text:
    No. 618
    First Circuit
    BROOKS v. CONTINENTAL CASUALTY COMPANY
    (May 6, 1930. Opinion and Decree.)
    (June 9, 1930. Rehearing Refused.)
    (July 2, 1930. Writ of Certiorari and Review Refused by Supreme Court.)

      Benton & Benton, of Baton Rouge, and E. J. Whitehead, of Port Allen, attorneys for plaintiff, appellee.
    Chas. A. Holcombe, of Baton Rouge, attorney for defendant, appellant.
   MOUTON, J.

The defendant company issued an insurance policy for $1,000 to Moses Brooks, who was killed in December, 1927, by J. A. Legendre, deputy sheriff.

Plaintiff, Sequeener Brooks, his beneficiary, obtained judgment against defendant company for $1,000, the amount of the insurance, from which it appeals.

Mr. Legendre, the deputy sheriff, having been notified that a negro had been held up and robbed at the Gulf Coast Yards near Anchorage, went there at about 9 o’clock at night looking for the robbers. He says he came across two men who tallied with the description he had of the holdup men, and, so thinking, made an effort to stop them by saying “wait there boys.” He says instead of stopping they started in a run, that he fired four shots, the last striking Moses Brooks, the insured. He makes it very plain that when he shot he did not know who were these men. He walked up to the man that had fallen, and when he got to him found out that it was Moses Brooks he had shot. He knew him quite well, and says if he had recognized Brooks he would not have fired at all. It is clearly shown that he fired because he believed they were the holdup men. He says, when he shot, his intention was to stop them by hitting them in the legs, which is the usual method followed by officers under like circumstances. Instead of hitting Brooks in the legs, as he intended, he was struck above the hip in the small part of the back, causing his death soon after. He explains that Brooks was running up the levee when he fired, which accounts for the fact that he was hit in the lower part of the back instead of the legs, where he intended to shoot him.

A correct solution of this case depends, as we see it, to a large extent on a proper interpretation of the decision of the Supreme Court in the case of Brown vs. Continental Casualty Company, 161 La. 229, 108 So. 464, 466, 45 A. L. R. 1521, although counsel for defendant company, in a very able brief, contends that it has no application.

The suit in that ease was, as in this, on an insurance policy for $1,000 indemnity for loss of life by accidental means. The policy in that case was on the life of Dr. Brown who died in consequence of inhaling too much chloroform, which he used to relieve headache and insomnia. The second defense in that case, which we find to be pertinent to the issue here presented, was that, although the death of the insured was unexpected, unintentional, and accidental, the means which caused the death was intentional and not accidental, the condition of the policy being not that the death itself should be accidental, but that it should be caused by accidental means to make the company liable for the indemnity.

The introductory clause to the policy in the instant case says:

“The insurance given by this policy is against loss of life (suicide or self destruction while either sane or insane not included) limb, limbs, sight or time resulting from a personal bodily injury which is effected solely and independently of all other causes by the happening of an external, violent and purely accidental event etc.”

It provides further in paragraph 2 of part X, designated as miscellaneous provisions, as follows:

“This policy does not cover any loss” upon certain conditions which are enumerated in 4 exceptions of nonliability. In exception No. 3, which is the only one of the 4 enumerated exceptions pertinent to the issue here presented, and which refers to the loss the insured might suffer, we find the following proviso:
“If the injury causing it results from the intentional act of the insured or of any other person etc.”

This clause evidently refers to the loss of life, limb, limbs, and sight mentioned in the introductory clause of the policy, and in the beginning of paragraph 2 part X heretofore referred to.

In the case of Brown vs. Continental Casualty Company, supra, the court, in referring to the second defense therein presented, to which we have above referred, says:

“Appellant’s second defense, that, under a policy providing indemnity for loss of life ‘by accidental means,’ the company is not liable for an accidental death, unless the means which caused the death was unintentional, seems to be sustained by very high authority in other states.”

The court then proceeds to discuss some of the cases where that doctrine was maintained. It refers in particular to the case of Lehman vs. Great Western Association, 155 Iowa, 737, 133 N. W. 752, 754, 42 L. R. A. (N. S.) 562, in which it says it was maintained that it is “not sufficient that there be an accidental — that is, an unusual and unanticipated — result. The means must be accidental; that is, involuntary and unintended.”

The court in the Brown case would not accede to the doctrine that, to entitle the beneficiary to recover in such a case, the means must be accidental, involuntary, and unintended. In that case it appeared that Dr. Brown had by mistake taken an overdose of chloroform, which had caused his death. In referring to that fact, the court said:

“The means or cause of his death was not that he intentionally inhaled chloroform, which he had done many times before, but that he unintentionally inhaled too much chloroform.”

In that statement of the court it is clearly pointed out that Brown intentionally or voluntarily inhaled the chloroform, but had unintentionally taken an overdose. It was the result of the act which was unintentional or unexpected that constituted the accident. In that respect the court would not accept the ruling of the courts to which it made reference, where it had been held that the means must be accidental and that it was not sufficient when there was “an accidental, unusual and unanticipated result.”

In this case the means employed, that is, the firing of the gun, was intentional, but it is clearly shown that the purpose Legendre, the deputy sheriff, had in mind at the time, was merely to shoot the fugitives in the legs to stop them in their flight. He certainly did not intend to strike Brooks in the back, and to take his life. Though the shooting was intentional, the killing or the result was altogether unintentional and accidental, as was the case with Brown who had intentionally taken the chloroform, but had “unintentionally inhaled too much.”

Counsel for defendant says in his brief “that the loss here was the result of the intentional act of a third party.” This defense of counsel is evidently grounded on paragraph 2 of part X, which says this policy does not cover any loss under the third enumerated exception, where we find this provision, above referred to:

"If the injury causing it results from the intentional act of the insured or of any other person etc.”

The taking of the chloroform by Dr. Brown was certainly an intentional act, but it was the result which was altogether unintentional and unexpected, and the death was therefore an accident according to the ruling in the Brown case. If, in the case of Brown, the chloroform had been administered by another physician or any other third party to relieve the headache, and had, from the effects of an overdose given by mistake resulted fatally, it seems to us quite evident, as his death would have likewise been unintentional and unexpected, the same principle would have been applied. In either case the act would have been intentional, but the result likewise unintentional, unanticipated, and accidental.

Counsel for plaintiff has referred us to many decisions from other states, where the courts had occasion to construe a clause of non-liability in reference to insurance companies, wherein it .was provided, as follows:

In the construction of a proviso of that character those courts have about uniformly held that the company is not exempted from liability where the party shooting intended to shoot some one else, and by mistake shot the party injured or killed. Here it is unquestionably shown that Legendre intended to shoot holdup men, and by mistake shot the unfortunate Moses Brooks.

