author: McGREGOR, J.

text:
    No. 4084
    Second Circuit
    BLANKS v. SAENGER THEATRES, INC. ET AL.
    (January 14, 1932. Opinion and Decree.)
    (February 16, 1932. Rehearing Refused.)
    (March 30, 1932. Writs of Certiorari and Review Refused by Supreme Court.)
    O. A. Easterling and A. B. Guthrie, of Monroe, attorneys for plaintiff, appellant.

      Theus, Grisham, Davis & Leigh, of Monroe, attorneys for defendants, appellees.
   McGREGOR, J.

On January 7, 1930, Mrs. Josephine McNally Blanks, plaintiff herein, attended a performance in the building in the city of Monroe known as the Saenger Theater. This building is at the corner of DeSiard and Third streets, fronts on the north side of DeSiard, and is on the east side of Third; Plaintiff emerged from the said building through the DeSiard street exit and was proceeding toward her home, walking along the west side of the building, going north on Third street. As she was thus proceeding and when she was about one-half the length of the building from the corner, she was suddenly struck from above by a metal automatic fire escape drop ladder. One end of this ladder was attached to the building about twelve feet above the level of the sidewalk and the entire ladder was held suspended at this height, parallel with the sidewalk, by means of a counter-balancing weight and chain. The ladder is so constructed that when one walks upon it the weight overcomes the balance and causes the unattached end to descend to the sidewalk in such position as to allow free passage down. Immediately at the attached end of the ladder there is an iron balcony and a door leading into the building at the second floor. This door is equipped with what is known as a riot lock, specially made for public buildings. It is so constructed that onq can always go out by it, but if it locks properly, one cannot enter it from the outside. The reason for this is obvious — that In case of fire or sudden emergency persons may leave the building by this exit without hindrance, and that no one shall enter thereat. The plaintiff was not aware of any danger, but just as she was walking under the parallel ladder the unattached end suddenly descended without warning upon her and struck the right side of her face and head, and also her right shoulder and arm, with the result that she was thrown violently upon the sidewalk and rendered unconscious. It developed afterward that the cause of the ladder falling was that a young boy, apparently about 14 years of age, stepped upon it from the iron balcony and caused the unattached end to descend to the sidewalk as it was designed to do. Where the boy came from or who he was is not known, as he left the scene during the excitement, while the plaintiff was being resuscitated and 'placed in an automobile to be carried home.

Plaintiff called a physician who came to her home and administered the necessary treatment. Afterward she went daily to the physician’s office for several days, and later at varying intervals for several weeks. This suit was filed on November 4, 1930, and trial was had on January 15, 1931. The same physician who treated her examined her on the day before the trial and found her complaining of pain in her shoulder and elbow.

In its answer the defendant denied the fact of the injury and alleged that the Saenger Theater, known at the time of the trial as the Paramount Theater, is equipped with an exterior fire escape consisting of an iron balcony, which is reached from the door leading directly into the building, and a ladder counterbalanced so that it is suspended parallel with the sidewalk, which tire escape was constructed in accordance with the laws of the state of Louisiana, and after approval of plans and specifications therefor by the state fire marshal. It specially alleged that the said fire escape was constructed of a lawful type and was maintained in a safe and careful manner and was inspected regularly by the state fire marshal and his assistants under his supervision and control. (It is then alleged that if plaintiff was struck by the fire escape ladder, as she claimed, the cause of it descending upon her as it did was the walking thereon by the unidentified boy referred to above — an unauthorized person not connected with defendant, over whom it had no control and for whose negligence it is not liable. In other words, the defense is that the proximate cause of plaintiff’s injury was the negligence of the boy in walking upon the fire escape ladder and not the construction and maintenance of the fire escape in the position and manner as alleged. There was judgment in the lower court for the defendant, rejecting the demands of the plaintiff, and she has appealed.

OPINION

There is practically no dispute as to the facts of the case and as to how the accident occurred. The plaintiff bases her claim for damages upon the theory that the construction and maintenance of the fire escape in the manner in which defendant did was negligent and the proximate cause of her injury. So that, in order to decide the case .it is necessary to determine whether the defendant was guilty of negligence in the construction and maintenance of the fire escape and, if so, whether this negligence was the proximate cause of the accident and the resulting injury to the plaintiff.

On the trial of the case it was proved that defendant’s fire escape was constructed in accordance with plans and specifications approved by the state fire marshal and strict compliance with the law. The law governing the construction of fire escapes is Act No. 300 of 1926. There is nothing in the act that provides for or permits the construction of a fire escape in such a way that there shall be a drop ladder working on a hinge and held in a horizontal position above the sidewalk by a counterbalancing weight. An automatic drop ladder or cantilever attachment is permitted in certain cases, but it is not provided anywhere that this should be suspended over a street or sidewalk. The law is very strict. It provides for internal and external escapes. It specially states that if a building requiring a fire escape is so situated that neither an internal nor an external one can be constructed, the proper officer shall give written notice to the owner to discontinue its occupancy. If an external fire escape cannot be erected without trespassing or encroaching upon the property of the owners of adjoining lands or buildings, the law makes it mandatory that only internal fireproof means of escape shall be erected. The fire escape erected by defendant in connection with its theater is an exterior one and is on the side of the building along which the sidewalk of Third street runs, and the last section of it consists of a drop ladder working on a hinge and held in a horizontal position immediately above the sidewalk, by a counterbalanced weight. If anything should happen to the mechanism that holds the counterbalancing weight in place, or if any one should step upon the ladder, it would instantly fall to the sidewalk upon any one that should be walking underneath it. The plans and specifications in accordance with which this fire escape was built and which were approved by the proper officer called for it to be thus built and suspended over the heads of pedestrians. Would the fact of this approval justify the defendant in so building it if, in the nature of its construction it was and is a menace to the public when walking underneath it?

In their brief counsel for defendant say:

"The law requires that defendants do certain things. Those things they have done and it cannot now be said that they must be penalized for having complied with the law.”

They say further:

“The operation of the theater is now and has been, and was particularly on January 7, 1930, under the strict observation and supervision of the State Pire Marshal. Deputy Pire Marshal McStraviek makes and has made regular and critical inspections. The fire escape shortly before the accident was inspected and approved by him.”

It must be borne in mind that the law, neither directly nor indirectly, provides that in the construction of fire escapes they shall be built so as to descend upon sidewalks and streets, or that the last section shall consist of a drop ladder suspended horizontally in midair in such cases. It is true that the officer to whom is delegated the duties of approving and supervising the construction and maintenance of these apparatuses did permit and approve of the construction of the defendant’s fire escape so that it should thus descend upon the sidewalk, and that the last section of it should consist of a drop ladder suspended horizontally in midair some twelve feet above the level of the sidewalk. But the fact that the officer did so approve of it cannot relieve defendant of liability for any damage that may be caused by it. That would be tantamount to conferring upon this officer both legislative and judicial powers.

In order that no private rights may be encroached upon, the law specially provides that, unless the fire escape can be so constructed as not to encroach or trespass upon the property of owners of adjoining lands or buildings, the occupancy of the building for any purpose which makes said building amenable to the fire escape provision of the law, shall be abandoned. No provision is made for the protection of pedestrians from the construction of fire escapes. That was deemed unnecessary. In the very nature of things it would be contrary to law to construct a fire escape in such a manner that it would be a constant menace to the public. In order to. avoid encroaching and trespassing upon private rights of property, the law specially provides for the construction of an internal fireproof means of escape. So, in order to prevent the erection of an external fire escape in such a manner as to endanger the life of the public, it would be permissible under the statute and mandatory under the general law to build an internal fireproof means of escape or, if necessary for the protection of the public, all or a portion of the building should be set back off the line of the sidewalk a sufficient distance to provide for the erection of the fire escape.

It would seem that the erection of any kind of contrivance or apparatus over the heads of pedestrians in any way except in an absolutely stationary manner is bound to be classified as dangerous and a constant menace. To say the least, an automatic drop ladder of the type used in the erection of defendant’s fire escape which caused the injury to plaintiff is a veritable trap, designed to be thrown as effectively and quickly as any trap set by trappers and designed to ensnare and entrap instantly the animals coming in contact therewith. It is specially designed to. operate quickly and surely upon a person’s putting his weight upon it. The ladder operates upon a hinge and is designed to descend quickly to the ground and, it ought to be so built as to descend at a place where pedestrians are not apt to be and have no right to be.

