author: HIGGINS, J.

text:
    No. 11,659
    Orleans
    PERRY & BUCKLEY CO. v. EASTMAN CO., INC.
    (February 17, 1930. Opinion and Decree.)
    Charles J. Denechaud and Ernest J. Robin, of New Orleans, attorneys for plaintiff, appellee.
    Lemle, Moreno & Lemle, of New Orleans, attorneys for defendant, appellant.
   HIGGINS, J.

This is a suit on a quantum meruit for the sum of $485.08, alleged to be due under a verbal contract for certain printing work. Defendant admitted owing three items of $43.05 which were deposited in the registry of the court, but contested the balance of the claim on the ground that certain charges were exorbitant and exceeded a fair and reasonable charge for the work and that the plaintiff was not entitled to charge 10 per cent commission on other items.

There was judgment in favor of plaintiff for the full amount and the defendant has appealed.

The record shows that the plaintiff has been in business in this city for about twenty-three years and that the defendant has patronized the plaintiff for a period of about twenty years. The defendant desired to have certain printing work done and by a verbal contract, engaged plaintiff without agreeing upon any price for the work. The plaintiff charged $53.20 for printing 250 typewriter letterheads and $187.75 for printing one thousand circulars.

Defendant admitted that plaintiff performed the work but proved by the representatives of three other reputable printing houses that these contested items could be done for very much less than the plaintiff charged. From this evidence it is conclusive that1 the charge made by the plaintiff for these two items is excessive. We have concluded that a fair charge would be $32.50 for the letterheads and $90 for the circulars.

The other item contested, by defendant was a charge of 10 per cent commission for placing with the Grelle-Egerton Engraving Company the creation and making of colored plates. The evidence shows that the plaintiff was not engaged in the business of making colored plates required by defendant in the printing job, which was let to the plaintiff. Plaintiff had this work done by the Grelle-Egerton Engraving Company, who charged the plaintiff the same amount that it would have charged the defendant had the work been done directly for the defendant. The evidence convinces us that it would have been a simple matter for the defendant to have had Grelle-Egerton Company make these plates for it without the assistance of the plaintiff. The record fails to convince ns that the plaintiff rendered any necessary service in connection with these plates. Plaintiff did not prove that it was customary in matters of this kind to receive a 10 per cent commission for letting the making of the plates to Grelle-Egerton Company and as there was no agreement to pay plaintiff such a commission we are of. the opinion that the charge of K) per cent commission should be rejected.

We find the plaintiff is entitled to recover $43.05 admitted to be due by the defendant, $32.50 for letterheads, $90 for circulars and $156.65 paid to Grelle-Egerton Company for the plates, or a total of $322.20.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be and it is amended so as to reduce the amount allowed plaintiff to $322.20 with legal interest from judicial demand until paid and as thus amended, affirmed.


source: Caselaw Access Project

author: JANVIER, J.

license: Public Domain

text:
    No. 13,095
    Orleans
    B. ROSENBERG & SON v. BASSO
    (February 17, 1930. Opinion and Decree.)
    Dufour, Rosen & Hammer, of New Orleans, attorneys for plaintiff, appellant.

      Juluis Howard Wiener and Sidney G. Roos, of New Orleans, attorneys for defendant, appellee.
   JANVIER, J.

In the original petition plaintiff claimed an open account balance of $242.75. By supplemental petition an additional sum of $35.35 was claimed as the interest due at the time of the filing of the suit.

The record shows no serious contention that the two amounts mentioned, which total $278.10, were not originally due, but defendant claims that he should have been given credit for two amounts: $40 paid after the suit was filed and $76.67 paid on January 11, 1928, for which he claims no credit was given.

It is admitted by plaintiff that' the $40 payment was made after the suit was filed and that, therefore, the claim should be reduced by this amount, or to $238.10.

We find no evidence to controvert the fact that the merchandise claimed to have been sold was actually delivered and, as we view the record, the only question now before us is whether or not credit was given for the sum of $76.67, which, admittedly, was paid on January 11, 1928.

Defendant had been purchasing goods from plaintiff for several years. The open account sued on covers the period from April 1, 1927, to December 31, 1927. It will therefore be noted that the $76.67 item in dispute was paid after the termination of the period mentioned and, in the usual method of accounting, should have been credited against the purchases theretofore made. At first glance it would, therefore, appear that defendant is correct in his contention that credit has not been given for this payment.

But, says plaintiff, when the payment of $76.67 was made on January 11, 1928, it was found that this amount would balance the account up to April 1, 1927, except for a few invoices which defendant was investigating, and that, therefore, this payment was used to offset the old debits and the account was balanced as of April 1, 1927, except for the few invoices mentioned. On April 1, 1927, a new account was commenced.

That this was in fact what occurred is made very plain by the evidence and by the complete statement of account covering the many years the parties had been doing business.

The defense is based solely on the fact that the payment in question was not shown on the credit side of the statement covering the period April 1 to December 31, 1927, nor on two statements covering specific intervening periods.

Defendant offers no other proof and the mere omission of an item from a statement cannot itself overcome ’ the overwhelming proof that the credit was actually given. The fact is that, if defendant insists on a statement showing the credit, to offset it, the account commencing April 1, 1927, would show an additional debit of $76.67, so that the final result would be the same.

It therefore follows that the trial court was in error in allowing credit for the $76.67, which credit had in fact already been allowed, and in refusing to allow the interest claimed by plaintiff.

It is therefore ordered, adjudged and decreed that the judgment appealed from be and it is smended by increasing the amount thereof to $238.10, with legal interest from judicial demand. All costs to bo .paid by defendant.


text:
    No. 11,654
    Orleans
    YUSPEH v. MIKE MITCHELL & SONS
    (February 17, 1930. Opinion and Decree.)
    Cahn & Cahn and Wm. Conkerton, of New Orleans, attorneys for plaintiff, appellant.
    Henry & Cooper and A. M. Suthon, of New Orleans, attorneys for defendants, appellees.
   JANVIER, J.

Plaintiff received severe injuries as the result of a fall sustained a' few moments after alighting from a street car, and he claims that the fall was caused by his stepping on a stone which he alleges was left in the pathway by employees of defendant, apparently as a stepping stone.

At the' time of the accident considerable street repair and construction work was in progress at the intersection of Almonaster (Lafayette) avenue and North Villere street, and it is alleged in the petition and admitted in the answer that defendants were the contractors who were engaged in “installing sub-surface drains, concrete curbs, gutter bottoms, etc.”

Yuspeh, with his infant child in his arms, had alighted just before dark on the temporary shell or gravel walkway constructed by the street railway company, and he was attempting to cross from the alighting place to the uptown river corner of the intersection.

He claims that the street and sidewalk were both so badly torn up in the process of repair and reconstruction that there was no permanent walkway, and that ne was following the path which, apparently, was in general use, and that, when he reached the point where he claims to have fallen, he noticed a large paving stone in the middle of the path, which, on account of the mud and debris, he thought, had been intentionally placed there as a stepping stone. He alleges that, when he stepped on the stone, it turned under him, and he was thrown violently to the ground.

Defendants contend: That there was no such stone in the pathway; that Yuspeh fell because he was trying to take a short cut across rocks and debris, instead of following the slightly longer hut safe and beaten path, and, in the alternative, that, if there was a stone in the pathway, there is nothing in the evidence to show that the defendants are responsible therefor, particularly in view of the fact that several other contractors were also at work at that point. It is argued that defendants were under no duty to keep clear the pathway any more than were any of the other contractors.

Plaintiff’s counsel cites several most interesting cases, in which it was held that a pedestrian on . sidewalk may assume that there is no dangerous obstruction or pitfall in his path, and need not be constantly on the lookout for such obstructions or pitfalls. We concede the soundness of that principle of law, but doubt its applicability to a situation such as existed at the corner in question.

In the natural progress of municipalities it is often necessary that street repairs and improvements be made, and, while such works are under way, it is manifestly impossible for the streets and sidewalks to be maintained in the same safe condition in which they normally should be. When it is obvious that the streets or the sidewalks are undergoing -repairs, the traveler thereon may not assume that they are as safe as they should be ordinarily. On the contrary, he must exercise such care as is apparently required by the abnormal conditions. See Beach on Contributory Negligence (3d Ed.) par. 249, where it is said:

“While contributory negligence is not to be presumed from knowledge of the existence of a defect in a sidewalk, such knowledge enjoins upon the party possessing it, a degree of care commensurate therewith. The law imposes upon him the duty of ordinary care. And in proportion as the risk of injury increases, must his care and diligence to avoid injury be increased. It is, therefore, held that a traveler is bound to exercise greater care and attention in passing over a highway while it is undergoing repairs, by which it is partly obstructed, than he would be required to exercise under ordinary circumstances.”

But, whatever may be the legal duty of pedestrians under such circumstances as we have described, plaintiff’s difficulty here results, not from any misunderstanding of the law applicable, but from an ab-i sence of evidence sufficient to prove there was such a rock as he claims, or that defendants are responsible, even if there was one.

Considerable doubt is thrown on the question' of whether plaintiff actually stepped upon the rock which he describes by the fact that he himself was at first doubtful as to just how the accident occurred. This is evidenced by the action of his counsel, who, having obtained information from plaintiff himself, was apparently of the opinion that the fall had taken place immediately upon alighting from the street car. In addition to the action of his counsel indicating that, in the mind of plaintiff himself, his fall so closely followed the alighting from the street car that the street car company was liable, we find in the testimony of Whit-taker, an adjuster for the street car company and which company had no interest whatever in the case, that Yuspeh, after the accident, had stated to him that “he stepped from the platform to the step, put one foot to the ground and his weight went on that foot and it turned on some loose pebble or debris, and he fell off of the step of the car.”