Under the authorities cited by plaintiff’s counsel, it is held that an insurance company cannot claim immunity from liability under such a clause. On the other hand, counsel for defendant contends that the provisos in the policies passed upon in the adjudication cited by counsel for plaintiff are not similar to the one enumerated in exception 3 of the policy in this case. Here he contends it is the “intentional act vel non that is involved. In other words, not whether Brooks was the real robber, but whether Legendre intentionally inflicted an injury upon him, regardless of who he was.” In support of that contention he refers- to many decisions from courts of other states. He refers particularly to the case of Fernando vs. Continental Casualty Company, 169 Minn. 53, 210 N. W. 634, where the policy contains in exact words the proviso we have in the policy in this case, which refers to an injury where it results from the intentional act of the insured or of any other person.

In that case, Boone, the insured, was killed by a woman with whom he had been on friendly terms. The suit for indemnity was brought by his beneficiary. During a quarrel Boone and the woman both started for a gun which was in a trunk. The woman got the gun and shot Boone. The court said whether she intended to kill was unimportant. Boone’s death, says the court, was the result of an "intentional act,” and came within the exception of the policy. It is evident that the shot was intentionally directed at Boone. Not so here, as it appears the shooting which constituted the “intentional act” was aimed at supposed robbers, and not at Moses Brooks.

Another case, Continental Casualty Company vs. Klinge, 82 Ind. App. 277, 144 N. E. 246, whnre it appears that one' Winniger, while in company with another, undertook to remove a tire from an automobile. On the approach of Wagner, an officer, the two fled, refusing to halt. Wagner shot and killed the insured. In answer to a question propounded to Wagner, he answered that he intended to hit him. The court held that the injury was the result of the intentional act of the officer, and that the company was protected by the exemption provided for in the exception.

In that case it does not appear that the officer did not intend to kill and fired merely to stop the phi’ty, but that he had accidentally killed him, which is the case here, as appears from the uncontradicted testimony of Legendre hereinabove referred to.

It may be that there is a substantial divergence of opinion between the courts on the proposition we have been discussing as contended for by counsel for plaintiff, or that there is no conflict in the adjudications where a proviso, similar to that at bar, exists, as claimed by counsel for defendant. The fact remains, however, that, under the decision- of our court in the Brown ease, as we construe it, where the act is voluntary or intentional, but the result is unintentional, unexpected, or unanticipated, the insurance company is liable under the terms of the policy.

The criterion of responsibility is based, as we see it, on the unintentional result, and the intentional act, whether of the insured or of a third party, calls for no distinction in the application of the rule followed in that case. It is possible that we have fallen into an error in our appreciation of the meaning of the court in the Brown case, and which has led us to the conclusions arrived at in this case. We think, however, that we have properly applied the doctrine therein announced to the facts herein presented which, as we see them, entitled plaintiff to a recovery as was held below.

ELLIOTT, J.

(concurring). The decision of the issue involved in this case, does not depend on the interpretation of any of our acts on the subject of accident insurance. 1898, No. 105; 1906, No. 115; 1908, No. 172; 1910, No. 310; 1912, No. 256; 1914, No. 287; or 1920, No. 17.

The case Brown vs. Continental Casualty Co., 161 La. 229, 108 So. 464, 45 A. L. R. 1521, is pertinent, still there is some difference. In that case the insured intentionally took a dose of chloral and unintentionally took too much of it.

In this case Deputy Sheriff Legendre, intentionally aimed and fired at a man fleeing from him in the dark. As he intentionally shot the fleeing man, the result of the shooting may be also regarded as intentional, but at the time he aimed and fired, he did not know who it was that was fleeing, and did not know that it was Moses Brooks until he went up to where he had fallen.

If he had known that it was Moses Brooks that was fleeing, he would not have shot him. In this case the injury was unintentional, in so far as the act of shooting, specifically applied to Moses Brooks, because there was no particular intent directed at him, and he was not the known object of the shot. The policy is also a Louisiana contract and our Civil Code, arts. 1945 et seq. furnish rules for ascertaining the intent of the parties to it, as to matters not plain, and in a doubtful provision the interpretation should be against the insurance company. Civil Code, art. 1957.

The entire policy is to be consulted where the intent is a matter of doubt. It commences with a provision for indemnity, caused by accidental injury. It promises to pay Moses Brooks or his beneficiary, on account of injury “resulting from bodily injury which is effected solely and independently of all other causes by the happening of an external violent and purely accidental event, to the extent hereinafter provided.”

The non-liability proviso being:

If the injury causing it results from the intentional act of the insured, or any other person, etc.

It seems to me to be the reasonable understanding of the promise, that the insured is entitled to recover, where the injury was not specifically and particularly directed at him, because if it was not, then he was not the intentional récipient of the act.

The reasoning in the cases cited by plaintiff, General Accident F. & L. Assurance Corp., Ltd., vs. Laura Hyams, 77 Ill. 20, 185 P. 1085, 8 A. L. R. 318, and Interstate Business Men’s Accident Assn. vs. Lester, (C. C. A.) 257 Fed. 225, are in line with my views on the subject.

The case Traveller’s Ins. Co. vs. McConkey, 127 U. S. 661, 8 S. Ct. 1360, 1361, 32 L. Ed. 308, was based on a policy, which, quoting from the decision, read, so far as pertinent, “Intentional injuries inflicted either by the insured, or by some other person,” etc.

The reasoning supports defendant’s contention, but not fully, because in that case it appeared that MeConkey either committed suicide or was murdered, and the court considered it permissible to infer that he had been murdered, and that recovery could not be allowed because the injury was specifically aimed at MeConkey which is not the situation in this case.

In this case, as already stated, there was absent a particular, specific intent to injure Moses Brooks.

For the foregoing reasons, I respectfully concur in the decree.


source: Caselaw Access Project

author: MOUTON, J.

license: Public Domain

text:
    No. 550
    First Circuit
    RiCHARD ET AL. v. HORECKY
    (May 6, 1930. Opinion and Decree.)

      John W. Lewis and George K. Perrault, of Opelousas, attorneys for plaintiffs, appellants.
    Medlenka, Bruner & Chambers, of Crowley, attorneys for defendant, appellee.
   MOUTON, J.

In April, 1920, E. H. Richard and his mother, Mrs. H. P. Richard, formed a commercial co-partnership with Conrad C. Plorecky and Alphonse H. Arceneaux, denominated the Richard-Horecky & Co., domiciled in Church Point, Acadia parish.

In December, 1922, E. H. Richard and his mother, Mrs. H. P. Richard, bought the interest of Conrad C. Horecky and Arceneaux in the partnership, including stock, furniture, notes, open accounts, rights, credits, etc. Plaintiffs allege that among the assets so purchased was an open unpaid account amounting to $443.69 due by John Horecky, defendant, a merchant living in Church Point.

