehearing Refused.)

      (No Syllabus)

    Dart & Dart and H. Grady Price, of New Orleans, attorneys for plaintiff, appellee.
    F. B. Freeland, of New Orleans, attorney for defendants, appellants.
   HIGGINS, J.

This case involves the same question of jurisdiction presented in the case of Bussey vs. Wise-Miller et al., 129 So. 166, page 104 herein, this day decided, and is between the same parties. The only difference is that the amount of the contract sought to be rescinded in this case is $4,650 and the amount of the deposit sought to be recovered is $465.

For the reasons assigned in Bussey vs. Wise-Miller et al. and in Hunley vs. Ascani et al., 129 So. 164, page 95 herein, both this day decided, it is ordered, adjudged, and decreed that the appeal herein be transferred to the Supreme Court of Louisiana, to be disposed of according to law, the transfer to be made within thirty days after this judgment becomes final, and, if not so made, then the appeal shall be deemed dismissed; the plaintiff and appellant to pay the costs of appeal in this court, the remaining costs to abide the final determination of the case.

Appeal transferred to Supreme Court.


author: MOUTON, J.

text:
    No. 664
    First Circuit
    CHENEVERT v. KIMBALL
    (June 30, 1930. Opinion and Decree.)
    B. R. Miller, of Baton Rouge, attorney for plaintiff, appellee.
    Jas. D. Womack, of Baton Rouge, attorney for defendant, appellant.
   MOUTON, J.

September 21, 1929, Mrs. Flossie Chenevert, wife of the (plaintiff, was driving an auto which collided at the intersection of Gayosa and North Eighteenth 'street in the city of Baton Rouge with a car defendant was driving. North Eighteenth street runs north and south; Gayosa street east and west through the city of Baton Rouge, crossing each other at right angles, thus forming the intersection where the collision occurred.

Defendant was traveling northward at the time, and Mrs. Chenevert was going westward. She testifies that, as she approached the intersection, she stopped her car, gave the usual signal, and saw the car of defendant, then a block away, turning from the corner of North street into North Eighteenth street coming towards the intersection, and at a lively rate of speed, according to her testimony. She says, judging the distance at which defendant’s car was at that time, she assumed she had all the time she needed to pass ahead of his car, but that, when she got in the center of the intersection, defendant was coming so fast, that she accelerated her speed to get out of his way, but without avail, and that her car was run into by defendant’s auto.

The version of the accident given by defendant is altogether- different. He says they reached the intersection of Gayosa and North Eighteenth streets practically at the same time; that he blew his horn; that he looked towards the other end of the street to see if any cars were coming from that direction, but, as he -turned his eyes in the direction he was traveling, Mrs. Chenevert drove suddenly in front of his car; and that, though he did all in his power to avoid the collision, he unavoidably ran against the front door of her car. His testimony is that he was then traveling at about twelve or fourteen miles an hour.

In the first statement made by Mrs. Chenevert in reference to the part of the intersection where she said her car was struck, she said that her car was then about two or three feet beyond the middle of the intersection, but she thereafter corrected herself and explained that she meant two or three feet beyond the intersection.

Mr. Efferson and Mrs. Cox, who were in 'the immediate vicinity of the intersection and heard the crash caused by the impact of the cars, went immediately to the scene, and both testified in reference to the position of plaintiff’s car after the accident.

They both say that it was clear across North Eighteenth street, and beyond the intersection, facing west on Gayosa street. Mi’. Efferson says that half of Mrs. Chenevert’s car was on the sidewalk, with tbe back wheels on Gayosa street. The position of Mrs. Chenevert’s car after the collision indicates that she was struck after she passed the center of the intersection where she testifies- she had “speeded up” when she saw defendant’s car, at the rate it was moving, would run into her car.

Her version of the occurrence is sustained by the physical facts of the case, to which we have referred, and shows that she entered the intersection before defendant got to it, and in fact had passed the center before she was struck by the other ear. *

It is true that defendant was traveling on a right of way street, but, as Mrs. Chenevert entered the intersection first, defendant should have respected her right, and allowed her to proceed. Pope vs. Locascio et al., 13 La. App. 304, 126 So. 728; Middleton vs. Jordan, 10 La. App. 189, 120 So. 668; Marshall vs. Freeman, 10 La. App. 12, 120 So. 414.

Poirrier, witness for defendant, testifies that just prior to the accident, defendant passed ahead of him on North Eighteenth street while going towards the intersection. He says defendant passed ahead of his car, which was going at the time about fifteen miles an hour, and ran ahead of him about four hundred feet. Counsel for defendant points out that his witness must have been in error in this .respect, as the block from the corner of North street to the intersection was only three hundred feet in length. Counsel’s statement is true as to the length of the block, but, though his witness was mistaken in reference to the distance defendant’s car had gone ahead of him, the fact remains, however, that he ha.d left Poirrier’s ear far behind, and must therefore have been moving at an extremely lively rate of speed.

We believe he was, and which we think accounts for his running into the other car, for which he was correctly held in damages for the amount decreed.


author: MOUTON, J. LeBLANC, J.

text:
    No. 509
    First Circuit
    BOUANCHAUD v. STANDARD COFFEE COMPANY
    (December 3, 1929. Opinion and Decree.)
    (December 30, 1929. Rehearing Granted.)
    (June 30, 1930. Opinion and Decree on Rehearing.)
    Bouanchaud - & Kearney, of New Roads,, attorneys for plaintiff, appellee.
    Michel Provosty, of New Orleans, attorney for defendant, appellant.
   MOUTON, J.

The sheriff and tax collector of Pointe Coupee parish, alleging that defendant company was pursuing the business of a peddler in that parish in the year 1928, without first obtaining state and parish licenses, brought this suit for the collection of these licenses.

The district judge rendered judgment against defendant for $200, amount for state license, but declined to hold the company for the parish license for lack of necessary proof.

The sole question here is as to whether defendant company was a peddler.

The business establishment of defendant is located in New Orleans. The defendant denies it is engaged in the business of hawking or peddling, but says that on the contrary it is engaged in selling coffee, tea, spices, and other merchandise, direct to the householders on the orders of its salesmen usually given by housewives a week or two prior to the shipment of these articles from New Orleans, from where they are shipped for delivery. Defendant contends that the base of its business operation is in New Orleans, from where its goods are distributed on orders given to its salesmen.

I. C. Richard, the record shows, was its route salesman in the parish of Pointe Coupee, where the goods in question were purchased.

The question presented is as to whether Richard went from house to house, place to place, etc., selling the goods he carried with him and delivered them at the time or immediately after the sale or without returning to the base of operation between the taking of the order and the delivery of the goods. If he made the sales with delivery at the time or immediately after the sale, or without returning to the base of operation between the order and delivery of the goods, defendant was a peddler under the terms of section 18, par. D, of Act No. 205 of 1924, as added by Act No. 241 of 1928, p. 348, sec. 2, amending section 2 of Act No. 299 of 1926, upon which this suit is brought.

The proof shows that defendant is engaged in the sale of coffee, but shows also that it sells other articles of commerce. It is in evidence that it usually sold coffee, and, in some instances, other goods to various customers in Pointe Coupee, on orders which had been previously taken by its salesman for delivery. In the sales thus effected defendant could not be, under the provisions of the statutes above referred to, classified as a peddler.

The record shows that coffee was generally sold under these prior orders and was brought to the homes of the purchasers in a truck from which delivery was made by Richard; also that other goods, such as soap, black pepper, etc., were likewise carried in the truck. It is also clearly established that soap and black pepper were sold by Richard to several housewives without any prior or previous orders given to him therefor, as was the case when coffee was purchased. The proof is that the soap and pepper thus sold were paid for cash and were delivered to them from the truck at the time of the sales, and certainly without returning to the base of the business operation of defendant company between the orders and delivery. The defendant was therefore peddling these goods through its salesman, Richard, and hence was a peddler under the terms of the statutes above cited.

Counsel for defendant says, in the case of Oden, Tax Collector, vs. Zachery, 6 La. App. 594, that this court held otherwise.

In that case it was shown that Bradford traveled in an automobile every two weeks in Allen parish, where he made the sales of the goods. In referring to Bradford, we said;

“Bradford says that defendant would take orders on one trip and make deliveries on the next trip.”

This statement of the court gives the gist of the question therein submitted and shows clearly that there was a return to the base of business operation which was in the parish of Rapides, between the taking of the orders, and the delivery. It also repels any inference to the effect that the goods were bought for cash, and immediately delivered, which was shown in the instant case.