This statement is not consistent with his testimony that he had walked some distance alongside the street car and had turned into the pathway, and then walked a few steps before he stepped upon the stone which he now charges was in his path.

None of Yuspeh’s witnesses saw him fall, nor did they see the rock he claims to have stepped on. It is true that Vaselich, Liendecker, and Dupre all describe the generally bad condition of the street, but none of them denies that there was a safe walkway Yuspeh could have used.

The other witnesses state that there was no such stone as Yuspeh describes and, in view of the fact that we are convinced from the evidence that plaintiff-fell not where he says he did, hut some distance nearer the street car, it appears that the cause of the fall was his carelessness in trying to negotiate a short cut across debris, instead of following the beaten path. This path, although not paved with asphalt or bricks, or anything of that kind, was nevertheless entirely safe and adequate.

Even if we are wrong in this finding of fact, and even if it be true that Yuspeh fell just as and where he claims, we find nothing whatever in the record to connect the defendants with the accident. Several other contractors were at work at that same corner, and we know of no reason, either from the record or otherwise, for placing the responsibility, if there was fault on the part of anyone, on the drainage contractors, where so many other contractors, including those doing the paving, might just as well have been the ones who either placed the stone there or allowed it to remain there. The questions involved are solely of fact, and the record falls far short of convincing us that the district court was manifestly in error in finding for the defendant.

The judgment appealed from is affirmed.


text:
    No. 13,205
    Orleans
    HOLMES ET AL. v. WARREN
    (February 17, 1930. Opinion and Decree.)

      Woodville & Woodville, of New Orleans, attorneys for plaintiffs, appellants.
    John Armstrong, of New Orleans, attorney for defendant, appellee.
   JANVIER, J.

This suit grows out of an alleged attack made by a golf player upon one of the caddies employed by another player engaged in the same contest. It appears that the defendant, in the course of his game, shot a golf ball which the caddy told him had gone out of bounds, but which, in fact, had not done so, and that the defendant became so enraged with the caddy that he struck him with one of the iron golf clubs. The defendant claims that he was justified in striking the caddy, because the caddy “required disciplining." The record does not show that the caddy had done or said anything sufficiently improper to provoke even the most ungovernable temper, and, in fact, we know of no words which would justify an assault upon a defenseless negro. Fortunately, the injuries were very slight and consisted solely of a slight bruise on the boy’s chest, which required him to be treated by a physician some three or four times.

It is contended by defendant’s counsel that the doctrine “de minimus non curat lex” is applicable here. We do not think so. It is true, as we have said, that the injuries were very slight, but, nevertheless, they are sufficient to entitle the injured party to recover. Defendant’s counsel further contends that the redress for an attack of this kind should be obtained in the criminal courts. Here, again, we differ with counsel. It is quite true that criminal proceedings might have been brought, but that fact in no way interferes with the right to recover in a civil proceeding. Fortunately, as has been said, the injuries were slight. We think $50 sufficient to compensate the boy for his inconvenience and suffering and possible loss of earning capacity for a few days.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be, and it is, annulled, avoided, and reversed, and that there now be judgment in favor of plaintiffs, Gus Holmes and Beatrice Grady, wife of Gus Holmes, for the use and benefit of the minor, William Holmes, and against defendant, James W. Warren, in the sum of $50, with interest from judicial demand, and for all costs.


author: MOUTON, J.

text:
    No. 561
    First Circuit
    SHAW v. MARCEAUX
    (December 30, 1929. Opinion and Decree.)
    Medlenka, Bruñe & Chambers, of Crowley, attorneys for plaintiff, appellant.
    Nugier & Gordy, and J. I. Boudreaux, of Abbeville, attorneys for defendant, appellee.
   MOUTON, J.

This suit was instituted by Howard Shaw as the holder for valuable consideration of a promissory note for $1,600 assigned to him by the P. B. Collins Investment Company, which note is secured by a special mortgage on a tract of land situated in Vermilion parish, given by Aymar Marceaux, Jr., one of the defendants herein.

Plaintiff alleges that, under a writ issued in the case of the People’s Bank & Trust Company, the land subject to his mortgage was on July al, 1922, pretendedly adjudicated at sheriff’s sale, to John Nugier of Vermilion parish. He further avers that the sale was made for $3,000; that, according to the recital of the sheriff’s deed, he retained in his hands $89 for costs; and that $2,911, the remainder of the bid, was “attributed to the payment of certain special mortgages upon said property in favor of said P. B. Collins Investment Company.” With reservation of his rights to attack the sale for nullity should he fail in this action, and to sue the sureties on the bond of Adam Boudreaux, sheriff at the time of the adjudication, plaintiff asks for judgment in solido against Aymar Marceaux, Jr., defendant, John Nugier, and Adam Boudreaux, for $1,600 with interest and attorney’s fees, with recognition of his special mortgage on the property adjudicated, for its seizure and sale, and that he be paid by preference over its proceeds.

Howard Shaw having died since the suit was brought, the Northern Trust Company of Chicago, executor, was substituted as plaintiff.

Adam Boudreaux, sheriff at the time of the adjudication, admits the sale in the case of the People’s Bank & Trust Company; also that the price of the .adjudication was for $3,000, but which he alleges he never received. He avers that he got only the sum of $89 for costs, and denies all the other allegations of plaintiff’s petition.

Aymar Marceaux, Jr., has passed out of the case, leaving John Nugier as the other defendant.

In the answer filed by John Nugier it is admitted that the mortgage was given by Aymar Marceaux, Jr., on the property in question, and that the mortgage was assigned to plaintiff. Nugier specially pleads that the property mortgaged was bid in by him for the People’s Bank & Trust Company in the name of F. J. Montagne, and not “by F. J. Montagne on behalf of John Nugier,” as appears in the proces verbal of the sheriff’s sale. In connection with the foregoing averments, Nugier alleges that the adjudication was to the bank, which, doubting its validity, never took possession of the land, nor ever made itself responsible for any prior mortgages, but, as a matter of fact, abandoned the property. He also alleges that he never took possession thereof, nor ever assumed or made himself responsible for the prior mortgages on the property. He denies any liability to plaintiff for the amount sued upon or any part- of it, and denies the other allegations of the petition.

Judgment was rendered below rejecting the demand, from which plaintiff appeals.

Exceptions of no cause of action were filed by Adam Boudreaux and John Nugier, which were referred by the court to the merits. We find it unnecessary to pass on the exceptions, as they are effectually disposed of by our judgment on the merits.

Article 684, C. P., in referring to adjudications in execution of judgments where the bid is insufficient, says: If the price offered by the highest bidder is not sufficient to discharge the privileges and mortgages existing on the property, that have a preference over the judgment creditor, “there sh^ll be no adjudication, and the sheriff shall proceed to seize other property of the debtor, if there be any.”

The adjudication of the property in question was obtained by the People’s Bank & Trust Company, the judgment creditor of Aymar Marceaux, Jr., as hereinabove stated. Marceaux had given his promissory note for $1,600, with a special mortgage on the property to secure its payment; also several prior special mortgages on the property as appears by the certificate of the clerk to the sheriff for the sale; and in all exceeding the sum of $6,000. These mortgages had a preference over the bank, judgment creditor of Marceaux. The highest bid offered for the property at the sheriff’s sale was the sum of $3,000, for which it was adjudicated, apparently to John Nugier, according to the recitals of the proces verbal of the sale. It is evident that this sum was insufficient to discharge the special mortgages that had a preference over the judgment of the bank. In such a case under the specific provisions of article .684, C. P., “there should be no adjudication.” This article of the Code has been construed in many decisions, dating from our earliest authorities.

In the case of Trudeau vs. McVicar, 1 La. Ann. 426, the property was adjudicated to Trudeau, plaintiff, through his agent, Edwards, for $500 for a price insufficient to discharge the special mortgages that existed on the property, and which had a preference over the claim of the judgment creditor. In that case Trudeau, purchaser, having been placed in actual possession of the property, it was contended he could not withhold the price. The court held that its delivery had been made in virtue of an adjudication expressly prohibited by law, consequently null, and that the possession, not having a title to support it, could not have been maintained, citing a previous decision in support of its conclusions. It was held that a bond which Trudeau had given for a part of the price was without consideration, and was therefore not due by him.

In Pasley vs. McConnell, 38 La. Ann. 470, the court said that there was no better settled rule that, unless the price of adjudication exceeded the privileges and special mortgages, there could be no sale, affirming the case of Trudeau vs. McVicar, 1 La. Ann. 426, above cited, and subsequent decisions on this subject.

In De Armas vs. Morgan, Martin Reports (N. S.) vol. 3, p. 606, body of decision, Judge Martin, organ of the court, says:

“Whether we consider the plaintiff in the fieri facias, or the sheriff as the vendor, there was no price received or to be received by either. The mortgage creditor cannot he considered as the vendor, nor the sheriff as his agent, etc.”

The court held that, as there was no price which is the essence of a sale, there was no adjudication.

In the decisions to which we have referred, it was unquestionably decided that, when the price offered was insufficient to pay the special mortgages that had a preference over the judgment creditor, there could be no sale, and that an adjudication made under such circumstances was an absolute nullity.

In Walmsley vs. Theus, 107 La. 417, 31 So. 869, Judge Breaux, on rehearing, after referring to the vigorous opinion by Judge Martin in third N. S., above cited, concludes, after citing other cases, that the .nullity resulting in such cases from the inadequacy of the price to discharge the special mortgages is relative, and not absolute, and cannot be pronounced unless all the parties in interest are before the court “in the issue of nullity.” It would seem from these latter expressions of the Supreme Court through Mr. Justice Breaux that the nullity complained of here is not absolute, and, as there is no direct issue in nullity with all the parties in interest, this court cannot under a collateral attack hold that the adjudication was null.