Mrs. IT. P. .Richard died after making this purchase with E. H. Richard of part of the co-partnership, as before alleged. ,E. H. Richard, with the children and grandchildren of Mrs. Richard, his co-heirs, have instituted this suit against John Horecky on this alleged unpaid account of $443.69, annexing to their petition the general account of defendant with the firm, in which this balance is shown.

In the answer filed by defendant he denies the account alleged against him or that he owes it.

Further, defendant avers that he is a wholesale merchant in Church Point; that from May, 1920, to October, 1922, he sold and delivered to the Richard-Horecky & Co. a large quantity of merchandises, receiving in partial payment produce and returned merchandises; that about October 1, 1922 the firm of Richard-Horecky Company gave him a note of $2,410.33, with collaterals, in full settlement of the debt due him by the firm; that he subsequently received a credit of $147 which he applied on the note; that in December, 1922, the firm of Richard-Horecky Company became financially émbarrassed, and effected a compromise with him of its indebtedness on the basis of 65 per cent on the dollar, which he accepted in full settlement of his note of $2,410.33 that had been reduced to $2,262.74 by the amount of $147, which he had credited on it, as before stated; and that he surrendered to the firm all the col-laterals he held as security, thus effecting a full settlement with the firm.

In the alternative he pleads that, if the court holds he has not had a full settlement with the firm, he then contends that the plaintiffs are in debt to him for merchandise sold to the Richard-Horecky Company in the sum of $375.10 which was not credited on the account sued upon; also for $202.94 for items for which, his records fail to show delivery, and which he denies to have received, leaving a balance in his favor of $134.35 due him by plaintiffs.

ON MOTION TO DISMISS

The district judge rendered judgment rejecting the demand of the plaintiffs, and likewise the defendant’s reconyentional demand.

Plaintiffs have appealed, as has also the defendant on his reconventional demand.

Plaintiffs’ counsel contends that the motion to dismiss the appeal was filed too late by the defendant to entitle him to a dismissal of their appeal, even if there he legal grounds therefor.

Article 886, C. P., which refers to motions to dismiss appeals, and to answers to appeals, says, when the record has been filed in the Supreme Court, the appellee must file his motion or answer within three days therefrom.

In the case of Scheen vs. Hain, 141 La. 606, 75 So. 427, the record was filed September 4, 1915, and the motion to dismiss September 30, 1915. The court held the motion to dismiss was filed too late, and refused to dismiss the appeal, citing C. P. art. 886, to which we have referred also. Walker vs. Sauvinet, 27 La. Ann. 314; Webb vs. Keller, 39 La. Ann. 55, 1 So. 423.

Here the record in the main suit was filed September 25, 1929; and another record where defendant appeals was filed October 3, 1921, whilst the motion to dismiss plaintiffs’ appeal was filed in this court on October 23, 1929, certainly far more than three days from the filing of either of the two records. Under C. P. art. 886, and the decisions cited, the motion was obviously filed too late, unless defendant can find relief under the provisions of Act No. 103, 1908, p. 161, where it provides, in reference to Courts of Appeal, that the answers to appeal shall be allowed filed before argument within the first three days of the actual sittings of any regular session of said courts.

This amendatory act refers to cases covered by the provisions of article 890, C. P., where there is no reference to a motion to dismiss as provided for in article 886, hereinabove cited. Act No. 103 of 1908, nor any other statute, of which we are aware, has made any changes to article 886, C. P., which requires, as held by our courts, that a motion to dismiss should be filed within three days from the filing of the record or transcript in the appellate court. It is well settled that the right of appeal, a constitutional one, should be liberally construed, and we hold that as a necessary consequence a motion to dismiss an appeal, to he effective, must he brought within the provisions of the law. In the instant case it was filed too late, and must be denied.

ON THE MERITS

The evidence shows in this case that the firm of Richard-Horecky Company had been doing an extensive business with defendant, who was a wholesale and retail merchant in Church Point. In October, 1922, a settlement of accounts was effected between the firm and defendant, in which the firm gave defendant its note for $2,-410.33 for the balance of its debt to defendant. After that settlement, defendant applied a credit of $147.59 on the note, thus reducing it to the sum of $2,262.74.

In December, 1922, the firm became financially embarrassed, and made a compromise with defendant, paying 65 per cent to defendant on its debt, which was represented by this note of $2,262.74, and which was secured by collateral obligations. When this settlement’ was effected, the collaterals were also surrendered to the firm.

In their petition plaintiffs have made no reference to that settlement, and restricted themselves to a claim for $443.69, which they alleged was due them by defendant on an open unpaid account, which they had acquired through their deceased mother from the defunct firm. The defendant came into court, pleaded the original settlement by which the firm had recognized its debt to him for $2,410.33, represented by a promissory note, and had subsequently paid $147.59 on that note which had thus been reduced to $2,262.74 on a compromise basis of sixty-five cents on the dollar; and, in the alternative, if the court did not recognize that a full settlement had been effected, in that event defendant tendered a plea of set-off, alleging that on this plea a balance of $134.35 would be found due him by plaintiffs.

If the parties fell into an error in making that settlement, the burden of proof was upon plaintiffs to show wherein this error existed. In other words, and to be more specific, plaintiffs were required to show that, when these notes were given and settled by the firm, an unpaid account of $443.69 had been omitted from consideration in that settlement. It was not incumbent on defendant to show that no such error had been committed, and that in the settlement he had paid that account, if any such existed.

The proof shows that Conrad C. Horecky, who had been a partner in the firm, was also its bookkeeper and manager, and was the one who had executed the note in favor of defendant, and had made the settlement, as above stated. Basing himself on these facts, counsel for plaintiffs seems to intimate that Conrad C. Horecky took advantage of this situation, and, with the connivance of defendant, his father, purposely left out the account sued upon in effecting the settlement.

It is shown that in the final settlement the reduced note of $2,262.74 was paid for on a 65 per cent basis per dollar, and that it was at that time secured by collaterals and which appear to have been valid in so far as the record discloses. It is therefore shown that in the settlement on that basis defendant was losing on his secured note a sum of money far in excess of the $443.69, which plaintiffs contend was intentionally or fraudulently kept out of the compromise. We have no doubt that, if Conrad C. Horecky or his father had known, or even had thought, that there was any such account due by him to the firm, it would have been included in that settlement, and a discount of 65 per cent would have been made on the balance which would have remained due on the note after proper deduction for the amount of this alleged unpaid account.

