author: MAY, Judge ad hoc.

text:
    No. 10,460
    Orleans
    STONE v. N. O. PUBLIC SERVICE, INC.
    (January 21, 1929. Opinion and Decree.)
    Carroll & Carroll, Henry G. McCall, and A. J. Plough, of New Orleans, attorneys for plaintiff, appellee.
    Ivy G. Kittredge, of New Orleans, attorney for defendant, appellant.
   MAY, Judge ad hoc.

This is a suit for personal injuries and property damage brought by Isaac D. Stone against the New Orleans Public Service Inc. and the Union Indemnity Company, Louisiana corporations.

Plaintiff alleges that on February 16, 1922, at about 8:30 a. m., he, the owner and operator of a riding academy in New Orleans, was proceeding up Coliseum street, riding one mare and leading two others, one on either side, the three animals proceeding abreast; that when he had reached a point on Coliseum street, a short distance below Delachaise street, he saw a street car, the property of the first-named defendant, proceeding down Coliseum street at a very rapid speed; that he (petitioner) thereupon signaled to the motorman to warn him against proceeding so rapidly, it being clear that there was danger that the car would strike one of petitioner’s horses, the street being very narrow at that point; that the motorman paid no attention to petitioner’s signal, but continued on, and that, while petitioner pulled his horses over to the right as far as possible, he was unable to get out of the way, with the result that the car came into violent contact with the left lead mare, striking her with such force as to force her against the mare that petitioner was riding and to force, this second mare against the third, all three animals together with petitioner being knocked down and injured.

Then follow various allegations as to conditions immediately following the accident and as to physical injuries suffered by petitioner, together with injuries inflicted upon petitioner’s horses and loss suffered by petitioner by way of interference to and disarrangement of his business, together with allegations of depreciation in value of the animals subsequent to the accident, and loss incurred by petitioner in an attempt to minimize the damage inflicted upon him. Plaintiff’s claims total $1,039.

The answers of defendants are the equivalent of general denials.

This case was tried by a jury who brought in a verdict for $839, upon which verdict judgment was rendered January 26, and signed February 2, 1926, in favor of plaintiff and against the New Orleans Public Service Inc., and from which judgment defendant alone has appealed.

The record is voluminous, there being six witnesses for plaintiff and six for defendant.

For the plaintiff, however, only one eyewitness was offered in addition to plaintiff himself, while for the defendant the only eyewitness produced was the conductor of the car in question.

The remainder of the evidence offered is as to conditions immediately following the accident and as to damage alleged to have been ultimately suffered.

Now as to the question of the negligence vel non of the defendant — this we will not undertake to consider, such being solely a question of fact, found by the jury, and in which finding we see no manifest error.

As to quantum, however, we feel that there is manifest error in the jury’s verdict, and we therefore proceed to make what we believe the necessary corrections.

We are, of course, without knowledge as to the various items of alleged damage allowed or disallowed in whole or in part by the jury, and we will therefore consider and pass upon each item of claimed damage as presented by plaintiff.

The first claim is for $250 for personal injuries and suffering. As to this item, there is nothing in the record other than the testimony of plaintiff that he was thrown from his horse and suffered a wrenched back, which only partially incapacitated him for 4 days; that during these 4 days he came to his place of business, but that he was “practically out of the saddle” for four days.

There is no evidence that plaintiff employed a physician, or that he received any treatment whatever, or that he suffered pain, or that he was in any way inconvenienced, except as above stated. We believe, therefore, that $150 is sufficient to compensate plaintiff for such personal injury.

The next item claimed is for food and care of two injured horses during incapacity — $90—such being on the basis of $1 a day for 35 days for one, and 55 days for the other. Here there is no evidence to show that any particular attention was given these injured animals by plaintiff personally, other than to feed them, and according to the testimony of plaintiff’s witness, H. J. Schreiber, a grain merchant, such animals could have been fed at the time in question at a cost of from 50 to 60 cents a day. We feel therefore, that $54 is sufficient allowance for this claim.

Plaintiff’s claim for “loss in receipts”— $315 — is allowed.

The next claimed item is for depreciation in value of the mare “Lady” — $150. This mare was bought by plaintiff for $150 some months prior to the opening of his riding school, but he contends that he so trained her that she was, at the time of the accident, worth $250, and that, subsequent to the accident, she was only worth $100. The evidence shows, however, that this animal was only incapacitated 35 days, and that thereafter plaintiff used her in his riding school, and that it was only after he .had closed his school some 1 y2 to 2 years later that he sold her for $75. We cannot, therefore, see that any depreciation in value has been shown as a result of the accident. This claimed item is therefore disallowed.

The next claimed item is for depreciation in value of the mare “Sister” — $225. The evidence shows that this animal was bought by plaintiff prior to the opening of his riding academy for $150; that she was incapacitated as a result of the accident for 55 days, and that thereafter plaintiff used her in his riding school until such school was discontinued in 1924 or 1925, after which time plaintiff gave the animal away because she was going blind. There is no evidence to show that approaching blindness was in any way a result of the accident in question, and we find no depreciation in value shown, and the claim for such damage is therefore disallowed.

The next and last claimed item is for loss incurred as a result of the purchase by plaintiff of a horse for $125, bought, so plaintiff says, the day -following the accident, in an effort to reduce and minimize the losses resulting from such accident. Plaintiff contends that this animal was unfit for use by his academy pupils, and that it subsequently depreciated in value to $60. The evidence shows that this animal was sold for $75. However, plaintiff’s claim is for the difference between the purchase price and $60 or $65, less the admitted earnings of such animal of $56, making plaintiff’s claim $9.

Now, while plaintiff’s statement, that he bought this horse in an effort to minimize his damage, is uncontradicted, it is equally true that there is nothing to show that the animal depreciated in value subsequent to his purchase, and, if he was only worth $75, then plaintiff paid too much for him, and we cannot see how defendant can be held for plaintiff’s error in judgment, and such an alleged element of damage is, in any event, too remote for allowance.

In truth, it might well be that defendant is entitled to a credit for the earnings of this animal ($56), but there is nothing to show that such were net earnings, and we believe, therefore, that justice will be best served by simply dismissing this item from further consideration..

Under these circumstances, we believe that an award of $519 to plaintiff would be proper.

For these reasons, the judgment appealed from is amended by reducing the amount thereof to $519, and, as thus amended, it is ordered that said judgment be affirmed.


source: Caselaw Access Project

author: CLAIBORNE, J.

license: Public Domain

text:
    No. 11,213
    Orleans
    OLEZENE v. EAGLE LIFE INS. CO., INC.
    (March 26, 1928. Opinion and Decree.)
   CLAIBORNE, J.

Plaintiff claims weekly benefits to the amount of $60 with the double penalty sanctioned by section 3 of Act 310 of 1910, and $30 attorney’s fees. He alleges that on October 11, 1926, he took a policy with the defendant; that said policy provides for a weekly indemnity of $5 for an accident; that on May 12, 1927, while plaintiff was loading a ship, he slipped on a plank and fell, injuring himself and making himself unable to perform any work of any reasonable kind; that his “weekly receipt book was paid up and in good standing at the time of said accident”; that defendant paid plaintiff one week’s indemnity of $5, and has refused to pay any more; that defendant owes him 12 weeks commencing May 26th and ending August 11, 1927, besides penalty and attorney’s fees.

The defendant admitted that plaintiff was insured, as alleged by him, but denied all other allegations of the petition.

Further answering, defendant admitted “paying to plaintiff the sum of $5, the said amount being all that plaintiff was entitled to under the policy and contract with defendant, he, the said plaintiff, being at that time less than two weeks in arrears in payment of the premiums of the policy, but thereafter the said plaintiff was more than two weeks in arrears and not entitled to be paid sick relief.”

There was judgment in favor of the defendant dismissing plaintiff’s suit.

Plaintiff appealed.

The clause in the policy upon which defendant relies is as follows:

“No. 4: This policy shall not lapse for non-payment of premiums until the premiums shall remain unpaid for four consecutive Mondays. The right of the insured, however, to receive sick or accident benefits under this policy shall be suspended when the premium shall be unpaid for two consecutive Mondays or more, and the subsequent payment of such arrears shall not entitle the insured to benefits for sickness or disability beginning or occurring within the period of such arrears.”

In consideration of the weekly payment in advance of a premium of 25 cents, the company obligated itself to pay the assured a weekly allowance of $5 for sickness or accident.

It is conceded that the plaintiff, on May 9th, paid a premium of 25 cents which carried him to the week ending May 16th. On May 12th his accident happened, for which the company, on May 25th, paid him $5. On May 23rd, the defendant’s collector did not call upon the plaintiff to collect the premium, but the plaintiff on the next day, the 2'4th, called at the company’s office and paid 50 cents for premiums payable on advance on May 16th and May 23rd. Because these payments had been made in arrears “when the premiums were unpaid for two consecutive Mondays,” the company refused to pay any more benefits.

It is questionable whether the defendant company had a right to require the payment of premiums while it was paying benefits to the assured, but, assuming that it did, there are two reasons in this case why the company’s refusal and the judgment appealed from are both wrong.

The first is that at the time the second premium became due, on May 23rd, the company owed the plaintiff a benefit of $5 which operated a compensation of his debt, pro tanto, for that premium, as well as for the first premium also due since May 16th, for which the plaintiff paid the defendant 50 cents on the same day.

The second is that failure to pay the premiums for two consecutive Mondays only defeats benefits for past sickness or disability “beginning or occurring within the period of such arrears.”

Plaintiff’s disability did not begin within the period of the arrears, and, if it “occurred” within that period, it lasted only two weeks from May 16th to May 30th, which was the only time during which, it might be said, plaintiff was not entitled to a benefit.

But what we said concerning the first premium applies to the second; that is, that the plaintiff was not in arrears as long as the company owed it a benefit in excess of the two premiums.