Mr. John Nugier was the attorney of the People’s Bank & Trust Company, and was representing it at the sheriff’s sale at which the property was adjudicated. His testimony is that he did not buy the property for himself; that, as he doubted the validity of the sale, he put in a bid in behalf of F. J. Montagne for the benefit of the bank, and not for John Nugier, as it is recited in the deed. He says he rested the title in Montagne’s name, as he thought at the time of the sale he could better defend the title;' Montagne being a third party. A couple of days thereafter, after looking into the question, he decided that Marceaux’s wife could annul the sale, the title was therefore refused, and he considered that the sale was abandoned. He says the bank paid the costs only, and that he had no knowledge the title had been recorded in his name until this suit was filed. It seems that the interest on the mortgage notes of the plaintiff was paid by some one a year or two after the property had been adjudicated. Upon being questioned on the subject, Nugier testified he did not know who had made these payments, and no proof was introduced by plaintiff in. reference to the party from whom this interest had been received. On this point, therefore, the record gives no information.

Counsel for plaintiff say that there is no doubt that Mr. Nugier bought the property for himself at the sheriff’s sale, although in their brief they say they do not question his integrity. Though so expressing themselves in reference to Mr. Nugier’s character, they claim his testimony is unsupported, notwithstanding the fact that both Sheriff Boudreaux and F. J. Montagne were present in court during the trial, and could have been called upon by him to testify in the case. His failure to call these gentlemen to the witness stand, counsel contend, shows that they would not have corroborated his statement in respect to the adjudication.

Counsel, in support of this contention, refer us to Nunez vs. Bayhi, 52 La. Ann. 1719, 28 So. 349, which holds that, when a doubt is thrown on the reality of a transaction, the burden of proof is shifted to those who know the truth, and, when they fail to furnish information within their knowledge, the presumption of law is against them. They refer also to State vs. Brown, 35 La. Ann. 1057; Pruyn vs. Young, sheriff, et al., 51 La. Ann. 320, 25 So. 125.

Mr. Nugier testified fully on every phase of the issue presented in the case. He is an attorney at the Abbeville bar, where he has been practicing for many years, and is well known to the district judge who presided at the trial. Counsel for plaintiff in their brief testify to the character of Mr. Nugier for integrity. Such being the situation presented by the record, we think the court was authorized to accept the explanation of the transaction which was fully given by Mr. Nugier, and that there is no ground for a reversal because Ex-Sheriff Boudreaux and Mr. Montagne were not called by Mr. Nugier to corroborate his evidence, which shows he was not the purchaser of the property, but that the bank was, but refused the title and abandoned the sale. Nugier was therefore not bound by the adjudication which was pretendedly made to him as alleged by plaintiff, and is not liable to plaintiff for the amount claimed by virtue of his mortgage note.

And, as the proof is that Ex-Sheriff Boudreaux received only the costs, and never got the price for the sale, no liability attaches to him for the amount claimed which was correctly rejected, with reservation of such rights as plaintiff may have to attack the sale for nullity and to sue the sureties on the bond of Ex-Sheriff Boudreaux.


author: WESTERFIELD, J.

text:
    No. 11,434
    Orleans
    MOORE v. JEFFERSON DISTILLING & DENATURING CO.
    (May 27, 1929. Opinion and Decree.)
    (October 21, 1929. Rehearing Refused.)
    (December 3, 1929. Writ of Certiorari and Review Granted by Supreme Court.)
    (February 3, 1930. Opinion and Decree by Supreme Court.)

      Denegre, Leovy & Chaffe and N. P. Phillips, of New Orleans,attorneys for plaintiff, appellant.
    Milling, Godehaux, Saal & Milling, of New Orleans, attorneys for defendant, appellee.
   WESTERFIELD, J.

This suit is brought by Mrs. May B. Moore, as tutrix on behalf of her minor child, Olive May Moore, for damages for the alleged negligent killing of Lucas E. Moore, the late father of the minor and husband of the plaintiff.

Prom a judgment in favor of defendant, plaintiff has appealed.

The accident occurred on the morning of February 3, 1925, in the yards of the Lucas E. Moore Stave Company, Southport, Jefferson Parish, Louisiana, and was caused by the explosion of a steel drum.

The defendant, Jefferson Distilling and Denaturing Company, sold to a party by the name of Edwin J. Putzell, five hundred unused steel drums. Putzell, before accepting delivery, concluded a sale of the drums to the Marlin Oil Company. The Marlin Oil Company employed Lucas E. Moore Stave Company, of which corporation, the deceased, Lucas E. Moore, was Vice-President, for the purpose of having the drums filled with gasoline and shipped in accordance with its instructions. The Lucas E. Moore Stave Company engaged an expert inspector of petroleum containers, who, with Mr. Putzell, went to the plant of the Jefferson Distilling and Denaturing Company where the drums which were pointed out to them by representatives of the defendant, were inspected and found to be as represented. That is to say, unused. The drums were shipped to the plant of the Lucas E. Moore Stave Co :n_ pany at Southport. When they were being unloaded a sound was heard, as if caused by some gritty substance in the drums. An employee of the Moore Stave Company concluded that the drums had been used and called Mr. Moore’s attention to the fact. Mr. Moore then called Mr. Putzell on the phone and Mr. Putzell came to the Moore plant.

In the meantime one of the drums had been opened and it was found to contain a dark, gritty deposit, which, when mixed with gasoline in a test tube, colored the gasoline. Mr. Putzell was advised that the presence of this deposit made the drums unfit as a receptacle for gasoline, because all gasoline is sold as water white in color. Mr. Putzell, believing that some of the drums had been mixed in shipping, examined a number of others and finally, came to one drum, which he insisted was free from any deposit and had not been used. This drum was brought out from the others, and the bung removed, causing a gaseous vapor to escape. Mr. Moore put his nose to the bung hole as did Mr. Putzell and both looked into the drum. Mr. Moore insisted that he could see a dark substance in the bilge of the drum and Mr. Putzell disagreed with him. "Whereupon an employee, who was present, was sent to get an electric torch for the purpose of illumining the interior of the drum. Before the electric torch could be obtained Mr. Putzell suddenly drew a package of paper matches from his ¡Pocket, lighted one of them and applied it to the bung hole. A loud explosion was heard and the head of the drum nearest Mr. Moore blew out, striking him with great violence and severely injuring him. He was taken to the Touro Infirmary where he died the next day.

A sample of the deposit in the drums was subsequently taken to a chemist, analyzed and found to be a composite of rust and alcohol residuum.

The defendant is said to have been negligent in that the drums shipped to and delivered to the Moore Plant were not the drums which had been inspected in the warehouse of defendant, but were drums which had been theretofore used as containers for alcohol, which as a result of such use, contained .dangerous explosive gases; that defendant shipped into commerce the said drums containing the explosive gases without ¡properly marking or labeling them so as to give warning of the danger involved in handling.

Defendant, in its answer, denied that the drums shipped to the Moore Plant had, as a matter of fact, ever been used before and asserted that they were the same drums which had been inspected at its plant in Harvey, Louisiana. In answering further it averred that the Jefferson Distilling and Denaturing Company had no contractual relations with the decedent, or the corporation by which he was employed; that even if defendant was negligent in shipping used, instead of unused drums, its negligence was not the proximate cause of the accident which was due to the negligence of Putzell, an intervening cause, which had destroyed the causal connection between defendant’s negligent act and the injury to deceased; that deceased was guilty of contributory negligence.

We are satisfied from the evidence that the drums shipped to the Moore Company were not the drums which had been inspected in defendant’s warehouse in Harvey, Louisiana, but were used drums. How this substitution occurred is not explained but the fact that the drums shipped were not the same, and were not the kind of drums which had been sold is very evident. To ship drums containing explosive and inflammatory gases in place of new or unused drums, whether done, as suggested by counsel for plaintiff, deliberately, or as seems to us more ¡probable, inadvertently, was an act of negligence, for the reasonably expected consequences of which defendant is liable to third persons.

As stated in Cooley on Torts, Third Edition, Page 1486:

“The general rule is that a contractor, manufacturer, vendor or furnisher of an article is not liable to third parties who have no contractual relations with him for negligence in the construction, manufacture, or sale of such article.”

This rule admits of exception:

“To the general rule there are various exceptions. One is that a person who deals with, an imminently dangerous article owes a public duty to all to whom it may come, to exercise care in proportion to the peril involved.”

“Another exception is that a person who knowingly sells or furnishes an article which by reason of defective construction or otherwise is imminently dangerous to life or property, without notice or warning of the defect or danger, is liable to third parties who suffer therefrom.” Ibid. 1488-89.

The leading English authority supporting this rule is Winterbottom v. Wright, 10 Meeson & Welsby, 109, was a case in which the driver of a stage coach, who was injured by the collapse of the coach,' brought suit against a contractor who had undertaken by agreement with the postmaster-general to keep the vehicle in repair for the purpose of transporting royal mail over the post road. The plaintift was denied recovery on the 'ground that there was no privity of contract between the parties, Lord Abinger, the Chief Baron, saying:

“If the plaintiff can sue, every passenger or even any person passing along the road, who was injured by the upsetting of the coach, might bring a similar action. Unless we confine the operation of such contracts as this to the parties who enter into them, the most absurd and outrageous consequences, to which I can see no limit, would ensue.”

