author: ROBERTS, J.

text:
    No. 1685.
    Second Circuit Appeal.
    POWELL-MYERS LUMBER CO., ET AL., v. TREMONT & GULF RAILWAY CO.
    (Oct. 31, 1924, Rehearing Denied.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Carriers of Passengers and Goods — Par. 123, 137.
    Article 2754 of the Civil Code provides that “Carriers and Watermen are liable for the loss or damage of the things entrusted to their care, unless they can prove that such loss or damage has been occasioned by accidental and uncontrollable events”.
    2. Louisiana Digest — Pleading—;Par. 62.
    An exception no cause of action in a suit for damages to a shipment based on the allegation that the railroad, at the time of the shipment, had no control over the operation of its road because - the United States was at war with Germany and had taken over the operation of all railroads will be overruled.
    3. Louisiana Digest — Evidence—Par. 13, 18, ' 21.
    The . court takes judicial cognizance of Acts of Congress, Presidential Proclamations, and Orders of the Director General of Railroads.
    4. Louisiana Digest — Evidence—Par. 96, 99, -106.
    A certificate of the Chief Clerk and Custodian of the Records of the United States Railroad Administration is not the best evidence, and therefore is not admissible. , The records are the best evidence.
    5. Louisiana Digest — Evidence—Par. 96, 99, 106.
    A certificate of the Clerk of Court is not the best evidence, and therefore not admissible. . The records are the best evidence.
    6. Louisiana Digest — Evidence Par. 349.
    The inference from the proof that there was a technical or constructive control by the United States Railroad Administration over a railroad is not sufficient to fix the liability for damage to a shipment of goods on the Railroad Administration.

      7. Louisiana Digest — Carriers of Passengers and Goods — Par. 134.
    In a suit to recocer damage to a shipment of goods it is not necessary fort he plaintiff to allege the special giving of notice of facts necessarily disclosed by an inspection of the shipment made by defendant’s agent when the consignment was received from plaintiff.
    8. Louisiana Digest — Carriers of Passengers and Goods — Par. 132.
    Where the officers and agents of a Railroad Company know about conditions which would likely delay the shipments of goods, and did not advise the plaintiff of them until the shipment had been received and forwarded, ’the defendant can not use as a defense the fact that the car might have been delayed for war embargoes and hold orders of the United States Railroad Administration.
    Appealed from the Fifth District Court, Parish of Winn, Hon. Cas Moss, Judge.
    This is a suit to recover damages to a carload of green-white oak rim billets, shipped by plaintiff, over defendant’s railroad. There was judgment for plaintiff, and defendant appealed.
    Judgment affirmed.
    Porter & Lyons, of Winnfield, attorneys for plaintiff, appellee.
    R. W. Oglesby, of Winnfield, and Theus, Stubbs, Grisham and Thompson, of Monroe, attorneys for defendant, appellant.
   ROBERTS, J.

Originally this suit was filed by both the Mansfield Hardwood Lumber Co., consignor, and the Powell-Myers Lumber Co., consignee. However, a motion to elect having been filed by the defendant, was sustained, and plaintiffs elected to prosecute their demand under the name of the consignor, Mansfield Hardwood Lumber Company.

The pleadings are well and clearly stated in the brief filed by plaintiffs’ counsel, from which we quote:

STATEMENT OF THE CASE.
“Plaintiff, appellee herein, seeks to recover the sum of $611.47, from the defendant, for damages to a carload of • green white oak rim billets, shipped by plaintiff over defendant’s railroad.
“Plaintiff alleges in its petition that it delivered to the defendant, a common carrier, at Winnfield, Winn Parish, Louisiana, for transportation to the Powell-Myers Lumber Company, at Argos, Indiana, on February 12, 1918, a carload of green white oak rim billets, valued at the sum of $1,121.10, which shipment was accepted by defendant, and who issued a through bill of lading therefor, bearing the date, February 12, 1918; that said carload of material was' freshly cut, properly manufactured stock, free from, defect, stain and windshake, and was carefully loaded by plaintiff into defendant’s car, so that when the car was closed and billed out, said material was in good condition.
“It is alleged that said billets were shipped green, so that they could be easily bent and properly employed in making rims for U. S. Artillery wheels.
“It is further alleged that said shipment was not delivered to the consignee till on or about April 17, 1918, or over two months from the time of delivery for transportation to defendant; that,, when, the car was placed for unloading at Argos, Indiana, its contents were found to be in a very badly damaged condition, and that by cutting the billets down to smaller sizes, a part of the shipment was salvaged and damages thus minimized, saving from said car material valued at $509.63, making the total loss suffered the sum of $611.47.
“It is alleged that this damage resulted and was caused by unreasonable, uncalled for and inexcusable delay in transit, caused and brought about by the defendant and the common carriers, railroads, and transportation companies to which defendant delivered said shipment, and over whose lines said shipment moved and passed on its way to its destination, and by reason of the failure of the. defendant in its duty and obligation to plaintiff, it should be compelled to pay plaintiff the amount of damage suffered thereby.
“Defendant first appeared and accepted to plaintiff’s petition on the ground that there was a misjoinder of parties plaintiff, since the suit was brought in the names of consignee and consignor, which exception was sustained, and plaintiff amended in accordance with its order, taking a non-suit as to the Powell-Myers Lumber Co., ..and making plaintiff sole and only party plaintiff.
“Defendant then appeared and filed an exception of no right of action, averring that on the date of said "shipment, viz., February 12, 1918, its railroad and equipment and the property of defendant had been taken over by the United States Government and the President’s proclamation issued under the authority therein contained, and that on the date thereof, defendant had no authority, control or domination over its railroad and properties, but on the contrary, the same was being operated and controlled exclusively and solely by the Director General of Railroads, averring that any cause of action that might have arisen by reason of such operation is a cause of action against the United States Government and the Director General of Railroads under Federal control, and not against the defendant. The exception was referred to the merits and later over-ruled.
“The defendant then answered the petition, making a general denial of any liability; denied that it had ever received the shipment in question for transportation; that it ever issued a through bill of lading therefor, and' in the alternative answered .that in event it was held that it received and accepted said shipment for transportation, that it had no notice that such shipment was intended for any special purpose, or that said lumber was green and required transportation to be effected and delivery to the consignee made within a given period, or that any special or unusual damage would accrue to the same in event of failure to transport and deliver said ship.ment promptly, and if said shipment was of a special nature intended to receive special care and to be delivered promptly, defendant was entitled to notice of such condition and without such notice, it cannot be held liable for any damage as herein alleged upon; that the delay in this casé, in event any is found to have occurred, was due to conditions over which it had no control and for which it was not responsible, neither it nor its connecting carriers being able to prevent such delay, for the reason that whatever delay was occasioned was due to embargoes laid upon shipping 'and especially upon this particular car by the United States Government, made necessary by the United States being in a state of war with the Imperial German Government, under Act of Congress, and the executive order of the President, and that the Government in pursuance of its powers under Federal control in cases and times of war, had taken over the control, operation and administration of railroads, including defendant’s, and had taken entirely the management and handling of shipments thereover and- thereupon out of the power and control of defendant, or its connecting carriers, and if any delay was occasioned, it was due solely and only to the. delay made necessary by the exercise of such Governmental control and its proper judgment and discretion, and comes within the section» of the bill of lading relieving the carrier from liability for any delays or damage caused thereby.”

OPINION

Without reviewing the testimony, in detail, it shows that plaintiff delivered to defendant at Winnfield, La., on February 12, 1918, a carload of white oak rim billets, consisting of 162 pieces of the dimensions and value alleged in its petition. That this carload of material was freshly cut from green logs, especially selected for this shipment. That the billets were shipped green, so that they could be easily bent into the shapes needed to make U. S. Artillery wheels. It is further shown that the billets were free from defect, and were properly loaded into the box car by plaintiff, the layers being separated from each other by strips laid between them, and proper ventilation insured by naiiing strips -across the door of the car.

Mr. Meek, local manager of plaintiff Company, testified that a cattle car would have been more suitable, because of being better ventilated, but that such a car was not obtainable on defendant’s line.

Mr. C. L. Pace, defendant agent at Winnfield at the time the shipment was made, testified that he knew the billets were green, and therefore required prompt transportation and delivery.

The shipment in question, along with several others of the same character consigned to the Powell-Myers Lumber Co., at Argos, Indiana, was made under authority of a Government permit, which the plaintiff had obtained.

The bill of lading under which ihe shipment was made was issued by Mr. C. L. Pace, defendant’s agent at Winnfield, and bears the notation, “Government Purchase Order C-110”.

The waybill which accompanied the shipment was also issued by Mr. Pace, defendant’s agent, but what instructions or information, if any, relative to the preferential character of the shipment, and the necessity for prompt transportation, was given, is not shown.

The shipment did not. arrive at Argos, Indiana, until April 3, 1918; was placed for delivery on April 4th, and actually unloaded on April 5th.

The nature and extent of damage suffered by the shipment are shown in detail by the testimony of Mr. James Sanderson, Superintendent of the unloading and receiving department of the Powell-Myers Lumber Company’s bending plant at Argos, Indiana, and also the testimony of Mr. W. M. Murry, who, at the request of the consignee, went to Argos, Indiana, and made an examination into the damaged condition of the shipment.