We think, therefore, in the language of section 3 of Act 310 of 1910, p. 528, that the defendant has been guilty of delay in payment of the benefits of plaintiff without “just and reasonable grounds,” and has subjected itself to the penalty provided by that act, double the amount due under the terms of the policy.

These benefits are intended to relieve urgent and immediate wants, and it is a matter of public policy, as indicated in the act of 1910, that insurance companies should not defeat this object by delay "without just and reasonable grounds.”

The plaintiff in this case was injured in May, 1927, 10 months ago, and a benefit granted at this late date loses its name.

The case of Sincer vs. Latin American Co., No. 10,717, O. B. 73 of this court, 121 So. —, quoted by defendant, is not in point. In that case the plaintiff was hurt on August 17th; on that date, says the court, two weekly premiums due August 10th and 17th were in sufferance, and were paid only on August 19th.

The policy contained the following clause:

“* * * But in no case shall the payment of any past due premiums, two Mondays or more in arrears, entitle the insured to claim or receive indemnity for injury or disease received or contracted prior to said payment or within 28 days thereafter.”

Such were not the facts in this case. Here the injury was received while the plaintiff was in good standing. It was only after the accident that he became in arrears.

The plaintiff received 12 sick certificates. He was paid one. The remaining 11 represent $55. The penalty is $55, and the attorney’s fees we fix at $25.

It is therefore ordered that the judgment herein be reversed and set aside, and it is now ordered that the defendant the Eagle Life Insurance Company, be condemned to pay to the plaintiff, Victor Olezene, Jr., the sum of $135 with 5 per cent per annum interest from August 16, 1927, .until paid, and all costs of suit.


author: JONES, J.

text:
    No. 11,099
    Orleans
    MATHEWS BROS. v. SCHOENBERGER
    (October 15, 1928. Opinion and Decree.)
    Deutsch & Kerrigan, of New Orleans, attorneys for plaintiffs appellants.
    O. S. Livaudais, of New Orleans, attorney for defendant, appellee.
   JONES, J.

Plaintiffs, real estate brokers, averring performance on their part, sued defendant for a commission of $1,280 and $250 attorney’s fees upon the following contract:

“New Orleans, La., Oct. 7, 1925.
“Mathews Bros., City. Dear Sirs: I offer to purchase for thirty two thousand dollars the following property: 900 Peters Ave.
“Terms $6,000.00 cash Bal. thru homestead
. “Taxes: 1925 prorated Paving to be paid by purchaser.
“Act of Sale to be passed within 45 days
“Act of sale to be passed by purchasers Notary Public, at my expense, and as soon as this offer is accepted in writing, I will deposit on account of the purchase price, $3,200.00, which deposit is to be non-interest bearing and is not to be earnest money; either party hereto reserving the right to demand specific performance. My deposit is to be placed by you in any Bank, of your selection without responsibility on your part in case of suspension, liquidations, receivership or failure of said Bank. Vendor will not owe purchaser any penalty in case of legal defect in title. In the event of acceptance, and my failure to comply with the terms of this offer I obligate myself to pay on demand your commission of 4% on this sale, and any attorney’s fees and costs of court which you might incur in forcing collection of your claim.
“If the deposit is forfeited the agent is to deduct his commission and balance to be turned oyer to vendor.
“Should vendor not have title in his name when this offer is accepted I will allow reasonable time to tender good and valid title.
“This offer is to remain good and irrevocable until -.
“Purchaser’s Signature: S. B. Schoenberger
“Address, Triumph, La.
“New Orleans, La. Oct. 8/25
“I accept above offer and agree to pay your brokerage of $1,500.00 and any attorney’s fees and costs of court incurred in forcing collection of claim for commission.
“Owner’s Signature: S. J. Peters.”

After his exception of no cause of action had been overruled, defendant answered, admitting his signature, but denying the validity of contract on account of the alleged potestative condition set forth in the words: “Bal.' thru homestead.” Defendant further pleaded estoppel by laches because the plaintiff claimed no default and made no demand for commission until shortly before this suit was filed, more than year after the purported acceptance, although defendant had told the plaintiff shortly thereafter that he would do nothing further in the matter.

Plaintiff appeals from an adverse judgment.

Trial began with cross-examination of defendant under the act. When asked by the judge to explain the transaction, defendant answered as follows:

“A. Judge, when I appeared in the real estate office that morning I made him an offer of $32,000.00 for the property. He said he would make homestead loan at $26,000.00 and put the deal through.
“Q. Who said that?
“A. This man, that he would get the balance and make the loan, if I could raise $6,000.00' — the two brothers. They look alike to me. I think this is the one —Mathews Brothers — -Mr. Mathews. So he said he was in a hurry and he pulled out a paper and I signed it, and he was to make a loan at $26,000.00 to cover the purchase of the property at $32,000.00. I was supposed to give him $6,000.00. I did not know — he did not ask for a commission or nothing. I was to make the first deposit, and I signed the paper and went away. About a week or two after that, one of the men came and asked me for the money, and I told him I did not have the money and could not raise it. About two weeks after that a lady .and a man came — this same gentleman here, and made a demand for money, and I told them I could not raise the money and had to withdraw the contract. No more was said until a year afterwards when I got a letter from an attorney, and about a week afterwards they entered suit against me. That is how I understand the contract.”

He later said that the land was misrepresented to him; that he went to see one or two homestead men in this city, including his brother-in-law, who was a director in one, to ascertain the amount that could be borrowed on the property, and was told the best loan obtainable was $16,000; that Mr. Mathews and a young lady had called on him about two weeks after the acceptance to ask for the deposit, and had been told by him that he was unable to raise the money and it was impossible for him to sign the note and take the property; that he heard nothing further until more than a year later, ' just a few days before suit was filed, when he received a letter of demand from plaintiff’s attorney. This testimony is partly confirmed by a letter offered in evidence from plaintiffs to defendant, dated October 9, 1925, in which notice of acceptance of contract is given and request is made “for further arrangements.”

The only other witnesses, Mrs. Kelliher, an employee of plaintiff, aud Jeff Mathews, a member .of the firm of Mathews Bros., confirm defendant as to their demand for money, but they both testify that he promised to make a deposit as soon as he could secure the money. Mathews further testified that he was a director in several and an appraiser in two New Orleans homesteads; was thoroughly familiar with real estate values; that this property was worth at the time between $35,000 and $36,500, and that he would have no difficulty in securing a homestead loan of $26,000 on semi-commercial property of this kind; that the property had been listed with his firm for some time for either $35,000 or $45,000, and they had a contract for its sale.

In his able argument before this court, plaintiff contends that the obligation to secure' the homestead loan rested solely upon defendant under the contract, but plaintiff nowhere denies the positive statement of the defendant that plaintiff had promised to secure the homestead loan of $26,000.

Evidently Mathews did not then so construe the contract, which, in our opinion, is by no means clear on this point. It simply provides that the balance is to be secured through a homestead, but it does not say whether the purchaser or the vendor shall secure the homestead loan.

In the case of Titus vs. Cunningham Jackson et al., 7 La. App. 37, this court held a similar agreement to purchase null and void. Though a writ was granted by the Supreme Court on other points, the question as to the effect of the so-called potestative condition in contracts of this kind was not considered as it was not before the court. See Titus vs. Cunningham, 164 La. 431, 114 So. 86.

Plaintiff contends that this decision is not controlling because the present case differs from the Titus case materially. Here only the purchaser and the real estate agent are involved, whereas to the Titus case both real estate agents and both vendor and purchaser were parties.

He states his conclusion on page 11 of his brief as follows:

“Where, therefore, the broker is employed by one who wishes to purchase a specific piece of property, subject to a homestead loan, when the broker produced a vendor, ready, willing and able to sell on the purchaser’s own terms, he has done all that it is within his power to do, and he becomes entitled to his commission on the failure of his principal to comply with .his agreement.”

We consider this conclusion untenable, because the so-called differences are not material.

In the Titus case, the plaintiff, also a prospective purchaser, sued for the return of his deposit because his offer to purchase was not legally binding, as it contained the phrase, “subject to a homestead loan,” a potestative condition. Plaintiff relies upon the decision of this court in the case of Deano vs. Garcia, No. 9369 on the docket of this court, which was decided with one judge dissenting in 1923.

In the Garcia case, Judge Renshaw of the First City Court had maintained an exception of no cause of action to the petition of a real estate agent who was suing the supposed purchaser for his commission on a contract similar in all essential respects to that involved here. In reversing the lower court, this tribunal held that such a contract, while it might be potestative as between the purchaser and vendor, was valid as between the real estate agent and the purchaser.

We had considered that the Deano decision was impliedly reversed by this court in the Titus decision, as they are necessarily contradictory; but, as there seems to have been some doubt about the matter, we now expressly overrule' the Deano de’cision, and hold that the Titus case is controlling.

In this view of the case we do not find it necessary to pass upon the plea of estoppel.

For above reasons, the decision of the trial court is affirmed.


author: WESTERFIELD, J.

text:
    No. 11,061
    Orleans
    LOUISIANA ROAD MACHINERY CO. v. TALLENT ET AL.
    (May 27, 1929. Opinion and Decree.)
    R. 0. Vorbuseh, of New Orleans, and Shelby Taylor, of Baton Rouge, attorneys for plaintiff, appellant.
    W. W. Wright, of New Orleans, attorney for defendants, appellees.
   WESTERFIELD, J.

Plaintiff sues William Tallent, Sigur Martin, and B. A. Campbell, in solido, for the balance due on an open account in the sum of $780.08.

Plaintiff is engaged in the business of selling road machinery. The defendant Tallent had a contract for the construction of a bridge known as the Thompson creek bridge, in the parish of West Feliciana.

A party by the name of Hamilton, a road contractor, induced Tallent to purchase for him, from the plaintiff, certain road machinery; Tallent having at one time been a salesman for the plaintiff company. The machinery was delivered to Hamilton and only partially paid for.