Counsel for plaintiffs says that in another suit, contemporaneous with the present litigation, Conrad C. Horecky has been found guilty of fraud, collusion, and embezzlement. No proof to support that statement is in this record. Even if that be true, we cannot see for what reason Conrad Horecky would have been induced to omit the account plaintiffs are claiming from the settlement where his father was allowing a discount on the note in a much larger amount than is the sum now claimed against his father and which could then have been included in the compromise.

In order to arrive at the conclusion that such a fraud was committed, it must be held that the defendant, John Horecky, was a participant therein as he was the debtor, if there was then existing against him such an unpaid account. There is, however, no proof whatsoever in this record that defendant is not an honorable man, and there was no cause that we can see why he should have been prompted to omit that account in the compromise he effected with his son, then the manager and representative of the Richard-Horecky firm.

The proof shows that Conrad Horecky gave a check of the firm to defendant for $1,499.55, in payment of the note for $2,-262.74.

In testifying in reference to this payment, E. H. Richard, one of the plaintiffs and former partner in the firm, says that at the time this payment was made he knew nothing about the books of the firm. He says, however, that the payment of the 65 per cent was intended as a settlement in full of all the transactions between the firm and defendant. He says he thereafter employed an auditor to audit the books. The record shows that C. W. Hanna was the auditor employed. The auditor, after an examination of the books, reported His finding of this unpaid account for the recovery of which this suit was brought.

Hanna, the auditor, knew nothing about the settlement to which we have herein-above referred. He based his conclusions on a comparison of the ledger accounts of defendant, and of the firm, also on items that appeared on McCaskey slips he found in the store of the firm. There is an amount, for instance, of $294.12 charged to defendant for which the auditor admits he did not have slips to represent some of the items therein included. He said that there were only two items for which he had no slips as far as he remembered, but he qualified this statement by saying he could not swear to that. The claim of the plaintiffs is based on accounts which the auditor got as best he could, and which, as a result, leaves the claim in much doubt, obscurity, and uncertainty .when taken in connection with the evidence of the defendant.

Counsel for plaintiffs refers to C. C. art. 2232, which says, when a party claims he has been exonerated from an obligation, he must prove the payment or the fact which has produced the extinction of the obligation. Plaintiffs in their petition skillfully avoided any reference to the settlement between the firm and defendant, and now claim that the account upon which they sue was left out of consideration in that compromise. If they had referred thereto as a foundation for their cause of action, it is evident that the burden of proof would have fallen upon them to establish the alleged error or deception upon which their demand is necessarily grounded.

The defendant, however, interposed the plea of compromise and settlement, and from the evidence the truth of the transaction was fully revealed, thus imposing upon plaintiffs the duty of carrying this burden of proof.

Counsel for plaintiffs insists here that this plea of settlement by compromise is really one of payment. Conceding, for the sake of argument, that the defense was in reality one of payment, we find that the settlement between plaintiffs and the firm was made without concealment, fraud, or artifice, constituted a full compromise and settlement of the mutual claims of the respective parties, and left no grounds for the claim herein máde which is not sustained by the evidence.

The court rejected the claim of the plaintiffs and defendant’s demand, which find to be legal, just, and equitable, and the judgment is therefore affirmed.


author: LeBLANC, J.

text:
    No. 586
    First Circuit
    J. R. WATKINS CO. v. HOGGATT ET AL.
    (May 6, 1930. Opinion and Decree.)
    (June 9, 1930. Rehearing Refused.)
    Miller & Richardson, of Bogalusa, attorneys for plaintiff, appellant.
    Ott & Johnson, of Franklinton, attorneys for defendants, appellees.
   LeBLANC, J.

This is’ a suit on a written contract entered into between the plaintiff, J. R. Watkins Company, and the defendant Luther G. Hoggatt, and in which the other defendants, M. A. Thigpen and L. L. Bankston, also bound themselves, in solido, as sureties, to guarantee the payment of any indebtedness that may become due thereunder by the principal, Luther G. Hoggatt.

The contract is dated November 26, 1924. It is a renewal of previous contracts between the two principals, under the terms of which the Watkins Company bound and obligated itself to sell and deliver, at wholesale prices, medicines, extracts, perfumery, and other goods and articles which it manufactured, to the defendant, Hoggatt, as reasonably required by him, for resale in the parish of Washington, except in the city of Bogalusa.

The defendant had been falling behind in his business, and, on November 26, 1924, when the contract sued on was entered into, he was indebted to the plaintiff in the sum of $1,648.32, as recognized by the terms of the contract itself. The parties continued their business relations under the new contract. Goods were shipped between December 2, 1924, and June 10, 1926, to the extent of $780.62. On the latter date, availing itself of rights it claimed under it, the plaintiff canceled the contract. As the defendant had in the meantime made payments ampunting to $848, the balance due under the contract was $1,580.94, the amount sued for.

The defendant Hoggatt admits the execution of the contract, and the amount of his indebtedness as fixed therein, admits the subsequent transactions under the agreement, and admits haying collected $500 in addition to amounts previously remitted, which amount he tendered in full satisfaction of his obligations under the contract.

He claims to be released from further liability, because the plaintiff, by refusing to fill his orders as required by him, has violated the contract and made it impossible for him to continue his further compliance with its terms. He reconvened in his answer and asks for a judgment against the plaintiff in the sum of $2,000 for damages which he alleges he suffered in his business.

The two other defendants seek to be released from their obligation as sureties on the ground that they received no consideration for signing the contract, and otherwise they adopt the answer of their principal and make it their own. They pray that, in the event judgment be rendered against them on the contract, their principal be condemned to pay them any amount they may be compelled to pay.

The lower court rendered judgment in favor of plaintiff in the sum of $500, the amount tendered by Hoggatt, and condemned the plaintiff to pay the costs. In effect, it was a judgment against the plaintiff, from which this appeal was taken. Defendant Hoggatt has answered the appeal asking for a judgment in the sum of $500 on his reconventional demand.

As the contract, with all its terms and conditions including the indebtedness fixed in it, is admitted, the issue is narrowed down to the one point, whether the defendant Hoggatt has become released from his obligations thereunder, on the ground which he sets out.

His theory is that his business with the plaintiff was a running one which was expected to continue from year to year, and that the plaintiff was to continue to supply him with goods so that he could continue to sell them at retail and have, at all times, outstanding collectible accounts sufficient to protect his indebtedness to the plaintiff. In other words, his ability to liquidate his indebtedness with plaintiff depended on his collecting his outstanding accounts, and, to collect these, he had to have goods to offer and sell. Under his theory of course, he claims that, when plaintiff stopped supplying him with goods, he could no longer collect any of his accounts, and therefore he was discharged from further liability.

We are unable to find anything in the contract to justify or support such contention.