In a very interesting and able opinion by Justice Cordoza, of the Court of Appeals, of New York, in the case of MacPherson v. Buick Motor Car Company, it was held that a manufacturer of an automobile was liable for injuries sustained by one who had purchased the automobile, from a dealer due to the collapse of the automobile on account of a defective wheel, although the wheel which caused the accident was not manufactured by the defendant, but bought from another manufacturer. The Court found that there was evidence that the defect in the wheel, “could have been discovered by reasonable inspection, and that inspection was omitted.” In the course of the opinion Justice Cordoza reviews numerous cases and remarks that the earlier cases dealing with the responsibility of the manufacturer and vendor to persons not in privity with him gave the rule a narrow construction, and that the later cases evinced a more liberal spirit. He cited Devlin v. Smith, 89 N. Y., 470, as illustrative of the modern tendency. In that case a contractor who built a scaffold for a painter was held liable for injuries to the painter’s employes, due to the defective construction of the scaffold. The opinion also cites the case of Statler v. Ray Manufacturing Co., 195 N. Y. 478, 480, where the manufacturer of a coffee urn was held liable to third persons, injured as a result of the explosion of the urn when heated, because the urn “was of such a character inherently that, when applied to the purposes for which it was designed, it was liable to become a source of great danger to many people if not carefully and properly constructed.”

See also Huset v. Case Threshing Machine Co., 120 Fed. 865; Mazetti v. Armour & Co., (Wash.) 135 Pac. 633.

In Buswell’s Work, “The Civil Liability for Personal Injuries Arising out of Negligence, (1893),” the author states the rule to be as follows:

“It is a general rule that a person injured by the fault of another, without which fault the injury could not have occurred, is not to be deprived of. his remedy because the fault of a stranger, not in privity with him, also contributed to the injury. For the original negligence still remains _ as a culpable and direct cause of the injury and the intervening events and agencies which may contribute to it are not to be regarded.”

In Eaton v. Boston & Lowell Railroad Company, 11th Allen Reports (Mass.), the court in referring to the defense of intervening cause in a case where a passenger sued in tort for injuries caused by the collision of two trains operated by different railroad companies, after referring to the fact that plaintiff’s right of action might have been more manifest if the suit had been brought upon the contract of carriage, said:

“Even if no privity of contract existed and the injury was the result of the joint act of the defendants, the owner of a load of hay (a wagon loaded with hay was stalled on the track and caused the collision) and the Eastern Railroad Company, it would furnish no defense to this action, for in actions of this description, non-joinder of defendants cannot be availed of in bar. And this is true, although the party contributing by his negligence was acting without concert with and entirely independently of the defendants.”

In Ruling Case Law, Volume 22, Page 165, it is held that the owner of inherent-, ly dangerous commodities, like dynamite and nitroglycerine, is bound to exercise the highest degree of care to prevent injury to the public by explosion. The following illustration is given:

“If, for instance, a railroad company leaves a car of dynamite within a City and at a place prohibited by law, and by the explosion of the car, injury is occasioned, causation is not arrested and the railroad company relieved from liability whether the explosion was occasioned by lightning or by fire, or as has been said obiter, by the act of some wrongdoer making a target of the car for rifle practice.”

In Corpus Juris, Volume 45, Page 924, Par. 487, we read:

“Where several causes producing an injury are concurrent and each is an efficient cause without which the injury would not have happened, the injury may be attributed to all or any one of the causes, and recovery may be had against either or all of the responsible ¡persons, although one of them was more culpable, and the duty owed by them to the injured person was not the same. Where the injury results from two or more causes, for all of which defendant is liable, it is immaterial which was the proximate cause.”

In Sandel v. State (South Carolina, 115 S. C. 117), 104 S. E. Rep., 569, 13 A. L. R. 1268 it was held;

“The difference between intervening and concurring causes appears to have been overlooked. In operation an intervening cause succeeds or follows that which, for convenience, is called the primary cause, though, as we have seen, it is only the remote cause; but concurring causes operate contemporaneously to produce the injury, so that it would not have happened in the absence of either. If, by the exercise of reasonable foresight and diligence, a concurring cause should have been foreseen and foreguarded, of course liability for it attaches. But the mere fact that one of several concurring causes may not have been reasonably anticipated is not enough to shield from liability him who sets in motion the other: for it is well settled that the negligence complained of need not be the sole cause of the injury. It is enough to show that it is a proximate concurring cause; that is, one that was so efficient is causation that, but tor it, the injury would not have occurred. 22 R. C. L. 128.”

Mr. Putzell, who had been summoned by defendant, was absent and did not testify, but we find an admission in the record that he would have testified if put upon the stand that “he examined the barrel in question, and, that there was no reason insofar as he could tell from his examination, that it was not perfectly safe to apply the match.” Withot.i this admission, since there is no indication that Mr. Putzell is other than a normal individual, the natural inference would be that he believed his act in applying the match to be perfectly safe. His frame of mind, however, and his belief as to the safety of his act it not the important circumstance. The question is whether he was justified in his attitude, by considerations, which usually determine the action of ordinary individuals exercising ordinary care.

It is said that the fact that a hissing sound was heard and a vapor was seen to arise from the bung hole when' the bung was removed, was sufficient to have warned Putzell of the probable consequence of applying a lighted match, and, that his disregard of such warning was such, gross negligence, as to be alone responsible for the result. It must be remembered, however, that Putzell had bought unused drums, which it is apparent would not explode if a lighted match was applied to the bung hole. More than this, he was present at the plant of defendant when the drums he bought were inspected by an expert and found to be unused and harmless. In determining the character of his act it must be borne in mind that the assurance of defendant coupled with the fact that he had witnessed the examination of the drums, tend to disarm Putzell by causing him to relax such caution as he might otherwise have exercised. His conduct, the day of the accident, indicates that he was thoroughly convinced that the right drums had been shipped and that not even the discovery of sediment in one or two of the drums could remove that impression. If Putzell had been injured by the explosion of the drum, it can hardly be doubted, that he could recover against the present defendant, in the face of a plea of contributory negligence. “A person may rely upon assurances or representations of safety made to him by others, where, under the same or similar circumstances, an ordinarily prudent man would do so.” G. J. Yerbo Negligence, Vol. 45, Page 956. Besides, escaping air could cause a similar sound.

Putzell’s act, in striking the match, was without any knowledge of the danger involved and, therefore, not sufficient to break the causal relation between the negligence of the defendant and the injury of decedent. 45 C. J. 931.

In Cooley on Torts, page 119, we read:

“That if a damage has resulted directly from concurrent wrongful acts or negligence of two persons, each of these acts may be counted on as the wrongful cause, and the parties are responsible either jointly or severally for the injury. It is well settled by adjudged cases, that when an injury is a result of the combined negligence of the defendant and the negligent or wrongful act of the third person for whose act neither the plaintiff nor the defendant is liable, the defendant is liable, when the injury would not have happened without his negligence.”

As heretofore observed, where the act of a third person, combined with the original negligent action, caused the injury and the result might reasonably have been anticipated by the first offender, his negligent act is the proximate cause. The fact that one cause may be nearer in time, as, for instance in this case, the application of the match to the bung hole, does not relieve the party guilty of the primary negligence. The intervening cause must be such as to actually supersede the operation of defendant’s negligence so that the intervention alone produces the injury.

“An intervening agency in order to supersede the original negligence of defendant as the sole legal cause, must be independent of the latter, and not set in motion thereby, and itself sufficient to produce the injury. Hines vs. Sweeny, 201 P. 164, 28 Wyo. 57.” 3rd Decennial Digest, Vol. 21, Verbo Negligence, p. 62.

In Lee vs. Powell Bros. and Sanders, 126 La. 51, 52 Sou. P. 214, it was held:

“The claim of causation by which responsibility is to be fastened upon the defendant company need not be followed beyond the negligence of leaving it in a condition in which it might move at any time from a thousand accidental causes, or perhaps of its own weight, so that its movement might be expected at any moment. So much so, indeed, tha,t we dare say not one of the workmen knowing it to be in that condition would have been willing to venture to stand upon the track, but would have considered that • it was as much as his life was worth to do so. One who creates a danger which thus, as it were, hangs by a thread, and may at any time fall, which is bound sooner or later to fall, is responsible for the consequences of its fall. The efficient or juridical cause of the injury in such a case is the creation of this danger.

“For severing the legal connection between the negligence by which such an imminent danger was created and the injury that has resulted from it the intervening voluntary act of some person responsible for his acts would have to be shown. For instance, in the present case, that some one of the workmen, noticing that the lever was unlocked, or insecurely locked, had maliciously pushed it. Nothing of that kind is shown, or even suggested. The mere unintentional or accidental act of a third person would not suffice for breaking the chain of causation.

“Nor when a negligence subsequent to that of the defendant is the agent by which the defendant’s negligence proves injurious can the subsequent negligence be a bar to the plaintiff’s recovery if such subsequent negligence was likely, in the usual and natural order of things, to follow from the defendant’s negligence.”

Wharton, Negligence (2d) par. 145.

In Palmetto Insurace Co. vs. Clarke’s Garage, 6 La. App. 420, a case confidently relied upon by defendant, this court held that the proprietor of a garage was not liable for damages to a customer’s automobile caused by a fire due to a bystander throwing a lighted match into some gasoline, which had been spilled by an employee, because the throwing of the match was the proximate cause of the resulting damage. In the case at bar the proximate cause was the shipment of used drums, with explosive gases, representing them as unused and free from any dangerous contents. If in the Palmetto Insurance Company case the defendant’s employee had informed the match thrower that the gasoline was water, the cases would be more similar in principle.

The defendant is a distiller of alcohol and uses drums of the size and character, which caused the accident, for storing its product. It knew the effect of alcohol upon the drums, and of the explosive and inflammatory gases, which remain after the removal of the alcohol. It should have taken extraordinary care to have shipped the unused drums, which it sold, and which were free from dangerous gases and safe for all uses. It might reasonably have contemplated that the drums would explode and cause injury to someone as a result of its error, if not by reason of a lighted match, in some other way.

Decedent is said to have contributed to his injury by his negligence in remaining on the scene after Putzell took the paper of matches from his pocket. It is said he should have run away. The evidence is that Putzell acted with great haste and “in a flash’- and we are convinced no opportunity was afforded plaintiff to run even had he divined Putzell’s purpose in taking the matches from his pocket. It is certainly as reasonable to suppose that Putzell intended to, light a cigarette as that he would apply the match to the bung hole, consequently it was not easy to surmise what he intended to do with the lighted match.