Sigur Martin and B. A. Campbell are lawyers and compose the firm of Martin and Campbell. It is alleged that, in addition to their legal activities, they were in partnership with Tallent in the construction of the bridge, and it is as co-partners that they are sought to be held in this proceeding.

There is considerable testimony tending to prove that Martin and Campbell were unusually interested in Tallent to an extent not warranted by a purely professional relationship. For example, it is admitted that Martin and Campbell loaned Tallent various sums, from time to time, aggregating approximately $6,000, without security and without taking any acknowledgment thereof in the shape of a promissory note, or otherwise, and without exacting any interest. It is also in evidence that, during the progress of the work on the construction of the bridge, Martin acted as superintendent, in the absence of Tallent, caused by illness. It is explained that Martin and Campbell were both intimate friends of Tallent, and that whatever financial accommodation was extended him and whatever personal service was rendered beyond the requirements of professional representation was due to this friendly relation.

The evidence undoubtedly establishes the fact that Martin’s and Campbell’s relations with Tallent were very close and were very unusual as between attorney and client, but it falls short of proving a partnership. There is no testimony to show any intention to share profits or losses in the business of constructing the bridge, and there is nothing to show that Hamilton, for whom the road machinery was purchased, had any connection with Tallent in his bridge-building enterprise. It is true that Martin and Campbell paid plaintiff one-half of its bill, and there is some testimony to the effect that Martin verbally guaranteed the payment of Tallent’s account with plaintiff, which we think was improperly admitted.

We agree with the trial court that plaintiff has failed to prove his case as against Martin and Campbell with legal certainty.

As to Tallent, there was judgment against him below as prayed for, and he has not appealed.

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


author: JANVIER, J.

text:
    No. 11,865
    Orleans
    HARPER v. NOBLE
    (May 27, 1929. Opinion and Decree.)
    (June 10, 1929. Rehearing Denied).

      Martin E. Kranz, of New Orleans, attorney for plaintiff, appellant.
    Jos. A. Casey, of New Orleans, attorney for defendant, appellee.
   JANVIER, J.

Plaintiff sues on notes for $100, with 8 per cent interest on certain portions thereof from various dates until paid, and also for $25 attorney’s fees. Defendant refuses to pay, basing his refusal on his contention that he had paid the notes. It seems that, prior to the execution of these notes, defendant had borrowed $200 from plaintiff and had for many months been making payments more or less regularly on this amount. No notes were given on this first transaction. After paying on this first loan what seemed to him considerably more than was due, defendant refused to make additional payments, and plaintiff thereupon called on him and persuaded him to execute a series of ten notes for $20 each, payable monthly. Defendant had paid five of these notes when, having come to the conclusion that, as a result of the entire transaction with plaintiff, he had paid him a great deal more than could possibly be represented by the principal and interest, he refused to make further payments. This suit resulted.

Defendant reconvened for a very large sum which he claimed as overpayment as a result of usurious interest. It seems to us that the defense, instead of being a plea of payment, should have been a plea of want of consideration, because it is manifest that, after executing the notes, defendant made no payment to the holder thereof, but we are convinced that he received no consideration therefor. The evidence as to want of consideration was introduced without objection and we see no reason why the position of defendant, assumed in his pleadings, should not be changed by evidence not objected to.

The case turns entirely on a question of fact, which the trial judge resolved in favor of defendant. We see no manifest error in his finding.

So far as the reconventional demand is concerned, the evidence is very confusing, and, as on this point the burden of proof is on the defendant, and since it is manifest that he has not sustained this burden, we believe that this reconventional demand was properly dismissed.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be affirmed, at the cost of appellant.

ON APPLICATION FOR REHEARING.

Counsel for appellant in his application for rehearing directs our attention to the fact that a typographical error appears in the second paragraph of our opinion in this case, reading: “It seems to us that the defense, instead of being a plea of payment, should have been a plea of want of consideration, because it is manifest that, after executing the notes, defendant made no payment to the holder thereof, and we are convinced that he received no consideration therefor.”

The language is now corrected so as to read:

“It seems to us that the defense, instead of being a plea of payment, should have been a plea of want- of consideration, because it is manifest that, after executing the notes, plaintiff made no payment therefor to the maker thereof, and we are convinced that he received no consideration therefor.”

The verbiage in our opinion is corrected, and the application for rehearing is denied.


text:
    No. 10,746
    Orleans
    JUNG v. RHODES ET AL.
    (June 24, 1929. Opinion and Decree.)
    W. Me L. Fayssoux and P. M. Milner, of New Orleans, attorneys for plaintiff, appellee.
    John C. Hollingsworth, of New Orleans, attorney for defendant, appellant.
   JANVIER, J.

Joseph Lee Rhodes, one of the defendants, had undertaken the construction of certain houses, which construction work was being financed by plaintiff, Peter Jung.

Contemporaneously with the construction of the Jung houses, Rhodes was erecting other houses under a partnership agreement with Robert J. Perkins, the other defendant.

The material for the Jung houses was purchased by Rhodes, but was paid for by Jung.

Plaintiff alleges that Rhodes removed from the premises on which the Jung houses were being erected certain material valued at $1,232.25 and used this material in the construction of the Perkins houses, and that, inasmuch as he (plaintiff) had paid for this material, he is the furnisher of materials and, as such, is entitled to a lien on the Perkins houses. He asks for a personal judgment solidarily against both defendants and for a recognition of the alleged lien and privilege to which we have referred. Judgment in personam was rendered as prayed for against Rhodes, but the suit was dismissed as to Perkins, and recognition of the lien and privilege was refused and the recordation thereof ordered canceled and erased.

Rhodes, in his answer, prayed that the’ demand of plaintiff be rejected, and, in the alternative, that, if any judgment were rendered against him, a like judgment be rendered in his favor against Perkins.

Perkins denied the material allegations of plaintiff’s petition, but, never having been served with a copy of the so-called call in warranty of Rhodes, made no answer thereto.

For the purpose of attempting to fix responsibility on Perkins, Rhodes assisted two building experts employed by plaintiff in identifying the building material which had been used in the construction of the Perkins houses. In doing this he established the amount of the claim of Jung against himself, and it is manifest from his testimony that he does not seriously dispute the correctness of the claim so far as he is concerned. In the brief of his counsel we notice that his liability is denied rather strenuously, hut, in view of his own testimony, we think that the trial court was entirely correct in awarding'plaintiff judgment against him.

His counsel contends that no personal judgment was asked for. A reading of the petition shows that he is in error in this.

So far as Perkins is concerned, we believe that the judgment of the trial court has become final. Jung, the plaintiff, has not appealed, nor do we notice any appeal by Rhodes from the judgment rejecting his prayer for a judgment in warranty against Perkins. Furthermore, we do riot believe that his petition, never having been served on Parkins, had the effect of making Perkins a defendant in warranty. Therefore, since Perkins is no longer interested in the matter, by reason of the final judgment in his favor, from which no appeals have been taken, and since the judgment in favor of plaintiff and againist Rhodes is manifestly correct, it is ordered, adjudged, and decreed that the judgment appealed from be, and it is, affirmed, at the cost of appellant.


text:
    No. 11,176
    Orleans
    LONATRO v. PALACE THEATRE CO INC.
    (June 24, 1929. Opinion and Decree.)

      U. Marinoni, Jr., and Michel Provosty, of New Orleans, attorneys for plaintiff, appellant.
    Milner & Porteous, of New Orleans, attorneys for defendant, appellee.
   WESTERFIELD, J.

This suit, instituted nearly ten years ago, has been before this court before. Lonatro vs. Palace Theatre, 5 La. App. 386. The facts are stated at length in our former opinion; consequent-, ly we will only make a brief reference here.

The plaintiff, while seated in the parquette of a theater operated by defendant, viewing a performance, was injured by being struck on the head with an empty pop bottle, which fell, apparently from one of the galleries. She sues for damages. The judge, a quo, awarded her $375. Plaintiff alone has appealed, asking that the award be increased.

Defendant in this court relies entirely upon the plea of res judicata, insisting, however, that the amount awarded plaintiff is ample to compensate her for her injuries.

The plea of res judicata cannot prevail, for the reason that, when made in the lower court, it was overruled, and no appeal was taken from the judgment overruling it, nor, so far as defendant is concerned, from the judgment subsequently rendered on the merits. Defendant, having acquiesced in the judgment, cannot now complain of it. World’s Industrial & Cotton Centennial Exposition vs. Exposition, 39 La. Ann. 2, 1 So. 358.

There remains for consideration only the question of quantum. The only visible effect of plaintiff’s injuries was a small cut in her scalp, which was promptly sutured by a physician and healed in due course. Plaintiff, however, attributes a number of unfortunate occurrences to this accident. She says that, as a result of the accident, she is neurasthenic, that she has terrible headaches, weak spells, and is Hysterical at times; that she is unable to do housework or take in sewing, as she was accustomed to do before the accident; that she is very impatient, particularly with her children, does not sleep at night, and is losing weight; that she spent $60 for medicine and $40 for doctor.

It is obvious that, if all of plaintiff’s difficulties could properly be charged to the accident, the award of the trial court is manifestly inadequate. But the medical testimony in the récord is not sufficient to establish to our satisfaction the causal relation between plaintiff’s ailments and the blow on her head by the pop bottle. We can readily understand that considerable shock would result from her injury, and we are convinced that there must have been some little consequential injury to her nervous system, but we cannot follow counsel in his estimate of her damages. Nevertheless, as the amount awarded seems somewhat low, we will increase it to $600.