Counsel for defendant relies with confidence on the case of Commonwealth vs. Ober, 12 Cush. (Mass.) 498. It is not necessary for us to make an extensive analysis of the opinion therein rendered. In that suit the court referred to the salesman as being a carrier, ‘‘delivering goods to persons who had previously ordered them,” which the record shows Richard was usually doing for defendant company. In referring to a purchase which had been effected under a prior order, the court in that case said:

“It was, in effect, a purchase of the same buyer from the same seller, of the same commodity, to a larger amount than previously ordered.”

In this case:

“It was in effect a purchase by the same buyers from the same seller.”

But right here the similarity between this and the cited case stops and ceases. And here, the purchasers were certainly not “of the same commodity, to a larger amount previously ordered” which constituted the basis for the decision quoted by counsel, in which the court concluded that the purchaser had simply enlarged his' previous order. Here, th^ purchases were not made to enlarge any prior orders.

The soap and black pepper were sold on the spot, for cash, and were delivered at the time from the truck in which they were carried by Richard with the coffee which he usually delivered every two weeks. These purchases were contracts distinct and separate from the ordinary purchases by previous orders. Evidently, they certainly did not constitute any enlargement of previous orders that had been placed with defendant company.

Our interpretation of our statutes is not at variance with the decision relied on by counsel for defendant, but is rather in harmony therewith as we understand the ruling of the court.

The record shows that Richard made about 17 sales of this soap and pepper. By a process of elimination adopted by counsel, he contends that these sales should be reduced to 12. Basing himself on this reduction, or even admitting that 17 sales were actually effected, counsel contends that these were isolated transactions and do not afford sufficient proof to show that defendant was engaged in peddling as a business. We are of the opinion that the, various sales to which we have referred show that the defendant was a peddler-» and that is all which is required under the statutes for the imposition of a license.

Finally, counsel contends that defendant being a corporation cannot travel on foot or on horseback, and does not come within the definition of peddler given in Act No. 299 of 1926, as amended by Act No. 241 of 1928, upon which this suit is based.

True it is that corporations are ideal beings that can be conceived only by the understanding, and are incapable of the performances to which counsel refers, still it is obvious that they can travel in autos, trucks, on foot, and on horseback through their salesmen or agents, which is- the case here.

Section 1 of Acts No. 299 of 1926 and No. 241 of 1928 provides for the levy of an annual license on all persons, association of persons, or corporations, etc., and, in section 2 requires the enforcement of a license from every peddler, hawker, etc.

The defendant is shown to be a peddler, for the reasons above stated, and comes within the grasp of those provisions of the statutes, which made it liable for a state license as was held below.

ON REHEARING

LeBLANC, J.

Defendant’s application for a rehearing having been granted, this case is before us again for further consideration.

A complete statement of- the issues involved is contained in the original opinion herein handed down, and it is unnecessary to repeat them here.

The same defenses are urged as were presented in the original hearing, and, as a further ground on which it resists the demand made on it to pay a peddler’s license, defendant calls attention to the fact that, after the decision in this case, the Supreme Court of the state, in the case of State vs. Louisiana Coca Cola Bottling Co., 169 La. 167, 124 So. 769, declared that section of the License Law relied on by the plaintiff unconstitutional. As we understand that decision, only a part of the section covering peddlers’ licenses under the License Law of 1926 was held unconstitutional, and this because of a defective title.

The direct point involved in the decision, was that, inasmuch as the Legislature, in attempting, by section 2 of Act 299 of 1926, to amend the title to and section 18 of Act 205 of 1924, incorporated in the body of the section, which defined peddlers, an additional class of persons without having so expressed its intention to ' do so in amending the title, so much of section 2 of the act of 1926 was stricken with nullity for failure to comply with the requirements of section 16 of article 3 of the Constitution of 1921.

It happened that the state was seeking to enforce the collection of a license against the defendant in that case as a peddler coming under the new classification embodied in the amending section of the law which defined peddlers, and, because of the defective title which rendered that part of the law unconstitutional, the state’s claims were rejected. In the present case, the license is sought to be enforced against defendant as a peddler in the ordinary and generally accepted meaning of that term, and the one the Legislature no doubt had in mind when it provided in the first part of section 18 of the Act of 1924 as amended by section 2 of the Act of 1926 that “each and every peddler and hawker * * * shall pay an annual license.” The same question of constitutionality cannot be raised, as the title of the act is indicative of what is contained in the body, so far as the term “peddler” taken in its general sense is involved, and therefore the decision in the case cited has no application here.

Further consideration of another ground of defense, however, has led us to a different conclusion than the one we reached in the original opinion and decision rendered herein. The ¿efense referred to is the one to the effect that the act of peddling, if 'there was any done in this case, was done by Richard, the salesman, and not by the defendant, and, as^ a principal cannot he taxed as a peddler for the acts of its agents, defendant is not liable for the license which the state is endeavoring to exact from it. Richard’s acts in selling goods a few times for cash, directly from the truck to the customer, were not only not sanctioned by the defendant, his employer, but, if anything, were in violation of the rules of their organization. Their method of conducting their business appears to be the result of a studied plan to get around the peddler’s license law, as their secretary in his testimony admits that, if their business left itself open to such license, it could not possibly be run profitably.

Peddlers’ licenses are imposed in an effort to regulate a practice which from earliest times was regarded with a great deal of suspicion. “They (in speaking of peddlers) have been in disfavor because of their annoying methods of solicitation, their financial irresponsibility growing largely out of their transient nature and their tendency to defraud in the sale of their own goods and to commit crimes collateral to their admittance to homes of householders.” 21 Ruling Case Law, p. 182.

From the evidence in this record, it appears that defendant’s business is of a nature that cannot be said to he anything like the class of business just described.

It is the act of peddling which the law seeks to control by exacting the license; and, as it is the person who actually solicits and makes the sale and delivery of the goods who is the peddler, he, naturally, is the one the law is trying to reach, and hot the owner of the goods. “The person actually making the canvass, sale and delivery is the peddler, and it is immaterial that title to the goods is in another for whom he is selling, because it is not the ownership of the goods that is important hut the manner of making the sale.” 21 Ruling Case Law, p. 186.

It is obvious, then, that a salesman, especially one who as in this case takes it upon himself, without authority, and in violation of his instructions, to exercise the functions and carry on the business of peddling his principal’s goods, cannot make the latter liable for a peddler’s license.

“It is clear that an agent may be a peddler while selling the goods of his principal even if he is compensated by salary rather than by commissions on his sales. * * * On the other hand the principal who does not make the canvass is not within the ordinary meaning of the word ‘peddler’ and it seems that the ordinary statute aims at the occupation only and not at the person who is in fact the peddler. As it is the business or occupation that is taxed, not the goods, and as it is a matter of no concern to the local authorities, who owns the goods proposed to be peddled, or what are the relations and connections between the persons who proposed to sell and any other person who may he the owner, the owner and principal is generally held not liable under the statute.” 21 Ruling Case Law, p. 203.

We have been referred to none, nor have we been able to find any decision of our Louisiana courts, bearing on this precise point, but the rule as laid down in the authority quoted from is supported by a number of decisions from other courts therein cited, and, as it appears to us to be sound and logical, we can very well follow it in this case.

Having adopted this view, it follows that we are bound to hold that our former judgment and the judgment of the lower court which condemns this defendant to pay a peddler’s license were both erroneous, and they should he set aside.

It is therefore now ordered that the judgment of the lower court and the original judgment herein rendered by this court be and they are both set aside, annulled, and reversed, and that there be judgment in favor of the defendant and against the plaintiff, dismissing his suit at his cost in both courts.


author: ODOM, J.

text:
    No. 3180
    Second Circuit
    PERRY v. J. M. LEWIS & CO. ET AL.
    (July 5, 1930. Opinion and Decree.)
    A. S. Drew, of Minden, attorney for plaintiff, appellee.
    Mclnnis & Campbell, of Minden, attorneys for defendants, appellants.
   ODOM, J.

