text:
    No. 10,206
    Orleans
    EQUITABLE CREDIT CO. v. MILLER
    (May 7, 1928. Opinion and Decree.)

      (Syllabus by the Court)
    1. Louisiana Digest — Conflict of Laws— Par. 1, 4; — Sales—Par. 324, 333.
    Under conditional sale of an automobile made in Florida, purchaser, who had no title when he brought the car into Louisiana, could convey none.
    2. Louisiana Digest — Conflict of Laws— Par. 1, 4.
    The sale having been made in Florida the laws of that state must control.
    Appeal from Division “E,” Civil District Court. Wm. H. Brynes, Judge.
    Action by Equitable Credit Co., Inc., against Herbert A. Miller.
    There was judgment for plaintiff and dedefendant appealed.
    Judgment affirmed.
    Frances P. Burns, of New Orleans, attorney for plaintiff, appellee.
    Hubert M. Ansley, of New Orleans, attorney for defendant, appellant.
   JONES, J.

The sole question involved here is the ownership of a Ford coupe, which was obtained by a man named D. S. Overman, from a dealer, F. W. Birdsong, in West Palm Beach, Florida, under a conditional sale agreement of August 11, 1924, for a price of seven hundred seventy-seven and 75-100 ($777.75) dollars, of which one hundred ninety-four and 43-100 ($194,43) dollars was given in cash and the balance evidenced by a note.

Plaintiff formerly an automobile finance company of this city, which was then doing business in Florida, as assignee of the rights of th'e original owner, alleges that Overman illegally attempted to sell the car to defendant in violation of his agreement to keep the auto in Florida until the agreed price was paid in full.

The conditional sale agreement contains the stipulation that title shall remain in the seller until the purchase price is fully paid, that the seller may take possession of the car wherever found, if it should be moved from Florida in violation of above agreement and that the promissory note for balance due was accepted not as payment, but merely as evidence of amount still due.

Defense is two-fold—

(1) That sale was complete and unconditional.

(2) That defendant was purchaser in good faith, because Overman at the time he sold the car by notarial act to defendant on September 5th, 1924, had exhibited a certificate of title to the car issued and signed by the controller of the State of Florida.

Although the agreement shows on the face that the first defense has no merit, to make assurance doubly sure, we quote from the two latest decisions of the Supreme Court of Florida, which we have been referred to, as the law of the State where the contract was made must control:

“Where a contract embraced a promissory note and recited that it was given for the purchase price of described personal property, to be paid for by installment, providing that default in payment of any installments shall cause all the installments to become due, and that title shall remain in the seller until the purchase price is paid, and to better secure the note conveying certain personalty to the payee, such conveyance to be void upon payment of the note. It was held a contract of conditional sale retaining title in the seller.”

Mizell Live Stock Co. vs. McCaskell, 59 Fla. 322, 51 So. 547.

“Where a party executes a promissory note in payment for personal property sold to him, and expressly states therein that the title to, or ownership of such property shall remain in the vendor, until such note is paid, and the debtor not only fails to pay such note, but absconds, the vendor has a legal right to take possession of such property.”

Bank of Jasper vs. Tuton, 62 Fla. 423, 57 So. 238.

See also same point in 84 So. 918.

As to the second defense, the muniments of title offered in evidence to show defendant’s good faith were the following:

(1) Certificate issued by the controller of the State of Florida stating that satisfactory proof under Chapter 9157, Acts of 1923 had been made to show that the title to this Ford coupe was vested in D. S. Overman.

(2) Certified copy of Overman’s application for this certificate.

(3) A metal tag, styled Florida motor vehicle title certificate plate No. 186,769.

In explanation of these so-called muniments, the following stipulation was made by counsel, subject to objection by defendant as to its binding force on defendant.

In order to save delay and expense in the taking of depositions for 'plaintiff, it was agreed between Francis P. Burns, attorney, representing plaintiff, and Hubert M. Ansley, attorney, representing defendant, that if the deposition of Hon. Ernest Amoss, Comptroller of the State of Florida, was taken, he would testify, substantially to the following facts:

“That he is the Comptroller of the State of Florida, with an office at Tallahassee, Florida; that he occupied such official position during the month of August, 1924. That among the duties performed by the said Comptroller is the registration of titles to automobiles, under the provisions of the Motor Vehicle Title Certificate Law, Chap. 9157, of the laws of the State of Florida, popularly known as the “Auto Theft Act.” That such statute is printed and distributed in pamphlet form under the authority of the laws of Florida by the said Comptroller.

That under the construction put by the said Comptroller on said Auto Theft Act, all operators of automobiles in the State of Florida, whether they have purchased a car outright or on a conditional sale contract, wherein the vendor has retained title, must apply to the Comptroller for an official certificate of ownership, which official certificate of title must show on the purchaser’s application the amount of lien, kind of lien and in whose favor. That such application for a certificate of title is to be made on oath by the applicant, on forms prepared by the Comptroller.

That an application for a certificate of title was made to the Comptroller by D. S. Overman, under oath, on August 12, 1924, which application showed that D. S. Over-man then owed the sum of six hundred eighty-three ($683.00) dollars balance due on the purchase price of the car, under a lien contract dated August 11, 1924, in favor of F. W. Birdsong of Lake Worth, Florida.

That under the said Auto Theft Act the vendor, or assignee of the vendor of a conditional sale contract in which there has been a retention of title, is not required to notify the Comptroller 'of the retention of title.

That the object and purpose of Chapter 9157 is to enable persons whose cars have been stolen or lost, to trace them through the registry of certificates of titles, and that a special index of motor numbers on colored • cards is kept by the Comptroller to. facilitate, this work.

That the Comptroller will issue to any person making application on oath, this certificate of title giving a description of the car and name of applicant, accompanied with a metal tag corresponding to the serial number of the certificate of title. That such certificate of title is prima facie proof that such person has sworn that he is owner of the car described therein, but that such certificate when issued by the Comptroller can be overturned by proper evidence, and a new certificate issued to the rightful owner.

Furthermore, defendant’s uncertainty as to validity of Overman’s title is persuasively shown by the fact that he gave a check on Friday, the day of the sale, which was not payable until the following Monday, although Overman insisted on immediate payment, as he wished to leave for Dallas early the next morning. Even then defendant would not go with Overman to cash check until he had consulted his attorney and had had Overman identified.

Miller further testified that when he first saw this mutilated “certificate of title” in the possession of Overman, he could discern thereon the motor number of the car and the name of the person from whom D. S. Overman had originally purchased it, yet between Friday, the day on which he purchased the car, and the following Monday, when the check was paid for the car, Mr. Miller signally failed to mention what efforts, if any, he made to inquire of F. W. Birdsong, if the car was fully paid for by Overman.

Knowing that Ford cars were stolen frequently and l^eing uncertain as to Over-man’s title, defendant should have wired Birdsong for information as to encumbrances on car and then he would have been in a better position to claim the benefit of the rule, “where one of the two innocent parties must suffer through the act of a third person, the loss should fall upon the one whose negligence brought about the damage.”

However, we decided this point adversely to defendant in a very recent case where the equities of the possessor of the car were far stronger than those of defendant.

See Powell Motor Car Co. vs. Christina Bros., No. 10,918 of the docket of this court, decided April 9, 1928, and not yet reported.

See also Hinton vs. Rouse, 4 La. App. 471.

Overland vs. Texarkana Co. vs. Bickley, 152 La. 622, 94 So. 138.

Harkness vs. Russell, 118 U. S. 663.

Segrist vs. Crabtree, 131 U. S. 287.

For above reasons the judgment is affirmed.


source: Caselaw Access Project

author: JONES, J.

license: Public Domain

text:
    Nos. 11,074-11,195-11,203 (Consolidated)
    Orleans
    KEYES v. DADE
    (March 26, 1928. Opinion and Decree.)

      (Syllabus By the Court)

    1. Louisiana Digest — Pleading—Par. 54, 57.
    Exceptions of vagueness must be (pleaded before issue joined.
    2. Louisiana Digest — New Trial — Par. 2, 3.
    A motion for a new trial on the ground petition showed no legal cause of action fell within discretion of trial judge and his refusal of new trial on ground is affirmed.
    3. Louisiana Digest — Citation and Appearance — Par. 46, 47, 48.
    Exception to citation and return on petition is waived by voluntary appearance to urge motion for new trial on other grounds.
    4. Louisiana Digest — Exemptions from Seizure — Par. 11.
    The salary of a street car conductor is not exempt from seizure.
    Appeal from First City Court, Division “C.” Hon. Wm. Y. Seeber, Judge.
    Action by Gus Keyes against L. L. Dade.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    Guy J. D’Antonio, of New Orleans, attorney for plaintiff, appellant.
    Farrar & Mahoney, of New Orleans, attorneys for defendant, appellee. ,
   OPINION.

JONES, J.

The original suit No. 11,074 brought by Gus Keyes against L. L. Dade for damages caused to plaintiff by defendant in an automobile accident which occurred on the night of March 26, 1927, about 10:00 p. m., was filed on May 5, 1927, and service of process was issued on the same date, and citation and petition served on L. L. Dade by leaving same at his domicile, 6326 Louisville Street, in the hands of his mother, as will appear by the constable’s return. Subsequently, on May 13, 1927, judgment by default was rendered and signed in favor of plaintiff, Gus Keyes, and against L. L. Dade, in the sum of one hundred and ninety-nine ($199.00) dollars, together with legal interest from date of judicial demand until paid, and for all costs of this suit. On May 18, 1927, notice of said judgment was served on L. L. Dade, the defendant and appellant, by leaving same at his domicile, 6326 Louisville Street, in the hands o.f his wife, as will appear by the constable’s return. On May 17, 1927, defendant and appellant filed a motion for a new trial, which was refused for the reason that it came too late. On May 31, 1927, defendant, L. L. Dade, defendant and appellant herein, filed a motion for a devolutive appeal, which was granted and ■is now being prosecuted.

Under this judgment a writ of fieri facias was issued and a certain piece of real estate belonging to L. L. Dade was seized. Suit No. 11,195 to annul the judgment rendered on the 13th day of May, 1927, containing prayer for an injunction to stay the sale of said real estate was filed by L. L. Dade, on July 29, 1927. On the trial of the merits on the suit for annullment and injunction there was judgment rendered in favor of Gus Keyes on the 23rd day of September, 1927, whereupon L. L. Dade filed a motion for suspensive appeal ■which was granted and is now being prosecuted in this court.