For the reasons assigned, the judgment appealed from is amended by increasing the amount awarded plaintiff from $375 to $600, and, as thus amended, affirmed.


text:
    No. 11,777
    Orleans
    TEISSIER ET UX v. STEWART ET AL.
    (April 15, 1929. Opinion and Decree.)
    Legier, McEnerny & Waguespack, and Delvaille H. Theard, of New Orleans, attorneys for plaintiffs, appellees.
    Edward Rightor and E. Y. Parham, of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

This is a suit by Louis Teissier ou his own behalf, and, being joined by his wife, Mrs. Hilda Roder Teissier, on behalf of his minor child, Lois Teissier, against Andrew Stewart and his father, William P. Stewart, for damages caused by a collision between a Ford sedan owned and driven by the plaintiff Louis Teissier and a Franklin ear owned by William P. Stewart, and, at the time of the accident, driven by his son, Andrew Stewart. On the trial of the case, It appearing to the satisfaction of plaintiff that William P. Stewart was not responsible for the act of his son, the suit against him was, on motion of plaintiffs’ counsel, dismissed.

Plaintiff in his individual capacity sued for $2,623.65, of which amount $623.65 was for expenses incurred as a result of the accident and $2,000 thereof as compensation for physical injuries. The sum of $65,000 was asked ^n behalf of the minor, Lois Teissier, for physical injuries, pain and suffering. The case was tried before a jury, and a verdict was rendered in favor of Louis Teissier, individually, in the sum of $623.65 and in favor of his minor child in the sum of $25,000. A new trial was refused, and defendant has appealed to this court. Plaintiff has answered the appeal and asked that the judgment be increased, in each instance, to the amount prayed for in the petition.

The negligence of defendant is alleged to consist in the fact that he was driving recklessly and at excessive speed, and failed to keep to the right of the road, in violation of paragraph (b), section 1 of article 2 and of paragraph 1 of article 1, and of section 6 of article 2 of Traffic Ordinance No. 7490, C. C. S. It is also alleged that he was driving without a license, as required by Municipal Ordinance No. 8369, C. C. S.

The answer denies all negligence and, in the alternative, pleads contributory negligence.

In defendant’s brief and in argument in this court, it is admitted that the record demonstrates the fact that the Stewart car was being driven at an excessive rate of speed and that its driver was therefore guilty of negligence in that regard, but it is insisted that the excessive speed was not the cause of the collision.

The accident occurred in the intersection of Prytania and Marengo streets. There are two car tracks on Prytania street. The Teissier car was crossing Prytania street from the direction of the lake toward the river, and the Stewart car was crossing Marengo street, proceeding uptown from the direction of Canal street toward Carrollton avenue, the point of contact being on the uptown, river side of Prytania between the curb and the nearest street car rail. The Teissier car was struck on the left side near the rear wheel by the left front wheel of the Stewart car.

The plea of contributory negligence was based upon the failure of the driver of the Teissier car to stop before entering Marengo street, as required by the traffic law. It is frankly conceded that he did not stop, but merely slowed down.

But, in our opinion, this fact had nothing to do with the accident, because plaintiff had almost negotiated the crossing when struck by the Stewart' car, which was running very fast, and on the wrong side of the street. If the Stewart car had been under control, and on the right side of the street, it would have avoided the Teissier car. The accident was entirely due to the negligence of defendant. In fact, liability is only faintly denied, as is manifest by the failure and refusal of defendant to take the stand voluntarily, or j when subpoenaed by plaintiff, who desired to cross-examine him. The conclusion is inevitable, in the absence of explanation, that his testimony, if given, would have been unfavorable. Without his testimony no serious defense is presented. j

Louis Teissier was not severely injured. He suffered slight lacerations of the scalp, bruises on the body, and experienced a nervous shock. For these injuries we consider $500 adequate compensation. This amount, together with the sum of $623.65, the actual expense incurred by him as a result of the accident, amounts to $1,-123.65, for which sum he should have judgment.

Lois Teissier was painfully, seriously and permanently injured. At the time of the accident she was nine years of age and in good health. She is said by her grandmother to have been a beautiful child, but perhaps some allowance must be made for parental pride and affection. In any event, she was a normal young girl, with a life expectancy of 49 years. Her injuries consisted of a badly lacerated lip, cheek, and chin, which required about a dozen sutures, or stitches, and the loss of one eye. The eye was destroyed by a piece of glass which had penetrated the right side of her cheek, going under the skin, entering the eye and splitting it open. Dr. Dimitry, who removed her eye, testified that:

“The outer side appeared rather normal, but flattened down, as if everything had come out from the inside, but when you pulled the lid down you saw that the eye was completely split open and the contents were coming out.”

At the time the case was tried below, two years after the accident, she had a scar across her lip about three inches long and one inch wide, and was wearing a glass eye. Her sight in the remaining eye was affected, and she was suffering from a twitching of the face. Her father testified that she avoided the company of other children and was greatly embarrassed in their presence by reason of her disfigurement.

In addition to the injuries we have recited, counsel press upon our consideration, as an element of damage, the effect which the loss of her eye and her disfigured countenance must nécessarily nave upon her opportunity to marry. We are much impressed with the merit of this claim.

The custom obtaining in human society of placing the matrimonial initiative with the male limits, the choice of the female to those in whose eyes she has found favor. In selecting a mate, man is primarily influenced by outward and visible forms of beauty, whatever may be said of his appreciation of inward grace and the more lasting beauty of the spirit. His attention is first arrested and his interest stimulated by the contemplation of superficial attractions, the charm of more substantial virtues being realized only after better acquaintance.

It is idle to deny that plaintiff’s daughter, with a scarred face and glass eye, will be at a matrimonial disadvantage, and though she may (as we trust she shall) eventually consummate a happy marriage to some worthy and appreciative husband, her opportunities for doing so have been materially affected as a result of her unfortunate accident. Her chances to marry have undoubtedly been circumscribed as a result of her injuries, for which we have found defendant responsible. Has she suffered any injury on this account? The answer must be in the affirmative, notwithstanding certain modern tendencies to which we shall not further allude. A fortúnate marriage, a state of connubial felicity, is for man tbe nearest approach to that which all of us are forever pursuing and never attaining, earthly happiness, but for woman it is a measureless benediction.

Without separately appraising this item of damage, we will observe that it has had no inconsiderable influence in determining the amount of the award in this case.

We have concluded to allow to the plaintiffs, for account of the injuries suffered by their minor child, Lois Teissier, the sum of $12,000.

For the reasons assigned, the judgment appealed from is amended by increasing the amount awarded Louis Teissier individually to the sum of $1,123.65 and by decreasing the amoúnt awarded Mr. and Mrs. Louis Teissier, for the use and benefit of their minor child, Lois Teissier, to the sum of $12,000, and in all other respects the judgment appealed from is affirmed.


text:
    No. 11,777
    Orleans
    TEISSIER ET AL. v. STEWART ET AL.
    (April 29, 1929. Opinion and Decree.)
    For original opinion, see 11 La. App. 164, 121 So. 777.
    Edw. Rightor and E. V. Parham, of New Orleans, attorneys for appellant.
    Legier, McEnerny & Waguespack, and Delvaille H. Theard, of New Orleans, attorneys for appellees.
   WESTERFIELD, J.

Both sides have asked for a rehearing in this case, the plaintiff seeking to have the amount allowed for the injury to the minor, Lois Teissier, increased, and the defendant on the ground that we were in error in holding the defendant negligent, and, in any event, the amount allowed was excessive. It is said that we gave too much effect to the failure of Andrew Stewart, the defendant, to take the stand, and that no unfavorable inference should be drawn from this circumstance. City of New Orleans vs. Gauthreaux, 32 La. Ann. 1126; Brandt vs. Reboul, No. 9428 of the docket of this court (see So. Rep. Dig.).

In the first place, the failure of Stewart to testify was not the determining factor in the conclusion we reached as to his negligence. His speed, admittedly excessive, was the cause of the accident. However, his absence under the circumstances was certainly oí important significance. Where the driver of one of two colliding automobiles does not appear upon the stand, and no explanation is given, it is fair to presume that his testimony; if given, would not tend to exonerate him from the negligence charged, when it does not appear that he was ever'in the courtroom during the trial, and cannot be located by the sheriff, who seeks to summon him as a witness at the instance of opposing counsel. The cases cited by defendant are not in point. .

As to the quantum, we are not disposed to increase or diminish it. We are aware that it exceeds in amount any sum heretofore allowed in this state for the loss of an eye, but, because of the exceptional circumstances referred to in our original opinion, we believe it to be justified.

For the reasons herein set forth, both applications for rehearing are denied.


text:
    No. 10,863
    Orleans
    SUCCESSION OF AIELLO
    (May 22, 1929. Opinion and Decree.)

      Sanders, Baldwin, Yiosca & Haspel, of New Orleans, attorneys for plaintiffs, appellees.
    Theo. Cotonio, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

This is an appeal from a judgment on a rule taken by William Ardill, notary public, and B. J. Skinner and L. Delahoussaye, appraisers, against Bartolomeo Perrone, to show cause why he (Perrone) should not be condemned to pay Ardill $100 and Skinner and Delahoussaye $25 each.

It appears that Prank Aiello, decedent herein, was in life, and at the time of his death, a partner of Bartolomeo Perrone, and that, in order to settle his succession, it was necessary that the partnership of Aiello and Perrone be liquidated. To that end Bartolomeo Perrone was appointed liquidator of the partnership. In accordance with his duty so to do, he caused an inventory to be taken, and William Ardell was appointed by the court as notary public for that purpose, and B. J. Skinner and L. Delahoussaye were designated as appraisers. It is for the services rendered in connection with this inventory that the three plaintiffs in rule have sought to collect their compensation.

The defendant in rule filed a number of exceptions, among others, to the summary form of proceeding, averring that he is entitled! to be served with petition and citation and to the usual delays, as in ordinary procedure; and that the rule failed to disclose a cause of action.

After a hearing upon the rule, it was, by judgment signed on the 23d day of December, 1926, made absolute to the extent of allowing Ardill a fee of $25 and the appraisers, Skinner and Delahoussaye $5 each, and it was ordered “that same be taxed as costs.”