Each contract, as we read it, is a separate and distinct agreement covering the period of time for which it had been entered into. On the sheet on which the contract is printed, there is a note, also printed, below the signatures of the parties, in which is expressed plaintiff’s willingness to make a new agreement with the defendant, provided, however, the business has been conducted in a manner satisfactory to it. Surely this note of itself cannot be construed as a clause by which the contract is mutually extended and continued from year to year. Plaintiff’s obligation to renew, if it had any, was predicated upon .its determination of the condition of the business, and it can hardly be said that, in refusing to continue, it acted arbitrarily, when it is considered that each year, from the time the first contract expired in 1914, there was an indebtedness due by the defendant which increased steadily each year, was reduced very little a year or two before the contract sued on was executed, but which, nevertheless, amounted on that date to the sum of $1,648.32.

Defendant’s contention that plaintiff violated the agreement by only partially filling his orders is met by both the proof in the case and by a stipulation in the contract itself. The latter gave the plaintiff discretion to either limit the sales or discontinue them altogether, if the defendant did not pay cash with his order, or if the payments reported in the weekly blanks furnished by plaintiff were insufficient to pay therefor. The testimony shows that the reductions made by plaintiff in filling the orders were inconsiderable when compared to the full amount of the order, and also that the defendant was not making payments in accordance with the terms of the agreement.

That plaintiff had the right to terminate the agreement on giving proper notice is plain from the contract itself which granted that privilege to either party. Proper notice was given to the defendant and to the sureties as well, and thereupon, under the same clause in the contract, defendant’s indebtedness became due and payable at once.

The contract sued on in this case is plain and unambiguous. Having been executed by the parties in good faith, it constitutes the law between them. Under none of its provisions can we find wherein it was contemplated that the plaintiff was to go on indefinitely supplying this defendant with merchandise and depend on his Collecting his outstanding accounts to be paid the amount of their indebtedness. We are of the opinion that plaintiff had reason to feel dissatisfied with the defendant’s business and was justified in exercising its right to cancel the contract. When it was canceled, as we have already said, defendant’s indebtedness became immediately due and ex-igible and his sureties became jointly and severally liable with him under their guaranty.

The claim in reconvention having been based on a violation of the contract on the part of plaintiff, and we having held that there was no violation, it follows that the demand will have to be rejected.

The judgment of the lower court was correct in dismissing the reconventional demand of the defendant Hoggatt, but it was erroneous, in that it allowed the plaintiff only the amount of $500 which had been tendered. That sum was just an arbitrary figure at which the defendant fixed his indebtedness, and there is nothing in the record to support it. The amount sued for was fully proven and is the one which should have been- allowed. The judgment was also erroneous in not condemning the defendants Thigpen and Bankston, in solido, with the defendant Hoggatt, under their contract of suretyship.

The whole judgment will therefore be recast so as to read:

Itj is now ordered, adjudged, and decreed that there be judgment herein in favor of the plaintiff, >J. R. Watkins Company, and against the defendants, Luther G. Hoggatt, M. G. Thigpen, and L. L. Bankston, condemning them to pay jointly, severally, and in solido, to the said plaintiff, the full and entire sum of $1,580.94, with interest at the rate of- per cent from -until paid, reserving to the defendants Thigpen and Bankston the right to proceed against the defendant Hoggatt to recover any amount they each may be called on to pay under this judgment.

It is further ordered that the defendants pay all costs in the district court, as well as the costs of this appeal.


author: DREW, J.

text:
    No. 3797
    Second Circuit
    SWAIN v. LOUISIANA LIGHT & POWER COMPANY
    (June 2, 1930. Opinion and Decree.)
    M. C. Redmond, of Monroe, attorney for plaintiff, appellee.
    Theus, Grisham, Davis & Leigh, of Monroe, attorneys for defendant, appellant.
   DREW, J.

This is a suit for damages occasioned by the cutting off, by two of defendant’s employees, of plaintiff’s electric current, both at his house and at his restaurant, on August 23, 1929.

Defendant is a public service corporation, supplying electricity to the residents of the city of West Monroe, La., and. at the time plaintiff’s lights were cut off he was living in that city and also operating a small restaurant on the main street of West Monroe, and was a subscriber to .the electric current furnished by defendant.

The bills sent out by defendant have printed on their face the following stipulation:

“This bill is due on the 1st and delinquent after the 10th. If not paid by the 15th, the company reserves the right to discontinue service without notice.”

The plaintiff was rather slow about paying his light bill, and on one occasion pri- or to this the lights in his house had been cut off for failure to pay by the fifteenth of the month.

On August 15, 1929, about 5:30 in the afternoon, plaintiff went to the office of defendant, and, the bookkeeper being gone for the day and the books all locked up, he paid his light bill to the manager, who was the only person in the office at the time. He paid by check, which was duly cashed, and through error the plaintiff was not given proper credit. On the 17th of August, in making up a list of delinquents, the plaintiff was found by the books of the defendant to be delinquent, and instructions were given to two employees to disconnect the lights in plaintiff’s house and restaurant. At about 9 o’clock in the morning defendant’s employees went to plaintiff’s home and notified his wife that they had come to disconnect the lights for failure to pay. She offered to pay, which offer was refused by the employees, they stating to her that she would have to pay at the office. The lights at the residence were cut off at about that time, and at about 11 o’clock the same employees went to the restaurant to cut off the lights there. The plaintiff was not in, and his employee, being his father-in-law, persuaded defendant’s employees to wait until 1 o’clock, at which time plaintiff was expected to be back, and informed them that, if plaintiff was not back at that time, he would pay the bill. About 1:30 the same employees returned to the restaurant, at which time the plaintiff had arrived. They asked plaintiff’s employee in the presence of plaintiff what he was going to do about the light bill, and he replied that he was not going to do anything. Just prior to the arrival of defendant’s employees, the plaintiff, in discussing the matter with his employee, had told him that he had paid the bill.

The defendant’s employees proceeded r.o cut off the lights in the presence of plaintiff, and plaintiff did not object, nor did he tell them that he had paid the bill. He said nothing to the men cutting off the lights.

About two hours later, plaintiff went to the office of the defendant and demanded that his lights be connected within thirty minutes. Within that length of time the manager of defendant went to the restaurant where plaintiff exhibited a canceled check showing that he had paid his bill. The manager apologized to him for the mistake, and at ten minutes to 4 the lights were again connected at the restaurant. A very short time afterwards the lights were again connected at the residence.

Plaintiff brought this suit for $850 damages for loss of business, discomfort, embarrassment, and chagrin, for the lights having been cut off. The lower court awarded him damages in the sum of $50. Prom that judgment defendant has appealed, and the plaintiff has answered the appeal, praying that the judgment be increased to the amount sued for.