No cases have been found in our state reports involving facts parallel with the case under consideration. But plaintiff has cited one from the Court of Appeal of Missouri. It is the case of Roper v. Wadleigh, 219 S. W. 982. The statement of that case is in the following words, and shows it to be as nearly on all fours with the one at bar as is ever found:

“The building fronted east, and on the south side, on Fifth street, this outside fire escape had heen connected with the balcony. A large door opened from the balcony onto the landing of the fire escape, which was directly over the sidewalk. A stairway fastened into the side of the building led from this balcony downward to within 10 or 12 feet of the sidewalk. Then there was what is called a drop ladder working on a hinge and held in a horizontal position above the sidewalk by a heavy weight of some 75 to 80 pounds. When any person wanted to leave the building by the fire escape he went from the balcony through the door and down the steps to the drop ladder. Stepping on this, his weight would cause the ladder to descend till the end rested on the sidewalk, thus forming an outside stairway to the sidewalk. When in usual position, this drop ladder formed no obstruction to the sidewalk as pedestrians walked under it, but when it came down it did so on the sidewalk.
“On the occasion of plaintiff’s injury a capacity house had been witnessing a boxing match at this theater, and, the ‘bout’ being over, the audience were leaving the building. As plaintiff was quietly walking along the sidewalk under the fire escape, unaware of the impending danger, a number of persons made their exit from this building by way of the fire escape, and, coming to the drop ladder thereon, the same descended without warning on plaintiff’s head, crushing him to and on the sidewalk, inflicting injury. Every witness agreed that this fire escape with the drop ladder, when used for persons to descend thereon, was not only likely, but certain, to injure anyone who might happen to be passing along the sidewalk at that particular place.
“The negligence alleged in the petition on which the jury found for plaintiff is that said fire escape was negligently and carelessly constructed in that it protruded over the sidewalk, and was so constructed that, when persons proceeded from said building down same and stepped on the part called the drop ladder, the same would automatically fall to the sidewalk to the injury of any one using the sidewalk at that place.”

The defense in that case was practically identical with that of the defendant in this one. It was specially pleaded that:

“(1) An ordinance of Joiplin required fire escapes for buildings used as this one was and permitted same tq project into the highway not exceeding four feet and permitting drop ladders such as this one; and (2') that this building was leased to and under the entire control of Jimmie Bronson as .tenant, and that the persons who used said fire escape to plaintiff’s injury did so without the knowledge, consent, or authority of defendant.”

The defense in the cited case is stronger in that the law in that case not only required fire escapes as does our law, but specially permitted them to be erected, so as to project over and into the street a distance of four feet, and specially provided for and ¡permitted the drop ladder type to be thus suspended. In passing on the matter, the court said:

“While the ordinance of Joplin mentioned requires fire escapes for buildings of this character, it no more than permits same to project into a public highway not over 4 feet and requires drop ladders only if the fire- escape is so constructed that the lower balcony is more than 14 feet above the sidewalk or ground. This ordinance must be taken as merely permissive on the part of the public and municipality. Streets and sidewalks are primarily and essentially maintained for travel thereon, and ordinarily a municipality cannot grant such a use of a street as makes it dangerous and unsafe, and ‘any object in the street or sidewalk, under it or over it, which without notice or warning to the public is likely to cause injury to a person using the street or sidewalk, is certainly negligently maintained.’ 28 Cyc. 873, also pages 859 and 861.
“Nor do we think that the owner of a building abutting thereon has any right at common law to maintain even so necessary a -tiling as a fire escape over, and when in use violently descending on, a much-used public sidewalk. The owner of property must subordinate its use tq the safety of the public. Defendant could not have used this building to store dynamite therein because of its being in a populous city, and it may be that 'it was so situated that it could not safely, and therefore should not, have been used as a theater because of the inability tq have proper fire escapes and at the same time not endanger the use of the sidewalk. Such fact in no way excuses a structure dangerous to those using the sidewalk.”

In that case, a number of ¡persons made their exit from the building by way of the fire escape, and their going upon the drop ladder caused it to descend suddenly; whereas in the present one only one boy went upon it, and it is not shown where he came from or how he got on it. But the principle is the same. In each case a human trap was set, and the approximately delicate “trigger” was touched and a person was injured by the sudden descent of the drop ladder. As was said in the Roper, v. Wadleigh case:

“Streets and sidewalks are primarily and essentially maintained for travel thereon, and ordinarily a municipality cannot grant such a use of a street as makes it dangerous and unsafe, and ‘any object in the street or sidewalk, under it or over it, which without notice or warning to the public is likely to cause injury to a person using'the street or sidewalk, is certainly negligently maintained.’ 28 Cyc. 873, also pages 859 and 861.”

If it is true that the owner of a building is negligent in thus erecting and maintaining a fire escape where there is an express statute permitting it, it is all the more negligent in cases where there is no express statute permitting it, and the only authority for the erection and maintenance of such apparatus is the approval of the supervising and inspecting authority.

In support of the contention that the defendant’s automatic drop ladder fire escape suspended horizontally in mid-air over and above the sidewalk set apart for pedestrians is not a menace and dangerous and that to so erect and maintain the same is not negligent, counsel cite the case of Heva v. Seattle School District, 110 Wash. 668, 188 P. 776, 777, 9 A. L. R. 267. The sentence quoted from the case is as follows:

“The ladder is a simple appliance, not inherently dangerous, and as a rule any child old enough to climb one has intelligence enough to realize that if he falls injury and pain will follow.”

A careful reading of the case shows that the plaintiff, a boy over twelve years old, climbed upon a fence close to a schoolhouse and pulled himself up to a ladder that was attached to the building for a fire escape, and ascended thereon to the top of the building. Later, while he was on top of the building, he lost his balance, tripped and fell off the edge of the roof and landed on a part of the fire escape. The demand for damages was based on the theory that a fire escape ladder on the outside of the building is an attractive nuisance and dangerous. In that case, the fire escape did not extend over a sidewalk, nor was it built in the form of an automatic drop ladder. It was stationary and attached firmly to the building throughout its entire extent. There is no similarity between the two cases, and the court very properly rejected the demands of the plaintiff and held that the fire escape ladder was not an attractive nuisance.

Counsel for defendant urge that the Roper v. Wadleigh case cannot be relied upon as authority, for the reason that it was decided on the theory that the defendant could and should have reasonably anticipated that the fire escape attached to its building would be used in such a manner as to inflict injury in the event steps were not taken to prevent its use, and that there is no such allegation in the petition in the case at bar. It is not necessary that defendant should have anticipated, and that plaintiff should have so alleged, that this drop ladder would be used in such a manner as to inflict injury. It suffices that the ladder in itself is a menace to the safety of pedestrians, and is accessible to all the attendants of the theater. In fact it was proved by the then manager of the theater that that exit and ladder was used almost “often.” He testified as follows:

“Q. Does anybody ever stand there to keep your customers from going through that door?
"A. We try to keep people from going out or coming in because it is a fire exit.
“Q. They couldn’t come in there could they?
“A. Well, they can get in, yes sir.
“Q. How?
“A. You see these doors have riot locks, what they call riot locks, a special lock made especially for public buildings. Sometimes these locks don’t catch. In other words you can always go out and sometimes they don’t catch and you can open them and come in. Lots of times we had lots of trouble from boys opening the door —pushing down on the door a little bit and the boys from the outside coming in.
“Q. How would they get on that platform?
“A. Jump up on the fire escape.
“Q. Did people make a habit, when you were not watching that door, of leaving the theater by that door?
“A. Yes, sir, it is used. Both places are used. We tried as I say, the best way possible, to discourage the use of the fire escape as a means of exit or entrance.
“Q. Anyone ever placed there after a show for the particular purpose of keeping people from going out there?
“A. No, sir; not as a rule.
“Q. Was it done on January 7th, the day this accident happened?
“A. Not under my instructions they were not, no sir.
“Q. Mr. Greenblatt, have you ever had your attention called to the fire escape touching the ground — suspended end being down on the ground?
“A. Yes, sir.
“Q. It was frequently down?
* * * * * * *
“Q. Have you ever had your attention called to that?
“A. Yes, sir.
“Q. Was it often?
“A. Well, no, not in the sense that you would use ‘often.’ ”

No objection was raised to the reception of any of this testimony; therefore, if it were necessary for plaintiff to make such an allegation as is contended for, this testimony received without objection is sufficient to amend the pleadings in that respect, and so, under the testimony the defendant not only should have reasonably anticipated that this fire escape might be used in such a manner as to inflict injury on pedestrians, but it was proved that the defendant’s manager actually knew that persons on more than one occasion did go out at that exit and down that drop ladder. In other words, it was proved that the drop ladder was dangerous, and that it was easily possible for persons to leave the theater by that means of exit. In their brief, defendant’s counsel say:

“Of all the people who could have used the fire escape, it was used by only one boy. The fact that only one boy used it and the fact that the record discloses no uses of the fire escape on former occasions is a direct argument to the existence of conditions contrary to those found in the Missouri case.”

In the Missouri case, it is stated specially that:

“Nothing was shown as to its use on previous occasions, but the number and readiness with which people used it on this occasion bespeaks familiarity and shows the ease of so using it.”