Subsequently, under the judgment rendered on the 13th day of May, 1927, Gus Keyes issued a writ of garnishment and seized the wages of L. L. Dade, who is employed by the New Orleans Public Service Inc. as a conductor on its street cars; then certain funds or wages were turned over to the constable of the First City Court by the New Orleans Public Service Inc., and later paid to the plaintiff, without any opposition on the part of the defendant.

Later a second writ of garnishment was issued and L. L. Dade then filed a rule asking that Gus Keyes show cause why the second garnishment should not be released on the grounds that the said L. L. Dade was a laborer, which rule when tried was maintained by the trial court and Gus Keyes thereupon filed a motion for a suspensive and devolutive appeal, which was granted and is not being prosecuted under No. 11,203 of this court.

These three matters were consolidated for hearing in this court.

In. suit No. 11,704 defendant has filed an assignment of errors averring;

(1) That the petition showed no legal cause of action and no evidence was admissible in support thereof;

(2) Petition was too vague and indefinite and no fact was set forth with sufficient clearness to justify a judgment;

(3) Court erred in refusing a new trial on ground that application was filed too late, as it was filed at least twenty-four hours before notice of judgment was served on defendant;

(4) The trial court erred in rendering judgment, because no testimony was taken by the official stenographer and the record does not show any evidence.

We shall consider the first two assignments together.

There is no merit in the exception of no legal cause of action as the petition sets forth in detail time, place and cause of collision and specially avers that plaintiff, who was driving his car with due care, was injured by defendant, who was driving his car at an illegal speed in violation of all rules. Defendant’s exception is probably based on the following language;

“That on account of said accident your petitioner received injuries to his left arm and chest and Oontusions of the back; that plaintiff’s automobile was damaged to the extent of ninety-five dollars and ten cents ($95.10), all of which will more fully appear by reference to the itemized estimate of repairs attached hereto and made part hereof. Petitioner estimates the damage suffered by him as follows:
Damage for the repair of his automobile _______________________________________________________$95.10
Six days loss of pay due to the personal injuries received, at $3.15 per day ...... 18.90
For pain and suffering received by your petitioner __________________________________ 75.00
making a total due of one hundred and ninety-nine dollars ($199.00), for which said amount the defendant, L. L. Dade, is liable for and should be made to pay.”

While the use of the word “estimates” in the above paragraph does not meet all the requirements of the pleading act, the petition must be construed as a whole and if that be done, the petition did set forth a legal cause of action with sufficient clearness to have been safely answered.

The exception of vagueness should have been pleaded before issued joined.

See Art. 333, Code of Practice.

(3) Art. 558, Code of Practice, provides that the party aggrieved may within three judicial days after judgment has been rendered pray for a new trial.

Art. 560, Code of Practice, says — New trial shall be granted in three cases, (1) If judgment clearly contrary to law and evidence; (2) Newly discovered evidence; (3) Bribery or misconduct by jury.

As the record does not show whether three judicial days had intervened between the rendition of the judgment and the filing of the motion for the new trial, we will not decide whether the motion was filed within legal delays or not. But as the motion does not set up any mandatory cause for a new trial, the matter was clearly within the discretion of the trial court. (See authorities quoted under paragraph 3 of the notes to Art. 558, Code of Practice, 4th edition). And in our opinion that discretion was not abused as the only reasons for a new trial were vagueness in petition and no cause of action, -which have been shown above to have no merit.

(4) In the absence of proof to the contrary the presumption is that judgment by default was rendered on sufficient evidence.

See Pepper vs. Smith, 4 La. App. 370.

Succ. of Pelcher, 39 Ann. 362, 1 So. 929.

Rosenthal vs. Rosenthal, 117 La. 790, 42 So. 270.

For above reasons the judgment in suit No. 11,074 is affirmed.

SUIT NO 11,195.

This is a suit to annul the judgment of the trial court in above matter coupled with a prayer for injunction to prevent seizure of defendant’s real estate.

The grounds urged here are those set forth in the assignments of error considered above along with the following additional:

(1) Defendant was not legally cited and return legally made as required by Section 2 of Art. 179, Code of Practice;

(2) That petitioner herein (defendant in above suit) had movable property within the jurisdiction of this court, which should have been seized before the real estate in compliance with the Code of Practice.

As the record shows that defendant filed a motion for a new trial in this cause on May 17th, his objections to the citation and return contained in this suit were filed too late.

Voluntary appearance of defendant supplies or cures want of citation.

Sharp vs. McBride, 134 La. 251, 63 So. 892.

Farley vs. Frost-Johnson Lbr. Co., 133 La. 519, 63 So. 122.

Heard vs. Patent, 27 La. Ann. 542.

City of New Orleans vs. O. E. Hall, 21 La. Ann. 438.

(2) As regards seizing personal property, first, the Supreme Court has held that the debtor, who fails to point out the movable property, loses the right given by Art 646, Code of Practice.

See Heffner vs. Hesse and Vergez, 29 La. Ann. 155.

Nobles vs. Nettlis, 3 R. 153.

As appellant has cited no later authority to the contrary other than the above, we find no merit in this point.

Furthermore, this court has held in the case of Surety Credit Co. vs. Bauer, 1 La. App. 285, that a party is not entitled to maintain an action for nullity of judgment, where he has been guilty of negligence or laches.

On this point see also Pelletin vs. Sommerville, 112 La. 1092, 36 So. 864, and Wise-Miller vs. W. W. Humphey, No. 11,023, Orl. App., not yet reported.

For above reasons the judgment in Suit No. 11,195 is affirmed.

SUIT NO. 11,203.

In this suit the only question at issue, namely, the legality of seizure of a conductor’s wages, has already been decided by this court in Welfare Loan Society vs. Montz, No. 11,007 of the docket of this court, where it was held that a conductor’s wages were liable to seizure.

For above reasons the judgment is reversed and it is now ordered that the rule to traverse the garnishment be dismissed.


author: WESTERFIELD, J.

text:
    No. 11,394
    Orleans
    SUCCESSION OF MRS. MARY (OR MATTIE) BRADLEY, WIDOW OF JOHN N. SCHROEDEL
    (May 21, 1928. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Action—Par. 12; Donations — Par. 20, 28; Successions — Par. 27.
    Collateral heirs cannot maintain an action for the revocation of a donation inter vivos as a donation omnium bonorum in contravention of Art. 1497, R. C. C.
    Appeal from Civil District Court, Division “B.” Hon. M. M. Boatner, Judge.
    Succession of Mrs. Marty (or Mattie) Bradley, Widow of John M. Schroedel; opposition by niece.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Eberhard P. Deutsch, of New Orleans, attorney for administrator, appellee.
    R. E. Milling, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

The Indianapolis Home for Aged Women .sued Jefferson D. Matthews, administrator of the Succession of Mary (or Mattie) Bradley, widow of John N. Schroedel, to compel him to execute an act of sale of the following real estate belonging to the Succession of Mrs. Schroedel.

“Two certain lots of ground, situated and being in'the City of New Orleans, described as lots Numbers forty-three (43) and forty-four (44) in square one hundred twenty-three (123) on the map of the New Orleans Land Company’s land, the same in size and location to be in accordance with said map or plan of lots on file with the City Engineer of the City of New Orleans; said lots measure each twenty-five (25') feet front on Memphis Street by a depth of one hundred twenty-two and 75/100 (122.75') feet b. p. e. toward Vicksburg Street, in square bounded by Filmore and Ridgley Streets.
“Acq. C. O. B. 253, folio 39.”

Mrs. Katherine Zimmerman, a niece who had acquired the interests of two other nieces, the three constituting the sole heirs at law of deceased, Mrs. Schroedel, intervened in the suit and claimed the property, as legal heirs.

The claim of plaintiff is based upon a document executed by Mrs. Schroedel September 20, 1921, from which we quote the following:

“IN CONSIDERATION of having been admitted into THE INDIANAPOLIS HOME FOR AGED WOMEN as a permanent inmate, I, MRS. MARY SCHROEDEL, do hereby convey, assign, and transfer unto the said Home all the property, real and personal, which I- now own, possess and am entitled to, or which at any time hereafter, while an inmate of said Home, I shall inherit or in any way become the owner of, including any and all equitable interests I may have or acquire in any such property. And this conveyance, transfer and assignment shall have the same force and effect as though all such property were specifically enumerated and described herein and a separate deed or assignment thereof were executed and delivered by me. And I do hereby further covenant and agree, upon request made, to execute any and all further deeds, assignments and transfers that the Home may think advisable, to complete its title, whether to property now owned by me or hereafter acquired by me, and in the event I may become the owner of any additional property of any kind, or of any equitable interest in any such property, while an inmate of said Home, I hereby covenant and agree to immediately give full information concerning the same to the Matron and President and the Board of Managers of said Home, and to then execute further deeds, assignments or transfers of said property to the Home, as may be requested by the ■ Board of Trustees thereof.”

Mrs. Schroedel was for four years an inmate of the Indianapolis Home and died there. It is apparent that she undertook to convey her property, perhaps without being aware that she possessed any to that institution in consideration for her support and maintenance, i. e., food, raiment, and shelter, for the remainder of her life. Such a transaction is denominated as onerous donation inter vivos.

“The lexieographers tell us that a donation is a gift, and that a gift is something which is given freely and without consideration, but that is not altogether the law of this. State. According to the Civil Code there are three kinds of donations, viz., gratuitous donation, the onerous donation and the remunerative donation; the first being the free gift defined by the lexieographers; the second being ' a gift burdened with charges imposed by the donor, and the third being a gift the object of which is to recompense for services rendered. Civ. Code Art. 1523. * * *
“Whilst, therefore, the onerous donation is a contract which imposes reciprocal obligations upon the parties and in which what is given, done, or promised by one person, may in some instances be considered as equivalent to, or a consideration for what is done, given or promised by the other, it is nevertheless a donation within the terminology of the law, and is governed by the rules applicable to donations.” But, see Theilman vs. Cahlman, 119 La. 350.

Intervenor attacks this donation upon the following grounds:

First. It was not executed by authentic act as required by R. C. C. 1536.

Second. It was not registered as required by R. C. C. 1554, 1555, 1556, 1557.

Third. It was a donation omnium bonorum in contravention of a prohibitory law, R. C. C. 1497.

Fourth. It was void because lacking in description. Pargous vs. Page, 12 La. Ann. 612; Green Bros. vs. Witherspoon, 37 La. Ann. 751.