Defendant has filed in this court a plea of estoppel, based on the fact brought out on the trial in the lower court that, as above set forth, plaintiff was present at the time the lights were cut off and knew full well at that time that the bill had been paid, and that defendant’s employees were making a mistake in cutting off the lights, and that he did not so advise defendant’s employees, and did not in any way, by word or action, protest against the cutting off of his lights, but, on the contrary, tacitly acquiesced in and consented to such action on the part of defendant; that plaintiff was under a legal duty to inform defendant’s employees that the bill had been paid, and, if necessary, to exhibit the canceled check to them, before the lights were cut off, in order to give the employees a chance to rectify the mistake; and that this silence on the part of plaintiff when under a duty to speak was a concealment of facts material, unknown to defendant’s employees, and, in effect, a misrepresentation to them, upon which they had a right to rely, and so relying thereon changed their own and defendant’s position for the worse.

The plea of estoppel, in so far as it relates to plaintiff’s claim for damages for disconnecting the lights at the restaurant, it well founded.

It is a matter of common knowledge that mistakes will occur in any business where there are a, number of customers to deal with, and, [while it is true that any one injured and damaged through the mistake of another is entitled to recover the amount of the actual damage caused him, it is likewise true that one cannot stand by silently and allow himself to he damaged when by his acts or words he could have prevented the damage. It is not only the duty of one to minimize any damage caused him, but it is as well his duty to prevent the injury if he can reasonably do so. ( When plaintiff stood by silently and allowed his lights to be cut off and raised no protest he by his silence acquiesced and consented for them to be cut off. It cannot be presumed that, if he had told defendant’s employees that his bill was paid or had exhibited to them his canceled check, they would have disconnected his lights; for as soon as he notified defendant that his lights must be connected within thirty minutes the manager of defendant went to plaintiff’s place of business to investigate, and, upon being shown the canceled check, plaintiff’s lights were immediately connected.

“An equitable estoppel in pais requires, as to the person against whom the estoppel is claimed, opportunity to speak, duty to speak, failure to speak, and reliance in good faith upon such failure.” Words and Phrases, First Series, vol. 3, page 2498.

On the same page, the following definition is given of estoppel:

“To constitute an estoppel, the following elements are essential: (1) There must be conduct, acts, language, or silence amounting to a representation or a concealment of material facts. (2) These facts must be known to the party estopped at the time of his said conduct, or, at least, the circumstances must be such that knowledge of them is necessarily imputed to him. (3) The truth concerning these facts must be unknown to the other party claiming the benefit of the estoppel at the time when such conduct was done, and at the time when it was acted upon by him. (4) The conduct must be done with the intention, or, at least, with the expectation, that it will he acted upon by the other party, or under such circumstances that it is both natural and probable that it will be so acted upon. * * * (6) He must in fact act upon it in such a manner as to change his position for the worse.”

Every element of estoppel, as above defined, is present in this case.

In the case of Wilson Sewing Machine Co. vs. Southern Express Co., 42 La. Ann. 593, 7 So. 710, 712, the court said:

“The foregoing doctrine is fully applicable here, and sanctions the formulation of the doctrine of estoppel, sustained by universal jurisprudence, to the effect that an equitable estoppel arises when a party to an action has by his faulty and negligent conduct induced his adversary either to do or to admit some act or acts, by means of which the loss which is claimed against him might have been averted.” .

When the lights were disconnected at his residence, plaintiff was not at home, and it is not shown that his wife had any knowledge that the bill had been paid, and in fact her offering to pay the bill at that time convinces us that she did not know it had been paid. Therefore the plea of estoppel to the claim for damages for disconnecting the lights of the residence is not good, and plaintiff is entitled to recover whatever damage was caused him by that act of the defendant. The lights at the residence had been cut off a month or two prior to this time for failure to pay his bill, and therefore we fail to see where plaintiff could have been greatly chagrined or embarrassed by this act. His wife was deprived of the use of a fan for the greater part of the day, and some roomers were deprived of using the electric iron. There is such small damage proven, if any, that we feel plaintiff is only entitled to nominal damages for the mistake of defendant.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be amended by reducing the amount of said judgment in favor of the plaintiff from $50 to $5, and that, as so amended, the judgment of the lower court be affirmed. Cost of appeal to be paid by plaintiff, appellee.


text:
    No. 651
    First Circuit
    DAIGLE v. CHIASSON
    (June 9, 1930. Opinion and Decree.)
    Harvey Peltier, of Thibodaux, attorney for plaintiff, appellant.
    Harris Gagne, of Houma, attorney for defendant, appellee.
   LeBLANC, J.

This is a suit for damages arising out of an automobile accident

On September 2, 1929, between the hours of 5 and .6 o’clock in the afternoon, a collision took place between the plaintiff’s Ford sedan which was being driven by his wife, and a truck belonging to and being driven by the defendant, on the Bayou Terrebonne Road just out of the town of Thibodaux, on the way to Shriever.

Mrs. Daigle was driving in the direction toward Thibodaux, and the defendant toward Shriever. There was another car just in front of the defendant’s truck, and as Mrs. Daigle was about to meet it, the defendant, instead of remaining in the rear of that car, attempted to pass it and ran into the Daigle car, the force of the impact throwing it across a ditch along the edge of the road. Mrs. Daigle’s two children, Roy, three years old, and Ray, five years, were with her in the Ford sedan and were both injured.

Suit was brought by the father in which he asks for judgment for himself in the sum of $110 for damages .to his automobile, and in the sum of $2,025 in his favor as father of the minor Ray Daigle, and in the sum of $1,025 in his favor as father of the minor Roy Daigle.

The trial judge awarded judgment in favor of the plaintiff for the full amount asked for as damages to the automobile and $50 for each of the two children for the injuries sustained by them.

The plaintiff has appealed from the judgment asking that it be increased to $1,500 for each child. The defendant did not appeal and has made no appearance in this court. We will therefore act on the presumption of the correctness of the judgment insofar as it condemns the defendant in damages and limit our consideration of the case to the quantum.

As we read the evidence, the plaintiff’s car must have been struck a violent blow by the truck, to have been thrown across the ditch along the roadside and completely overturned. The children had to be extricated from underneath the wrecked car. Their injuries consisted principally of severe cuts on the fingers, arms, nose, and scalp, which the examining physician detailed as follows:

“Ray had severe cuts from the four joints of the fingers, index finger and the remaining three fingers, all but the thumb. The index finger and the one next to the index finger were cut to the joint. The same child had a laceration on the arm and two or three cuts in the scalp, Roy I think by name, had a laceration on the elbow of one arm, the elbow, a severe cut on the nose and also on his scalp.”