It will be noted that the rule was taken against Bartolomeo Perrone personally and not in his capacity as liquidator of the partnership. Assuming that, in making the rule absolute, the judgment condemns Perrone personally, it is apparent that the objection to the form of procedure is well taken, because the claim of plaintiffs in rule should have been presented by way of petition and citation, in the ordinary way. However, the evidence presented on the trial of the rule and on behalf of plaintiffs in support of their claim refers exclusively to an inventory taken of the partnership effects, and if the plaintiffs have a claim, it is obvious that it is against Perrone as liquidator of the partnership and not against him individually. A claim against a partnership in process of liquidation should be presented to the liquidator of the partnership in order that it might appear upon his account when filed. If the filing of his account is unduly delayed, and if, when filed, it should not include all just claims, creditors may proceed by rule to compel the liquidator to file his account, or, if the account has been filed and their claims ignored, by opposition to the account. Whatever may be said of the other informalities, it seems to us that this proceeding, viewed in the light of a rule against the liquidator of the partnership of Aiello and Perrone, could not be entertained in advance of the filing of the liquidator’s account, for it may well be that due recognition will be given the plaintiffs in rule when the account is filed.

However, the proceeding, as filed, is one against Bartolomeo Perrone personally, and there is nothing in the evidence which will support the judgment rendered on the rule.

For the reasons assigned it is now ordered that the judgment appealed from, which was signed December 23, 1926, making absolute the rule taken on behalf of Messrs. Ardill, Skinner, and Delahoussaye to the extent of condemning Bartolomeo Perrone to pay $2S to William Ardill and $5 each to B. J. Skinner and L. Delahoussaye, be annulled, avoided, and ' reversed, and this cause remanded for further proceeding according to law, and consistent with the views herein expressed.

Judgment reversed, and case remanded.


text:
    No. 11,491
    Orleans
    LAWES v. N. O. TRANSFER CO., INC.
    (June 10, 1929. Opinion and Decree.)
    (July 1, 1929. Rehearing Refused.)
    (October 8, 1929. Writ of Certiorari and Review Refused by Supreme Court.)

      Howell Carter, Jr., of New Orleans, attorney for plaintiff, appellee.
    Chas. I. Denechaud and Ernest J. Robin, of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

Plaintiff sues the New Orleans Transfer Company, Inc., to recover the sum of $537.45, the value of a trunk and contents belonging to her, which, she alleges, was lost by the defendant.

The answer admits the loss of the trunk, but contends that defendant’s liability' is limited to $100, under an alleged contract between plaintiff and defendant for the transportation of her baggage.

There was judgment below for plaintiff as prayed for, and defendant has appealed.

Plaintiff was a passenger on a train of the Southern Railway Company, returning to New Orleans from Hendersonville, N. C. Just before the train reached the depot in New Orleans, an agent of the defendant company solicited the transfer of plaintiff’s baggage, as well as the baggage of other passengers. Plaintiff handed the defendant’s agent her baggage check calling for a wardrobe trunk, and paid him $1, the sum demanded for transporting the baggage to her residence in the city ol New Orleans. She received from the agent a slip of paper which she testified she considered a receipt for the $1, given the agent. On this slip of paper there was printed:

“The rates charged by this company are in each instance based upon a valuation not greater than $100.00 (One Hundred Dollars) per piece. This company will not accept a greater liability than $100.00 (One Hundred Dollars) for each piece of baggage on account of loss or damage, unless a greater value is declared by the owner at the time railroad checks are surrendered to this company, and an additional risk paid for at the rate of ten cents (10c) for each $100.00 (One Hundred Dollars) or fractional part thereof value so declared.’’

In some way the plaintiff’s trunk was lost. It is admitted that plaintiff has fairly appraised her loss.

Defendant argues, and it must be conceded, that it is a common carrier, Liberman vs. Faust, Orleans Appeal, Tessier Digest, p. 40; that it may restrict its liability by special contract, Roberts vs. Riley, 15 La. Ann. 103, 77 Am. Dec. 103; Brauer vs. The Almoner, 18 La. Ann. 266; Luckett & Hunter v. R. Co., 1 La. App. 434; 10 Corpus Juris, p. 133.

But the question in this case is: Was there a contract between plaintiff and defendant which limited her recovery in the case of loss to $100 as stipulated in the printed form attached to the receipt, handed plaintiff by defendant’s agent.

Plaintiff, who was the only witness in the case, testified that she did not know that this clause was in the receipt and did not discover it until after the agent had left the train. She valued her trunk in Hendersonville at $400, and paid the charge demanded by the railroad company because of the excess valuation. It is likely that if she had noticed any attempt to limit the liability of the defendant company that she would, have declared and paid for an excess valuation.

Be that as it may, the question is whether she is bound by the limitation of the clause in the receipt, and not whether she knew of its presence in the receipt, because sometimes persons are held to conditions and qualifications in similar cases, when they have not read them and know nothing about them. For example, the clauses limiting the liability of carriers, which appear in bills of lading, are binding upon shippers, whether they have been read, or otherwise. In the case at bar, however, the situation is somewhat different. Here, a local transfer company, upon receiving a railroad baggage check from a patron, issued to her a paper, which she was justified in believing was nothing more than a receipt, or voucher. The distinction we have in mind is well stated in 10 Ooi’pus Juris, p. 141, from which we quote the following:

“A distinction has been drawn, in the matter of the effect of acceptance of receipts, between freight and baggage cases. Thus, although there is some authority to the contrary, it is very generally held that where a person, on delivery of baggage to a local express or transfer company, receives a paper which, from the circumstances of the transaction, he has a right to regard simply as a receipt or voucher, to enable him to forward and identify his property) and no notice is given to show that it embodies a special contract and is intended to serve no other purpose than as a voucher, no contract arises as a matter of law from the acceptance of the receipt, and that carrier, in order to relieve itself from full liability, is bound to establish a contract; omission of the shipper to read the paper is not per se negligence; and the question whether the party receiving such a receipt accepted it with notice of its contents, or with notice that it contained the terms of a special contract, so as to require him to acquaint himself with its contents is one of evidence to be determined by the jury.”

The following authorities are very much in point:

“Cases where parties proposing to have articles of property transported by a common carrier, deliberately enter into some necessary contract relating to the transportation, differ materially from those cases of travelers who commit their trunks, or articles of baggage, to an agent of some express or transfer company, and receive at the moment some paper, which, as it has been said, amounts simply to a voucher enabling them to follow and identify their property. (Madan v. Sherard, 73 N. Y. 329, 29 Am. Rep. 153.) The difference is very obvious in the circumstances, which, in the one case, usually admit of no negotiation, or discussion; while in the other, the shipment of the property is a matter of arrangement with full opportunity for deliberate action.” Zimmer vs. New York, etc., R. Co., 137 N. Y. 460, 463, 33 N. E. 642.
“An express company’s agent, on receiving from a passenger a check for her trunk for delivery at her residence, gave her a paper limiting the carrier’s liability to a certain sum. The passenger did not read the paper, and did not know of the limitation, although she had received similar checks on former occasions, and the agent did not inform her of the limitation.”

It was held that an instruction stating such facts, and that whether plaintiff knew, or should have known, of the limitation in the receipt was a question for the jury, sufficiently submitted the issue of notice thereof to the jury. Springer vs. Westcott, 166 N. Y. 117, 59 N. E. 693.

“Plaintiff’s daughter delivered a check for a trunk to the clerk of the transfer company in New York with instructions to transfer it to her house in Brooklyn. She then turned away and was leaving the office, but, at the suggestion of her companion that she ought to have a receipt, she returned and demanded a receipt of the clerk, who thereupon delivered to her a receipt which stipulated, among other things, that the company should not be liable to an amount exceeding one hundred dollars, unless a special contract was made. She did not read the receipt or know its contents until after the loss of the trunk.”

It was held that she did not assent to the terms of the contract limiting the liability of the company and was entitled to recover on the full value of the trunk. Woodruff vs. Sherrard, 9 Hun (N. Y.) 322.

The Carmack Amendment of June 29, 1906 (49 USCA Sec. 20), permitted carriers to limit their liability by including their regulations in published tariffs. It was held that:

“A regulation contained in the published tariffs of an interstate railway carrier on file with the Interstate Commerce Commission, limiting its baggage liability to $100, unless a greater value is declared and stipulated by the owner and. the excess charges paid, is binding upon the passenger in case of loss of the baggage through the carrier’s negligence, regardless of the passenger’s lack of knowledge of or assent to such regulation, and regardless of the carrier’s failure to inquire as to the value of the baggage, or of its outward appearance as indicating greater value, any state law or policy to the contrary having been superseded when Congress, by the amendment of June 29, 1906 (34 Stat. 584, c. 3591, U. S. C. title 49, Sec. 20), to the act to regulate commerce of February 4, 1887 (24 Stat. 379, c. 104) took possession of the subject of the interstate railway transportation of property.” Boston & M. R. Co. vs. Hooker, 233 U. S. 97, 34 S. Ct. 526 (58 L. Ed. 888, L. R. A. 1915B, 450).

The rule with respect to interstate carriers does not apply to a local transportation company. In order for such carriers to limit their liability, a customer’s assent to the limitation must be evidenced in some manner more convincing than the method shown to have been followed in the instant case.

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


text:
    No. 11,977
    Orleans
    AMERICAN BRICK CO., INC., v. TULANE INV. CO. ET AL.
    (June 10, 1929. Opinion and Decree.)
    (October 8, 1929. Writ of Certiorari and Review Refused by Supreme Court.)

      Henry J. Rhodes and J. A. Morales, of New Orleans, attorneys for respondents.
   JANVIER, J.

This matter comes before us as a result of the granting by uS of an alternative writ of certiorari, and it involves the question of the correctness, vel non, of the action of the lower court in dismissing an appeal because of insufficiency of surety tendered on a suspensive appeal bond.

Judgment was rendered below for plaintiff and against two defendants, Tulane Investment Company, Inc., and Galvez Realty Company, Inc.

Tulane Investment Company, Inc., apparently execution proof, did not appeal, but Galvez Realty Company, Inc., obtained an order for suspensive and devolutive appeals. The bond offered on the suspensive appeal in the sum of $1,100 was signed by one Manuel Aranda as surety.