Plaintiff, in reply, points to Article 1504, R. C. C., which reads:

“On the death of the donor 'or testator, the reduction of the donation, whether inter vivos or mortis causa, can be sued for only by forced heirs, or by their heirs ■or assigns; neither the donees, legatees nor creditors of the deceased can require that reduction nor avail themselves of it.”

We will consider the capacity of intervenor to maintain the suit before taking up any points raised in her behalf, for reasons which are perfectly obvious.

In Bernard vs. Noel, 45 La. Ann. 1135, 13 So. 737, it was held:

“The nullity declared by Art. 1487 of the Civil Code is absolute only relatively to the particular persons for whose special interest it was passed and among these can not be classed her collateral heirs invoking it when she has not done so herself. Scott vs. Briscoe, 37 La. Ann. 178.” In Thielman vs. Gahlman, 119 La. 350, 44 So. 123, it was said:
“ ‘If they are collateral heirs, as has been assumed in the argument they have no standing to attack the contract made by him for fraud, as simulated or as a donation made in violation of Civil Code, Art. 1497.’”

See also Grandchampt vs. Billis, 121 La. 340, 46 So. 348, and Succession of Dessina, 123 La. 468, 49 So. 23, and Waller vs. Colvin, 151 La. 765, 92 So. 328.

Our conclusions are that intervenor, the niece of the deceased, is without capacity to maintain her opposition and that the plaintiff must prevail. The judge a quo, in giving judgment as prayed for, reached the same result.

The judgment appealed from is affirmed.


text:
    No. 11,438
    Orleans
    GREATER NEW ORLEANS HOMESTEAD ASSN. v. GLOBE INDEMNITY CO.
    (May 21, 1928. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Bonds—Par. 8,11,17, 18, 20.
    The word “lien” as used in a lien bond, issued by a surety company, indemnifying the assured against the inscription of “any liens, privileges or other encumbrances” on the property of assured means valid liens. An action on the bond is premature when filed during the pendency of a suit which raises the issue of the validity of recorded liens notwithstanding the judgment of the trial court recognizing the validity of the lien.
    Appeal from First City Court, Div. “B-” Hon. Yal J. Stentz, Judge.
    Action by Greater New Orleans Homestead Association against Globe Indemnity Company.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    J. J. Dresner of New Orleans, attorney for plaintiff, appellant.
    Edward Rightor, of New Orleans, attorney for defendant, appellee.
   WESTERFIELD, J.

This is a suit on a lien bond. Plaintiff appeals from a judgment maintaining an exception of prematurity.

The record shows that plaintiff loaned one Henry T. Korner $3,000.00, and in addition to the usual homestead act of sale and re-sale, required a lien bond. Korner became delinquent, the Homestead foreclosed and became the adjudicatee of the property. Several parties claimed a privilege upon the proceeds of sale with priority over plaintiff. One of these claimants, Jordy Bros. Slate Company, was recognized by a judgment of the Civil District Court as being entitled to prime plaintiff for the sum of $109.38. An appeal was taken to this Court.

Plaintiff in order to get a marketable title to the property at once, placed the amount of the Jordy Bros, lien in the hands of the sheriff and instituted this suit in the First City Court for the sum deposited.

The bond sued on recites:

“The condition of this obligation is such, that if after the expiration of one year after the date hereof there shall not appear inscribed upon the public records of the Parish of Orleans, any liens, privileges or other encumbrances against the said property above described in favor of any laborers, materialmen, or any other party or parties to whom liens and rights might be accorded under the law, and that the Greater New Orleans Homestead Association shall suffer no loss by reason thereof then this obligation to be null and void; otherwise, to remain in full force and effect.”

The position of defendant is that, until the result of the appeal is known no action can be maintained against it, since it might well be that the judgment recognizing the priority of the Jordy lien would not be upheld, and it follows that the condition of defendant’s liability in that event would not arise. On the other hand it is argued that the mere inscription of the Jordy lien and its tentative recognition by the trial court is sufficient. We are of opinion that the lien referred to in the bond means valid lien without such express qualification and that it is only after a final determination by the courts of the issue of validity raised by the defendant that suit may be instituted on the bond. The fact that plaintiff has deposited in cash with the sheriff the amount of the lien claimed to be preferred to its own is immaterial.

The judgment appealed from is affirmed.


text:
    No. 11,311
    Orleans
    CASON’S GARAGE v. JORDANO
    (April 23, 1928. Opinion and Decree.)
    (May 7, 1928. Rehearing Refused.)

      (Syllabus by the Court)
    1. Louisiana Digest — Appeal—Par. 625,
    Only questions of fact are involved and the decision of the Trial Judge, being, clearly correct, is affirmed.
    Appeal from First City Court. Hon. Wm. H. Byrnes, Judge.
    Action by Cason’s Garage against Frank Jordano.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Niel Armstrong, of New Orleans, attorney for plaintiff, appellee.
    J. Weiner, Sidney Roos, of New Orleans, attorneys for defendant, appellant.
   JONES, J.

This is a suit on two promissory notes, one for One hundred ($100.00) Dollars, payable in fifteen days after July 28, 1927, and the other for One hundred fourteen and 85-100 ($114.85) Dollars, payable thirty days after same date. As the defendant had paid Fifty ($50.00) Dollars on the One hundred ($100.00) Dollar note, the suit is for One hundred sixty-four and 85-100 . ($164.85) Dollars.

The defendant answers, alleging the notes were obtained by misrepresentation, because he had never been supplied with a. promised itemized statement of his garage account -in settlement of which the obligations sued on had been incurred, and if furnished, amount of indebtedness should be much smaller.

The evidence shows the following facts:

Jordano and two of his employees kept automobiles at Cason’s Garage and bills covering charges on all of them for storage, gasoline, necessary repairs, new tires, etc., were sent monthly to Jordano at his office; defendant allowed this account to run for some time and it finally amounted to the sum of Two hundred fourteen and 85-100 ($214.85) Dollars on February 28, 1927. As account was then delinquent, • effort was made to obtain payment, but it was not until the 28th of July, 1927, that Hill, the credit manager of Cason’s Garage, Inc., succeeded in obtaining the two notes, which are herein sued on, from the defendant.

On July 2'8, 1927, Jordano had a bookkeeper, who when asked whether or .not the balance of Two Hundred fourteen and 85-100 ($214.85) Dollars was correct, and whether or not he had received the statements said, “Yes, this is the correct amount and it is alright for you to sign the notes.” This was testified to by Hill and the defendant, but Jordano now says that his bookkeeper was inefficient and his statement untrustworthy.

The notes were placed with the New Orleans Bank & Trust Company for collection, and on August 21, 1927, when one of the notes fell due, defendant’s attorney asked for an extension of time, but nothing was said about any failure in consideration.

Defendant, who admits making a payment of Fifty ($50.00) Dollars on one note, stated that he was twenty-six years

of age and had been in business twelve years and knew all about notes and contract. He contends that plaintiff had no authority to charge repairs of his employee’s cars to him and that he really owed only Sixty ($60.00) Dollars at the time he gave the notes for Two hundred fourteen ($214.00) Dollars.

Although the young lady who takes orders at the public desk in the garage was not produced to prove the disputed authority, we think it improbable that an experienced business man would have been so careless as to give notes for nearly four times what he owed.

We hold with the Trial Judge that defendant has failed to prove his defense.

The judgment is therefore affirmed.


author: WESTERFIELD, J. CLAIBORNE, J.

text:
    No. 11,039
    Orleans
    CHARITY HOSPITAL v. MEYEAUX
    (July 14, 1927. Opinion and Decree.)

      (Syllabus by the Court)
    ON MOTION TO DISMISS
    1. Louisiana Digest — Appeal—Par. 285.
    The Charity Hospital is a State institution, exercising public functions, within the meaning of Act 173 of 1902, exempting State boards and commissions from furnishing bonds in judicial proceedings. The exemption extends to suits by the Hospital for charges, which, under Act 126 of 1924, it is authorized to collect, under certain circumstances, for services rendered to employees covered by the compensation law.
    2. Louisiana Digest — Laws—Par. 70; Ac tion — Par. 12.
    Act 126 of 1924 gives a right of action to the Charity Hospital directly against the employer under the Employers’ Liability Act for the value of medical services rendered to the employee by the Charity Hospital, whether or not the employer was active in sending the employee to the hospital, such being the -policy and purpose of the Act.
    Appeal from Civil District Court. Div. “A.” Hon. H. C. Cage, Judge.
    Action by Charity Hospital against Cyril Mayeaux, et al.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    Emmet Alpha, of New Orleans, attorney for plaintiff, appellant.
    Denegre, Leovy & Chaffe and Harry McCall, of New Orleans, attorneys for defendant, appellee.
   ON MOTION TO DISMISS

WESTERFIELD, J.

This motion is based upon the allegation that “no appeal bond has been furnished by the Charity Hospital, appellant, and that there is no warrant in law for the action of the trial Judge in entering an order authorizing the said appellant to take this appeal without security.”

The appellant insists upon its right to appeal, without security, as a municipal board, exercising public functions within the meaning of Act No. 173 of 1902, reading as follows:

“That the State Board of Education, Parish or Municipal School Boards, the Drainage and Sewerage Commission of the City of New Orleans, the Board of Liquidation of the City Debt of New Orleans, the State Board of Law Examiners, the State Board of Medical Examiners, the State, Parish and Municipal Boards of. Health and other State, Parish and Municipal Boards or Commissions exercising public power or administering public functions shall not be required to furnish any bond whether of appeal or otherwise in any judicial proceedings instituted either by or against said Boards or Commissions.”

The argument is support of the motion to dismiss is that in this particular case the Charity Hospital is not “exercising public power or administering public functions” because in this case it sues for hospital charges authorized by Act 125 of 1924 permitting such charges, under certain circumstances in connection with hospital services to employees covered by the compensation act, and therefore “when Governmental Agency leaves the ordinary fields of public service and enters the arena of private profit, it can not invoke the special privileges and exemptions with which public agencies are ordinarily clothed.”

The Charity Hospital is supported almost exclusively by direct appropriation from the State Treasury, the last appropriation bill carrying an item of $717,384 for maintenance. The Act of 1924 merely authorizes the Hospital in certain cases to collect the cost of treating individuals to whom compensation is due under the compensation law. Whether, in the instant case, it can collect this expense must be decided, when the case is heard • on the merits. But the Hospital is none the less a public institution, and it is serving the public as well in this instance as upon any other occasion. Assuming the fees sued for can be recovered, is it not in the public interest to collect them? We are told that such fees, in the yearly aggregate, will be insignificant, compared with the amount received from the State Treasury. But, whether large or small, in collecting the fees, the Hospital will be more or less supported, and the State of Louisiana more or less relieved of its burden. We conceive it to be the duty of the Hospital to collect these charges, in cases permitted by law-

The motion to dismiss will be denied.