In his testimony, the manager of defendant’s theater said:

“Lots of times we had lots of trouble from boys opening the door — ¡pushing down on the door a little bit and the boys from the outside coming in.”

He stated further that some people made a habit of leaving by that exit. So counsel is in error in arguing that defendant should not have reasonably anticipated that the fire escape would be used as an exit, for it was often so used to the knowledge of its manager.

But conceding for the sake of the argument that defendant was negligent in the erection and maintenance of the fire escape, counsel argue that this negligence was at best a i'emote cause and not the proximate cause; that the boy coming upon the ladder was a responsible person, and consequently the proximate cause of plaintiff’s injury. Undoubtedly if this boy could be found plaintiff would have a cause of action against those responsible for his acts. But does this fact mean that defendant’s negligence in the erection and maintenance of its fire escaipe was not also a proximate cause of plaintiff’s injury?

“Definitions and tests are inadequate to afford a definite and invariable rule whereby a line can be drawn between those causes which the law regards as sufficiently proximate and those which are too remote to be the foundation of an action.” 45 C. J. 900.

There have been an infinite number of definitions of proximate cause formulated by the courts and law-writers, and in the final analysis practically every case develops a state of facts that justifies a special definition of the term. In this case, the negligence of the defendant in the erection and maintenance of the fire escape and the stepping upon it by the boy and causing it to suddenly descend to the sidewalk and strike plaintiff were concurrent causes,' and each may be said to be a proximate cause. It is not necessary to render defendant liable to show that its negligence was the sole cause. It is sufficient to show that its negligence concurred with that of the boy. Proximate cause has been defined as an act without which the injury would not have been caused. If defendant’s fire escape had been a stationary ladder leading to the sidewalk below, the exit of the boy would not have caused plaintiff’s injury. If, on the other hand, the horizontal suspended drop ladder had not been over the sidewalk but had been over defendant’s own property no injury would or could have been inflicted upon plaintiff as she was walking upon the sidewalk where she had a right to be in safety. It is immaterial where the boy came from or how he got on the ladder. His • stepping on it caused it to descend. Furthermore, it descended because of the negligent manner of its construction; being left suspended over the heads of persons in such a way as that the mere stepping on it by a boy caused it to descend upon -¡plaintiff walking on the sidewalk. The negligence of the defendant in the manner of the erection and maintenance of the fire escape and that of the boy in stepping on it concurred in causing the injury. Without the • negligence of the defendant, that of the boy would not have been efficient. The condition of the fire escape was of such a nature that the defendant should have reasonably anticipated such an injury as plaintiff received; it was of such a nature that it was practically impossible to avoid the injury in the event of such a concurring of contributing cause as a person stepping on the ladder as the boy did.

The question of proximate cause is an intricate one, and is often near the border line. ' The principle involved is simple, but difficulty usually arises in applying the principle to a given state of facts. This case has given us much concern, and we have made an exhaustive examination of authorities and have read many cases. It would be useless to undertake to refer to them all or to try to harmonize and reconcile the varying views found therein. There are two outstanding cases that involve the question of what might be termed concurring proximate causes. We refer to them as briefly as possible, in support of our finding that defendant’s negligence is a proximate cause of plaintiff’s injury, concurrent with the negligence of the unknown boy. City of Rock Falls v. Wells, 169 Ill. 224, 48 N. E. 440, 441.

The facts of the case are stated as follows by the Supreme Court .of Illinois:

“Appellee, in company with her sister, a young girl, was riding in a sleigh drawn by one horse, and, soon after turning into said street from another, saw a runaway horse, attached to a buggy, coming west, in the direction to meet her on the same side of the street. In order to avoid the threatened collision; appellee undertook to cross over to the opposite side of the street. Along the center of North street was an electric street railway, which was unused, and had not been used for several months. The railway ties and tracks were from 6 to 10- inches above the street, and were an obstruction to travel. The roadway on the south side of the track (the side on which appellee was) was only 10 or 12 feet wide; there being a ditch along the outside of this roadway. In endeavoring to drive across the railway track and get out of the way of the runaway horse, appellee’s sleigh, when her horse got between the rails, stuck fast against the south rail; and, being unable to proceed further, she jumped out of the sleigh, and, for the purpose of warding off the approaching horse, went to the head of her horse, and struck the runaway with her whip as he approached, which caused him to veer to the south, and to strike a trolley pole. One of the wheels of the buggy was running'on the track,- and it, sliding upon the rail as the horse turned, struck appellee, and broke her left leg, and inflicted an apparently permanent injury.”

The only contention made by the city of Rock Palls was that the negligence of the city in allowing its street to be and remain obstructed was only the remote, and not the proximate, cause of the injury; that the intervening efficient cause of the injury was the runaway horse, with which the city had nothing to do. Judgment was rendered in favor of the injured party in the trial court. The Court of Appeal affirmed the judgment, and, upon review by the Supreme Court, the judgment of the appellate court was sustained. In the course of its opinion, the court said:

“This court is not committed to the doctrine as laid down by the courts of some of the states, but has held ‘that if a plaintiff, while observing due care for his personal safety, was injured by the combined result of an accident and the negligence of a city or village, and without such negligence thej injury would not have occurred, the city or village will be held liable, although the accident be the primary cause of the injury, if the consequences could, with common prudence and sagacity, have been seen and provided against by such city or village.’ City of Joliet v. Verley, 35 Ill. 58 [85 Am. Dec. 342]; Village of Carterville v. Cook, 129 Ill. 152, 22 N. E. 14 [4 L. R. A. 721, 16 Am. St. Rep. 248]; City of Joliet v. Shufeldt, 144 Ill. 403, 32 N. E. 969 [18 L. R. A. 750, 36 Am. St. Rep. 453]; Weick v. Lander, 75 Ill. 93.”

Another case in point is that of Consolidated Kansas City Smelting & Ref. Co. v. Binkley et al., 45 Tex. Civ. App. 100, 99 S. W. 181, 182. The facts of the case are stated by the Court of Civil Appeal of the State of Texas, as follows:

“The amended original petition alleged that plaintiff Chas. H. Binkley, whilst in the discharge of his duties as switchman for the defendant Galveston, Harrisburg & San Antonio Railway Co., was injured, by being knocked from one of its freight trains in passing under a blast pipe erected at the smelting works of appellant near the city of El Paso; that he had not been warned of such danger, nor informed of the location of said pipe; and that, while letting off one of the brakes and acting in the line of his duties, he was struck on the head and shoulder as the train was passing under the pipe, knocked from the car and injured as alleged. Plaintiff alleged negligence of appellant in erecting said pipe so close to the top of the cars as to injure employees of the railway company in the operation of trains, and negligence in defendant railway company in failing to warn plaintiff of his danger and provide some means of notifying him of the proximity of said pipe.”

Judgment was rendered in favor of Binkley against both defendants in the lower court. The smelting company alone appealed. Its contention was that the proximate cause of the injury was the negligence of the railway company in not taking due precaution to notify its employees of the proximity and danger of the pipe. In sustaining the judgment of the lower court and holding the smelting company concurrently liable with the railway company, the Court of Civil Appeals said:

“In placing and maintaining the obstruction so near passing trains as to endanger persons engaged in operating the trains, by their coming in contact with it, the question determining the liability of the smelting company for such consequences is whether or not such a result could be reasonably expected by an ordinarily prudent person.”

In the case presently before us, the defendant cannot escape the conclusion that it should have reasonably expected, yea, even known, that if a person should step on the drop ladder fire escape suspended over the sidewalk, any pedestrians that might be walking underneath it would be injured as plaintiff was. The exit in question was easily accessible to all at all times. It was easily possible for any one to use it, and defendant should have reasonably expected that various persons would use it, and that such use would be fraught with much danger to pedestrians below. It should therefore have so constructed and maintained the fire escape as to avoid the possibility of this danger, so reasonably to be expected as long as the fire escape should be maintained and kept as it was.

QUANTUM OF DAMAGES

Plaintiff was struck to the ground and remained there unconscious until she was picked up by a passerby. She was struck a glancing blow on the right side of her head and face and the right shoulder and arm. Dr. Guerriero treated her for several weeks by her coming to his office. He describes her injury as follows:

"She had an extensive extravasation of blood in the subcutaneous tissue just under the skin from her shoulder down to her wrist. This area was about five inches in width all the way down; she also complained of excruciating pain in her right elbow joint and also her shoulder joint, and her arm was markedly swollen and very painful. On the first occasion I had to see Mrs. Blanks was on the night after she was injured I believe — I believe on the 7th of January, and at that time she complained of severe suffering. I went out to her house to see her and gave her a hypodermic and left a sedative of morphine for her pain. I dressed her arm with an antiseptic dressing and asked her to report to me in the morning if possible. And from then on I treated her daily with heat treatments and antiseptic dressing for two or three weeks, I believe, and then she reported to me every other day for a while. This extravasation of blood under the skin remained there about six weeks.”