The testimony of Mr. Sanderson also shows that the damage was minimized to the best advantage possible, by cutting down the billets to smaller sizes, thus getting rid of the cracks, checks and other blemishes which had developed in the billets by reason of the long delay intervening between the date of shipment and the date of delivery.

It is clear from the testimony that plaintiff sustained damage in the amount allowed by the District Court, and that the damage to the shipment was caused by the delays encountered by the shipment in its journey from Winnfield, La., to Argos, Indiana, and it therefore follows that the questions to be determined are as to whether any of the defenses urged will relieve defendant of the liability'for the damage.

1st. THE EXCEPTION OF NO CAUSE OF ACTION.

This exception is based on the contention that on February 12, 1918, the date of the shipment, that defendant had no control over the operation of its line of railroad by reason of the fact that che United States Government, by Act of Congress, and by proclamation of the President of the United States, in the prosecution of the war against Germany, had taken over the operation and control of all railroads, including that of the defendant, located in the Continental United States; that same were, at the time of the shipment, under the operation and control of the Director General of Railroads, and that any action which might have arisen under said operation, was against the United States and the Director General of Railroads, and not against the defendant.

This court, of course, takes judicial cognizance of the Act of Congress passed on August 29, 1916, “empowering the President, in time of war, to take possession, through the Secretary of War, and assume control, of any system or systems of transportation, or any part thereof, and to utilize the same to the exclusion, as far as may be necessary, of' all other traffic thereon, for the transportation of troops, war material or equipment, or for such other purposes connected with the emergency as may be needful or desirable.” - ‘

The Court will also take judicial notice of the proclamation issued by the President, under the above mentioned authority, on December 26, 1917, in which he took control, effective at 12 o’clock noon, on the 28th day of December, 1917, óf all railroads and other systems of transportation located wholly or in part within the boundaries of the Continental United States.

The court will also take judicial notice of General Order No. 50, issued by the Director General of Railroads, on October 28, 1918, “directing that all actions in law or equity, arising since December 31, 1917, and growing out of the possession, use, control or operation of any railroad system of transportation by the Director General of Railroads, which action, suit or proceeding but for Federal . control might have been brought against the' carrier, shall be brought against the Director General of Railroads and not otherwise.”

The defendant also offered in evidence in support of ■ the exception, a letter from John Barton Payne, General Counsel, addressed to Mr. J. S. Joyce, President of the Tremont & Gulf Railway Company, which letter reads as follows:

“June 29, 1918.
Dear Sir:
Pursuant to the policy of the Regional Director, the Tremont & Gulf Railway Company is relinquished from Federal control.
It will be the policy of the Railroad, administration to co-operate with relinquished roads as to a fair division of joint fates, car supply, and, as far as may be consistent with the national needs, that there be no undue discrimination as to routing.
If you feel that hardship may result from relinquishment, and .desire to. make a contract on fair terms, right is reserved to consider the advisability of making such a contract.
Very truly yours,
(Signed) JOHN BARTON PAYNE.

The above letter, or order of relinquishment, was objected to by plaintiff’s counsel as being hearsay, but was admitted by the trial court, and properly so, we think, as it appears to be the original, and only such order delivered to the President of defendant’s line.

Plaintiffs, in order to prove that defendant’s line was never under actual Federal control, offered in evidence a certificate to that effect, under seal of the United States Railroad administration, signed by the Chief Clerk and Custodian of the records and files -of the United States Railroad administration. This certificate was objected to by defendant’s counsel as being hearsay, not the best evidence, and on the further ground that this document was merely an affidavit of the witness concerning which defendant' had no opportunity for cross-examination. The objection was over-ruled, and the certificate admitted.

The objection made should have been sustained. Facts shown oy the files of the Railroad administration would have been the best evidence, and the iuie would have been stretched far enough in permitting the witness to testify subject to cross-examination as to facts shown by che files of the Railroad administration. Even the Secretary of State is not permitted to show facts disclosed by the records of his office by certificate, but must testify to them subject to the same rules applying to other witnesses. Neither is the certificate of a Clerk of Court admissible in evidence. See Jones on Evidence, page 542, and numerous authorities there cited.

The testimony, however, of Mr. C. L. Pace, defendant’s agent at Winnfield, shows that there was no actual control exercised over defendant’s line up to the time he severed his connection with same, which was subsequent to the time of the shipment in question. And there is no proof anywhere in the record that the United States Railroad administration' ever exercised any actual control, or ever operated or took charge of defendant’s line of railroad. The most that can be inferred from the proof in the record is that there was a technical or constructive control of defendant’s line existing at the time the consignment in question was made, and this, in our opinion, would not be sufficient to fix liability upon the Railroad administration, nor to relieve the defendant from liability, if shown otherwise to be liable.

We must, therefore, hold that the trial Court properly overruled the' exception of no cause or right of action.

ON THE MERITS

On the merits, the first defense is that there was “no notice in the bill of lading to put defendant on its guard about the character of the shipment, and no allegation of any notice, so as to admit proof.”

It is true that the bill, of lading designates the shipment as “Hardwood Lumber”, and does not specifically describe it as consisting of “Green Hardwood Strips”. However, the agent testified that he knew the character of the shipment, and if any further notice to connecting carrier was required as to the nature of the shipment and the necessity for prompt movement, it would seem that those facts should have been noted in the waybill which accompanied the shipment.

The waybill was, no doubt, prepared by defendant’s agent, but as defendant did not see fit to offer the waybill in ‘evidence, we have no way of knowing whether it conveyed ■ to intermediate carriers the information which defendant, through its agent, at the point of origin, possessed concerning the shipment.

The petition fully describes the nature of the shipment, and we do not appreciate that there was any necessity for the plaintiff to allege the special giving of notice of facts necessarily disclosed by the inspection of the shipment made by defendant’s agent when the consignment was received from plaintiff.

The remaining defense is that “If there was a delay, the same was caused by - circumstances over which neither defendant nor its connecting carriers had any control.”

From February 12th to April 3rd was, as defendant contends, a period during which the United States Government was exercising the most feverish activity in its efforts to get an army into France, in order to aid the sorely pressed British and French armies in their efforts to check the great German spring offensive which was .impending, if it had not already started.

According to the testimony of Mr. Tug-well, who had charge of freight shipments for the defendant, and was perhaps the best qualified of any of the witnesses to testify in detail as to the cause or causes of the delays encountered by the shipment in question, the Shipment left Winnfield on February 13th, and was delivered to the Missouri Pacific at Rochelle on February 14th. It remained at Rochelle until February 19th, on account of embargo, when it went to Monroe, where the shipment remained until March 11th. From Monroe, the shipment moved to McGehee, Arkansas, where it remained from March 14th to March 24th. ' The next movement was to Dupo, Illinois, where it arrived on March 27th, thence to Kokomo, where, it arrived April 2nd, and from Kokomo to Argos, where it arrived April 3rd.

Mr. Tugwell testified:

“Q. Then from your investigation, what caused the delays?
A. Well, the embargoes at most of the points, and not only the embargoes at Monroe but a general hold- order which lasted from January 19th to March 24th, to hold all ■ freight against the Memphis division.
Q. You don’t have charge of the freight shipments, do you?
A. You betcha.
Q. You knew about this general hold letter (order)?
A. Yes, sir.”

Mr. Eugene Ford, Vice-President and General Manager of defendant Company, ’ testified that the delay in this shipment could have been caused by embargoes, congested condition of traffic at terminal points, bad weather conditions, or that the car might have been in bad order, and delayed for repairs.

While it appears quite likely that the car might have been delayed by embargoes and by the hold order against the Memphis division during this period, the matter is not made certain enough in our opinion to avail the defendant as a defense in this case, especially in view of the fact that defendant’s officers and agents knew about these conditions, and did not advise the plaintiff of them until after the shipment had been received and forwarded.

Mr. C. A. Meek, at the time general manager of the plaintiff’s plant at Winnfield, testified in part:

“Q. Mr. Meek, did the agent of the Tremont & Gulf Railway Company notify the Mansfield Hardwood Lumber Company, or the Powell-Myers Lumber Company, that there. was an embargo on the road that caused the delay?
A. Not until after they received the shipment.
Q. Did they advise you or inform you of the general hold order from January 19th to March 24th?
A. No, sir.
Q. Did they make any declarations or give any information that this shipment would be delayed in transit?
A. No, sir.”

The shipment in question was preferential in character, being shipped under a Government permit, and in the absence from the record of the waybill which accompanied the shipment, the Court has no way of being sure that the various’.delays encountered would have occurred, had the waybill shown the perishable nature of this shipment, which was to be used in the manufacture of artillery wheels for the United States Government. If the defendant Company knew that the shipment might be delayed, why did it not so inform the plaintiff? Other similar shipments made along about this time, made the journey in from two to three weeks, which, barring unusual delays, the testimony shows was about the time that should have been sufficient for transportation and delivery.

“Carriers and watermen are liable for the loss or damage of the things intrusted to their care, unless they can prove that such loss or damage has been occasioned by accidental and uncontrollable events.” C. C. 2754.

In the case of Lehman Stern & Co. vs. Morgan’s Louisiana & Texas Railroad and Steamship Company, 115 La. 1, 38 South. 873, it was held that the carrier must show exactly how the loss resulted from accidental and uncontrollable events.