The minor, Olive May Moore, on whose behalf this suit is prosecuted, at the time of her father’s death, February 3, 1925, was 13 years old. The deceased was Vice-President of the Lucas E. Moore Stave Company and as such, at the time of the accident, was receiving a salary of $10,500 per year. He was 41 years old and had a life expectancy of 27.45 years. Under the jurisprudence of Louisiana, in cases of this character, large awards have not been countenanced. We believe that $10,000, under the circumstances, would' be proper.

Since this suit was instituted the widow, Mrs. Olive May Moore has remarried, her husband being James Hennen Legendre.

For the reasons assigned, the judgment appealed from is reversed, and it is now ordered that Mrs. Olive May Moore Legendre, tutrix of the minor Olive May Moore, do have and recover judgment against the defendant, Jefferson Distilling and Denaturing Company, in the full sum of $10,-000 with legal interest thereon from judicial demand and all costs.


author: WEBB, J.

text:
    No. 3678
    Second Circuit
    WHITE v. HILL ET AL.
    (November 18, 1929. Opinion and Decree.)
    (December 31, 1929. Rehearing Refused.)

      Foster, Hall, Barret & Smith, of Shreveport, attorneys for (plaintiff, appellee.
    John B. Files, of Shreveport, attorney for defendants, appellants.
   WEBB, J.

On May 17, 1927, plaintiff, R. W. White, instituted action against defendant, James Hill, to obtain judgment on two certain promissory notes drawn by Hill, and for recognition of a mortgage on certain immovable property given by Hill to secure the payment of the notes, and defendant filed a prayer for oyer of the instrument sued upon. While the motion and prayer for oyer were pending plaintiff moved for a default against defendant, which was granted and thereafter confirmed on June 11, 1927, and judgment rendered against defendants.

On June 14, 1927, defendant filed a motion to vacate the judgment on the ground that the preliminary default had been taken and confirmed while the motion and prayer for oyer were (pending; and, while the motion to vacate was pending, a fi. fa. was issued on the judgment and defendant’s property seized thereunder, and thereafter the motion to vacate the judgment was refused. But, on July 8, 1927, plaintiff moved to vacate the judgment on the same grounds as previously urged by defendant, and the motion was ■ allowed on July 11, 1927.

Following, on July 13, 1927, plaintiff moved for a default against defendant, which was granted, and on October 8, 1927, the default was confirmed, and on October 13, 1927, judgment in favor of plaintiff and against defendant was signed. A fi. fa. was issued on the judgment and defendant’s property seized and, after due advertisement, it was adjudicated to W. A. Mabry, who refused to accept the property and comply with his bid.

On December 12, 1927, plaintiff filed a rule against Mabry to show cause why he should not comply with his bid, to which rule defendant was made a party, and, in answer to the rule, Mabry and defendant alleged that the judgment of date October 13, 1927, was invalid, setting forth the proceedings previously had. in the suit, and on trial of the rule on February 4, 1928, the rule was recalled, but there was not any judgment signed and plaintiff, after moving for a new trial, which was refused, moved for orders of appeal from the judgments of date June 11, 1927, and October 13, 1927, and the ruling recalling the rule of date February 4, 1928.

The appeal was presented in this court and judgment rendered dismissing same on November 8, 1928 (see Robert W. White vs. James Hill, 10 La. App. 146, 122 So. 75), and plaintiff then made an application before the Supreme Court for a writ of certiorari, which was granted, but, on hearing, the judgment dismissing the appeal was affirmed (see Robert W. White vs. James Hill, 168 La. 92, 121 So. 585).

The statement above shows that there was not any judgment signed in pursuance of the ruling of date February 4, 1928, recalling the rule against Mabry to show cause why he should not comply with his bid to which, as stated, defendant was made a party, and on March 2, 1929, plaintiff filed a motion for a new trial on the rule, which was granted. And, in addition to the defenses originally interposed, the defendant, Hill, alleged that the plaintiff had, subsequently to the seizure and adjudication of the property to Mabry and the decree of date February 4, 1928, recalling the rule, instituted suit against him on another cause of action, asserting a lien and privilege on the property adjudicated to Mabry, and had obtained judgment against him, as prayed for, and had seized the property which had been adjudicated to Mabry, and that plaintiff was estopped from denying that Hill was the owner of the property. On trial, the rule was made absolute, and Mabry and defendant appeal, and defendant has filed a plea of estoppel here, while the plaintiff has answered the appeal praying that damages be assessed against appellants for a frivolous appeal.

In support of the appeal, it is urged that the judgment of date October 13, 1927; under which the property was adjudicated to Mabry, was invalid; it being argued that the court was without authority to vacate the judgment of date June 11, 1927, and to render the judgment of date October 13, 1927, and it is further argued that, the evidence establishing the facts alleged as the basis of the plea of estoppel, the plea should have been sustained.

Relative to the plea of estoppel, it is urged that plaintiff should be held to have acquiesced in the decree recalling the rule by making the second seizure, and it is also suggested that plaintiff, by the second seizure of the property, had recognized defendant’s ownership of the property.

Mabry did not file any plea of estoppel,, and it appears he appealed merely to protect himself in view of the appeal taken by defe2idant, as he did not make any appearance here; and we are unable to comprehend in what way the action of plaintiff holding two distinct judgments against defendant, could be held to have injured defendant by seizing his property under both judgments, and it is not apparent why a judgment creditor, who seizes the property of his judgment debtor, should be held to have acquiesced in a decree ordering or having the effect of releasing the property from a seizure previously made under another judgment held by the creditor. And, as there is not any authority cited in support of such positions, and, as we have not been able to find any, we are of the opinion that the pleas of estoppel were properly overruled.

With regard to the validity of the judgment of date October 13, 1927, under which the seizure and adjudication were made to Mabry:

Defendants in the rule did not contend that the question of the authority of the court to render the second judgment was dependent upon whether or not the first judgment was in fact valid, as their pleadings indicate it was not, and, while the argument here suggests that the plaintiff should have brought an action to annul the judgment of date June 11, 1927, we are of the opinion there was not any such judgment to be annulled, but that the judgment was vacated.

When the case was before the Supreme Court, it was said:

“As to the judgment of June 11, 1927, both plaintiff and defendant had urged the nullity thereof, thereby conceding and confessing said nullity; and the court had decreed and entered upon its minutes an order annulling said judgment. Not only did they both confess the nullity of said judgment by their own motions to set it aside, but they actually recognized it as a nullity by proceeding, at once after the order annulling it, to submit the prayer for oyer as in a case still pending and undisposed of.

“Hence both plaintiff and defendant are and forever will be estopped from denying that the judgment of June 11, 1927, was and is a nullity.

“Such being the fact, there was no valid judgment in the case when (after the rule for oyer had been disposed of) a new default was taken against defendant on July 13th and confirmed by judgment of October 13, 1297.

“The judgment of October 13, 1927, was therefore a valid judgment, and since said judgment gave plaintiff all that he claimed * * * it follows that he has no interest or reason to appeal. * * *” Robert W. White vs. James Hill, 168 La. 92, 121 So. 585, 586.

And while it is urged here that the question as to the validity of the judgments was not before the court, we think it was, but, if not, the situation is not changed, and, as stated from our view of the record, the judgment of June 11, 1927, was vacated, and, that being the ease, there is not any reason suggested why the judgment of date October 13, 1927, is not valid. The property having been seized and adjudicated under the judgment, we are of the opinion that the judgment ordering Mabry to comply with his bid was correct.

We do not think that damages should be allowed for a frivolous appeal, as demanded by plaintiff, as it appears certain that the delays in this matter cannot be altogether attributed -to the defendant. The judgment is affirmed.


author: DREW, J.

text:
    No. 3682
    Second Circuit
    YOUNGBLOOD v. COLFAX MOTOR CO., INC.
    (January 31, 1930. Opinion and Decree.)

      Ped C. Kay, of DeRidder, and Cline, Plauche & Girod, of Lake Charles, attorneys for plaintiff, appellant.
    John A. & R. B. Williams, of Colfax, attorneys for defendant, appellee.
   DREW, J.

Plaintiff, Mrs. Pearl Young-blood, individually and on behalf of her minor children, Charles H., Winston S., Harold C., and Clyde L. Youngblood, instituted this suit against the Colfax Motor Company, Inc., for compensation for the death of their husband and father, Herbert S. Youngblood, alleging that the deceased, on or about the 2nd day of January, 1929, while engaged in taking an inventory for defendant, and while in the act of handling automobile parts, a piece of steel, glass, or other object stuck into one of his fingers, as a result of which the said finger became infected, causing nephritis, from which disease he died on February 8, 1929. They allege the business and occupation of the defendant on the dates above mentioned was “hazardous’’ under the express provisions of the Employers’ Liability Act of Louisiana; that prior to and on or about January 2, 1929, the deceased was in the employ of said defendant in connection with its said business and occupation as hereinabove set out, his duties consisting of the general management and supervision of said business, and in connection with which duties he was required to, and did in fact, drive, operate, and sell automobiles and other vehicles, sell automobile parts, gasoline, motor oil, and other automobile accessories and assist in the taking of inventories. They allege his weekly earning to have been $34.56 per week, and pray for judgment in the sum of $6,000, payable at the rate of $20 per week from January 5, 1929, until paid, and for $250 burial expenses and doctor’s bills.

The defendant filed an exception of no cause of action, which was overruled, and it then answered, setting up a general denial to all essential allegations of plaintiff’s petition.