The accident occurred on January 7, 1930, and the trial began on January 15, 1931, some few days over a year afterwards. The plaintiff evidently suffered severe pain and shock which must have lasted several weeks, during which time she was under the care and treatment of the physician testifying in the case. No testimony was offered by the defendant to refute that offered by the plaintiff. At the time of the trial, plaintiff was suffering from pain and swelling in the elbow joint and shoulder on motion. It is the opinion of her physician that there is no permanent disability to be expected. Whatever damages .to be awarded must be for pain and suffering endured. According to the uncontradicted testimony, plaintiff’s pain and suffering continued with varying degrees of intensity throughout a period of one year, and had not entirely ceased at the time of the trial. The fixing of the amount of damages to be awarded is always difficult. The Supreme Court from time to time has fixed approximate standards to guide the lower court. In the case of Russell v. Shreveport Belt Ry. Co. et al., 50 La. Ann. 501, 23 So. 466, one of the plaintiff’s shoulders was partially dislocated by a fall and his arm bruised. His injury, pain and sufappear to be just about equal to ¡plaintiff’s in the present case. The amount of damages awarded and approved on appeal was $1,000. That judgment was cited with approval and used as a criterion in the case of Thompson v. Commercial National Bank et al., 156 La. 479, 100 So. 688. We think this sum awarded to plaintiff will do substantial justice to both parties to the suit.

For the reasons assigned, the judgment appealed from is avoided, annulled and reversed, and it is hereby ordered, adjudged, and decreed that there be judgment herein in favor of the plaintiff, Mrs. Josephine McNally Blanks, against the defendant, Saenger Theaters, Incorporated, for the sum of $1,000, with 5 per cent interest from November 7, 1930, and all the costs of both courts.


source: Caselaw Access Project

license: Public Domain

text:
    No. 4177
    Second Circuit
    CHICKASAW WOOD PRODUCTS CO. v. VAIL-DONALDSON CO.
    (January 14, 1932. Opinion and Decree.)
    (February 16, 1932. Rehearing Refused.)

      Hudson, Potts, Bernstein & Sholars, of Monroe, attorneys for plaintiff, appellee.
    Madison & Madison, of Bastrop, attorneys for defendant, appellant.
   McGREGOR, J.

This is a suit by the plaintiff against the defendant for the contract price of two carloads of keg heading. Both plaintiff and defendant are engaged in the manufacture and sale of heading and other wood products. Plaintiff is a Tennessee corporation, domiciled in the city of Memphis, while the defendant is an Indiana corporation, with a plant in More-house parish of this state, and a business office in St. Louis, Mo.

In its petition filed November 5, 1925, the plaintiff alleges that:

(1) On December 6, 1924, the defendant ordered from it one mixed carload of keg heading to contain 13,000 sets of varying sizes.

(2) This order was promptly acknowledged and was shipped in accordance with instructions, in the month of January, 1925.

(3) On March 21, 1925, an order for one mixed carload of No. 2 gum, oak, and ash heading of various sizes was placed with plaintiff by the defendant.

(4) This order was also accepted promptly and was, shipped in due course and in accordance with instructions.

(5) The first invoice amounted to $1,-468.48, the second to $1,470.01, and nothing was paid on either.

The total demand was therefore for $2,-938.49, which ordinarily would give the Supreme Court jurisdiction of this appeal. In fact, the appeal was lodged in that court at first, but was transferred to this court for the reason that at the trial of the case in the lower court it developed that the plaintiff had realized a certain sum from the sale of one of the cars, which reduced the amount in controversy to less than $2,000.

Without filing any exceptions or pleas of any kind, the defendant filed its answer on March 5, 1926. In this answer, it denied owing any of the indebtedness claimed in plaintiff’s petition. It admitted that it placed each of the orders exactly as, alleged in the petition, and that they were accepted by the plaintiff, and that two carloads of heading were shipped upon the basis of the receipt of the orders, but that the heading shipped was of inferior grade and was not of the quality ordered. It is specially alleged and admitted that the orders did not set out in detail the grade and specifications of the goods, ordered, but that each order contained ,the following stipulation:

“All cooperage bought subject to inspection rules of the Associated Cooperage Industries of America.”

It is therefore contended that, since the heading was bought subject ,to inspection of that association, its grade rules and specifications governed the quality of goods to be shipped in filling the two orders. Excerpts from the rules and regulations of the association which defendant claims should govern the quality and grade of heading in this case are copied in its answer.

Of the two cars of heading involved herein, one was shipped to Cleveland, Ohio, and is known as the Cleveland car, and the other was shipped to Philadelphia, Pa., and is known as the Philadelphia car. In refusing to admit liability on the Cleveland car, it is alleged that:

“This car was not of the grade ordered, for the reason that it contained a large quantity of what is known as ‘glued stock,’ said stock being glued instead of properly jointed, and that said glued stock was not ordered and is not permitted under the grade rules and specifications of the Associated Cooperage Industries of America.”

It is then alleged and admitted that, “without receiving or accepting said car’’ (italics ours), the defendant sold and delivered it to the Cleveland Cooperage Company, subsequently absorbed by the Allied Barrel Company, and that the said Allied Barrel Company deducted $535.07 from the purchase price on account of the glued stock found in the car. It is .then alleged that the plaintiff took up this, glued stock and sold to other parties at a price unknown to it.

With reference to the Philadelphia car, it is alleged that it was bought by sample; that the stock shipped was not equal to the sample in grade, and that therefore it refused the car and denied liability for any portion of the purchase price. Then, as plaintiff in reconvention, it alleged that this car had been sold by it in advance at a profit of $69.91; that because it failed to be up to the grade of the sample it had lost this profit and had been put to an additional expense of $8.88 for telegrams. Judgment was prayed for against the plaintiff for these two sums.

In the alternative, the defendant prayed that, if the Cleveland car should be found to have been of the proper grade and delivered in accordance with contract, it, the defendant, should be credited with whatever amount the plaintiff received from the sale to other parties. Again, in the alternative, the defendant prayed that, if it should be held that the Philadelphia car was up to grade and delivered in accordance with contract, it be credited with whatever was, realized by the plaintiff from its sale.

It is then alleged by defendant that, while the plaintiff’s suit was brought in the name of “Chickasaw Wood Products Company,’’ the orders of defendant in each case were directed to the “Chickasaw Cooperage Company,” and that its answer was being filed upon the assumption that the two companies are one and the same. It is then suggested that the plaintiff amend its petition to show an appearance on the part of the Chickasaw Cooperage Company. It is specially averred that, if it should appear that the named plaintiff is not in fact the company with which defendant dealt, the right to withdraw the answer is reserved.

On March 21, 1927, -the defendant filed a supplemental answer in which it added to and enlarged upon its reconventional demands by claiming the additional loss of $64.35 in profits on the Cleveland ear.

On this same day, in accordance with the suggestion contained in the defendant’s original answer, the plaintiff filed an amendment to its original petition and set forth that the Chickasaw Wood Products Company and. the Chickasaw Cooperage Company are one and the same, and that the plaintiff, as named in the petition, is the real party in interest. The defendant answered this amended petition on the same day by adopting its original answer in full.

After the answer was filed, but before trial, exceptions of no cause or right of action were filed, which were referred to the merits.

The trial of the case consumed three days, beginning March 21, 1927. On June 25, 1927, judgment was rendered in favor of plaintiff for $1,889.19, and suspensive and devolutive appeals were lodged in the Supreme Court by the defendant. Upon examination, it was found that less than $2,000 was involved, so the case was. transferred to this court.

OPINION

The errors of law and fact relied upon by the defendant, appellant, are stated in its brief and are as follows:

“(1) That the Court erred in not sustaining Defendant’s Exception of No Right or Cause of Action and Defendant’s Exception that Plaintiff was without interest to sue. If these exceptions should not have been sustained on the face of the papers, they should have been sustained after the hearing of testimony on the merits.
“(2) That the Court erred in permitting Plaintiff to amend its petition without restricting the amendment so as not to change the plaintiff and not to change the substance of the demand.
“(3) That the Court erred in admitting ihe testimony of the witness, R. A. Cabrey. taken by deposition addressed to any Notary Public and not to a particular Notary Public without requiring proof that the person executing the Commission was duly qualified, pages 30-36 and 58-59 of the Transcript.
“(4) That the judgment on the merits is contrary to the law and the evidence.”