Not only has that not been satisfactorily done in this case, but assuming that it had been shown, it is doubtful whether it would be a good defense for the reason that the carrier received the shipment, knowing it probably- would be delayed, but withheld that information from the shipper, who, had he known of the embargoes and hold order, and that same would be applied to the shipment in question, might have withheld the shipment.

For the reasons given, the judgment of the District Court is hereby affirmed.


source: Caselaw Access Project

author: ODOM, J.

license: Public Domain

text:
    No. 2103
    Second Circuit Appeal
    JANE HAMPTON AND HUSBAND v. LOUISIANA AND NORTHWEST RAILROAD COMPANY
    (March 2, 1925, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Railroads—Par. 59, 64; 65.-
    The driver of a wagon was not negligent in failing to stop, look and listen on .¡. crossing.a switch track of a railroad, the view of which was obstructed by a freight train in front.
    2. Louisiana Digest — Railroads—Par. 62.
    It. was negligence on the part of the railroad company to back this train on the public crossing without a bright light on the forward end of it or without a lookout at the crossing to warn the inhabitants of the road, of its approach.
    3. Louisiana Digest — Damages—Par. 104. ■
    The plaintiff, due to an accident causing a slight injury to her leg, was in bed a month and could not work for about ■four months. An award for $300.00 damages is proper.
    (Civil Code, Art. 2315. Editor’s note.)
    Appeal from the Third Judicial District Court of Louisiana, Parish of Bienville. Hon. J. E. Reynolds, Judge.
    .This is a suit to recover damages for personal injuries.
    There was judgment for defendant and. .plaintiff .appealed.
    Judgment reversed.
    Hall, Johnson & Hall, of Shreveport, attorneys for plaintiffs, appellants.
    Richardson & Atkins, of Homer, attorneys for defendant, appellee.
   ODOM, J.

This is a suit to recover damages for an injury which the plaintiff, Jane , Hampton, received in a collision between. a wagon in which she was riding and a train owned and operated by the ’ defendant company.

■ Plaintiff alleges that she was travelling in a wagon north along a public highway ii the town of Gibbsland and as she was ■crossing a switch track of the defendant company a train was backing from the east to the west down said switch' track and struck the wagon, demolishing it and bruising and injuring her.

She alleges that her injuries caused her great pain and suffering, requiring medical skill and attention, and that she was confined to her home for a short term.

She places the amount which she should receive for her injuries and sufferings at $1000.00 and asks for judgment for that amount.

She alleges that the injuries were caused by the fault and negligence of the railroad company and its employees in backing a train across the public road on a dark night without any light and without giving any signal of its approach and without keeping a lookout on the rear end of the forward car.

The defendant answered denying any negligence on the part of its employees in the operation of its train and especially sets up contributory negligence on the part of the plaintiff.

The case was tried before a jury which rejected the plaintiff’s demands; from which verdict and judgment she has appealed.

The accident of which plaintiff complains occurred at Gibbsland after nightfall on December 26, 1921.

There are two railroads running through that town. The Y. S. & P. and the Louisiana & Northwest Railroad, owned by the defendant in this case.

The V. S. & P. runs east and west, and the Louisiana & Northwest runs in a general north and south direction.

The V. S. & P. has four tracks; the main line and three switch tracks, all running east and west and about paralled to each other. On the north side of the north track there is a freight depot which has a cotton platform at the west end. On the north side of this freight depot the defendant company has two switch tracks running about parallel to each other east and west and running about parallel with all the tracks of the Y. S. & P. The first or south track of the defendant company runs very near to the freight depot of the V. S. & P., and the second or north tra.ck is only a few feet north of the first one.

The defendant company’s main line track crosses the V. S. & P. tracks at a point considerably east of the freight depot. The defendant’s two switch tracks branch off from its main line at a point in the' vicinity of where it crosses the V. S. & P.

There is a public road running north and south through the town crossing at about right angles the four V. S. & P. tracks and the two switch tracks of the defendant company, and runs very close to the west end of the cotton platform attached to this freight depot.

On the night of the accident the plaintiff, a colored woman, and three other colored women, were riding in a wagon drawn by a pair of mules going north on this public road. The four women were seated on a spring seat. The team was being driven by a colored boy about thirteen years old who was seated in front on the dashboard. When they got to the crossing they found it blocked by trains on the V. S, & P. tracks. There were three trains there at the time — one passenger, going west,, one going east, and a freight train going east. The parties in the wagon stopped and waited until the two passenger trains left. The freight train was then “cut” and the public road cleared for the wagon to pass. Seeing that the roadway was clear, the driver of the wagon proceeded on his way north, passing over the four tracks of the V. S. & P. and over' the first or south track of the defendant company; and when the wagon reached the second or north track of the defendant company it was struck by one of defendant company’s cars which was moving west on this switch track. The train on the defendant switch track was composed of an engine, a tender and about twelve cars, and was backing west. It appears that the mule had passed over the track and that the railroad car struck the wagon only. However, one of the mules was in some way jerked back and caught under the moving train and killed. The wagon was demolished, one of the occupants was killed and the plaintiff and one of the other occupants were injured. As already stated defendant pleads contributory negligence on the part of the plaintiff and all other occupants ■ of the wagon and pleads, also, that its employees were guilty of no negligence, and especially sets out that it was maintaining a lookout and a light on the forward end of the train and that the bell was ringing, etc.

If the plaintiff, in approaching this railroad crossing, failed to use due and ordinary care to avoid the accident and her negligence materially contributed to the accident or was the proximate cause thereof, she cannot recover even though the defendant company was negligent in the operation of its train; unless the railroad company was guilty of such gross negligence as to imply wantonness and disregard of the safety and rights of the inhabitants of the public road.

We must, therefore, inquire first whether the plaintiff was guilty of such contributory negligence as to ' bar recovery, if it be conceded that defendant was guilty of negligence, such as. charged by plaintiff.

The accident occurred on a dark night. These colored people all lived north of the town of Gibbsland but on this night had been in the south end of the town and had started home in the wagon. They proceeded north on the public highway until they reached the tracks of the V. S. & P.. railroad and finding the crossing blocked by trains they stopped and waited until the two passenger trains cleared the track and until the freight train was “cut” and opened so that their passage way along the public road was made clear. Seeing that the roadway was clear, they proceeded north until they reached the second or north track of the defendant company, where the accident occurred. An effort was made to show that the driver and the occupants of the wagon were all in a hilarious mood, were going very fast over the crossing and were paying no attention at all to what was happening around them, and that on account of such carelessness and inattention they did not see the light on the train; did not hear the bell or the noise of the train. However, we are not convinced that their conduct was out of the ordinary or anything except what might be expected under the circumstances.

They all say they looked and saw no light, listened but heard no whistle or noise of a moving train. Their testimony on this point is not contradicted because there was no one else there who could know whether as a matter of fact they did stop and listen. But counsel for defendant urge the point that if they had listened they would have heard the bell and the moving train. Our view, however, is that there was no light.on the forward end of the train. It is certain there was no bright light there. All that defendant claims as to the light is that the flagman was on the forward car with a lantern. Even this is denied by all the plaintiff’s witnesses and is not conclusively shown by those of the defendant; and it is not at all certain that the whistle was sounded or that the bell was ringing, although the defendant’s employees say that the bell was ringing. None of the plaintiff’s witnesses, even those who appear to have no interest in the case, heard the bell or whistle, and some of the defendant’s witnesses who claim to have been near the scene of the accident say they did not hear them.

Quince Hewett, the driver, admits that he did not stop before attempting to cross the defendant’s tracks where the accident occurred. Defendant’s counsel urge that inasmuch as he failed to observe the well established rule that before entering upon a railroad crossing one must stop, look and listen, recovery is barred.

We do not think it was his duty to stop, look and listen before attempting to cross the switch track where the accident occurred. It must be borne in mind that at this point there are six tracks, all running parallel or nearly so, four on the south side of the freight depot and two on the north side. This is what may be termed one crossing. The driver did stop before entering the crossing. He waited until' the two passenger • trains cleared the crossing and until the freight train which was there was “cut” and the roadway cleared. He had a right then of course to proceed on his way. We do not think it was necessary for him to stop at each one of these switch tracks. It was his duty to stop and to listen before entering the crossing. This he did, and waited until the. three trains then blocking it cleared out, leaving the roadway to him. We think he had a right to proceed without stopping again under the circumstances of this case.

Our finding therefore is that the driver was not negligent is attempting to make the crossing as he did.

The remaining question is whether the railroad company was negligent in' the operation of' its train on this occasion.

As stated, this was a dark night and the ’ train was hacking over the crossing. There is no street light there and it is not pretended that the defendant had a lookout stationed there or that it had a bright light on the forward end of the lead car. The most that it claims it that the. flagman was on the forward car with a lantern and it is not suggested that this lantern reflected the light any distance. But a careful examination of the testimony has failed to convince us that there was any light at all on the forward car.