The plaintiff entered into a contract with the Louisiana Highway Commission to build a public road in Webster parish known as “State Highway Project 411-C,” and sublet a portion of the work to Tyson & Tullos. In the months of September and October, 1925, J. M. Lewis & Co., sold to the subcontractors, Tyson & Tullos, certain goods, wares, and merchandise amounting to $530.95, and in the months of August, September, and Oetober of that year, C. C. Lewis, owner and proprietor of the Cash Feed Store, sold to said subcontractors feed for mules which they used in building the road, the bill amounting to $927.95. The subcontractors failed or defaulted in November, 1925, and the work which they had undertaken was taken over by the principal contractor, W. C. Perry. The subcontractors failed to pay the above-named accounts, and on November 5, 1926, these claimants filed and recorded sworn itemized statements of the amounts due them in the office of the recorder of mortgages for Webster parish, the parish in which the work was done.

When the work on the highway project was finally completed by Perry, the principal contractor, the highway commission refused to pay him the balance due on the contract price, but withheld, it seems, an amount sufficient to satisfy the above-named claims. Perry, the principal contractor, then brought the present suit or rule against the claimants, J. M. Lewis & Co. and the Cash Feed Store, C. C. Lewis, owner, to show cause why the claims or so-called liens filed by them and recorded should not be canceled and erased from the records of the parish, alleging that said liens are null, void, and of no force and effect for the following reasons:

1. That the claims were not sworn to and filed by the claimants in person;

2. That the goods and merchandise sold by J. M. Lewis & Co. are not such as give rise to a claim as contemplated under the law;

3. That under the law, those who furnish supplies to' subcontractors on public works are not entitled to a lien or claim against the unpaid balance due on the contract; and

4. That these claims, if valid, were not filed within forty-five days, as provided by law.

The defendants in rule answered admitting the facts alleged, but denied that the so-called liens are null, void, and of no effect, and alleged that under the law and the facts their claims are valid and should not be erased. The lower court rendered judgment ordering the registry of the claims canceled, and defendant C. C. Lewis, proprietor of the Cash Feed Store, appealed.

1. Plaintiff in rule contends that the claims filed are not valid and are of no force and effect because they were not sworn to and filed by the claimants in person. The facts are that the claimants put into the hands of their attorney, J. F. Mclnnis, itemized statements of their accounts and he made an affidavit setting out substantially that he was the agent and attorney for the claimants and that the account to which the affidavit is attached is true and correct; that the affidavit and itemized accounts are filed on behalf of the claimants to operate as a lien and privilege on State Highway Project 411-C, under contract to W. C. Perry.

The testimony given by the claimants and by Mr. Mclnnis shows that Mr. Mclnnis acted as agent for the claimants and was authorized to make affidavit and file and record' the claims. It is admitted that the accounts as filed and recorded are correct. That being true, we see no reason why the sworn statements of the amounts due the claimants, as filed and recorded, should not subserve the purpose intended; that is, to give notice to the highway commission, the authority letting the contract, that the amounts claimed were due the claimants. .The highway acts require that claimants shall file sworn statements of the amounts due them, “and any payments made thereafter by said authority (the authority letting the contract) Without deducting the amount of the claims so served on it” shall be at its own risk. Act No. 224 of 1918, sec. 2; Act No. 203 of 1924, sec. 1; Act No. 271 of 1926, sec. 3, amending Act No. 224 of 1918, sec. 2.

This is not a contest between the claimants and the highway commission, which seems to have recognized that notice served on it and the filing and recording of the claims were valid and binding. If any controversy had arisen between the parties as to whether the accounts filed by these claimants were correct as to the items or amounts claimed, it might be reasonably contended that an agent of the claimants did not possess sufficient information to enable him to verify the accounts. But no contention is made that the accounts are not correct; in fact, the record discloses an admission by counsel for plaintiff in rule that the accounts are correct. Under the circumstances, we think the contention that these claims are invalid because they were not sworn to and filed by the claimants in person, but by their agent, is without merit.

2. The contention that the claim of J. M. Lewis & Co. cannot be recognized under the law is well founded. Lewis & Co. sold to the subcontractors dry goods, groceries, axes, a wheelbarrow, and some harness. Such claims are not recognized by the law relating to highway contracts. See State vs. Smith, 167 La. 301, 119 So. 56.

3. It is. contended that those who furnish material, supplies, etc., to subcontractors on public works have no rights against the unexpended funds in the hands of the authorities letting the contracts. In support of this contention, counsel calls attention to the fact that Act No. 139 of 1922, in force at the time these claims arose, makes no mention of supplies furnished to subcontractors, and that under the ruling in the case of Ketteringham vs. Eureka Homestead Society, 140 La. 176, 72 So. 916, claims for material or supplies furnished subcontractors cannot be recognized under an act which does not specifically mention them. In the Ketteringham case, supra, the court had under consideration a claim which arose under Act No. 221 of 1914, which makes no mention of claims against subcontractors. Counsel points out that in 1916, the Legislature passed a similar act, Act No. 262, in which claims against subcontractors were included, and says this later act corrected the error or omission in the act of 1914. But in Act No. 139 of 1922 on the same subject-matter, reference to claims against subcontractprs is again omitted, and it is contended that the holding in the Ketteringham case is applicable here. The lower court took this view and held for plaintiff.

The error into which the court and counsel have fallen is in assuming that any of the above-mentioned acts apply to the issues involved in the case at bar. Counsel in his brief refers to the above acts as “Highway Acts.” But they are not such in fact. The acts of the Legislature regulating contracts for public works, such as public roads, are Act No. 224 of 1918, Act No. 203 of 1924, and Act. No. 271 of 1926. Each of these acts refers to claims against subcontractors. Act No. 203 of 1924 provides that any person, corporation, etc., to whom money shall be due “on account of having supplied and furnished feed for use and consumption by mules or other live stock used and employed by any contractor or subcontractor in the construction * * * of any public roads or public works of any character, * * * may file with the authority having the work done and record in the Office of the Recorder of Mortgages * * * a sworn statement of the amount due him, and any payments made thereafter by said authority without deducting the amount of the claim so served on it shall be at its own risk.” Section 1.

The claim of C. C. Lewis is for feed consumed by mules and live stock used in building the road. A sworn statement of the amount due him was filed and recorded as this act provides.

4. Lastly, it is contended that the claim was not filed and recorded in time. The act provides that the statement shall be filed “within forty-five days after the acceptance of said work by the State, Parish, City, Town, Village, Public Board or Body, or within forty-five days after the default of the contractor or subcontractor, * * * provided that the said forty-five days shall not begin to run until the said authorities shall record in the mortgage office (of the parish) in which the work was done an acceptance of the work or notice of the default of the contractor, as the case may be.” Act No. 203 of 1924, sec. 2.

The state highway commission was the authority having this work done. It is not alleged, nor is there any evidence to show, that the highway commission ever recorded in the recorder’s office of Webster parish notice of its acceptance of the work. Plaintiff in rule alleged that he was the contractor, that his work had been completed and accepted, but he does not state when. It is evident, however, that the work was completed and accepted long after the claimants had filed and recorded their sworn statements.

The basis of plaintiff’s contention that the claims were not filed in time is that on March 5, 1926, W. C. Perry, the principal contractor, made and recorded an affidavit, reading as follows:

“State of Louisiana
“Parish of Webster:
“Before me the undersigned authority personally appeared W. C. Perry, who on Oath states that Tyson and Tullos were subcontractors under him on State Project 411-C and on or about November 20th, 1925, said subcontractors defaulted and left their work on said project and have had no connection with same since and that their said work was accepted as of date November 20th, 1925, and that their relations with affiant ceased on that date.
“W. C. Perry.
“Sworn to and subscribed before me at Minden, Louisiana, this 5th day of March, 1926. W. C. McKinney,
“Deputy Clerk District Court.”

This was more than forty-five days— eight months, to be exact — before the claimants filed and recorded their claims. Counsel argues that the forty-five days began to run from the date this affidavit was filed and recorded by Perry, the principal contractor. We do not think so. The delay for filing claims begins to run only from the date on which the authority having the work done files notice of its acceptance of the work or notice of the default of the contractor. The work done by these subcontractors was done for Perry, the principal contractor. It was his work. He could not accept his own work for the highway commission so as to cut claimants off from asserting their rights against the unpaid balance in the hands of the commission due him on the contract. His acceptance of the work of his subcontractors was not an acceptance of the work as contemplated by the statute as relates to the time for filing claims.

It is conceded, as we have said, that J. M. Lewis & Co. had no valid claim against the work. The lower court held that C. C. Lewis, owner of the Cash Peed Store, had no valid claim and ordered the statement thereof canceled and erased from the record. That judgment is erroneous.