We discuss these in the order named: (1) Both of the orders of the defendant were addressed to the Chickasaw Cooperage Company at Memphis, Tenn., and both were accepted by Harry A. Wellford, as secretary, on letterheads showing both Chickasaw Wood Products Company and Chickasaw Cooperage Company. In testifying for the plaintiff, Wellford states that he accepted for the Chickasaw Wood Products Company. In its original answer the defendant admitted in so many words that both orders were accepted by the named plaintiff, and stated that its answer was based upon the assumption by it that the Chickasaw Wood Products Company and the Chickasaw Cooperage Compahy are one and the same. In its amended petition the plaintiff alleges that the two- companies are one and the same; that the named plaintiff received and acknowledged the orders, and that they both were filled with merchandise belonging to it. In his testimony, Wellford, the secretary of the plaintiff, stated that all the business of the two companies was the same; that, as a matter of fact, the Chickasaw Cooperage Company was not engaged actually in the cooperage business and was not selling cooperage of any kind. It appears that all the property and stock in trade belonged to the plaintiff. The Chickasaw Cooperage Company was a name in memory only. The plaintiff formerly operated under that name and for business reasons changed its name to the Chickasaw Wood Products Company. Under the name Chickasaw Cooperage Company it became very popular. Many of the former customers were attached to and still address the plaintiff under its old name, and for that reason that name was. retained on its letterheads. In the correspondence the two names- appear to have been used indiscriminately and interchangeably by both plaintiff and defendant. Orders addressed to either name were accepted and filled by plaintiff. With reference to the two orders involved in this suit, the defendant addressed several letters to the Chickasaw Wood Products Company and clearly recognized that company as the one with whom it was dealing. All correspondence by the plaintiff was written on stationery containing both names, and with plaintiff’s name appearing first. To support its contention on this point, defendant cites and relies upon the case of Bayley Mfg. Co. v. Wilhelm Moss Co., 163 La. 439, 112 So. 38, 39. One sentence in the court’s opinion in that case differentiates it from the case at b,ar. It is: “The Wilhelm Moss Company was not a party to the contract, and clid not afterwards assume any of the obligations or acquire any of the rights of the Republic Company under the contract.” (Italics ours.)

Just the opposite is true in the ease at bar. The plaintiff accepted and filled the orders, assumed all the obligations and acquired all the rights of the contracts. All correspondence was carried on by it and in its name. The mere fact -that in the beginning the orders were addressed to it under another name, which it carried on its stationery, does not affect its right to collect for the merchandise with which it filled these orders. Furthermore, in its answer, the defendant admits in both instances that these orders were accepted and filled by the plaintiff named in the petition. Then, as plaintiff in reconvention, it asks for judgment against this same plaintiff on the same contracts. This act alone waived all right to question the right of plaintiff to bring this suit. Sherer-Gillett Co. v. Bennett, 153 La. 304, 95 So. 777. Under the pleadings and the testimony, defendant’s contention that plaintiff’s suit should be dismissed for want of a right of action is untenable, and its exception was properly overruled.

(2) The plaintiff’s amendment to its petition did not change the plaintiff, nor did it change the substance of the demand. It simply stated that the two companies were one and the same, and by implication it stated that, for all intents and purposes, when the plaintiff appeared as Chickasaw Wood Products Company, it was also appearing for Chickasaw Cooperage Company, to whatever extent it might have any interest. This amendment was filed in response to the demand made by the defendant in its original answer, and it could not be heard to object to its filing.

(3) In their brief, counsel for plaintiff admit that it was error to admit the testimony complained of. This is unimportant, however, as the conclusions we have reached do not depend on that testimony.

(4) The fourth and last examination of error involves a consideration of the case on its merits. In this discussion, we shall continue to refer to the two cars of heading as the Cleveland car and the Philadelphia car, respectively.

THE CLEVELAND CAR

Defendant’s complaint against this car is that it was not of the grade ordered in that it contained a large quantity of glued stock. The original order calls for “I mixed car keg heading.” There is nothing in the order itself to indicate that glued stock could not be used either in whole or in part in filling the order. In the order itself it is stipulated that all cooperage is bought subject to the inspection rules of the Associated Cooperage Industries of America. No evidence was offered to show that this car was ever inspected by any one under these rules. On the contrary, it is alleged and admitted by the defendant in its answer that it sold and delivered the car to the Cleveland Cooperage Company without inspection or examination. Defendant then testifies that the Cleveland Cooperage Company took charge of the entire car and paid for it, except that it deducted from the purchase price the sum of $535.67, on account of the glued stock contained in the car. Defendant had no right to handle this stock in this, manner and hold the plaintiff responsible for this deduction. When it received the car and sold and reconsigned it to another party, it was hound for the contract price, unless, it could be shown by positive testimony that the stock was not up to grade, and in that case there should have been a proper inspection and examination. There was nothing in the contract that forbade the plaintiff to include glued stock in the shipment. Defendant may have sold the Cleveland Cooperage Company a carload of heading that could not include glued stock and may have undertaken" to fill the order with the car that it had bought and received from the plaintiff and which did contain some gluéd stock; but plaintiff cannot be held liable on account of the failure of defendant’s, consignee .to accept the car when there was no such restriction in the order which defendant placed with plaintiff. Furthermore, there is no testimony except hearsay that the Cleveland Cooperage Company refused to pay .the full purchase price for this car on account of it containing some glued stock. When the defendant complained to the plaintiff that its consignee had refused to pay for the glued stock contained in the car, the plaintiff offered to assist in disposing of this stock for defendant’s account. It found a customer for it, but was unable to get it from the Cleveland Cooperage Company. Plaintiff was. under no obligation to assist defendant in disposing of .the stock, and made the effort purely as a matter of accommodation. Defendant is therefore liable for the contract price of this car, or $1,468.48, and the judgment of the lower court is therefore correct.

THE PHILADELPHIA CAR

This car was ordered according to sample submitted. When it reached Philadelphia, the defendant refused to accept or receive it and assigned as a reason the alleged fact that the stock did not come up to the grade of the sample submitted. The order was for No. 2 heading. Plaintiff’s witness, Harry A. Wellford, secretary, inspected the car as. it was being loaded, and swears positively' that it was all up to grade. There is no testimony to the contrary. Defendant cannot escape liability for .this car on its simple statement that a customer turned it down because it did not come up to the grade or quality of the sample submitted.

After the defendant refused this car, the plaintiff .took charge of it, and disposed of it for the account of the defendant. It had a perfect right to do this. It was sold and delivered as No. 2 heading. Deducting from the price which plaintiff received for the car the freight and expenses incurred because of defendant’s failure to receive it, the net amount received was. $1,049.30, or $420.71 less than the price agreed upon by plaintiff and defendant. The judgment of the lower court for $420.71, balance due on this car, is therefore correct.

Since we hold that plaintiff is entitled to judgment for .the full contract price of the Cleveland car, and for $420.71 as the balance due on the Philadelphia car, the defendant can have no just clgim for any amount on its reconventional demand.

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


author: DREW, J.

text:
    No. 4201
    Second Circuit
    ELSTON, PRINCE & McDADE, INC., v. LYON DRUG CO. (HICKMAN, Third Opponent) and MORRIS & DICKSON, LTD., ET AL. v. LYON DRUG CO. ET AL. (RUSS MFG. CO., INC., Intervener; MRS. LENA R. HICKMAN, Intervener and Third Opponent)
    (March 16, 1932. Opinion and Decree.)
    Argued before DREW, McGREGOR and PALMER, JJ.
    Dickson & Denny and Mabry & Carstarphen, of Shreveport, attorneys for plaintiffs, appellants.
    L. B. Duke, of Benton, and Wilson & Abramson, of Shrevep.ort, attorneys for defendants, appellees.
   DREW, J.

Elston, Prince & McDade, Incorporated, secured a judgment by default against the Lyon Drug Company, a commercial partnership composed of G. C. Lyons and J. F. Lyons, and against J. F. Lyons, individually, in solido in the sum of $234.45, with 5 per cent- per annum interest from September 4, 1930, until paid, less a credit of $50. The judgment was. rendered in a suit on open account, and was read and signed on January 26, 1931,

Morris & Dickson Company, Limited, secured a judgment against the same defendants by default in the sum of $233.32, with legal interest thereon from August 5, 1930, until paid. The judgment was rendered in a suit on open account and was read and. signed on February 12, 1931.

On December 22, 1930, J. F. Lyons, acting for and on behalf of the Lyon 'Drug Company, executed a chattel mortgage in favor of Mrs. Lena R. Hickman in .the sum of $1,766.65, on the following described property:

“Drug store fixtures consisting of the following: 1 Soda Fountain, 5 Glass Showcases, 3 Wall cases, 1 Iron Safe, 1 Rolltop Desk, 1 Adding Machine, Stock of miscellaneous drugs, drug sundries, stationery, etc., and 1 Tudor Ford Sedan, Motor A-1772180” — as the property of the defendants Lyon Drug Company and J. F. Lyons.

The sale was advertised to take place on May 2, 1931. Morris & Dickson Company, Limited, had a fieri facias issue on its judgment and seized and had advertised for sale, as the property of the defendants Lyon Drug Company and J. F. Lyons, all furniture, fixtures, and merchandise in said defendant’s store in Plain Dealing, La. The sale was. advertised to take place on April 4, 1931.