The witnesses for the defendant all claim that a man by the name of Cathay was on the forward end of this train and that he had a lantern, but there is not one of those witnesses, in our opinion, who was near enough to the scene of the accident and near enough to the forward end of this train to tell definitely whether Cathay was on the lead car or not. Each and every one of the plaintiff’s witnesses testified that they saw no light on the forward end of the train and some of them are positive that none was there. We think the testimony makes it clear enough that the man Cathay was on the top of a box car either at or near to the end of the train when it started backing west. But his testimony makes it clear that before reaching the crossing they coupled on to a coal car loaded with lumber and, of course, shoved this car west on the switch track. It was this car, loaded with lumber, which struck the wagon on which plaintiff •was riding. The testimony is by no means clear that Cathay ever reached this forward ear and we think if he reached it at all he did not go to the forward end of it. The man Cathay says that he .was on the front end of the forward car with his lantern and- that he called to .these people to lookout about the time the train struck them. He says that he saw them but did not know in what direction they were going. The fact that he could .not tell which way they were going indicates that he was mistaken about seeing them at all. If he had been on the forward end of the lead car with a bright light he not only could have seen them but could have told the way they were going. He says that as soon as the train hit the wagon he got off on the south side and went back east near the engine where he met the conductor and told him that they had struck a wagon. He says he did not wait to see the results of the collision.

The testimony shows that the mules had crossed this track and that the wagon only was struck by the train and that after the collision the mules, the remains of the wagon and all the occupants thereof were on the north side of the- tr'ack, and therefore Cathay, having gotten off on the south side of the track, could not see the results of the collision. It does not seem reasonable to us that he would have gone a distance of twelve car lengths to tell the conductor that a collision had taken place between the train and a wagon if he did not know that any damage was done. All the witnesses for plaintiff who were near the scene of the accident say that Cathay was not on the forward end of the train when the collision occurred and was not present immediately after the accident; and in view of their testimony and of his own unreasonable account of his conduct we are inclined to believe that he was not there.

Will Marshall, an employee of the V. S. & P. says that he was on his engine eating supper when the collision occurred, but was looking directly at it. He says that when the collision occurred the man nearest the forward end of the train was getting down from the top of a box car onto the coal car; that he was climbing down the ladder when the coal car hit the wagon. He says, also, that this man was east of the freight depot at the time of the collision. If he is“ correct in this statement, and we think he is, then Cathay was not where he says he was.

C. C. Graves, another employee of the V. S. & P., says he was standing on the crossing, presumably considerable south of the place where the collision occurred, and that he heard an outcry and looked around and saw a light, but does not know which car it was on.

R. R. Griggs, another witness of the defendant, says he was standing on the main line of the V. S. & P. and heard an outcry and a crash and immediately went to the scene and when he got there Cathay was there trying to see what he had done. This contradicts the testimony of Cathay who says he did not see what he had done but went • back to tell the conductor.

Jake Murrell, another witness for defendant, says he saw a man on the top of a car giving distress signals.

Dave Wiley, W. J. Stark, and C. J. Ketcham, all employees of the defendant, say that Cathay • had a light and gave distress signals, and Ketcham, the conductor, says that he was near the engine and that he could see Cathay with his lantern on the forward car. We a¡re of the opinion that this man, being at the extreme east end of the train, could not tell whether the light was on the end of the train or whether it was a few car lengths from the end.

Jake Riddle says he was on the train, about the middle, and that Cathay was on the rear end of it.

Harry Johnson and Y. Daniel, think a man was on the rear car but do not know that he was on the end of the car.

Our conclusion from all the evidence is that Cathay was probably on the lead box car going west but that he did not get on the coal car loaded with lumber until about the time it struck the wagon. The testimony shows that this coal car was very close to the public road at the time the train coupled to it, and that the collision took place almost immediately, and that the light, if any, was at least one car length from the end of this car. The plaintiff was going north on this, public highway. To the right of the road and very close to it was the freight depot of the Y. S. & P. The train of the defendant company came down from behind this depot. It is also shown that there was a box car on the first or south . track of the defendant company .immediately north of the depot. This depot and the box car obstructed the view of the plaintiff and prevented her from seeing the light on the train as it came west down the track. However, the cotton platform extends some twenty-five or thirty feet west of this depot, which left a considerable space to the west of the depot and the box car above referred to; and if there had been a light on the coal car which was loaded with lumber and which struck the wagon it could easily have been seen and this accident avoided. This lead car was very near to the road; there was no light on it; and of course could not be seen by the driver or the occupants of the wagon.

It was negligence on the part of the railroad company to back this train on the public crossing without a bright light on the forward end of it or without a lookout at the crossing to warn the inhabitants of the road of its approach.

Maher vs. La. Ry & Nav. Co., 145 La. 733, 82 South. 872, 33 Cyc. 954.

Nash vs. Railroad Co., 153 La. 410, 96 South. 14.

Kraemer vs. Railroad Co., 144 La. 57, 80 South. 198.

Our findings are that the plaintiff was not guilty of contributory negligence in driving on the track of the defendant and that the defendant was guilty of negligence in backing over the crossing without a light or a lookout, and that the negligence of the defendant was the sole cause of the accident.

The plaintiff is therefore entitled to recover.

The plaintiff testified that she was knocked unconscious, that she was carried to the office of a physician and treated and later treated by Dr. Payne. She says she was in bed a month and could not work for about four months. The physician who attended her and dressed her wounds says her leg was slightly injured and that her wounds were superficial. He says the wounds would not have kept her from work unless there had been subsequent infection. We think an award of $300.00 would be proper in this case.

For the reasons assigned, it is therefore ordered adjudged and decreed that the verdict of the jury and the judgment based thereon appealed from be avoided and reversed, and it is now ordered, adjudged and decreed that plaintiff, Jane Hampton, do have judgment against and recover from the Louisiana & Northwest Railroad Company the full sum and amount of three. hundred dollars with five per cent per annum interest thereon from October 16, 1923, and all costs of this suit.


text:
    No. 2104
    Second Circuit Appeal
    JOHN W. LEWIS, TUTOR v. LOUISIANA AND NORTHWEST RAILROAD COMPANY
    (May 25, 1925, Writ of Certiorari to Supreme Court Refused)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Appeal—Par. 630.
    Where the verdict of the jury as to the facts is clearly erroneous, it will be reversed.
    (Civil Code, Art. 2315. Editor’s Note.)
    Appeal from the Third Judicial District Court of Louisiana, Parish of Bienville,' Hon. J. E. Reynolds, Judge.
    This is a suit for the recovery of damages arising out of a railroad accident for personal injuries and value of mule and wagon destroyed.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    Hall, Johnson & Hall, of Shreveport, attorneys for plaintiff, appellant.
    Richardson & Atkins, of Arcadia, attorneys for defendant, appellee.
   ODOM, J.

The facts of this case are identical with those in the case of Jane Hampton and husband versus the same defendant, No. 2103, this day decided. (See. p. 171 herein.)

This suit is brought by the father of Roberta Lewis, a minor child, who was injured in the same accident, to recover damages on account of the injuries which she sustained and also to recover the value of the mule killed and the value of the wagon which was demolished.

Roberta Lewis was injured on the left knee. She testified that she could not walk for a while and stayed in bed for about a month and says she could not work for about three months. She says her knee was. stiff and Was sore at the time of the trial, but her testimony is not corroborated. Dr. Payne, who dressed the wound and attended her, says her wound was superficial and amounted to very little. We think an award of $300.00 is sufficient for her injuries.

The proof shows that the mule was worth $150.00 and we think a fair award for the destruction of the wagon would be $50.00.

For the reasons assigned' in the case of Jane Hampton and Husband vs. Louisiana and Northwest Railroad Company, No. 2103 on the docket of this court and this day decided, it is therefore ordered, adjudged and decreed that the verdict of the jury and the judgment based thereon be avoided and reversed,' and it is now ordered, adjudged and decreed .that John W. Lewis, tutor, do have judgment against and recover from the Louisiana and Northwest Railroad Company the sum of three hundred dollars for the use and benefit of his minor child, Roberta Lewis, damages for the injuries sustained by his minor child, Roberta Lewis, and judgment for his own use and benefit in the sum of one hundred and fifty dollarss the value of the mule killed, and in the sum of fifty dollars, the value of the wagon which was destroyed, together with interest on each of said amounts at the rate of five per cent per annum from October 16, 1923, and that defendant pay all the costs of this suit.

REYNOLDS, J., being recused, took no part in this decision.


text:
    No. 2105
    Second Circuit Appeal
    TOM FRAZIER AND WIFE v. LOUISIANA AND NORTHWEST RAILROAD COMPANY
    (June 30, 1925, Opinion and Decree.)
    (May 25, 1925, Writ of Certiorari to Supreme Court Refused.)
    (See Jane Hampton vs. L. & N. W. Rd. Co., p. 171, herein.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Death by Wrongful Act — Par. 22.
    Four thousand ($4000) dollars considered sufficent quantum damages for the death of a minor daughter killed by a train.
    (Civil Code Art. 2315. Editor’s note.)
    Appeal from Third Judicial District Court of Louisiana, Parish of Bienville, Hon. J. E. Reynolds, Judge.
    This is a suit for damage for death of minor daughter, killed by a railway train.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    Hall, Johnson & Hall, of Shreveport, attorneys for plaintiffs, appellants.
    Richardson & Atkins, of Arcadia, attorneys for defendant, appellee.
   ODOM, J.