CLAIBORNE, J.

This suit is against an employee, Cyril Meyeaux, and his employer, the Postal Telegraph Cable Company, for medical and hospital services rendered and medicines furnished the employee, Meyeaux, by the plaintiff hospital.

The plaintiff alleged that Meyeaux 'was and employee of the Postal Telegraph Cable Company carrying messages upon a motorcycle through the streets of New Orleans, which is a hazardous occupation falling under the provisions of the several employers’ liability acts of this State; that while riding a motorcycle upon the streets of New Orleans, in the performance of his duties, he was injured in a traffic accident in which he suffered a fractured femur and other injuries; that answering a call for that purpose, the plaintiff sent out its ambulance which took up said Meyeaux and carried him as a patient to its hospital and there ministered unto him in their several professional capacities; that said Meyeaux remained a patient within the hospital for sixty-three days for which plaintiff charged two dollars a day or $126; that plaintiff took four x-rays for which it charges $20; that Meyeaux’s femur was set, for which it charges $30; and $5 for ambulance service bringing him to the Hospital, and $69 for medical services, though greatly in excess in value, making an aggregate of $250; that all of said charges are reasonable and according to the charges of other first class hospitals; that the Postal Telegraph Cable Company was notified of the accident to Meyeaux and that he was a patient of plaintiff Hospital; that under the law Meyeaux and the Postal Telegraph Cable Company are liable in solido to plaintiff for said hospital charges, which they have failed to pay notwithstanding demand.

The Postal Telegraph Cable Company excepted that the petition disclosed no cause or right of action against it.

The trial Judge in a written opinion^ was of the opinion that the employer was liable only in cases where by some act he sent the employee to the hospital to be treated. ' For this reason, and for the reason that the plaintiff alleged that it had sent out its ambulance and itself carried the employee to the hospital, and because the telegraph company had not sent Meyeaux there, the Judge maintained the exception and dismissed plaintiff’s suit against the telegraph company.

The plaintiff has appealed.

This suit is brought by virtue of Act 126.of 1924, page 193. It is entitled:

“An Act To Authorize State Charity Hospitals to make charges and recover same by suit in cases where patients come within the provisions of the Employers’ Liability Law; to study abuse of State Charity Hospitals; and to take necessary measures to discourage such abuse.
“Be it enacted, etc., That where a patient in any of the State Charity Hospitals shall come within the provisions of the Employers’ Liability Law, the Board of Administrators shall be authorized to make appropriate charges for services rendered to such patient, in accordance with such charges in other Hospitals of the First Class, including physicians’ and surgeons’ fees, and such patient shall be liable therefor, and the Board of Administrators shall be authorized to bring suit against the patient for the recovery thereof; and the Employer, or the Employers’ Liability Insurance Company, sending such patient to the Hospital shall be made co-defendant and held liable in solido with such patient.”

The liability of employers and of liability insurance companies towards the injured employee for medical services is fixed by Section 8 S 5, bottom of p. 402 of Act 216 of 1924. It reads as follows:

“The Employer shall in every case coming under this Act furnish the Employee reasonable medical, surgical, and hospital services and medicines not to exceed $250, etc.”

Under this Act it would seem that the employee alone could demand and sue for the medical services rendered to him, whether he had paid them or was only liable for them. Assuming for the purposes of the argument that the employer became liable for them, the employee alone could demand them of him, and not the person who rendered the services.

Act 126 of 1924 therefore brought about two amendments to the existing law.

The Charity Hospital acts were amended so as to permit it to charge employees under the employers’ liability acts for services rendered to them; and it amended the Employers’ Liability Act of 1924 and previous acts by authorizing the hospital to demand directly from the employer the value of services rendered to the employee.

But the contention of the employer in this case, defendant herein, is that it is not liable for the medical services rendered by the hospital to its employee for the reason urged by it and sustained by the trial Judge that it had no part and took no action in “sending the employee to the hospital.” The question for solution therefore is, is it essential that the employer should have been the active agent in sending the employee to the hospital?

The body of an act must be interpreted by its title, by the intention of the legislator, and by the evil intended to be remedied, and the benefit to be attained.

A history of the act is therefore permitted to aid in its interpretation.

Prior to Act 126 of 1924 the Charity Hospital was so in name as well as in fact. It was not authorized to charge for services rendered and did not charge. The result was that' many employees in hazardous occupations resorted to the hospital in case of accident, whether they were sent there or not by their employers.

In as much as the hospital made no charge to them, they had no right to claim from their employers compensation for medical services which had been rendered free to them.

Thus it came to pass that whenever an employee in a hazardous occupation had a claim against his employer, the item of medical expense for those who had been treated at the hospital was eliminated, and the employer profited to that extent for an obligation imposed upon him by law. This amount might reach $250 in a hospital which charged for its services.

The result was that employers sent their injured employees to the hospital, and this unloaded upon it a charge which the law had imposed upon them. The employers were quick in realizing their profit in this matter and took advantage of it by seeing that their employees went to the hospital. In that manner the hospital was crowded with that class of patients.

The object of the Legislature in adopting Act 126 was to relieve the hospital of this unrequited burden of Employers’ Liability Law, to correct the abuse upon State charity aid, as the title of the law indicates, and to place back this burden upon the employer or the employers’ liability insurance company who were paid to assume the burden. The object of the law was not to extract payment from the employee, but to give a right of action to the hospital against the employee, so that the employee might claim it from his employer, and also to authorize the hospital, subrogated to the rights of the employee, to recover from the employer what he owed to .the employee up to the sum of $250. It was immaterial whethfer the employer had “sent” the employee to the hospital; .that was merely an incident or an accident; the object of the law was not to punish the employer for “sending” an employee or to fix a liability upon him for so doing; it required no law to make the employer liable who. “sent” his employee to the hospital; he would have been made liable therefor by existing laws; the moment the law gave the hospital the right to charge; the object of the law was to give the hospital a right to charge the employee, and if it was not paid, the further right to demand from the employer the same amount up to $250 which the-employee would have had a right to claim from his employer. In short, the object of the law was to prevent the employer by any means from shifting the performance of his obligations under the Employers’ Liability Act from himself and transferring them to the Charity Hospital without benefit to itself.

To give the words “sending” the strict interpretation of the learned trial Judge would be paralyzing the act. It cannot be presumed that the Legislature intended to kill its own, progeny. When Portia, the strict doctor and interpreter of laws, decided that though Shylock was entitled to his pound of flesh nearest the heart his bond did not give him a jot of blood, his intenpretation defeated the bond. So in this case to limit the recourse of the hospital to cases when the employer “sends” the employee to the hospital would defeat the purposes of the Act.

The judgment of Portia might have been ingenious but would scarcely stand the test of - judicial criticism. The unguarded use of this single word “sending” is not sufficient to defeat the evident and equitable purposes of the act. There is no doubt that under the statute the employee, Meyeaux, might have sued his employer the telegraph company, for any charges paid or due by him to the hospital. There is no reason why the law could not have authorized the hospital, as it has done, directly to sue the company for its own benefit and to the discharge of the employee.

An additional evidence that the Legislature did not intend to make the “sending” By the employer to the hospital an essential condition precedent to the right of the hospital is- that the Act further provides that:

“It shall be the duty of the authorities governing the Hospital to give notice to the employer or the Insurance Comany in such cases that the patient is being treated and that charges will be made therefor in all such cases, etc.”

Would the statute have required this superogatory notice if it had required the employer to “send” the employee? Did the employer who had “sent” his employee to the hospital need to be notified of his own previous act?

Again, if under the statute the hospital had the right to charge employees it was not necessary that the statute should have given the right only to employers “sending” patients. Employers “sending” patients would have been bound under general principles. Therefore it is clear that the statute referred to others who would not be otherwise bound except for the Act of 1924.

C. C- 18: “The universal and most effectual way of discovering the true meaning of a law, when its expressions are dubious is by considering the reason and spirit of it, or the cause which induced the Legislature to enact it.”

“A statute must be construed with reference to its object, to the legislation and system of which it forms part in order to ascertain its true meaning and intent, and if its purpose and well ascertained object are inconsistent with the precise words of a part the latter must yield to the paramount and controlling influence of the will of the Legislature resulting from the whole.” Com’l Bank vs. Foster, 5 La. Ann. 516.

In Fox vs. Sloo, 10 La. Ann. 11, on p. 12 Judge Slidel said:

“It was a remedial statute, and should receive from Courts of justice such a construction as will tend to. correct the mischief at which it was aimed. Its policy which is very plain must be respected and enforced.” 4 La. Dig. 629, S. 70.

Courts must not look to any single word but to the whole scope of the statute State ex rel. Harper vs. Judge, 12 La. Ann. 777.

“It is an established rule in the exposition of statutes, that the intention of the law giver is to be deduced from a view of the whole and of every part of a statute taken and compared together. The real intention when ascertained will always prevail over the literal sense of the terms.” State of La. vs. Widow and Heirs of Poydras, 9 La. Ann. 166; State vs. Fruge, 106 La. 694 (697), 31 So. 323; State ex rel. Reuter vs. Board of Com’rs of N. O., 161 La. 212, 108 So. 417.

In Landry vs. Klopman, 13 La. Ann. 345, Judge Merrick said:

“But an adherence to the letter and a violation of the spirit of the instrument ought not to be tolerated or supposed possible.”

A statute against horse racing applies to mule races. McElveen vs. Goings, 116 La. 977, 41 So. 229.

A statute will not be construed so as to defeat its evident object. Smith vs. Lyons Cypress Co., 140 La. 507, 73 So. 312.

In State ex rel. Rrd. vs. Nicholls, 30 La. Ann. 980, in interpreting the Funding Act of 1875, Judge Manning said on p. 982:

“A rule of statutory construction, the soundness of which is attested by long use, and the frequent and continuing approbation of judicial tribunals, is that the intent of the lawmaker is to be ascertained by inquiring what was his motive in legislating. What was the mischief sought to be avoided or remedied, and what the .object or good to be attained?
“Contemporaneous history may be resorted to, and the discussions attendant upon the progress of the legislation through its various stages, as well as the project of the law, in order to discover the meaning and scope of the law itself.
“Now if we separate the expressions referred to from the Act, and ignore the general tenor of the law, and disregard, or refuse to consider, its history and the circumstances attendant upon, and wnich provoked its birth, so to speak, there could be given but one construction of the phraseology of the thirteenth section of the Funding Act, and that construction is opposed by the history of the legislation, by the intent of its framers as disclosed at every anterior stage of its progress, by the reasons and motives which were assigned as inducements for its adoption and by arithmetical demonstrations of the basis upon which the consolidated debt was calculated.”