On April 1, 1931, Mrs. Lena R. Hickman filed an intervention and third opposition in the case of Morris & Dickson Company, Limited, v. Lyon Drug Company, and on April 29, 1931, filed an intervention and third opposition in .the case of Elston, Prince & McDade, Incorporated, v. Lyon Drug Company. Third opponent alleged in each suit that she was the holder and owner of the chattel mortgage above described, which note was. secured by a chattel mortgage • on the property heretofore described. That Elston, Prince & McDade, Inc., had seized part of said property, and that Morris & Dickson Company, Limited, had seized part of it. That her lien and privilege, by virtue of said chattel mortgage, is of prior date to the judgments herein attempted to be executed. That her claim is a first mortgage, and she prayed for the proceeds of the two sales to. be ordered held by the sheriff of Bossier parish, and for a .rule to issue to the sheriff and the judgment creditors and the Lyon Drug Company ordering them to show cause why her lien and privilege should not be recognized and enforced with priority over all other persons; and, finally, for judgment against the Lyon Drug Company for the amount of her note, and ordering that the proceeds of the sales be applied on her judgment in preference and priority to the defendants in third opposition.

The rule was issued as prayed for, and the defendants in rule both filed exceptions of no cause of action, which were referred to the merits. Each defendant answered, admitting the seizures under the fieri facias issued and alleged that the chattel mortgage held by third opponent is null and void and of no effect as to them, for the reason that the property, as described in said chattel mortgage, is not sufficiently described to identify the property, in accordance with Act No. 198 of the Legislature of Louisiana for the year 1918; and for the further reason that the mortgagor did not comply with Act No. 270 of 1926, commonly known as the “Bulk Sales Law,” and by such failure rendered said purported mortgage null and void as to them. Morris & Dickson Company, Limited, further alleged that the purported chattel mortgage was without consideration and fraudulently executed to the prejudice of it.

On the issues thus made up, the cases were consolidated for trial and tried. The lower court in a written opinion held as follows;

“Plaintiffs in the above numbered causes obtained judgments against the defendant, and had writs of fieri facias issued, and had the stock of merchandise and fixtures of the defendant seized and advertised for sale to pay their claims. Mrs. Lena R. Hickman intervened in the suits and, claiming a prior privilege, by virtue of a chattel mortgage on all the property of defendant, asked that her mortgage be recognized and enforced, and that she be paid the proceeds of the sale by preference and priority over the plaintiffs. Plaintiffs excepted to the intervention as showing no cause and no right of action, on the ground that the property was not sufficiently described, and that merchandise could not be .the subject of a chattel mortgage. The exception was referred to the merits and the case tried. J. F. Lyon testified that Mrs. Hickman had loaned the firm money from time to time, which had been applied on its debts, and that when it looked like the firm would fail, he gave her a chattel .mortgage, in an effort to protect her, or in substance, that is what he said. Plaintiffs claim that the mortgage, even if valid as to description, was given in contravention of the provisions of Act No. 270 of 1926, the-bulk sales law, and that it should be cancelled and erased.
“Apparently, the contention of the plaintiffs is correct on the point that the mortgage is in violation of Act No. 270 of 1926. It is my opinion, that so far as the fixtures are concerned, the mortgage sufficiently described them, but of course the merchandise could not be mortgaged. The conclusion reached relegates Mrs. Hickman to the same class of creditors as plaintiffs, and I think a proper judgment would be one in favor of Mrs. Hickman, the intervener, for the amount of the note sued on, and ordering all the property of defendant sold, and that after the payment of costs, the remainder of the money be distributed ratably between the .two plaintiffs and the intervener, in the proportion that their claims bear to the proceeds of the sale.”

And judgment was signed in favor of third opponent for the amount of the note sued on and ordered that all the property of the Lyon Drug Company be sold and the proceeds divided among Elston, Prince & McDade, Inc., Morris & Dickson Company, Limited, and third opponent, in proportion, to the amount of their respective claims. Prom this judgment both defendants in third opposition appealed from that portion of the judgment ordering a distribution of the proceeds ratably between them and third opponent.

Third opponent has not appealed or answered the appeal, and has made no appearance in this court. Therefore, the only question for determination by this court is that part of the judgment of the lower court pertaining to the distribution of the proceeds, of the sale of the property seized by the two defendants in opposition. The judgment of the lower court is, in that respect, clearly erroneous. Otherwise, the correctness of the judgment is not before us for determination.

When the lower court found the chattel mortgage to be null and void as to the seizing creditors (defendants, in third opposition), it necessarily relegated third opponent, in so far as defendants are concerned, to that of an ordinary creditor, and, as said by the lower court, “the conclusion reached relegates Mrs. Hickman (third opponent) to the same class of creditor as plaintiffs (defendants in third opposition)

Article 723 of the Code of Practice provides how the funds shall be distributed in such an instance, and reads as follows:

“When several successive seizures are made of the same property, the creditors making them are entitled to a preference over other ordinary creditors, according to the order of their seizures.”

It is therefore clear that the defendants in third opposition are entitled to be paid by preference and priority over third opponent out of the proceeds of .the sale of the property seized by each, and it is therefore ordered, adjudged, and decreed that the judgment, in so far as. same was appealed from is reversed and that Morris & Dickson Company, Limited, are ordered paid out of the proceeds derived from the sale of that part of the property seized by it in preference and priority to third opponent and to Elston, Prince & Mc-Dade; and that Elston, Prince & McDade, Inc., are ordered paid out of the proceeds derived from the sale of the property seized by it, by preference and priority over third opponent and Morris & Dickson, Limited. The remainder, if any, to be paid to third opponent. The costs of appeal are to be paid by third opponent.


text:
    No. 4249
    Second Circuit
    W. K. HENDERSON IRON WORKS & SUPPLY CO. v. MERIWETHER SUPPLY CO.
    (March 16, 1932. Opinion and Decree.)
    Thatcher, Browne, Porteous & Myers, of Shreveport, attorneys for plaintiff, appellant.
    Wilkinson, Lewis & Wilkinson, of Shreveport, attorneys for defendant, appellee.
   McGREGOR, J.

A receiver for the defendant company was appointed by the First district court, parish of Caddo, on March 31, 1928, and since that date it has been operated as a going concern by the receiver. In the beginning of the receivership the debts, due to the ordinary creditors totalled the sum of $176,045.54. From time to time several 10 per cent dividends have been paid to the creditors, and on September 30, 1930, the receiver made application to the court for an order authorizing him to pay another 10 per cent dividend.

Among the ordinary creditors of the defendant was Johns-Manville Corporation, which held three promissory notes dated February 7, 1928, each being for the sum of $2,000, and payable in thirty, sixty, and ninety days after date, respectively. The notes bear interest at the rate of 6 per cent per annum, and carry the following stipulation:

“And in the event of non-payment at maturity it is agreed to pay all attorneys’ fees incurred in the collection of this note or any portion thereof including interest, which fees are hereby fixed at ten per cent on the amount to be collected.”

When the receiver filed his application for an order authorizing him to make another 10 per cent dividend to the ordinary creditors as above stated, the JohnsManville Corporation filed an opposition to the granting of the order, basing it on several grounds. The principal objection, however, was that the receiver, in all the former dividends, had made his calculations of .the amount due it on the basis of the principals of the three notes, exclusive of interest and attorney’s fees, and that in the proposed dividend he was doing the same thing. In its opposition, it sought to have its 10 per cent dividend based, not only on the principal sums of the three notes, but also on the interest and attorney’s fees. It also sought to have the receiver pay it an additional sum to equalize the dividends formerly paid to it on the same basis.

After this opposition had been filed, there was a written stipulation signed by the attorneys representing the receiver and those representing the opponent and filed in the record, wherein it was agreed:

“* * * That the Receiver may have said application homologated without prejudice to the right of said opponent, the Johns-Manville Corporation, to litigate its claim for 6% interest on the notes in the sum of $6,000.00 filed with the Receiver herein to be computed on all dividends previously paid — together with the present dividend of 10% — and for 10% attorneys fees on the aggregate of principal and interest likewise computed on said dividends, the said opponent withdrawing its, opposition in all other respects, including its opposition to the method of computing dividends on the balance of the claims, instead of upon the face of the claims in each instance.
“It is further agreed that said JohnsManville Corporation is. to receive from the Receiver a dividend of 10%, the same to be paid at once to its Attorneys of Record, Thatcher, Browne, Porteous & Myers, and that its acceptance of same is not— as aforesaid — to prejudice its right to prosecute this opposition with regard to said interest and attorneys fees.”