Defendant urges the exception of no cause of action, for the reason that it .is not set out that defendant was, at the time of the accident, engaged in a “hazardous” occupation within the terms of the Employers’ Liability Act of Louisiana. For the purpose of said exception, the allegations of plaintiff’s petition must be taken as true, and in paragraph 7 of the petition it is alleged:

“That prior to and on or about January 2nd, 1929, the said Herbert S. Youngblood, husband of your petitioner, was in the employ of said Colfax Motor Company, Inc., in connection with its said business and occupation, as hereinabove set out, his duties consisting of the general management and supervision of said business, and in connection with which duties he was required to and did, in fact, drive, operate and sell automobiles and other motor vehicles; sell automobile parts, gasoline, motor oil, and other automobile accessories, and assist in the taking of inventories.”

A service station handling gasoline is “hazardous,” within the terms of the Employers’ Liability Act of Louisiana. Smith vs. Marine Oil Co., 10 La. App. 674, 121 So. 782.

One driving, selling, and delivering motor vehicles is engaged in the operation o.f “engines” and “other forms of machinery,” within the terms of the Employers’ Liability Act. Haddad vs. Commercial Motor Truck Co., 146 La. 897, 84 So. 197, 9 A. L. R. 1380.

One whose duties are partly hazardous and partly nonhazardous, even though injured while performing duties that are nonhazardous, is entitled to compensation under the Employers’ Liability Act. Byas vs. Hotel Bentley, Inc., 157 La. 1030, 103 So. 303.

There is no merit in the exception of no cause of action, and the lower' court properly overruled the same.

MERITS

There are two questions presented for determination in this case:

1. Did the deceased receive an injury to his finger in the manner alleged?

2. If he did receive the injury as alleged, did that injury actually cause or contribute to his death?

For proof that the injury happened as alleged, plaintiff relies entirely upon the testimony of witnesses who relate what deceased told them. She offered the testimony of Dr. S. T. Roberts, who says that the deceased told him how the injury was received, and says that this conversation took place on the 12th of January, 1929. Dr. Earl Jones testified that the deceased told him on January 2, 1929, how the injury was received. Both doctors testify that he was relating the history of the case to them at the time he was calling on them for treatment.

Plaintiff also offered the testimony of J. E. Frusha, a brother-in-law of the deceased, O. B. Youngblood and C. L. Youngblood, brothers of ■ the deceased, Hiram Lyles, a brother-in-law, and Mrs. Pearl Youngblood, widow of the deceased, and M. H. Rogers, a traveling companion of the deceased, all of whom testify that the deceased told them how the injury was received, but not until several days, and in some instances a week, after the injury had been received. Plaintiff offered no evidence of any person who witnessed the accident, and is relying solely on the testimony of the above-named witnesses. ,

Defendant objected to this testimony for the reason that it was hearsay, and the judge of the lower court allowed the evidence, reserving the right to pass upon its admissibility in the final determination of the case. Just what his ruling was, as to the admissibility of this evidence, is not in the record, and whether he considered it or not, in arriving at his decision, we are unable to say.

Plaintiff urges the admissibility of this evidence, citing paragraph 4, section 18, of Act No. 20 of 1914:

"The judge shall not be bound by the usual common law or statutory rules of evidence or by any technical or formal rules of procedure other than as herein provided.”

in support of her contention; but we' are sure this paragraph is not authority for the admission o.f rank hearsay testimony that is not part of the res gaste in -so far as'it applies to witnesses other than the attending physicians.

In the case of Hicks vs. Meridian Lumber Co., 152 La. 975, 94 So. 903, the court held that statements made by a deceased to a person who was not a physician was inadmissible testimony.

In Bionto vs. Illinois Central Railroad Co., 125 La. 147, 51 So. 98, 27 L. R. A. (N. S.) 1030; the court held:

“The deceased son of the plaintiff was struck by a train of the defendant and rendered unconscious for a period of time unascertained. When he recovered consciousness he told witnesses what he knew of the accident, and his statements were sought to be introduced at the trial as part of the res geste; but as his statements were not a part o.f the transaction, nor the immediate outcome of the act complained of, but was merely narrative of what he knew of the accident, they were properly excluded as not forming part" of the act and not within the rule of res geste."

In Bishop et al. vs. Town of Mansfield et al., 144 La. 110, 80 So. 217, the court said:

“Statements, made by á person injured concerning +he manner of his injury, which were not part of the res geste, are inadmissible in evidence,' when coming from those to whom they were made, in an action for the damages resulting from such injury, brought by the brothers and sistels of the person injured after his death.”

The testimony of the witnesses, other than the two doctors, Jones and Roberts, wherein they related what the deceased had told them about the manner in which he had received the injury, is clearly inadmissible.

There is some authority for the admission of physicians’ testimony, wherein they testify to what the deceased narrated to them in giving a history of the injury received for the purpose of receiving treatment, in cases where there were no eyewitnesses to the accident, and these authorities are based on sound reasoning. However, in this case, if we consider the testimony of Dr. Jones and Dr. Roberts as admissible testimony, the plaintiff has still failed to make out her ease against the defendant.

Dr. Roberts testified that when he was called to see the deceased, on January 12th, his finger was lacerated, about a third of the tip of the finger. Dr. Jones testified that when the deceased came to him for treatment on the 2nd of January, there was no laceration.

Plaintiff claims that the injury was received while the deceased was taking an inventory, and the evidence is conclusive that the taking of the inventory was begun on the 27th of December and ended on the 28th of December.

Deceased’s widow testified that when he came home for Christmas, which was before the inventory was taken, his finger was injured and was wrapped up.

Red Richards testified that the deceased had his finger wrapped up while taking the inventory. Mrs. L. B. Dean testified that deceased’s finger was injured before the taking of the inventory. J. L. Clark testified that the finger, was injured before the deceased began taking the inventory; and J. W. Duncan, Mrs. J. W. Duncan, and their son, W. T. Duncan, all of whom lived in the same, 'house with the deceased, at least he boarded with the Duncans, testified that the deceased had his finger wrapped up and was complaining of the finger hurting him before he went home for Christmas, and a week or more before he began taking the inventory. The uncontradicted evidence is that before he would -start taking the inventory he remarked that his finger was bothering him and that he left defendant’s place of business and went to the doctor’s office and had the finger dressed and wrapped up for the purpose of keeping dust from getting in it.

Dr. Roberts testified that on the 12th of January the deceased gave him the following history of the case: “That he was taking stock in automobile parts and stuck something in his finger while handling stuff on the shelf. And that ne went to the doctor and the doctor tried to find something in his finger, but failed to find it.” The testimony of six or eight other witnesses is that his finger was not hurt while taking stock for defendant.

Dr. Jones testified as follows: “Well, when he came in, I don’t remember what finger it was, but I think it was the middle finger on the r.ight hand', and when you looked over it you didn’t see anything, but when you passed your finger over it he jumps. When I looked with a magnifying glass I could see a little hole which looked like a very small object had been in there, and I asked him if he had picked out anything, and he said he had not; ..that the only evidence.he had something in there was when he passed his finger over it he 'felt pain. I couldn’t, see , anything with the magnifying glass, and the next thing was to look for a cause. If you have some idea of what a man has stuck in his finger you have a better idea of what is wrong, and that is when he told me. He told me that he h^d been taking an inventory, and he said that it may be a sliver of steel wool, it might be a little piece of glass, or it could have been something that happened over at Mrs. Duncan’s. Anyway, he included a rosebush, and that is what is left out of the affidavit.”

Dr. Jones further testified that, in his opinion, from his examination of the injured finger, the injury was not caused by a piece of glass, nor by a piece of steel wool, and that he thought of a thorn, for the reason that a thorn will poison the flesh, as there is a secretion of poison on the tip of a thorn; that neither glass nor wire would give as much pain as the injury was causing the deceased.

There is uncontradicted evidence in the record that there was no steel wool in the department in which the deceased helped to take the inventory, and that there are a number of rosebushes at Mrs. Duncan’s where he was living.

Counsel for plaintiff asked Dr. Jones the following question:

“Didn’t he (the deceased) state that possibly it (the injury) was gotten up in Mrs. Duncan’s yard, that he didn’t know where?”

And the witness answered:

“Yes, sir.”

The plaintiff must make out her case with a preponderance of the evidence, and in this she has failed. It would take a wide stretch of imagination for the court to say that the deceased was injured while taking the inventory for defendant, for the overwhelming evidence is against it.

Having decided the first question in the negative it is unnecessary to pass on the second question.

The district court rejected plaintiff’s demands. We find no error in that judgment.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be affirmed. Appellant to pay the cost of the appeal.


author: ODOM, J."

text:
    No. 3654
    Second Circuit
    SHERWOOD v. TICHELI
    (December 31, 1929. Opinion and Decree.)

      Hudson, Potts, Bernstein & Sholars, of Monroe, attorneys for plaintiff, appellant.
    McHenry, Montgomery, Lamkin & Lester, of Monroe, attorneys for defendant, appellee.
   ODOM, J."

S. B. Sherwood brought suit against Mrs. Catherine Ticheli for $43,100 damages alleged to have been sustained by him on account of an automobile collision which took place between his automobile while being used by his wife and children and one belonging to defendant, which collision took place on the streets of Monroe. Plaintiff alleged that the collision was due to the fault and negligence of defendant’s driver, and that, as a result, his car was injured to the extent of $100, and that his wife had received personal injuries which had damaged him in the sum of $22,000, and that his minor child had also received personal injuries to the extent of $21,000. For his own use and benefit, he asked damages for the injury to his car and to his wife, and, for the use and benefit of his child, he asked recompense for the injuries which it had sustained.

After trial in the district court, the following judgment was rendered:

“It is therefore ordered, adjudged and decreed that plaintiff, S. B. Sherwood, do have and recover judgment of and against defendant, Mrs. Catherine Ticheli, in the full sum of Forty-four & 16/100 ($44.16) Dollars, with legal interest thereon from date of judicial demand until paid, and all costs of this suit.”