On a rule to test the surety the evidence showed rather conclusively that it would have been a very difficult matter for plaintiff, in the event of an affirmance of its judgment, to collect the amount thereof out of the assets of the surety. It is true that, conceding the correctness of the surety’s estimate as to the value of certain properties owned by him, and accepting as true his statements as to the encumbrances existing against these properties, there would possibly have remained sufficient equity to provide for the payment of the judgment.

However, the evidence as to the real value of the properties convinced the trial judge that there was grave doubt of the probability of success of an attempt to execute the judgment against these properties. Judgment was accordingly rendered decreeing the surety insufficient.

Within the delay provided for by Act 284 of 1928, which amends section 3 of Act 112 of 1916, a new bond was furnished, bearing the names of two sureties, Manuel Aranda, who was surety on the first bond, and Joseph Hallick. Again a rule to test the sufficiency of the sureiies was filed. When this rule was tried, Hallick was asked if he had signed the bond, and his answer was, “No.” Later, after some questioning, he admitted that he had signed the affidavit attached to the bond, but stated that he had no recollection of having signed the bond. Still later, however, he admitted having signed it.

Hallick’s testimony as to the properties owned by him, and as to their value, was, according to the return filed with us by the trial court, very confusing and not at all persuasive. That it would have been difficult, if not impossible, to recover anything from him out of those properties, is well evidenced by the fact that there were recorded against him two judgments, one for $59 and another for $350. If the holders of those judgments could not collect them, surely he was not a proper surety on a much larger bond.

Relator contends that, after the trial of the first rule, Aranda acquired additional property, and should, on the trial of the second rule, have been adjudged a sufficient surety. The additional property, according to the return of the trial judge, was a note of the Tulane Investment Company, Inc., the other judgment debtor. Since the plaintiff had been unable to collect its judgment from the Tulane Investment' Company, Inc., we cannot see how the acquisition by Aranda of a note made by that concern could have added anything to the prospects of collection of the judgment, if he were accepted as surety.

On the whole the record convinces us that if either or both of the sureties had been approved, and if the judgment had been affirmed, plaintiff would have had little, hope of collecting his judgment out of the bond.

It is true that our law favors the right of appeal:

“* * * The right of appeal therefore exists and this court should not be deprived of its authority to review the case, otherwise the constitution would be given a narrow construction instead of a liberal one, the rule which obtains for the protection of the right of appeal which is precious and should be encouraged and favored. State ex rel. Durand, et al. v. Parish Judge of St. Martin Parish, 30 La. (Ann.) 285; Magendie, Sr. v. Constable, 4 La. App. 718.” Slaughter vs. New St. John Missionary Baptist Church, 8 La. App. 432.

It is also true, however, that one who has obtained a judgment below should not be required to defend that judgment in an appellate court until there has been furnished a bond which will insure the collection of the judgment in the event of its affirmance.

“When the law requires a surety to be given, it does not intend a mere formality to be gone through. It intends that the creditor shall háve pledged for his debt something that may be made available for its payment.” Vredenburgh vs. Behan, 32 La. Ann. 475.
It should be borne in mind that the burden of producing evidence to satisfy the court as to the solvency of the surety is upon him who furnishes the bond. Until the adoption of Act 24 of 1876, the burden of proving insolvency was upon the appellee. Sampson vs. Gillis & Ferguson, 22 La. Ann. 591; State ex rel. Lynch vs. Judge, 23 La. Ann. 714; State ex rel. Hays v. Judge, 25 La. Ann. 616. However, in 1876 Act 24 was passed, and in that act it was:
“Provided, further, that the party furnishing the security shall prove his solvency to the satisfaction of the court, whenever it is questioned by any party interested in the appeal.”

We are thoroughly in accord with the views expressed in Southern Development Co. vs. Greco, 8 La. App. 1, so far as the law applicable is concerned. In the Greco case, however, the evidence showed that the surety owned property within the jurisdiction of the court and in excess of the amount of the bond, whereas here the contrary seems to be the case.

It is therefore ordered, adjudged, and decreed that the alternative writs of certiorari, mandamus, and prohibition be and they are recalled and vacated, and that relator’s application be and it is dismissed, at its cost.

Writs recalled and vacated.


author: ^JANVIER, J.

text:
    No. 11,894
    Orleans
    EDWARDS v. FIDELITY & CASUALTY CO. OF NEW YORK
    (June 10, 1929. Opinion and Decree.)
    See, also, 120 So. 881.
    McCloskey & Benedict, of New Orleans, attorneys for plaintiff, appellant.
    Thatcher, Browne, Porteous & Myers, of Shreveport, attorneys for defendant, appellee.
   ^JANVIER, J.

Fidelity & Casualty Company of New York, defendant and appellee, issued a policy of automobile liability insurance to T. P. Monahan, Sr., under which it agreed to indemnify Monahan against loss resulting from injury to person or property caused by his automobile.

Plaintiff, having been injured by Monahan’s automobile, filed suit and obtained judgment against Monahan. As Monahan did not suspensively appeal from this judgment, plaintiff caused execution to issue, which execution was returned “nulla bona” while the devolutive appeal was still pending in this court.

After the return of “nulla bona,” plaintiff attempted by garnishment proceedings to force the present defendant and appellee to pay direct to him the amount due him by Monahan under the judgment. He was unsuccessful in this method of procedure, and thereafter, while the devolutive appeal in this suit against Monahan was still pending, brought this suit directly against the present defendant, alleging that it, as the insurer of Monahan, was liable directly to him by reason of the terms of the policy and because of the law of Louisiana, particularly Act 253 of 1918, section 1 of which reads as follows:

“Section 1. Be it enacted by • the Gen: eral Assembly of the State of Louisiana, That, after the passage of this act, it shall be illegal for any company to issue any policy against liability unless it contains a provision to the effect that the insolvency or bankruptcy of the assured shall not release the company from the payment of damages for injury sustained or loss occasioned during the life of the policy, and, in case of such insolvency or bankruptcy, an action may be maintained within the terms and limits of the policy by the injured person or his or her heirs, against the insurer company.”

There appears in the policy issued by defendant to Monahan the following stipulation:

“The company shall not be liable to pay any loss nor shall any action be brought against the company to recover under this policy until a final judgment shall have been recovered against the assured in a suit covered hereby. If an execution on a judgment recovered in a suit against the assured covered by this policy is returned unsatisfied, the judgment creditor shall have a right of action to recover the amount of such judgment against the company to the same extent that the assured would have had to recover against the company had the assured paid the said judgment; but in no event shall the company’s liability exceed the limits expressed in this policy. The insolvency or bankruptcy of the assured shall not release the company from any payment for which it would otherwise be liable under this policy.”

The policy also contained a provision to the effect that the assured “agreed and bound himself to give immediate- written notice of any accident which might occur within the terms and conditions of said policy, at the same time giving to respondent the ‘fullest information obtainable at the time’ of all the details and circumstances of the accident.”

Defendant resists payment on two grounds: First, that no notice of the happening of the accident was received by defendant until eleven months after the injury sued for was sustained; and, second, that at the time this suit was filed, the judgment in the first suit had not become final nor was the insolvency or bankruptcy of the assured proven.

The trial court held that the terms and conditions of the policy had not been complied with, and that, inasmuch as the failure of Monahan to comply with those terms and conditions would have prevented him, had he paid the judgment, from recovering from his insurer, plaintiff in this suit can have no greater rights than had Monahan, and therefore cannot recover directly against Monahan’s insurer, although he might have had such right of action had notice been given. In other words, that Edwards’ right was lost as a result of Monahan’s neglect.'

If the failure of Monahan to give the insurer notice of the accident operates to deprive plaintiff of such rights, as, under the statute and under the policy, he would otherwise have had, then the right, which the statute creates and which the policy recognizes, is of doubtful value, because the existence of that right in one person depends upon the actions of another.

It is quite’ evident that, except in very-rare cases, the party injured by the negligence of another has no knowledge as to whether or not that other is insured, and if he has ordinarily no knowledge as to whether there is any insurance at all, then, clearly, he has no knowledge as to who the insurer may be if there is one. It is therefore not within his power to give the notice required by the policy, and, if notice is essential to his recovery, his right must, as we have stated, depend upon the other party. We do not think that such was the intention of the legislators.

It is quite true that Monahan’s failure to give notice to his insurer would have prevented his recovery from the insurer, had he himself paid the judgment (Dennis Sheen Transfer vs. Georgia Casualty Co., 163 La. 969, 113 So. 165), but that is because Monahan had so contracted. As between parties to a contract, the contract itself is the law of the case. Here, however-, the law of the case is not found solely within the four corners of the policy of insurance, but. is contained primarily in the statute to which we have referred.

We think that it was the purpose of the statute to create, immediately upon the happening of the accident, a cause of action in the injured party against the insurer, if any, of the party at fault. Of course, the right to present and enforce this cause of action is conditioned upon the obtaining of a judgment against the party at fault and upon unsuccessful efforts to collect that judgment, but these are conditions with which it is within the power of the injured party to comply. If he cannot comply with them he has only himself to blame.

But, argues defendant, the statute itself provides that such action as the injured party may maintain shall be “within the terms and limits of the policy,” and since the policy requires notice, and since no notice was given in this case, this action is not brought within the terms and limits of the policy. We think that the words “terms and limits of the policy” were not intended to include the requirements of notice, but referred only to the amount which might be recovered and to those other warranties and conditions with which it was within the power of plaintiff to comply. As was said in Rokes vs. Amazon Insurance Co., 51 Md. 512, 34 Am. Rep. 323:

“In regard to the clause in the policy that provides 'no waiver or modification of any of the terms or conditions of this policy shall be made in any event,’ it is sufficient to say that it refers to those conditions and provisions of the policy, which enter into and form a part of the contract of insurance, and are essential to make it a binding contract between the parties, and which are properly designated conditions; — ancl that it has no ,reference to those stipulations which are to he performed after a loss has occurred, such as giving notice and furnishing proofs of loss.”