It is ordered, adjudged, and decreed that the judgment appealed from ordering the inscription of the claim of the Cash Peed Store, C. C. Lewis, owner, canceled and erased from the records, be and the same is hereby reversed, and that the demands of plaintiff in rule be rejected and his suit dismissed at his cost in both courts.

DREW, J., recused.


text:
    No. 671
    First Circuit
    BLOOMQUIST v. SCHENCK
    (June 30, 1930. Opinion and Decree.)
    Jos. M. Blache, Jr., of Hammond, attorney for plaintiff, appellee.
    M. C. Rownd, of Springfield, attorney for defendant, appellant.
   MOUTON, J.

The defendant, Schenck, was driving an auto westward, towards Baton Rouge. Wayland Barley was driving plaintiff’s car in the same direction in the rear of defendant, at a distance of about fifty feet. It is not alleged by defendant that the plaintiff’s car was being driven at an excessive rate of speed at the time, or negligently. The fact is that it was not, as it appears that Barley was driving at about thirty-five miles an hour, and was making no effort to pass ahead of defendant’s car. It is shown that defendant abruptly and suddenly turned to his left to enter a small roadway in the woods, and failed to give the usual or customary warning, which is the law of the road, by extending or holding out his left hand to indicate the turn he was about to make. Succession of John Brown, 2 La. App. 704; Marsh vs. Singletary, 7 La. App. 436.

It is shown that, when defendant made this turn to the left, Barley, who was driving about fifty feet in the rear, immediately applied his brakes, and did all in his power to keep from running into the other car, but without avail. His only possible alternative would have been to run his car into the ditch on the right side of the road to the inevitable injury or death of plaintiff, his wife, or two babies, who, with’ Barley, were in plaintiff’s car. The collision was simply unavoidable, and was the result of defendant’s negligence, for which damages were properly allowed for injury to plaintiff and damage to his car.


text:
    No. 13,402
    Orleans
    HUNLEY ET AL. v. ASCANI ET AL.
    (June 2, 1930. Opinion and Decree.)
    (July 1, 1930. Rehearing Refused.)
    Leo Wertheimer, of New Orleans, attorney for plaintiffs, appellants.
    U. Marinoni, of New Orleans, attorney for Enrico Ascani, defendant, appellee.
    E. B. Preeland, of New Orleans, attorney for Wise-Miller, defendant, appellee.
   HIGGINS, J.

This case comes before us on a motion to dismiss the appeal on the ground that this court is without jurisdiction, as more than $2,000, exclusive of interest and costs, is involved.

This is a suit for the rescission of a written contract to sell a piece of real estate for the sum of $7,400 and the return of a cash deposit of $740 as. a part payment on account of the purchase price of the property.

It is contended by the appellee that the amount involved is $7,400, because, under the terms and provisions of the contract, that is the amount that plaintiff and appellant is obligated to pay to the defendants and appellees, and that the return of the $740 cash deposit is only incidental in the event the rescission and dissolution of the contract is declared by the court.

The appellant contends that the amount in dispute in the main demand is not the value of the property, as there is no dispute about the ownership of it, but the return of a deposit of $740 and the cancellation of the contract. The appellant, in the alternative, asks that, in the event the court should find, that the amount in dispute exceeds the jurisdictional amount of this court, the appeal should not be dismissed, but transferred to the Supreme Court under Act No. 19 of 1912.

The record shows that the plaintiff sued for the rescission of a written contract of sale of real estate entered into between himself and the defendants, whereby he agreed to purchase and the defendant agreed to sell and convey title to certain real estate for the sum of $7,400; that the plaintiff placed a cash deposit of $740 on account of the purchase price to secure the performance of the contract; that plaintiff entered suit for the rescission and dissolution of the contract and return of the deposit under certain alleged grounds of nullity; and. that the defendants resisted plaintiff’s demand, and in reconvention asked for specific performance of the contract. The trial court dismissed the plaintiff’s suit and in reconvention gave judgment in favor of the defendants ordering specific performance of the contract, and plaintiff appealed.

In State ex reí. Ñores vs. Judges, 42 La. Ann. 589, 7 So. 632, relator’s suit was to annul a tax sale for $180 of a certain plantation which defendants held, in order to subject the property to the payment of a large sum due relators. It^was argued that the amount in dispute was the $180 and that the Supreme Court therefore did not have jurisdiction. The court said:

“The purpose of the suit is clearly to have the court to declare that property which exceeds $10,000 in value still belongs to the succession of one Hayes because the tax-sales thereof to the defendants in the suit is a nullity for the many reasons alleged. * * * The matter in dispute is the title of the property, which is worth more than $10,000 * * * ” — and-held that it had jurisdiction.

In Ward vs. Lynn, 149 La. 1048, 90 So. 399, 400, plaintiffs sued for $330 for the rent for the months of November and December, 1919, for certain premises in Shreveport, and they prayed for a writ of possession and the ejection of defendant. It was argued there, as it is argued here, highest money judgment which the court could render was for $330. The court said:

“The money demand in this case for $330 is coupled with a demand for possession, which demand exceeds in value the lower jurisdiction of this court.”

And the court maintained jurisdiction.

In Heard vs. Monroe Sand & Gravel Co., 6 La. App. 362, plaintiff alleged that she had entered into a contract with one Stephenson, under which he was to’ pay her 2% cents per cubic yard for all sand and gravel mined from certain lands; that defendant had taken over all of Stephenson’s contracts and mined the land; that it had paid her regularly up to the months of October and November, 1925, for which there was due $501.27, and for which she prayed for judgment. The defendant answered that it had not assumed the contracts and that it owed nothing. Judgment was reridered for plaintiff for $501.27 sued for. On appeal, the court, on its own motion, raised the question of jurisdiction. On page 365 of 6 La. App. it said:

“While the amount claimed by plaintiff is within the jurisdiction of this court, being for less than- $2,000, the real question presented by plaintiff is as to whether or not the defendant assumed or rendered itself liable for the obligations under a contract between plaintiff and a third person, and the defense is that there was not any assumption of the contract, or any liability thereunder, and if there was an assumption of liability under the contract that the contract was invalid, and from any point of view the issue is as to the contract.’’

In First Natl. Bank of Arcadia v. Burgess, 6 La. App. 366, the court further said:

“Being of the opinion that the issue is as to the assumption of the contract, or i<s validity, and that the evidence shows that the value of the contract is above the jurisdiction of this court, we are of the opinion that the appeal should be transferred to the Supreme Court. * * * ’>

The case of Klump vs. Fontenot, 167 La. 327, 119 So. 66, relied on by counsel for the appellant, is not in point. In that case the court properly held that the value of the mortgage notes was the amount in controversy and that the value of the land upon which the mortgage rested could not be taken into consideration. Here the amount involved is the purchase price of the property, to-wit, $7,400, and the effort to restrict the issue to the deposit of $740 must fail, since the deposit was incident to the main purpose of the contract, which was the purchase of the property for $7,400. We are therefore of the opinion that the amount involved exceeds the jurisdictional limit of this court, as provided by section 29, of article 7 of the Constitution of 1921, and is within the jurisdiction of the Supreme Court, as provided by section 10, art. 7, of the Constitution of 1921.

Under the authority conferred upon us by Act No. 19 of 1912, we have concluded to transfer the case to the Supreme Court.

For the reasons assigned, the appeal herein is transferred to the Supreme Court of Louisiana, to be disposed of according to law, the transfer to be made within thirty days after this judgment becomes final, and, if not so made, then the appeal shall be deemed dismissed; the plaintiff and appellant to pay the costs of appeal in this court, the remaining costs to abide the final determination of the case.

Appeal transferred to Supreme Court.


author: LeBLANC, J.

text:
    No. 594
    First Circuit
    HERRIN v. LAUNDRY & DRY CLEANING SERVICE, INC.
    (May 6, 1930. Opinion and Decree.)
    (June 9, 1930. Rehearing Refused.)
    (July 19, 1930. Writ of Certiorari and Review Refused by Supreme Court.)
    Morgan & Simmons, of Covington, attorneys for plaintiffs, appellees.
    Harvey E. Ellis and R. D. Jones, of Covington, attorneys for defendant, appellant.
   LeBLANC, J.