Plaintiff appealed to this court, and we affirmed the judgment (9 La. App. 807, 120 So. 109, 110), with the following reservation and amendment:

“However, as the evidence shows, that the same expense was incurred by plaintiff for attendance and services of physicians who were called to attend his wife and child following the accident, which may be distinguished from the expenses incurred in furtherance of the actions for damages, we think the plaintiff’s right to recover for such expenses should have been reserved, and that the judgment should be amended so as to preserve plaintiff’s right to claim such expenses, and the judgment appealed from is amended so as to reserve to plaintiff his right to claim such expenses, and, as amended, it is affirmed, at appellant’s cost.”

While the judgment of the district court, which we affirmed with the reservation noted, does not so specify, it is conceded that the award against defendant of $44.16 was for damage to plaintiff’s automobile, and that his claim for damage on account of injuries to his wife and his claim for damage to his minor child, made for its use and benefit, were rejected.

Long after the judgment rendered by this court had become final, the defendant in the suit, Mrs. Ticheli, through her attorneys, brought the present rule against Sherwood, the plaintiff in suit, to show cause why the fees of certain physicians, who were called as expert witnesses at the trial to- testify on that particular branch of the case concerning the injuries to plaintiff’s minor child, should not be fixed and taxed as costs against him. The district judge fixed the fees of the. experts at $175 and ordered Sherwood to pay them. Sherwood appealed.

Mrs. Ticheli, defendant in suit and plaintiff in'rule, moved to dismiss the appeal on the grounds: First, that the judgment appealed from is one taxing costs and is interlocutory; and, second, that it cannot be reviewed by this court because the evidence in support of it is not in the record.

On the first point, the case must be determined adversely to appellee’s contentions on the authority of Barker vs. Houssiere Latreille Oil Company, 163 La. 555, 112 So. 415, and State ex rel. Johnson vs. Judges Court of Appeal, 107 La. 69, 31 So. 645.

On the second point, it is sufficient to state that the amount allowed as fees to the experts is not contested; it having been agreed, as we understand, that the amount allowed was satisfactory to both sides. The motion to dismiss is overruled.

It is conceded that the fees of these experts should be taxed as costs of the suit, but the defendant in the suit, Mrs. Ticheli, contends that they should be paid by Sherwood, the plaintiff, because the experts were called and testified on that branch of the case pertaining to the injuries sustained by the minor child of Sherwood, whose demands for its use and benefit were rejected.

Even if it be conceded that these fees should have been taxed as costs to be paid by plaintiff,. and we express no opinion as to that, the question is foreclosed by the judgment which is long since final. The district court ordered Mrs. Ticheli to pay all costs of the suit, and that judgment was affirmed by this court. That judgment is res adjudicata. Mrs. Ticheli did not appeal from the judgment rendered against her, nor did she move in this court to amend it. She is bound by it, whether right or wrong. She was cast for all costs, which admittedly include the fees of the experts; she allowed that judgment to stand, and cannot now escape its effects.

Counsel for Mrs. Ticheli say in brief that, in case a judgment “does not decide certain issues, and this is made manifest by the decree itself, the decision Mil not support the plea of res adjudicata,” and they cite authorities in support of their contention. That is true, of course, but the judgment rendered in this case was not silent on the point as to who should pay the costs. It was specifically decreed that Mrs. Ticheli should pay all costs.

The district judge fixed the fees of the experts and ordered that they be paid by Sherwood. In so far as the amounts fixed are concerned, the judgment should not be disturbed, but, to the extent that the judgment on rule orders S. B. Sherwood to pay these costs,. it is erroneous.

It is therefore ordered and decreed that the judgment on rule, in so far as it decrees that S. B. Sherwood pay the costs in controversy, be and it is reversed and set aside; appellee to pay costs of proceedings on rule in both courts.


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    No. 11,690
    Orleans
    BRUNING v. WALMSLEY ET AL.
    (January 27, 1930. Opinion and Decree.)
    (February 17, 1930. Rehearing Refused.)
    Theo. Cotonio, of New Orleans, attorney for plaintiff, appellant.
    T. Semmes Walmsley, of New Orleans, attorney for Carroll B. Walmsley, defendant, appellee.
    Thatcher, Browne, Porteous & Myers, of Shreveport, and Wm. A. Porteous, Jr., of New Orleans, attorneys for appellee Fidelity & Casualty Co. of N. Y.
   JANVIER, J.

Plaintiff, Bruning, having disposed of his residence, employed defendant Walmsley as auctioneer to sell certain household furniture contained therein.

Walmsley caused the sale to be advertised, and, upon offering the articles, obtained bidders therefor.

Bruning now complains that he has not jieen able to obtain from Walmsley a statement of account, nor a settlement for such balance as may be due.

Walmsley’s defense is that he has several times rendered to Bruning an accounting, but that Bruning is not satisfied therewith, mainly because several of the articles bid in by purchasers were neither paid for nor removed. It is now contended that, as Walmsley did not exact deposits from these purchasers, he is liable for the respective amounts bid therefor.

We are quite well convinced that bids totaling $722.75 were received, and that of this sum $419.75 was not paid in by the bidders. The articles which were not paid for were not removed by the bidders and are now in the possession of plaintiff, Bruning, in a warehouse owned by him, and a key of which apparently is in the possession of Walmsley.

It thus appears that the cash actually collected amounted to $303.00.

As expenses, Walmsley has deducted the following:

Auctioneer’s commission________$67.07

Charity Hospital fee______________ 3.35

Advertisements ________________________ 75.00

Sign ----------------------------------------------' 3.58

Drayage to warehouse------------ 8.00

- $157.00

Walmsley is entitled to commission only on such articles as were actually sold, paid for, and delivered. Pierre Larroux vs. Heirs of Jean Larroux et al., No. 11620 of the docket of this court, decided January 13, 1930, 125 So. —. Assuming for the moment that a commission of 10 per cent is reasonable, it will be seen that he is entitled to a commission of $30.30.

The hospital fee should be paid only on the actual amount of the consummated sales. This, at one-half of 1 per cent, amounts to $1.52.

Walmsley admits that about one-fifteenth of the furniture sold and of that hauled to the warehouse did not belong to Bruning, but was put into the residence to make it seem full and to attract buyers. Bruning should not be charged, therefore, more than fourteen-fifteenths of the expenses of advertising, of preparing the sign, and of the drayage.

Thus Bruning should be charged on these items as follows: Advertising, $70.00; sign, $3.36; drayage, $7.46. It appears, then, that Bruning’s total share of the expenses amounts to $112.64, which should be deducted from $303, the total amount of sales. This leaves a balance due him amounting to $190.36 and for which he should have judgment.

We do not feel that Bruning’s contention, that the auctioneer’s commission is limited by law to 5 per cent, is well founded. There is nothing in the law limiting an auctioneer’s commission at a conventional sale, and on a small sum of this kind 10 per cent does not seem to be excessive. The auctioneer was required to list all of the articles, to prepare the advertisement, to order the sign, and the sale itself probably required almost the entire day of himself, his clerk, and his bookkeeper. He could hardly be expected to do all this for so small a commission as $15.02, which is what he would be entitled to if plaintiff is correct.

Nor do we believe that Walmsley, by not exacting deposits, made himself liable for the amounts of the respective bids. It is well established in the evidence that the custom at these conventional sales of movables is for the auctioneer to exercise his discretion in the exacting of deposits, and in following this custom he was within his rights, unless it can be shown that he clearly abused that discretion, and on this point the evidence convinces us that the discretion was properly exercised.

.There is nothing in the evidence to show conclusively that he was instructed to exact a deposit in each case, and it therefore follows that the advertisement, which, as a matter of fact, did contain the words, “Terms: cash. Deposit required,” was nothing more than a compliance with the usual custom to insert such a requirement in the advertisement, but not to strictly enforce it.

We therefore feel that the judgment allowing Bruning $146.05 was slightly inadequate and should be increased.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be, and it is, amended by increasing the amount thereof to $190.30, and, as thus amended, affirmed, all at the cost of defendant.


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    No. 11,444
    Orleans
    LEE v. DE ARMAS
    (February 17, 1930. Opinion and Decree.)
    L. H. Perez, of .New Orleans, attorney for plaintiff, appellee.
    Dymond & Levy and Geo. C. Schcenberger, Jr., of New Orleans, attorneys for defendant, appellant.
   JANVIER, J.

Plaintiff sues for $410, claiming $400 as tlie rental value of his boat, the “Beulah B,” for 40 days, and $10 as compensation for the services of himself and his three sons for one day.

The defendant contends: That the boat was rented for only six days, that $10 a day is an exorbitant charge for a boat of that type, and that he has settled in full with plaintiff for the six days’ use at $5 per day.

The 40-day period, 'during which plaintiff claims defendant had exclusive use of the boat, is alleged to have commenced on September 10, 1927, and to have terminated on October 20, 1927.

Strange to say, although defendant states in his testimony that he did not receive the boat until September 28th, he admits in his answer that:

* * orL or at)0Ut September 10, acting as the agent for Peter J. Buras & Company, he rented the boat ‘Beulah B’ * *

Plaintiff and his witnesses testify -that the boat was delivered on September 10th, but defendant, in spite of the admission to which we have referred, swears that he did not get the boat until September 2Sth. No objection was made to his thus departing from the allegations of his answer. The record overwhelmingly shows that the boat in fact was not turned over to him until September 28th, and thus, even if plaintiff were otherwise correct, 18 days should be deducted from the time for which he claims rental. His statement and those of his sons, that September 10th, was the date on which the boat was delivered, are very hesitating and uncertain, whereas the testimony of defendant’s witnesses as to the other date is clear and positive.