Tom Frazier and his wife bring this suit to recover $10,000.00 damages for the death of their minor daughter Lizzie Frazier, who was run over and killed by a train of the defendant company on the night of December 26, 1921, at Gibsland, Louisiana. The amount claimed is for the suffering and death of their child. The proof shows that this girl was run over and instantly killed on the night of December 26, 1921, by a train owned and operated by the defendant company. Her body was horribly mangled, her head and one or two of the members being severed from her body. She died instantly. She was in good health and strong. We think an award of $4,000.00, is proper in this case.

The facts surrounding the accident which resulted in the death of plaintiffs’ daughter, are fully stated in the case of Jane Hampton and Husband versus Louisiana & Northwest Railroad Company, No. 2103 on the docket of this court and this day decided, and there is therefore no necessity for restating them here.

For the reasons assigned in that case, it is therefore ordered, adjudged and decreed that the verdict of the jury and the judgment based thereon be reversed and avoided, and it is now ordered, adjudged and decreed that the plaintiff, Tom Frazier and wife, do have judgment against and recover from the Louisiana & Northwest Railroad Company the full sum and amount of four thousand dollars together with interest thereon at the rate of five per cent per annum from October 16, 1923, and that defendant pay all the costs of this suit.


author: LECHE, J.

text:
    No. -
    First Circuit Appeal
    FEREOL DEBAILLON, ET AL., v. MAISE FUSELIER, ET AL.
    (May 5, 1925, Opinion and Decree)
    (June 30, 1925, Rehearing Refused)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Donations—Par. 87, 92.
    Where the testator of a nuncupative will ' by public act dobs not understand English, the will written in English is null and void because the instrument has passed through the process of double translation and cannot, in the sense of Article 1578 of the Civil Code, be said to have been written as, dictated by the testator.
    Appeal from the Parish of Evangeline. Hon. B. H. P.avy, Judge.
    This is a suit to have a nuncupative will by public act declared null.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    J. H. Dore, of Ville Platte, and Geo. L. Fontenot, of Opelousas, attorneys for plaintiff, appellee.
    Dubuisson, Perrault & Burleigh, of Opelousas, attorneys for defendant, appellant.
   LECHE, J.

The main purpose of this suit is to annul, avoid and set aside the last will and testament of Auguste Debaillon.

The facts are that Auguste Debaillon, whose maternal tongue was French, could neither speak nor understand the English language. That on February 20, 1922, in the presence of three witnesses and of Rene L. Derouen, a notary public, his purported last will and testament was drawn up in nuncupative form by public act in the English language. The will on its face shows that it is written in the English language, but makes no mention of the fact, which was- proved aliunde and which is not denied, that the testator neither spoke nor understood that language.

The District Court rendered judgment as prayed for by plaintiffs, setting aside and' annulling the will, and defendants have appealed.

The form in which a nuncupative will by public act must be drawn is prescribed by Article 1578, C. C. That the form of such a will is a matter of substance has been so often decided that this principle is now accepted without citation of authority. The French commentators on the Civil Code call it “an acte solennel”, a solemn act, in. the confection of which every formality must be strictly observed under pain of nullity.

Two of the provisions of Article 1578, which in this contest are charged to have been violated, are: “The testament must be dictated by the testator and written by the notary as it is dictated. It must then be read to the testator in presence of the witnesses.” Baudry in his “Precis de Droit Civil”, Volume II, No. 558, in commenting -on the first quoted requisite, says: “To dictate is-to pronounce word for word that which another, at the same time, writes.” That this was not done literally in the present case is beyond question, for the testator knew not the form or the meaning of the English' words which were written by the notary and could not have pronounced them. But, say the defendants, the French words used and pronounced by the testator were translated into English by the notary and written as translated. That may be true, but it was nevertheless a violation of a provision of the, law which, although apparently’ only a form, is in reality a matter of substance. By the same reasoning the other quoted provision was also violated because what the notary read was unintelligible to the testator. The object of the reading is to acquaint the testator with what has been written and the reading of a translation in a language which the testator does not understand is not a compliance with the purpose of the reading required by the Code.

As an original question, involving a construction of the provisions of the Code, we believe that the testament of Debaillon is null and void, and that it should so be decreed unless the Supreme Court of this state has otherwise decided on that question.

Many decisions are cited by counsel on both sides, which, by analogy, are claimed to have some bearing upon the point at issue. It is true that the court has on some occasion slightly deviated from a literal application of the rule herein announced, and has held in those cases that the rule was substantially complied with. See Hamilton vs. Hamilton, 6 Mart. (N. S.) 143; Storrs vs. Mason, 32 La. Ann. 8; Succession of Cauvien, 46 La. Ann. 1412, 1416, 16 South. 309; Succession of Saux, 46 La. Ann. 1423, 1428, 16 South. 364; Heirs of Hennessey vs. Wolf, 49 La. Ann. 1376, 22 South. 394, (cited by counsel for appellant). But no decision has been quoted nor can. we find any, definitely deciding the precise question herein presented. It Was held however in the case of Lataprie vs. Baudot, 152 La. 177, 92 South. 776; Succession of Dauterive, 39 La. Ann. 1094, 3 South. 341, and Hebert’s Heirs vs. Hebert’s Legatees, 11 La. 361, that where the witnesses necessary at the confection of a will did not understand the language in which the will was written they were incompetent, and that the will for that reason was void. The decision most nearly in point is that of Gonzales vs. Gonzales, 13 La. 104, where a will was written in a language not Understood by the. testator but translated to him as it was Written. In that case, the court said: “The instrument under consideration has passed through the process of a double translation and cannot, in the sense of the Code, be said to have been written as dictated by the testator”. We believe that this language applies equally well to the present case and for that reason that the judgment herein appealed from should be affirmed and it is so ordered.


author: MOUTON, J.

text:
    No. -
    First Circuit Appeal
    LOUISIANA STATE BOARD OF DENTISTRY v. F. ERNEST OFLERTY
    (May 5, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Appeal—Par. 143.
    The Court of Appeal cannot consider a judgment of the district court not signed. The case is remanded for signature of district judge to the judgment rendered.
    Appeal from the Parish of St. Martin, Hon. James Simon, Judge.
    This is an injunction suit in which the injunction was denied and plaintiff appealed.
    The judge’s signature was missing.
    Case remanded for judge’s signature.
    Sidney Gautier, of New Orleans, and V. A. Fournet, of St. Martinville, attorneys for plaintff, appellant.
    Voorhis and Labbé, of Lafayette, and Weeks and Weeks, of New Iberia, attorneys for defendant, appellee.
   MOUTON, J.

Dr. V. K. Irion, appearing in the capacity of Secretary-Treasurer of the Louisiana State Board of Dentistry, filed these proceedings praying for an injunction to restrain defendant from practicing dentistry in the State of Louisiana, particularly in the Parish of St. Martin.

The basis upon which the injunction is asked, is that defendant has never presented himself for examination, nor has he complied with the laws of the State relative to persons desiring to practice dentistry; that he is not a holder of such a certificate as is required by the Louisiana State Board of' Dentistry and is therefore not qualified to practice dentistry under the laws of this State, and more particularly under Act 88, 1900, as amended by Acts 132, 1902, Act 27 of 1906, and Act 30 of 1922.

The defendant was ordered by the district judge to show cause why the writ of injunction prayed for should not issue.

In answer to this rule, defendant filed the following pleas: That on the face of the papers, Dr. V. K. Irion shows no right to file and prosecute this suit; and' in the alternative, that the petition shows no cause of action; that the acts upon which plaintiff grounds his - demand for an injunction, are unconstitutional.

In the minutes of the court which ■ we find in the record, it is stated that “for oral reasons assigned by the court, rule Nisi is recalled and writ of injunction denied”. If the court maintained the exception of no cause of action, the judgment maintaining this exception should have been signed by the judge, otherwise the appeal was necessarily, premature. H. P. Nicholls vs. Clara Maddox, 42 La. 496.

If the court maintained the plea of defendant that the acts invoked by plaintiff were unconstitutional by declaring such acts or either of said acts, unconstitutional, the supreme court and not this court would be vested with appellate jurisdiction in this case. Constitution of 1921, Article 7, section 10, paragraph 4, p. 40.

Such being the situation presented by this record, we wiil not dismiss this appeal but will order the return of this ‘ record to have the district judge sign the judgment he has rendered in this case.

It-is therefore so ordered, and when the judge will have signed the judgment by him rendered herein, that the said record be returned to the clerk of court at New Iberia, La., for our next regular term at that place.


text:
    No. -
    First Circuit Appeal
    HERBERT CHIASSON v. PHILOCLES CHIASSON
    (May 5, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Damages—Par. 69.
    The damage which plaintiff sustained by defendant’s breach of contract is the loss which he has sustained and the profit of which he has been deprived.
    (Civil Code, Art. 1934. Editor’s note.)
    Appeal from the Parish of Lafourche, Hon. Robert B. Butler, Judge.
    This is a suit to recover damages for breach of contract.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Harvey Pelletier, of Thibodaux, attorney for plaintiff, appellee.
    Numa F. Montet, of Thibodaux, attorney for defendant, appellant.
   LECHE, J.