Ws are told that it works a hardship on the insurer to be called on to defend an action of this kind, as he has had no prior knowledge of the accident and is not in a position to make a defense. As to the hardship and disadvantage under which the insurer .labors, and the difficulty under which the injured party finds himself, we think that the ends of justice require that the benefit of the doubt should be given to the injured party, who is in no way at fault, and whose loss was caused entirely by some one else,' as against the insurer who has entered into the contract with full knowledge ’of the statute and for a monetary consideration.

The argument that no cause of action exists in the injured party against the insurer until, in addition to the unsuccessful attempt to execute the judgment, there has been a judicial declaration of the insolvency or bankruptcy of the assured, does not impress us. Defendant argues that the conditions, insolvency or bankruptcy and an unsatisfied judgment, are both prerequisites, and that the insolvency or bankruptcy, although it may in fact exist, is not sufficient until there is a judicial recognition thereof. If this were the intention of the policy, and if such were permissible under the statute, the injured party, failing in his attempt to execute his judgment, would find himself under the necessity of instituting an action of involuntary bankruptcy or being able to prove the insolvency of the assured, and, as a practical proposition, there would be little possibility of his doing either. It is our opinion that the conditions to which we have referred were not intended to be cumulative, but that the second, an unsatisfied execution, was intended to be, for the purpose of the policy, proof of the first, insolvency or bankruptcy. Any other interpretation would, we believe, be unreasonable.

Defendant contends that insolvency must be proven judicially, and in support of this contention our attention is called to the following cases: Millaudon vs. Foucher, 8 La. 582; Harrod vs. Burgess, 5 Rob. 449; Denegre vs. Milne, 10 La. Ann. 324; Seixas vs. Bank, 38 La. Ann. 443; Michael vs. Babin, Sheriff, 19 La. Ann. 197; Abat and Generes et al. vs. Penny et al., 19 La. Ann. 289.

There are recognized in our law two kinds of insolvency, actual insolvency and declared insolvency. State National Bank vs. N. O. Brewing Association et al., 49 La. Ann. 934, 22 So. 48.

Actual insolvency is all that is necessary in this case.

R. C. C. art. 1985, provides:

“By being in insolvent circumstances is meant, that ’the whole property and credits are not equal in amount, at a fair appraisement, to the debts due by the party. And if he, who alleges the insolvency shows the amount of debts, it is incumbent on the other party to show property to an equal or greater amount. To prove the state of his affairs at the period of the contract, the debtor may, at the option of the plaintiff, be examined as a witness in the action for annulling the contract.”

It thus appears that the party who contends that the other is insolvent need only show the debts in order to shift the burden to the other, who, in order to escape the effects of insolvency, must show prop-erty equal to or greater in value than the amount of the¡ debts. The judgment itself is a debt which places upon Monahan or his insurer, who may wish to escape the effects flowing from his insolvency, the burden of proving solvency. Until such proof is offered, insolvency may be presumed.

Nor do we concur in the view that the judgment, in the first case, was not final when this suit was filed.

That judgment was final in the sense that execution could issue thereon, ánd if such execution, when issued, was returned unsatisfied, the condition precedent to the presentation of this cause of action was complied with. If defendant’s argument is sound, the result would be that an assured and his insurer, in a case where the assured is execution proof, as Monahan evidently was, could allow almost a year to elapse without an appeal, during all of which time the injured party could not collect his judgment, but during which time he could not bring his action against the insurer. At the last moment the assured could then take a devolutive appeal, and, during the pendency of that appeal, the injured party would still be unable to collect his money or to bring his action against the insurer. We are convinced that what the statute intended and what the policy meant was that the injured party, as soon as he had the right to execute the judgment against the assured, and as soon as he was unsuccessful in the exercise of that right, should have a cause of action against the insurer.

For these reasons we believe that the lower court was in error in dismissing this suit; and

It is therefore ordered, adjudged, and decreed that the judgment appealed from be and it is annulled, avoided, and reversed, and that there now be judgment in favor of plaintiff, R. Lee Edwards, and against defendant, Fidelity & Casualty Company of New York, in the', full sum of $1,000, with legal interest from judicial demand and for all costs.- -


author: ELLIOTT, J.

text:
    No.---
    First Circuit
    DUCRE v. MILNER
    (June 10, 1929. Opinion and Decree.)
    For former opinion see 11 La. App. 87; 120 So. 253.
    Hiddleston Kenner of New Orleans, attorney for appellant.
    Harvey E. Ellis, of Covington, R. D. Jones, of Franklinton, and P. M. Milner, of New Orleans, attorneys for appellee.
   ELLIOTT, J.

Defendant and appellee, Miiner, prays for a rehearing herein on the ground that our opinion and decree has authorized a correction of an alleged error in stating the number of a head-right, when the plaintiff, in his petition, has not prayed that his title be reformed in that particular.

This matter of error is covered in the opinion so fully that any further statement in acting on defendant’s petition for rehearing would be of no use.

The petition of the plaintiff claims an interest in a certain tract of land, described in article 1 of his petition, and in which the mimber of the headright is not stated.

It is stated in article VIII of the petition that the .land claimed by defendant is, in the matter of identity, part of the same tract described in article I.

The petition prays that plaintiff be recognized as having an interest in the tract of land claimed by the defendant, on the ground that the land claimed by the defendant is in fact part of the tract described in said averment number one. To grant the relief prayed for will be to recognize and correct for practical purposes the alleged error as to the number of the headright.

The prayer is sufficient for this purpose.

The other grounds urged in the petition for rehearing have been considered again, but our views on the subject remain the same.


text:
    No. 10,995
    Orleans
    SCHILL v. CHURCHILL ET AL.
    (June 10, 1929. Opinion and Decree.)
    (June 24, 1929. Rehearing Refused.)
    (October 8, 1929. Writ of Certiorari and Review Refused by Supreme Court.)
    Neils F. Hertz, and Woodville & Wood-ville, of New Orleans, attorneys for plaintiff, appellee.
    McCloskey & Benedict, and W. Sommer Benedict, of New Orleans, attorneys for defendant, appellant.
   JANVIER, J.

Mrs. Shea had contracted to sell to Alfred M. Churchill certain improved property bearing the municipal number 3431 Milan street in this city. Before taking title to the property, Churchill contracted to sell it to Joseph Schill, plaintiff.. It was thereupon agreed that, in order to avoid the cost of two transfers, Mrs. Shea should transfer direct to Joseph Schill and that Churchill should intervene in the act of sale and transfer to Schill any rights he might have acquired as a result of his contract with Mrs. Shea. After Schill purchased the property it developed that the improvements thereon encroached upon the land of a neighbor. Schill, after causing a survey to be made and thus satisfying himself that the encroachment in fact existed, caused the improvements to be moved. The expense of this moving was $315.60, and it is for the recovery of this amount that the present suit is brought. Plaintiff sues both Churchill and Mrs. Shea.

Churchill, in turn, calls Mrs. Shea in warranty, alleging that if there is any liability in him Mrs. Shea should indemnify him against loss.

The lower court rendered judgment in favor of plaintiff and against both defendants, and on the call in warranty rendered judgment in favor of Churchill and against Mrs. Shea.

Churchill apparently realizing that the encroachment did actually exist and that therefore he was liable to Schill for such loss as had been sustained as a result thereof, paid the judgment.

Mrs. Shea, however, appealed suspensively, and the matter is therefore now before us solely on the question of the liability of Mrs. Shea to indemnify Churchill for the loss sutained by him as a result of the payment by him of Schill’s judgment.

Mrs. Shea resists payment on several grounds.

She contends that Churchill, having paid the judgment and having thus acquiesced therein, cannot now claim reimbursement from her. She also contends that there is not sufficient proof in the record that the boundary line was correctly determined by the survey to which we have heretofore referred, and she further argues that, even if the boundary line was correctly determined, and even if there was an encroachment, this encroachment had existed for more than ten years, and that therefore a continuous apparent servitude had been created. She contends that therefore, since .the neighbor on whose land Mr. Schill’s improvement encroached could not force the removal thereof, Mr. SchUl’s voluntary removal did not entitle him to recover the costs thereof.

It is quite apparent that the argument that Churchill, having acquiesced in the main judgment, cannot now insist on his call in warranty against Mrs. Shea, is not sound. Had Schill brought his suit only against Churchill, there would have been no legal objection to Churchill’s defending the suit alone, arid, in the event of his loss, to his filing a new suit against Mrs. Shea to recover such amount as he might have been called upon to pay in the first suit. Of course, under such circumstances the burden would have been on him to prove that the expenditure made by Schill was justified by reason of the fact that the encroachment actually existed.

This is not the case which exists where two joint tort-feasors are sued and one pays the judgment. Of course the one paying has not the right to call the other in warranty.

Mrs. Shea’s contention that the survey which was introduced in evidence does not comply with the formalities of the Revised Civil Code, as set forth in articles 333 to 839, inclusive, overlooks the fact that those articles provide for a means of fixing a boundary between two contiguous properties, and not the sole means of determining the correctness of a boundary where the question is in dispute not between the owners of two contiguous properties, but between one owner and his vendors.

It is quite true that the vendors were neither present nor represented when the survey was made, but this does not deprive the survey of its effect in evidence, nor does it render the testimony of the surveyors objectionable. The testimony and the survey were both admissible in evidence, and, in the absence of countervailing proof by other surveyors, or experts, are amply sufficient to justify the holding that the boundary as shown in the survey, and as testified, to by the surveyor, is the correct one.

Mrs. Shea’s method of procedure, instead of being by objection to the evidence, should have been by the offering of countervailing proof of her own, if such existed.

The trial court was therefore correct in accepting as the true boundary that shown by the testimony of the surveyor. It therefore follows that the trial court was correct in determining that the encroachment actually existed.