Plaintiff charges that it was understood that defendant was to have the exclusive use of the boat until he turned it back to plaintiff. On this point, also, the preponderance of the ■ evidence is with defendant. During most of the time in question the boat remained at plaintiff’s wharf and defendant sent for it only when he needed it. That he used it only six days is not denied. The record convinces us that, during that time plaintiff claims defendant had the exclusive right to the use of the boat, plaintiff’s sons took it out several times for their own purposes, and, on one occasion, used it for a trip of several days to Bayou Lafourche. Why defendant, who needed the boat only once in each week or ten days, should have made a contract for its exclusive use, is beyond our comprehension and we do not believe that he did so.

The claim that $10 a day is a fair charge for the use of such a boat is not borne out. On the contrary, it appears that five or six dollars per day would have been much nearer the usual charge for a boat of this type.

But the complete answer to plaintiff’s charge that defendant owes him anything is found in the fact that plaintiff accepted and used a check for $6.21 as the balance due for the use of the boat.

Defendant testifies that after the boat was used it was agreed that $30 was the amount due, this being based on a charge of $5 a day for six days, and that, as the boat was in fact rented for the use of Peter J. Buras & Company, of which partnership defendant was a member, and as plaintiff was indebted unto the Buras firm for supplies, it was agreed that a balance should be struck, and that such balance as was due should be paid in cash and that this balance, $6.21, was paid and is represented by the .check which we find in the record.

The case presents no questions except of fact but on those questions, the proof in favor of defendant abundantly preponderates. The judgment of the district court was clearly erroneous.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be, and it is, annulled, avoided and reversed, and that there now be judgment in favor of defendant, dismissing plaintiff’s suit.


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    No. 11,797
    Orleans
    KUNTZ v. GOLDSTEIN
    (February 17, 1930. Opinion and Decree.)
    Cobb & Jones and Hermann M. Baginsky, of New Orleans, attorneys for plaintiff, appellee.
    Sidney G. Roos, of New Orleans, attorney for defendant, appellant.
   JANVIER, J.

Plaintiff seeks to recover $880 as commission claimed to have been earned by him as real estate agent during October, 1925, when two salesmen employed by him obtained an offer from Dr. F. Theodore Beatrous to purchase certain property, which defendant had listed with plaintiff for sale.

It is alleged that defendant failed to consummate the transaction. Defendant now resists payment of the commission, principally on the ground that the offer to purchase was not obtained until after the time limit fixed by him had expired. The trial court found that the time limit had not expired, and rendered judgment in favor . of plaintiff.

Although defendant has appealed from the said judgment, his attorney has favored this court with neither oral argument nor brief. A superficial examination of the record, which is all we feel justified in giving it, in view of the lack of interest displayed by defendant’s attorney, indicates that the finding of the trial court was correct. Such inaction does not stimulate judicial research or activity, but rather tends to .strengthen the conviction, which we have formed from a reading of the record, that there is no merit in defendant’s contention.

The judgment appealed from is therefore affirmed.


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    No. 13,263
    Orleans
    MADISON LBR. CO. v. ALSON
    (February 17, 1930. Opinion and Decree.)
    •'-’entsch & Kerrigan, of New Orleans, attorneys for plaintiff, appellee.
    Milner & Porteous, of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

This is an appeal from a judgment rescinding an order for a suspensive appeal.

Plaintiff obtained a judgment in the First city court, which was1 signed October 4, 1929. A motion for a suspensive appeal was filed, and the order granting the appeal to this court was signed on October 7, 1929. The appeal was perfected on October- 17, 1929, whereupon the appellee filed a rule in the city court to dismiss the appeal, upon the ground that it was taken too late. The rule was made absolute, and the former order granting the appeal rescinded. Defendant appeals from that judgment.

The judgment was signed October 4th, and the appeal was taken October 17th. There intervened during this period a legal holiday “Columbus Day” (see Act 49 of 1928) and two Sundays. Appellee contends that October 16th was the last day upon which the appeal could be taken.

Act 128 of 1921, sec. 1, relating to procedure in cases of this kind, provides:

“Appeals shall be allowed, and be returnable to the Court of Appeals, within ten days, exclusive of Sundays, from the rendition of the judgment,” etc.

Eliminating the two Sundays between October 4th, and October 17th, the tenth day would be October 16th. If this day is to be counted the appeal was taken too late, and the judgment appealed from must be affirmed. The intervening holiday, October 12, 1929, must be counted, since under tbe terms of tbe Acts of 1921 only Sundays are to be excluded.

In Hendren vs. Crescent City Seltzer & Mineral Water Company, Inc., 1 La. App. 25, we held that tbe last, or terminal, day did not count because of the provision of article 318 of the Code of Practice which provides:

“In the delay given to the defendant for answering, Sunday is included like other days; but in all cases where delay is given either to do something or to answer, neither the day of serving the notice, nor that on which the act is to be done or the answer filed, are included.” C. P. 180.

In the cited case a number of decisions of our Supreme Court and this Court were referred to as firmly establishing the jurisprudence to the effect, as stated in Garland vs. Holmes, 12 Rob. 421, that:

“In computing the time, for a suspensive appeal, neither the day on which the judgment was signed, nor that on which the appeal is to be taken are included. C. P. 318.”

But our attention has been directed to the case of Tessier vs. Jacobs, 164 La. 239, 113 So. 833, which it is said holds the contrary. In that case the question presented was whether, in computing the delay allowed defendant for answering, the tenth day or terminal day was to be considered, in view of article 318, C. P. In holding that the terminal day was to he counted, the court declined to discuss the question on its merits saying that for more than 50 years the practice complained of (taking preliminary default on the 11th day) had been sanctioned by the court; the previous jurisprudence being unanimously to the effect that the delay for answering expired on the 10th day. In reaffirming this jurisprudence, the court relied upon the doctrine of stare decisis.

We interpret the case of Tessier vs. Jacobs, supra, as authority for the proposition .that, in the delays for answering, the tenth or terminal day must be counted, notwithstanding the provisions of article 318, C. P., and, for the reasons given in that case, we Jiold here that the tenth, or terminal, day does not count in computing the time allowed for a suspensive appeal, because of the provisions of article 318, C. P.

In other words, the decisions maintaining the view here expressed have been unanimous and consistent for a period of more than 50 years, and there is greater reason for the application of the rule of stare decisis in this instance than there was in the Tessier case. The decisions to which we refer are discussed in our opinion in the Hendren case and will not be reconsidered here.

It follows, therefore, that, since the last day, October 16, 1929, does not count, the appeal, having been taken on October 17th, was timely.

For the reasons assigned the judgment appealed from is reversed, and it is now ordered that the rule to rescind the order of appeal be discharged and the defendant’s appeal reinstated.


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    No. 11,593
    Orleans
    GIROIR v. VEITH ET AL.
    (December 16, 1929. Opinion and Decree.)
    (January 13, 1930. Rehearing Refused.)
    (March 12, 1930. Writ of Certiorari and Review Refused by Supreme Court.)
    Legier, McEnery & Waguespack, of New Orleans, attorneys for plaintiff, appellee.
    Johnston Armstrong, of New Orleans, attorney for defendants, appellants.
   WESTERFIELD, J.

Plaintiff entered into an agreement with Joseph Fank, through his agent, Philip Veith, for the purchase of certain real estate belonging to Joseph Fank and other members of his family in indivisión. Pursuant to the terms of the agreement, plaintiff deposited with Fank’s agent, Veith, $250, that amount representing 10 per cent of the purchase price. Subsequently, for reasons which we are not now concerned with, the title to the property was rejected, and this suit was brought against Fank and Veith for the return of the deposit of $250.

Veith answered, acknowledging receipt of the deposit, and asked that all the owners of the property which plaintiff had agreed to purchase be made parties to the suit. Jos. Fank, and his co-owners, who had been impleaded as heretofore stated, answered, admitting substantially the allegations of plaintiff’s petition, and urging certain special defenses to plaintiff’s demand, which need not now be considered, since in this court they are not pressed. By way of reconventional demand a claim was made for rent of the premises, which plaintiff had agreed to purchase, aggregating $250, the exact amount of the deposit.

The only question before us is the reconventional demand of defendants.

The property which Giroir, the plaintiff, had agreed to buy, consisted of a lot 32 feet, 6 inches front by 127 feet, 2 inches and 4 lines in depth, on Fourth street in the city of New Orleans, on which had been erected a dwelling. It appears that plaintiff demolished certain buildings which he owned, and salvaged some of the material consisting of door frames and lumber, which were hauled to the property on Fourth street and stored in the back yard. This building material remained on the premises for a period of ten months, and this circumstance, it is claimed, amounted to taking possession of the premises, which, they say, was well worth the sum of $25 per month, for which they ask judgment.

We are referred to Babst vs. Hartz, 1 La. App. 498, and Richardson vs. Calovello, 5 La. App. 55. These cases hold that a prospective purchaser who takes possession of the property which he proposes to buy owes rent to the owner during the time of his occupancy, if the sale does not take place. If the plaintiff in this case can be said to have taken possession of the property, defendants’ claim would be justified under the authorities cited.

The record shows that plaintiff did not, at any time, occupy the dwelling, and his possession and occupancy is solely based upon the fact that the building material was placed in the yard. There was an effort made to show that plaintiff had caused the doors and other openings of the house to be nailed up, but it falls far short of proof.

Giroir was a neighbor of Fank, and on very friendly terms. He testifies that Fank gave him permission to store the lumber in the yard, and that it was placed there with Fank’s aid, and that Fank helped to unload the drays.

The trial court, in considering the testimony of Fank and Giroir, evidently concluded that the evidence did not establish Giroir’s possession, since the reconventional demand of defendants was dismissed. It seems to us also that the mere storing of building material on the premises with the consent of the owner is insufficient to establish possession and occupancy of the premises involving liability for rent. We are therefore of the opinion that the judgment appealed from is correct.

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