Plaintiff claims that he entered into a contract according to which he had the exclusive right to float for defendant a lot of cross-ties, out of the swamp, and that for his services and labor, defendant bound himself to pay him ten cents per tie. That he did float and deliver some 900 ties for which defendant paid him, but that there were 2500 additional ties which he was ready and prepared to float and deliver as soon as conditions agreed upon, permitted, and that defendant in violation of the agreement, hauled said 2500 ties himself and deprived him, plaintiff, of the benefit of said contract under which he would have made $250.00. He therefore, sued for damages in the said sum of two hundred and fifty dollars and for costs of this suit.

The district court gave plaintiff judgment in the sum of one hundred dollars and defendant appeals.

Defendant first answered plaintiff’s demand by denying the existence of the alleged. contract, and then attempted by a supplemental answer to restrict that denial to the allegation that plaintiff had an exclusive right to float and deliver the ties. He admits in his supplemental answer that plaintiff had a contract which he says was terminable at the will of either party, and he therein further alleged that plaintiff had voluntarily abandoned the same.

The supplemental answer filed by defend, ant, admits a contract, and while. defendant at that time had the right to make such an admission, the conditions .coupled, with the admitted contract seem to us to be inconsistent. If the admitted contract was not personal on the part of plaintiff, or in other words, if plaintiff did not have the exclusive right to do the floating or to make delivery, there was no necessity that the contract should be made terminable at the will of either party. The floating or hauling by any person other than plaintiff himself, could not then have constituted a violation of the contract. On the other hand, the only reasonable necessity that could have existed* for stipulating that the contract would be terminable at the will of either party, was because the right to float or haul was personal to the plaintiff. :

We have undertaken to analyse defendant’s supplemental answer in view of the fact that the testimony in the case, is not very explicit or clear as to the position which he has assumed in his defense. It may be that the parties to the contract have little business training and no experience in stipulating an agreement, but We must say that defendant’s supplemental answer does not by any means simplify or clarify the issue.

Our findings from the testimony in the case, are: That plaintiff secured for the defendant, from Victor Legendre and Arthur Chiasson the right to cut certain timber off their lands and to hew same into cross-ties. That plaintiff was engaged by defendant to superintend the making of said ties and to cut the path necessary to float same, in consideration of five cents per tie. That plaintiff was also engaged by defendant as a result of his superintending the making of said ties, to float and deliver the same for an additional consideration of ten cents per tie. That the agreement only provided for delivery by floating the ties, the usual mode of bringing ties out of the .swamp, and that such floating was to be done when there was rain water sufficient for that purpose. That defendant was very desirous of obtaining an early delivery of his ties, but that owing to an unusual drouth at the time, he could not obtain such delivery under the terms of his agreement and for that reason, breached the contract.

It appears further from the testimony, that it would have cost plaintiff an average of six cents per tie to float and complete the delivery of the 2500 ties, and therefore that Jiis profit would have been four cents per tie or a total of one hundred dollars.

Such were the conclusions of the trial judge as shown by his written reasons which are full, cogent, and which analyse tljie testimony in detail.

We believe that his judgment should be affirjned, and

It is so ordered.


text:
    No. -
    First Circuit Appeal
    SUCESSION OF REV. WILLIAM MURRELL
    (May 5, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Appeal—Par. 483.
    An appeal will be dismissed where the record is filed after the return Say.
    Appeal from the Parish of St. Mary, Hon. James Simon, Judge.
    Chas. J. Mundy, of Thibodaux, attorney for plaintiff.
    Chas. J. Boatner, of Franklin, attorney for defendant.
   LECHE, J.

The appeal in this case was taken February 21, 1925, and made returnable March 9, 1925. The record was filed in this court on March 23, 1925. No extension of time was asked for or granted. Appellee moves to dismiss the appeal.

Appeals to this court from the Parish of St. Mary, are made returnable at New Iberia, where the record was only transmitted and filed some 14 days after the return day.

The motion to dismiss must therefore prevail and accordingly the present appeal is dismissed.


author: ELLIOTT, J.

text:
    No. 12,214
    First Circuit Appeal
    MOISE SCRANTZ v. DUHARD SONNIER Paul Melancon and Ubald Melancon, Intervenors and Third Opponents.
    (May 5, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Appeal—Par, 354, 355.
    An appeal by petition not taken in open court will be dismissed by the Court of Appeal unless it be shown that appellee has been properly cited.

      Appeal from the Sixteenth Judicial Distract, Parish of St. Martin, Hon. James Simon Judge.
    This is an appeal 'taken by TJbald Melancon, intervenor and third opponent without properly citing the appellee.
    Appeal dismissed.
    Voorhies & Lobbe, of Lafayette, attorneys for plaintiff, appellee.
    Martin & Martin, of St. Martinville, attorneys for defendant, and intervenors, appellant.
   ELLIOTT, J.

Moise Scrantz proceeding by executory process seized two young mules and two cows as belonging to Du-hard Sonnier, his mortgage debtor, Paul Melancon and Ubald Melancon; claiming ownership and possession of the mules. Paul Melancon having purchased them from Duhard Sonnier and gave them to Ubald Melancon his son; intervened and opposed the sale.

The plaintiff, Scrantz, sometimes called Crantz or Krantz, resisted the claim of Ubald Melancon. on the ground that the two mules were covered by his chattel mortgage executed in authentic form, and recorded previous to the sale to Paul Melancon; the act of mortgage containing a stipulation that the property was not to be alienated to the prejudice of the act.

The district judge for written reasons filed in the record decided the case in favor of Moise Scrantz and refused and rejected the claim of Ubald Melancon and authorized the sheriff to proceed with the sale.

Ubald Melancon moved for and obtained an order for an appeal to this court.

The plaintiff, Scrantz, moved in this court to dismiss the appeal on the ground that it had not been taken in open court and that neither the motion nor the order granting the appeal directed that Moise Scrantz, the appellee, be cited to answer the appeal and that he was. not cited to answer same.

The minutes in the case bear out and substantiate the allegations in the motion to the effect that the appeal was not granted in open. court and the motion for appeal does not pray for, and the order granting the appeal does not direct that the appellee, Scrantz, be cited to appear and answer the appeal and he was not cited to answer same. The motion must therefore, prevail. C. P. Arts. 581, 582, (amended); 583 (amended) and 584; King vs. First Methodist Church, 137 La. 879, 69 South. 593; Schmitt vs. Drouet & Rabasse, 42 La. Ann. 716, 7 South. 746. Louisiana Digest Vol. I pp. 449, Sections 354 and 355 and authorities there cited.

It is therefore ordered, adjudged and decreed that the appeal taken by Ubald Melancon herein be, and the same is hereby dismissed at his cost.


author: ELLIOTT. J.

text:
    No. 12,956
    First Circuit Appeal
    DONELSON L. CAFFERY v. WALKER B. COLEMAN
    (May 5, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Partnership—Par. 49, 50, 152.
    After the liquidation of a partnership the loss sustained by the partnership must be divided between the partners where one of the partners liquidated the business judicially and expeditiously for the partnership.
    2. Louisiana Digest — Costs and Fees — Par. 10, 55.
    The parties to a liquidation of a partnership should' share equally the costs of a judicial liquidation in the lower court.
    3. Louisiana Digest — Costs and Fees — Par. 48.
    Where the judgment of the lower court in a judicial liquidation of a partnership is appealed and affirmed. The party appealing must pay the costs ol the appeal.
    Appeal from the Fifteenth Judicial District, Parish of Calcasieu, Hon. Jerry Cline, Judge.
    This is a suit to recover losses from a partner growing out of the judicial liquidation of a partnership.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    R. R. Stone, of Lake Charles, attorney for plaintiff, appellee.-
    Cline & Plauche, of Lake Charles, attorneys for defendant, appellant.
   ELLIOTT. J.

The plaintiff, Donelson L. Caffery, ánd defendant, Walker B. Coleman, by verbal contract formed a partnership under the firm name “Caffery-Coleman Company”, to conduct a produce business. Each of them put into the business his services at like value and profits and losses were to be equally shared. Mr. Coleman did not contribute at the time, any of the partnership capital. Mr. Caffery under the agreement advanced the firm the sum of $1685.40 necessary, in order to purchase the assets and good will of Joe. Moustaiche & Company, and start in business; with the understanding that in a couple of months the parties were to organize a corporation, which would take over the partnership business and at which time the sum advanced by Mr. Caffery, $1685.40, was to be returned to him. This plan, however, was not carried out; because after operating a couple of months the partners, Messrs. Caffery and Coleman, disagreed to the extent that the continuance of the partnership and further working together, became impracticable. Mr. Coleman left and declined to take further part in the business, and, of course, it became necessary to liquidate .the partnership affairs.

Mr. Caffery who remained in charge proceeded extra judicially to liquidate the partnership and close out the business and when he had com'pleted the work; it was found that there had been quite a loss.

Mr. Caffery brought this suit against Mr. Coleman for a judicial determination of their affairs and to compel him to share one-half of the loss.

Mr. Coleman contends for answer in substance and effect that there was no loss at the time he quit the business, December 22, 1923, and that if any loss has since occurred it was not due to his fault, and that he should not be required to bear any part of it; that Mr. Caffery should have closed out the business sooner and at less expense than was done by him; that some credits claimed by Mr. Caffery for salary and interest should not be allowed him.