According to this agreement, all the creditors except .the opponent were paid all that they were claiming under the proposed dividend, and the opponent received the sum which the receiver proposed to pay it. The distribution, to the extent as thus set out, has been regularly homologated by judgment of the lower court. It follows, therefore, that, so far as the distribution of the proposed 10 per cent dividend is concerned, the only sum in dispute is the difference between what the opponent has actually received and what it claims it is entitled to receive, which difference is more than $100 and less than $2,000. In accordance with the right reserved to it in the above agreement, the opponent proceeded to prosecute its demand for the difference claimed by it.

On trial, there was judgment in favor of the receiver, denying the opposition and rejecting opponent’s, claim for interest and attorneys’ fees. Prom .that judgment the opponent has appealed.

ON MOTION TO DISMISS

The receiver has filed a motion to dismiss the appeal herein on the ground that this court is without jurisdiction ratione materias to entertain and to determine the issues presented in the case. The amount proposed to be distributed in the form of a 10 per cent dividend is in excess of $2,000, and the opponent’s share therein is less than that sum, including everything that it claims. But it has received by far the greater part of its claim, and the other creditors have received all that was allotted to them. So -that the sum in dispute is a small amount — the difference between what it claims and what the receiver admits. All the rest of the dividend has been distributed, and the action of the receiver was ratified by the parties and homologated and approved by judgment of the lower court. If this were a final dividend, the motion to dismiss could not be sustained, for the reason that this court would have jurisdiction to hear the appeal. Succession of Duran, 34 La. Ann. 585; Succession of Emma McDowell, 35 La. Ann. 1025; Succession of Gobs, 37 La. Ann. 428.

It is apparent from the record in this case that this is not a final dividend in thiq receivership. It is true that none of the other creditors will be affected by the decision in this case so far as the present dividend is concerned, for they have already received all from it to which they are entitled. But the record discloses that there are large assets still in the hands, of the receiver subject to further distribution far in .excess of $2,000. Any decision rendered in this case will affect the final distribution of those funds which are of such an amount as to place the case beyond our jurisdiction. Constitution of 1921, art. 7, sec. 10; Snyder Wagon Co. v. Campbell Ice Cream Co., 173 La. 467, 137 So. 855.

For the reasons assigned, by virtue of the authority vested in us by law, it is ordered that this case be transferred to the Supreme Court upon the payment of all-costs incurred to date by the appellant; provided that, if the record in proper form be not filed in that court within thirty days from the date upon which this decree becomes final, .the appeal shall stand dismissed at appellant’s cost.


author: PALMER, J.

text:
    No. 4257
    Second Circuit
    WILLIAMS v. HAYES (J. LEE HAYES, Intervener)
    (March 16, 1932. Opinion and Decree.)

      Fraser & Carroll, of Many, attorneys for plaintiff, appellant.
    Boone & Boone, of Many, attorneys for intervener, appellee.
   PALMER, J.

Plaintiff brings this suit

The defendant filed no appearance in the suit, but allowed judgment to be rendered against him on default.

Two days after plaintiff filed this suit, J. Lee Hayes, son of the defendant, filed an intervention and third opposition, alleging, in effect, that he is the owner of the truck and trailer under seizure; that he purchased same from plaintiff and paid him therefor; and that the mortgage which plaintiff seeks to foreclose was canceled by confusion because plaintiff repurchased these trucks and trailers from defendant and afterwards sold him the truck and trailer now under seizure.

Answering- the petition of intervener, plaintiff reaffirmed his allegations contained in his main demand, to the effect that the property in question was sold by him to the defendant, with vendor’s lien retained and chattel mortgage stipulated, and that he never reacquired the property from defendant, or any other person; and that no payments have been made to him upon the note sued on except the payment alleged in his petition. In the alternative, he alleges that, if intervener has title to this truck and trailer, which is denied, he acquired same from the defendant, subject to plaintiff’s chattel mortgage which contains the pact de non alienando and was duly recorded in the mortgage records of Sabine parish, Louisiana.

The lower court rendered judgment on the main demand in favor of plaintiff and against the defendant, for the amount sued for, but on the intervention rendered judgment in favor of intervener, decreeing him the owner of the seized truck and trailer and canceling the chattel mortgage which plaintiff holds thereon. From this judgment plaintiff prosecutes this appeal.

There are no disputed questions of law involved. Certainly none could dispute that for a transaction to constitute a sale “three circumstances concur to the perfection of the contract, to-wit; the thing sold, the price and the consent.” C. C. art. 2439.

Neither can there be any dispute about the well settled principle that:

“As there must be two parties at least to every contract, so there must be something proposed by one and accepted and agreed to by another to form the matter of such contract; the will of both parties must unite on the same point." C. C. art. 1798.

Also there can be no disagreement over the principle that:

“When the qualities of debtor and creditor are united in the same person, there arises a confusion of right, which extinguishes the obligation.” C. C. art. 2217.

It is not questioned that:

“He who claims the execution of an obligation must prove it. On the other hand, he who contends that he is exonerated, must prove the payment or the fact which has produced the extinction of the obligation.” C. C. art. 2232.

A judgment in the case necessarily rests upon a decision of the facts. Certainly, if intervener has proved his allegations to the effect that plaintiff repurchased the seized property from defendant and then sold the same to him, the judgment awarding intervener the seized property and canceling, by confusion, plaintiff’s chattel mortgage is correct, but intervener carries the burden of proving such allegations.

Before considering the question of whether or not intervener met the obligation of the burden of proof, it might be well to make a statement of the. circumstances surrounding the case.

O. E. Williams, the plaintiff, appears to be engaged in operating in Sabine parish a sales agency for the International Harvester Company of America, Incorporated, for the sale of International Harvester trucks, and in connection therewith he owns and operates a repair and service garage. In the pursuit of his business, he sells these trucks and trailers and takes notes from the purchasers for the greater portion of the consideration, and then secures the notes by retaining and stipulating vendor’s lien and chattel mortgage on the trucks sold. These notes are then transferred by him to the International Harvester Company, who handles the collection of them in their own way and through their own collectors. Plaintiff appears to have no connection whatever with the matter .after the sale has thus been completed and the notes transferred to the, company.

The defendant, M. T. Hayes, purchased from plaintiff several trucks and trailers on this basis. Always the collection of the notes of the International Harvester Company is handled by them through their own collector, who at the time of this transaction, was Mr. W. B. Hirsch.

On April 8, 1930, plaintiff sold to defendant the truck and trailer seized in this suit. At that time defendant owed plaintiff an open account which, added to the cash payment due to be made on this purchase, amounted to $936.87. As evidence of this indebtedness, defendant executed unto plaintiff the note sued on in this case and secured it by a chattel mortgage on the property sold and also on another truck and trailer which he had previously purchased from plaintiff. On all these trucks and trailers purchased by the defendant from plaintiff, the International Harvester Company appears to have a first chattel mortgage and, as we have already stated, their collections were handled tby their own collector, and with which plaintiff appears to have no connection.

With this statement of the circumstances made, we shall now consider the evidence adduced on trial of the intervention. The burden rests upon the intervener to prove affirmatively the following essential facts:

1. That plaintiff repurchased this property from defendant, and that:

(a) The price was fixed .and definite; and

(b) That the will of both plaintiff and defendant united in the transaction whereby both consented thereto.

2. That intervener purchased the seized property from plaintiff and that

(a) The price was fixed and definite; and

(b) That the will of both plaintiff and intervener united in the transaction whereby both consented thereto.

M. T. Hayes, the defendant in the main demand, testified as ' a witness for intervener. We believe the following question propounded to the witness by counsel for intervener, and his answer thereto, shows the full strength of his evidence on the alleged resale by him to plaintiff of the property now under seizure:

“Q. What, if anything, did you do by way of trading those trucks back?
“A. I drove them both back here to his store and Mr. Hirsch had come down to Fisher to see me. There was five notes due, two on one and three on the other, and he said he had to collect for the notes that was due or take charge of the trucks, and I told him I could not pay for the trucks because I could not get work and I drove the trucks up here and I went in and delivered them.”

All through his testimony, the witness is talking altogether about the debt due the International Harvester Company. It was Hirsch, and not plaintiff, who caused the witness to bring the trucks to Many. It was the International Harvester notes, and not plaintiff’s note, that the witness says intervener paid. So, obviously, plaintiff had no part in the trucks being brought to Many, nor did he have any part in the arrangement made between the International Harvester representative and the intervener relative to the payment of the notes of the International Harvester Company, save, perhaps, he offered a friendly suggestion that the defendant try to secure the financial assistance necessary to enable him to meet the demands then being made upon him by the International Harvester Company for the payment of their notes. No pretension is made by the witness that plaintiff was even asking at that time for any payment of his debt.

Nowhere in his testimony does the witness claim that any price was agreed upon with plaintiff as the repurchase price qf the trucks. In fact, he makes it clear that he did not so much as accept or demand of the plaintiff, as a consideration for the alleged resale of the trucks to plaintiff, any credit on his indebtedness to plaintiff, but even admits that he still owes plaintiff on the note the amount sued for in this case.