They both suffered considerable pain which had to be alleviated by the administration of sedatives. They were under the care of a physician for two weeks and both bear scars from their cuts and wounds which will remain for a considerable time, some of them probably as long as two years. Considered as a whole, it appears that each child’s injury was as great as that of -the other and in the case of each was severe enough to warrant a judgment of more than $50.

We have been referred to a large number of decisions which we have read, with numerous others, to assist us in fixing a proper amount, which is always a perplexing question in cases of this kind. For injuries of a nature such as these children received, the awards seem to average about $350, which we believe would be a fair and reasonable amount to allow in the case of each. Included in the (plaintiff’s demand was a claim for $25 for each child for physician and medical expenses, but he offered no proof in support of these items, and therefore they cannot be recovered.

The judgment appealed from is therefore affirmed insofar as it condemned the defendant to pay the sum of $110 for damages to the automobile, and it is amended by increasing the amount allowed the plaintiff as father of his minor child Ray Daigle from the sum of $50 to the sum of $350, and also by increasing the amount allowed him as father of his minor child Roy Daigle from the sum of $50 to the sum of $350; and as thus amended it is affirmed.


author: ODOM, J.

text:
    No. 3834
    Second Circuit
    NELSON v. COPPAGE
    (June 2, 1930. Opinion and Decree.)
    V. M. Mouser, of Columbia, attorney for plaintiff, appellant.
    A. D. Flowers, of Jena, attorney for defendant, appellee.
   ODOM, J.

This is a suit to obtain a money judgment against the defendant, who is alleged to be a resident of California. Not being able to get personal service on the defendant, plaintiff sought to obtain jurisdiction by attachment proceedings. A curator ad hoc was appointed, and a writ of attachment was issued. The sheriff in his returns on the writ stated that no property belonging to defendant was pointed out to him, and that he was unable to find any. H. L. Hunt, Incorporated, an Arkansas corporation, alleged to be engaged in business in Louisiana, was made a party garnishee and ordered to answer the interrogatories propounded to it. Its answers to the interrogatories disclosed that it owed defendant nothing, and its answers were not. traversed. The district judge sustained an exception to the jurisdiction, and ¡plaintiff appealed.

Appellant has made no appearance in this court through counsel or otherwise to point out any error in the judgment.

The judgment is correct. “Nonresidents cannot be brought into courts of Louisiana, on ordinary demands for money, by substituted service.” Latham et al. vs. Glasscock, 160 La. 1090, 108 So. 100.

“In the absence of personal service against a non-resident, to vest the court with jurisdiction, there must be property of the non-resident within its territorial jurisdiction, and such property must be validly seized or levied upon under process issued by the court.” Pugh vs. Flannery et al., 151 La. 1063, 92 So. 699.

The judgment appealed from is affirmed, with costs.


text:
    No. 3731
    Second Circuit
    MAY v. JOHNSON ET AL.
    (June 2, 1930. Opinion and Decree.)
    J. W. Elder, of Ruston, attorney for plaintiff, appellant.
    H. W. Ayres, of Jonesboro, attorney for defendants, appellees.
   ODOM, J.

These defendants did a general garage business in the village of Chatam for three or four years, and on March 30, 1926, sold the business and all the property connected therewith to the plaintiff, May. The property conveyed consisted of a lot of ground, a garage building, shop, tools, parts, spare parts, and their stock of merchandise then on hand in said garage building. The consideration for the sale was $4,750, evidenced by notarial act of transfer.

On the same day, but at a later hour, they executed, in notarial form, the following instrument, to-wit:

“State of Louisiana, Parish of Jackson:
“Before me the undersigned legal authority personally appeared W. T. and D. S. Johnson, who declared that each of them in consideration of having sold their garage business to W. B. May, agrees and promises not to engage in the garage business in the Village of Chatam, without the written consent of the said W. B. May or his legal representative.”

In the month of July, 1928, the defendants were working in another garage in the village of Chatam, and plaintiff brought the present suit to restrain and prohibit them from “operating or working in a garage in the Village of Chatam, Louisiana, in violation of their contract.”

Defendants set up as defenses that the contract which they signed was void as being against public policy, that it was executed without consideration, and, pleading generally, they denied that they had violated their agreement by engaging in the gftrage business, but were working as mechanics in a garage operated by another. A trial of the case on its merits resulted in a judgment rejecting plaintiff’s demands, and he appealed.

OPINION

The agreement which plaintiff contends was violated by defendants is quoted above and speaks for itself. Defendants bound and obligated themselves not to again engage in the garage business in the village of Chatam.

We find no merit in the contention that this contract was void as against public policy; Defendants did not pretend to bind themselves not to again engage in the garage business anywhere, but only that they would not again enter that business in a certain village, Chatam. They could have, under the contract, set up another garage at once at any place other than that village. The jurisprudence is clear on this point. In the case of Moorman & Givens vs. Parkerson, reported in 127 La. 835, 54 So. 47, the court said:

“The law will not permit a man to bind himself by contract not to pursue at any time or at any place the calling whereby he earns his livelihood, because, being so bound, he may become a charge upon the community. But contracts whereby men bind themselves never thereafter to pursue a particular calling, within certain, reasonable, geographical limits, or not to pursue such calling at all within a limited and reasonable time, are generally upheld. Oregon Steam Nav. Co. vs. Winsor, 87 U. S. (20 Wall.) 64, 22 L. Ed. 315; Fleckenstein Bros. Co. v. Fleckenstein, 76 N. J. Law, 613, 71 A. 265, 24 L. R. A. (N. S.) 913; 9 Cyc. pp. 525, 527.”

Nor do we find any merit in the contention that the contract was without consideration. The consideration was the advantage received by defendants from the sale of their property to plaintiff. But, under the facts disclosed, we find that defendants violated neither the letter nor the spirit of the contract here sought to be enforced. They were automobile mechanics by trade, and some three or four years previous to the date of this contract, entered into the garage business and presumably plied their trade as mechanics in connection with it. But the “garage business” which they owned and operated and which they sold to plaintiff was an establishment where cars were repaired and, in addition, where “parts, spare parts and merchandise” were kept for sale and sold. The layout which they owned and sold consisted, according to the deed, of a lot of ground with its improvements and appurtenances described as a “garage building, shop, tools, parts and spare parts and stock of merchandise now on hand in said building and on said premises.” It is recited in the deed that the vendors (defendants here) were indebted to an oil corporation and to a hardware concern which debts were assumed by the purchaser. Defendants had a business establishment of their own, and were conducting what is generally understood to be a “garage business”; that is, a business not only of repairing ears, but of keeping and selling automobile accessories, oil, and gasoline. It was this business, together with the real and personal property used in connection with it, which was sold. The testimony shows that at the time of the sale this was the only business of the kind conducted in the village of Chatam, and that it was the purpose and desire of plaintiff to acquire that business and continue it, which he did. The business was a financial success as long as there was no other garage business in the village, but, when another garage was set up, plaintiff’s business fell off.