The district judge rendered judgment approving the course pursued by Mr. Caffery; decided in his favor in most cases as to contested items and gave him judgment against Mr. Coleman for half of the loss to-wit: $1187.84.

Mr. Coleman appealed; but we find no brief on his part and he does not appear to seriously contest the correctness of the judgment appealed from.

It appears to us that Mr. Caffery acted as judiciously and expeditiously as Mr. Coleman could probably have done; had the liquidation been undertaken by him and that no unnecessary expenses were encurred; his charge for service rendered and personal expenses during the liquidation appear to be reasonable.

He, Mr. Caffery, filed in answer to the appeal in which he claims er-ror to his prejudice in the disallowance of interest claimed by him on the money he advanced to the firm at the time it commenced business; but we agree with the district judge that under the partnership agreement, which was the law oí the case; he was not entitled to interest. He cites to us the law C. C. Art. 1928, and C. P. Art. 554; but we think that the allowance of interest would be contrary to the agreement and expectation of the parties at the time the agreement was entered into. The judgment appealed from, is in all respects correct in our opinion; except that the parties should share' equally the cost of the judicial liquidation in the lower court.

It is therefore ordered, adjudged and decreed that the cost of the lower court be shared equally between the plaintiff and defendant;- but that the defendant and appellant pay the cost of his appeal.

The judgment ■ appealed from is in all other respects affirmed.


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    No. -
    First Circuit Appeal
    PHILIP DARCE v. ONE FORD AUTOMOBILE John W. Lunday, Intervenor and Third Opponent.
    (May 5, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Mechanic’s Privileges —Par. 6.
    The lien referred to in Act 82 of 1916, which has reference to liens for repairs done to an automobile by operators of a garage, does not apply where the work was done at the instance of one who had ho authority of the owner to order it Therefore, the prescription of 90 days stated in the acts does not apply.
    2. Louisiana Digest — Mechanic's Privileges Par. 6.
    In this ease an automobile was stolen and repairs were made on it by a garage at the request of the thief. The • garage man cannot recover from the owner for these repairs because he was not employed by the ownervY He has no privilege on the automobile.
    3. Louisiana Digest — Quasi-Contracts—Par. 5.
    Wherever a garage makes repairs to an automobile at the request of the thief of the automobile, he cannot recover from the owner, under a quantum meruit, under Article 2295 of the Civil Code because he has not undertaken to manage the affairs of the owner.
    4. Louisiana Digest — Quasi-Contracts—Par. 5.
    Where a garage made repairs to an automobile at the request of a thief of the automobile, he cannot recover from the owner for a quasi contract under Article 2299 of the Civil Code.
    Appeal from Lafayette Parish, Hon. Wm. Campbell, Judge.
    This is a suit to recover the cost of repairs to an automobile at the request of a thief of -the automobile. The suit was filed against the automobile which was seized and the owner intervened.
    There was judgment denying the privilege of the garage on the ear and rejecting the demand for a personal judgment against the owner.
    Plaintiff appealed.
    Judgment affirmed.
    John L. Kennedy, of Lafayette, attorney for plaintiff, appellant.
    Yoorhies & Labbe, of Lafayette, attorneys for defendant, appellee.
   MOUTON, J.

A Ford auto was placed for repairs in the garage of the plaintiff in the town of Rayne, by a person unknown to plaintiff. Broken parts were supplied to the auto which was damaged, and the repairs were made thereto as had been requested of the plaintiff by this unknown individual. These repairs were made by plaintiff in the month of February, 1924, as appears from the allegations of plaintiff’s petition, and by testimonial proof in the record. Plaintiff proceeded in rem against the auto, praying for the recognition of a privilege thereon for these repairs amounting to the sum of $138.70.

John W. Lunday, a resident of the State if Mississippi, intervened in the case by way of third opposition, alleging that the privilege asserted by plaintiff against the auto was prescribed, also asking to be decreed the owner thereof, and for judgment against plaintiff for $400.00 as rental for the use of the auto.

It is admitted that the intervenor, Lunday, is the owner of the auto. It also clearly appears that the repairs were made by the plaintiff at the request of the unknown person above referred to (who evidently had stolen the car), and that the repairs were made without either the knowledge or consent of intervenor, the owner.

We will first take up the plea of prescription which is grounded on Act 82 of 1916. This statute grants a privilege to owners, operators or other persons operating a garage, for repairs and labor performed on automobiles or other machinery. This statute declares that such a privilege shall not exist for a longer period than ninety days after said repairs are made. The repairs, as before stated, were made in February, 1924, and this suit was filed on the 20th of October, 1924, more than seven months thereafter. If plaintiff was entitled to a privilege on the auto which was the ground work of his original demand, the lien asserted by him thereunder was unquestionably prescribed when he filed his suit.

In the brief of counsel for plaintiff filed in this court and in referring to Act 82 of 1916, he says: “We contend that the provisions of this act were intended to apply to cases of contract between the owner and mechanic, and not in instances where the obligation of the owner to pay for the repairs is based upon a quantum meruit or quasi contract, as in the case under consideration.”

If, as first contended by counsel for plaintiff, the privilege arising under the act applies only to cases where there is a contract between the owner and the mechanic, obviously there never could have been any in the instant case as there was certainly no contract for the repairs between plaintiff, the mechanic, and intervenor, the owner. The privilege, either never existed because of the lack of a contract between plaintiff and intervenor, or if it arose under said statute without such a contract, it had ceased to exist by the lapse of time under its provisions as hereinabove stated. Counsel further contends, as appears from the foregoing excerpt from his brief, that the provisions of that statute were not intended to cover cases where the obligation of the owner to pay for the repairs is “based upon a quantum meruit or quasi contract, as in the case under consideration”. We shall consider the two last propositions in the order presented.

When a person employs another to work for him, without any agreement as to his compensation, the law implies a promise from the employer to the workman that he will pay him for his services, as much as he deserves or merits. When such a relation exists between employer and employee the latter may recover against his employee on a quantum meruit or implied assumpsit for the value of his services. It is beyond question here that Lunday, intervenor, never employed plaintiff to make these repairs, and is therefore- certainly not responsible to him on a quantum meruit. The unknown party referred to is the one who employed plaintiff, and if he be entitled to any right of action for his materials and labor, he should look to that party for re-imbursement.

The next proposition is based on a pretended quasi contract.

Civil Code, Article 2295, says that a party may become liable to another when of his own accord he undertakes to manage the affairs of another, although the owner be ignorant thereof. There is no proof here that plaintiff ever undertook to manage the affairs of intervenor, and hence no such relation existed between these parties that could create a quasi contract between them. Counsel for plaintiff, under- this heading, refers to Article 2299, Civil Code. This article in furtherance of equity, compels the owner, “whose business has been well managed, to comply with the engagements contracted by his manager, in his name ----; and to, reimburse him all useful and necessary expenses”.

It is .evident in the instant case that plaintiff has never managed any business in the name of intervenor, and clearly under the provisions of that article no quasi contract arose between . the parties obliging intervenor to recoup plaintiff for the expenses he mdTy have incurred in repairing the automobile.

Counsel for plaintiff refers to' Holmes vs. Steamer Chieftain, 1 La. Ann. 136, in support of his contention that by coming into court and claiming against plaintiff, rental for his car that intervenor subjected himself to its jurisdiction and could be held to a personal judgment. This position, we. think ■is correct as has been held in several decisions. See Andrews vs. Sheehy, 125 La. 217, 51 South. 122; Damson vs. Frazar, 150 La. 203, 90 South. 570; and, in this case plaintiff was authorized to urge his claim as Lunday, plaintiff i'n third opposition, was a resident of ■ another state, and could not urge that the demand of Darce, plaintiff in the original suit, was 'not necessarily connected with or incidental to the main cause of action. C. P. 375. Darce, plaintiff, was therefore entitled to urge a recognition of a personal claim against intervenor who had thus voluntarily subjected himself to the jurisdiction of the court. All this is very true, but it is equally true —as the right -to a recovery in rem had disappeared from the case — that plaintiff had to show before he could recover that intervenor was bound or was indebted to him under some personal obligation arising under a contract, quasi contract or quantum meruit. He has, however, failed to establish the existence of any such obligation due him by intervenor, and has no right to a personal judgment for the amount claimed.

The lower'court denied the privilege and rejected the demand for a personal judgment. For the foregoing reasons the judgment is affirmed with costs.


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    No. -
    First Circuit Appeal
    STATE EX REL. SAM P. WETHERILL, REGISTRAR OF VOTERS, v. POLICE JURY OF CALCASIEU
    (May 5, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Parishes—Par. 23; Laws — Par. 78, 79.
    Under Section 19 of Act 122 of 1921, as amended by Act 60 of 1922, and Act 213 of 1924, unless the police jury of a parish has agreed to pay one-half the compensation of a deputy registrar of voters, the registrar shall not appoint a deputy, or if he appoints one, the deputy will get no salary. This is the correct construction of this act even' though another provision states that the police jury shall appropriate as one of the expenses of the parish, the compensation of said registrar and deputy registrar.
    Appeal from the Parish of Calcasieu, Hon. Jerry Cline, Judge.
    This is a mandamus to compel the police jury to appropriate in its annual budget, one-half the salary of a deputy registrar of voters in the Parish of Calcasieu.