This brings us to the last contention of Mrs. Shea, which is to the effect, that, even though the encroachment did exist, there was no necessity to move the building, because the owner of the contiguous property could not have forced its removal, since its existence for more than ten years created a continuous apparent servitude.

Counsel calls to our attention the case of Greco vs. Frigerio, 3 La. App. 649, which involved the attempt of an owner of a contiguous estate to force the removal from his property of encroaching improvements of his neighbor. This court held, of course, that since these improvements had existed for more than ten years, there was created in their favor a continuous apparent servitude, and that therefore their removal could not be forced.

That is not the question here. It is quite probable that the owner of the contiguous estate would not have been successful in an attempt to enforce the removal of Mr. Schill’s improvements, but there would always have been the possibility of a lawsuit to enforce their removal, and there would always have been the possibility of the loss of the servitude by the destruction of the improvements. What Mr. Schill bought was the full and complete title to the improvements and the land on which they were situated. If Mrs. Shea is correct, what he got were the improvements, some of the land on which they were situated, and the possibility or probability of a lawsuit to maintain his rights to a servitude. The situation is exactly the same as that which gave rise to the case of Jacobs vs. Freyhan et al., 156 La. 585, 100 So. 726, except that in that case the prospective purchaser discovered the encroachment prior to transfer of title. In discussing the question of whether or not the purchaser could be forced to take title, the Supreme Court said:

“In the present ease, however, plaintiff made a contract to buy the property, including the fee itself, and the defendants obligated themselves to deliver the premises by municipal numbers, after they had been pointed out upon the ground with improvements and inclosures as they stood. Plaintiff never for one moment thought of buying property as to which he would have to depend upon a servitude on the land of another for its use and enjoyment, and perhaps become involved in litigation with such other person for the vindication of that right.”

To the same effect we find the decision of the Supreme Court in Louisiana State Rice Milling Co., Inc., vs. Kaplan, 168 La.—, 121 So. 188, in which the court said:

“Under the contract, as we read it, what the defendant agreed to purchase and the plaintiff agreed to sell and deliver was a certain rice mill with all its appurtenances, except such appurtenances as are expressly excluded, and the land on which it is located. The record discloses that plaintiff is unable to deliver the property it has undertaken to deliver, because a portion of the land on which the mill is located is not owned by plaintiff. Thus, the ease falls within the ruling of this court in Jacobs vs. Freyhan, 156 La. 585, 100 So. 726, viz.
“That a prospective purchaser' cannot be forced to comply with his contract, where a portion of the property to be sold encroaches on adjoining property, there being error of fact rendering it ineffective as to him.”

Counsel argues that there was neither eviction nor threat of eviction, and therefore Mr. Schill was not justified- in voluntarily moving his improvements from the contiguous property, and in support thereof he cites: Article 2506, R. C. C.; Pharr vs. Gall, 108 La. 307, 32 So. 418; Lanphier vs. Adler, 118 La. 511, 43 So. 146; Caddo Levee Dist. vs. Glassel, 120 La. 401, 45 So. 370.

We do not think the case cited applicable. Here it was manifest that the encroachment did exist, and it was certain that, if they were not removed, the owner, Mr. Schill, would live constantly in fear of a lawsuit. He was justified in causing their removal, and the expense thereof should be borne by those responsible therefor. Since Churchill was in no way responsible therefor, having never taken actual title to nor possession of the property, the loss should fall where it rightfully belongs — upon Mrs. Shea.

It is therefore ordered, adjudged and decreed that the judgment on the call in warranty in favor of plaintiff in warranty, Alfred M. Churchill, and against defendant on the call in warranty, Mrs. Olive Humble, widow of Martin P. Shea, in the full sum of $315.-60, with legal interest thereon from judicial demand until paid, be and it is affirmed, at the cost of appellant.


text:
    No. 11,371
    Orleans
    WILSON v. DAVIS
    (June 24, 1929. Opinion and Decree.)
    (October 21, 1929. Rehearing Refused.)
    (December 3, 1929. Writ of Certiorari and Review Refused by Supreme Court.)

      John B. Jouandot and Frank Le Court, of New Orleans, attorneys for plaintiff, appellee.
    J. C. McGee, of New Orleans, attorney for defendant, appellant.
   JANVIER, J.

This is a suit for the return of money claimed to have been loaned. The defense is a plea of payment by the return of cash and other considerations, such as board and lodging, various drugs, medicines, etc.

Between November 14, 1922', and April 18, 1923, plaintiff turned over to defendant the aggregate sum of $2,000.

He avers that defendant promised to return it in installments of $100 each month, with interest at 8 per cent, and admits the return either in cash or its equivalent of $675, and brings this suit for the alleged unpaid balance and for interest.

Defendant and his wife, both registered pharmacists, operate a drug store located in a building in which they also maintain their residence. They contend that at the urgent request of plaintiff they agreed to furnish him a room and such meals as he might require, and that his reason for desiring to live with them was that he was suffering from tuberculosis, and, being alone in the world, wanted the care and attention which they, both as friends and pharmacists, could give him.

They testify that he was so anxious to make the arrangement mentioned that, when they demurred, he voluntarily deposited with them the $2,000, referred to, not as a loan, but in order to guarantee them full payment for board and lodging and such drugs, medicines, and other services, as they might furnish him.

Plaintiff maintains, however, that it was not at his solicitation that he went to live with defendant and his wife, and that the $2,000 referred to was not toned over gratuitously by him, - but was loaned only on the urgent request of defendant.

The question presented for determination is exclusively one of fact, i. e., how much, either in cash or otherwise, was returned to defendant by plaintiff.

Since the defense is a plea of payment, the burden of proof is, of course, on defendant. Defendant alleges that he has returned to plaintiff in cash, in medicine, in the payment of doctor’s bills, and in board and lodging, more than the $2,000 advanced. His testimony in this regard is corroborated by that of his wife, but is contradicted by plaintiff, by the correspondence of defendant himself, by Dr. Menendez, and by Mr. Gelbke.

After plaintiff’s health became bad and he was sent West by his physician, his funds became seriously depleted, and he communicated with defendant in an effort to persuade him to return the balance .of the $2,000. There are in the record -four letters of defendant answering various requests of plaintiff, and in none of these letters is his present contention set up. In fact, in these letters he refers to the amount clue to plaintiff, and indicates plainly that he intended to repay it as soon as possible.

Not being successful in his efforts to secure reimbursement by correspondence, plaintiff, who was a railroad employee, communicated with his railroad brotherhood and prevailed upon the brotherhood to appoint a committee headed by Mr. Gelbke to call on defendant in an effort to persuade him to pay back the alleged loan.

Mr. Gelbke testified that he, with the other members of the committee, called on Mr. and Mrs. Davis, and that they admitted the indebtedness, and that when he left them he was of the opinion that they were going to prepare a statement showing the balance due.

Dr. Menendez, who treated Wilson for injuries which he had, at one time, sustained, testified that the defendant admitted to him that he owed Wilson- money.

The evidence, as a whole convinces us that defendant is indebted to plaintiff, and, as the only question involved is one of fact, we see no reason to disturb the finding of the trial judge.

In addition to the credits allowed by plaintiff, the lower court recognized that Davis had assumed the payment of the - bill of Dr. Menendez amounting to $200, and therefore allowed it as an additional credit.

Objections were made by defendant’s counsel to the fact that plaintiff was allowed to refresh his memory from memoranda made by him from his original railroad records. As the originals were not available, and as both the originals and the memoranda were made by plaintiff, we see nothing objectionable in the ruling of the trial judge allowing him to refer to the memoranda. Furthermore, the testimony given as a result of the memoranda was in no way harmful to defendant.

It is therefore ordered, adjudged and decreed that the judgment appealed from be, and it is, affirmed, at the cost of ' appellant. •


text:
    No. 11,237
    Orleans
    WESTON v. VERNACI
    (June 24, 1929. Opinion and Decree.)

      Joseph Rosenberg, of New Orleans, attorney for plaintiff, appellant.
    John B. Fisher, of New Orleans, attorney for defendant, appellee.
   JANVIER, J.

Plaintiff, a tenant of defendant, sustained serious injuries as a result of a fall from the stairs of the leased premises, and, contending that her fall was caused by a broken tread of the stairs about eight feet above the floor, brings suit against the landlord.

The defendant maintains that the stairway was in good condition at the time of the accident, and that it has never been repaired, and has been constantly in use by all persons occupying the upper floor of the premises.

In her explanation of the cause of her fall, plaintiff, a colored woman, married but living apart from her husband, and maintaining what seems to be a boarding house for colored men, made two apparently contradictory statements. She first said: “I gets to the turn of the winding part of the stairs, and it broke in two.” Later she said: “When I came to the winding part, my foot get between the spoke of the bannister and I was thrown clean to the bottom of the steps.”

Some four or five witnesses, produced by plaintiff, said that the tread of one of the steps was from one and one-half to two inches higher than it should have been, though in this they are contradicted by the defense witnesses, but none claim that the step broke, and it is apparent that plaintiff’s first statement in this regard is erroneous.

The trial judge made a visit to the scene, and inspected the stairway, and in his reasons for judgment says:

“The preponderance of evidence is that the step is now in the same condition as when the accident occurred. This morning I examined the stairs in the presence of the parties and their attorneys, and my conclusion is that plaintiff’s witnesses are mistaken. The step is not split, except for a short distance, say an inch or two at one end, and that does not affect the solidity or firmness of the step. It does not .give or move appreciably under the weight of one descending the stairs. The stairs are narrow, and at a point from which the plaintiff fell, there is a turn. The step at the inner side of the turn is, say, two inches wide, and even in daylight the stairs are dark. I think the fact is that the plaintiff stumbled in descending the step, and that was not caused or contributed to in any way by the condition of the step.”

The record leaves us convinced that this finding of the trial court was correct, and it is therefore ordered, adjudged and decreed that the judgment appealed from be, and it is, affirmed, at the cost of appellant.