The plaintiffs in this case are Burén Herrin and Priscilla Davis Herrin, his wife. Their son, John P. Herrin, aged sixteen years at the time, was injured in an automobile accident on October 10, 1928, and died from the injuries received, four days later. They instituted this suit against the Laundry & Dry Cleaning Service, Incorporated, who, they allege in their petition, is responsible in damages for the death of their son and the wreck of their automobile, by reason of the careless and reckless driving of one of its trucks by one of its agents and employees while acting in the scope of his employment.

They aver that on the date mentioned, at about 4:30 o’clock p. m., their son, with his mother, one of the petitioners, was driving their Ford runabout automobile on the gravel-surfaced highway in St. Tammany parish, over what is known as the Honey Island road. The road is described as being located on the top of a high fill or dump, the sides of which are almost precipitous and extend downward a distance of forty or fifty feet. The impression conveyed is that it is a dangerous piece of road, and therefore unusual care and caution should be taken by automobile drivers passing over it.

They aver further that on reaching a point on said highway about midway between the bridges wl^ich span East and West Pearl rivers, one of defendant’s laundry trucks, driving in the same direction as their son, approached their car from th-> rear without signaling; that their son was driving on the extreme right-hand side of the road but the driver of the truck, nevertheless, when abreast of their car, cut sharply to the right, thereby striking their car and precipitating it down the steep embankment over which the road is constructed.

They attribute the collision, which resulted in their son’s death and the wrecking of their car, to the criminal negligence and utter recklessness of the defendant’s agent and employee in cutting back into the right side of the road before he had fully passed their car.

They asked for damages in the sum of $14,300, of which $7,000 is claimed in their own right for their grief, mental anguish, and sorrow, as well as the deprivation of the companionship of their son; $7,000 as suuccessors to their son’s right of action for his suffering from the time of the accident to the time of his death, and $300 for the value of the automobile which they allege was destroyed.

The defendant filed no special pleas or defenses, and in its answer denies practically every allegation of fact contained in the plaintiffs’ petition.

On this issue of fact the case went to trial and the lower court awarded judgment in favor of the plaintiffs in the sum of $7,300. Prom this judgment the defendant has appealed and the plaintiffs have answered the appeal asking that the judgment be increased to $10,300.

The defendant has filed in this court an exception of no right or cause of action, but, in as much as it raises only questions of fact arising from the evidence, it will be referred to the merits for consideration with all of the evidence in the case.

The defendant having contented itself with merely denying plaintiffs’ allegations as to how the accident happened, but, having admitted at the beginning of the trial that plaintiffs’ son had died as a result of the injuries which he received on October 10, 1928, the decision of the ease will have to resolve itself in á determination of the sole question whether or not defendant’s truck collided with the plaintiffs’ car on that day and knocked it down the steep embankment, thereby causing the de'ath of young Herrin and the damage to the Ford automobile which resulted.

Mrs. Burén Herrin, the mother, is the only eye witness to the accident who testified. As we read the evidence, a man by the name of Simmons who was going in the opposite direction in his automobile, which was being driven by a negro chauffeur, may have seen it from a distance, but neither he nor the chauffeur was called as a witness. Their absence from the witness stand is commented on at length in the briefs on both sides, but without any explanation. It is to be regretted that they did not testify, because, assuming that they took the part the other witnesses say they did in rendering assistance, and that they made the statements they are accredited with, their testimony would have been of material assistance to the court in deciding the most important question in the case.

The testimony of Mrs. Herrin is to the effect that, on the date of the accident, she and her son were driving home to Talisheek, La., from Picayune, Miss. They left Picayune at about 4 o’clock in the afternoon and it was approximately 4:30 when the accident happened. Her son, who she says was a cautious driver, was driving their car on the right-hand side of the road in the direction in which they were going. The road at the point where the accident occurred is wide, and there was ample room for another car to pass. She saw a white closed-in truck just as it started to pass them, the driver of the truck “tooting” the horn at the same time. She observed that there were two men in the truck as it was passing them. The driver cut in front of them, the rear end of the truck striking the front end of their car and throwing it down the embankment. He did not stop, but speeded on in the direction of Slidell. Almost immediately, she says, the car of the man named Simmons reached them and he and his chauffeur helped them out of the wreck. Closely following the Simmons’ car, and coming from the opposite direction, another car in which were a Mr. Crain and a Mr. Newhauser arrived, and it was to them, she says, that Mr. Simmons made the statement “that it was a white truck that knocked them off.” Mr. Crain and Mr. Newhauser then took them in their ear to drive them to Slidell. Mr. Crain, who was driving, ran his car at a very fast rate of speed to try to overtake the white truck, but never did. On arriving at Pearl River he stopped to telephone to Mr. Percy A. Saxon, chief of police at Slidell, to be on the lookout for the truck and to hold it there until they arrived. On reaching Slidell they learned that the chief of police had arrested two men driving a white closed-in truck which she unhesitatingly identified as the -truck that had collided with their car. She also states that she recognized the two men as those who were in the truck when it struck them.

In all of these statements of facts she is substantially corroborated by Mr. Crain, Mr. Newhauser, and Mr. Saxon, in so far as they became connected with any of them.

The truck which was stopped at Slidell at about 5 o’clock, was the first truck that came over the road from Pearl River after the chief of police had been notified of the accident. It was a white closed-in laundry truck, with defendant’s trade name “Bijou-Swiss Laundry” printed in bold letters on the sides. The driver of that truck was one James Straughan, defendant’s employee, who was at the time engaged in his work of collecting laundry.

This evidence sufficiently establishes the fact that this was the truck which passed the plaintiffs’ car at the point where this accident occurred and at the time it occurred on October 10, 1928. The question now comes, Did it strike the Ford car and knock it down the embankment, as Mrs. Herrin swears it did?

The testimony of Mr. Simmons and his chauffeur would have been, as already intimated, of great benefit in reaching the answer to that question. Being deprived of it, we have to rely on what there is in the record. It must be remembered, however, that the statements these parties are reported to have made at the moment of the accident stand uncontradicted, and these statéments, properly admitted in evidence, give strong support to Mrs. Herrin’s testimony. Against this positive testimony and the attending circumstances, we have that of the two men who were in the truck, which may be said to differ in some respect. One of them, the guest who was taking a ride with the driver, is most positive in his denial of all that was testified to by Mrs. Herrin and her witnesses. His testimony strikes us as that of a witness who wants to create an impression of being indifferent or unconcerned about what happened. The other, the driver of the truck, is somewhat evasive and not near as positive in his statements. The substance of his testimony is that “he does not remember” ever having struck any other automobile. In weighing the evidence of these two witnesses, we have given due consideration to the expression of the district judge as to how they impressed him as appearing to be “clean cut and upright young men” but in connection with this statement we have also to consider his other remark to the effect that he would refrain from commenting on the evidence to any extent, for the reason that the driver of the truck was under criminal indictment in his court and he “would not under any circumstances wish • to prejudice this young man in the defense of that case.” Besides, it must be borne in mind, in this connection also, that notwithstanding the lower court’s favorable comment about these two men, judgment was against the defendant.

Counsel for the defendant lays great stress in argument on the fact that the physical evidence with regard to the condition of the cars, which should be apparent in a collision such as this is alleged to have been, is totally lacking in this case, and its absence is corroborative of its witnesses’ testimony. The evidence on this point is by no means one-sided. The hub cap on the wheel of the Ford which Mrs. Herrin says was struck bore a dent or mark which would indicate that it had been so struck. The absence of any marks or depression on the rear fender or wheel of ihe truck can be explained, we think, when we make a comparison of the respective weights of the automobiles, the striking one being much heavier than the one which was struck, and when we further consider the fact that the blow must have been a slanting one given while the two cars were traveling in the same direction.

We are of the opinion, after a careful consideration of all the evidence in the case, that the proof strongly supports Mrs. Herrin’s version as to how this accident happened. Having reached this conclusion, it follows that we have to hold the driver of the truck guilty of gross negligence, and consequently, defendant is liable in damages to the plaintiffs.

In allowing $7,300, we think the district judge followed closely the awards generally made in cases of this kind, and his finding on this point will not be disturbed.

The judgment appealed from is affirmed.


text:
    No. 3500
    Second Circuit
    BRINKER (BULLOCK, Executor, Substituted as Plaintiff) v. FEIST
    (July 5, 1930. Opinion and Decree.)
    Bryan E. Bush, of Shreveport, attorney for plaintiff, appellant.
    Malcolm W. Feist, of Shreveport, attorney for defendant, appellee.
   ODOM, J.