      There was judgment maintaining an exception .no cause of action.
    Plaintiff appealed.
    Judgment affirmed.
    Griffin T. Hawkins, of Lake Charles, attorney for plaintiff, appellant.
    John J. Robira, of Lake Charles, attorney for defendant, appellee.
   LECHE, J.

This appeal is from a judgment maintaining exception of no cause of action.

Relator sues to compel the police jury of the Parish of Calcasieu, to appropriate in its budget for 1925, the sum of $450.00 to pay one-half of the salary of a deputy registrar of voters for that parish.

Section 19 of Act 122 of 1921, as amended by Act 60 of 1922, was again amended and re-enacted in 1924, by Act 213, page 390, and the pertinent parts of that section, read as follows:

“That the Registrar of Voters of each Parish in this State * * * shall be compensated per annum as follows: * * * Calcasieu: fourteen hundred dollars each. * * * One deputy registrar in each of the following parishes. * * * Calcasieu, nine hundred dollars each. Provided that the registrar of voters in said parishes shall not appoint a deputy registrar, as herein authorized and provided, until the police jury of said parish has agreed to pay its portion of the salary of said deputy registrar. One-half of the compensation to be paid each registrar of voters and dep•uty registrar, as above set out, shall be •paid by the State of Louisiana and one-•half by the parish of the registrar, * * * .”

The police jury of the Parish of Calcasieu has not agreed to pay one-half the compensation of a deputy registrar of voters.

The trial judge’s ruling is based upon • the apparently unambiguous provision of the act that the registrar shall not appoint a deputy until the police jury has agreed to pay its portion ■ of the salary of such deputy.

In this court relator complains that the district court has ignored another provision of the same section of the act, and in the last paragraph thereof, reading: “and it is hereby made the duty of the several police juries throughout the state * * * to appropriate in their annual budgets, as one of the expenses of the parish, the compensation of said registrars and deputy registrars * * * ”. This last provision must logically be construed in connection with the prior one, and such appropriation for compensation of deputy registrars is conditional upon the previous agreement on the part of the police jury, to pay such compensation.

Relator also suggests in argument that the clause, requiring the police jury to agree to pay half of the compensation of deputy registrars, was intended to take care only of that period between the date the act was adopted, and the going into effect of the budget to be adopted by the police jury for the following calendar year. If the law-maker so intended that clause, it should have so declared. We do not believe that the court would be justified in attaching to the statute a stipulation, which it does not contain and which is not necessary for its construction or enforcement.

We believe the judgment appealed from is correct and should be affirmed, and

It is so ordered.


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    No. -
    First Circuit Appeal
    DORZELIN GUILLORY v. ARESTIN M. FONTENOT
    (May 5, 1925, Opinion and Decree.)
    (June 30, 1925, Rehearing Refused.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Assault and Battery Par. 1.
    Where one walks into a shop and deliberately provokes a difficulty with another, striking him on the ear, he is liable for the damage done even though the party whom he struck may have used abusive language.
    2. Louisiana Digest — Appeal—Par. 625.
    The judgment of the district court as to the quantum of damage being clearly correct is affirmed.
    (Civil Code, Art. 2315. Editor’s note.)
    Appeal from Evangeline Parish, Hon. B. H. Pavy, Judge.
    This is a suit for damages due to an assault and battery.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    J. C. Fruge and A. Y. Perry, of Opelousas, attorneys for plaintiff, appellee.
    J. H. Dore, of Ville Platte, attorney for defendant, appellant.
   MOUTON, J.

Plaintiff, on May 24, 1923, had gone to a blacksmith shop to have some repairs made to a piece of machinery, and while there, was assaulted and struck on the ear by the defendant. He brings this suit in damages against • defendant for humiliation, "physical sufferings .and for the impairment of his hearing as the result of the battery. "The district judge rendered judgment in his favor for $250.00. Defendant appeals.

John Brown and Avenant Manuel were present when plaintiff was thus assaulted by defendant. It is well established by these two witnesses and the plaintiff, that defendant came into the shop, and after engaging in a discussion with plaintiff, about some difficulty that he said had occurred some time prior thereto between plaintiff and George, the defendant’s son, and before plaintiff had given any explanation which he offered to do later, was struck by defendant with his closed fist on the ear, as before stated. It is clearly shown that plaintiff had offered no violence whatsoever to defendant,' had not made the slightest attempt to strike defendant or inflict bodily harm on him when the latter committed the battery. On the contrary, it is shown that plaintiff before he was struck, asked that the explanation of the quarrel or trouble in question be postponed to a later date when defendant would not be in such an angry mood. Instead of accepting this postponement for an explanation, defendant struck the blow for which he is . now called to answer in damages. It is certain that defendant at no time was placed in -jeopardy of body' or limb by plaintiff, and that he has no ground to be absolved from liability for the battery on the plea of justification. In his brief counsel for defendant says: “I will only briefly say that words may be so provocative so as to destroy all damages which might result from an assault; it is not in justification but in mitigation, and when so used forms a good defense in a civil action”. This •plea is therefore one in mitigation, and not ■in justification, and rests on the proposition that the words used in this case were in there nature so provocative ' that they can legally support a defense absolving the defendant from responsibility for the injury thus inflicted.

In support of this contention defendant’s counsel refers us to the case of Massett vs. Keff, 116 La. 1107, 41 South. 330, where the court in the syllabus said:

"He who is in fault, and sues for damages resulting therefrom, can not recover for the injuries inflicted, although the perpetrator was not justified in. law in his conduct.”

In the case cited in referring to the plaintiff therein who had suffered the battery, the court said:

“He was therefore the offender and agressor, from the beginning to end.”

The evidence shows in this case that defendant proceeded to the shop where plaintiff was quietly conversing with others, and there accosted plaintiff in reference to some -trouble which he said had occurred between plaintiff and his son, George, and before plaintiff had the opportunity of making an explanation, while in a sitting posture, defendant struck him a vicious blow on the ear: It is evident from the foregoing facts that plaintiff who is suing in damages for the injuries, was not the offender or aggressor as was found in the case above cited. To the contrary, the proof shows that defendant was the agressor and also the perpetrator of the battery. Clearly, the rule of law invoked by defendant cannot afford him any immunity from 'liability for this unjustifiable battery. In the case reported in Levy vs. New Orleans Waterworks Co., 38 La. Ann. 26, referred to by counsel for defendant and cited in 116 La. 1107, the court in commenting upon the facts, took occasion to say that the difficulty never would have occurred if plaintiff had not invited it by sending insulting messages to Folks, the defendant. In this case, it can be stated without hesitancy that if defendant had not gone into that blacksmith shop and provoked a discussion about the quarrel referred to, this trouble would not have occurred. Here, defendant did not only bring on the trouble, but without having been menaced in any manner whatever, inflicted the blow. It is impossible to say in a case of this character that the aggressor and also the perpetrator of the battery should be'absolved on the theory that the plaintiff was at fault. Defendant’s contention is that before he struck plaintiff, the latter told him that the word of his son, George, was not worth that of a negro. These are the provocative words which defendant contends were used by plaintiff, and which he contends, show that he was at fault before the blow was struck, and should entail a rejection of the demand under the rule of law which he claims was enunciated in the case above cited and upon which he relies. John Brown, who says he was near plaintiff when he was struck by defendant, testifies that he could not say that plaintiff had said that he would rather believe a negro than George, defendant’s son. He says, something was said about a “nigger” but. he could not say that plaintiff had used the language to which counsel for defendant refers.

Avenant Manuel, the son-in-law of defendant, also present at-the difficulty, says he did not hear plaintiff use the language in reference ■ to George which defendant would ascribe to plaintiff. Plaintiff’s testimony also negatives the idea that he made any such statement in reference to defendant’s son. The defendant testified that plaintiff said, before he struck him, that he had rather believe a negro than George, his son. His testimony is outweighed . on this point by the testimony of the other witnesses, and if not, leaves this matter much in doubt. As the defendant walked into that shop, deliberately provoked the difficulty, and then, without the slightest attempt having been made by plaintiff to inflict any injury upon his person, struck plaintiff in the manner stated, even if plaintiff did use the language ascribed to him, defendant is not entitled to a dismissal of the demand as contended for by him in this case. He must be held for damages for this unjustifiable battery, thus brought on by his voluntary act.

Plaintiff claims that his hearing was considerably inpaired by this blow which he received on his left ear. The blow drew blood, as the evidence shows, and must have been inflicted with considerable force. It is true plaintiff did not fall from its effects, but this is accounted for by the fact that he was sitting on • or near the door sill when he was • struck. Much testimony was offered by defendant to show that plaintiff had been suffering with this ear trouble at a time prior to the infliction of this injury. Plaintiff denies this positively, and from the character of the evidence offered by defendant oh tbis issue, we believe, that plaintiff has told the truth on this subject. If it be true, however, that plaintiff had been suffering with this trouble at a time prior to the injury, no doubt, the blow on his ear must have aggravated his sufferings, and the impairment of his hearing. Plaintiff was unquestionably humiliated and experienced considerable annoyance and some physical suffering , as a result of this blow, so unjustifiably inflicted. The lower court allowed him $250.00 damages which we do not find excessive.

Judgment affirmed.