In state ex rel. Howell vs. Echeveria, 33 La. Ann. 715, the Court said’:

“The first thing then, to be ascertained in the construction' of statutes, is; first the object to be attained, and second, the means to be employed. The first is, as a general rule, the intention of the lawmaker; the second, what facts within and without the statute are to be inquired into to ascertain the intent of the doubtful phraseology. Sedgroick on Construction, 193; N. O. & N. W. R. Co., et al., vs. Town of Vidalia, 117 La. 566, 42 So. 139.

In Lake vs. Parish of Caddo, 37 La. Ann. 789, Judge Manning said:

“A sound and philosophical rule of construction of all law, organic as well as statutory, is to ascertain the mischief sought to be remedied, and so to use the appliances the law has provided for its extirpation, that is to construe the law so as to make it effect the purpose for which it was enacted.”

In Bernard vs. Noell, 45 La. Ann. 1135, 13 So. 737, Judge Nicholls said on p. 1137:

“To discover the true meaning of a law we must often consider the reason and spirit of it, the cause which induced the Legislature to enact it, and the mischief which it sought to prevent or to remedy. However general may be the terms in which it is couched, it only extends to those things or persons it appears the Legislature intended to reach and apply to.” *

Also Shreveport Gas, Elec. L. Co. vs. Caddo Parish, 47 La. Ann. 67, 16 So. 650; State ex rel. Dauphin vs. Ellis, 108 La. 540 (549), 32 So. 335.

“The letter of the law, though unambiguous may be disregarded with the honest intention of seeking the spirit, and when leading to an absurd conclusion must be rejected for one that is reasonable.” 1 H. D. 784, S. 3; 4 La. Dig. 629, So. 70.
“To construe the words ‘prosecution pending’ as meaning that the witnesses were to be detained in prison until after an indictment should be found would be to defeat its purposes. The words ‘prosecution pending’ evidently meant ‘accusation pending.’ ’* State vs. Jackson, 111 La. 344, 35 So. 593.

In Succession of Carbajal, 154 La. 1060, 98 So. 666, Judge Dawkins on page 1066 quoted:

“The true intention of the Legislature, when ascertained, must always prevail over the literal sense of the terms employed. To know the law is not to grasp its words, but its force and power. State vs. Poydras Heirs, 9 La. Ann. 165. The letter of the law may be disregarded with the honest intention of seeking its spirit when it leads to an absurd conclusion, and the judge is bound to recede from the letter until he arrives at a reasonable conclusion. Ardry vs. Ardry, 16 La. 264. See also 1 H. D. 786; Cox vs. Williams, 5 N. S. 139; Bank vs. Foster, 5 La. Ann. 516; State vs. Wiltz, 11 La. Ann. 439; Church vs. U. S., 143 U. S. 457, 12 Sup. Ct. 511, 36 L. Ed. 226; U. S. vs. Kirby, 7 Wall. 482, 19 L. Ed. 278.”

In the ease of Church of the Holy Trinity vs. U. S., 143 U. S. 457, Justice Brewer said:

“It is a familiar rule, that a thing may be within the letter of the statute and yet not within the statute, because not within the spirit, nor within the intention of its makers. This has often been asserted, and the reports are full of cases illustrating its application. This is not the substitution of the will of the Judge for that of the Legislator, for frequently words of general meaning are used in a statute, words broad enough to include an act i'n question, and yet a consideration of the whole legislation, or of the circumstances surrounding its enactment, or of the absurd results which follows from giving such broad meaning to the words, makes it unreasonable to believe that the Legislator intended to include the particular act. As said in Plowden 205: ‘Prom which cases, it appears that the sages of the law heretofore have construed statutes quite contrary to the letter in some appearance, etc. If a literal construction of the words of a statute be absurd, the act must be so construed as to avoid the absurdity. The Court must restrain the words. The object designed to be reached by the Act must limit and control the literal import of the terms and phrases employed.’
“Among other things which may be considered in determining the intent of the Legislature is the title of the Act. Again, another guide to the meaning of a statute is found in the evil which it is designed to remedy; and for this the Court properly looks at contemporaneous events, the situation as it existed, and as it was pressed upon the attention of the legislative body. It is the duty of the Courts, under those circumstances to say that, however broad the language of the statute may be, the Act, although within the letter, is not within the intention of the Legislature, and therefore cannot be within the statute.”

Therefore Act 126 of 1924, in order to carry out the intention of its framers and to remedy the evils in contemplation and to attain the benefit desired must be construed as giving a right of action to the Charity Hospital directly against the employer under the Employers’ Liability Act for the value of medical services rendered to the employee by the Charity Hospital, whether or not the employer was active in sending the employee to the hospital.

The exception of no cause and of no right of action filed by the defendant herein is therefore overruled, and the judgment appealed from is reversed and set aside and the case is remanded for further trial according to law and the views herein expressed-


author: CLAIBORNE, J.

text:
    No. 10,534
    Orleans
    ELLINGTON SUGARS, INC. v. TEXAS & PACIFIC RY. CO.
    (May 7, 1928. Opinion and Decree.)

      (.Syllabus by the Court)

    1. Louisiana Digest — Railroads—Par. 58 80.
    A railroad company is not responsible in damages when its cars run over a person unless it is proven that its employees were guilty of negligence.
    2. Louisiana Digest — Railroads—Par. 80; Negligence — Par. 42.
    The testimony of four employees of the railroad that whistles were blown will prevail against the negative testimony of two by-standers that they were not.
    Appeal from the Twenty-fourth Judicial District Court for the Parish of St. Charles. Hon. L. Robert Rivarde, Judge.
    Action by Ellington Sugars, Inc., against Texas and Pacific Ry. Co.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Milling, Godchaux, Saal and Milling, of New Orleans, attorneys for plaintiff, appellant.
    John E. Fleury, of New Orleans, attorney for defendant, appellee.
   CLAIBORNE, J.

The plaintiff claims $323.60 for the loss of a mule and wagon run over by the train of the defendant company.

It alleged that it was the owner of a sugar plantation in the Parish of St. Charles, known as “Ellington Sugar Plantation”; that the railroad of the defendant company runs through said plantation; that on the morning of March 13, 1924, at about 7-30 o’clock, one William Wallace, employed by plaintiff as water boy, was driving a water cart and mule owned by plaintiff across the railroad tracks of the defendant at a private roadway connecting the fields of plaintiff on both sides of the railroad; that while in the act of crossing said railroad, William Wallace was struck by a fast passenger train operated by defendant, and was instantly killed, and the mule drawing said cart was also killed, and the cart itself was demolished; that at the time of the collision there was an unusually dense fog spreading over the railroad and the surrounding country by reason of which it was impossible for William Wallace to see clearly at a distance of more than 25 feet, and to see at all beyond fifty feet; that the fog also deadened the sound made by the approaching train; that the engineer of the train did not blow his whistle, nor ring his bell, nor give ány other audible signal of the approach o'f the train, so that William Wallace was unable to ascertain the approach of the train; that these private roadways connecting the fields on one side of the railroad with the fields on the other side of the railroad were built by the railroad and are essential to the operation of the plantation and are well known to the operators of the railroad; that at the time of this accident planters were engaged in planting their crops and their laborers were makihg regular trips across said railroad tracks as was well known to the railroad operators, who should have reduced the speed of their trains so as to be able to stop within such distance as they* could see, and that their speed at the time of the accident was dangerous; that plaintiff was damaged to the following amount:

Vdlue of mule ________________________________________$200.00
Value of Cart................................. 75.00
Expense of burying Wallace ___________ 48.60
$323.60

That the accident was due entirely to the fault of the railroad and that William Wallace in no manner contributed to it.

The defendant admitted that the plaintiff was the owner of the Ellington Plantation, and that its railroad runs over it; it admitted that its fast passenger train struck a mule drawing a water cart; but denied all the other allegations of the petition; it further averred that the accident was caused by the fault and negligence of plaintiff’s employee.

There was judgment for defendant and plaintiff has appealed.

A. A. Derbes, bookkeeper for the plaintiff, testified that this private road was used to go from one side of the railroad track to the other; that the employees of the plaintiff go backward and forward across the track; that trains pass there frequently, both freight and passenger, at certain particular hours of the morning and evening on schedule time.

Thomas Williams, a laborer, testified that he was about an acre from the scene of the accident plowing; it was foggy; he could not see half an acre away; could not see the train; the train did not blow its whistle before, but only afterwards; he heard the crash; a water cart makes “a lot of noise”; you can hear the whistle when the cart is rolling; he saw the accident; he was about three squares from the road on which the cart ran; Johnson was with him; the first thing that attracted his attention was the rumbling of the water cart; he heard the train coming; “she was running”; it was making a rumbling noise, not very loud, but they could hear it about two acres away; he did not hear the bells ringing either; the train did not blow the whistle; when the cart passed, it was the usual time for having breakfast; it was also the usual time for the train "to pass along; he saw the train pass every morning; he does not know how old the man was who drove the truck; he found him there when he began working there about a year before; everybody on the plantation knew that the train passed at that hour, a fast passenger train; the water cart makes so much noise you cannot hear; if the train blew while you were driving the cart you would hear it; laborers usually tell the time by the train passing; theyt call that train the “cannon ball”; it usually passes about breakfast time.

John Johnson, who was with Williams, testified that he heard the rumbling of the train as it left Luling. In other respects his testimony was practically the same as Williams.

The plaintiff produced no other witness.

The defendant produced: 1st, W- E. Bohler, fireman on the morning of the accident; before passing Luling station they gave four blasts of the whistle followed by two blasts immediately after; while passing the station he blew a road crossing whistle, that is, two long blasts and two shorts; when they passed by the west switch, he blew another road crossing whistle; when they passed the Ellington Sugar Mill he blew two whistles for a road crossing, on account of the heavy fog; the bell was ringing continuously; it is operated by air from the cab; the distance between the Luling station and the place of the accident is about three-quarters of a mile; there was a headlight burning; after the collision they stopped between 500 and 800 feet; the train consisted of three Pullmans, one dining car, two baggage cars, and a mail car; the train was traveling at maximum speed, 50 miles an hour, the usual speed for that train; it was the first stop after leaving Donaldsonville; it was the usual time for making that crossing; the train is nearly always on time.