On September 26, 1927, plaintiff executed a notarial act reciting that “for and in consideration of $390.34 paid by Samuel Feist of 518 Commerce Street, Shreveport, Louisiana, the receipt of which is hereby acknowledged, do hereby sell, transfer and convey to the said Samuel Feist the following list of household furniture.” Then follows a description of the property sold and a declaration that she “hereby warrants to defend the right and title to said property to the said Samuel Feist.”

The property was delivered to the purchaser, who kept it and had possession' of it when this suit was filed on August 30, 1928, nearly a year later. By this suit, Mrs. Brinker asks that this bill of sale be set aside on the ground that “said purported bill of sale was signed by petitioner without any consideration whatever; that the same was signed by petitioner under the fraudulent instructions, guidance and promises of said Samuel Feist that if she would leave the furniture at 406 Stoney Avenue and give him this purported bill of sale, he would be in a position to better rent the property and apply the proceeds thereof on the settlement of the outstanding obligations upon said real estate.”

Defendant in answer admitted the execution of the notarial act, as alleged, and denied the other allegations.

Plaintiff, in order to support her allegations, called the defendant on cross-examination and asked him if he was then in possession of the furniture described in the act of sale, and he said he was. He was then asked: “How did you get that bill of sale from Mrs. Brinker?”

• The purpose of the question was to show by parol testimony that there was in fact no sale, no consideration. The objection was made that authentic acts cannot be assailed by the parties to them in this manner. The objection was sustained. Counsel for plaintiff then stated to the court that the only testimony he had to sustain his petition was that of the defendant “and the oral testimony of Mrs. Jessie Brinker and Mrs. Marie Hassler.”

There was judgment rejecting plaintiffs’ demands, and she appealed.

In the case of Godwin vs. Neustadtl, 42 La. Ann. 735, 7 So. 74, 745, the court said:

“It is horn-book law in our jurisprudence that the verity and reality of authentic sales can be assailed by the parties thereto only in two ways, viz: (1) By means of a counter-letter; (2) by the answers of the other party to interrogatories on facts and articles.”

The court then cites a long list of decisions,

In the case of Cary vs. Richardson, 35 La. Ann. 505, the court said:

“The unbending jurisprudence of this Court does not, accordingly, allow.a party to vary or destroy his own voluntary declarations, or written agreements, by anything short of' written evidence. The rule applies not ‘ony to agreements relating to immovables, but also to such as concern movables” —citing Lesseps vs. Wicks, 12 La. Ann. 740; Lynch vs. Burr, 7 Rob. 96; Knox vs. Liddell, 5 Rob. Ill; Beaulieu vs. Furst, 2 La. Ann. 48; D’Aquin vs. Barbour, 4 La. Ann. 441; Sharkey vs. Wood, 5 Rob. 327; Angomar vs. Wilson, 12 La. Ann. 857; and Letchford vs. Dannequin, 16 La. Ann. 150.

In the case of Godwin vs. Neustadtl supra, the court said:

“No fraud, error, violence, or other matter affecting the validity of plaintiff’s consent to the authentic act of sale, is alleged; nor does she pretend that she has, or that there exists or ever existed, any counter-letter.”

That is precisely the situation in the case at bar. The allegations of plaintiff’s petition affirmatively show that she voluntarily and freely assented to the act. She alleges that the purchaser made certain promises with reference to the lease of some real estate. Statements promissory in their nature, and relating to future actions do not constitute actionable fraud. To constitute actionable fraud, the false statements, if such are made, must relate to facts then existing or which have previously existed. See Brenard Mfg. Co. vs. Gibbs, 9 La. App. 137, 119 So. 483, and authorities there cited and quoted; Hemler vs. Adcock, 166 La. . 704, 117 So. 781.

The judgment appealed from is affirmed, with all costs in both courts.


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    No. 3332
    Second Circuit
    PERRY v. CARTER
    (July 5, 1930. Opinion and Decree.)

      Galloway & Johnson, of Shreveport, attorneys for plaintiff, appellant.
    J. S. Atkinson and Alex F. Smith, of Shreveport, attorneys for defendant, appellee.
   ODOM, J.

Plaintiff’s automobile collided with defendant’s on Centenary boulevard in the city of Shreveport and he prosecutes this suit against defendant to recover the amount of damage to his car and for personal injuries sustained by his minor son who was in the car with him at the time. He makes the usual allegations of negligence on the part of defendant and of his own freedom from negligence. Defendant denied that he was negligent and alleged that the collision was due solely to plaintiff’s negligence.

This appeal is by plaintiff from a judgment rejecting his demands.

Centenary boulevard is about 45 feet wide, is paved, and runs approximately north and south along. the edge of the grounds and premises of Centenary College. From the property of the college, there is a graveled driveway into the boulevard intersecting it at a point opposite where Rutherford street intersects it. When the two cars collided, plaintiff was driving his south on the boulevard and defendant was crossing the boulevard at right angles from the Centenary driveway to Rutherford street. Defendant had driven out from the college grounds into the intersection and had gotten his car to within five feet of the west edge of the boulevard when plaintiff’s car ran against it. All the testimony shows that' the two cars were running at right angles to each other and that plaintiff’s ran against defendant’s car broadside.

The testimony further shows beyond question that defendant’s car was well within the intersection or out into the boulevard in front of plaintiff before his car reached it; and further, that when defendant’s car was in the intersection, plaintiff’s was far enough away to have been easily stopped before reaching the point of collision, if plaintiff had used proper precautions.

Counsel for plaintiff refer to Smith vs. Interurban Transportation Co., decided by this court and reported in 5 La. App. 704; as a parallel case. We there held that Mrs. Smith, who drove from a private driveway into a much-used public highway in front of an oncoming bus, could not recover because of her negligence. But there the facts were different. Our reading of the testimony in that case brought us to a conclusion stated by us as follows:

“Mrs. Smith drove onto the road from a side entrance at a point so close in front of the bus that the driver could not stop before reaching her car.”
And again,
“Mrs. Smith came onto the road over a little used private driveway and her advent onto the road was so sudden and so close that the bus driver could not avoid the accident.”

In the case at bar, the driveway from the college grounds into the boulevard, is referred tc as a “private driveway,” and it is in a sense. But it is a much-used driveway. Students of the college, who live in Shreveport and in close proximity thereto, and visitors use the driveway almost constantly and at all hours. Plaintiff says he was familiar with that custom as he drove into and from the grounds every day. Being thus familiar with the premises and the frequent use of the driveway by vehicles, he should have been on guard. This driveway enters the boulevard opposite Rutherford street, so that the ©lace where the collision occurred may properly be referred to as an intersection. This being true, to the knowledge of both drivers, they should be held to the rules governing traffic at public street intersections.

We do not find that defendant was guilty of negligence. He drove into the intersection slowly and cautiously. He saw plaintiff’s car, or its lights, coming down the street and says he assumed that the driver was not exceeding the speed limit of‘eighteen miles an hour, in which event he had ample time to get across. He did • get almost across and we think he would have succeeded had plaintiff been running within the speed limit. Plaintiff says he was not going over sixteen miles an hour. His speedometer was not working, but he says that was his estimate. He must have been going faster, as he applied his brakes, which took effect, the wheels leaving skid marks fifteen or twenty feet | long on the pavement. ' We do not think plaintiff was looking ahead. He intended to turn to the right and go west, out Rutherford street, and he was looking that way. If he had looked ahead, he would have seen defendant’s car in the intersection before he reached it in ample time to stop.

The collision being due to plaintiff’s fault, he cannot recover.

The judgment appealed from is affirmed.


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    No. 11,859
    Orleans
    BUSSEY v. WISE-MILLER ET AL.
    (June 2, 1930. Opinion and Decree.)
    (July 1, 1930. Rehearing Refused.)

      Dart & Dart and H. Grady Price, of New Orleans, attorneys for plaintiff, appellee.
    F. B. Freeland, of New Orleans, attorney for defendant, appellant.
   HIGGINS, J.

This is a suit for the rescission or dissolution of a written contract for the sale of a piece of real estate in this city and the return of a deposit made by the plaintiff on account of the purchase price thereof.

The petition alleges that on October 24, 1925, petitioner entered into a written contract with defendant, Miss Barilleaux, to purchase a certain piece of real estate for the sum of $5,500, and deposited the sum of $550 on account of the purchase price; that on February 24, 1926, when the parties to the contract were notified by the notary to appear before him for the purpose of passing the act of sale, petitioner was advised by her attorney that Miss Barilleaux, the defendant, had never had the property transferred to her and therefore was unable to deliver title to petitioner. The petition prays for judgment against the defendant for the sum of $550, the amount of the deposit, and for all equitable and general relief.