“Q. You admit you still owe Mr. Williams the amount due on this note?
“A. Yes.
“Q.’ And then you say that Ott Williams deliberately gave away the balance due on that mortgage?
“A. He did. * * *”

There is nothing in, the witness’ testimony of any convincing force whatever to show that the will of both parties united in the alleged trade.

The testimony of intervener may be summarized as follows:

That he purchased the seized property from O. E. Williams and W. B. Hirsch, and paid therefore the amount due by his father, M. T. Hayes, to the International Harvester Company on the trucks his father had purchased from the International Harvester Company through O. E. Williams. He does not claim that Williams alone sold him the trucks.

“Q. From whom did you buy it?
“A. From Mr. Ott and the collector was both talking and told me what it would take to- get it and I said I would see if I could get it.
“Q. Well, was Mr. Ott Williams present when you bought this truck?
“A. Yes, sir; he was present when they told me what it would take to get it.”

Nowhere in his testimony does he claim he paid Williams anything for this truck, nor does he claim that he had any agreement with Williams as to any sum he was to- pay him for the truck. Prom his evidence his position seems to be that he was to pay the balance due on these trucks and thereupon would become the owner thereof. Even so, he could not escape the responsibility that such an obligation would not be satisfied with just the payments due the International Harvester Company, for certainly Williams also held a claim against them, and if his purchase of the trucks was to take place upon his payment of the indebtedness against the trucks, that obligation would not be satisfied until he paid the indebtedness of Williams also.

He does not make any pretensions to any knowledge of the alleged resale of these trucks by his father to O. E. Williams; so there is not even any corroboration on his part of his father’s testimony regarding the alleged resale to Williams.

There is again missing in the alleged purchase by intervener from plaintiff, the essentials of a price and the uniting of the minds.

W. B. Hirsch, the representative of the International Harvester Company, testified concerning these alleged transactions, that the real and true arrangement he made with defendant, M. T. Hayes, and intervener, J. Lee Hayes, was to the effect that the latter would assist his father in paying off the notes due the International Harvester Company. He disclaims any trade was made with intervener that had for its object intervener becoming the owner of the trucks. He also testified that, while O. E. Williams was present a part of the time, he had nothing to do with the trade and was not present when the financial agreement and arrangements were made. He denies that defendant even discussed in his presence with Williams the repurchase of these trucks.

The testimony of O. E. Williams may be summarized as follows:

He never repurchased from the defendant, M. T. Hayes, the truck and trailer under seizure in this suit; the trucks and trailers covered by his chattel mortgage, which is the second chattel mortgage on them, the first being owned and held by the International Harvester Company, were brought to Many on the day M. T. Hayes claims to have resold them to him — not at his instance — but on demand of W. B. Hirsch, representing the International Harvester Company; and that he had nothing whatever to dq with the transaction; he did not even see the trucks on that occasion and they were not delivered to him, nor did he make any effort to repurchase them; and he made no effort on that occasion to collect his claim against the defendant because the whole controversy was one that had been raised by the International Harvester Company in. their efforts to collect their indebtedness; he had no part in it and was at that time satisfied with the status of his claim.

All the testimony shows that the two trucks were driven to Many by defendant and by intervener, and that on the same day they drove the trucks back, or in other words, carried them away. His testimony further shows that some ten to twelve days later defendant did bring one of the trucks back to Many and negotiated a resale of it to plaintiff, for which plaintiff allowed him credit of $600, first paying an open account due him by defendant and then crediting the balance of the $600 "on the note sued on.

If J. Lee Hayes became the owner of the truck and trailer under seizure by virtue of' paying the International Harvester Company indebtedness, then by the same acts he likewise became the owner of the other' truck and trailer; and still we find just a few days later that defendant brings the truck to Many and makes a resale of it to plaintiff, thus continuing to maintain and assert his own title thereto.

An analysis of this testimony convinces us that intervener has utterly failed to prove his allegations that his father resold these trucks to O. E. Williams and that thereafter he (purchased the one under seizure from O. E. Williams. If that did not take place, then there was no cancelation of the chattel mortgage of O. E. Williams by confusion, and, if there was no cancelation of the mortgage, it is still in effect and the truck and trailer under seizure should be sold to pay and satisfy the debt sued on.

Counsel for intervener in their brief sug- • gest that if intervener did not purchase the ■ seized property, as alleged in his petition of intervention, he at least acquired the first mortgage notes against the property previously held by the International Harvester Company, and that the case should be remanded to the district court for the taking of further testimony on that point. Even if the court should conclude that it has the authority to thus remand the case for that purpose, the question arises, How could intervener avail himself of any advantages thereby? He has made a solemn, judicial allegation that he actually purchased the property under seizure from O. E. Williams, and if he should seek to show in any further trial that he purchased the notes of the International Harvester Company he would certainly have to amend his original petition, so most likely he would be faced immediately with a plea of estoppel against making any changes in his judicial allegations. Furthermore, it can hardly be conceived that intervener would undertake to change his testimony. He has already testified, under oath, that he paid — not purchased — the International Harvester notes, and also, he has testified that he purchased the trucks from O. E. Williams.

If the relief counsel suggests could be obtained by remanding the case, certainly intervener could not secure it until he changes his testimony on this point, and if he should change it, he would certainly destroy its effect.

We are therefore of the opinion that the judgment of the lower court in favor of intervener is erroneous, and that the judgment of the main demand, in so far as it failed to sustain the sequestration sued out, is also erroneous.

It is therefore ordered, adjudged, and decreed that plaintiff, O. E. Williams, have judgment against the defendant, M. T. Hayes, for the amount prayed for and as awarded in the judgment of the lower court and sustaining the writ of sequestration sued out, and ordering the sale of the property seized to pay and satisfy the judgment; and that defendant, M. T. Hayes, pay all costs of both courts incurred on the main demand.

It is further ordered, adjudged and decreed that the judgment of the lower court in favor of the intervener, J. Lee Hayes, be and is hereby reversed, and that the demands of intervener be and are hereby rejected and his suit dismissed; intervener to pay all costs of the intervention in both courts.


author: WESTERFIELD, J.

text:
    No. 13,939
    Orleans
    WILLIAMS v. ACME INDUSTRIAL LIFE INS. CO.
    (March 21, 1932. Opinion and Decree.)
    A. H. Reed, of New Orleans, attorney for plaintiff, appellee.
    Charles J. Rivet, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

This is a suit against an industrial insurance society, for sick benefit, filed about four months-after the claim under the policy had accrued. In this court defendant filed a plea of prescription based upon the following provision of the policy:

“No suit shall be brought against the company after six months from date of death of member or after sixty days of date of illness.”

There is, however, another clause in the policy reading as follows:

“No suit shall be brought against this company under this policy until sixty days after claim thereunder has become due and proof thereof has been duly made, nor after six months from date.”

Construing these two clauses together, it would appear that a suit for a sick benefit cannot be brought under the first provision of the policy after sixty days, and, under the second clause, not before sixty days, a manifest absurdity. Adopting the most favorable view in the interest of the insured, we conclude that the second provision should be given effect and find the prescription as fixed in the policy to be six months and not sixty days. The plea of prescription must be overruled.

The original petition was filed on the 13th day of March, 1931, and a supplemental petition on April 30, 1931. The citation under the supplemental petition was served on defendant’s, counsel, but addressed to plaintiff. On May 5, 1931, an exception to the citation, which was manifestly defective, was filed. On the same day plaintiff caused a notice of trial to be issued fixing the case for trial on June 8, 1931. On May 21, 1931, another and a proper citation was served upon the defendant. When the case was called for trial on the 8th of June, defendant objected to going to trial upon the supplemental petition, for the reason that no notice of trial had been issued subsequent to the proper service of the supplemental petition and citation which had been effected on May 21, 1931. The objections of defendant’s counsel were overruled and the case ordered to trial, whereupon applications for writs of prohibition and mandamus were made to the Supreme Court, with the result that the writs were declined upon .the ground that the matter was reviewable by appeal. The case was tried without any defense having been made, and, according to counsel, in his absence, though the transcript records him as being present. The trial resulted in a judgment for plaintiff, and defendant has appealed.

It is argued that the trial was illegally had, without proper notice, and that the judgment rendered, under the cireumstances, was null and void, citing State ex rel. Alfred Montague v. Louis Coquillon, 35 La. Ann. 1101. Without discussing the alillegality of the proceedings, we have reached the conclusion that a proper showing is made for the exercise of our discretion, and we are of opinion that the of justice would best be served by remanding the case for a new trial.

For the reasons assigned, it is ordered, adjudged, and decreed that the judgment appealed from be reversed, and it is now ordered that this case be remanded to the First city court for the parish of Orleans for further proceedings according to law and not inconsistent with the views herein expressed.