These defendants did not agree or bind themselves not to again pursue their vocation of automobile mechanics in Chatam¡ nor did they agree to refuse employment in a competing or rival business, nor did they sell to plaintiff their good will. They could have done so legally, we think, under proper restrictions, but the facts are that they did nothing of the kind. That is manifestly shown, not only by the contract itself, but by the testimony. Under the letter of the contract, they bound themselves not to engage in the garage business. They carried out that contract. When this suit was filed, a year and a half after the contract was entered into, they were working in another garage in the village of Chatam, for another man, as mechanics, at a daily wage of $5. They owned no interest in the business, did not share in its profits; all they got was compensation for their work. True, they were the chief workmen, decided what work was to be done on each vehicle brought in for repairs, how the work was to be done, and fixed the price to be charged the owners. Now it is contended that under these circumstances defendants were engaged in the “garage business,” as that term was used and understood by the parties to the contract. We do not think so. Defendants testified that they did not intend to deprive themselves of the privilege of pursuing their vocation, or calling, of automobile mechanics as a means of livelihood, as that was the only trade they knew. That plaintiff did not think they did so or intended to do so is evidenced by the fact that, when he purchased the garage business from defendants, he immediately employed them as mechanics in the garage and kept them employed for about eight months. When they left plaintiff’s employ, they worked as mechanics for Mr. Garner, who sold Chevrolet cars but who had no repairs made except on cars of that make. Mr. Womack, a business man of the village, entered into the garage business in Chatam, in 1928, and, before doing so, told plaintiff of his intention and told him that he expected to employ defendants as mechanics. Plaintiff made no objection or protest, nor did he object to defendants working as mechanics for Mr. Garner.

Plaintiff made an effort to prove that defendants were financially interested in the Womack garage, where they were working and that, in fact, it was their garage, but he failed, as the testimony shows beyond question that the garage was owned by Mr. Womack and that he employed defendants to work as mechanics therein at $5 a day.

Counsel for plaintiff, in support of .his contentions, cited the following decisions; Wintz vs. Vogt, 3 La. Ann. 16; Dietzgen Co. vs. Kokosky, 113 La. 450, 37 So. 24, 66 L. R. A. 503; and Moorman & Givens vs. Parkerson, 127 La. 836, 54 So. 47.

These cases do not support plaintiff’s contentions. In the 3 Annual case, it whs found that defendant sold a butcher stall in a market, together with his good will, and agreed not to sell or cause to be sold on his account beef meat within the city of New Orleans. The court' found that defendant violated the condition of his contract and bond by selling beef in the same market, in the third stall from that which he had sold to plaintiff. Under those facts, there was judgment for plaintiff.

In the 113 Louisiana case, the defendants sold their business and good will to plaintiff, and in the act of sale the individual members of the firm bound themselves not to engage in a competitive business in New Orleans during a certain period, and after the sale one of them entered into a competitive business, and the court sustained the application for injunction.

In the 127 Louisiana case, the defendant sold his interest and good will in an insurance business and agreed not to enter the insurance business in opposition to the purchasers, but later on entered the insurance business in the same territory in competition with the purchasers.

The judgment appealed from is correct, and is accordingly affirmed, with costs.


author: WEBB, J.

text:
    No. 3737
    Second Circuit
    WALKER v. HUNT
    (June 2, 1930. Opinion and Decree.)
    Hudson, Potts, Bernstein & Sholars, of Monroe, attorneys for plaintiff, appellant.
    Shotwell & Brown, of Monroe, attorneys for defendant, appellee.
   WEBB, J.

This is an action to recover damages for personal injuries resulting from plaintiff being hit by a motor-truck owned by defendant and being operated at the time of the accident by one of his employees.

Plaintiff alleged, in substance, that on the morning of January 17, 1928, he was driving an automobile south along a public highway when the gasoline was exhausted, and that he stopped the car, got out, and hailed the driver of an automobile which was proceeding north along the highway, with the view of riding back to a filling station; that the driver stopped the automobile on the east side of the roadway, at a distance of two or three feet from the extreme edge, where there was a ditch, and that he (plaintiff) passed over the roadway to the right side of the automobile and was preparing to get into the car when he heard the noise of an approaching motor-truck, and that, glancing back towards the south, he observed the motor-truck of defendant a short distance to the rear of the automobile, advancing at an excessive rate of speed, with the driver looking back, talking to some one in the truck; that, apprehending the truck would collide with the automobile, he moved to and around the rear of the automobile and attempted to pass to the west of the road, and was hit by the motor-truck as it swerved and passed to the west of the automobile, with the result that plaintiff sustained serious injuries.

Defendant admitted that plaintiff had been hit by the truck, but denied any liability, or that the truck was driven at an excessive rate of .speed, or that the driver was guilty of any negligence, and alleged that the accident was due solely to the fault of plaintiff in attempting to pass in front of the truck; and on trial, plaintiff’s demands being rejected, he appeals.

Appellant urges that the evidence established that in attempting to pass in front of the moving truck he was acting in an emergency which was created by the negligence of the driver of the truck, and that defendant was liable for the consequences, and, further, in event it should be held that the driver of the truck was not negligent, or that plaintiff was not placed in an apparent perilous position by the action of the driver of the truck, that the driver of the truck had the last clear chance to avoid the accident.

The evidence does not establish that the truck was driven at an excessive rate of speed, or that it approached the automobile at such speed and to within such distance, before it was turned to pass, as to cause any alarm if the driver of the truck was aware of the position of the automobile and was observing the way. It was conclusively established that the driver of the truck was aware of the position of the automobile, the evidence showing that he observed the automobile when it came on the road and when it stopped; and, while the statements of plaintiff and the driver of the truck, relative to whether the latter was maintaining a lookout as the truck approached the automobile, were in conflict, the truck did not collide with the automobile, and it is not suggested that the collision of the vehicles was avoided by any warning from plaintiff, or in the attempt of the driver of the truck to avoid colliding with plaintiff. While we think that plaintiff was alarmed and that in attempting to pass in front of the moving truck he acted on the assumption that he was in peril, the evidence does not establish that he was in peril, or that the assumption was based on any action of the driver of the truck, and, unless it may be said that the truck driver had the last clear chance to avoid the accident, defendant is not liable.

Plaintiff’s petition as well as the evidence shows that he acted immediately on his apprehension of danger, and, although the evidence indicates that the driver of the truck did not see plaintiff until the moment of collision, it does not show that the collision could have been avoided, even though the driver of the truck had realized that plaintiff was alarmed, and we do not think that the facts show the driver of the truck had the last clear chance.

The judgment is therefore affirmed.