2nd, W. F. Legg, the conductor on the train, gave the same testimony as to the whistles at Luling and at road crossings; as the morning was foggy the engineer gave additional whistles at road crossings which he was not obliged to do as a matter of precaution; between Edgard, St. John the Baptist, and Ellington there are 15 or 20 crossings and as many little plantation crossings.

3rd, S. A. Presnell was locomotive engineer on the train that collided with the cart; has been engineer since 1886, forty-two years; the train was a non-stop very fast through train; on March 25th at 7.30 a. m., he “crippled badly an old colored man”; the accident happened about three-quarters of a mile east of Lüling station; he whistled at Luling and at the crossing of the Old Spanish Trail, 150 yards from there; he blew again at the Ellington Sugar house another road crossing signal consisting of two long blasts followed by two shorts in an interval of five to seven hundred feet; a few seconds after he had completed this signal, he heard the crash of striking the wagon; he was running at the rate of 40 to 50 miles an hour; the bell also was ringing automatically, an air bell ringer, through Luling, and until this accident occurred; he stopped within the length of the train, between 800 and 1,000 feet; after Donaldsonville they stop only at the Southern Pacific Railroad crossing at Avondale and then at Gretna; the cart was struck by the left side or the fireman’s side of the train; there is no whistling board to be observed between Luling and the old Star Plantation; at the point where the accident happened the track is straight and level and the road crosses the track at right angles, practically on a level, the track is not higher than the surrounding country; it was foggy, very foggy; between the time he blew for Luling and the time of the accident he blew fifteen times, in the space of about a mile, in intervals of about 200 to 300 yards; from Luling to the accident he blew ten times; there are no restrictions as to speed unless there is something wrong with the track that would endanger the passengers, such as a soft track from rains; there are no restrictions as to weather conditions, rain or fog; it is impossible to see the track in a dense fog, even with a headlight; in a light fog you may see the track 50 or 100 feet or more; on the morning of the accident it was just like a wall, you could see absolutely nothing.

4th, B. D. Brannon was a railroad section foreman on March 25, 1924, for the defendant, located at Luling; at the time the accident happened he had put his car on the passing track, about 900 feet east of Luling; the tool house is on the Ellington Plantation; the train blew at Luling and also for the Old Spanish Trail and for Paul Maillard Road; the bell was ringing when it passed by, he saw the old negro cross the track “lots of times”; he could see the headlight of this train coming, not over 800 feet.

The plaintiff charges the defendant with negligence; 1st, in operating its train at full speed fifty miles an hour through a section of the country where it knew that there were many people and vehicles crossing the track in a fog so dense that it was impossible to see or be seen for any appreciable distance.

I. In support of its position plaintiff relies exclusively upon the case of Peart vs. Orleans-Kenner Co., No. 10,832, decided by this Court on March 12th last. He quotes no other authority. That case differs, materially from the one before us. In that case the defendant was approaching a regular station, upon a recognized highway crossing on an elevated road, and did not blow any whistles, nor ring any loud bells. Besides it was an urban train composed of one coach, running 16 miles an hour, making but a slight noise. While in the case before us, the crossing was a mere plantation private road where none but few employees crossed, on a level road with a heavy locomotive hauling seven coaches, running with a rumbling noise, blowing whistles and ringing bells.

All the questions involved in this case were examined and determined with detail and with authorities in the case decided by this Court on May 10, 1919, entitled Jefferson Planting Co. vs. Morgan Rrd., No. 7520. We annex the opinion in that case as a part of this opinion. We find no reason to change our conclusion. It would have been difficult to have prepared a more authoritative precedent.

II. “In failing to give warning signals commensurate with the extreme danger of the situation.”

The only testimony in support of that allegation is that of the. two laborers sit ting on the field, one acre from the accident occupied at eating their morning meal. They did not hear the train coming, nor the whistles, nor the bells. But there was no reason why they should. The passing of the train was to them a matter of daily occurrence and not calculated to attract their attention. Besides, their testimony, at best was negative and entitled only to weight inferior to positive testimony. On behalf of defendant, the testimony of four witnesses establishes that the locomotive engineer blew a dozen whistles and rang the bell continuously for a distance of nearly a mile before he struck the wagon, irrespective of the noise made by a locomotive and seven cars running at 50 miles an hour. It is true that the defendant’s four witnesses are all employees of its railroad, but so are plaintiff’s two witnesses farm laborers of the plaintiff. See on credibility of defendant’s witnesses Toups vs. Morgan’s La. & Tex. R. R. & S. S. Co., 4 La. App. 141-142.

This case was decided by a learned judge “to the manner born.” He knew the conditions better than we do, and his judgment is entitled to more than ordinary weight.


text:
    No. 10,573
    Orleans
    MATHES v. METAIRIE RIDGE NURSERY CO. MATHES v. PAPWORTH (Consolidated)
    (May 7, 1928. Opinion and Decree.)

      (Syllabus by the Oourt)
    1. Louisiana Digest — Evidence—Par. 53, 344; Brokers — Par. 2, 23.
    The burden of proof is upon the party who alleges the fact to be proven. A real estate agent suing on a verbal contract fails to sustain the burden of proof where the contract is supported by his testimony alone and denied by defendant’s.
    2. Louisiana Digest — Brokers—Par. 2, 23; Evidence — Par. 345.
    The fact that all of defendant’s witnesses are its stockholders, officers, or employees, is a circumstance to be considered in weighing their evidence, but not sufficient to destroy their testimony, particularly when the evidence is supported by the surrounding circumstances and appears reasonable and convincing.
    Appeals from Civil District Court, Div. “D.” Hon. Porter Parker, Judge, and from Twenty-fourth Judicial District Court in and for the Parish of Jefferson. Hon. L. Robert Rivarde, Judge.
    Action by John W. Mathes against Metairie Ridge Nursery Co., Ltd., and John W. Mathes against Miss Elsie Papworth; consolidated cases.
    There were judgments for defendants and plaintiff appealed.
    Judgments affirmed.
    Milling, Godchaux, Saal & Milling, of New Orleans, attorneys for plaintiff, appellant.
    W. W. Wall, of New Orleans, attorney for defendant, appellee.
   WESTERFIELD, J.

This is a suit by a real estate agent for a commission in the sum • of $720.00.

Plaintiff, Mathes, called at the office of the defendant, Metairie Ridge Nursery Co., No. 135 Carondelet Street, this City, and obtained the signature of 'defendant’s treasurer, Miss Elsie Papworth, to the following writing:

“JOHN W. MATHES
“Real Estate
“405 Carondelet St.
August 20, 1924-
“Metairie Ridge Nursery Co.,
“135 Carondelet St.
“City.
“Gentlemen:
“I have a client who offers to rent through me your building, No. 139 Carondelet St., for ,a period of 5 years at a monthly rental of $450.00, per month, payable in advance, lease to commence September, or October 1st, 1924. Tenant agrees to make own repairs.
“Also another client who offers to rent through me space on the upper floors measuring approximately 15CX45' for a period of five years at the rate of $50.00 per month.
“The tenants referred to are both very desirable, and thoroughly responsible in every way.
“If you accept the above offer, I will expect you to pay me the usual commission of 4%. Hoping you will consider the above offers favorably, I beg to remain
“Yours very truly,
(Signed) “Jno. W. Mathes.”
“We, The Metairie Ridge Nursery Company, Ltd., authorize John W. Mathes, Real Estate Agent, to close deal for rental of store for $550.00 and rear office 208 Metairie Court Building for the sum of $100-00.
(Signed) “Elsie Papworth,
“Treasurer.”

It is not claimed that the building was rented by plaintiff under this agreement, but that subsequently Miss Papworth in a verbal agreement authorized plaintiff to rent the premises for $500.00 and that plaintiff procured a tenant willing and able to pay the latter su'm, but defendant corporation refused to conclude the transaction through plaintiff and leased the property to his client through another real estate agent.

Plaintiff,' upon this statement of fact, originally sued the Metairie Ridge Nursery Co. at its domicile in the Parish of Orleans. Following a judgment rendered by the Civil District Court dismissing plaintiff’s action, another suit "was filed in the 24th Judicial District Court for the Parish of Jefferson against Miss Papwo'rth in which the sum of $720.00 was claimed as damages, upon the alleged ground that the judgment in the Civil District Court was based upon the finding that Miss Papworth had exceeded her authority in signing the contract with plaintiff, and consequently She was personally liable in damages. The suit in Jefferson Parish was also decided adversely to plaintiff and both judgments were appealed from and consolidated in this Court.

Before discussing the authority of Miss Papworth to bind her employer and other matters which assumed considerable proportion below, as is evidenced by the extensive record in both cases; which we have carefully considered, the question of plaintiff’s authority to rent the premises for the price which he claims to have secured must first be determined. It is not pretended that plaintiff had any written authority to negotiate a lease upon that basis. His written authority of contract, giving the instrument all that is claimed for it, would have supported a demand for commission, if he had secured a tenant for the store and rear office for $650 per month. This he did not and apparently could not do. He says, however, that Miss Papworth 'subsequently in a conversation had in the presence of her father, made another agreement with him contemplating the lease of the store only for $500. But this alleged verbal agreement is denied by Miss Papworth arid by her father. It is therefore supported only by plaintiff’s statement. Considering that plaintiff must sustain the burden of proof, it is apparent that hé has not done so. Plaintiff’s counsel calls our attention to the fact that all of defendant’s witnesses are interested either as employees of, or as stockholders in the defendant corporation, and that the only disinterested witness, Mrs. Stella Siebold McPherson, testified for plaintiff. Mrs. McPherson testified, it is pointed out, that she dealt only with plaintiff and that he alone induced her to rent the store of defendant. Assuming that Mrs. McPherson is a disinterested witness, a liberal concession, because she says she employed plaintiff, as her agent, and would therefore in the nature of things lean toward his interest in this suit, her testimony is unsatisfactory. She first denied that she had had anything to do with Garland Wolfe, the real estate agent of defendants, and subsequently admitted having much to do with him in negotiating for the lease. Garland Wolfe, who according to the minutes of the corporation, had been retained by the corporation to effect a lease of the place, testified that he had obtained an offer from Mrs. McPherson of $500 long before plaintiff appeared on the scene, but that he was asking more; at one time $750, and later $600, and finally $500 was accepted. He is corroborated by the other witnesses for the defendant and by Mrs. McPherson, who reluctantly admitted his calling on her several times and discussing the lease. Defendant’s witnesses are all connected with the business of the defendant corporation, as counsel points out, but it could hardly be otherwise under the circumstances, and while their interest must be considered in weighing their testimony, it can not destroy its effect especially, when, as in this case, it is most reasonable and convincing.