While the petition does not pray for the rescission or dissolution of the con tract, because the defendant, Miss Baril leaux, is alleged to have breached her agreement by failing to acquire title to the property in order to be able to deliver a valid title to the plaintiff, it is clear that, unless the contract is rescinded or dissolved as a result of defendant’s alleged breach of it, the court is powerless to give a judgment in favor of the plaintiff, for the amount of the deposit made by the plaintiff under the terms and provisions of the contract.

We therefore are of the opinion that this case must be treated as a suit for the rescission or dissolution of a contract and not solely for the return of a deposit, and in such case the amount in dispute is not the amount of the deposit, bur the value of the property which was the subject of the contract. See Hunley vs. Ascani, 129 So. 164, page 95 herein, this day handed down.

While the jurisdiction of this court has not been questioned, the amount involved in this controversy, i. e., $5,500, exceeds the jurisdictional limit of this court, i. e., $2,000, as provided in section 29 of article 7 of the Constitution of 1921, and is within the jurisdiction of the Supreme Court as provided by section 10 of article 7 of the Constitution of 1921.

For the reasons assigned, the appeal herein is transferred to the Supreme Court of Louisiana, to be disposed of according to law, the transfer to be made within thirty days after this judgment becomes final, and, if not so made, then the appeal shall be deemed dismissed; the' plaintiff and appellant to pay the costs of appeal in this court, the remaining costs to abide the final determination of the ease.


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    No. 3777
    Second Circuit
    DYKES v. RUDDLE
    (June 2, 1930. Opinion and Decree.)
    (July 5, 1930. Rehearing Refused.)
    Vinson M. Mouser, of Columbia, attorney for plaintiff, appellee.
    Thompson & Ferguson, of Leesville, and Wm. H. Mecom, of Columbia, attorneys for defendant, appellant.
   ODOM, J.

Plaintiff was employed by defendant as a log cutter and, while at work in the woods, was accidentally injured by having his leg broken. He sues for compensation at $13.65 per week for 175 weeks, plus medical expenses.

The defense is that plaintiff was disabled for only 22 weeks, for which he was paid; that he has entirely recovered, and that no further compensation is due him. However, defendant, during the trial, tendered 8 weeks additional compensation, which-was refused.

There was judgment for plaintiff, fixing his compensation at $9.04 per week for 175 weeks, with credit for twenty-two payments already made. Defendant appealed.

Plaintiff, while at work on October 19, 1928, had his left leg broken between the ankle and the knee, both bones being severed. The leg was placed in a plaster cast where it remained for. about twenty days, after which he went on crutches until the following April. About the latter date a physician certified that he had recovered, whereupon defendant, who had been paying him compensation at $7.64 per week, refused to make further payments. The case was tried on December 13, 1929, a year and two months after the accident.

The testimony is somewhat conflicting as to the condition of plaintiff’s leg 'at the time of the trial. Dr. May, who made an examination a few days be’fore the trial, testified that plaintiff had sustained a compound fracture of both bones of the left leg between the ankle and knee; that both bones were slightly out of alignment, there being some lapping of the ends, the leg being half an inch shorter than the other; that there was considerable callous formation and a “bulging” which retarded circulation, interfered with the nerves, all of which caused pain. He said further:

“And again the bones not being sutured perfectly, there is crepitation, a grating sound that you get in working the bones. The callous holds them so they can’t slip away from each other, but there is some crepitation. You can hear the crepitation. He is likely to fracture it over with an awkward step or any severe strain. * * * ■If he is careful of his step, he can get around all right.”

The X-ray plates made by Dr. Masterson show a bad union. The ends of the bones are not properly joined together, end to end; there is a lapping of the ends of the bones which accounts for the shortening of the leg.

Dr. Mecom examined plaintiff in May following the accident in October. He found that plaintiff had a compound fracture of the leg, that there was considerable callous, but a good union, and he considered him able to work when he examined him. Asked if he found any impairment of the use of the leg, he said:

“Well, there might be some slight impairment. If he had been a professional dancer, ball player or an acrobat he had perhaps suffered' some disability; but as I understand it, he was a farmer and laborer and it was my opinion that he was able to do that kind of work, as well as he ever was.”

Dr. Adams, who treated plaintiff immediately following the accident, testified that in his opinion he had recovered when he was discharged on May 13th. Both he and Dr. Mecom admitted that the ends of the bones were not in proper apposition, that they were out of alignment; but they seemed to think that the amount of callous at the union was sufficient to hold the fracture in place and saw no reason why the leg should not be as strong as ever. This testimony was purely theoretical. They seem to think that, because there is an accumulation of callous around ,the fracture, the leg should be as .strong as ever. That would be true, no doubt, if there was proper apposition — that is, if the ends of the bones had joined together in proper alignment. But they did not, as the pictures show plainly. The fracture of each bone was not transverse, but oblique. In the process of healing, the ends slipped, leaving a decided offset, and there is a bulging on the sidfe of the leg which the doctors all observed. In time the callous may harden and become strong enough, not only to hold the ends of the bones in place, but from a union so strong that plaintiff will have practically normal use of his leg. But that time has not yet arrived.

Plaintiff was on the date of the trial unable to do manual labor of a reasonable character. He could walk, but could not support his weight long at a time. He could not saw or cut logs; he could plow a round or two, but could not hold out. He is a common laborer, but, as such he cannot earn wages. The district judge said in his written opinion that, for all practical purposes, plaintiff has totally lost the use of a leg. Our reading of the record convinces us that his conclusion is correct. While he can use the leg some, he cannot make a hand; he cannot do a day’s work; he cannot earn wages.

Dr. Adams testified that he thought that:

“After the callous is well formed that it should not give him any pain under ordinary circumstances.”

The trouble is that there is a bad union and the leg is not strong; an operation being probably necessary to remedy the defect. The nerves are affected and the circulation poor. This • causes pain. The callous does not seem to have hardened properly. All in all, plaintiff is a cripple and cannot earn wages.

The district 'judge awarded plaintiff compensation for 175 weeks, which Act No. 85 of 1926 allows for the loss of a leg. We find it necessary to amend the judgment as to the duration of the payments. Plaintiff’s leg was injured between the knee and the ankle. The leg was not injured above the knee. Section 8, paragraph (d), subparagraph 14, reads:

“A permanent total loss of the use of a member is equivalent to the amputation of the member.”

And subparagraph 13 provides that:

“An amputation between the knee and the ankle shall be equivalent to the loss of a foot.”

The compensation for the loss of a foot is “65% of wages during one hundred twenty-five weeks.” Under the holding in the case of James v. Spence & Goldstein, 161 La. 1108, 109 So. 917, plaintiff is entitled to compensation as for the loss of the foot.

We think the district judge correctly found that the weekly compensation should be fixed at $9.04.

For the reasons assigned, the judgment appealed from is amended so as to allow compensation during 125 weeks instead of 175 weeks, and, as thus amended, the judgment is affirmed, appellee to pay the cost of appeal, all other costs to be paid by appellant.


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    No. 3830
    Second Circuit
    PARNELL v. SNEED & SNEED ET AL.
    (July 5, 1930. Opinion and Decree.)
    J. B. Crow, of Shreveport, attorney for plaintiff, appellee.
    Lyons & Prentiss, of Shreveport, attorneys for defendants, appellants.
   ODOM, J.

This is a damage suit arising out of a collision which took iplace between plaintiff’s automobile and a truck owned by defendants and operated by one of their servants. Plaintiff’s automobile was damaged, and he sues for. the amount thereof. He makes the usual allegations that the collision was due solely to the fault and negligence of plaintiff’s driver. The defense is that the driver of the truck was guilty of no negligence whatsoever, but that the collision was due solely to the fault and negligence of the plaintiff. The trial judge rendered judgment in favor of plaintiff, as prayed for, and defendants prosecute this appeal.

The testimony in this case is so conflicting, so contradictory, and so irreconcilable that we feel impelled to follow the conclusions reached by the trial judge. Indeed, the case presented by the record is such that if the district judge had rendered judgment for defendant, we would feel fully warranted in affirming it. There are about the same number of witnesses on each side and their testimony on material points, on matters about which the witnesses could not have been mistaken, is so conflicting that we must necessarily conclude that some of them testified falsely. The trial judge, before whom these witnesses testified, having had an opportunity to hear them and observe their attitude before the court, was in better position than we are to determine the question of their veracity.

The collision between plaintiff’s automobile and defendants’ truck took place in the daytime on Texas street in the city of Shreveport at a point where Grand avenue enters that street. Plaintiff was driving south on the right-hand side of Texas street; defendants’ truck was being driven in the opposite direction on the other side of the street. Grand avenue enters Texas street from the west. When the defendants’ truck driver reached a point on the east side of that street, opposite Grand avenue, he turned to the left across the street to enter Grand avenue, going west. He made the turn about the time plaintiff’s automobile was ¡passing on the opposite side. The testimony of all the witnesses and the physical facts show that defendants’ truck ran against plaintiff’s automobile. The plaintiff and his witnesses, some of whom were present and saw the collision, stated that defendants’ truck driver turned across the street without stopping and without giving any sign or warning of his intention to make the turn. If their testimony is to be believed, the truck driver was guilty of the grossest kind of negligence. On the other hand, the truck driver, and several witnesses introduced by defendants, testified that the driver stopped at a point opposite Grand avenue, held out his hand before turning, and proceeded slowly across the street to the opposite side where the collision took place. Therefore, as already stated, there is an irreconcilable conflict in the testimony. If it be conceded that the witnesses are of equal credibility, we would be in serious doubt as to who was responsible for the collision.

However, a careful reading of the testimony of at least two of defendants’ witnesses, shows that they were considerably mixed on some of the facts. One of defendants’ witnesses, named Reaux or Renau, testified positively that he witnessed the accident, yet he told members of the police force immediately after the collision took place that he did not see it and refused to have his name used as a witness. The case was tried some months later, and without telling defendants or any one else that he saw the accident, on the night before the trial he happened to meet one of the defendants, or rather the wife of one of them, who was discussing the trial which was to take place on the following day, and at that time Reaux or Renau informed the party that he was a witness to the accident. He testified that he was a friend and neighbor of these defendants. All this suggests that his statement that he witnessed the accident and knew all the details was an afterthought. Not only that, his testimony as a whole shows that he exaggerated, or at least made statements that were wholly unreasonable. The truck driver also contradicted himself on some material points. For instance, plaintiff testified that at the time of the collision the truck driver made the statement that the collision was due to his own fault and that he would pay the damage. Two other persons testified that they heard him make the statement. As a witness, he denied that he had made any such statement. There is also serious conflict between the testimony of the plaintiff and Mr. Sneed, one of the owners of the truck, in that plaintiff testified that Sneed had agreed to pay all damage, while Mr. Sneed testified that he made no such agreement. Mr. Sneed, however, did state that he had agreed to pay one-half of the damage.

Taking into consideration the physical facts and placing a reasonable construction on the testimony as a whole, it is our conclusion that plaintiff discharged the burden of showing that the collision was due to the truck driver’s fault. That was the conclusion of the trial judge and we cannot say that he manifestly erred in his judgment. The judgment is affirmed, with costs in both courts.


author: DREW, J.

text:
    No. 3564
    Second Circuit
    GREEN v. JOHNSON (ETTA N. JOHNSON, Substituted as Defendant)
    (July 5, 1930. Opinion and Decree.)

      Parsons & Colvin, of Mansfield, attorneys for plaintiff, appellee.
    S. M. Atkinson, of Mansfield, attorney for defendant, appellant.
   DREW, J.

Plaintiff, Hannah V. Green, sued defendant, H. N. Johnson, for the return of $400 advanced or loaned him under the following contract:

“This agreement, made and entered into this the 1st day of October, 1923, by and between the De Soto Oil and Development Company, of Mansfield, Louisiana, party of the first part (by H. N. Johnson, Secretary-Manager) and Hannah Green, of Rosedale, Louisiana, party of the second part:
“Witnesseth: That for and in consideration of the sum of Four hundred ($400.00) Dollars, cash by check, the receipt of which is hereby acknowledged, the said Hannah Green, party of the second part, is to be director in the De Soto Oil and Development Company and to share in the net receipts of said company, not exceeding two per cent, of its monthly collections, to be paid to her not later than the 10th day of each month, beginning with the month of November, 1923, and ten per cent, per annum on the amount of principal herein invested. The ten per cent, is interest on the principal payable semi-annually on the 1st day of April, 1924, and the first day of October, 1924.
“The said Hannah Green, party of the second part, is to be active in promotirg the sale of the company’s Oil Park lots and to receive a cash commission of twenty per cent, on the sale of each lot sold by her.
“The De Soto Oil and Development Company (H. N. Johnson, Secretary-Manager) party of the first part, contracts and agrees with Hannah Green, party of the second part, to return the principal ns.voin invested after thirty days notice and on the 1st day of October, 1924. If the party of the second part, after October 1st, 1924, decides to remain with the De Soto Oil and Development Company, he is to share in the future success and developments of said company, with his principal held intact to be withdrawn at the end of the year as herein contracted.
“Witnessed the hands of the parties hereunto this 1st day of October, 1923. The De Soto Oil and Development Company (H. N. Johnson, Secretary-Manager). [Signed] The De Soto Oil and Development Company, By H. N. Johnson, Party of the -first part.
“Hannah V. Green, Party of the second part.
“Witnesses: Alice B. Farris.”

Plaintiff alleges that H. N. Johnson is the sole owner of the said De Soto Oil & Development Company, and that same is only a trade-name; that she had repeatedly demanded the return of her $400 under the contract; and that H. N. Johnson had repeatedly promised to return her her money, but had failed to do so. She asks that her rights to an accounting and for sums due her, other than the $400, under the contract, be reserved to her.

The answer admits the contract, and alleges that defendant received only $360 from the plaintiff; that he has since that time returned to her over $500;-and that he owes her nothing. And he alleges, m the alternative, that if judgment should be rendered against him it should not bear any interest, for the reason that the interest rate of 10 per cent, stipulated is usurious, and that therefore plaintiff should lose all interest on the money.

There was judgment in the lower court in favor of plaintiff and against defendant for the sum of $400 with interest at the late of 5 per cent, per annum from October 1, 1924, until paid.

Prom this judgment defendant has appealed.

The case, with exception of the interest to be allowed, presents only a question of fact, which, we think, the lower court has decided correctly.

Defendant, by the written contract, expressly admits receiving $400 from plaintiff, and there being no allegation of error or fraud, the lower court properly held that defendant could not vary or change the written acknowledgment of receipt of the money. However, defendant 'on numerous occasions, by his own testimony, admitted that he had received $400 from plaintiff. His main defense is that he had returned to her more than the $400 by giving same to her agent, Taylor, to pay for a car for her. The evidence does not bear him out in this respect. The testimony conclusively shows that Taylor was the agent of defendant and that plaintiff did not own a car and never owned one, and any payments made to Taylor by defendant were not made to plaintiff and she is not in any way responsible. It is well to say that although the case was held open for several days for defendant to produce Taylor and take his testimony, his testimony was never taken.

Defendant admitted, and letters filed in evidence show that he admitted, owing plaintiff $400 as late as 1927, and that he promised to pay same. He promised to pay the money to Charles M. Roberson, who was handling the claim for plaintiff, and also promised to pay it by letter to the plaintiff herself.

The law of this state is that an agreement to pay a greater rate of interest than that allowed by law to be contracted for (which is fixed at 8 per cent. • per annum) makes that part of the contract null and void, and produces no legal effect between the parties contracting, and is the same as if no agreement had been entered into relative to interest. However, when there is no stipulation to pay interest on a debt, it bears interest at the rate of 5 per cent, per annum from the time it becomes due. Tarver vs. Winn, 18 La. Ann. 557; Page & Son vs. Russell, 7 La. App. 129.

The debt in this case became due on October 1, 1924, and must be treated as if there had been no agreement as to interest. Therefore plaintiff is entitled to the legal rate of interest from the due date of the debt.

The judgment of the lower court is correct and must be affirmed. However, since the trial of this case in the lower court, the ' defendant has died and his widow, Etta N. Johnson, has been recognized as his sole heir at law and put in possession of the property of the deceased defendant. She has petitioned this court to be substituted as party defendant and to be allowed to defend this suit and stand in judgment therein, which has been allowed her by this court.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be affirmed, and that Etta N. Johnson be substituted as defendant for the deceased H. N. Johnson.

Costs of appeal to be paid by defendant, appellant.