We conclude, as did the trial Judge, that plaintiff has failed to establish his claim.

The judgments appealed from are affirmed.


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    No. 10,442
    Orleans
    KIRSCH v. O’KEEFE, RECEIVER OF N. O. RAILWAY & LIGHT CO.
    (March 26, 1928. Opinion and Decree.)
    (April 23, 1928. Rehearing Refused.)

      (Syllabus by the Court)

    1. Louisiana Digest — Automobiles—Par. 7c; Street and Interurban Railways— Par. 29, 31.
    Where a brewery wagon traveling on the rails of a street car track, suddenly veers over to the right and in front of a street car moving on a parallel track at a time when the street car is not more than twenty-five feet distant, the street railway company is not liable for damages, for personal injuries to the driver of the brewery wagon due to a resulting collision, under the doctrine of the last clear chance. It is immaterial whether the speed of the car was moderate, and customary, or excessive and unusual, since in either event there was not time to stop the car and avoid the accident.
    Appeal from the Civil District Court, Div. “A.” Hon. Hugh C. Cage, Judge.
    Action by Henry G. Kirsch against J. D. O’Keefe, Receiver of N. O. Railway & Light Co., et al.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed.
    M. C. Seharff, of New Orleans, attorney for plaintiff, appellee.
    Edward Rightor, of New Orleans, attorney for Intervenor.
    Ben W. Kernan, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

Plaintiff, while driving a brewery wagon, was struck in the rear by a street car, operated by defendant company, and injured. He sues for damages. The accident occurred in Tchoupitoulas Street, between General Pershing Street and Napoleon Avenue. There are two car tracks on Tchoupitoulas Street, one used by cars going in the direction of Carrollton Avenue or uptown and the other used by cars traveling toward Canal Street or downtown. Plaintiff was driving up Tchoupitoulas Street on the down track. He attempted to cross over to the up track and his hind wheels caught in a cross switch, delaying him and throwing his wagon sideways, with the result that a car going uptown struck his wagon in the rear and knocked him off his seat, throwing him to the ground and injuring him.

The negligence charged is based upon the open switch and the allegation that the motorman had ample opportunity to stop his car after observing plaintiff’s danger, or in other words the last clear chance to avoid the accident.

The switch, we are convinced, caused the accident, but its mere presence is not negligence per se. It is said that the switch was open. We are not advised that this type of switch is ever locked, or closed. Plaintiff was driving uptown on a car track used for down travel by the street cars. The traffic ordinance is not in evidence, therefore we refrain from comment as to the propriety of driving uptown on the left hand side. of the roadway. However, it is fair to observe that if plaintiff had driven on defendant’s track in the direction of the current ,of traffic, instead of against it, the switch would not have been engaged by his wheels and his line of progress diverted toward the upcoming street car. Besides, if the switch was open, it was apparent to plaintiff, who was familiar with the locality, and should have taken some step or made some effort to avoid enmeshing his wheels. He could have driven off the track, for example, and straddled the rails with his wheels.

Nor do we believe there was opportunity to avoid the accident when the motorman saw, or when he should have seen, plaintiff’s predicament. In the first place it was not to be expected that a wagon traveling upon the parallel track would suddenly veer toward, and across, his path. There was therefore no reason for the motorman to guard against this possibility. When the wagon did appear in his path, he was but 25 feet, or less, away from it. Too short a distance to stop his car whether he was running at the unusual speed, or extraordinarily fast, as plaintiff contends.

For the reasons assigned the judgment appealed from is reversed and it is now ordered that there be judgment in defendant’s favor dismissing plaintiff’s demand.


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    No. 10,400
    Orleans
    BROWN v. LOSCH
    (April 23, 1928. Opinion and Decree.)

      (Syllabus by the Court.)

    I. Louisiana Digest — Damages—Par. 103, 104.
    One hundred and fifty dollars damages allowed to a tenant for contusions and bruises suffered by the breaking of a floor of rented premises considered sufficient indemnity.
    Appeal from the Civil District Court. Hon. Mai’k M. Boatner, Judge.
    Action by Miss Ella Brown against John J. Losch.
    There was judgment for plaintiff and defendant appealed.
    Judgment reduced and affirmed.
    A. T. Higgins, Max Schamburger, of New Orleans, attorneys for plaintiff, appellee.

      M. S. Dreifus, McLaughlin & West, of New Orleans, attorneys for defendant, appellant.
   CLAIBORNE, J.

This case presents a damage suit by a tenant against her landlord for damages for falling through a defective flooring.

The plaintiff alleged that she rented the premises 2721 S. Rampart Street from the defendant at the monthly rent of $8; that on or about September 18, 1924, she fell through the floor of the rear gallery which was in a decayed condition; that both feet and legs went through the floor causing her to fall heavily and producing the following injuries: Lacerations, contusions and bruises of both legs and of the bottom of the right foot, and of the right arm and shoulder, and bruises and sprain of the left hip; that as a result of said injuries, she was confined to bed at her house for three weeks,- and at the Charity Hospital for three months; that she estimates her physical suffering at $1500.

The defendant admitted that he had leased the premises to plaintiff at $2 a week; that the plaintiff did not fall through the floor on the rear gallery; that the floor on said gallery was in good condition and had never been broken by any one; that the plaintiff pointed out to defendant a plank exténding across a portion of the yard leading from one corner of the gallery to the other, claiming that she had been injured by the breaking of the plank that this plank had been put there without defendant’s knowledge, and that if the plaintiff was hurt thereby it was her fault. Further answering, defendant averred' that the plaintiff was five , weeks in arrears with her rent and had been ordered to leave the premises on September 15, 1924; that she was a trespasser and not a tenant at the time of the alleged accident.

There was judgment in favor of plaintiff for Three hundred dollars.

Defendant appealed.

The plaintiff testified that she walked on the gallery and a board broke, and her “right hand leg went through the hole and her knee ‘rested’ on the nails”; she weighs 210 pounds; they were old boards in a decayed condition; she sprained her right arm and bruised the bottom of her foot, and skinned her right leg “all up.” Then her attorney asked her: “What about the shoulder and hip? What about your left knee? What about the shoulder?” She sent for Dr. Carter, her society doctor, who treated her for three weeks at her home; then she visited the Charity Hospital seven or eight times, and was treated by Dr. Magee; she had no bones broken, only “sprains and bruises”; she paid all rent except two weeks; the marks of the nails stayed on- her knee about three weeks, and the scratch on the right leg about one week she did not notice blood on the nails; she was never notified to vacate; the doctor gave her something with which to rub her knee, and a tonic for inward medicine.

Alexander Lopez, a laborer, was at plaintiff’s house at the time of the accident; he was sitting in her room talking to her; she left to go to the rear and a few minutes after he heard her “holloa so loud as if she was crazy”; he walked out on the gallery and “the thing had broken loose and her right leg was down and he helped her out”; she showed him the “gash” around her knee she had gotten from falling through; it was bleeding at the time; he visited her about twice a week, she was confined to her room about three weeks.

Dr. Carter did not remember the details of the injury to plaintiff. On February 14, 1925, he wrote the following memorandum which was offered in evidence: “This certifies that I attended Ella Brown for contusion of shoulder, leg and knee, beginning September 17, 1924, until cured.”

Dr. Henry C. Magee, of the Charity Hospital, testified that he had only a vague recollection of having treated plaintiff; she complained of pain in the shoulder and knee; there was no visible evidence cf injury or of anything else at that' time; she came three or four times; she complained of pain and there was nothing to show for it, she had gone to the gynecological clinic which sent her to the other clinic; it is the case when nothing wrong is found.

Mrs. Betta Lorsch testified that she called twice a week on the defendant for rent after the accident;' that she was not in bed in the beginning.

The defendant testified that he went to inspect the porch the day after the accident; the lady next door rang him up and told him that Ella Brown was hurt; she came out and . pointed out the plank through which she fell; the plank was on the outside of the gallery about eight or ten inches it was no part of the original gallery he does not remember putting it there; this extra plank was about twelve inches from the ground as he measured it he pulled the piece of nail out; there was no blood on the nail.

It is immaterial whether the board which yielded under plaintiff’s weight formed a part of the gallery or not, or whether defendant knew of its existence. The fact remains that it was there for the plaintiff’s use when she rented the premises, and the landlord is responsible for its defective condition.

The plaintiff paid no doctor’s bills, nor did she lose any wages. She sued only for suffering. She suffered no broken bones, “only sprains and bruises,” as she says herself. The testimony of the witness Lopez is affected by his close relations to the plaintiff, and his exaggerations when he testified that the plaintiff “holloaed so loud as if she was crazy,” that she had a “gash” around her knee, which was bleeding. A gash is defined to be “a long and deep gaping wound.” The plaintiff does not claim more than a scratch, and does not mention “blood” or bleeding. Plaintiff’s society doctor, Carter, speaks only of “contusion of shoulder, leg and knee.” The word “contusion” means a “bruise,” a hurt inflicted without breaking the skin, inflicted by a blunt instrument or a fall. The hospital doctor, Magee, testified that “there was no visible evidence of injury or of anything.” The plaintiff’s testimony therefore stands alone. In view of the facility of building up a claim for damages in a case of this kind and the difficulty of the defendant refuting it, courts must require moral certainty of the plaintiff’s demand. Lutz vs. Martin, No. 7175, Ct. App.

While the plaintiff and her witness Lopez testify as to injury to her leg “all up,” and that her knee “rested” upon nails in the flooring, the evidence is that the flooring was only twelve inches from the ground. Her leg could not therefore have gone more than twelve inches below the flooring and that would not reach the knee. But this Court has always been conservative in inflicting damages for mere scratches or contusions. In. the case of Boutin vs. Bradley, 1 La. App. 260, where the plaintiff was bruised about the hips and remained in bed several days this Court allowed $150. Also Nash vs. Canal & C. R. Co., 52 La. Ann. 1199, 27 So. 661, $100 for injuries not severe.

It is therefore ordered that judgment herein be reducd from three hundred dollars to one hundred fifty dollars, and as thus amended, that it be affirmed, the defendant to pay all costs.


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    No. 10,317
    Orleans
    WILLIAMS v. FEDERAL MACHINE SHOP LEGLISE, INTERVENOR
    (May 7, 1928. Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Chattel Mortgages— Par. 4; Landlord and Tenant — Par. 111.
    A chattel mortgage recorded prior to renewal of lease takes precedence over landlord’s lien on movables in leased premises.
    Appeal from the Civil District Court. Hon. Wm. H. Byrnes, Judge.
    Action by William H. Williams against Federal 'Machine Shop, Inc. Frank Leglise, intervenor.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    R. T. McBride, of New Orleans, attorney for plaintiff, ¿ppellee.
    ■ Philip R. Livaudais, of New Orleans, attorney for defendant, appellant.
   JONES, J.

Plaintiff brought executory proceedings August 27, 1925, on a note for One thousand, eight hundred thirty-five ($1,835.00) Dollars, dated September 14, 1922, made by the Federal Machine Shop, Incorporated, secured by a chattel mortgage recorded on same date on certain machinery contained in the premises No. 706 N. Rampart Street.

Frank Leglise, owner of the leased premises, on September 10, 1925 (the day before the advertised sale by the Sheriff), intervened, asserting his lessor’s lien and privilege and claiming his right to be paid by preference out of the proceeds of the sale of said machinery the sum of Two hundred fifty ($250.00) Dollars, rent due by the defendant for the months of August and September, 1925.

The trial Judge decided in favor of the holder of the chattel mortgage note.

From this decision the lessor has appealed.

Plaintiff, after offering in evidence the chattel mortgage note and the Act of Chattel Mortgage, rested his case.

Intervenor filed in evidence two leases, one covering the period October 1, 1921, to September 30, 1922, from Frank Leglise to Federal Machine & Foundry Company, Inc., the other covering the period October 1, 1922, to September 30, 1923, from Frank Leglise to Federal Machine Shop, Incorporated. It is admitted that the last mentioned lease, while undated, was in fact executed and signed August 19, 1922, and was renewed from year to year to September 30, 1925, by endorsement made thereon prior to expiration.

Counsel for plaintiff objected to the introduction of the first mentioned lease, from Frank Leglise to Federal Machine & Foundry Company, Inc., on the ground that said company was an entirely different corporation.

The record shows that the Federal Machine & Foundry Company, Inc., went through a receivership proceeding and the assets of the company were sold at' public auction, together with the right of occupancy of the leased premises 760 N. Rampart Street, by Harry Latter, Auctioneer, on July 18, 1922, pursuant to an order of the Civil District Court, to R. A. Barnes, the mortgagee.

Frank Leglise testified that the mortgaged machinery had always been in the leased premises; since the sale of the business at auction, July 18, 1922, he had seen R. A. Barnes, the purchaser, but once at said place of business when he came to audit the books; on the other hand, Jules Michon, who as president of the Federal Machine Shop, Incorporated, signed the lease on August 19, 1922, and in that capacity signed both subsequent endorsements of renewal of the lease, and the other employees whose names appeared in the final account of the Receiver of the Federal Machine & Foundry Company, Inc., had been there continuously since the first lease “and up to the time of the sale recently by the Sheriff.”

The trial Judge, after finding that the chattel mortgage was recorded September 14, 1922, and that the lease to the defendants ran from October 1, 1922, to September 30, 1923, based his judgment on the decision of the Supreme Court in Youree vs. Limerick, 157 La. 39.

Plaintiff contends as follows:

(1) The two lessees, the original corporation, the Federal Machine and Foundry Co., Inc., and the second corporation, the Federal Machine Shop, Inc., must be for the purpose of this suit considered identical, because they have practically the same officers and stockholders and have always done business at the same place, operating with the machinery herein seized.

(2) That the lease between intervenor and the original corporation of August 22, 1922, continued without interruption until this suit was filed on August 27, 1925, and and the landlord’s privilege given by this lease ante-dated the chattel mortgage recorded on September 14, 1922, because the renewals of July 23, 1923, and of July 25, .24, kept the original lease alive.

We will first consider the latter proposition.

The renewal of July 23, 1923, reads as follows:

“July 23, 1923.
“The contract of lease as entered into by Frank Leglise and the Federal Machine Shop, Incorporated, entered into August 19, 1922, as shown on the reverse side hereon is hereby renewed between Frank Leglise and the Federal Machine Shop, Inc., for a period of one year, commencing on the first day of October, 1923, and ending on the thirtieth day of September, 1924, under the same agreements thereon.
“FEDERAL MACHINE SHOP, INC.
“WITNESSES: Jules L. Michon, Jr.,
“WALTER H. KOCH Pres.
“F. LEGLISE.”

The wording of that of July 25, 1924, with dates changed is identical.

Do these renewals constitute new leases subordinate to mortgage, or do they keep the original lease alive so as to ante-date the mortgage?

In the Youree case, cited above, it was finally and definitely decided that the lessor’s lien on chattels of lessee began from the date of the lease if the chattels were then on the leased premises and it has precedence over a subsequently recorded chattel mortgage.

In Remedial Loan Society vs. Solis & Trepagnier, 1 La. App. 164, this Court decided that a tacit reconduction of a le'ase from month to month created a new lease each month and that a prior chattel mortgage took precedence over a reconduction subsequent thereto.

Intervenor relies on the case of Hill vs. Boureier and Pond, 29 La. 841, to sustain his point that renewal of a lease is a continuation of the existing contract.

In that case plaintiff had leased a dwelling to Mrs. Boureier for one year ending September 30, 1873, with B. M. Pond as her surety.

At the expiration of this term a new lease was granted to Mrs. Boureier, at a reduced rent, without security, for the year ending September 30, 1874; and she continued in the occupation of the premises.

The rent for the last six months under the first lease was not paid; and, in January, 1874, suit was brought against Mrs. Boureier and Pond to recover the amount. Judgment was taken by default against Mrs. Boureier. Pond, the surety, answered that he was no longer liable as surety, because the lessors had novated the contract with Mrs. Boureier, and had accepted her as their tenant for a prolonged period, and had received from her rent sufficient to discharge the debt for which he was surety.

The Supreme Court in affirming a judgment against the surety said that they found in the record “no evidence” of a contract of novation, whereby the first lease had been disposed of by the second. The Court said:

“The granting of a new lease, at the expiration of the first term, did not extinguish, nor did it in any manner impair, the rights and obligations of the parties under the first lease, nor does it tend to show the substitution of a new contract or obligation in place of the first contract.”

The case is merely authority for the proposition that where a second and new lease is entered into, and occupancy thereunder begun while rent is still due under the first and old lease, the permission of the lessor that lessee occupy under a new lease while still his debtor for rent under the old lease, does not bring about an abrogation of the right of the lessor to enforce the payment of the rent due under the old lease. That this decision rather tends to support the view of plaintiff is confirmed by the fact that the editors of Corpus Juris in Vol. 35, page 1037 have cited this case authority for the following principle:

“In point of Legal Operation each renewal lease is a new lease and the taking of it operates as a surrender of the old one.”

It must be remembered that the last renewal of the lease was made on July 25, 1924, for a tenancy to begin October 1, 1924, to end September 30, 1925. The lien and privilege of intervenor arises under this lease, for rent for the months of August and September, 1925, the last two months of the last lease. It is only under this last lease for the period October 1, 1924-September 30, 1925, that intervenor can press his lien and privilege.

Intervenor’s case would be stronger if the original lease gave the lessee any option or right to extend his contract for a definite time upon proper notice, as leases frequently do, but both leases involved here are absolutely silent as to any right bf renewal or extension.

This distinction is emphasized in the above citation from Corpus Juris.

Webster’s New International Dictionary defines Renew: “To make new again, to restore to freshness, perfection or vigor.”

Bouvier’s Law Dictionary (third revision) defines Renew: “To make again as to renew a treaty or covenant- — Daggett vs. Daggett, 124 Mass. 151.”

Renewal, a change of something old for something new; as the renewal of a note; the renewal of a léase.

From Words and Phrases, Yol. 4, p. 267 and 268, we quote the folowing:

“The word ‘renew,’ in a lease providing that the lesse.e shall have the right to renew the lease, imports a giving of a new lease like the old one, with the same terms, stipulations, and covenants. Leavitt vs. Maykell, 89 N. E. 1056, 1057, 203 Mass. 506, 133 Am. St. Rep. 323.
“The covenant in a lease to ‘renew’ indicates the intention of the parties to execute a new lease, and the duty of the lessee to give notice to the lessor at or before the expiration of the lease of his election to renew. Whalen vs. Manley, 69 S. E. 843, 884, 68 W. Va. 328.
“The meaning of the word ‘renew’ is to make over, to re-establish or to rebuild; and the meaning of ‘extend’ is to prolong, to lengthen out. Where a lease for ten years provides for an extension of the term for ten years at the option of the lessee, as distinguished from a renewal of the lease, the lease makes the term twenty years, at the option of the lessee, and his holding over, after the exp'iration of the ten years, is a sufficient exercise of the option, so that it is immaterial whether the lessor was insane when he afterwards gave a written extension for the ten years. Quinn vs. Valiquette, 68 Atl. 515, 518, 80 Vt. 434, 14 L. R. A. (N. S.) 962.
“The ‘renewal’ of a conspiracy means to begin it again; to recommence it; to repeat it. Each renewal is a new offense. Commonwealth vs. Bartilson, 85 Pa. 482, 487.”

In Mossy vs. Mead, 2 La. 157, the Supreme Court held that the right of renewal for a term of years in a lease was a substantial part thereof, transferable with it.

See also Lieuteaud vs. Jeanneaud, 20 La. Ann. 327; Werlein vs. Janssen, 112 La. 31, 36 So. 216; Jackson Brewing Co. vs. Wagner, 117 La. 875, 42 So. 356; Audubon Hotel Co. vs. Braunig, 120 La. 1089, 46 So. 33; and various cases cited in the Supplement to Dart’s Digest, page 533.

In Hincks vs. Hoffman, 12 Orl. App. 218, this Court held that a new contract of lease by reconduction had been effected when the lease provided the omission of both parties to give written sixty-day notice of their intention not to renew should operate1 a renewal upon same terms and there was no written notice, although occupancy continued after expiration of lease.

As mere silence and acquiescence brings about a new lease in the case of reconduction, a fortiori does the formal signing and dating of a renewal agreement indicates a new meeting of the minds and the confection of a new contract.

For above reasons, the judgment is affirmed.